MAY 1984
Commission Decisions
5-11-84
5-23-84
5-30-84
5-31-84

Carbon County Coal Company
Pontiki Coal Corporation
Mid-Continent Resources, Inc.
United States Steel Mining Co.

WEST 82-106
KENT 83-181-R
WEST 82-174
PENN 82-328

Pg. 1123
Pg. 1131
Pg. 1132
Pg. 1148

WEVA 83-124-R
CENT 81-271-M
PENN 83-131
CENT 83-48-DM
KENT 83-196
KENT 83-225
CENT 83-40
LAKE 83-97-D
PENN 84-2
WEVA 82-340-R
WEST 83-48-D
WEVA 84-92-R
WEST 81-100-RM
YORK 83-6-DM
KENT 83-257-D(A)
KENT 84-87-R
LAKE 83-82
CENT 83-65
KENT 83-248
CENT 80-312-M
PENN83-115
PENN 83-151

Pg. 1153
Pg. 1156
Pg. 1166
Pg. 1168
Pg. 1215
Pg. 1218
Pg. 1219
Pg. 1264
Pg. 1265
Pg. 1267
Pg. 1277
Pg. 1289
Pg. 1294
Pg. 1306
Pg. 1312
Pg. 1319
Pg. 1333
Pg. 1347
Pg. 1351
Pg. 1359
Pg. 1369
Pg. 1380

Administrative Law Judge Decisions
5-01-84
5-02-84
5-04-84
5-07-84
5-08-84
5-09-84
5-10-84
5-10-84
5-11-84
5-11-84
5-11-84
5-11-84
5-14-84
5-14-84
5-15-84
5-15-84
5-16-84
5-17-84
5-17-84
5-22-84
5-22-84
5-22-84

U.S. Steel Mining Company
Gulf Mineral Resources Co.
U.S. Steel Mining Company
Louis Henderson v. Loring Quarries, Inc.
Eddie Higgs d/b/a Higgs Trucking Co.
Pyro Mining Company
Turner Brothers, Inc.
MSHA/James Clarke v. TP Mining, Inc.
Mathies Coal Company
Westmoreland Coal Company
Marjorie Zamora v. U.S. Fuel Company
Kitt Energy Corporation
FMC Corporation
Lawrence Everett v. Industrial Garnet Extrac.
Lonnie Jones v. D & R Contractors
Pyro Mining Company
Getz Coal Sales, Inc.
The Pittsburg & Midway Coal Mining Co.
Pyro Mining Company
Duval Corporation
U.S. Steel Mining Company, Inc.
U.S. Steel Mining Company, Inc.

·i-·

MAY

The following cases were Directed for Review during the month of May:
Pontiki Coal Corporation v. Secretary of Labor, Docket Nos. KENT 83-181-R,
etc •• (Judge Kennedy, March 30, 1984)
Secretary of Labor, MSHA v. Mineral Coal Sales, Inc., Docket Nos. VA 83-26,
etc •• (Judge Koutras, April 4, 1984)
Secretary of Labor, MSHA v. Belcher Mines, Inc., Docket No. SE 84-4-M. (Judge
Kennedy, April 26, 1984)
Badger Coal Company v. Secretary of Labor, MSHA, Docket Nos. WEVA 81-36-R, etc ••
(Judge Steffey, April 11, 1984)
Secretary of Labor on behalf of James Clarke v. T P Mining, Inc.~ Docket No.
LAKE 83-97-D. (_Judge Kennedy, May 10, 1984)
Review was Denied in the following cases during the month of May:
Monterey Coal Company v. Secretary of Labor, MSHA, Docket Nos. LAKE 84-19-R,
etc.. (Judge Broderick, April 13, 1984)
Secretary of Labor, MSHA v. Todilto Exploration & Development Corporation,
Docket Nos. CENT 79-91-RM, etc •• (Judge Vail, April 17, 1984)

COMMISSION DECISIONS

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

May 11, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 82-106

CARBON ~UNTY COAL COMPANY
ORDER
This civil penalty proceeding under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~· (1982), is before us on
interlocutory review. Carbon County Coal Company seeks review of an
order of a Collllllission administrative law judge denying Carbon County's
motion for sullllllary decision. For the reasons that follow, we vacate the
judge's order and reinand to the judge for reconsideration of Carbon
County's motion.
This case arose out of a citation and withdrawal order issued by
the Department of Labor's Mine Safety and Health Administration ("MSHA")
on August 24 and September 3, 1981, respectively, alleging that Carbon
County was operating a mine without an approved ventilation system and
methane and dust control plan in violation of 30 C.F.R. § 75.316.
Section 75.316, which mirrors the statutory standard contained in
section 303(0) of the Mine Act, 30 u.s.c. § 863(0), provides:
A ventilation system and methane and dust
control plan and revisions thereof suitable to the
conditions and the mining system of the coal mine
and approved by the Secretary shall be adopted by
the operator and set out in printed form ••••
Such plan shall be reviewed by the operator
and the Secretary at least every 6 months.
Carbon County operates the Carbon No. 1 Mine, an underground coal
mine located in Hanna, Wyoming. MSHA had approved and Carbon County had
adopted a ventilation system and methane and dust control plan dated
August 25, 1980, for the Carbon No. 1 Mine. In March 1981, Carbon
County submitted a new ventilation plan to MSHA for the 6-month review
required by section 75.316. In this new plan, Carbon County proposed
.
changes in several of the provisions contained in the previously approved
August 25, 1980 plan. Negotiations ensued over the proposed changes.

1123

84-5-4

Although Carbon County and MSHA reached agreement with respect to most
of the proposed changes, they could not agree upon the requirement
dealing with the amount of air to be made available to auxiliary fans
used to ventilate some sections of the mine. In its submission, Carbon
County proposed that the volume of air made available to the auxiliary
fans be greater than "the maximum rated face ventilation." In correspondence with MSHA Carbon County stated that the latter phrase referred
to the "installed capacity" of the auxiliary fans. MSHA would riot
approve an "installed capacity'' requirement and insisted that the
auxiliary fans be provided with a volume of air greater than their "free
discharge capacity." The previously approved ventilation plan dated
August 25, 1980, required that the volume of air made available to the
auxiliary fans exceed their "maximum rated capacity." There are indications in the record that MSHA officials may have believed that this
term was equivalent to "free discharge capacity," while Carbon County,
in its motion for summary decision, asserts that the term referred to
"installed capacity." 1/
The Carbon No. 1 Mine is located in MSHA Coal Mine Safety and
Health District 9, headquartered in Denver, Colorado. District 9 had
published "guidelines" regarding the contents of ventilation system and
methane and dust control plans. The District 9 guideline regarding the
amount of air to be made available to auxiliary exhaust fans stated:
"[T]he volume of intake air delivered to the fan prior to the fan being
started shall be greater than the free discharge capacity of the fan."
The Distr~ct 9 guideline essentially restated MSHA's national guideline
regarding the amount of air to be made available to exhaust fans. The
national guideline stated in part: "[T]he volume of positive intake air
current available ••• shall be greater than the free discharge capacity
of the fan." The legal effect of the District 9 guideline, and of
MSHA's possible reliance upon it during the plan review process, are at
issue in this case.
·By August 1981, negotiations over the free discharge capacity
requirement reached an impasse, and the parties were unable to agree on
a plan requirement governing the amount of air to be made avai.lable to
the auxiliary fans. In a letter dated August 21, 1981, MSHA revoked its
approval of Carbon County's plan dated August 25, 1980, and stated that
it would not approve Carbon County's plan unless the plan contained the
free discharge capacity provision. After MSHA's revocation of approval
of Carbon County's plan, Carbon County failed to submit a plan containing
the provision sought by MSHA and continued to operate the mine. As a
result, MSHA issued a citation and withdrawal order to Carbon County,.
under sections 104(a) and (b) of the Mine Act, respectively, for

!/

In essence, "installed capacity" refers to the ventilation capacity
of an auxiliary fan when the fan is operated with tubing attached to it.
"Free discharge capacity," on the other hand, refers to the ventilation
capacity of an auxiliary fan when the fan is operated without tubing
attached. The tubing extends from the fan to the face area. The fan
pulls the air at the face area through the tubing and exhausts the face
air into the return air. In this way dust generated by the mining
process and gases liberated in the face area are removed from the mining
section.

1124

operating without an approved ventilation plan. The violation was
abated when MSHA approved, and Carbon County adopted, a plan which
contained the free discharge capacity requirement. MSHA then sought a
civil penalty for the alleged violation.
Following MSHA's institution of the civil penalty proceeding,
Carbon County initiated pretrial discovery. At the close of discovery,
Carbon County advised the judge that it intended to move for sunimary
decision under Commission Procedural Rule 64. 2/ In its motion and
supporting brief Carbon County argued that MSHA had improperly required
it to adopt the disputed provision in violation of the legal principles
controlling the ventilation plan adoption and approval process enunciated
in Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976).
In Zeigler, which arose under the 1969 Coal Act, 30 u.s.c. § 801 et
seq. (1976)(amended 1977), the court construed section 303(0) of that
Act. This provision was retained without change as section 303(0) of
the ~977 Mine Act. The court held that provisions of a ventilation
system and methane and dust control plan, approved by the Department of
Interior's Mine Enforcement and Safety Administration ("MESA"), MSHA's
administrative predecessor, and adopted by the operator were enforceable
under the 1969 Coal Act as though they were mandatory standards. 536
F.2d at 402-09. As Carbon County noted, however, in discussing the
ventilation plan approval process the court drew a distinction between a
negotiated plan requirement "suitable to the conditions and the mining
system of the coal mine" and a provision of a general nature, not based
on the particular conditions at the mine, which the government sought to
impose in the plan but which "should more properly have been formulated
as a mandatory standard" in conformity with the rule making requirements
of section 101 of the 1969 Coal Act. 536 F.2d at 407.
Carbon County contended that MSHA had insisted on inclusion of the
general free discharge capacity guideline in its ventilation plan,
mechanically, without regard to the particular conditions at the Carbon
No. 1 Mine. Carbon County maintained that MSHA's free discharge capacity
guideline was a general provision applicable to all mines, and that
before MSHA could lawfully impose that requirement on an operator in the
plan approval process the provision should first have been promulgated
as a standard pursuant to the rule making requirements of section 101 of
the Mine Act. Carbon County also argued that, regardless of the applicability

±./

29 C.F.R. § 2700.64 states in part:
(a) Filing of motion for summary decision. At any time after
commencement of a proceeding and before the scheduling of a hearing
on the merits, a party to the proceeding may move the Judge to
render summary decision disposing of all or part of the proceeding.
(b) Grounds. A motion for summary decision shall be granted
only if the entire record, including the pleadings, depositions,
answers to interrogatories, admissions, and affidavits shows:
(1) That there is no genuine issue as to any material fact; and
(2) that the moving party is entitled to summary decision as a
matter of law.

1125-

of the principles enunciated in Zeigler, MSHA acted in violation of the
Mine Act and the Administrative Procedure Act, 5 u.s.c. § 551 et seq.
(1982)(the "APA"). Carbon County asserted that the free discharge
capacity requirement was a general legislative rule and that both the
Mine Act and the APA required that such a legislative rule be promulgated as a regulation before it could be imposed. Therefore, according
to Carbon County, MSHA invalidly insisted upon inclusion of the free
discharge capacity requirement in Carbon County's ventilation p~an.
In an unpublished order dated February 4, 1983, the Conunission's
administrative law judge denied Carbon County's motion for sununary
decision. The judge issued the order without providing the Secretary of
Labor adequate opportunity to respond to Carbon County's motion. ll
The judge did not address the issues raised by Carbon County. Rather,
he viewed the question before him as simply requiring a decision as to
which proposal for providing air to the auxiliary fans was safer. The
judge stated:
I have no doubt that MSHA can properly approve a
ventilation plan and then at a later date, and
for good reason withdraw that approval. The procedures for withdrawing that approval and the
amount of time allowed in this case seem reasonable so the question is: was there a good reason
for MSHA to insist that the ventilation plan include a [free discharge capacity] provision.

*

*

*

I am not concerned with the guidelines or who
drafted them. I am concerned with what would
happen if a break in the tubing occurred at
various places where the available intake air
does not exceed the ••• free discharge capacity
of the auxiliary fan. Until the parties provide
me with that information, I will not be able
to decide whether MSHA's demands would create
a safer mine.
Ruling on Motion at 1-2.
We conclude that the judge's ruling was erroneous. Entry of
sununary decision is warranted when "the entire record •.• shows:
(1) that there is no issue as to any material fact; and (2) that the
moving party is entitled to sununary decision as a matter of law." 29
C.F.R. § 2700.64(b). Carbon County presented to the judge those facts,
3/
The judge ruled before the 15 days permitted under our procedural rules for response to a motion served by mail had elapsed, and
despite the fact that the Secretary had requested, and the company not
objected to, additional time within which to respond. See 29 C.F.R. §§
2700.B(b), .9, & .lO(b).

1126

obtained through the discovery process, which it believed to be undisputed and material. Carbon County also presented legal theories as
to why, given those facts, it was entitled to a decision as a matter of
law. The judge did not rule on Carbon County's legal challenges to the
plan approval procedure nor did he determine whether, in light of these
arguments, there were undisputed material facts in the record which
entitled Carbon County to a decision in its favor. The judge's bare
statement that, "I am not concerned with the guidelines or who drafted
them," is, to say the least, ambiguous. Because the judge provided no
explanation ot this statement, we cannot regard it as a persuasive
indication that he did consider, or rule on, the operator's legal
challenges.
The court's exposition in Zeigler of the general legal principles
controlling the ventilation plan approval and adoption process was
premised on the same statutory standard presently applicable under the
Mine Act. 30 U.S.C. § 863(0). We find the court's discussion persuasive
and compelling, and hold that the general principles enunciated in
Zeigler apply to the ventilation plan approval and adoption process
under the Mine Act. See Zeigler, 536 F.2d at 407. Therefore, if MSHA's
insistence in this case upon inclusion of the free discharge capacity
provision in Carbon County's plan contravened the principles of Zeigler,
the citation and withdrawal order issued to Carbon County cannot stand.
As noted above, however, the judge did not rule on this question. We
conclude that, in the interests of proper judicial administration, it is
incumbent on the judge, as the trier of fact, to first consider and rule
on Carbon County's arguments in its summary decision motion concerning
the application of Zeigler to the facts at hand. Furthermore, before
making his ruling, the judge shall afford the Secretary of Labor the
opportunity to respond fully to Carbon County's motion. ii

4/
We note that counsel for the Secretary of Labor has argued on
interlocutory review that the free discharge capacity provision is
•
merely an MSHA It policy
statement II or II•interpreta t"ionti o fth e mandt
a ory
standard prohibiting recirculation of air, 30 C.F.R. § 75.302-4(a), and
that as such it does not run afoul of Zeigler, the Mine Act, or the APA.
Counsel for the Secretary also has argued that the ventilation system
proposed by Carbon County was rejected not because of MSHA's inflexible
insistence upon the guideline but because MSHA's District Manager did
not believe Carbon County's proposal was safe.

1127

Accordingly, we vacate the judge's denial of Carbon County:_s motion
for summary decision and remand the matter for further proceedings
consistent with this decision.

1128

Commissioner Lawson concurring in part:
The majority has correctly concluded that the judge erred by failing
to address the legal argument presented by Carbon County's motion for summary
judgment and in ruling without permitting response by the Secretary. Accordingly, I concur in remanding this case to the judge for reconsideration of
the summary judgment motion or the taking of additional evidence as may be
appropriate.
The legal issue presented by Carbon County is one of first impression
before the Commission. It is improper at this stage of the proceedings
for this Commission to determine in the abstract, without the benefit of
a complete record, ·whether the general principles discussed in Zeigler,
supra, unnecessary to that holding and therefore dicta, should be adopted
by this Commission. Furthermore, I note that this case appears to raise
issues that the Zeigler court specifically declined to discuss, 536 F.2d
at 410 n. 57, as well as factual and legal matters which distinguish it
from the general principles there discussed. ]j Under these circumstances,
the majority's holding in this Order may be dicta as well.
Accordingly, I concur in the remand but intimate no view at this time
as to whether Zeig·ler is "persuasive and compelling" (slip op. at 5) or
even apposite to this case.

A. w!. Lawson, Commissioner

J/

The Secretary has maintained on interlocutory review that the guideline
is no more than a general statement of MSHA policy on approval of ventilation plans, and is to be distinguished from a legislative rule. In his view,
the ventilation system proposed by Carbon County was rejected not because
of any guideline, but because the Secretary did not believe it provided a
safe ventilation system at the particular mine in question. The Secretary
further asserts, with reference to specific deposition testimony, that the
guideline does not bind the district manager, who is responsible for the
approval or rejection of plans, and that the district manager's insistence
upon "free discharge capacity" ventilation was required Q.y conditions at this
particular mine: the size and length of the tubing, the capacities of the
main and auxiliary fans at the mine, previous history of air recirculation
problems at this mine, and/or the previous history of violations resulting
from a failure to maintain the ventilation system. In short, the Secretary
is of the view that MSHA did not approve Carbon County's revised plan because
MSHA's district manager had reasonable grounds to believe that Carbon County's
proposed plan language would not meet the requirements of section 303(0) of
the Act and the validly promulgated mandatory standards contained in Subpart D
of 30 C.F.R. Part 75, and that an evidentiary hearing is required to resolve
this disagreement. See §§ 303(a) & (c)(l) of the Act, 30 U.S.C. §§ 863(a) &
(c)(l); 30 C.F.R. §§ 75.300, 75.302(a), 75.302-4(a), 75.302-4(g).

1129

Distribution
Robert E. Vagley, Esq.
Preston, Thorgrimson, Ellis and Holman
Suite 500
1735 New York Ave., N.W.
Washington, D.C. 20006
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Henry Chajet, Esq.
Michael Duffy, Esq.
Ame.rican Mining Congress
Suite 300
1920. N Street, N.W.
Washington, D.C. 20036
Administrative Law Judge Charles C. Moore
Federal Mine Safety & Health. Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1130

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

May.23, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. KENT 83-181-R
KENT 83-182-R
KENT 83-183-R
KENT 83-184-R
KENT 83-256
KENT 83-262

v.
PONTIKI COAL CORPORATION
ORDER

The administrative law judge's motion for leave to intervene and his
motion for a remand are denied as unauthorized. Canterbury Coal Co.,
1 FMSHRC 335 (1979); Cf. Peabody Coal Co., 2 FMSHRC 1035 (1980); Penn
Allegh Coal Co., Docket No. PITT 79-97-P (Order, January 3, 1979).
Accordingly, the following documents are struck from the record in this
proceeding: (1) the judge's motion to intervene and the accompanying
oppos.itioti to tbe Secretary's petition for discretionary review; (2) the
Secretary's opposition to motion for leave to intervene; (3) the judge's
response to the Secretary's opposition; (4) the judge's motion to remand;
(5) the Secretary's opposition to motion to remand; and (6) the judge's
response to the Secretary's opposition.
·
Also, the affidavit and memorandum attached to the Secretary's petition
for discretionary review are struck as not being part of the record before
the judge. 30 u.s.c. § 823(d){2)(C).
In view of the serious allegations contained in the judge's submissions,
the Commission has, by letter dated May 18, 1984, brought the information
contained in the documents struck from this record to the attention of the
Attorney General of the United States or such action as is appropriate.

1131'

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

May 30, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 82-174

MID-CONTINENT RESOURCES, INC.
DECISlON
The issue presented in this civil penalty case is whether substantial
evidence supports the conclusion of the Commission's administrative law
judge that Mid-Continent Resources, Inc., violated 30 C.F.R. § 75.511,
a mandatory safety standard requiring that certain electrical work be
performed by qualified persons. For the reasons that follow, we conclude
that substantial evidence supports the judge's decision and we affirm.
The case arose following a methane and coal dust explosion at the
Dutch Creek No. 1 Mine on April 15, 1981. The mine is owned and operated
by Mid-Continent and is located in Pitkin County, Colorado. Fifteen
miners were killed in the accident and three received non-fatal injuries.
The Department of Labor's Mine Safety and Health Administration
("MSHA") investigated the explosion. In its accident investigation report
(Pet. Exh. 1), MSHA concluded that the methane was ignited by an electric
arc originating inside an electrical switch box on a continuous mining
machine. The machine was fitted with two lighting systems: one provided
by the manufacturer and an additional system installed by the company,
known as "add-on lights.n When the mining machine was examined after the
accident, it was discovered that the switch box for the add-on lights
had an opening between the box and the box cover (the switch box "cover
plate") which exceeded permissible limits. (The opening was in excess
of .015 inch. The maximum clearance permitted under the applicable
mandatory standard is .004 inch.) The oversized opening was the result
of an insulated wire having been wedged in the flange· joint between the
switch box and the cover plate.
MSHA concluded that prior to the explosion there had been a sudden
release of methane. MSHA determined that following this release, mining
was discontinued on the section and the section crew began making ventilation changes in the face area to dilute and carry away the methane.
When the concentration of methane in the atmosphere around the continuous
miner reached 2.0 volume per centum, power to the miner was automatically

1132

shut off, except to the add-on lights. 1/ As a result, these lights may
have "blinded" miners working in the face area so that someone then turned
the add-on light switch on the top of the cover plate to the "off" position.
(The light switch was found in the off position following the explosion.)
MSHA concluded that this caused the switch mechanism inside the box to arc
and that the arc ignited methane which had entered into the box. MSHA concluded that the flame then "escaped" the box through the non:..permiss:i.ble
opening and touched off the explosion.
Because MSHA believed that the non-permissible opening between the
switch box and the cover plate was part of the causative chain leading to
the explosion, MSHA attempted to determine who had installed the cover
plate. MSHA concluded that the cover plate was installed on April 6, 1981,
nine days before the explosion and that this work was not performed by a
qualified person or performed under the direction of such a person as
required by 30 C.F.R. § 75.511. MSHA therefore issued a citation to
Mid-Continent which alleged a violation of section 75.511. The pertinent
provision of this standard states:
No electrical work shall be performed on low-,
medium-, or high-voltage distribution circuits
or equipment, except by a qualified person or
by a person trained to perform electrical work
and to maintain electrical equipment under the
direct supervision of a qualified person.
A civil penalty proceeding ensued. Following an evidentiary hearing, the
judge entered a decision in which he affirmed the violation and assessed a
penalty of $10,000. 5 FMSHRC 261, 273-78 (February 1983)(ALJ). J:./
The judge found that the cover plate was installed by Marge Theil, a
miner who was not a qualified person within the meaning of section 75.511.
At the hearing, the Secretary of Labor introduced evidence showing that

1/
The continuous miner was equipped with a methane monitor. 30 C.F.R.
§ 75.313, a mandatory safety standard requires that the methane monitor
be set to deenergize the machine automatically when there is more than
2.0 volume per centum of methane in the mine atmosphere. However, in
this instance, the methane monitor was not wired into the primary circuit
of the continuous miner's lighting transformer. As a result, when the
sensor of the methane monitor detected concentrations of methane
exceeding 2.0 volume per centum it deenergized the continuous miner, but
not the add-on lights which remained lit. MSHA therefore cited
Mid-Continent for a violation of section 75.313, and the judge concluded
the company violated the section by failing to properly wire the methane
monitor. 5 FMSHRC at 269-71. Mid-Continent did not seek review of this
portion of the decision.
2/
In addition to asserting that the cover plate was not installed by
qualified person, the citation also alleged that the light switch was
not wired by a qualified person. Because MSHA offered no evidence to
prove that alleged violation, the judge vacated that portion of the citation.
5 FMSHRC at 277-78. Neither party challenges the judge's action in this
regard.

a

1133

the plate was installed on April 6, 1981, during the maintenance shift (the
"C", or third shift). 5 FMSHRC at 273. Cecil Lester, an MSHA inspector,
testified that John Cerise, who was the foreman of the maintenance shift both
prior to and after the explosion, told him that the cover plate "was probably
installed by Marge Theil who was not a qualified person." 3/ The judge found
this evidence to be uncontroverted. 5 FMSHRC at 277. The-judge also noted
that another MSHA inspector, Clarence Daniels, stated that Cerise had told him
he did not know who had done the work but he thought it was Marge Theil. 4/

3/ Cecil Lester is a coal mine inspector stationed at MSHA headquarters in
Arlington, Virginia. His specialty is the investigation of mine fires and
mine explosions which are suspected of having an electrical cause. The following exchange at the hearing took place between Lester and the Secretary's
counsel:
Q.

Mr. Lester, did you participate in determining whether a
qualified person had installed the light switch cover on
the auxiliary light control?

A.

Yes.

Q.

And what did you learn as a result of that investigation?

A.

Of course, no one was there that we knew of when the
light switch cover was installed, therefore, we had to
rely upon statements made by company officials. We
questioned each foreman, trying to find out who
installed it, and we determined by the process of elimination, and also by Mr. Meraz' statement that it was
installed on the third shift. [Meraz was the master
mechanic in charge of equipment maintenance at the
mine. All maintenance foremen reported to him.] We
talked to the maintenance foreman on the third shift,
Mr. John Cerise, and he told us that it probably was
installed by a Mrs. Marge Theil, who was not a qualified
person •••• We talked to Marge Theil and she stated that
she didn't remember whether she put the light switch
cover on or not.
Tr. 389-90.
4/
Clarence Daniels is also an MSHA coal mine inspector specializing in
electrical inspections. His task during MSHA's investigation of the
explosion at the Dutch Creek No. 1 Mine was to examine the entire
electrical system of the mine. He testified as follows:

Q.

What did these two gentlemen [Cerise and Meraz] tell you?

A.

They told me they thought this lid was put on this particular machine on April the 6th, 1981. John Cerise
stated that he examined this lid on April 6th and found
out if the light switch worked. He said he did not examine
the box as far as permissibility. When asked who put the
lid on, Mr. Cerise stated that he didn't know who put the
box on. That he thought Marge Theil on his shift had put
the light [sic] on. After interviewing Marge Theil, she
couldn't remember whether she had put the lid on or not.

Tr. 57-58.

1134

The judge characterized this statement by Cerise to Daniels as similar to
the one Cerise made to Lester, "but not quite as strong." 5 FMSHRC at 277.
Mid-Continent offered testimony by its personnel that it was the
custom and practice at the Dutch Creek No. 1 Mine always to have qualified
persons do those tasks requiring qualified persons. The judge agreed that
Mid-Continent's evidence supported a finding that there was an adequate
number of qualified persons at the mine and that it was the operator's
custom and practice to have only certified personnel perform thos~ tasks
which required special qualifications. However, in the judge's opinion,
this evidence did not overcome the admission of the foreman, Cerise, to
the inspectors concerning Marge Theil. The judge observed that neither
Cerise nor Theil said anything to the inspectors concerning this custom
and practice. 5 FMSHRC at 277. The judge noted that the only statement
attributed to Theil on the subject was that she "couldn't remember whether
she put the lid on or not." Id. 1/
The judge concluded that the evidence supported a finding that the
cover plate was not installed by a qualified person as required by the
cited standard, and found the operator to have violated 30 C.F.R. § 75.511.
We granted Mid-Continent's petition for discretionary review and subsequently
heard oral argument in the case.
The essence of Mid-Continent's challenge on review is that the judge's
finding of a violation is not supported by substantial evidence. Mid-Continent
argues that the judge, in relying upon Lester's and Daniels' recitations of
what they were told by Foreman Cerise, based his finding of a violation upon
uncorroborated hearsay speculations rather than upon statements of fact.
Mid-Continent also contends that even if the violation could be established
by the statements of Cerise, as recounted by the inspectors, it successfully
defended by establishing that the Secretary failed to prove that all the
qualified persons who could have installed the cover plate did not do so.
We begin by noting that the judge properly admitted and relied upon the
testimony of Inspectors Lester and Daniels concerning what they were told by
Foreman Cerise. Hearsay evidence is admissible in our proceedings so long as
it is material and relevant. Secretary of Labor v. Kenny Richardson, 3 FMSHRC
8, 12 n.7, aff'd, 689 F.2d 632 (6th Cir. 1982), cert. denied,
U.S.
,
77 L. Ed. 2d 299 (1983). In this instance, the hearing testimony was offered
to prove that the cover plate was not installed by a qualified person. Because
the installation was at issue in the case, the testimony was material. The
hearsay testimony was relevant also in that, if true, it tended to prove this
proposition.
Moreover, properly admitted hearsay testimony, and reasonable inferences
drawn from it, may constitute substantial evidence upholding a judge's decision
5/
Theil was not called as a witness by either party and did not appear at
the hearing. No attempt was made to subpoena her. During the course of
MSHA's investigation of the explosion she was interviewed over the telephone
by MSHA investigators. Statements attributed to Theil by the investigators
were made during this interview. When the hearing took place Theil was no
longer employed by Mid-Continent.
.

1135

if the hearsay testimony is surrounded by adequate indicia of probativeness
and trustworthiness. Richardson v. Perales, 402 U.S. 389, 407-408 (1971);
Johnson v. United States, 628 F.2d 187, 190-91 (D.c. Cir. 1980); U.S. v. FMC,
655 F.2d 247, 253-54 (D.C. Cir. 1980). 6/ Hearsay testimony "may~treated
as substantial evidence, even without corroboration, if, to a reasonable
mind, the circumstances are such as to lend it credence." Hayes v. Dept.
of the Navy, 727 F.2d 1535, 1538 (Fed. Cir. 1984)(footnote omitted). We
reject a per .!!!:. rule that evidence may not be considered to be substantial
for purposes of our review merely because it bears a hearsay label. Rather,
we look to its underlying probative value to determine if the evidence may
support a judge's finding of fact.
Although no single test can be established to evaluate the role of
hearsay in determining whether substantial evidence supports a judge's
finding, we measure the probative value of such evidence by weighing it
against various factors, which, when added together, may tip the scale
for or against a determination that substantial evidence is present.
For example, we look to whether the out-of-court declarant, whose statement
is reported at the hearing by another, had an interest in the outcome of
the case and thus a reason to dissemble. Richardson v. Perales, 402
U.S. at 402-03. We also examine whether the out-of-court statement
rests on personal knowledge gained from firsthand experience. 402 U.S.
at 403. If there is more than one reported statement, we inquire
whether the statements are consistent. 402 U.S. at 404. We also find
significant whether the party against whom the statement was used exercised
the right of subpoena so as to cross-examine the out-of-court declarant.

2._/

Counsel for the Secretary of Labor contends that Cerise's statements
are "admissions by a party opponent" under Rule 80l(d)(2) of the Federal
Rules of Evidence. As such, counsel asserts that the statements are
presumed to be reliable and trustworthy and are entitled to considerable
weight as statements which are not hearsay. This argument may possibly
confuse the presumed reliability of a party opponent's admissions with
the reliability of an unavailable declarant's statements against interest.
See Fed. R. Evid. 804(b)(3); 4 J. Weinstein & M. Berger, Weinstein's
Evidence 801-134 to -139 (1981). Even were we to regard Cerise's statements as "admissions by a party opponent" we still would be required to
examine their underlying probative value. However, we decline the opportunity to become enmeshed in the hearsay intricacies and terminology of
the Federal Rules of Evidence. While the Federal Rules of Evidence may
have value by analogy, they are not required to be applied to our hearings-either by their own terms, by the Mine Act, or by our procedural rules.
By contrast, the National Labor Relations Board is required under its
organic act, the National Labor Relations Act, 29 U.S.C. § 151 et~., to
conduct its administrative hearings "so far as practicable" in accordance
with the Federal Rules of Evidence. 29 u.s.c. § 160(b). See NLRB v.
Process and Pollution Control Co., 588 F.2d 786, 791 (10th Cir. 1978).
We believe it better to view hearsay statements as possibly relevant and
material evidence whose probative value must be evaluated on the basis
of each particular case. ~ generally 3 K. Davis, Administrative Law
Treatise ch. 16 (2d ed. 1980).

1136

402 U.S. at 404. We likewise determine whether the making of the statement
was denied or whether its contents were declared untrue. And we examine the
content of any contradictory or corroborating evidence. School Board of
Broward County, Florida v. H.E.W., 525 F.2d 900, 907 (5th Cir. 1976). Our
aim is to dete·rmine if, given all of these factors, there is "such relevant
evidence as a reasonable mind might accept as adeq~ate to support [the judge's]
conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Application of these criteria to the record in this case convinces us that
the judge's finding of a violation is supported by substantial evidence.
John Cerise was the out-of-court declarant whose statements were
testified to by the MSHA inspectors. Cerise, foreman of Theil's shift,
would have had good reason not to state that the electrical work was done
on his shift by an unqualified person. As the foreman of the maintenance
shift, it was his job to assign the maintenance tasks which needed to be
done, including the installation of the switch box cover plate. (Cerise
directed repair work on mining equipment. Tr. 276, 378). Also, as foreman,
he was responsible for assuring the work was done in compliance with
applicable safety standards. Cerise's statements would tend to indicate
that he may not have met his responsibilities in this regard. In addition,
Cerise's statements rested upon his personal knowledge and first-hand
experience. He was on the section on April 6, the day he stated that Theil
probably installed the plate. In addition, as noted above, installation of
the cover plate was the type of work which would be performed by his crew.
As the foreman, he may be presumed to know what his miners were doing.
We note also that the testimonial accounts of the two MSHA inspectors
concerning their conversation with Cerise refer to the same series of
events and are consistent.
Nor did Mid-Continent produce witnesses who testified that Cerise's
statements were not made or that the content of the statements was reported
inaccurately. Both inspectors agreed that Theil stated that she could not
remember whether or hot she installed the cover plate. Mid-Continent had
no records pertaining to the installation of the cover plate. Oral Arg.
Tr. 10. Mid-Continent's vice president stated that the company did not know
who installed the plate. Tr. 289. Further, Cerise, a salaried employee
of Mid-Continent, was not subpoenaed by the operator to rebut what he was
reported to have said to the inspectors. LI

LI

Our dissenting colleagues err in their assertion that Mid-Continent
was effectively denied by Commission Rule 59 the right to discover, prior
to hearing, the identity of declarants Cerise and Theil (Slip op. at 5).
The Secretary's MSHA accident investigation report (Exhibit 1) was referred
to by Mid-Continent in its answer to the citation issued herein. The record
notes that Cerise stated that the cover plate was installed on April 16,
1981, and this operator could certainly have interviewed Cerise and determined what he had told MSHA, including his identification of Theil as the
miner who installed the cover. Further, it is unclear what effect, if any,
Rule 59 would have had on Mid-Continent's ability to obtain the identity of
an informant whose identity had already been disclosed in the report. Although
Counsel for Mid-Continent stated at oral argument that he first learned at
the hearing that Cerise's statements were part of MSHA's case, he did not
attempt to call either Cerise or Theil and did not seek an adjournment.
Counsel for Mid-Continent explained at oral argument that during the two-day
hearing Cerise was employed on the night shift and was "in bed" while the
hearing was in session. Oral Arg. Tr. 20-21.

1137

Thus Mid-Continent did not defend against the Secretary's evidence
that an unqualified person installed the cover plate by showing that a
qualified person had installed it. Rather, Mid-Continent offered evidence
of a general character that there was no shortage of qualified personnel
and that it was the practice at the mine to use only those employees to
perform the tasks requiring qualified persons. The judge concluded, however, that because this practice was not mentioned by Cerise (or Theil),
Mid-Continent's evidence did not outweigh the testimony of Daniels and
Lester as to the specific statements of Cerise. We agree. General evidence
that a violation would not normally have occurred does not outweigh the
inference drawn from specific testimony that the violation did occur.
In evaluating the probative value of Cerise's statements to the inspectors, we recognize that his statements, to some degree, were expressed
in terms of probability rather than in terms of absolute certainty. However,
the record clearly supports a finding that the cover plate was installed on
Cerise's maintenance shift, the "C" shift, on April 6 by a member of
Cerise's crew. Inspectors Daniels and Lester stated that they were told so
by Cerise and by John Meraz, Mid-Continent's master mechanic whose job it
was to supervise the foremen. Tr. 57, 71, 378, 389, 403. 8/ Presumably,
therefore, Cerise knew whereof he spoke when he indicated his belief that
Theil had probably installed the cover plate. The judge inferred from this
testimony that it was more probable than not that Theil had, in fact, installed the plate. 9/ Such inferences are permissible provided they are
inherently reasonable and there is a logical and rational connection between
the evidentiary facts and the ultimate fact inferred. See, for example,
EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 194 (3rd Cir. 1980).
Moreover, as noted above, the substantial evidence standard may be met
by reasonable inferences drawn from indirect evidence. See, for example,
FMC v. Svenska America Linien, 390 U.S. 238, 248-49 (1968); U.S. v. FMC,
655 F.2d at 253-54. This is particularly true where, as here:-:ft is either
impossible or there is only a remote possibility of obtaining direct
evidence to establish a violation. We must be mindful of the fact that
the Secretary alleged a violation that was associated with a fatal
explosion. It is not surprising under the circumstances that no person
would admit installing the cover plate and that direct proof was lacking.
Given the difficulty of obtaining direct evidence as to who installed
the plate, we find the judge's inference that Theil installed it to be
reasonable, inherently probable and logically connected to the evidentiary
facts at hand. Moreover, as the Supreme Court has emphasized, "The
possibility of drawing either of the two inconsistent inferences from the
evidence [does] not prevent [an agency] from drawing one of them •••• "
NLRB v. Nevada Consolidated Copper Corp., 316 U.S. 105, 106 (1942).
~/

In addition, the "B" shift maintenance foreman informed inspector
Daniels that the lid was not installed on the "B" shift. Carl Heater, the
only qualified person on the "A" shift told the inspector he had no knowledge of i t being instlled during the "A" shift. We also note that at
oral argument Mid-Continent's counsel conceded that the cover plate was
installed on April 6. Tr. Arg. 10.
9/
Theil did not advise the MSHA investigators that she had never
installed cover plates, a more likely response if, indeed, she had never
performed this task.

1138

In view of the indicia of probity and believability which surround
Cerise's statements, the judge's conclusion that the cover plate was not
installed by a qualified person is based on adequate record support and
substantial evidence. It is, of course, the judge's duty to draw conclusions from the record and where, as here, that evidence is adequate
to support the conclusion it is our duty to affirm his decision. 10/
Accordingly,
affirmed.

• L wson, Commissioner

&~ lu_c_ol~-

10/ The Secretary argues to us, as he argued to the judge, that he deductively proved the violation by establishing that all qualified personnel who could have installed the cover plate denied that they had
done so. Mid-Continent disputes this claim. The judge did not rule on
the merits of this contention, and in view of our disposition of the
case we need not do so either. Nevertheless, we note in passing that
Mid-Continent's contention in this regard centers on two named individuals, John Ball and Bernie Fenton. Although the statement of qualified
electrician John Ball to the MSHA inspectors is to some degree un- ·
certain, its thrust is a denial that he installed the cover plate, just
as the thrust of Cerise's statement is an assertion that Theil had
installed it. Ball is quoted by the inspectors as saying that he could
not remember installing the cover plate, but that if he had installed it
he would have checked between the plate and the switch box for impermissible openings. Tr. 58, 389-90.
We also note that Mid-Continent asserts that Bernie Fenton, a
preventive maintenance engineer and a qualified person, was not interviewed by MSHA. Oral Arg. Tr. 13, 37. Without passing on the merits of
this argument, we note that although Fenton usually worked on the "C"
shift, it is not clear that his duties, unlike those of Cerise, would
have included installation of the cover plate. His job was variously
described as inspecting, oiling and greasing mine machinery and changing
worn-out machine parts. Tr. 276, 358.
The dissent notes, at n. 2, that neither Mr. Guthrie nor Mr. Clark
were interviewed. However, since both individuals were employed on the
"B" shift, and the evidence establishes the lid was installed on the "C"
shift, further exculpating evidence is unnecessary.

11.39

Collyer, Chairman and Backley, Commissioner dissenting:

This case was best sunnned up by the trial attorney for the Secretary of
Labor at the beginning of the hearing where he stated:
The person or identity of the person who installed the
light switch cover is not known, either by MSHA or MidContinent Resources. The light switch cover was most
likely installed by the maintenance shift, which would
be a third shift at this mine, but that fact has not
been ascertained as a certainty. (Tr. 6).
After careful analysis of the entire record we find no reason to dispute
the Secretary's counsel. Accordingly, we find that the Secretary failed to meet
his burden of proving that the subject violation occurred and we would reverse
the ALJ and vacate the subject citation.
We wish to stress at the outset that this case does not present the question
of whether the cover plate was impermissible but only the question of who installed
it.
The Secretary stated that he did not know who installed the subject cover
plate, but that through a deductive process he could prove that Marge Theil, an
unqualified miner, was the only miner who could have installed the cover plate.
His deduction, however, rests on uncorroborated hearsay testimony which, as
shown herein, is itself weak and inconclusive. In order to establish any valid
inference made through a deductive process, it is integral to that process that
no other choice or possibility reasonably exist. NLRB v. Melrose Processing Co.,
351 F.2d 693 (8th Cir. 1965). Indeed, even the Secretary appears to have appreciated
this point when he argued in opposition to Mid-Continent's motion to dismiss:
The testimony will show that in discussions with all the
qualified personnel at the mine who may have had the opportunity to install that light switch box, all indicated
they did not install it. Therefore, the only person who
could have installed it would have been someone who was
not qualified to install it. (rr. 8; emph. added).
If the Secretary had actually conducted his investigation as indicated
above, and if the Secretary had actually proved that all responses from all
qualified personnel indicated that they had not installed the cover plate, we
might have been persuaded to affirm the ALJ. However, the record evidence
clearly establishes that all qualified miners were not interviewed by MSHA, as
so claimed, and of those qualified miners interviewed, all did not clearly deny
involvement with the installation of the subject cover plate. Moreover, we find
the record evidence, upon which the majority relies, to be weak, equivocal, and
not substantial.

1140

Assuming arguendo that the Secretary's contention is correct and that the
installation of the cover plate occurred on April 6, 1981 ];_/, the record contains
no evidence of the identity of all Mid-Continent miners who were working on that
day and who were legally qualified to install the subject cover plate. Although
the record indicates that Mid-Continent's Master Mechanic Meraz and.Maintentance
For~men Heater, Cordoba and Cerise were interviewed, none of the maintenance
foremen was ever called to testify at hearing. Moreover, in closely scrutinizing
the testimony of Inspectors Daniels (Tr. 58-60) and Lester (Tr. 389), it is
apparent that they did not question all miners who were legally qualified to
install the subject cover plate, but rather relied upon the qualified representations made by the aforenamed miners.
The record also clearly establishes that the Secretary, in issuing the
subject citation and in prosecuting this matter, did not consider or interview
the qualified personnel working on the preventive maintenance crew which operated
on the "C" shift, the very shift during which the Secretary asserts the subject
cover plate was installed. (Tr. 170). This unbelievable omission was apparently
a continuing one because the Secretary professed ignorance of the existence of
the special maintenance crew at oral argument. (Oral argument Tr. 25). This
omission of evidence as to an entire crew significantly undermines the Secretary's
deductive process. Indeed, the respondent's evidence suggests that the job of
replacing the cover plate could have been routinely performed by the preventive
maintenance crew or by one of the production crews.
We also find it significant that the "B" shift had been idled for five days
preceding the April 15 explosion and that no coal production occurred during
that time. During such "down time" mechanical and/or electrical work is customarily performed on the equipment. Inspector Daniels admitted that he did not
know production had been suspended. (Tr. 76, 77).. Additionally, Master Mechanic
Meraz testified that a "foul up" involving qualifed miner Ball had made it
necessary for "B" shift mechanics Darrell Clark and Eugene Gutherie to perform
permissibility checks ordinarily performed on the "C" shift. This testimony
indicates that prior to the explosion, production shift personnel did perform
work ordinarily performed on the "C" shift. This fact is ignored by the majority
for the reason that it further removes support for their conclusion.
Clearly the line between production shift work assignments and maintenance
shift work assignments often became blurred and therefore it is unreliable and
unreasonable to hinge a conclusion of violation on a contrary presumption.
Consequently, because the Secretary has not identified all of the qualified
miners who were actually working on April 6, 1981, we can only wonder who else
was not interviewed!:./·
·

];./ Although not established by the Secretary, Mid-Continent appears to have
conceded this point. (Oral argument Tr. 10).
'!:_/ Obviously, it was not possible to interview deceased qualified miner Eugene
Gutherie. However the record contains no evidence to warrant a categorical
removal of Mr. Gutherie from the list of those who may have had involvement in
the installation of the subject cover plate. Arso, the record contains no
evidence inculpating or exculpating qualified miner Darrell Clark.

1141

MSHA did, however, interview qualified miner John Ball 1,/. His statement
is characterized through the hearsay testimony of Inspector Daniels and Lester
as follows: "John Ball, he stated he couldn't remember putting the lid on, but
if he had, he was sure that he would have checked for permissability" (Daniels,
Tr. 58); and "He stated that i f he had installed it, he would have ~hecked it
with a feeler gauge." (Lester, Tr. 390).
The majority noted the foregoing and concluded that the statement of Ba.11
was "uncertain" but "its thrust is a denial that he installed the cover plate."
Although we find the declarations attributed to John Ball to be weak, equivocal:
and insubstantial, not unlike the declarations attributed to John Cerise and
Marge Theil, it is of greater interest to note the sharp inconsistency with
which the majority evaluated the subject hearsay evidence. Inspector Daniels
also testified that Marge Theil said "she couldn't remember whether she put the
lid on or not." "Couldn't remember" results in the exculpation of John Ball,
but through unexplained logic, is used to incriminate Marge Theil!
Beyond the foregoing hearsay testimony characterizing Marge Theil's statement,
the Secretary's case rests upon the hearsay testimony of the two MSHA inspectors
purporting to relate the deciarations of John Cerise, Mid-Continent's maintenance
foreman of the "C" shift.
Initially it should be noted that. the record fails to clearly indicate the
manner in which MSHA Inspectors Daniels and Lester conducted their interview(s)
of declarants Cerise and Theil. Specifically, it is unclear whether the inspectors
conducted all interviews jointly or separately. This is not insignificant. The
number of times and circumstances under which witnesses are interviewed is
material in evaluating the reliability and trustworthiness of the declarations.
This factor is even more critical when the entire issue of liability may be
hinged upon such "evidence."
As noted in the majority decision, Inspector Daniels testified that John
Cerise said, "He didn't know who put the box on. That he thought Marge Theil on
his shift ·had put the light on." (Tr. 57). Inspector Lester testified, "He
told us that it probably was installed by a Mrs. Marge Theil." (Tr. 389).
If the foregoing testimony resulted from one interview then there is no
explanation why the stronger inference of "probability" should have been adopted
by the administrative law judge and the majority.
Beyond the fact that the attributed statement(s) itself is weak and inconclusive, more damaging is the fact that it stands alone without any corroboration.
Although the record contains MSHA reference to a "notetaker", no written corroboration is found in the record. Indeed, even the most rudimentary attempt to
corroborate the hearsay is not to be found in the record, i.e., there is no
evidence showing that Marge Theil actually worked on April 6, 1981.
Accordingly,

]_I The record is unclear as to whether Mr. Ball was interviewed by both MSHA
inspectors jointly or separately.

1142

the majority's reliance upon Secretary of Labor v. Ke.nny Richardson, 3 FMSHRC 8,
12 n.7, aff'd, 689 F.2d 632 (6th Cir. 1982), cert. denied,
U.S. , 77 L. Ed.
2d 299 (1983), is certainly in conflict with one of two express reasons stated
therein by the Ccmmission: "Virtually all of the hearsay was corroborated by
direct evidence."
The majority's reliance upon Hayes v. Department of the Navy, 727 F.2d 1535
(Fed. Cir. 1984), is similarly flawed. Hayes involved the hearsay use of agency
records in a hearing before the Merit Systems Protection Beard on an appeal of
Mr. Hayes' discharge~ The re~ord at issue detailed the circumstances of the
employee's conviction for assault and battery on a 10-year-old female child.
The record was developed by a Navy Captain, who had "prepared a memorandum for
the record which reflected in detail his. conversation with Mr. Hayes, his
attorney, and with the prosecuting attorney ••• " 727 F.2d at 1536. It is noteworthy that this record was a contemporaneous one, on an issue the employee did
not dispute. The employee had been advised, before the hearing, of his right to
see and copy any part of the record developed by the Navy and had not done so.
In accepting the hearsay, the court also relied on the fact that it was submitted
as required by properly promulgated regulations of the MSPB. 727 F.2d at 1538-39.
Surely the hearsay evidence at bar, i.e., the testimony of two MSHA inspectors
which completely lacks detail or any form of corroboration, is in no way analogous
to the Hayes memorandum detailing the circumstances of a criminal conviction,
which conviction was admitted by the employee.
Despite the inherent weakness of the Secretary's case, the majority has
concluded, relying upon Richardson v. Perales, 402 U.S. 389 (1971), that hearsay
evidence may constitute substantial evidence, and that in the instant case the
subject hearsay evidence is substantial evidence.
Although we do agr.eethat under certain circumstances hearsay evidence may
constitute substantial evidence, we find the majority's reliance upon Perales to
be erroneous. The quality, quantity and precision of the hearsay evidence
reviewed by the Court in Perales was far superior to the instant hearsay evidence.
In Perales, the Supreme Court held that written medical reports prepared by
licensed physicians who had independently examined a disability claimant could
be received as evidence despite their hearsay character and could constitute
substantial evidence supportive of a finding adverse to the claimant when the
claimant had not exercised his right to subpoena the reporting physicians and
thereby avail himself of the opportunity to .cross-examine them. In reaching its
decision, the Court carefully outlined several factors pertinent to the written
reports which the Court felt would "assure underlying reliability and probative
value." 402 U.S. at 402.
The Court noted that the social security administrative agency sponsoring
the hearsay evidence operated as an adjudicator and not as an advocate. Certainly
MSHA's posture as an enforcement agency in the instant case is not analogous.
The Court noted that the written medical reports were routine, standard and
unbiased, and prepared by licensed physicians who were specialists who had
personally examined the disability claimant. The Court further noted that the
range of examinations (five) was impressive and represented a "careful endeavor
by the state agency and the examiner to ascertain the truth." 402 U.S. at 404.

1143

In reaching its conclusion that hearsay evidence may constitute substantial
evidence, the Supreme Court placed considerable weight on the fact that "courts
have recognized reliability and probative worth of written medical reports even
in formal trials and while acknowledging their hearsay character have admitted
them as an exception to the hearsay rule." 402 U.S. at 407. The Court further
indicated that there exists a uniform court recognition of "reliability and
probative value" in written medical reports. 402 U.S. at 405.
Our review of the subject hearsay evidence discloses the existence of none
of the above-noted safeguards. MSHA's evidence is extremely narrow and inconclusive.
It consists totally of unclarified hearsay without any indications of the circumstances under which statements were obtained, without contemporaneous corroborating
notes, and without certainty within the declarations themselves. The haphazard
investigation which overlooked a number of qualified persons who might have
installed the cover plate was by no means a "careful endeavor." The Secretary's
failure to call Marge Theil and/or John Cerise is similarly lacking in care.
This house of cards is not by any measure "impressive."
The Court in Perales was also influenced by the fact that the claimant
failed to seek issuance of the subpoena for the presence of the reporting physicians
notwithstanding notification that the medical reports were on file and were
available for claimant inspection prior to hearing.
In the instant case Commission Procedural Rule 59, 29 ~FR Section 2700.59
effectively denied Mid-Continent the right to discover, prior to hearing, the
identity of declarants John Cerise and Marge Theil!:±../· Therefore Mid-Continent
cannot properly be faulted for failure to seek a subpoena prior to hearing. Nor
can this failure be utilized as it is by the majority, to give support to their
findings. Moreover, in view of the weak and insubstantial evidence introduced
by the Secretary, the party with the burden of proof, we have no difficulty in
understanding why Mid-Continent apparently decided not to seek the issuance of
subpoenas commanding the presence of declarants Cerise and Theil.
Lost in all the pirouetting is the basic proposition that the government
has the burden of proof. Accordingly, its failure to adequately explain why it
did not even attempt to subpoena the declarants who were apparently still living

!!_/ Although the name John Cerise, along with numerous other Mid-Continent
employees, appears in the MSHA investigative report, there was no prior indication
that Mr. Cerise knew, or disclosed to MSHA the name of Marge Theil, as the one
who "probably" installed the cover plate. Moreover, to recommend, as the majority
does, that Mid-Continent should have attempted to "determine what he (Cerise)
had told MSHA" (Slip op. at 6; emph. added) reflects a potentially serious
insensitivity to the parameters of the protections afforded miners under Section
105 (c), which prohibits interference with miners in the exercise of their
statutory rights. We have found no record indication supporting the contention
that Mid-Continent knew of John Cerise as the one who would have, or the one who did
state that Marge Theil "probably" installed the subject cover plate.

114.4

within a reasonable radius of the hearing site is suspect, at least. NLRB v.
Process and Pollution Control 588 F.2d 786 (10th Cir~ 1978). This failure to
call the very witnesses upon whom the government relied denied the administrative
law judge the opportunity to make a very necessary credibility' ruling which
would have been especially significant in the instant case.
It appears that the government was intentionally selective in its presentation
insofar as particular witnesses were concerned. At oral argument, Counsel for
MSHA admitted that Mrs. Theil was not called by MSHA because:
••• she would have been an extremely uncooperative witness.
At best she would not have recalled what happened. At worst
we may have ended up having to' ask the judge to declare her a
hostile witness. We had very little in the way of knowing
exactly what she would testify to. (Oral argument at 30, 31).
Therefore, the government spared the ALJ from the rigors of determining where
the truth may lie, and instead presented a neat, tidy statement purporting to be
Marge Theil's position on this crucial issue. Accordingly, the question arises
as to whether the judge was given the complete picture. Since he was not, his
credibility findings are suspect.
Finally, it should be noted that the Perales Court was in part motivated to
conclude that the written medical reports should be accepted as substantial
evidence because of the extremely large volume of disability claim hearings
conducted. The Court indicated that amount to be in excess of 20,000 cases per
year. Obviously, the administrative burden placed upon MSHA as well as this
Commission in no way approaches that volume.
We conclude that many of the well-reasoned factors relied upon by the
Perales Court to insure the "reliability and probative value" of the hearsay
evidence are not to be found in the hearsay evidence at bar. We find the hearsay
to be weak, equivocal, uncorroborated and therefore suspect. As such it is
"neither logical nor reasonable" to rely on such evidence as substantial evidence.
See Union Carbide v. NLRB 714 F.2d 657.
We are troubled by other serious lapses and contradictions in this proceeding.
The ALJ found that Mid-Continent had provided "extensive evidence" supporting
its defense that an adequate number of qualified maintenance personnel were
employed at the mine and that Mid-Continent's evidence did establish that the
custom and practice at the Dutch Creek No. 1 mine was to have "only certified
personnel perform occupational tasks which require special qualifications."
5 FMSHRC at 277. However, the ALJ rejected the defense of custom and practice.
In support of that rejection, the ALJ found that declarants Cerise and Theil
both failed to state to MSHA anything about custom and practice at the mine.
5 FMSHRC at 277.
We do not agree with the reasoning of the ALJ and the majority, and would
conclude and find that he erred. The proper occasion to draw an inference from
failure to state something occurs only under very narrow, limited circumstances.

1145

To draw negative conclusions from silence in the instant case represents a gross
misjudgment by the ALJ. Here we have been provided with no insight into the
manner of investigation, no indication of precisely what questions were asked,
and no indication of precisely what responses were provided. Here the enforcing
agency characterized prior statements without any indication of the breadth and
depth of the responses of either declarant. The record consists only of inconclusive
recollections of two MSHA inspectors who may have heard one declaration from
each of two Mid-Continent employees. The hearsay testimony is likely a selective
synopsis of one or mor:e interviews "seasoned" with the passage of time. Accordingly
we find that the ALJ erred in basing his rejection of the Mid-Continent custom~
and practice defense on the conclusion and finding that specific words were not
uttered by declarants Cerise and Theil 2./. Indeed the error is compounded in
view of the fact that the ALJ relied on identical evidence in ruling, on a
related citation, that Mid-Continent properly maintained its methane monitor
maintenance program EJ.
For the foregoing reasons we would reverse the ALJ and vacate the citation.

5/ It should also be stated that the ALJ and majority (see majority decision
f.n. 9) appear not to appreciate the fact that it would be legally permissible
for Marge Theil to have deviated from the Mid-Continent custom and practice as
long as she worked "under the direct supervision of a qualified person." See 30
CFR Section 75.511.

EJ This seems to be supported by the fact that on April 9 and 13, MSHA inspectors
issued no citation to Mid-Continent related to the methane monitor during the
course of their inspections.

1146

Distribution
Edward Mulhall, Jr., Esq.
Delaney & Balcomb, P.C.
P.O. Drawer 790
818 Colorado Avenue
Glenwood Springs, Colorado

81602

Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax Ave., Suite 400
Denver, Colorado 80204

1147

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

May 31, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
/ v.

Docket No. PENN 82-328

UNITED STATES STEEL MINING CO.,
INC.
DECISION
On April 19, and June 1, 1982, inspectors from the Department of
Labor's Mine Safety and Health Administration (MSHA) cited U.S. Steel
Mining Company, Inc. for violations of mandatory safety standards at
its Dilworth Mine. One citation alleged that U.S. Steel failed to
comply with its approved ventilation plan in violation of 30 C.F.R.
§ 75.316.
The other citation alleged that loose, dry coal and float
coal dust were permitted to accumulate under and around the tail piece
of the belt conveyor in violation of 30 C.F.R. § 75.400. On both
citation forms the inspectors marked a box to indicate their finding
that the alleged violations were of such nature as could significantly
and substantially contribute to the cause and effect of a mine safety
hazard. Both violations were abated within the time set by the
inspectors. Pursuant to the Secretary of Labor's penalty assessment
procedures set forth at 30 C.F.R. § 100.3, MSHA proposed .a. $225 penalty
for the violation of § 75.316 and a $112 penalty for the 1violation of
§ 75.400.
U.S. Steel declined to pay the proposed assessments and
exercised its statutory right to obtain a hearing before this independent Commission. Thereafter, the Secretary of Labor filed a petition
with the Commission seeking civil penalties for the alleged violations.
U.S. Steel's answer denied that the violations were properly classified
as "significant and substantial" and asserted that the penalties should
be reduced to $20 per violation "since none of the conditions cited had
a reasonable possibility of causing a significant injury."

I

Following U.S. Steel's answer, an administrative law judge of the
Commission ordered the parties to confer concerning possible settlement
and to stipulate as to any matters not in dispute. Subsequently, the
Secretary modified both citations to state that the violations were
"non-significant and substantial" and presented no likelihood of injury.
The parties then agreed to settle the matter, and the Secretary moved the
administrative law judge to approve the settlement. In his motion for

1148·

approval of settlement the Secretary stated that the significant and
substantial designations had been deleted, that the negligence of U.S.
Steel was "moderate", and the gravity of the violations was "null." The
Secretary further stated that "in accordance with 30 C.F.R. § 100.4 •••
a $20 civil penalty would be appropriate." 1/
The administrative law judge denied the motion for approval of
settlement and set the matter for hearing. The judge stated that he was
not bound by the Secretary's regulation at 30 C.F.R. § 100.4. At the
hearing before the judge the Secretary presented evidence regarding the
existence of the violations, their gravity, the operator's negligence,
the abatement of ~he cited conditions and the history of previous
violations at the mine. 2/ U.S. Steel did not deny that the alleged
conditions existed. Rather, it argued that the judge was bound by
30 C.F.R. § 100.4 and, consequently, that he was required to assess
$20 penalties for each violation.
In his decision the judge again rejected this argument and held
that he was required to make a de novo determination of the appropriate
penalty amounts. 5 FMSHRC 934,""'"936 (May 1983)(ALJ). Citing the
Commission's decision in Sellersburg Stone Company, 5 FMSHRC 287, 291
(March 1983), appeal docketed, No. 83-1630 (7th Cir. March 11, 1983), the
judge held that he was bound by section llO(i) of the Act rather than by
the Secretary's penalty assessment regulations and that he was required to
determine the amount of each penalty by applying the six penalty criteria
listed in section llO(i) in light of the evidence of record. The judge
then made findings with respect to the penalty criteria and assessed a
$75 penalty for each violation. 5 FMSHRC at 936-37.
On review U.S. Steel renews its argument that when·a violation meets
the criteria set forth in 30 C.F.R. § 100.4, the Secretary of Labor's
so-called "single penalty regulation", a Commission administrative law judge
must assess a $20 penalty. U.S. Steel's argument evidences a continued
misunderstanding of the civil penalty scheme of the Act and of the
discrete roles of the Department of Labor and this independent Commission
in effectuating that scheme. We previously have addressed this subject on

!/ 30 C.F.R. § 100.4, a regulation adopted by the Secretary, provides:
An assessment of $20 may be imposed as the civil penalty where
the violation is not reasonably likely to result in a reasonably serious injury or illness, and is abated within the time
set by the inspector. If the violation is not abated within
the time set by the inspector, the violation will be processed
through either the regular assessment provision (§ 100.3) or
special ass~ssment provision (§ 100.5).
'l:_/
The parties stipulated as to U.S. Steel's size and that the assessment of penalties would not affect its ability to continue in business.
See 30 U.S.C. § 820(i).

1149

numerous occasions. See !.:.£. , Secretary of Labor on behalf of Mil ton Bailey
v. Arkansas-Carbona Co. 5 FMSHRC 2042, 2044-46 (December 1983); Sellersburg
Stone Co., supra; Knox County Stone Co., Inc., 3 FMSHRC 2478, 2480-81
(November 1981); Tazco Inc., 3 FMSHRC 1895, 1896-98 (August 1981); Shamrock
Coal Co., 1 FMSHRC 469 (June 1979), aff'd 652 F.2d 59 (6th Cir. 1981). We
reiterate our previous holdings in an attempt to dispel any lingering misconceptions.
The Mine Act divides penalty assessment authority between the
of Labor and the Commission. The Secretary proposes penalties.
The Commission assesses penalties. The Secretary's penalty proposals ·
are made before hearing. In the event of a challenge to the Secretary's
proposal, the Commission affords the opportunity for a hearing. Thereafter,
the Commission assesses penalties based on record information developed
in the course of the adjudicative proceeding. Sellersburg, 5 FMSHRC at
290-91, Arkansas-Carbona, 5 FMSHRC at 2044-46. In assessing a penalty
/the Commission and its judges are required to consider the six statutory
V'penalty criteria set forth in section llO(i) of the Act (30 u.s.c. § 820(i)).
Thus, the Commission's penalty assessment is not based upon the penalty
proposal made by the Secretary, but rather on an independent consideration
of the six statutory penalty criteria and the evidence of record pertaining
to those criteria. Sellersburg, 5 FMSRHC at 291-92, Shamrock Coal, 1 FMSHRC
at 469. The Commission's independent penalty determination and assessment,
based upon the statutory criteria of section llO(i) of the Act, applies in
all cases contested b~fore the Commission.

~Secretary

The Act does not condition the penalty assessment· authority and duties
of the Commission upon the manner in which the Secretary of Labor has
chosen to implement his statutory responsibility for proposing penalties.
Therefore, it is irrelevant to the Commission for penalty assessment
purposes whether a penalty proposed by the Secretary in a particular
case was processed under § 100.3, § 100.4, or § 100.5 of the Secretary's
regulations. The distinctions that U.S. Steel attempts to draw in this
proceeding between a § 100.3 or § 100.4 penalty proposal by the Secretary
are without merit and are rejected.
U.S. Steel furth~r argues that even if the Act literally requires the
Commission and its judges to consider the six penalty criteria when assessing a civil penalty, we nevertheless should hold, as a matter of policy,
that when a violation poses little probable harm it will not be assessed
through consideration of all six statutory penalty criteria. U.S. Steel
adopts the Secretary's position, as published in the comments accompanying
the promulgation of the Secretary's Part 100 regul~tions, that "when the
gravity factor is low and good faith is established through abatement, •••
analysis of the negligence, size and history criteria is [not] appropriate
or necessary." 47 Fed. Reg. 22292 (May 1982). We decline to accept U.S.
Steel's suggestion. Such a policy would, in our opinion, unwisely restrict
the wide discretion the Act affords the Commission in assessing civil
penalties commensurate with the evidence of record. This discretion is
necessary if, as Congress intended, civil penalties assessed under the Act
are effectively to enc~urage operator compliance with the Act and its
standards and to protect the public interest. See Senate Subcommittee on
Labor, Committee on Human Resources, 95th Cong.~d Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977 at 629, 632-33.

1150

In this proceeding the Commission's administrative law judge considered, as.he was required to do, the six statutory penalty criteria set
forth in section llO(i). The findings he made with respect to each of
the criteria faithfully reflect the evidence and information before him.
The penalties he assessed are commensurate with the findings and consistent
with the statutory criteria.
Accordingly, the decision of the administrative law judge is
affirmed.

~·

Richard V. BaclJ:e);:commissne r

1151

Distribution
Louise Q. Symons, Esq.
U.S. Steel Mining Co., Inc.
600 Grant Street
Room 1580
Pittsburgh, PA 15230
Anna L. Wolgast, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Michael H. Holland, Esq.

UMWA
90015th St., N.W.
Washington, D.C. 20005
Administrative Law Judge James Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1152

ADMINISTRATIVE LAW JUDGE DECISIONS

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

U.S. STEEL MINING CO., INC.,
Contestant
v.

.

MAY 1 1984

CONTEST PROCEBD!NG
Docket No. WEVA 83-124-R
Citation No. 2001887; 3/4/83

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

Gary No. 50 Mine

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 83-219
A.C. No. 46-01816-03519

v.

U.S. STEEL MINING co.,.INC.,
Respondent

.

Gary No. 50 Mine

UNITED MINE WORKERS OF
AMERICA,
Intervenor
DECISION
Appearances:

Louise Q. Symons, Esq., U.S. Steel Mining Co.,
Inc., Pittsburgh, Pennsylvania for Contestant/
Respondent;
James B. Crawford, Esq., Office of the Solicitor
U.S. Department of Labor, Arlington, Virginia,
for Respondent/Petitioner;
Mary Lu Jordan, Esq., United Mine Workers of
America, for Intervenor·.

Before:

Judge Kennedy

The captioned review-penalty proceedings came on for an
evidentiary hearing in Pittsburgh, Pennsylvania on March 15,
t984. The gravamen of the charge was the operator's refusal
to pay a union walkaround for time spent participating in a
"Ventilation Technical Inspection" in violation of section
103(f) of the Mine Safety Law. The operator challenged· the
validity of the citation and the penalty assessed on the
ground the activity was not an "enforcement inspection"
within the meaning of section 103(a).

1153

During the course of his opening statement, the solicitor
admitted MSHA gave advance notice of the "inspection" whereupon
the operator moved to vacate and dismiss.
In sqpport of her
argument counsel for the operator pointed out that section
103(a) prohibits advance notice of any enforcement inspection
and section llO(e) makes it a misdemeanor punishable by a
fine of up to $1,000 and imprisonment for up to six months
for any person -to give advance notice of such an inspection.
The solicitor opposed the motion stating "there is
advance notice of all inspections" and more particularly of
the four quarterly inspections mandated by section 103(a) of
the Act.
The solicitor declared there has never been a
prosecution for violating the advance notice prohibition and
expressed confidence that the department would take no adverse
action against an inspector for doing so. 1/
Despite the solicitor's zeal to compel testimony that
might violate the inspector's Fifth Amendment rights, the
trial judge refused to allow the inspector to testify unless
given appropriate use immunity. 2/ 18 u.s.c. § 6002. Under
the Omnibus Federal Immunity Statute, only the Attorney
General or his duly authorized representative may approve
issuance of an immunity order by administrative agencies of
the United States. 18 u.s.c. § 6001, 6002, 6004. Unfortuaately, the Federal Mine Safety and Health Review Commission
is not an agency authorized to issue an immunity order.
1/ If the solicitor's statements accurately reflect MSHA policy,
they would seem to confirm the widespread impression that
MSHA is openly flouting the prohibition against giving
advance notice of enforcement inspections.
In my recent
decision in Pontiki Coal Corporation, 6 FMSHRC
,
March 30, 1984, I called for an inspector general's investigation of what appeared to be a flagrant violation of the
advance notice prohibition.
I am advised that a "file" was
opened but that no field investigation commenced because the
investigator assigned to the matter went on "vacation".
The matter seems to have been prejudged by the Assistant
Secretary for Mine Health and Safety, Mr. Zegeer. On April 14,
1984, the press quoted him as saying "everything was done by
the book" and that his investigation showed "the inspectors
did everything exactly the way they were supposed to do it."
If what the solicitor said is correct, "doing it by the
book" may well be part of the problem.
2/ While the Labor Department may feel the advance notice
prohibition conflicts with its policy of "cooperative enforcement," I believe the department's policy conflicts with my
sworn duty to uphold the law. I declined therefore the
suggestion to Join in what appears to be a concerted action
to thwart the law.

1154

When it became apparent that neither the solicitor, the
Secretary, nor anyone else in the Department of Labor or the
Commission could grant the witness immunity and the trial
judge refused to allow the solicitor to put the witness in
jeopardy, the solicitor, after consultation with his superiors,
moved to vacate the citation and dismiss the proposal for
penalty. The operator having no objection, the trial judge
entered an order from the bench granting the motion to
vacate the citation and dismissing the proposal for penalty.
The premises considered, it is ORDERED that the bench
decision of March 15, 1984, be and ereby is, AFFIRMED and
the captioned matters DISMISSED.

Joseph B. Kennedy
Administrative Law
Distribution:
Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 Grant
St., Rm. 1580, Pittsburgh, PA 15230
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
Street, NW, Washington, DC 20005
(Certified Mail)

/ejp

1155

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

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 81-271-M
A.C. No. 29-01375-05008F

v.

Mt. Taylor Project Mine
GULF MINERAL RESOURCES
COMPANY,
Respondent
DECISION
Appearances:

Eloise V. Vellucci·, Esq., Office of the Solicitor,
u. S. Department of Labor, Dallas, Texas,
for Petitioner;
John A. Bachmann, Esq., Gulf Mineral Resources
Company, Denver, Colorado,
for Respondent.

Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801, et seq., (the
"Act"), arose from a March 2, 1981 inspection ofrespondent's
Mt. Taylor Project Mine. The Secretary of Labor seeks to impose
two civil penalties because respondent allegedly violated the
Act and a regulation promulgated under the Act.
Respondent denies that any violations occurred.
After notice to the parties, a hearing on the merits was
held in Albuquerque, New Mexico on June 1, 1983.
Respondent filed a post trial brief.
Issues
The issues are whether respondent violated the Act and the
regulation.
Stipulation
The parties agreed that at the time of the inspection the
size of the company was 1,120,484 production pounds per year.
The size of its Mt. Taylor Project uranium mine was 872,540 production pounds per year. The parties further stipulated that the
mine was no.longer in production (Tr. 5).

1156

Citation 152663
This citation alleges respondent violated Section 108(b) of
the Act in that the operator delayed three MSHA inspectors in their
investigation of a fatal accident at the mine.
Section 108(a} (1) provides, in part, as follows:
The Secretary may institute a civil action
for relief, including a permanent or temporary
injunction, restraining order, or any other
appropriate order in the district court of
the United States for the district in which
a coal or other mine is located or in which
the operator·of such mine has his principal
office, whenever such operator or his agent
(B} interferes with,· hinders, or delays the
Secretary or his authorized representative, ••• in carrying out the provisions
of this Act ••••
Prior to the hearing the judge advised the parties that the
pertinent provision of the Act was Section 103(a} and not the
cited section.
[Order, February 28, 1983; Waukesha Lime and Stone
Company, Inc., 3 FMSHRC 1702 (1981)].
Pursuant to the Federal Rules of Civil Procedure the complaint
is amended to allege a violation of Section 103(a} of the Act.
Rule lS(b}, F.R.C.P.
The pertinent part of Section 103(a) provides as follows:
••. For the purpose of making any inspection or
investigation under this Act, the Secretary
with respect to fulfilling his responsibilities
under this Act, or any authorized representative
of the Secretary •.• have a right of entry to,
upon, or through any coal or other mine.
Summary of the Evidence
MSHA's evidence indicates that at approximately 11:40 a.m. on
March 2, 1981, Thomas Castor, the supervisory mining inspector at the
MSHA Albuquerque office was advised of a fatality at respondent's
mine. The supervisor dispatched a special investigator and two
inspectors to the mine (Tr. 7-9, 13). The three men travelled to
the mine in two vehicles. Since the mine was approximately 100
miles from Albuquerque, they had to pick up clothing at their homes
in anticipation of an overnight stay (Tr. 9).
The purpose of an MSHA investigation is to determine the
cause of an accident and to recommend methods of preventing
similar accidents. MSHA goes to the scene of a fatality as soon
as possible. MSHA investigators prefer to interview witnesses

1157

and then take them to the scene for a detailed analysis and reconstruction of the occurrence (Tr. 9, 10, 26, 40). By law, an operator
is also required to make a complete detailed accident report. But
the operator does not have to give its report to MSHA unless it is
requested.
(Tr. 31, 32). MSHA accepts an accident report from
operators on Form No. 7000-1 even though there are more than 20
miners at the reporting mine (Tr. 30, 33).
The accident at this mine occurred at 9:45 a.m. Since MSHA
was not advised until 11:40 a.m., respondent was cited for a violation
of 30 C.F.R. § 50.10. 1/ That citation is now a final order of the
Commission (Tr. 10, 11).
Inspector Omer Sauvageau reached the mine at 3:30 p.m. He
waited at the mine office for Inspectors Tanner and Sisk who arrived
at 3:45 p.m. to 3:50 p.m. (Tr. 95, 96).
Inspector William Tanner, Jr. estimates that he arrived at the
mine between 3:00 and 3:30 p.m. In the meeting room they introduced
themselves to respondent's representatives John Thompson and David
Wolfe.
Tanner asked if they could interview the two eyewitnesses
and the two location witnesses so they could continue their investigation. Company representative Dershimer said the witnesses
were not available because they were being interviewed by the company
attorney (Tr. 37, 38, 40, 60, 95, 96). At that point L. E. Lewis
went to check. Upon returning, Lewis said it would be another
30 minutes before the MSHA inspectors could interview the witnesses.
Lewis suggested the inspectors go underground to visit the scene.
They did (Tr. 38, 39). The only comment, which was repeated to the
inspectors, was that it was Gulf's policy for their attorneys to
confer with its witnesses before MSHA inspectors could talk to them.
The company did not state to the inspectors that they were conducting their own investigation (Tr. 39, 63). For their part, the
inspector did not suggest they should join the company attorney
(Tr. 61, 62).
Inspector Tanner told Wolfe the company would be cited and he
issued Citation 152663 for a violation of Section 108(b) of the
Act. The citation was given to the company three days later. It
was issued because the witnesses were not available. The MSHA
investigation was delayed and hindered at the scene because the
inspectors could not get the comments of the witnesses firsthand
(Tr. 41-43, 71, 72). The witnesses were interviewed at 6:00 p.m.
that day (Tr. 43).

1/

30 C.F.R. § 50.10

Immediate Notification.

If an accident occurs, an operator shall immediately contact
the MSHA District or Subdistrict Office having jurisdiction
over its mine.
If an operator cannot contact the appropriate
MSHA District or Subdistrict Office it shall immediately contact the MSHA Headquarters Office in·Washington, D.C. by
telephone, toll free at (202) 783-5582.

1158

Respondent's evidence indicates the company called MSHA and
the state inspectors at approximately 11:20 a.m. on the day of
the accident. The state inspectors, enroute on another matter,
arrived ten minutes after being called. They went underground to
investigate and they also interviewed three.or four witnesses
(Tr. 101, 102).
Company representatives Jerry Omer (safety) and Terry Cullen
(attorney) arrived from Denver the same day at approximately
3:30 p.m. They began interviewing the witnesses 15 to 30 minutes
before the MSHA inspectors arrived (Tr. 102, 103, 113, 114).
After the MSHA inspectors arrived, Cullen requested an
additional 20 to 30 minutes to complete his interviews. 2/
Respondent's manager F. K. Dershimer requested that the inspectors make the trip underground while Cullen continued his
interviews. The inspectors voiced no objection, nor did they give
an indication that they felt they were being delayed, hindered
or inconvenienced (Tr. 104-106, 114, 115). The MSHA inspectors,
as suggested, went underground (Tr. 106). The first notice of any
dissatisfaction with this arrangement was when Dershimer received
the citation (Tr. 107, 116, 117).
If the inspectors had requested a joint interview of the
witnesses Dershimer would have checked with Cullen to see if it
was "okey" (Tr. 115, 116). Respondent has never prohibited inspectors from talking to company witnesses. Further, there is
no such company policy (Tr. 105, 115, 116).

2/ The record does not reflect the purpose of these interviews.
But in view of the fact that the safety officer and company attorney
were present on the day of the accident, I infer the operator was
conducting its investigation pursuant to 30 C.F.R. § 50.~ll.(b). The
cited regulation provides, in part,:
(b)

Each operator of a mine shall investigate
each accident and each occupational injury
at the mine. Each operator of a mine shall
develop a report of each investigation.
No operator may use Form 7000-1 as a report, except that an operator of a mine
at which fewer than twenty miners are
employed may, with respect to that mine,
use Form 7000-1 as an investigation report
respecting an occupational injury not
not related to an accident. No operator
may use an investigation or an investigation report conducted or prepared by MSHA
to comply with this paragraph. An operator
shall submit a copy of any investigation
report to MSHA at its request.

1159

Discussion
Section l03(a) of the Act authorizes the Secretary to enter
any mine. On the essentially uncontroverted facts in this case
there was no refusal or delay of the Secretary's right of entry.
On the contrary, respondent facilitated the entry of the inspectors
to the site. The only delay, if there was one, occurred when the
company attorney requested additional time to interview the witnesses. This scenario, at best, establishes that respondent
minimally interfered with the sequence in which MSHA prefers to
conduct its investigation. But, construed in a light most favorable to MSHA, these facts would not constitute a denial of the
Secretary's right to enter the mine.
Section 50.ll(a) of Title 30 of the Code of Federal Regulations
provides for accident investigations to be performed at the discretion of MSHA district or subdistrict managers. Once the decision
to conduct an investigation has been made, Section 103(a) of the
Act provides MSHA inspectors with broad powers in the exercise of
such an investigation. An inspector has the right of entry into any
mine. While 30 C.F.R. § 50.ll(a) requires that notice be given
prior to the investigation of accidents, the Supreme Court has
held that no warrant is required to conduct such an inspection.
Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534 (1981). However,
neither the Act nor any implementing regulations mandate the interviewing of witnesses as the initial step in an investigation.
Accordingly, on the facts I conclude that no violation of
Section 103(a) occurred .. Citation 152663 and all penalties
should be vacated.
Citation 152667
This citation charges respondent with violating Title 30,
Code of Federal Regulations, Section 57.8-2, which provides:
Mandatory.
(a) A competent person
designated by the operator shall
examine each working place at least
once each shift for conditions which
may adversely affect safety or
health. The operator shall promptly
initiate appropriate action to
correct such conditions.
Summary of the Evidence
MSHA Inspector William Tanner, Jr. issued Citation 152667
because two men with authority at this particular work place
failed to insist on the crew following the proper procedure for
replacing the post (Tr. 44, 45).

1160

Superintendent Sullivan had been present a few minutes before
miner Maldonado was killed.
In addition, leadman Baca was present
and on one occasion the victim himself was considered to be a
"competent person" within the terms of the MSHA regulation (Tr. 46,
4 7) •

MSHA construes a "competent person" in Section 57.8-2 to be
one qualified by ability and experience, who makes safety checks,
prevents unsafe acts, and who works in this particular area of the
mine (Tr. 45, 53, 88). There was nothing to indicate to the inspector
that a safety check had been made or that a competent person had
looked over the area before everyone "got into place" (Tr. 46, 53).
Sullivan, the lev~l superintendent, came in about 9:30 a.m.
and talked to leadman Baca about changing out the steel posts
(Tr. 4 7) •
At the intersection of 3N and 3E, the place of the accident, a
cap goes directly across the back.
It is supported by two posts.
These posts are steel I-beams 8 inches by 8 inches and 10 feet long
(Tr. 47).
The cap is bolted by four bolts on each end (Tr. 47).
A collar brace, a knee brace, and a toe brace tie all of this steel
together to keep it from falling (Tr. 47).
According to the miners, on this particular day they cut
all the collar braces off one side with a torch. The other side
had only one collar brace. The inspector did not:know why it
was not supported (Tr. 48). At approximately 9:30 a.m., Sullivan
and Baca discussed changing the post. Sullivan left without
looking to see if the area was safe. At that time victim Maldonado
was driving up with the replacement, a slightly larger post (Tr. 48).
When Sullivan was at the intersection there was one collar
brace on one side and none on the other (Tr. 49). Normal procedure
to remove and replace a post is to stick a direction boom under the
cap and hold it up while a worker removes the bolts. After the
bolts are removed the post is withdrawn and replaced with the new
post while the boom holds up the 2,000 pound cap. The cap itself
measures 21 feet by 21~1/2 feet (Tr. 49, SO).
The normal way to unscrew the bolts would be to climb up a
ladder and remove them after the cap has been secured. On this
particular day Maldonado climbed on top of the ·erection boom and
was jockeyed into position. Barela handed him a one-inch impact
wrench and Maldonado spun off the bolts without making sure the
area was secured in any way.
After the bdlts were spun off the cap leaned over. As it
did, Maldonado climbed off of the erection boom pedestal (which
was to be used only for lifting the cap). He then crawled down
the boom into the bucket (Tr. 51-52). That's when the cap came
down striking him in the back and killing him (Tr. 51, 52).

1161

Baca, the lead miner, had not attempted to stop Maldonado.
In addition, he did not see that the cap and post were secure
{Tr. 51). Elliott, a co-worker, had to go after a ladder. He
could have held the post to keep it from falling over. The cause
of the accident was that nothing was secure {Tr. 51Y. This
accident would not have happened had the cap been secured, pinned,
or supported by the pedestal {Tr. 52).
The company said Baca and Sullivan were designated "competent
persons." Sullivan told the inspector he did not investigate but
he instructed the leadman in his duties {Tr. 53, 81-82). John
Thompson and David Wolfe told the inspector they were "competent
persons" and so designated by the company {Tr. 80-81).
The inspector did not check the log books from previous
shifts to see who had signed the logs as the designated person
{Tr. 82, 83).
This crew had changed out the post on the opposite side of
the drift the previous day {Tr. 88). On that occasion, Maldonado,
who was then the leadman, performed the same task {Tr. 91-92).
Respondent's evidence: F. K. Dershimer, the acting general
manager, testified that the mine captain designates the level
supervisor as the "competent person," for the purpose of the
regulation.
If the level supervisor is not present, then the
mine captain does the walk-through for safety checks or he designates another person. Compliance with the walk-through is recorded
on the shift report under the portion marked as "Supervisor".
The time of the safety check, followed by the supervisor's initials,
are also entered on the shift report {Tr. 118, 119, Exhibit R 1).
If the supervisor saw something that needed to be fixed he would
so direct {Tr. 123).
James Sullivan was in the employ of respondent between
January 30, 1978 to May 14, 1982. He has 12 years of mining experience. He was hired as a long-hole driller and later was
promoted to level supervisor, then to level foreman {Tr. 129-131,
152). Sullivan's experience in replacing posts has come about by
watching Harrison & Western crews, in inspecting, and as a helper
in installing steel {Tr. 162). Sullivan considered himself competent
because he has used good judgment in putting up steel {Tr. 162).
Lead miner Baca had the responsibility for watching this crew
and seeing they work safely {Tr. 158, 159). But only Sullivan, and
not Baca, had the responsibility to check the entire level {Tr. 159).
On the day before this accident the same crew had changed out
the post on the opposite side of the drift. Maldonado described the
correct procedure to Sullivan. When he was on the scene, Sullivan
discussed the situation with Cruz and Francisco. He told them to
follow the same directions as before. On the day he was killed,
Maldonado was doing the work improperly and he was not following
his stated procedure {Tr. 165-168).

1162

According to Sullivan, the post to be changed out was not
collar braced when he passed through the area. He didn't recall
if it was pinned at the bottom.
In addition, he didn't know how
the post holding the I-beam was braced (Tr. 164).
Changing posts is not hazardous. The proper way is to position
the boom under the cap to hold it fast.
Two workers then put a
ladder at the post being changed. One worker removes the bolts.
The boom is then raised slightly to release the downward pressure
on the post. A worker then lays down the post and installs the
replacement post (Tr. 166). Normally the crew would automatically
install a collar brace (Tr. 169).
The MSHA regulat~on requires one safety inspection by a
"competent person". Respondent requires two. On the day of the
fatality, inspections were performed by Ray Willis during the
day shift.
If Sullivan had not been required to leave the level,
he would have done the inspections and signed the logs (Tr. 167,
169, Exhibit R 1).
Discussion
MSHA's regulation, Section 57.18-2, imposes two broad requirements on an operator.
The first:
The operator shall designate a person who is competent to examine each working place each shift for conditions which
may adversely affect safety or health.
The second:
If there are defective conditions, the operator,
through his "competent person,~ shall initiate appropriate action.
We will review these requirements in the light of the evidence
in the case. First of all, did respondent designate a person to
examine each working place?
Yes, I find that witness James Sullivan was so designated
by the company. He so testified. Further, the company records
(Exhibit R 1) establish that Sullivan, as supervisor, initiated
and indicated the times of the safety checks on March 3 and 4, 1981.
He would have performed the safety checks on March 2 but, due to
the accident, he went to the surface.
The inspector testified there was nothing to indicate that a
"competent person" had looked over the area. But I am not persuaded
by the inspector's testimony. He admits he did not check the
company logs on this point.
Was Sullivan competent as a safety inspector?
Yes, I find that Sullivan's broad experience includes 12 years
as a miner. He was hired as a long-hole driller, promoted to level
supervisor and then level foreman.
He has helped install steel,

1163

watched other crews working with it, and he has inspected in
connection with this activity.
The Secretary waived closing argument and a post trial brief;
hence, it is somewhat difficult to perceive his position. But
the citation and the evidence suggest several facets. The
citation alleges that the person designated by the company as
competent did not examine the work place "before work commenced."
If the Secretary had intended a pre-shift inspection he could
have done so as he did in 30 C.F.R. 57.3-22 and 57.19-129.
An additional element filtering through the evidence is that
Baca, the lead miner, or for that matter anyone in charge of the
crew, was the "competent person" under the regulation. Therefore,
such a "competent person" would have prevented the unsafe acts.
I reject such a view of the regulation. On the facts,
neither Baca nor anyone in the crew were so designated by the
company as the "competent person" at the time of the accident.
A secondary factor appearing in MSHA's evidence is that the
"competent person" should have been present when all of the workers
were "in place." If so, he could have stopped Maldonado's unsafe
acts.
The regulation does not require the "competent person" to
anticipate unsafe acts by an employee. This record establishes
that the changing of the post was not inherently dangerous. In
addition, the crew was experienced. Maldonado had himself removed
the post on the opposite side of the drift on the previous shift.
Further, he recited the proper procedure to Sullivan. The crew
was told to proceed as before. For the foregoing reasons, I
conclude that respondent complied with the initial portion of
the regulation; namely, the company designated a competent person
to examine the work places.
The second broad requirement of the regulation mandates that
the competent person initiate appropriate action if there is a
defective condition. Simply put, was there a defective condition
when Sullivan was present?
No, at the time Sullivan was present the most unfavorable
scenario was that the post being changed out was not collar braced.
But no evidence establishes that this in and of itself is a
defective condition. Even without the collar brace the steel
was also tied together with a knee brace, a toe brace and secured
by four bolts.
Sullivan was at the intersection of Drift 3N-3E
at approximately 9:35 a.m. to 9:40 a.m. on March 2, 1981. At
that time Maldonado was driving the loader in with the replacement
post (Exhibit R 2). There was nothing to indicate to Sullivan
that a defective condition existed. Further, there was nothing
to indicate that the post could not be changed without incident.
Under these facts he was entitled to proceed with his safety check
survey at the other work places on the 3100 level.

1164

Along with other contentions in its post trial brief
respondent argues that the inspection performed by Sullivan at
the beginning of the shift was not an "official inspection".
Therefore, it is contended that his walk-through could not in
any event constitute a faulty inspection.
I reject that position.
If the facts had established that a
defective condition existed at any time when Sullivan was present
and he failed to take corrective action, I would affirm the
citation.
For the reasons stated herein Citation 152667 should be
vacated.
Brief
Respondent's counsel has filed a detailed brief which has
been most helpful in analyzing the record and defining the
issues.
I have reviewed and considered this excellent brief.
However, to the extent that it is inconsistent with this decision
it is rejected.
ORDER
Based on the facts found to be true in the narrative portion
of this decision, and based on the conclusions of law as stated
herein, I enter the following order:
1. Citation 152663 and all proposed penalties therefor
are vacated.
2. Citation 152667 and all proposed penalties therefor
are vacated.

Distribution:
Eloise Vellucci, Esq., Office of the Solicitor, U. S. Department
of Labor, 555 Griffin Square Building, Suite 501, Dallas, Texas 75202
(Certified Mail)
John A. Bachmann, Esq., Gulf Mineral Resources Company, 1720 South
Bellaire S~reet, Denver, Colorado 80222 (Certified Mail)

/ot

1165

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

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

MAY 4 1984

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-131
A.C. No. 36-03425-03521
Maple Creek No. 2 Mine

U.S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearances:

Janine C. Gismondi, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., U.S. Steel Mining
Co., Inc., Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Koutras
Statement of the Case

This case concerns .a civil penalty proposal filed by the
petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
820(a), seeking a civil penalty assessment in the amount of
$650 for one violation of mandatory safety standard 30 CFR
75.514. The violation was cited in a section 104(d) (1)
order issued on December 9, 1982.
The respondent contested the proposed assessment, and the
case was docketed for hearing in Uniontown, Pennsylvania, on
March 27, 1984, with five other cases involving these same
parties. However, when this docket was called for trial, the
parties advised me that the respondent decided to withdraw
its contest and request for a hearing, and agreed to pay the
full amount of the $650 civil penalty assessment.
Discussion
In view of the foregoing, and in light of the agreement
by the parties to dispose of this matter by the respondent's
request to withdraw its contest and to pay the full penalty
assessment, I considered the request as a motion to approve a
proposed settlement pursuant to Commission Rule 29 CFR 2700.30.

116'6

After due consideration of the arguments presented by the
parties on the record in support of their joint dispositive
settlement of this case, and after review of all of the
pleadings filed, including the conditions and practices cited
by the inspector in the order· which he issued, I granted the
motion and concluded that the proposed settlement was in the
public interest, and it was approved from the bench (Tr. 6-8).
Order
Respondent is ordered to pay a civil penalty in the amount
of $650 in·full satisfaction of 104(d) (1) Order No. 2102664,
and payment is to be made within thirty (30)days of the date of
this decision and order. Upon receipt of payment by MSHA, this
case is dismissed.

Judge
Distribution:
Janine c. Gismondi, Esq., Office of the Solicitor, U.S. Department of Labor, 3535 Market St., Philadelphia, PA 19104
(Certified Mail)
Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc., 600 Grant
St., Pittsburgh, Pa 15230 (Certified Mail)

/ejp

1167

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

MAY 7 1984
LOUIS E. HENDERSON,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 83-48-DM

v.
MD 83-13
LORING QUARRIES, INC.,
Respondent

Loring Mine
DECISION

Appearances:

Bryan E. Nelson, Esq., Alder, Nelson & McKenna,
Kansas City, Kansas, for the Complainant;
Kenneth J. Reilly, Esq., Beddington & Brown,
Kansas City, Kansas, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
by the complainant against the respondent pursuant to
Section lOS(c) of the Federal Mine Safety and Health Act
of 1977. The complaint was filed pro se after the complainant
was advised by MSHA that its investigation of his complaint
disclosed no discrimination against him by the respondent.
Subsequently, the complainant retained private counsel to
represent him in this proceeding.
The basis for Mr. Henderson's discrimination complaint
is the assertion that he was discharged by the respondent
because of his refusal to work in an area which he believed
to be hazardous, and his summoning of certain MSHA inspectors
to the mine to investigate his safety complaint. Respondent
denies any discrimination, and asserts that Mr. Henderson
was discharged for insubordination and that his dischar.ge
was solely because of a legitimate business purpose and not
because of any protected activity on Mr. Henderson's part.
The matter was heard at Kansas City, Missouri on
December 6, 1983, and the parties have filed posthearing
proposed findings and conclusions which I have considered in
the course of this decision.

1168

Issue
The critical issue presented in this case is whether
Mr. Henderson's discharge was in fact prompted by any protected
activity under section 105(c) (1) of the Act. Specifically,
the crux of the case is whether the discharge was in retaliation
for any safety complaints made to MSHA, or whether it was
justified because of insubordination, as claimed by the
respondent.
Applicable Statutory and Regulatory Provisions
§

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C.
301 et seq.

2. Sections lOS(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. §§ 815(c) (1), (2)
and (3).
3.

Commission Rules, 29 CFR 2700.1, et seq.

Louis E. Henderson, Jr. testified that he was first employed
by the respondent on September 2, 1981, and that his last
day of employment was November 25, 1982. He confirmed that
he is unemployed and that his last position was as a "powder
man" (Tr. 6). He stated that when he was discharged by the
respondent he was told that he was being fired "for negligence
of equipment, which consisted of a low tire on my air compressor"
(Tr. 6). He confirmed that he inspected the equipment which
he used to perform his duties on a daily basis, and he testified
as to his training as a powderman for the respondent (Tr. 9-11).
Mr. Henderson explained that the mine in question is a
limestone mine, and he indicated that he began working in the
respondent's open pit mine but later moved underground where
a new mine was being started (Tr. 12). He indicated that
"it had about two shots taken out of the fact before I started
it," and he described the mine entry as a 13-foot wide entrance,
and as one advanced into the mine the f loot-to-ceiling height
was approximately 11-1/2 to 12 feet. In November 1982, the
mine had six or eight headings (Tr. 14).
Mr. Henderson identified the general mine superintendent
as Bill Feathers, and he confirmed that Mr. Feathers was the
person who hired and fired him. He identified the quarry
owner as Ron Stanley, and the mine mechanic as Steve Folsom.
Mr. Henderson stated that it was his job to report any low
tire on his equipment,· and Mr. Folsom was the person who
would take care of it (Tr. 17). Tires were inflated by
Mr. Folsom by means of an air hoze connected to the compressor
used by Mr. Henderson (Tr. 18).

1169

Mr. Henderson described the limestone mine seam as
eight to ten inches thick, and that after every shot he
indicated that one could see the seam sag and that it sometimes
separated from the ceiling. He stated that after the driller
drilled the shot holes it was his job to load the shot and
to detonate it with an electrical charge after testing the
circuit. The shot was actually detonated while he was located
several pillars away, but during the loading process he
would be under the seam (Tr. 18-19). After blasting,
approximately 12 feet of material would be removed, and the
seam extended out from the fact for a distance of 12 feet
after each shot. He described the seam as follows (Tr. 20-21):

Q.

And this limestone seam that you
described, how would that appear after a
blast?

A. Well, you could plainly see it--it was
up there. You could plainly see a seam
between the ceiling and the limestone seam.

Q.

How far did it extend from the fact?

A.

About 12 foot, about.

Q.

In other words, it would be pretty much
be the extent of the area you blasted out?

A. Oh, yes, yes.
Then you would set off
the next shot. That seam would fall and there
would be another one. This was after every
shot.

Q.

Now, tell us what else you observed about
that seam. Can you give us any idea of how
much space there was between the ceiling and
the top of the seam?
A. Well, it depends.
Sometimes it would look
loke it was tight, flush up against the ceiling.
Other times I could get up on my loader bucket
and I could stick my hand back there.
It had
sagged down eight or ten inches.
I could stiGk
a crowbar in there and I couldn't pry it down,
but you could see it moving up and down, back
and forth, all over.
It was pretty loose.
Mr. Henderson testified that he first became concerned
with the roof seam sometime in October 1982. At that time,

1170

after returning from lunch, he found slabs of rock lying
around his truck. The rock did not damage his truck, and
he stated that the seam was 12 feet outby the face, and that
the last five feet fell on the truck. He estimated the
width of the seam which fell at ten feet (Tr. 24).
Mr. Henderson stated that the second seam fall incident
occurred sometime between November 12 to 15, 1982. He loaded
one-half of the heading and pulled out. Thirty seconds later
the roof seam fell.
He explained that he had "pulled out"
in order to prepare the second half of the heading for loading
of dynamite. He had "pulled out" for a distance of some
10 yards (Tr. 25-26).
Mr. Henderson testified that when the first fall occurred
on his truck he told only the driller about it. However,
when the second fall occurred, he immediately advised
quarry owner Ron Stanley about it, and Mr. Stanley advised
him not to go under the roof seam if he believed it was
dangerous, and Mr. Stanley also stated that "I'll guarantee
you' 11 never hear me. say anything if you don't go under it"
(Tr.27).
Mr. Henderson stated that after informing Mr. Stanley
about the fall, Mr. Feathers came to look the area over.
Mr. Henderson indicated that he simply wanted to show
Mr. Feathers where the seam had fallen because he had
previously asked the drillers and loader operators to try
to pull down the seam with the loader bucket or to "tap it
down" (Tr • 2 8 ) •
Mr. Henderson described the seam which fell as the seam
"that hangs up there after every shot." He confirmed that
he did not inform Mr. Stanley or Mr. Feathers about the
rock which fell on his truck. He explained that "I was scared
of losing my job, didn't want to stir up trouble and everything."
He then said that efforts would be made to take the loose
material down with a drill or loader, and he confirmed that
efforts were made to do this (Tr. 30-31). When asked whether
he had inspected the rock seam which fell on his truck, he
replied that "I looked." He also indicated that he had no
equipment or crowbars to scale the material down, but that he
was given a crowbar after the second fall occurred (Tr. 32).
Mr. Henderson testified that after Mr. Feathers came
to the scene of the second fall, the following occurred
(TR. 33-35) :

1171

A.· He said, "Are you scared to go under this
half of this heading that you're loading?" and
I said, "Yes, I am," and he was standing right
underneath it. He said that you could get
killed just as easy driving down the interstate
as you could up here loading in something like
this, which was crazy to me.
I don't see -JUDGE KOUTRAS (Interrupting) :
he said now.
THE WITNESS:

Just relate what

That's what he said.

JUDGE KOUTRAS:

O.K.

BY MR. NELSON:

Q.

Did you have any other conversation?

A. No.
I asked him if he would get me some
sort of a pry bar so I could try to test it,
and he said, "Yes," and he brought me up a
little crowbar. It's about three feet long.

*

*

*

*

Q. What instructions, if any, did Mr. Feathers
give you so far as working under the seam?
A. He told me to test it with the crowbar from
then on. This was after the second incident.

Q. And what, if anything, were you to do after
you tested it?
A.
I don't know, really.
test --

He just told me to

JUDGE KOUTRAS (interrupting): No. Now,
Mr. Henderson, after you tested it, if you found
out that it was loose, what, in your experience,
would you do, would you continue to work under
it? What do you mean, you don't know?
THE WITNESS.: You couldn't tell sometimes that
it was loose.

*

*

*

*

1172

JUDGE KOUTRAS: Assuming that you took
the pry bar and started beating on the thing
or prying on it and it didn't move, what would
you do?
THE WITNESS:
I guess.

Well, I would have to go under it,

JUDGE KOUTRAS: What do you mean, you would have
to? You would load it, wouldn't you, you would
continue loading the shot if it was tight?
THE WITNESS: Well, the one that fell, though,
Your Honor, was tight, too, though.
JUDGE KOUTRAS: O.K., but I am trying to understand what you would do as a reasonable person
if you found that you had to go into an area
after testing it and found that the roof was
sound. That's your job to go under there, isn't
it?
THE WITNESS:

Not if I feel it is a hazard.

Mr. Henderson stated that later in the day after the
second fall he called MSHA Inspector Jim McGee at his Topeka
off ice after the roof seam had fallen and after he had spoken
to Mr. Stanley and Mr. Feathers, and that he did so because
"they weren't scaling it down to my satisfaction, to where
I thought it was safe" (Tr. 37). Mr. Henderson then loaded
the second half of the shot, and after he and Mr. Feathers
tested it and found it "to be O.K.," he shot it down and then
went home (Tr. 38).
Mr. Henderson stated that he returned to the mine the
next day but refused to go under another heading because upon
observation he believed that "it hadn't been pecked or
tried to scale down at all." He confirmed that he tried to
scale the roof material down while up in the bucket and
that he "pecked around a bit." He indicated that it "seemed
tight," and that he tested it with the bucket and pry bar, but that
he still refused to go under it because he was afraid that
it might come down again. He advised Mr. Feathers that.he
did not want to go under the roof, and he stated that Mr. Feathers
"got irate with me, got mad," but that he did not instruct
him to go under the roof (Tr. 41). He then called Mr. McGee
later in the day or that evening and advised him about his
refusal to go under the roof seam (Tr. 42).

1173

Mr. Henderson stated that when he called Inspector McGee
he asked him to send an inspector to the mine to "look at
the situation." Mr. McGee dispatched Inspectors Caldwell
and Williams to the mine on a Friday morning, and they looked
at the situation which concerned him, as well as "the mine as
a whole." Mr. Henderson stated that he did not go with the
MSHA inspectors, and that the second heading which concerned
him had not been shot down or loaded out and that it was
"still hanging." Mr. Henderson was then summoned to the
mine office with Mr. Stanley and the two inspectors, and he
indicated that the inspectors told him that his complaint
was justified, and that "there is a potential hazard there"
(Tr. 44) •
In further explanation of the events after the inspectors
came to the mine, Mr. Henderson testified as follows (Tr. 4648) :

Q.

Did you look at it with the inspectors?

A. No; I wasn't up there with them when they
looked at it.

Q. O.K. When you refused to go under there, how
far did that extend or stand out from the face?
A. Well, this particular heading, I believe,
had only had one shot taken out of it, so there
was about 10 feet of overhanging rock hanging
there of the seam.

Q. And is it your testimony that 10 feet was
overhanging when you refused to go under it?
A.
Yes, I would say about that.
I believe
there was only one shot out of it.
Q.
Now, what happened after the conversation
you had with the inspectors? You have already
told us that they said yes, there was a possible
hazard.
A. Well, they told Mr. Stanley and me that I
was responsible along with the foreman to make a
safe working place.
I said, "Yes, that is fine , "
and he told Mr. Stanley that I was protected by
the Justice Department, and all this stuff.

Q. Did they make any recommendations as to what
should be done?

11"74

A. O.K. They said we should get sort of
a mechanical scaler, maybe build some sort of
a canopy over the bucket that I was working out
of--my lift--and there was a couple other
suggestions, but it was along those lines.

Q. Did they make any suggestions as to whether
or not it should be scaled each time blasting
was done?
A.

No, I don't believe so.

Q. Was that the first time--when was the
first time that you were informed that it was
your responsibility to check that seam?
A. When they came, when the mine inspectors
came down.
Q.

Nobody told you that before that?

A.

No.

They showed me right out of the rule book.

Q. And if you found or considered it to be a
problem from your inspection, what was your understanding then of what was to happen?

A.

Well, I was to get with the superintendent
or the foreman, you know, whoever the supervisor
was, to try to work out a solution to the problem,
try to scale it down somehow.

Q. Another possible alternative was to put some
kind of canopy over the truck?
A.

Right, among other things.

Q.

What other things?

A.

Like a mechanical scaler or something.

Q. You didn't have a mechanical scaler in there,
apparently?
A.

No, not at all.

Q. What devices did you have available to scale
it?
A.

Just a crowbar.

1175

Q. What about the company as a whole, what
devices did they have to scale it?
A. Well, they tried to use a loader bucket
sometimes to pull it down with, tried to run
a drill steel in between the seam and ceiling
to peck down some of it, but that's about it.
That's all they had. They weren't really
scaling machines or anything.
Mr. Henderson asserted that approximately a week after
he called the MSHA inspector, he had a conversation with
Mr. Feathers, and Mr. Feathers told him he "was making
waves and didn't have to call the MSHA inspectors down"
(Tr. 48). Mr. Henderson stated that he had the conversation
with Mr. Feathers after showing him a piece of rock which
had fallen from the roof. He explained the background and
the conversation as follows:
juDGE KOUTRAS: You mean you walked into some
place and found a rock that had fallen, and
you picked it up?
THE WITNESS: What I was trying to do, Your
Honor, was just show him how thick the seam was,
Your Honor.
JUDGE KOUTRAS: But that wasn't the rock that
fell the time that you pulled it after loading,
was it?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

No.
This was just a rock some place?
No, it was off the ceiling.
Off the ceiling?
Right, it was off the ceiling.

JUDGE KOUTRAS: You just wanted to show him a
representative sample if a rock fell?
THE WITNESS:

It was a big rock.

JUDGE KOUTRAS: I can take judicial notice that
if a big rock falls on you, it is liable to kill
you. Is that what you were trying to impress him?
THE WITNESS: I was trying to tell him what would
happen if it fell.

1176

Q.

This was a piece of seam?

A.

A piece of the seam, right.

Q.

O.K.

Now, tell us about the conversation.

A. Well, I informed him I had called the MSHA
people in Topeka, and he got pretty irate about
that. He said, "You didn't have to call them
people." He said, "I don't want you making waves
around here," and that sort of thing. That's
all I can remember specifically.
Q.

How long did that conversation take?

A.

How long did it last?

Q.

Yes.

A.

Less than five minutes.

Q.

O.K., and what did you do after that?

A.

I packed up my stuff, talked to Mr. Stanley.

Q.

Did you tell Mr. Stanley you had called?

A.

Yes, I informed him that I had called, too.

Q.

What did he say?

A. He didn't say much.
said.

I can't remember what he

Mr. Henderson stated that after his conversation with
Mr. Feathers, he began having "problems," and he described
them as follows (Tr. 53):
A. Well, just little subtle hints, you know,
and stuff just like I said, I made waves and
things like that.
MR. REILLY:

I am going to object--

JUDGE KOUTRAS (interrupting): Mr. Henderson,
what I am interested in is was all this coming
from Mr. Feqthers.
THE WITNESS:

Yes.

JUDGE KOUTRAS: When you say subtle, what? Just
give me a for instance. You come to work in the
morning and what would happen?

1177

THE WITNESS: Oh, just--I don't know, just like
I told you, he said I was making waves, causing
trouble.
BY MR. NELSON:

Q.

How many times did he say that?

A.

Twice, I believe.

This is all within a week--

Q.
(Interrupting) You have got to be specific
about these things that were said.
JUDGE KOUTRAS:
It is not necessary for him to
be that specific, counsel. His testimony is
that subsequent to the time he called the inspectors,
Mr. Feathers was giving him a "hard time" by
reminding him on at least two occasions that he
was a troublemaker, making waves.
Is that the essence of it?
THE WITNESS:

Yes.

Mr. Henderson stated that he was discharged approximately
two weeks after the inspectors came to the mine, and that he
was told that he was being fired for "negligence of equipment,"
and he described the incident which precipitated his discharge
as follows (Tr. 54-57):
A.
O.K.
I got to work in the morning at 7:30,
looked over my equipment, noticed I had a low
tire on my air compressor-Q.

(Interrupting) Now, where was your equipment?

A.

It was parked down in the mine.

Q. How did you inspect it, with your light and
all that?
A.

Yes, with my head lamp.

Q.

When you find a low tire, what do you do?

A.
I told Steve Folsom, the mechanic, about it,
that I needed an air hose.

Q. Now, what did you have to do to tell Steve
about it?

1178

A. He was right there--he just happened to
be there, starting up the dump trucks and stuff.
They park them down in the mine when it is
cold.

Q.

How low was the tire?

A. Oh, I would say it was maybe half low, not
low enough to where it would really hurt anything.
If you would have run it a long distance, it
might of.

Q.

So what did you do?

A.

I told Steve Folsom that I needed an air hose.

Q.

What did he tell you?

A. He said he was busy, that he was starting up
the dump trucks and stuff, getting them warmed up.
I said, "O.K., I'm going to limp on down here to
the powder house, I'm going to start making my
shots up, go down there real slow. When you get
time, come down there and we will air it up."
He said, "O.K. Fine."

Q. O.K., now, why did you go ahead and start work
when you had a low tire?
A. Well, because it is a pretty pressing--see, I
was the only powderman at the time.
I was keeping
the whole place running. To keep them in rock,
you have to get started early in the morning and
get right to it or you will fall way behind and
be there until midnight.

Q.

You were there a long time, then?

A.

Oh, yes, every day.

Q. Now, is that the reason that you went ahead
and started work?
A.

Yes.

Q. Were you concerned tbat you might cause damage
to the tire?.
A.

No, not at all.

1179

Q.

Why not?

A.. Because I was watching it, making sure
that I wasn't going to hurt anything.

Q. O.K., and then what took place after that,
you went up to the powder house?
A.
I was down at the powder house making up
my shots, and here come Mr. Feathers, pulled up-I didn't even know what was going on--pulled
up, jumped out of the truck, started cussing
at me--I'm not going to repeat what he said-but started cussing and told me, you know, get
out, said I was fired, you know. He said
that is what he was going to put on the report
is negligence of equipment, and I said, "Why?"
and he says, "Because you didn't air that tire
up," and I said, "Well, you know, that's not
much to fire me on, you know," and he said,
"Get out, get out of my sight before :t do
something I'm sorry for." He did assault me,
but there was no witnesses.

Q.

What do you mean, he assaulted you?

A.

Grabbed me, threatened to hit me.

Mr. Henderson testified that he was aware of other incidents
of equipment misuse but that no action was taken against the
employee. He cited an incident involving a pick-up truck
which was during too fast colliding with a dump· truck, but
that nothing was done about it. He also stated that he has
observed "trucks hot-rodded around," but he was not aware
of any other employees being fired or disciplined over these
incidents. (Tr. 58). He confirmed that employees had been
"talked to" by supervisors, and that he had been previously
warned by Mr. Feathers about "driving too fast" sometime
in late September or early October 1982. He denied that
any other disciplinary action had ever been taken against
him for misusing equipment (Tr. 59). He believed he was
fired because he called the MSHA inspectors and because other
employees had not been disciplined for "things a lot worse,"
and he was fired over a low tire on his compressor (Tr. 60).
On cross-examination, Mr. Henderson identified exhibit R-1
as his handwritten complaint filed in this matter (Tr. 62).
He confirmed that his first experience with a rock fall
occurred in October 1982 when he began to experience
some rock ledge formation that continued to cling to the ceiling
after blasting. He confirmed that he did not inform Mr. Feathers

1180

or Mr. Stanley about this incident and they did not know
about it. After the second incident on or about November 18,
1982, he told Mr. Stanley about it. Mr. Stanley told him
in no uncertain terms that he was not to go under any roof
which he considered to be in an unsafe condition. Mr. Stanley
also advised him that at no time would he ever be in trouble
for not going under any unsafe condition (Tr. 65).
In response to further questions, Mr. Henderson testified
as follows (Tr. 66-70:
Q. So the first time you ever complained
to any official at the quarry, either your
superintendent or his superior, about the problem,
the responses were, "Don't go under anything
that you consider to be an unsafe condition,
and I'll come up right away and take a look at
it with you?"
A. No, that's what Mr. Stanley said.
didn't say anything.

Mr. Feathers

Q. Mr. Feathers said, "I'll be right up and
look at it," didn't he?
A.

No, he didn't say that.

Q.

He came right up and looked at it, didn't he?

A.
It was later, about two hours later, that
afternoon. He said, "Let's go take a look at
it," and that's what we done.
Q. And at that time, as far as you were concerned,
the condition was not unsafe, was it?
A.

Yes, I was pretty scared then.

Q. I didn't ask you whether you were scared.
I asked you if it was an unsafe condition.
A. Out there then, after the second time?
Yes, I would consider it.
Q. Did you take a bar and try to pry it down
to see if any rock came down?
A.

Yes.

Q.

Did any rock come down?

A.

No.

1181

Q.

Did the ledge wiggle in any way?

A.

Wiggled a little.

Q. I think you previously testified it
appeared tight to you?
A.
It appeared tight, but the edge of it
wiggled a little bit; but the seam as a whole
was tight, seemed tight.

Q. And at that time, you were handed a bar or
given a bar by Mr. Feathers so that you could,
and were instructed to test it any any time
you felt it needed to be tested?
A.

Right.

Q.

And did you do that again?

A. Did I test before I went under these headings
again?

Q.

Right.

A.

Yes.

Q. You only went under the heading one more time,
didn't you?
A. Well, yes, O.K., yes, the one where there was
one shot out, yes, one shot out. Then I refused.

Q. The next day you went back to Mr. Feathers
and said, "I'm not going to go back under that
thing again?"
A.

Right.

Q. In fact, Mr. Feathers said, "Did you test it
with your bar," didn't he?
A.

I can't remember.

Q.

And you said, "No," didn't you?

A.

I can' t ·remember whe·ther he asked me or not.

Q. And after you said no, then he got angry with
you for not having tested it as he had instructed
you the day before, didn't he?
A.

No.

1182

*

*

*

*

Q.
The day you refused to go under it because-right, the next day.

A. Right, yes, I had a conversation with him.
That's when he got mad.
Q. And he got mad because you hadn't tested the
ceiling with the bar, didn't he?

A.
I can't remember that.
If that is what it
was over or not, I can't say.
Q. Mr. Feathers, when you told him that you
called MSHA, said, "Why did you call them, why
didn't you come to me first so we could correct
any situation that you found to be unsafe,"
didn't he?

A.

I can't remember exactly what he said now.

Q.

Isn't that approximately what he said to you?

A.
I can't say for sure. I'll say maybe that's
what he said, I don't know.
It's hard to remember
conversations way over a year ago.
Q. When Mr. Feathers had the conversation with
you about--when he was talking with you about how
you might get killed on the highway, he was trying
to calm you down, wasn't he?

A.

No.

Q.

You were very excited, weren't you?

A.

No.

Q.

He wasn't trying to calm you down?

A.

No.

Q.

He didn't state--

A.
(Interrupting) He was trying to rationalize
me going under that ceiling again, and I wasn't
going to do it.
Q. And you didn't view that as an effort to calm
you down?

A.

No, not at all.

1183

Q.

Were you upset?

A. Yes, but I wasn't hysterical or anything
like that.
I was concerned, very concerned.
Q.

Do you have a temper, Mr. Henderson?

A. When I am pushed, just like anybody else,
I guess.
Mr. Henderson stated that he could not recall the
conversations with Mr. Feathers at the time he advised him
that he would not go under the roof, and he stated that he
was not sure whether Mr. Feathers tested the roof and that
nothing came down (Tr. 71), He conceded that all of the
events surrounding his COIIq?laining spanned a period of eight
days from November 18 to November 26, 1982 (Tr. 71).

Mr. Henderson stated that he could not remember running
the compressor on a flat tire in the past. While he indicated
that he would not disagree with any testimony that he did,
"I would just say I can't remember" (Tr. 73-74). With regard
to his encounter with Mr. Feathers over the compressor tire,
he stated as follows (Tr. 74-76):
Q. What was it you said to Mr. Feathers
that made him so irritated after he called

A.
(Interrupting) After he called me a little
f .•. er, I called him a mother f •.. er, and that
is when he grabbed me and threatened to hit me,
and he said I was fired before that.
Q. He said you were fired after you said, "F ..•
you, you old f .•• er," didn't he?

A. He grabbed me, he tried to grab me; and that
is when I got mad. He reached over the tongue
of the air compressor and tried to grab me. He
assaulted me. He actually bodily touched me,
and that is when I got mad, and I was trying to
defend myself any way I could.
I didn't want
to get in a hassle down there in the mine.
_
I had dynamite strung all over the place trying
to make up my shots, and that's when he came --

*

*

*

Q. After you said what you said to Mr. Feathers,
he said, "You are fired. Get out of here?"

1184

A.

Right.

Q. And then you went down to the shop, didn't
you?
A. After he threatened to grab me, after he
grabbed me, I said that.

Q.

Then you went down to the shop, didn't you?

A.

Right.

And, at (Tr. 79-80):

Q. So Mr. Stanley said, "Well, calm down now,
calm down. Let's see if we can't get this worked
out," didn't he?
A.

Right.

Q. He said, "I hate to see people get fired,"
didn't he?
A. That's right, that's what Mr. Stanley said,
something to that effect.

Q. Something to that effect. He said, "You sit
down in this room, and I will go get Bill and we
will see if we can straighten this out," didn't
he?
A.

Yes.

Q. So at some point, you and Mr. Stanley and
Mr. Feathers were all sitting in the car, weren't
you?
A.

Yes; this was over at the office.

Q. And at that point, Mr. Stanley was trying
to resolve the whole situation so you weren't
fired and you were calmed down and Bill was calmed
down, didn't he?
A. What Mr. Stanley said was that he had to back
up his superintendent, his foreman, whatever
decisions he made. That's about all he said.

Q. At one point while you were sittin9 in that
car, didn't you actually go beserk?
A.

No, I didn't.

1185

Q.. You're sure you didn't?
A.

No.

Q.

Didn't you become almost incoherent?

A.

No, not at all.

Q. And at that point, didn't Mr. Stanley then
fire you?
A.

No.

Q. Didn't Mr. Stanley then say, "You're gone.
I can't even talk to you?"
A.

No.

With regard to his allegations of harassment by Mr. Feathers,
Mr. Henderson testified as follows (Tr. 84-88):
Q. At no time did anyone at the quarry tell you
that you had to work under what you considered to
be an unsafe condition, did they?

A.

They didn't directly say that, no.

Q. Now, you said that for the week-long period
in between when you called MSHA and when you got
fired, Mr. Feathers impliedly did this and suggestedly
did that. Do you recall any single instance where
Mr. Feathers said anything to you?

A. Well, it's just the main instance that I
remember, is when I told him that I had called
MSHA, you know, and I told him no, that I wasn't
trying to cause any trouble, and that is when he
got mad.
Q. That's the only time you can recall Mr. Feathers
saying --

A.
(Interrupting)
That's the only time I can
recall any out and out harassment or anything like
that.
Q. As a matter of fact, your complaint doesn't
even mention any further communication with Mr. Feathers
throughout the period of time from the day that
you had this conversation with him until the day
you were fired, does it?

1186

A. Well, I was in close contact with him all
the time. He was the superintendent, and he
come up to check on you, see how you were doing,
things like that.
JUDGE KOUTRAS: No. His question was from the
time you fired -- I mean from the time you called
MSHA until the time you were fired, your complaint
doesn't say anything about the needling, the
purported needling, that Mr. Feathers subjected
you to.
THE WITNESS: No, there's no real -- I couldn't
really peg anything down to it.
BY MR. REILLY:

Q. There wasn't anything he said to you that was
actually directed to any of the events that occurred
with MSHA?
A.

Oh, no, not directly, no.

Q.
He never criticized you or chastized you in
any way, did he?
A.

Except for that one time -- well, twice.

Q. You have already indicated except for the time
when you just told him that you called MSHA, right?
A.
Right; and he got mad, and he got mad the time
I wouldn't go back under that second half of the
ceiling that fell.

Q. Other than that, there was never any comment
by anybody at the quarry to you about having called
MSHA, was there?
A.

Not directly, no.

Q.

Not even indirectly, was there?

A.

That's debatable.

JUDGE KOUTRAS:
Henderson?

Was there or wasn't there, Mr.

THE WITNESS:

I would say yes, some things were.

BY MR. REILLY:
Q.

What?

1187

A. Just by increased workload, things like
that, you know.

Q.

What was your increased workload?

A. Working overtime, you know, and things like
that.

Q.

What was the overtime you worked, Mr. Henderson?

A. Oh, I don't know. I was putting anywhere from
SS to 60 hours a week in.

Q. We are only talking about a one-week period
here, Mr. Henderson; how many extra hours did the
quarry make you work because you called MSHA?
A.

Well, I can't prove that.

JUDGE KOUTRAS:
work overtime?
THE WITNESS:
JUDGE KOUTRAS:
time?
THE WITNESS:
JUDGE KOUTRAS:
overtime?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Hold it, counsel.

Do you like to

When I can, yes, sometimes.
Did you ever refuse to work overNo, I didn't.
Did they ever order you to work
Sometimes, yes, I had to.
I mean during this week.
I had to.

JUDGE KOUTRAS: I get the impression you're trying
to convince me they punished you by making you work
overtime, is that a fact?
THE WITNESS: I had to. I had to work overtime
because I was the only powder man, and I had· to
get the rock down on the floor.
I couldn't say_
no. They would say, "Hit the road. We will get
somebody else."
JUDGE KOUTRAS:
THE WITNESS:

You got paid for it, didn't you?
Right.

1188

JUDGE KOUTRAS: Are you trying to convince
me that this operator, because of your complaint
to the two inspectors, punished you by making
you work overtime?
THE WITNESS: Well, I can't say that that was a
punishment, no. I think some of it was.
JUDGE KOUTRAS:
THE WITNESS:

Why was some of it?
I don't know.

JUDGE KOUTRAS: What leads you to conclude that
part of the requirement you work overtime was in
punishment?
THE WITNESS: Well, it was not only overtime, it
was subtle things that were going on.
JUDGE KOUTRAS:

All right, Mr. Reilly.

BY MR. REILLY:

Q. What were the other subtle things, Mr. Henderson,
can you name one?
A.

No.

In response to question from the bench concerning his
safety concerns, Mr. Henderson testified as follows (Tr. 95-100):
JUDGE KOUTRAS: All right, Mr. Henderson. Let me
just ask you a couple of questions now. At the
time when that half a header fell as you were
pulling back, it's my understanding you went back
and checked that area with a bar and found that
maybe one of the corners may have been loose but
it was all tight, it was tight, correct?
THE WITNESS:
JUDGE KOUTRAS:

After one half of it fell?
Right.

THE WITNESS: Yes. We went up in the bucket, I
pried on it a little bit. It would wiggle a little
bit but it seemed tight.
JUDGE KOUTRAS: But that is not the area where you
refused to go under, is that right?

1189

THE WITNESS:

No.

JUDGE KOUTRAS: Did you actually go back under
the second half of this header after you went
up and tested it, the half of the header that
you were working on after you pulled out, 30
seconds after you pulled out approximately 10
yards, it fell?
THE WITNESS:
JUDGE KOUTRAS:
right?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
bar?
THE WITNESS:

Right.
And that caused you some problem,
Right.
You reported that?
Right.
Then Mr. Feathers gave you a pry
Right.

JUDGE KOUTRAS: And you went back, and he came
back up there a couple hours later and observed
it, is that correct?
THE WITNESS:

Yes.

He was with me.

JUDGE KOUTRAS: He was with you.
with a pry bar?

You tested it

THE WITNESS: I went up with it, stuck it back
up in there in that corner, and it wouldn't budge.
JUDGE KOUTRAS: Now, at that point in time, did
you make a decision that that header that was
remaining that you went up and tested was unsafe?
THE WITNESS:

Well, I was taking a chance, really.

JUDGE KOUTRAS: Forget that. Answer my question.
If you tested it with a bar and found that it was
sound, then what else, what other alternative did
you have?
THE WITNESS:
sound.

Well, I am not going to say it was

1190

JUDGE KOUTRAS:
bar?
THE WITNESS:

Did you test it with a pry
Yes.

JUDGE KOUTRAS: Did you determine after testing
that it was not safe?
THE WITNESS: Yes and no.
I decided I wanted
to finish the job and get out from underneath it,
O.K.?
JUDGE KOUTRAS: Why didn't you decide that it was
unsafe and tell Mr. Feathers that you were not going
to finish the second half of the shot?
THE WITNESS: I don't know.
pressure at the time.
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:

I felt under

You felt under pressure?
Right.
And you went ahead and shot it down?

THE WITNESS: I already had half of it loaded. I
felt I would go ahead. I was more or less taking
a chance.
JUDGE KOUTRAS: You were taking a chance even though
your pry bar test indicated that it was sound?
THE WITNESS:

Right.

JUDGE KOUTRAS: Now, the next day is when you called
the MSHA people?
THE WITNESS:

Right.

JUDGE KOUTRAS: All right, but the next day when
you reported to work, you went to another location
in the mine, correct?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Yes.
And you found a ceiling?
Yes.
Did you test the ceiling?
Yes.

1191

JUDGE KOUTRAS:
THE WITNESS:
little bit.
JUDGE KOUTRAS:
THE WITNESS:

With what?
Well, I went up and pecked it a
Pecked it with what?
With the crowbar.

JUDGE KOUTRAS: With the crowbar that you wtill
had from the day before?
THE WITNESS:

I believe it was the same one.

JUDGE KOUTRAS: All right, and you pecked around,
and what did you find?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
that shot?

It seemed tight.
It seemed tight?
Right.
Why didn't you go ahead and load

THE WITNESS: Well, because the other one seemed
tight, too, and you can't tell when these things
are going to fall.
JUDGE KOUTRAS: It could fall today, it could fall
tomorrow, right?
THE WITNESS:

Right.

JUDGE KOUTRAS: And what means do you have for
determining whether the area is safe before you
go in there?
THE WITNESS:

You don't.

JUDGE KOUTRAS: You just told me. What's the normal
procedure for testing for soundness of a ceiling or
a roof in that situation?
THE WITNESS:
with a bar.
JUDGE KOUTRAS:

The only way I know is to test it
All right.

1192

THE WITNESS: And the tension on that ceiling, you
could not pry it down with a bar. I never had
been able to get anything down with a bar. The
fact is you can't -- they can wiggle it around
with a loader bucket. You can see it working up
and down, and sometimes it won't fall, sometimes
it will.
JUDGE KOUTRAS: Are you suggesting that a roof area
that's tested with a bar and appears to be sound
should be taken down anyway?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Yes, oh, yes.
To make it 100 per cent safe?
Yes, absolutely.
Is that the way it's normally done?
It should be.

JUDGE KOUTRAS: Why do you take something down if
you sound it and find it is sound?
THE WITNESS:
body's life?

Who wants to mess around with some-

JUDGE KOUTRAS: Who wants to mess around underground
in a mine to begin with? I'm not trying to be
facetious, but I'm trying to understand it here.
Were there any citations issued in this cas~ to
the mine operator for failing to sound the roof?
THE WITNESS:

I don't believe so, no.

Mr. Henderson testified that prior to November 1982, he
had loaded probably 50 to 100 shots, but that he did not always
test the ceiling "because I didn't always have time.
It
takes time and I was busy. It's a heck of a schedule I was on"
(Tr. 101). Mr. Henderson indicated that the responsibility
for checking the ceiling is his as well as the. superintendent's
(Tr. 102). When asked what he would do if he checked the
roof and found that it was not safe, he replied (Tr. 103-105):
JUDGE KOUTRAS: What would you do if you found
it was not sound?
THE WITNESS: Sometimes, regrettably.
go under and do it anyway.

1193.

I would

JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:

You would take the chance anyway?
Take a chance.
Whose fault is that?

THE WITNESS: That would be mine. That is the redson
why I complained about this, is because if I would
have gotten crushed under there, it would have been
my fault anyway.
JUDGE KOUTRAS:
would you?
THE WITNESS:

You wouldn't be here to complain,
Yes.

JUDGE KOUTRAS: Isn't that true -- what I'm trying
to understand is to what degree do you believe
that the mine operator has to go to make an area
absolutely fail-safe under all conditions.
THE WITNESS: He should buy a scaling machine and
scale it down, make it safe.
JUDGE KOUTRAS:
a canopy?

How about building a net or putting

THE WITNESS: That wouldn't do any good with 10
tons of rock.
It would smash it flat.
JUDGE KOUTRAS: Is there anything in the regulations
-- now, you mentioned the federal standards. What
is your understanding of what these federal laws
require as far as testing and scaling?
THE WITNESS: All I know is what the mine inspectors
showed me when they came out that day.
JUDGE KOUTRAS:

What did they show you?

THE WITNESS: They showed me a section in there -I can't remember the section -- like I said, it
was my responsibility, along with the foreman or
the superintendent, to make sure it was a safe
working place.
JUDGE KOUTRAS: All right. Let's assume the section
foreman and the mine superintendent determined
that it was a safe working place?

1194

THE WITNESS: Yes; but they never did, though.
That's the thing, they rarely ever checked on it.
They didn't even care.
JUDGE KOUTRAS: How do you know that on this day
when this roof fell they didn't check it?
THE WITNESS: Well, I was working up there all
day long, and I didn't see anybody go under the
header.
JUDGE KOUTRAS: How about the second fall where
you sounded with the bar and found it sound?
THE WITNF.SS: You are talking about the second
half of the room that fell?
JUDGE KOUTRAS:
THE WITNESS:
not.

Right.
I don't know if i t was tested or

JUDGE KOUTRAS: And then the next day, you
found the ceiling that you also said was sound,
but you didn't want to go under it?
THE WITNESS:
I thought it was.
to take a chance the next day.

I wouldn't want

JUDGE KOUTRAS: And what did you want the mine
operator to do?
THE WITNESS: Scale it down.
When asked to clarify his prior statement in his complaint
to MSHA that Mr. Feathers attempted to scale down the ceiling,
Mr. Henderson stated as follows (Tr. 111-112):
BY JUDGE KOUTRAS:

Q. Part of your statement, you said that after
you refused to go under the ceiling and after you
had this conversation -- or at least wanted
Mr. Feathers to look at it -- you said sometping
to the effect in your statement -- and I am quoting:
"So the next day he did make an attempt to scale
the ceiling, and I told him I appreciated it."
Can you elaborate on that? You seem to indicate
in your original statement that Mr. Feathers at
some point in time made an attempt to scale the
ceiling and you had told him you appreciated it.

1195

.That part there, what's that all about, was
this when you went back to examine the ceiling,
and is that the time that he came up to look at
the second half of the header, or precisely
what did you have in mind with that?
A.
I don't remember him trying to scale it
down, I really don't.
Q. . Is that your statement there?
A.

Yes.

This has been so long ago, all this

Q.

{Interrupting)

Mr. Henderson, now wait a minute.

A. I'm not denying he did, O.K.? I am trying to
remember all this stuff as it comes up, but it
is hard to remember, it really is.
If I made it
there, then he probably did try to scale it down.

*

*

*

*

Q. You may not be able to answer this, but which
ceiling were you ref erring to?
A.
I guess it was the one that I refused to go
under.
I told you all it only had one shot taken
out of it.
Steven H. Folsom, testified that he is employed by the
respondent as a maintenance mechanic. He testified as to the
incident concerning the low air pressure on Mr. Henderson's
vehicle, and he confirmed that the tire looked flat and that
he advised Mr. Henderson that he would look at it. However,
before he could take care of the problem, Mr. Henderson left
the area with the truck, and he observed him later in the shift
in a conversation with Mr. Feathers about the tire, but did
not hear what transpired {Tr. 113-117).
Mr. Folsom had no personal knowledge of any other employee
.actually being fired because of "negligence of equipment,"
although he was aware of the fact that other employees had
abused equipment which required him to repair it {Tr. ll7). He
had no personal knowledge that the tire which Mr. Henderson
drove on actually caused any damage {Tr. 118).
On cross-examination, Mr. Folsom confirmed that a tire
on a compressor truck in the past had been ruined by someone
driving it with low air pressure, but could not state whether

1196

Mr. Henderson was involved in that incident. He did confirm,
however, that the rim had to be straightened and that a new
tire had to be installed to replace the damaged one (Tr. 119).
He confirmed that he spoke with Mr. Henderson after he observed
him speaking with Mr. Feathers, and that Mr. Henderson told
him that he had been fired.
Mr. Henderson was upset, but he
had no other detailed conversation with him over the incident
(Tr. 119). He confirmed that he had previously put air in
compressor tires in the shop, and that he had previously performed
this service for Mr. Henderson in the past (Tr. 121).
Terry Acock, testified that at the time Mr. Henderson
was discharged he was employed at the quarry as a driller.
He testified as to an accident which he (Acock) had with a
truck which he had been driving when it collided with another
vehicle, and that Mr. Feathers accused him and the other man of
driving too fast.
He was not fired over the incident, and
knows of no one else who was fired for not taking care of
equipment or for damaging equipment. However, he confirmed
that he was discharged by the respondent, but that the reason
for the discharge was not related to the maintenance of equipment
(Tr. 121-123}.
On cross-examination, Mr. Acock confirmed that he did
not intentionally run into the truck in question and that it
was an "accident." He did not curse Mr. Feathers, nor did
he argue with him (Tr. 124}.
William E. Feathers, quarry superintendent, testified as
to his background and experience. He testified that Mr. Henderson
said nothing to him about any rock fall which he may have
experienced in October 1982, and he explained the procedures
followed at the mine to scale down any rock which may remain
after a shot (Tr. 128-134).
Mr. Feathers stated that sometime between November 16 and
20, 1982, Mr. Henderson came to him on a Thursday and showed
him a rock which he threw at his feet and stated "You see this
rock? That could kill a person." Mr. Feathers asked him
to explain, and Mr. Henderson told him that the rock had
fallen from a ceiling where he was working, and that he was
not going back into the mine to work (Tr. 135}. Mr. Henderson
then explained to him that he called MSHA, and when Mr: Feathers
inquired as to why he had not first brought the matter to
his attention or to the attention of Mr. Stanley, Mr. Henderson
did not reply (Tr. 1~6).
Mr. Feathers stated that he never asked Mr. Henderson
"to go into any condition that he felt was unsafe," and he indicated
that at any time an employee believes a condition is unsafe

1197

they would come to him because "that's my job" (Tr. 137).
Mr. Feathers stated that he and Mr. Stanley examined the
area that Mr .• Henderson complained about, and they found
that "a chunk" of the ceiling had fallen out for a distance
of some five feet, but that the rest of the ceiling was
tight. Mr. Feathers checked the ceiling with a bar, which
is the standard method for doing so, and he determined that
it was safe (Tr. 138). Since it was the end of the work shift,
there was no question raised at that time about Mr. Henderson
going back to work, and the conversation ended (Tr. 138).
The next day was a Friday, and since Mr. Feathers was not
at work, he did not see Mr. Henderson again until the following
Tuesday (Tr. 139).
Mr. Feathers stated that when he next spoke with. Mr. Henderson
on the Tuesday following the rock fall incident, Mr. Stanley
had given him a seven-foot bar to use in scaling the ceiling
and that Mr. Henderson had it in his truck. After examining
the ceiling that Tuesday, Mr. Feathers found that it was
"tight" and found nothing that he believed to be unsafe (Tr. 141).
Later that week, Mr. Henderson told him that he had refused
to "load a room," and when asked whether he had checked the
ceiling, Mr. Henderson replied "no," and Mr. Feathers commented
"What do you think we bought that bar for you, just to haul
around and look at? We bought it for you to use." Mr. Feathers
stated that he then went back and checked the room that
Mr. Henderson was complaining about, but it was not the same
room that he had complained about on the previous Thursday.
He found that it was "tight" and found nothing unsafe
(Tr. 141). Mr. Feathers explained further as follows
(Tr. 142-143) :
JUDGE KOUTRAS: Excuse me just a second now
for interrupting your .narrative, but was that
the same ceiling that he had refused to go under?
THE WITNESS:
JUDGE KOUTRAS:

No, no, no, sir.
This was another location?

THE WITNESS: Yes. This was the whole mine in
general that he told me to go up, and there was
one particular area over there in the east wjng
that he wanted me to try and knock down, and so
I went over and tried scaling it; but while I
was up there, I went around and checked all of
them and tried knocking down all the loose rock
that I possibly could, and Louis came -- I
though it was a good gesture -- he came; and
after he seen me doing it, he said, "I appreciate
you doing it," and I said, "That is what we
want to do," to try to make the place safe to
work.

1198

BY MR. REILLY:
Q.

Was that the complete conversation?

A. That's the last conversation I had with
Louis about the ceiling.
Q. That's the one he is referring to here in
his complaint where he was you did make an
attempt to scale the ceiling and he told you
he appreciated it.

A.

I

imagine.

Q.

That's the one he is referring to?

A.

Yes.

Mr. Feathers testified as to the incident which occurred
on the morning of November 26, with respect to Mr. Henderson's
driving his truck with the air in the compressor truck tire low.
He indicated that this was not the first time this had happened,
and that on a prior occasion Mr. Henderson had ruined a tire
by driving on it without air, and that he (Feathers) had
warned him about this practice (Tr. 144-145). Mr. Feathers
stated that when he discussed the matter with Mr. Henderson
on November 26, Mr. Henderson swore at him, then Mr. Feathers
told him that he was fired. Mr. Feathers conceded that he
was angry and that he told Mr. Henderson "you're fired because
you are going to cause me to do something we both might be
sorry of" (Tr. 145). Mr. Feathers denied grabbing, touching,
or attempting to swing at Mr. Henderson, and he stated that
he fired Mr. Henderson because he swore at him. After he
told him that he was fired, Mr. Henderson left the area (Tr. 146).
Mr. Feathers stated that after firing Mr. Henderson, he
encountered Mr. Stanley at the entrance of the mine and informed
him what he had done. Mr. Stanley informed him that he wanted
"to talk the matter over," and they went to the mine office
to speak with Mr. Henderson. The three of them then sat
in a car outside the office to discuss the matter further,
and Mr. Stanley was attempting to reconcile the matter.
However, Mr. Henderson began criticizing Mr. Feathers' _work
and abilities as a supervisor. At that point, Mr. Feathers
commented that "there was no way" he and Mr. Henderson
could continue to work together and still have the cooperation
needed to do the work. (Tr. 148), and he described what happened
next as follows (Tr. 149-150):

1199

Q. O.K. Did Ron say something to Mr. Henderson
at that point?
A. Well, Ron's gesture was that he was
trying to impress upon him that if there would
be some kind of more or less reconciliation
between the two of us, he could continue to work
there; and I knew that this was Ron's intentions
and his own personal feelings that we could
reconcile this difference, and I wanted to hear
his opinion is because the reason why I wasn't
saying anything.
I knew Louis is -- well, it may
be said maybe nobody really knows Louis -- I
thought that I did and I had a working relationship
between him, and he did -- and as far as powdering,
he was a good powderman. I never had to get onto
him for speed or anything, and we did maintain,
I thought, a fairly decent working relationship,
and I wasn't in no way looking forward to firing
him and going out and finding a new powderman and
bringing him in and spending 40 hours retraining
somebody to take his job. That's nothing to look
forward to because there is --

Q.
(Interrupting) Did Mr. Henderson become
enraged in the car?
A.

Yes.

Q.

And did Ron say, "That's it.

A.

Yes.

You're out?"

Mr. Feathers testified as to the incident concerning a
truck accident involving Mr. Acock, and he confirmed that
Mr. Acock was not fired, did not swear at him when he discussed
the incident with him, and he confirmed that Mr. Acock did
not intentionally wreck the truck, and in fact, apologized
over the incident (Tr. 152).
On cross-examination, Mr. Feathers confirmed that during
the cleanup procedures after a shot is fired, the loader
operator is protected by an overhead canopy on his vehicle
when he goes in to scale the area, and that his risk would
be less than that of a powderman (Tr. 156). When asked
whether he would have preferred that Mr. Henderson sit idly
by while awaiting someone to air up the tire on the compressor,
Mr. Feathers answered that Mr. Henderson could have left
the compressor and gone ahead with his work without "endangering
the tire" (Tr. 157). Mr. Feathers again denied provoking
Mr. Henderson, or that he ever threatened.or cursed him (Tr. 158).
He denied that he accused Mr. Henderson of being a "troublemaker,"
or that he criticized him for caliing in the inspectors
(Tr. 159-160). He also denied that he fired Mr. Henderson for
complaining to MSHA (Tr. 162).

1200

Ronald H. Stanley, owner and manager of the quarry in
question, testified that he has operated the facility for
eight years. He confirmed that he works at the quarry on a
daily basis, and he identified the quarry superintedent
as Bill Feathers. Mr. Stanley confirmed that Mr. Henderson
worked for him as a powderman, and he confirmed how rocks
are scaled and the procedures followed by the loader operator
after a shot is fired (Tr. 166-168).
Mr. Stanley confirmed that he first learned of any
problems with Mr .• Henderson on November 18, and that Mr. Henderson
did not inform him of any prior problems which he may have
had in October. He described his first encounter with
Mr. Henderson as follows (Tr. 169):
A.
It's foggy, but to the best of my
knowledge, we were loading an outside shot, and
we needed Louis's caps to load it, and so I
was up preparing the holes to load them. Louis
came down and we had already started a few holes
before Louis had mentioned -- he said, "You
know, some ceiling fell up there," and I said,
"I don't know." He said, "Well, it did and it
just scared the hell out of me." I said,
"O.K., let's finish this shot, and we. will
get up there and look at it. Don't go in or
anything if you don't think it's safe, obviously,"
and we went ahead and finished the shot, and I
think we shot it -- I might have went somewhere
in the meantime, Louis had told Bill about it.
Mr. Stanley stated that after finishing the shot in
question, he went to the area where Mr. Henderson had indicated
had previously fallen, and he found that approximately half
of a ten~foot ceiling had fallen. After examining the area,
he (Stanley) and Mr. Feathers, considered that it was safe,
and as far as he knew Mr. Henderson had not called MSHA
that day about this prior fall (Tr. 170). The next day,
Mr. Henderson informed him that he had called MSHA, and
Mr. Stanley stated that he told Mr. Henderson that he thought
this was a "great idea" because of ceilings which had hung
after six or eight months. Mr. Stanley stated further that
he personally called an MSHA inspector to send some inspectors
to the mine to check the mine ceilings because he did not
want Mr. Henderson to work in areas which had not bee inspected
(Tr. 171) •
Mr. Stanley confirmed that MSHA had previously inspected
his mine, had been in the "upper mine" areas which concerned
Mr. Henderson, and no one ever mentioned anything about the

1201

seams which concerned Mr. Henderson. Mr. Stanley denied that
he ever asked Mr. Henderson to go into any mine area which
he or Mr. Feathers considered to be in an unsafe condition
(Tr. 172). Mr. Stanley indicated that his instructions were
that all walls were to be scaled with bars, and that if
Mr. Henderson believed they were still unsafe he was to tell
him or Mr. Feathers about it (Tr. 173). -After the aforesaid
incident. Mr. Stanley had no further contacts with Mr. Henderson.
concerning any work refusals, nor did he have any conversations
with him about the condition of the mine ceiling until the
day of his discharge (Tr. 173). With regard to what transpired
at the time of the discharge, Mr. Stanley stated as follows
(Tr. 173-174) :
A.
I don't know how I knew he was fired.
I was just driving through the mine, and Louis
-- I think he was in the shed changing clothes
or putting in his timecard -- and I asked,
"What is going on?" and he said, "I got fired."
He was upset but not vocally upset, and I said,
"Oh, hell. Why don't you get in the car,
go over to the office, get a pickup, go to
the office.
I will get Bill and we will come
over to the off ice and talk. So I had to run
Bill down; and I asked Bill what happened,
and he said, "Well, he just cussed me out,
drove with a flat tire, and I fired him," and I
said, "Well, let's go over and talk to him,"
and I said, "If we go over and talk to him and
we get this straightened out, would you hire
him back?", and Bill said "Yes," which is hard
to do because I stand behind Bill. That's
his responsibility.
So I said, "O.K., so let's
at least go over and try to talk it out." Bill
got in the car.
Louis got in the car in front
of the office. Bill was kind of being quiet, and
it's real hard to start a conversation, and Louis
really got upset as far as I'm concerned, just
went totally -- he told one specific thing
I remember definitely. He said, "Bill doesn't
care how many men are killed out here as long
as we get production." Well, that pissed me
off because I know Bill cares about somebody}s
life, but he said he doesn't care if a man gets
killed every day as long as we have production,
and I said, "Louis, I know better than that,"
and as the-conversation went on and on, Louis
got hotter than hell, and I started getting
made, and I said, "O.K., that's all. Forget
it. You are gone," and that is the last I can
remember.

1202

Mr. Stanley stated that at the time of the discharge
the question of Mr. Henderson calling MSHA never came up,
and that Mr. Feathers said nothing about Mr. Henderson being
"a troublemaker." As a matter of fact, Mr. Henderson stated
that he had no problems with Mr. Henderson in the past and
that he heard through hearsay that Mr. Feathers had in the
past talked him out of quitting his job because others were
"needling" him about working overtime. Mr. Stanley stated
further that he never "punished" Mr. Henderson by requiring
him to work extra hours, and he indicated that Mr. Henderson
liked extra hours and "worked all the hours he could get"
(Tr. 17 5) •
On cross-examination, Mr. Stanley denied that Mr. Henderson
told him that Mr. Feathers "grabbed him" or "started to hit
him" (Tr. 176). He confirmed that Mr. Henderson worked at
the quarry for about a year, and that matter concerning
Mr. Feathers' talking him out of quitting occurred six to
eight months into his employment (Tr. 176).
In response to bench questions, Mr. Stanley confirmed
that he went to the area where the ceiling fell with the
MSHA inspectors after Mr. Henderson called them, and that
the area had already been shot and was "gone" (Tr. 177).
He confirmed that the inspectors looked at the ceiling conditions
of the entire mine in the areas where the ceiling is left
after the shots are fired, and they inspected approximately
12 headings. Mr. Stanley suspected that Mr. Henderson was
concerned generally about all of these ceiling conditions,
and he stated further as follows (Tr. 179-181):
JUDGE KOUTRAS: All right. Now, what did
the inspectors have to say about the
conditions that they viewed, the general
THE WITNESS: They said if it hangs back
10 foot, it's pretty bad even though you
can get a bucket up there and you can lift.
I have seen them lift the whole machine
off the ground trying to pull it down;
and there's two other things we can do.
We can drill our top holes a little closer
to the ceiling, and then it will break
back. On half the shots, you may get a
ledge only this far.
You may get a foot.
Some of them cling straight back to the
face; but on ones that hang back, they said
you have just got to try and make sure
everybody tries harder to get it done the
best they can; and when Louis comes up
there to check with a bar and let somebody
know if he doesn't feel it is safe, is
their opinion.

1203

JUDGE KOUTRAS: So, theoretically, is it
your position that if none of this was done
to your satisfaction, he would consider
any roof area in that mine to be unsafe and
he would probably refuse to work any place,
or is that being unfair?
THE WITNESS: I don't know his frame of mind
at the time.
I'm sure that day he was nervous.
He didn't want to go anywhere in the mine.
JUDGE KOUTRAS:
If half a header fell, I can
understand his being a little nervous about
that. You probably should have given him the·
rest of the day off or something, but what I
am trying to understand is the facts of this case.
Now, let me ask you this. At that point in time,
was your mine operating under a particular written
plan for the scaling of walls, or do you simply
ref er to the mandatory standards?
THE WITNESS:

The standards, but our own standards.

JUDGE KOUTRAS:

Your own procedures as testified?

THE WITNESS: The man that is on the loader has
beein in limestone mines for 40 years, and he is
kind of an old hand on ceilings. He is the first
one in the room; and when he says it is unsafe
or it needs picking, we kind of use him for a guide.
I have been in mines for 20 years. He is kind of
the old salt of the mines, and then the driller
has been there a long time; and then after those
two get through with it, we consider it safe -I do unless someone comes around and tells us.
JUDGE KOUTRAS: Who is the person responsible
for making the examination required under the
mandatory standard?
THE WITNESS:

Bill, Mr. Feathers.

JUDGE KOUTRAS: What is your track record, have
you ever had any fatalities or accidents at that
mine involvinq roof falls?
THE WITNESS: No fatalities. We had a rock fall.
A guy skinned his arm one time off to the side.

1204

JUDGE KOUTRAS: Have you ever had any citations
issued to you for violations of mandatory
standards dealing with underground ground support
as found in Part 57 of the Regulations?
THE WITNESS:

No.

JUDGE KOUTRAS: Did any citations or violations
result of MSHA's, Mr. McGee's, visit to your mine?
THE WITNESS:

No, as far as I know, no.

When called in rebuttal, Mr. Henderson stated that
he had a good working relationship with Mr. Stanley. He also
indicated that he had a similar good relationship with Mr. Feathers
"until the time I turned him in to MSHA" (Tr. 136). When asked
to elaborate, he explained as follows (Tr. 126-127):
Q. Now, what do you mean, real good, did
you get along well?

A. Got along with him just fine as far as
I don't know -- no hassles or anything like that,
no arguments really.
Q. And what change did you notice in your
relationship with Mr. Feathers after you made
your complaint?

A. Just some sarcastic -- short with me all the
time, stuff like that.
Q. That's what you were describing earlier about
the incident?

A.

Right.

MR. NELSON:

Thank you.

CROSS-EXAMINATION
BY MR. REILLY:
Q.
Can you recall what sarcasism Mr. Feathers
expressed to you on any given occasion between
November 18 and November 26 of 1982?

A. Not any outright hostility or anything like
that.
Q. Can you recall any instance when he was short
with you, can you tell the Court a specific instance
when he was short with you between November 18
and November 26, 1982?

1205

A.

Not a specific instance, no.

MR. REILLY:

No other questions.

JUDGE KOUTRAS: Mr. Henderson, you said up until
the time you turned him in to MSHA. Now, when you
called the MSHA inspectors, you just wanted them
to come out to examine the workplace, right?
THE WITNESS:

Right.

JUDGE KOUTRAS: How did that translate to turning
him in, did you mean by that since he was in charge
of the mine as the superintendent there, that he
was responsible?
THE WITNESS: Well, I didn't mean it to sound like
I was turning him in.
I just wanted somebody to
come out and look at the mine.
JUDGE KOUTRAS: When you called the MSHA people,
did you mention Mr. Feathers' name?
THE WITNESS:

I don't think I did.

JUDGE KOUTRAS: You just wanted the inspectors to
come out to look at the scene?
THE WITNESS:

Right.

On the evening prior to the scheduled start of the hearing,
it was called to my attention that complainant's counsel had
"requested" the appearance of two MSHA inspectors for testimony
at the hearing. Although no subpoenas had issued for their
appearance, they appeared voluntarily at the hearing, and were
accompanied by a representative from the Labor Department's
Kansas City Regional Solicitor's Office (Tr. 110). Since this
is a "private" discrimination matter, the Solicitor's representative was prepared to interpose an objection to the service of
the subpoenas on the inspectors in question in accordance with
the applicable Departmental policy.
By agreement and stipulation of the parties, the inspectors
were not called to testify and they were excused (Tr. 110).
Complainant's counsel stated the following terms of the stipulation in lieu of the in-specters' testimony (Tr. 108-109):

1206

The two inspectors are Dean William and Lloyd
Caldwell, and I would expect them to testify that
they were notified of this problem Mr. Henderson
has described at the mine, and they went out to
inspect the mine. They observed a condition at
the point where Mr. Henderson said that he refused
to work where the seam had been scaled down to
six to eight feet from the face.
They considered
that any problem that had existed had been solved
by that scaling down. However, they did make
recommendations that the seams routinely be
scaled down after the blast or that a protective
shield of some kind be constructed for the vehicle
and for Mr. Henderson's safety.
They would also _testify that they did consider
this particular seam to be potentially dangerous
after blasting although they didn't observe it
other than in the scaled-down condition it was in
when they arrived.
They would further testify that it is the duty
of the miner to inspect and that if the miner, after
inspecting considers a condition to be hazardous or
dangerous, that it is then the responsibility of the
owners or supervisors to see that the condition is
corrected before the miner goes underneath it, and I
think we can get the citations for that from the
Federal Register.
Respondent's counsel pointed out part of the stipulation
should include the fact that when the MSHA inspector's came to
mine in response to Mr. Henderson's request, they issued no
citations for violations of any mandatory safety or health
standards, and found no condition which was in any way hazardous
to Mr. Henderson's health (Tr. 110) •
. Findings and Conclusions
The complainant alleges that his discharge was discriminatory in that it was in retaliation for his complaining to MSHA
inspectors about certain mine conditions which he believed
were hazardous.
In his posthearing brief, complainant's counsel
states that he is also claiming that Mr. Henderson's discharge
was in retaliation for exercising his right to reasonably refuse
work under conditions he considers "eminently dangerous."
Further, although Mr. Henderson's original complaint made no
mention of any harassment by mine management, he raised this
issue during the course of the hearing. Finally, Mr. Henderson
argues that prior to his discharge no one else was terminated
for misuse of equipment. At page seven of his brief,
Mr. Henderson's counsel asserts that "the record abounds with
evidence of misuse of equipment by other employees."

120~7

Alleged Harassment ·and :Intimidation
I find nothing in the record to support Mr. Henderson's
assertion that Mr. Feathers harassed or intimidated him because
of his exercise of any protected safety rights. Mr. Henderson
could cite no specific instances of hostility or intimidation,
and he simply concluded that Mr. Feathers accused him of "making
waves" and "causing trouble."
Mr. Henderson asserted that Mr. Feathers retaliated against
him for complaining to MSHA, and he inferred that this took the
form of requiring him to work overtime. However, Mr. Henderson
could not substantiate this claim, and I conclude and find that
the record here does not support any such conclusions.
I conclude and find that any "hostility" shown by
Mr. Feathers towards Mr. Henderson resulted from their encounter
over the low air pressure in the compressor tire, as well as
their obvious dislike for each other stemming from that incident,
as well as Mr. Henderson's "opinions" concerning Mr. Feathers'
supervisory talents as related to Mr. Stanley during their
conversation after the discharge. After viewing the witnesses
during the hearing, I find Mr. Feathers' account of the incident
over the tire to be credible and believable, and I believe that
he was provoked by Mr. Henderson's conduct, and reacted accordingly. Further, I take note of the fact that Mr. Henderson is
much younger and physically larger than Mr. Feathers, and that
after considering their testimony and viewing them on the stand,
I simply do not believe Mr. Henderson's assertion that
Mr. Feathers was the aggressor during their encounter over the
tire incident.
With regard to any intimidation or harassment against
Mr. Henderson by the quarry operator (Stanley), for safety
reasons, there is absolutely no evidence to suggest this was
the case. To the contrary, while it is true that Mr. Stanley
ultimately discharged Mr. Henderson, the record shows that
Mr. Henderson was tolerant and charitable towards Mr. Henderson,
and even suggested that he and Mr. Feathers attempt to reconcile
their differences, and Mr. Stanley attempted to mediate their
differences. However, based on Mr. Stanley's testimony, which
I find credible and believable, Mr. Henderson became argumentative, and after questioning Mr. Feather's supervisory abilities,
Mr. Stanley supported Mr. Feather's version as to why he proposed
to discharged Mr. Henderson, and Mr. Stanley finalized the action
by firing Mr. Henderson.

120-8

Alleged Work Refu:sa:l for Saf·ety Reasons
Mr. Henderson testified as to two rock falls which occurred
in his work area. The first occurred sometime in October 1982,
when a rock ledge formation remained on the ceiling after he
had finished blasting the area. After returning to the area
after his lunch break, he found some slabs of rock lying around
his truck. The rock did not damage his truck, and he estimated
that the last five feet of the seam which was some 12 feet outby
the face, had fallen.
Mr. Henderson testified that the second rock fall occurred
sometime between November 12 to 15, 1982. After loading on
half of the heading, he withdrew for a distance of 10 yards,
and while preparing to set off the shot some thirty seconds
later, the roof which he had loaded fell.
Mr. Henderson conceded that at no time did anyone ever
direct or order him to work under any conditions which he
believed were unsafe. As a matter of fact, when the first
fall occurred, Mr. Henderson admitted that he did not tell
Mr. Feathers or Mr. Stanley about it. When the second fall
occurred, he testified that he told Mr. Stanley about it, and
Mr. Stanley advised him not to go under any roof~ seams which
he believed were dangerous. Mr. Henderson also indicated that
Mr. Feathers came to the area to look it over, and that
Mr. Feathers provided him with a bar to test the roof. He also
indicated that Mr. Feathers instructed him that he was to test
the roof with the bar from that point on. Mr. Henderson also
confirmed that after both he and Mr. Feathers tested the second
half of the shot area and found it to be safe, Mr. Henderson
loaded it, shot it down, and then went home.
Mr. Henderson stated that the day after the second fall
occurred, he returned to work but refused to go under another
heading because, upon visual observation, he did not believe
that any attempts had been made to scale the roof. He tested
it himself with a pry bar, and after "pecking around a bit"
with the bar from a bucket, he found that the roof was tight,
but he still refused to go under it because he was afraid that
it might fall.
At that point in time, Mr. Henderson claims
Mr. Feathers became "irate." However, Mr. Henderson conceded
that Mr. Feathers did not instruct him to go under the roof,
and Mr. Henderson claims he then telephoned MSHA Inspector McGee
the afternoon or evening ·after he returned to work to advise
him about his refusal to go under the roof and to ask him to
send an inspector to the mine to "look at the situation."

1209

Mr. Henderson asserted that two inspectors came to the mine,
but that he did not go with them to the area which concerned him,
and he claims that the inspectors met with Mr. Stanley, and told
him {Henderson) that his complaint was justified and that there
was a "potential hazard there." However, Mr. Henderson also
stated that the inspectors told him that he and the foreman had
a joint responsibility to see to it that the working place was
safe.
Mr. Henderson's counsel stipulated that after the MSHA
inspectors came to the mine and inspected the area which concerned Mr. Henderson, the inspectors were of the opinion that
any concern on Mr. Henderson's part had been resolved by the
scaling of the area. As a matter of fact, the stipulation
suggests that at the time the inspectors looked at the area
which concerned Mr. Henderson, the area had been scaled down
and the inspectors had no basis for making any determination as
to whether the area was in fact hazardous.
This probably
explains why no citations or violations were ever issued by the
inspectors.
When asked about his prior statement in his complaint that
Mr. Feathers attempted to scale down the ceiling which he
complained about, Mr. Henderson at first claimed that he could
not remember making such a statement. He then acknowledged that
he did make the statement, and he also admitted that the ceiling
in question was the same one which he initially refused to work
under.
Mr. Henderson conceded that when he first informed
Mr. Stanley about his safety concern with respect to his working
in any areas of the mine which he believed were not safe,
Mr. Stanley advised him not to work in any such areas.
Mr. Henderson also confirmed that Mr. Stanley told him that he
would never question his decision in this regard, and even
offered to go with him to inspect any areas of the mine which
he {Henderson) believed were hazardous.
With regard to Mr. Feathers, Mr. Henderson conceded that
Mr. Feathers agreed to inspect the areas which he {Henderson)
believed were hazardous, and both Mr. Feathers and Mr. Stanley
inspected these areas, tested them with a bar, and found that
they were "tight" and safe. As a matter of fact, Mr. Henderson
himself tested the areas with a bar and found that they were
tight.
It would appear to me that Mr. Henderson's concern for
the stability of the ceiling stemmed from the fact that since
part of a ceiling fell near his work area in the past, he was
concerned that it might fall again. However, on the facts of
this case, I conclude and find that this concern on his part
was unreasonable.

1210

Mr. Henderson confirmed that prior to November 1982, he had
loaded 50 to 100 shots, but did not always test the roof because
he did not have time. He acknowledged that testing the roof was
part of his responsibility, and he admitted that if he tested
the roof and found it not to be sound he would still take a
chance and go under it.
Refusal to perform work is protected under section lOS(c) (1)
if it results from a good faith belief that to go ahead with the
assigned work would expose the miner to a safety hazard, and if
the belief is a reasonable one. Secretary ·of Labor, ex rel.
Pasula v. Consol:idation Coal Co., 2 FMSHRC 2786, 2 BNA MSHC 1001
(October 1980), rev'd on other grounds, sub nom Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir:-1981); Secretary of
Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 302,
2 BNA MSHC 1213 (April 1981}; Bradley v. Belva Coal Co., 4 FMSHRC
982 (June 1982). Further, the reason for the work refusal must
be communicated to the mine operator. Secretary of Labor ex rel.
Dunmire and Estle v. Northern Coal Co., 4 FMSHRC 126 (February
1982).
On the facts of the instant case, there is absolutely no
credible evidence to even suggest that Mr. Henderson's discharge
was in any way connected with his alleged refusal to perform
work which he believed was hazardous. Prior to the hearing in
this case, Mr. Henderson never directly asserted that his "work
refusal" motivated his discharge, and his counsel raised this
issue during and after the hearing. Even if I were to conclude
that Mr. Henderson's claim in this regard was a viable one, I
would still reject it.
While it is true that Mr. Henderson's refusal to work under
conditions which he believes to be hazardous is protected
activity, the refusal must be reasonable.
In this case, it
appears to me that Mr. Henderson wanted mine management to
guarantee that a mined-out roof would never fall, regardless of
the area of the mine where Mr. Henderson happened to be at any
given time.
I find Mr. Henderson's position in this regard to
be unreasonable, and for the reasons which follow, I conclude
that the respondent promptly addressed Mr. Henderson's safety
concerns, and did all that was reasonable to accomodate him.
Based on the credible testimony and evidence adduced in
this case, Mr. Henderson's perceived safety concerns were
immediately addressed by mine management, and management did
everthing reasonably possible to insure that Mr. Henderson had
a safe working environment. The particular area which concerned
Mr. Henderson was inspected and scaled by mine management, and
Mr. Henderson was provided with a scaling bar and detailed

1211

instructions as to the procedures which he was to follow to
insure that the roof was sound. Mine management never
instructed Mr. Henderson to work in any hazardous areas, and
the mine operator himself (Stanley) instructed Mr. Henderson
to withdraw from any areas which he believed were hazardous.
Further, by his own admissions, Mr. Henderson, on many
ocassions, often took chances in working under roof conditions
which were less than desirable, and he never complained or
brought these conditions to the attention of his supervisors.
Under the circumstances, Mr. Henderson's assertions that his
discharge was out of retaliation for his refusal to work under
dangerous conditions are without foundation, and they are
rejected. I conclude and find that on the facts of this case,
Mr. Henderson's asserted refusal to work for safety reasons was
unreasonable, and therefore not protected activity.
Mr. Henderson's Safety Complaints and the Alleged Retaliation
for those complaints
It is clear that a miner has an absolute right to make
safety complaints about mine conditions which he believes
present a hazard to his health or well-being, and that under
the Act, these complaints are protected activities which may
not be the motivation by mine management for any adverse
personnel action against an employee; Secretary of Labor ex rel.
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980),
rev 1 d on other grounds sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d 1211 (3rd Cir."198I'); and Secretary of Labor ex rel.
Robinette v. United Castle Coal· Co., 3 FMSHRC 803 (April 1981).
In order to establish a prima f acie case a miner must prove by
a preponderance of the evidence that:
(1) he engaged in protected activity, and (2} the adverse action was motivated in any
part by the protected activity. Further, the miner's safety
complaints must be made with reasonable promptness and in good
faith, and be.communicated to mine management, MSHA ex rel.
Michael J. Dunmire· a:nd James Estle v. Northern Coal Company,
4 FMSHRC 126 (1982).
As indicated above, Mr. Henderson's complaints about certain
working conditions which he believed were hazardous were
promptly and properly addressed by mine management. Further,
under the facts of this case, I cannot conclude or find that
Mr. Henderson's complaints or fears of perceived hazards were
reasonable. While it is true that there were two rock falls in
and about his work area, he failed to bring the first one to
anyone's attention until well after the fact. As for the second
one, once called to mine management's attention, the problems
were immediately addressed.

1212

With regard to Mr. Henderson's calling the MSHA inspector's
to the mine~ once there, they inspected the area and found that
any loose rock had been scaled. While it is true that the
inspectors may have made certain recommendations, the fact is
that no citations or violations were issued, and there is no
credible evidence that mine management disregarded MSHA's
suggestions or attempted to avoid corrective action. As for
any suggestion that Mr. Feathers or Mr. Stanley retaliated
against Mr. Henderson for summoning the inspectors, I find
absolutely no evidence of record, either direct, or indirect,
to support any such conclusion or finding.
Accordingly,
Mr. Henderson's assertions in this regard are rejected.
Alleged Disparate Trea:tment
At page seven of his posthearing brief, Mr. Henderson's
counsel states that "no one was previously terminated from the
mine for misuse of equipment, despite the fact that the record
abounds with evidence of misuse of equipment by other employees."
However, counsel fails to cite any such evidence as part of his
arguments, nor has he cited any references to the record to
support his conclusions. Counsel simply asserts that "the
attitude of Mr. Feathers regarding Mr. Henderson's complaint,
Mr. Feathers' attitude at the time of termination, and the
relationship in time between the refusal to work and termination
establish complainant's burden of proof that he was discharged
in violation of 30 u.s.c. § 815 (c) (1)."
Mr. Henderson alluded to an accident involving a Mr. Acock
in which he struck a dump truck with his pick-up truck while
driving too fast, and he indicated that Mr. Acock was not
terminated (Tr. 57). Mr. Henderson also mentioned that he had
observed trucks "hot".""rodded around," and indicated that he was
not aware of anyone being fired for misuse of equipment (Tr. 58).
However, Mr. Henderson conceded that he has heard supervisors
speak to other employees for this conduct, and he admitted that
he had previously been verbally warned by Mr. Feathers about
driving too fast (Tr. 59).
Although mechanic Steve Folsom testified that in the
5 years he has worked for the respondent few employees have been
fired, he did indicate that "most of them quit." However, he
did indicate that a truck driver named "Tracy" was dismissed for
"tearing up the transmission" (Tr. 117).
Terry Acock, formerly employed by the respondent as a
driller, testified about the accident referred to by
Mr. Henderson. Mr. Acock indicated that he did not intentionally
run into the truck in question, and that it was an "accident."

1213

He confirmed that Mr. Feathers accused him and the other driver
of speeding,. but that he was not fired over that incident.
Mr. Acock confirmed further that he was subsequently discharged
by the respondent, but for reasons unrelated to the accident in
question (Tr. 123).
Mr. Feathers explained the circumstances surrounding the
accident involving Mr. Acock. He stated that Mr. Acock did not
intentionally wreck the truck, and that he apologized for the
incident and did not curse him or abuse him.
Under these
circumstances, he did not believe that the facts surrounding
the Acock accident were the same as those which prevailed when
Mr. Henderson deliberately operated his compressor truck with
low tire air pressure (Tr. 152).
Aside from the accident involving Mr. Acock, Mr. Henderson
was unable to document any instances of disparate treatment.
To the contrary, the record here suggests that at least one
employee was discharged for damaging a truck transmission, and
that others, including Mr. Henderson, were verbally warned and
cautioned by Mr. Feathers about speeding and other such
incidents. Given the fact that the respondent's quarry operation is a small, non-union operation, the fact that the
respondent has not generally fired many employees is not
critical. As confirmed by Mr. Folsom, employees usually quit
rather than being fired, and since Mr. Henderson has the burden
of proof here, it was incumbent on him to establish any disparate
treatment by a preponderance of credible evidence. This he has
not done. Accordingly, his arguments in this regard are rejected.
Conclusion and Order
In view of the foregoing findings and conclusions, and
after careful consideration of all of the evidence and testimony
adduced in this case, I conclude and find that the complainant
here has failed to establish a prima f acie case of discrimination
on the part of the respondent. Accordingly, the complaint IS
DISMISSED, and the complainant's claims for relief are DENIED •

~
~~
/~I
ii.
~
" i(;'tfc[-:11A. ouEras
7

,.. ///}

Administrative Law Judge
Distribution:
Kenneth J. Reilly, Esq., Beddington & Brown, Security National
Bank Building, Minnesota Avenue at 7th Street, Suite 100,
Kansas City, KS 66101 (Certified Mail)
Bryan E. Nelson, Esq., Alder, Nelson & McKenna, Suite 301,
825 North Seventh Street, Kansas City, KS 66101 (Certified Mail)
/slk/fb

1214

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

MAY 8 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 83-196
A.C. No~ 15-10364-03501-A5A
Preparation Plant

EDDIE HIGGS, d/b/a HIGGS
TRUCKING COMPANY,
Respondent

.

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Byron W. Terry, Safety Director, Higgs Trucking
Company, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
This case is submitted for decision on a stipulated set
of facts and certain exhibits. There is no dispute as to the
essential facts. Both parties have filed written arguments
on the applicable law. Based on the record including the
stipulations and exhibits, and considering the contentions of
the parties, I make the following decision.
FINDINGS OF FACT
Teddy D. Higgs and James E. Higgs (apparently also known
as Eddie Higgs), his brother, were partners i~ a company known
as the Higgs Trucking Company. The Higgs Trucking Company was
an independent contractor doing coal haulage for Golden R. Coal
Company, Inc. On October 8, 1982, Teddy Higgs was told to
drive the company truck to Golden R. Coal Company and haul coal
from the mine to the preparation plant. Teddy Higgs did as he
was instructed and dumped his load of -coal at the preparation
plant at about 8:55 a.m. He then moved the truck and raised the
truck bed in order to grease the rear universal joint. While
lying across the truck frame he apparently contacted the control
cable which released the bed. The bed crushed Teddy Higgs
against the frame injuring him fatally.

1215

Following an investigation, MSHA issued a citation charging
Higgs Trucking Company with a violation of 30 C.F.R. § 77.404(c)
(Repairs and maintenance were performed on machinery when the
machinery was not blocked against motion) • Respondent was
assessed a penalty of $500 for the violation.
Respondent is a small operator. James E. Higgs, presently
a sole proprietor, had a gross income of $36,657 in 1982, and
of $28,000 in 1983. His net profit in 1982 was said to be
$7,000. Respondent has no history of prior violations.
ISSUES
1. Is Respondent, an independent contractor, subject to
the Act?
2.

Was the deceased partner a miner under the Act?

3. Is the Partnership liable for a civil penalty for a
violation of the Act committed by and affecting one of the
partners?
4.
If Respondent is subject to the Act and liable for the
violation, what is the appropriate penalty?
CONCLUSIONS OF LAW
1. Section 3(b) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 802(b), defines "operator" to include "any
independent contractor performing services or construction at
such mine." Section 3(g) defines a "miner" as "any individual
working in a coal or other mine." The Act thus clearly covers
Respondent's activities in hauling coal for Golden R. Coal
Company on October 8, 1982. See Secretary v. Old Ben Coal
Company, 1FMSHRC1480 (1979); Secretary v. Phillips Uranium
Corporation, 4 FMSHRC 549 (1982). Just as clearly, Teddy D.
Higgs who was fatally injured on that date was a miner. Therefore, I conclude that Respondent was responsible to observe the
mandatory safety standards and was properly cited for a violation of 30 C.F.R. § 77.404(c).
2. A civil penalty proceeding under the Mine Act is not
analogous to a civil action for wrongful death. The purpose of
imposing civil penalties for violations of safety standards is
to promote safety in the nation's mines, and penalties are
mandated for violations whether or not the mine operator was at
fault. Secretary v. Ace Drilling Coal· Company, Inc., 2 FMSHRC
790 (1980); Secretary v. Nacco Mining Company, 3 FMSHRC 848
(1981). The mine operator here was a partnership. The mine

1216

operator is liable for violations of mandatory standards and
for resultant civil .penalties. Respondent's arguments, that
truckers operating on mine sites are not required to have
hazard training and are not acquainted with MSHA regulations
are irrelevant.
3. Although Respondent argues that the imposition of a
penalty "could possibly effect his staying in business," there
is no evidence in the record to support this assertion. The
violation here was extremely serious since it resulted in a
fatal accident •. The negligence was very great, but perhaps
should not be charged to the operator. The operator is a small
operator and has no history of prior violations.
The tragic circumstances of this case make a substantial
civil penalty inappropriate, despite the seriousness of the
violation. The purpose of assessing penalties is to deter
future violations. The deterrent effect of a monetary penalty
cannot possibly add to the deterrence which resulted from a
brother's fatal accident. See Secretary v. R. F. H. Coal
Company, 5 FMSHRC 1863 (Decision Approving Settlement by
Judge Steffey 1983) •
Therefore, applying the criteria in section llO(i) of the
Act to these facts, I conclude that a civil penalty of $21 is
appropriate for the violat5 -:m.
ORDER
Based upon the above findings of fact and conclusions of
law, Citation No. 2074514 issued December 17, 1982, to
Respondent Higgs Trucking Company is AFFIRMED. Respondent is
ordered to pay within 30 days of the date of this decision the
sum of $21 as a civil penalty for the violation found herein
to have occurred.

j

c:VVl,cu.$

~Vl)df!A/l~/e._

James A. Broderick
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Mr. Byron w. Terry, Safety Director, Higgs Trucking Company,
P.O. Box 431, Beaver Dam, KY 42320 (Certified Mail)
/fb

1217

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

..

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

.

..

PYRO MINING COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. KENT 83-225
A.C. No. 15-13881-03502
Pyro No. 9 Slope
William Station

DECISION APPROVING SETTLEMENT
Before:

Judge Kennedy

By order of April 20, 1984, I denied the Secretary
motion to approve settlement of this matter in the amount
of $20.00 and offered to consider an amended motion in
the amount of $250.00. On May 4, 1984, the Secretary
renewed his motion setting forth that the parties had
now agreed to settle the matter at the amount stipulated
by the trial judge, namely, $250.
The premises considered, therefore, it is ORDERED that
the motion to approve settlement
d dismiss be, and hereby
is, GRANTED, and the captioned m t er DISMISSED.

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Pyro Mining Company, P.O. Box 267, Sturgis, KY
(Certified Mail)

/ejp

1218

42459

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

MAY 101984
CIVIL PENALTY PROCEEDINGS

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

Docket No. CENT 83-40
A.C. No. 34-01241-03501

v.

Docket No. CENT 83-51
A.C. No. 34-01241-03502

TURNER BROTHERS, INC.,
Respondent

Muskogee No. 2 Mine
Docket No. CENT 83-52
A.C. No. 34-01357-03503
Welch No. 1 Mine
Docket No. CENT 83-54
A.C. No. 34-01317-03506
Docket No. CENT 83-55
A.C. No. 34-01317-03507
Heavener No. 1 Mine
DECISIONS

Appearances:

Allen Reid Tilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Petitioner;
Robert J. Petrick, Esq., Muskogee, Oklahoma,
for ·Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed
by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety _and Health Act of 1977,
30 u.s.c. 820(a), seeking civil penalty assessments for 17
alleged violations of certain mandatory safety and health
standards promulgated pursuant to the Act. Respondent
contested the proposed assessments, and hearings were held
in Muskogee, Oklahoma. The parties waived the filing of
written posthearing proposed findings and conclusions, but
their oral arguments made on the record during the course
of the hearings have been considered by me in the these cases.

1219

Issues
The issues presented in these proceedings are (1)
whether the violations occurred as stated in the citations
issued by the MSHA inspector in question, (2) the appropriate
civil penalties to be assessed for any violations which have
been established by the preponderance of the evidence adduced
at the hearings, and (3) whether several of the citations
were in fact "significant and substantial" as alleged by
the inspector who issued them.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
P.L. 95-164, 30 u.s.c. §.801 et seq.
2.

Commission Rules, 29 CFR 2700.l et seq.
Discussion

The citations and allegations of violations in each of
these dockets follow below.
CENT 83-40
Section 104(a) Citation No. 2076868, March 21, 1983,
cites a violation of 30 CFR 77.410, and the condition or
practice cited is as follows:
The Caterpillar 777 rock haul truck,
company no. 258, hauling rock from the
004 pit to the stock pile area would not
give an automatic audible warning when
put in reverse. The warning device was
not in operating condition. Four front
end loaders, two dozers, three haul
trucks, and four persons on foot were
in the area in the pit when this truck
was being operated in reverse.
Section 104(a) Citation No. 2076869, March 21, 1983,
cites a violation of 30 CFR 77.1605(d), and the condition or
practice cited is as follows:
The Caterpillar 777 rock haul truck,
company no. 249, hauling rock from the
004-0 pit to the stock pile area was not
provided with an audible warning device
(front horn) in operating condition.
Three haul trucks, four frontend loadersj
and four persons on foot were in the area
where this truck was being operated.

1220

Section 104(a) Citation No. 2076870, March 21, 1983,
cites a violation of 30 CFR 77.1710-(i), and the condition
or practice is as follows:
The caterpillar 966 frontend loader,
company no. 314, equipped with a ROPS
operating in pit 004-0 was not equipped
with seat belts for the operator to
wear. This loader is operated up and
down an incline going in and out of the
pit where there is a danger of it
overturning.
Section 104(a) Citation No. 2076871, March 21, 1983,
cites a violation of 30 CFR 77.1109-(c) (1), and the condition
or practice is as follows:
The D-10 Caterpillar bulldozer, company
no. 818, operating at pit 004-0 was
not equipped with a portable fire
extinguisher.
CENT 83-51
Section 104(a) Citation No. 2007403, May 3, 1983, cites
a violation of 30 CFR 71.101, and the condition or practice
is as follows:
A valid respirable dust sample taken by
MSHA 4/19/83 from the operator's cab of
a Caterpillar D-10 bulldozer operating
in pit 001-1 (cassette# 40399373),
showed a respirable dust concentration
of 1.5 Mg/M3. This sample was sent to
the Pittsburgh Health Technology Center
for qu~rtz analysis 4/20/83. The results
of this analysis indicates a quartz precent
[sic] of 18%. Therefore, the operator
was not maintaining the average concentration
of respirable dust in the atmosphere
during each shift to which each miner at
this work position (Designated 001-0, 368)
is exposed at or below a concentration of
respirable dust computed by dividing the
precent [sic] of quartz into the number (10)
ten as required by section 71.101, Title 30,
CFR.

1221

CENT 83-52
Section 104(a) Citation Nos. 2076408, 2076411, and
2076412, were all issued on May 17, 1983, and each cites
a violation of 30 CFR 77.410. The conditions or practices
cited are as follows:
2076408. The Caterpillar 980-C
Frontend loader operating at Pit
001-1, cleaning coal was not equipped
with an automatic warning device
that would give an audible alarm when
such equipment was put in reverse.
No persons on foot in the area at
the time this violation was observed.
2076411. The 510-B, PM Grader operating
at Pit 001-0 cleaning coal was not
equipped with an automatic warning
device that would give an audible alarm
when such equipment was put in reverse.
No persons on foot in the area at the
time this violation was observed.
2076412. The Caterpillar 988-B Frontend loader operating at Pit 001-0 (loading
rear dump trucks) was not equipped with
an automatic warning device that would
give an audible alarm when such equipment
was put in reverse. No persons on foot
in the area at the time this violation
was observed.
Section 104(a) Citation No. 2076409, May 17, 1983, cites
a violation of 30 CFR 77.1605(d), and the condition or practice
is as follows:
The Caterpillar 980-C operating in
pit 001-0, cleaning coal was not provided with an audible warning device
(horn) in operating condition. No
persons on foot in the area at the time
this violation was observed.
Section 104(a) Citation No. 2076410, May 17, 1983, cites
a violation of 30 CFR 77.1110, and the condition or practice
is as follows:
·
The fire extinguisher on the 510-B PM
Grader operating at Pit 001-0 cleaning

1222

coal was not being maintained in a
useable and operating condition in that
the guage on the fire extinguisher showed
the fire extinguisher to be discharged.
Three other fire extinguishers in the area
at the time this violation was observed.
CENT 83-54
Section 104(a) Citation No. 2007402, March 15, 1983,
cites a violation of 30 CFR 71.100, and the condition or
practice is as follows:
The results of (3) valid respirable
dust samples taken by MSHA 3/08, 09,
10/83 from the operator's cab of the
Reed SK35 Drill at Pit 001 show the average
concentration of respirable dust as
3.7 Mg/M3.
Therefore the operator is not
maintaining the average concentration of
respirable dust in the atmosphere during
each shift to which each miner at this
work position (Designated 002-0, 384)
is exposed at or below the allowable
limit of 2.0 Mg/M3. The Reed SK35 Drill,
serial number 1061193 is one of (2) two
drills working at Pit 001 at the time
these samples were collected.
The inspector modified the citation on March 23, 1983,
and the justification for this action states as follows:
The results of a respirable dust sample
collected by MSHA 3/10/83 from designated
work position 002-0, 384 and forwarded
to Pittsburgh Health Technology Center for
quartz analysis show a quartz percent of
33 percent. Therefore, citation number
2007402 issued 3/15/83 is modified to show
the respirable dust standard as 0.3 Mg/M3.
On March 28, 1983, the inspector extended the original
abatement time from March 25, 1983, to April 5, 1983, and
the justification for this action states as follows:
The mine operator removed the Reed SK35
highwall drill, serial # 1061193
{Dwp 002-0, 384) from service and replaced
this drill with a Reed SK35, serial #
1061206 that is equipped with an air

1223

conditioned pressurized cab. Therefore,
more time is granted to allow the operator
to collect the five (5) samples required
by section 71.20l(d).
On April 11, 1983, the inspector again extended the
abatement time, to May 11, 1983, and the justification for
this action states as follows:
The Heavener Mine No. 1, I.D. # 34-01317,
was placed in a "B" nonproducing status
April 1, 1983. Therefore, citation #
2007402 is further extended to allow
production to resume before respirable
dust samples required by section 71.20l(d),
Title 30 CFR can be collected by the
operator.
On April 11, 1983, the inspector modified the original
citation as follows:
Citation Number 2007402 issued 3/15/83
is hereby modified to show the part/
section Title 30 CFR as 71.101 (respirable
dust standard when quartz is present).
On May 18, 1983, the inspector issued a section 104(b),
order of withdrawal (2007405) affecting the Reed SK35
highwall drill at pit 001, and the condition or practice
justifying this order is shown as follows:
The results of the five (5) respirable
dust samples taken by the operator to
comply with the requirements of section
71.20l(d), Title 30 CFR indicated an
average concentration of 1.6 Mg/M 3 •
Due to ineffective efforts by the operator
to control respirable dust in the atmosphere
of designated work positions 002-0,
384 at or below the allowable limit of
0.3 Mg/M3. Citation Number 2007402 is not
extended.
On May 18, 1983, the inspector modified the section 104(b)
order, and on June 1, 1983, he terminated it after compliance
with the applicable respirable dust standards.

1224

CENT 83-55
All of the citations issued in this case are section
104(a) citations served on the respondent on June 6, 1983.
Citation No. 2076969, cites a violation of 30 CFR
77.1605(d), and the condition or practice is as follows:
The caterpillar rock truck, company no.
912 being operated at Pit 001-0 was not
provided with an audible warning device
(front horn) in operating condition.
This truck was hauling top soil and
other equipment was being operated in
the area. One rock truck, two frontend loaders,·and one road grader.
Citation No. 2076970 cites a violation of 30 CFR 77.1110,
and the condition or practice is as follows:
The 96 caterpillar bulldozer being
operated at Pit 001-0 was not provided
with a fire extinguisher maintained in a
usable and operative condition. The
fire extinguisher on this dozer was
equipped with a guage that showed the
extinguisher to be discharged.
Citation No. 2076971, cites a violation of 30 CFR 77.410,
and the condition or practice is as follows:
The caterpillar 14G road grader being
operated on the haul roads at the
001-0 pit was not equipped with an
automatic warning device that will give
an audible warning when the road grader
was put in reverse. The warning
device ·was not in operating condition.
Citation No. 2076972 cites a violation of 30 CFR 77.208(e),
and the condition or practice is as follows:
The valves on two compressed gas
cylinders, one oxygen and one acetylene,
were not protected by covers. The
cylinders were located on a portable
welding machine near pit 001-0. Two
mechanics were working in this area.

1225

Citation No. 2076973 cites a violation of 30 CFR 77.410,
and the condition or practice is as follows:
The 988 caterpillar front end loader
being operated loading coal into trucks
in the 001-0 pit was not equipped with
an automatic warning device in operating
condition that would give an audible
warning when the loader was pit in
reverse. Three persons were on foot
working in the pit where the loader was
being ·operated.
Citation No. 2076978 cites a violation of 30 CFR 77.1605(b),
and the condition or practice is as follows:
The international coal haulage truck
operating at pit 001-0 was not equipped
with a parking brake in operating condition
in that when the parking brake was set on
a small incline going into the pit it would
not hold the truck.
Testimony and Evidence Adduced by the Parties
CENT 83-40
Citation 2066868, 30 CFR 77.410 (Tr. 12-19).
Inspector Donalee Boatright cited a Caterpillar 777 rock haul
truck after he asked the driver to back it up and heard no
backup alarm sound. A horn was on the truck, but it was
inoperative, and he believed that a wire was loose. The
truck was taken out of service, and the device was repaired.
Mr. Boatright stated that he issued the citation at
9:30 a.m., and that the shift started at 7:00 a.m. He
indicated that the alarm in question could have been working
at the beginning of the shift, and it also could have been
checked at the beginning of the shift. A simple two or three
minute test is all that is required to test the alarm, and
he conceded that wires can come loose or that normal wear
and tear may render them inoperable.
Mr. Boatright described the pit where the truck was
at as approximately 140 feet wide. He stated that when the
truck is loading rock there are two loaders loading it and
the truck back up to where the loaders are positioned for
loading.
In addition, in another part of the pit "over from
where the trucks were loading, they were taking out coal."

1226

Mr. Boatright stated that if the truck ran over someone, a fatality would occur, and if it struck someone
" a glancing blow," lost workdays or restricted duties
would result.
He indicated that at the time of the citation,
there were three or four front end loaders working four
persons were on foot in the area, and two dozers were in the
area. At times, the people operating the equipment would
get off the equipment and would also be exposed to a hazard.
He indicated that all of this equipment was working "more
or less in the same area."
On cross-examination, Inspector Boatright described the
parameters of the pit area and ramp where the truck in question
would travel, and he described the pit as approximately 100
to 140 wide and 250 feet long (Tr. 23). He stated that the
truck was hauling material out of the pit and traveling to
a stockpile which encompassed a total trip area of some 2,000
to 2,500 feet (Tr. 24).
He described the travel route of the
truck and indicated on a sketch (exhibit R-2), where the truck
would have traveled. He confirmed that the truck would travel
into the pit area, go by the coal stockpile in a forward
direction until it reached the face, and would then back into
the area where two loaders would be waiting to load (Tr. 27).
He also indicated that on the day he issued the citation, there
were people on foot in the area where the truck was in reverse,
and that they were "cleaning coal and-taking coal down there"
(Tr. 28) •
Mr. Boatright further explained where the truck was
operating, as follows (Tr. 29):
JUDGE KOUTRAS: No, no. Mr. Inspector,
I think the point Mr. Petrick is trying
to make is that you've indicated on here
on the face of your citation is that
there were four people on foot, and you've
marked this violation as significant and
substantial. Now what he's trying to
determine is whether or not the people
that you've described as being on foot were
really exposed to this truck backing over
them.
In other words, were they in the
immediate vicinity of the truck at the time
that the truck would normally go into
reverse?
THE WITNESS: At the time I saw them,
they weren't directly behind the
truck, no, sir, but they were in the pit
area.

1227

JUDGE KOUTRAS: But they were in the
pit area. All right.
THE WITNESS:
JUDGE KOUTRAS:

Yes, sir.
All right, that's fine.

Q.
(By Mr. Petrick). But the truck you're
talking about -- the triple seven truck was
loading spoil, shale; was it not -A.

Yes, sir.

Q.
rock? Okay. And the coal that they
were working on was cleaned and ready for
processing taken out and being cleaned;
was it not?
A.

They were cleaning and loading it.

Q. Okay. And what was the distance between
the time the area where the loaders were loading
this triple seven truck and the coal area where
they were cleaning?
A. I did not measure that.
the distance.

Q.

Do you have a guess?

I did not measure

100 feet, 200 feet?

A. No, it wasn't. I would say not more
than 7,500 feet. But it was all in the pit
area right here (indicating).

Q. Okay. But my scenario so far as driving
by the coal pad area is that they were always
in the forward gear. They did not go into
reverse until they got by the coal pad, the coal
area.
A.

That's probably right.

*

*

*

Q.
(By Mr. Petrick). Now, Mr. Boatright, right
before you inspected this truck, did you watch
the operation for any length of time?
A. I had probably been an hour and a half or
so I guess, I don't know.

1228

Q. And during that period of time -- well
let.me ask you this way: Wasn't there two
992's in the pit taking rock at that
particular ~ime?
·
A.

I believe there was.

Q. And the tandem that the truck is working
in, there's three triple seven trucks. One
pulls in and gets loaded and goes on its way
to unload the thing. And then the second
one comes in, backs in, gets its load, goes
on. The third one backs in, gets loaded,
and it goes on. By that time the first one
has dumped and comes back, so you're running
it in a cycle; is that not correct?
A.

Yes, sir, they run in a cycle.

Q. Now in addition to that, in the pit
area there is a grader that takes care of the
road, there's a water haul truck that takes
care of -- taking care of the dust and that
type of stuff on the road. Were they in the
area? Did you observe them?
A. Seemed like I saw a road grader, but I
don't recall the water truck.
Q. Okay. Now also on the coal scene where
these four men were working in the area, the
most immediate piece of equipment to those
four men was a 966 or 980 loader; was it not?
A.
I believe they was using a 966 loader cleaning
the coal.
Q. And it had a back-up horn, it was running
back and forth all over the place right next
to those men; wasn't it?
A.
It was running back and forth cleaning up
coal, yes, sir.
Q. Okay. And it had a back-up horn and the
back-up horn was soundinq?
A.

Yes, sir.

Q. The back-up horns on the two 992's were
sounding, weren't they?

1229

A.

As far as I recall they were, yes, sir.

Q. And the same with the grader when it was
backing up, wasn't it? What I'm driving at,
Mr. Boatright, is that at any given period
of time in that pit is it not a fact that
all of the other back-up horns were going?
A. Yes, sir. I think that was the only
violation of a back-up horn I found.

Q. And what I'm saying is in the immediate
proximity the back-up horn is going all the
time on one of those pieces of equipment.
So, so far as your gravity of being reasonably
likely that somebody's going to get run over due
to the result of this back-up horn not working,
that's not really true. Because there's other
back-up horns alerting people all the time in
that pit in that area?
A. For the particular piece of equipment that
it's on it's alerting, but not for the one that
it's not operating on.

Q. Well the two 992's are right next to the
triple seven truck, aren't they?
A. When a triple seven truck backs under them
they are, yes, sir.

Q. And were the back-up horns different so
far as sound is concerned, so that you can tell
whether you've got a 992 corning at you or a
triple seven truck?
A.

I wouldn't say the sound was different.

Citation 2076869, 30 CFR 77.1605(d)

(Tr. 39-44).

Inspector Boatright confirmed that he issued this citation
on another Caterpillar 777 rock haul truck at approximately
9:45 a.rn. after finding that the front horn was inoperative.
He believed that the problem was caused by a loose wire~
and the horn was repaired by 11:00 a.rn. This citation was
at the same location and area of the previous one (2076868).
Mr. Boatright stated that the purpose of the horn is to
warn people and other equipment in the area, and that at

1230

the time the citation issued, employees were on the ground,
but he observed no "near misses," and observed no one
actually in the path of the truck. However, in his opinion,
the people and equipment previously testified to "could get
in the path of this truck." He also believed the probability
of an injury occurring in this area would be greater because
of all of the equipment operating there.
Mr. Boatright stated that simply pushing the horn
button would indicate whether the horn was working. He
described the truck as being otherwise "in good shape,"
and that a foreman was in the pit area.
On cross-examination, Mr. Boatright indicated that
the truck would not drive over the coal which was being
cleaned up out of the pit, and he confirmed that when the
trucks are loaded they would not go faster than five miles
an hour at the ramp. However, he did not know how fast they
would travel corning and going from the pit. He could not recall
whether the pit crew was taken out by pick-up truck or whether
they walked out, and he stated his rationale for his gravity
finding as follows (Tr. 51-53):
JUDGE KOUTRAS: Mr. Petrick, if I may
interject. Even in your scenario there,
assuming that was the case, assuming that
the f orernan brought these three or four
fellows in the pickup and the trucks come
by, and these three or four fellows are out
of the danger zone, if you will, on this
particular day. The foreman comes back and
puts them in the pickup truck and he drives
away. Just at that time here comes a truck
now with an inoperative horn, then in that
situation his testimony would probably be the
samei that the truck, the pickup truck would
be exposed to a possible hazard of being struck
by the truck because he wouldn't be able to
sound his horn; isn't that true?
THE WITNESS: That's right, if neither one
of them had brakes or go up there or whatever.
JUDGE KOUTRAS: That's right. But in my
hypothetical, with all of these other hypotheticals then, that situation would certainly
pose a more direct gravity situation than it
would given the fact that these four guys over
there working on the coal pile as the trucks go
by on the road, that's some distance removed;
isn't that true?

1231

THE WITNESS:
JUDGE KOUTRAS:
that. Okay.

Yes.
Yes, I understand all of

But see, the problem here is that this
case was assessed based on the description
as provided by the inspector on the face
of this citation, and you're trying to
establish in this hearing is that the gravity
was less than what MSHA believed it was;
isn't that true?
MR. PETRICK:

That's right.

JUDGE KOUTRAS:

Okay, fine.

Q.
(By Mr. Petrick)~ Did you also inspect
this triple seven truck for brakes at the
same time?
A.

Yes, sir.

Q. The brakes were in proper working order,
were they not?
A.

Yes, sir.

Q. Nothing to prevent the operator from
stopping the truck in the event that somebody
were to stray into the path of it?
A. This equipment -- you can have the best
brakes in the world on it. When you get one
of those trucks loaded, you don't stop them just
like --

Q. Yeah, but in this pit area you're not
talking about driving more than five miles an
hour, are you?
A. No, sir, but I'm not talking -- taking
long if it runs into somebody, or speeds, or
somebody walks in front of it.

Q. Isn't it true with that truck driving
five miles an hour, just will stop just as
fast as your automobile in driving it five
miles an hour?
A. No, sir, I don't think it would stop as
fast as you could an automobile with 85 tons,
as you said, on it.

1232

Citation 2076870, 30 CFR 77.1710(i)

(Tr. 56-59):

Inspector Boatright cited a 966 Caterpillar frontend
loader because it was not equipped with a seat belt. The
loader was equipped with ROPS (rollover protection), but
without a seat belt for the operator to wear, there would
be a danger if the vehicle overturned. The loader was
inunediately taken out of service and seat belts were ·installed
within an hour.

Mr. Boatright stated that the loader traveled up and
down a ramp which was at a 12-14 percent incline, and that
the cited standard requires that when equipment is operating
in· an area where there is a danger of overturning, the operator
shall wear his seat belt. Here, the loader was not equipped
with a belt. The only person exposed to any hazard here
would be the loader operator. Mr. Boatright determined
that there was no seat belt by a simple visual inspection
·of the loader.
On cross-examination, Mr. Boatright stated that the
cited regulation requires that all loaders be equipped with
seat belts regardless of what they are doing, and that all
operators of such loaders must wear the belts (Tr. 60).
He then stated that the question as to whether the regulation
would apply would depend on how the loader is equipped, and
he confirmed that he issued the citation because he believed
there was a danger of the loader overturning. Even if the
loader were operating on a level pit area, he would still
issue the citation because the loader has to use the ramp
(Tr. 61). He described the loader as being 8 to 12 feet
wide, and while he did not measure the width of the ramp,
he estimated that it was probably 50 to 75 feet wide (Tr. 65).
His interpretation of the regulation is that seat belts are
required if "there's a possibility of overturning" (Tr. 65).
Citation

2076871, 30 CFR 77.1109(c} (1)

(Tr. 72-76).

Inspector Boatright cited a D-10 bulldozer for not
having a portable fire extinguisher. He stated that he did
not consider this violation "significant and substantial"
because there was other equipment operating in the area
that had fire extinguishers on them. A fire extinguish~r
was obtained from the nearby mine off ice and placed on the
bulldozer to abate the citation, and this took about ten
minutes.
Mr. Boatright confirmed that the cited bulldozer
was equipped with a "built-in" fire suppression system inside
the operator's cab, but that the standard still requires a
portable fire extinguisher.

1233

CENT 83-55
Citation 2076969, 30 CFR 77.1605(d)

(Tr. 150-153).

Inspector Boatright cited a Caterpillar rock haul truck
at 9:15 a.m., because it had an inoperable front,horn, and
the respondent repaired it. The truck was hauling topsoil
to the mine reclamation area, and Mr. Boatright was concerned
with the fact that if another piece of equipment crossed
in front of the truck, the driver would have no way of
warning the equipment operator. He believed that "there could
be" other equipment operating in the area, and that there
was a "possibility" that the operator would not see the truck.
Mr. Boatright confirmed that no employees were exposed
to any hazards on the ground, but if the truck collided with
another piece of equipment, "lost work days, restricted duty,
even fatal" would result.
If the condition were to continue,
he believed that it was reasonably likely that such injuries would
occur, and he asserted that his instructions are to issue
"S&S" violations, using this standard.
Mr. Boatright stated that the shift started at 7:00 a.m.,
and that it was possible that the truck was checked, but
that he "couldn't say."
On cross-examination, Mr. Boatright stated that the
pits at this mine are 150 feet wide and a half mile long,
and he confirmed that the truck was traveling on a road
which was 75 feet or more wide, hauling top soil from one
location to another. He conceded that the roads had more
than adequate clearance for the trucks to drive around in
the area in question. He also confirmed that he observed
no laborers on the ground in any area where the truck was
operating. He also confirmed that any elevated roadway
used by the truck would be bermed (Tr. 153-155).
When asked to explain why his citation stated that four
people would be exposed to a hazard, he identified two frontend loaders, a road grader, and another truck operating "in
the area." However, he conceded that the truck would be
stopped when it was being loaded, and that he was simply
counting the equipment that was in the area. However, he
also indicated that he has no way of knowing when any 0£
these equipment operators will get out of their equipment
(Tr. 15 7) •
Mr. Boatright that the truck and loaders are all equipped
with seat belts, ROPS, but that he still believed that if
they collided, the operators would be thrown around the

1234

cabs, and possibly through the windshield (Tr. 158). He
had no idea how fast the equipment would be traveling
(Tr. 159). His rationale for finding a "significant and
substantial" violation is reflected in the following bench
colloquy (Tr. 162-163):

Q.

But I get the impression that what
you've found in this case, as in the
others, you saw other equipment working
in the pit. You saw men that were
operating that equipment, and you figured
that at some point in time during the
mining process it's all together possible
that some fellow may get out of his equipment and walk across the road, or a piece
of equipment might get over close to a
truck, and that therefore this is why they
should have horns and back-up alarms.
And since they didn't have them, this is
why you found the gravity that you found;
isn't that true?
A.

Yes, sir.

Citation 2076970, 30 CFR 77.1110 (Tr. 168-169).
Inspector Boatright cited a 9L Caterpillar Bulldozer
after observing that a fire extinguisher on the machine
was not charged. He determined that it was not charged by
observing "a guage indicating that it had been discharged,
and the pin was pulled." A fire extinguisher is needed in the
event of small fires on the machine, and since fire extinguishers
were available on other equipment in the area, he marked
the negligence "as low and unlikely." He confirmed that the
machine operator tested the extinguisher and determined
that it had been discharged.
Citation 2076971, 30 CFR 77.410 (Tr. 170-171).
Inspector Boatright cited a 14-G Caterpillar road
grader after finding that the back-up alarm was inoperative.
The grader was operating in the pit haul road and spoil
areas, and he found the gravity to be "low" because the
machine is seldom put in reverse. The condition was corrected
within two hours.
Citation 2076972, 30 CFR 77.208(e)

(Tr. 171-175).

Inspector Boatright cited an oxygen and an acetylene
gas cylinder stored in a trailer near where two mechanics

1235

were working on a bulldozer which had unprotected valves.
The cylinders had no guages or hoses, and the protective
covers had not been put back on them. The covers were
immediately replaced, and they were located next to the
cylinders. He assumed that the mechanics had used the
cylinders and left the covers off.

Mr. Boatright indicated that the cylinders were vertical,
and that if the valves were knocked off by a piece of equipment or someone hitting them, the tank could be ruptu~ed.
He believed the. negligence was "moderate" in that the pit
foreman or superintendent should have discovered the conditions.
On cross-examination, Mr. Boatright confirmed that the
cylinders were immediately adjacent to each other and they
were the only ones in the trailer (Tr. 175). He did not
speak with the mechanics, and he indicated that the cylinders
were secured by a chain which was around them. Although he
did not ascertain what was in the cylinders, he indicated
"they weren't empty cylinders, they were full" (Tr. 177).
However, based on his interpretation of the standard, he
would have cited the cylinders regardless of whether they
were full or empty (Tr. 178).
Mr. Boatright confirmed that he observed no one actually
using the cylinders, and when asked to explain his "significant
and substantial" finding, he stated as follows (Tr. 180-186):

Q. Your testimony is that he said that they
were full?
A.
I asked him if the cylinders were empty
or full, but I would have still cited those
cylinders if they had been empty.

Q. If he told you that they were empty, you
would have still cited him; is that what
you're telling me?
A.

That's exactly

Q.

And what kind of gravity finding?

A.

I wouldn't have cited them if they had --

Q. I'm not trying to c~nfuse you, I'm trying
to understand. Go ahead.
A.

It says they will be protected by covers.

1236

Q.

That's right.

A.

It don't say whether they're empty or --

Q. That's right. But if he'd told you they
were empty, you would have cited them because
they didn't have the covers on them; right?
A.

Yes, sir.

Q. But what kind of a gravity finding would
you have made?
A.

There wouldn't have been too --

Q.

And why?

A.

It was in violation of the standard.

Q. And why would there not have been too much
of a gravity finding?
A.

Because there wouldn't have been any hazards.

*

*

*

Q. Did you ever observe those mechanics or anybody
else using those cylinders?
A.

Not that particular day, no, sir.

Q. Would you tell me again what factors went
into your determination that there was a significant
and substantial danger as a result of those
covers being off those cylinders?
Let me make sure -- we stopped in the middle of
things. They were secured, were they not?
A.

Yes, sir.

Q.

And were standing?

A.

Yes, they were standing.

Q. And up off the ground so that normal activity,
if somebody walking on the ground, it would have
been very unlikely that the top of those cylinders
would have been touched?

1237

A.

A possibility it could have been.

Q. How far were those two mechanics away
from these cylinders? What was the distance
between the mechanics and the cylinders?
A. I'd say the trailer was SO, 60 feet
away from where they were working.

Q. SO, 60 feet away from where they were
working? ·
A.

Yes.

Q. And how far away was the bulldozer they
were working on? Further away than that?
A. That was about where the bulldozer was
at in relation to where --

Q. Is there anything in between the bulldozer, the mechanics and those cylinders?
A.

Not at that particular time, no, sir.

Q. Did you observe any other activity in the
area at the time?
A. This is in the pit area, backed up behind
the pit area. They haul in the pit area where
this was at.

Q. Yeah, but you've got a pit that's a half
a mile long?
A.

Yes.

Q. '"was there any other equipment in the immediate

area of this trailer?
A. Not right in the immediate area, no, not right
by it.

*

*

*

Q. Tell me what factors·you used to determine
that we were
had a significant and substantial
violation?
A. Well I felt like the negligence on the thing
was moderate, because you had a supertendent in
the area and there was a pit foreman working there,
and they should have saw these things not being on it.

1238

*

*

*

Q. Well that's -- let me get back to what I
asked you before. You didn't determine how -when it had last been used, or whether it was
getting ready to be used; did you?
A. I'm sure it wasn't being ready to be used.
If it was, it shouldn't have been off anyway.
They should have put the guages on it they were
going to use it. There were no guages there to
even put on it.

Q. Well how much is involved in putting a set
of gauges on that thing? How much time?
A.

Very little time.

Q.

A minute and a half?

A.

I'd say probably.

*

*

*

Q. Okay. What other factors to into being
significant and substantial?
A.
If it continued to stay there, I'd say it
would be reasonably likely that something would
happen with the equipment there.

Q.

Like what?

A. Like people working in this area. Your
mechanics are working on the equipment and driving
around, yes, sir.

Q. But you didn't observe any of that. All
you're talking about is -- getting back to this
same standard that you've heretofore testified -you're speculating that something like that might
happen. You didn't actually observe that in
any way, shape or form?
A.

No, sir, not right next to it.

Q. Nearest· the thing that you observed to those
two cylinders was 60 feet away?
A.

Approximately 60 feet.

1239

Citation 2076973, 30 CFR 77.410 (Tr. 193-196).
Inspector Boatright cited a 988 Caterpillar frontend
loader at 11:00 a.m. after determining that the back-up
alarm was inoperative when the equipment was ope,rated in
reverse. The loader was loading coal out of the pit and
into the truck, and it operated forward and in reverse
during this loading process. Three people were on foot
in the area where coal was being loaded, and he believed
it was "possible" and "reasonably likely" that these people
would be in the path of the loader while it was in reverse.
One of the individuals was a coal foreman, and the other
two were cleaning around the coal with shovels, and they
were working close to the loader. However, he saw no one
actually step behind the loader or "almost get run over."
The alarm was repaired that same day, and he believed the
pit foreman should have noted that the back-up alarm was not
working.
On cross-examination, Mr. Boatright did not believe
the loader operator ever operated the loader more than five
miles an hour, and at all times the employees were either
in front or on the side of the machine, and when asked to
explain his "significant and substantial" finding, he stated
as follows (Tr. 198-202):

Q. So taking into account your observation
of Turner Brothers operation, there's
no reason for any of those workers that
you've denominated there, to be behind that
loader in any way, shape or form?
A.
I don't know that those loaders are
going to always be where they're at on that
coal when they're in that pit area.

Q. Well we're back to the same situation
we've-been in before.
I'm talking about
your observation at that particular time?
A.
I did not see one behind the loader at
that particular time, no, sir.

Q. But yet you say there's a reasonable
likelihood that one of those people are going
to be hurt, and I don't understand how, if
they're not· behind it. Are you telling
me that one of them might get away and wander
over there because he doesn't have anything
to do, and just get behind that loader and
get run down? Is that what you're telling
me?

1240

A.
I'm telling you it's possible when you
have people on foot in the area, when there's
equipment like that.

Q. Have you ever seen a laborer in Turner
Brothers' organization stand around not doing
anything?
A.

No, sir, not too often, or anyone else.

Q. They all got a job to do and there's somebody out there making sure they're doing it; isn't
there?
A.

*

Yes, sir.

*

*

Q. Okay. Now you've checked the box with regard
to significant and substantial. Again, what
factors went into your determination from this
particular case -- on this particular case as
to what other factors had caused you to check
that box?
A. I think it would be reasonably likely if
this loader continued to operate like this and
backed over someone, that you would have a serious
accident or a fatality.

Q. But here's nobody in the area, nobody's job
in the area, that would -- that you've testified
about, that would indicate that you saw anybody,
or there was -- in other words, what I'm started
to say, and I lost the train of thought of this
sentence. But unless somebody went over there
and was goofing off or not doing his job, there
would be no likelihood at all that anybody's
get hurt as a result of that back-up horn being
inoperable; is that correct?
A. Like this pit -- you were talking about this
pit corning down the side, coming out here 75 feet
and loading the coal. When you're taking this

1241

coal ~nd coming out here, this loader's
backing up here. You don't know whether
somebody's going to walk back and forth between
it when you've got people on foot in that area,
whether they're going to walk back in that area
or not, or passing by there or something.

Q. Okay. But you've had enough observation
at Turner operation that there's nothing for
anybody on foot to do in that area where the
coal has ~lready been taken?
A. They could be walking back through that
area to come out of the end of the pit.

Q.

For what purpose?

A. To get out of the pit. If they had to get
out of the pit for some reason.

Q. They could have walked across the coal seam,
too, couldn't they?
A. They sure could have. Or they could have
walked between the loader and the highwall
there it could have backed in there.

Q. What other factors went into your determining
that there was a significant and substantial
hazard?
A. Well I think if it continued, it would be
reasonably likely it would happen. And I've heard

Q.

You said that?

A.

Sir?

Q.

You said that before?

A. I think if it occurred, you would have loss
of workdays or restricted duty. That was the
determination that I marked.

Q. And that's all the factors that you've taken
into account in checking the box that says there
was a signfficant and substantial hazard, or was
reasonably likely so far as your gravity is concerned?
A.

Yes, sir.

1242

Citation 2076978, 30 CFR 77.1605(b)

(Tr. 203-207).

Inspector Boatright cited an International coal haul
truck after he had the driver stop it on a small incline
and set the parking brake. The brake would not hold the
truck, and it rolled. The condition was corrected.
Mr. Boatright stated that the truck had been operating
on level ground for two days and that a mechanic told him
that a valve was not working. Mr. Boatright went to inspect
the truck, and it appeared that it had been put back into
service without the parking brake in operating condition.
Mr. Boatright stated that he never observed th~ truck
parked where he tested it, and he indicated that the truck
is not parked "too much." However, when the truck is not
hauling coal, and when the driver is having lunch, it is
parked on the north side of the pit. He believed that all
of the trucks are shut down for lunch.
Mr. Boatright did not believe the pit superintendent
was negligent because he thought the parking brake was
probably working, and that "it could have been." However,
the mechanic told Mr. Boatright that the truck had "an
old rusty-looking valve" that did not appear to be working.
Mr. Boatright believed that the violation was "significant
and substantial" because "the likelihood of an injury
occurring could be reasonably likely if this condition
continued to occur."
On cross-examination, Mr. Boatright stated that the
parking areas where the trucks park for lunch is "fairly
level," but that there are some areas in the pit, which are
not on level ground, where the truck could be parked. He
also confirmed that the area where the truck was parked and
being worked on for two days was "fairly level," and he
confirmed that he has not seen many trucks roll as the result
of a defective parking brake (Tr. 207-209).
Mr. Boatright conceded that the parking areas used
by the trucks during the lunch break are on level ground.
He also conceded that when the trucks are parked at the· end
of the shift they are all parked in a row on level ground.
Mr. Boatright's reasons for a finding of "significant
and substantial," is reflected in the following bench colloquy
(Tr. 211-212):

1243

MR. PETRICK: I'm having a terrible difficulty,
your honor, with understanding his reasoning for
checking the significant and substantial hazard
situation.
JUDGE KOUTRAS: Well I don't have any difficulty
understanding why he did it in this case. The
truck didn't have a parking brake. The standard
says it should have one. I'll correct the
inspector, if I will -- but that's not his fault
-- he says the standard requires you to have one
in working order.
It says no such thing.
It
just says to be equipped with parking brakes.
But there are decisions that say if it's not in
working order, it's like not having one.
MR. PETRICK:

All right.

JUDGE KOUTRAS: Maybe the standard should read,
"it also shall be equipped with operable parking
brakes," but it doesn't. So I'll give you that.
I mean, if they're not operating, it's like not
having them.
And the reason he found it was S and S is because
he found that if this truck happened to be parked
on an incline and got away due to a faulty brake,
it would more than likely run into something.
Assuming that something was there -- and it didn't
have them -- a collision and an injury. And
that's why he considered it to be significant
and substantial; isn't that true?
THE WITNESS:

Yes, sir.

MR. PETRICK: What I'm trying to point out with
his testimony is, there's no likelihood it would
be parked on an incline.
JUDGE KOUTRAS: You may prevail on the finding
that this may not be S and S. But he's already
told you why he felt it was S and s. You're
not going to change his mind.
You're free to develop your own record as to the
factors that you feel he should have considered
and were not present.

1244

Mr. Boatright clarified the circumstances under which
he cited the truck, as follows (Tr. 212-214):
JUDGE KOUTRAS: Let me just ask: What
called your attention to this particular
truck in the first place?
A. I was on a general inspection, Your
Honor, and we have to check every piece of
equipment down there. And I was checking the
truck when it come into the pit. The parking
brake is one of the things you check on your
general inspection when you're checking the
truck.
Q. Okay. Now on a general inspection, the
parking brake is one of the things. But this
truck -- you took him to an incline to check
to see whether he had the parking brakes; is that
right?
A.

Yes, sir.

Q. Did you know in advance that there was
something wrong with the parking brake?
A.

No, sir, I sure didn't.

Q. Well what's this business about the truck
had been down for a repair for a couple of days?
A. Something else was wrong with it -- this
particular truck.
I'd been there for two days
on the inspection, and the point I'm saying,
is that it should have been working after it had
been down for two days. The parking brake was
not i~ operating order.
Q. What I'm saying is, the truck was down
for repairs for two days. And after they repaired
it is when you decided to check it out?
A.
I had not checked the truck during the general
inspection. And also the law ·says I ought to check
each piece of equipment that's operating, during
the general.inspection.
And they put it back into operation, and I didn't
check the equipment until the operator put it
back into operation.

1245

Q. Okay. And that's why you decided to
check it is because of your general -A.

Yes, sir.

Q. And in order to check the parking brake
to see whether it works or not, you're not
going to check it on level ground; right?
A.

No, sir.

Q. So you had the driver -- what? -- take
it to an incline?
A.
It was on an incline going down into the
pit, and I checked it there.

Q.

Were you in the cab with him?

A.

No, sir, I was standing outside.

Q.

And you had him stop the truck on an incline?

A.

Yes, sir.

Q.

Was it full

A.

Checked the parking brake.

Q.

Was it full or empty?

A.

It was empty.

Q.

The truck was empty?

A.

It was stopped on an incline.

Q.

And you had him set the brake?

A.

Yes, sir, and it would not hold.

CENT 83-51
Inspector Boatright testified that he took some dust
samples with an M.S.A. Dust Pump, and that he followed MSHA's
usual procedures and instructions in doing so. He confirmed
that he took some dust samples, and also made a noise survey
when he was at the mine on March 21, 1983. He gave the samples
to MSHA Inspector and Health Officer James Cameron, but could
not recall how many samples he took, and he did not have his
records with him at the hearing (Tr. 78-80).

1246

When asked whether he took the samples on April 19, 1983,
Mr. Boatright stated that he was not sure about the date,
and indicated that he would have sampled whatever equipment
was operating when he was there.
This would have included
a D-10 bulldozer, loader, truck, scraper, and a drill, if
it were operating. He was not sure as to how many equipment
samples were taken (Tr. 81).
Mr. Boatright explained his dust testing procedures,
and he indicated that after he places the testing device
on a particular piece of equipment, he will check it periodically
during the course of the 8 hour shift. After removing the
dust cassette, he plugs them, and places them in their
respective containers with a dust record card and takes them
to his office in McAlester, and the samples are never out of
his possession during their transit to the office. He either
personally gives them to Mr. Cameron, or leaves them on
his desk or takes them to the laboratory if Mr. Cameron is
not at the office. Mr. Boatright does not handle them or
see them after this (Tr. 83-84).
MSHA Inspector Jemes D. Cameron testified as to his
background and experience, and he testified as to the procedures
which he followed in processing the dust cassette obtained
by Inspector Boatright during his inspection. He confirmed
that he sent the cassette to MSHA's Pittsburgh laboratory
for processing and that he did so following MSHA's procedures.
After receiving the results of the testing, he issued citation
2007403, because the test results indicated that the respondent
was out of compliance with the applicable dust standard. He
confirmed that the quartz content percentage was high
(Tr . 8 5- 9 2 ) •
Inspector Cameron did not know how many samples
Inspector Boatright may have taken on the day of his inspection,
and he confirmed that with the exception of the one sample
which showed a high presence of quartz, the other samples
were in compliance (Tr. 100). He also confirmed that he did
not send in other samples for MSHA laboratory analyses because
there was insufficient quartz weight gain to show any
substantial presence of quartz (Tr. 101).
Inspector Cameron identified exhibit P-3 as a copy of
an MSHA computer print-out showing the results of MSHA's
Pittsburgh laboratory testing (Tr. 106). He explained that
under MSHA's new quartz standards, if a particular piece
of equipment which was tested indicated a presence of quartz
in excess of the acceptable 0.5 level, a citation would be
issued.
In this case, the concentration of quartz was shown as

1247

1.5, and even though it was based on one sample, under MSHA's
instructions a citation would issue, and that is why he
issued the citation in this case (Tr. 115). Since the one
sample in question showed 18 percent of quartz, the testing
indicated a concentration of 1.5, and that was sufficient to
establish a violation under MSHA's interpretation of the
standard (Tr. 117). MSHA's counsel took the position that
under the cited standard, one sample which is out of compliance
is suffucient to establish a violation (Tr. 125).
Respondent's Testimony and Evidence
William T. Turner, confirmed that he is the President
of the respondent company, and is responsible for the
supervision of all mining operations. He testified as to his
education, and his mining experience, and confirmed that
respondent operates four mines in the State of Oklahoma.
He testified as the company safety program, daily safety
inspections, and he stated that the Muskogee number two mine
is comprised of a "group of pits," and he diagramed what
the mine looked like (exhibit R-2; Tr. 132-135). He also
described the operation of the mine in question, including
the mining cycle and development of the pits (Tr. 135-138).
Mr. Turner went on to describe the operation of the cited
trucks, and he indicated that the roadway where the trucks
traveled were approximately 75 feet in width. He stated that
under normal operating procedures, there would be no laborers
on foot, and he indicated that the location where coal being
loaded would be 75 to 100 feet from where trucks would be
passing by (Tr. 140). He also indicated that if any trucks
were in the coal loading area, they would be backing away
from any trucks which may have been in the area, and that
laborers would have no reason to be behind any of these trucks
(Tr • 141-14 2 ) •
CENT 83-54
MSHA Inspector James D. Cameron testified as to his
mining background, experience, and training, and he confirmed
that he issued Citation No. 2007402, on March 15, 1983. He
also confirmed that he took three respirable dust samples
from the operator's cab of the Reed SK-35 Drill on March 8, 9,
and 10, 1983, in accordance with his usual practice and
procedures, and that he tested the samples and found that
average concentration of respirable dust exposure for that
piece of equipment and operator was 3.7 milligrams per cubic
meter of air. Since the mandatory requirements of section
71.100, require that respirable dust exposure be maintained
at or below 2.0 milligrams, he cited the ~espondent with a
violation of that mandatory section, and fixed a reasonable
time for abatement.

1248

Inspector Cameron explained that the three samples which
he took to support his citation were mailed to MSHA's Pittsburgh
dust laboratory for quartz analysis pursuant to MSHA's usual
practice and procedures. He stated that his local MSHA
district office has no testing capabilities for determining
the presence of quartz in the dust samples which he took.
He stated that if any dust samples contain more than five
percent quartz, a new co~pliance standard is then established
pursuant to section 71.101.
Inspector Cameron stated that the first sample of
March 8, 1983, was rejected by MSHA's Pittsburgh laboratory
because it was somehow defective. The second sample taken
March 9, 1983, reflected the presence of 15 percent quartz,
and the last sample taken on March 10, 1983, indicated the
presence of 33 percent quartz. Under MSHA's policy guidelines
and procedures, the last sample in a series where quartz is
detected is used to compute the new compliance standard.
In the instant case, the last sample showing 33 percent quartz
was computed pursuant to section 71.101, to establish
the new dust compliance standard for the cited drill as
0.3 milligrams per cubic meter of air, rather than the initial
standard of 2.0 milligrams per cubic meter of air as stated
in section 71.100. Under the circumstances, he modified his
original citation on March 23, 1983, to cite the respondent
with a violation of section 71.101 rather than 71.100.
Inspector Cameron stated that after he modified his
citation, he extended the abatement time after the respondent
removed the cited drill and replaced it with another one
which was equipped with a pressurized air conditioning unit
in the operator's cab. He extended the abatement time so
as to permit the respondent time to collect five dust samples
so as to determine whether the replacement drill was in
compliance with the newly established standard of 0.3 milligrams.
Subsequent samples indicated an average dust concentration
of 1.6 milligrams, and since this did not achieve compliance,
he decided to extend the abatement time further, and issued
a section 104(b) order. He modified the order the same day
in order to allow the respondent additional time to install
a "Hupp Aire cab pressure system" on the drill, and after this
was installed and additional samples taken, the respondent
achieved compliance by lowering the dust concentration for
the drill to 0.2 milligrams per cubic meter of air (Tr. 217-225).
Inspector Cameron confirmed that the dust samples which
he took on March 8, 9, anq 10, 1983, indicated the average
concentration of respirable dust to be 3.7 milligrams, and he
also confirmed that these test results were from his own
personal weighing which he conducted at MSHA's laboratory

1249

in McAlester (Tr. 226). The sampling for quartz content
was conducted by MSHA's laboratory at Pittsburgh, but his
laboratory tests pursuant to section 71.100 indicated the
presence of respirable dust in excess of the required 2.0
amount (Tr. 227). He confirmed that the sample results of
7.3, 2.2, and 1.8, were processed by him and since they
indicated an average concentration of 3.7, he issued the
citation (Tr. 228).
In short, he confirmed that his sampling
of the dust exposure on the cited Reed SK 35 highwall drill
indicated noncompliance, and that is why he issued the
citation (Tr. 229). He confirmed that the drill was taken
out of service and replaced with another one (Tr. 230).
Findings and Conclusions
Jurisdiction
MSHA Inspector Donalee Boatright testified that the
respondent operates a surface strip mining operation and
at one time actively mined at four strip mine locations.
One of the locations ceased mining operations approximately
three or four months prior to the date of the hearing.
Mr. Boatright testified that respondent's mining
operations includes the stripping of overburden and top soil,
the blasting of rock, the stripping of the exposed coal seam,
and reclamation of the mined-out pit areas. Mr. Boatright
estimated the respondent's annual coal production as between
500,000 to 750,000 tons, and he estimated that the respondent
employs a total workforce of 40 miners working on rotating
shifts, seven days a week.
Mr. Boatright also confirmed that the coal mined by
the respondent is shipped out of state, and that the respondent
is regularly inspected by MSHA pursuant to the Act (Tr. 8-11).
He also conf irrned that the mine has an MSHA identification
number, and that he has inspected it on previous occasions
(Tr. 18-19) •
Mr. Boatright stated that mining at the respondent's
Muskogee mine ceased sometime in late 1983, and that when
the mine was operational, it worked seven days a week,
12 hours a day. Respondent's other mines are still operating
(Tr. 11).
Respondent's Pre~ident, Torn Turner, confirmed that his
company uses approximately 70 pieces of major mining equipment

1250

such as trucks, loaders, and bulldozers, and 30 pieces of
other equipment in its mining operations .. He also confirmed
that the coal produced is shopped out of state and that his
mining operation is nonunion (Tr. 146).
Although the respondent entered a general denial of
jurisdiction, it did not reassert this issue during the
hearings, nor has it advanced any arguments that it is not
a "mine" subject to petitioner's enforcement jurisdiction.
I conclude that the testimony here indicates that the respondent
is a mine subject to the Act and to MSHA's enforcement
jurisdiction.
Stipulations
The parties stipulated as to the accuracy of the dates~
times, and places where Inspector Boatright issued his
citations, as well as to the fact that they were served
on the respondent's representative as shown on the face
of the citation forms (Tr. 57).
Fact of Violations - Docket CENT 83-40
I conclude and find that MSHA has established by a
preponderance of the evidence that the cited Caterpillar
777 rock haul truck had an inoperative back~up alarm, that
a second truck had an inoperative front horn, and that the
cited D-10 Caterpillar bulldozer was not equipped with a
portable fire extinguisher. Accordingly citations 2076868,
2076869, and 2076871 are all AFFIRMED.
With regard to the citation concerning the lack of a
seat belt on the cited front end loader, the cited standard
section 77.1710-(i) requires that.seat belts be provided
in a vehicle where there is a danger of overturning and
where roll protection is provided. Here, the loader in
question was provided with ROPS and the inspector believed
there was a danger of overturning because the loader had
to travel up and down a ramp which was at an incline of
some 12 to 14 percent. He described the width of the ramp
as 50 to 75 feet, and the width of the loader as 8 to 12
feet.
The standard in question contains two conditions
precedent which must be met before seat belts are required.
The standard does not require seat belts for allvehicles,
nor does it require seat belts for vehicles equipped with ROPS.
The inspector must first make a finding that there is a
danger of overturning before he can require that seat belts
be installed on ROPS-equipped vehicles.

1251

In this case, when asked whether or not he issued the
citation simply because he found that the loader had to travel
up and down a ramp, Inspector Boatright replied "where there
was a danger of overturning, yes sir" (Tr. 62). When asked
whether he would have issued the citation if the loader
where operating on "flat ground," Mr. Boatright stated that
he would not. He clarified this answer by stating that
since the loader had to travel up and down the ramp, he
believed there was a "possibility" of overturning, and that
is why he issued the citation. As a matter of fact, Inspector
Boatright stated that his interpretation of the standard
is that a seat belt is required whenever "there is a possibility
of overturning." However, the standard does not state this
proposition. The standard says that seat belts are required
when there is a danger of overturning.
In my view, the
question of whether such a danger exists depends on the facts
presented at any given time.
On the facts of this case, I cannot conclude that MSHA
has established that there was a danger of the loader
overturning.
I am convinced that the inspector issued the
violation simply because the loader in question was equipped
with ROPS, and that it traveled up and down the ramp.
It
seems to me that if MSHA wishes to require seat belts for
every vehicle which is equipped with ROPS and which happens
to travel up and down an incline it should specifically say
so in its standard. Here, the standard only requires a
ROPS equippped vehicle to have seat belts if there is
danger of _overturning.
Based on the testimony here, I
cannot conclude that MSHA has established that there was
a danger of the loader overturning. Simply because it
traveled up and down a ramp is insufficient evidence to
establish that it would overturn. The evidence here establishes
that the ramp was of sufficient width to allow the loader
to go up and down without being exposed to other traffic,
there is no evidence as to how fast the loader traveled,
the conditions under which it traveled the ramp, nor is
there any testimony from any loader operators as to whether
or not they were in any danger.
In short, I conclude that
the inspector issued the citation here because he believed
that a ROPS-equipped vehicle had to have a seat belt. Under
the circumstances, the citation IS VACATED.
Fact of Violations - CENT 83-51 and CENT 83-54
I conclude and find that MSHA has established by a
preponderance of the evidence that the allowable respirable
dust level for the tested Caterpillar D-10 bulldozer
operator exceeded the requirements of cited mandatory standard

1252

section 71.101. Respondent's evidence did not rebut the findings of the inspector, and although respondent questioned the
validity of MSHA's testing procedures, he withdrew his objections when the inspector agreed that the violation was not
"significant and substantial."
I find that Inspector Boatright's testimony concerning the
procedures he followed in conducting and taking the dust samples
to support his citation to be credible. Accordingly, Citation
No. 2007403, issued in Docket No. CENT 83-51, IS AFFIRMED.
With regard to Citation No. 2007402, issued by Inspector
Cameron in Docket No. CENT 83-54, I conclude and find that MSHA
has established by a preponderance of the evidence that the
allowable respirable dust level for the tested Reed SK 35 Drill
operator exceeded the requirements of cited mandatory standard
section 71.101 (as amended by Inspector Cameron on April 11,
1983). Respondent's evidence did not rebut the inspector's
findings, and I find that Mr. Cameron's testimony regarding his
testing procedures, as well as his detailed explanation of the
application of the cited section to be credible. Accordingly,
the citation IS AFFIRMED.
Fact of Violations - Docket No. CENT 83-55
I conclude and find that MSHA has established by a preponderance of the evidence that the cited No. 912 rock truck had
an inoperable front horn, that the 14G road grader had an inoperable back-up alarm, that the 988 front end loader had an
inoperable back-up alarm, and that the 96 bulldozer was equipped
with a fire extinguisher which was not usable or operative.
Accordingly, Citations 2076969, 2076971, 2076973, and 2076970,
are all AFFIRMED.
With regard to Citation No. 2076978, concerning an inoperative parking brake on a coal haulage truck, I take note of
the fact that while the regulatory language in section 77.1605
(b) ,.that mobile equipment. be equipped with adequate brakes,
and that all trucks be equipped with parking brakes, may be
ambiguous since it simply requires that a truck be equipped
with parking brakes, with no specific requirement that they be
serviceable or adequate, I conclude that. a reasonable application of thi~tandard requires that the parking brake perform
the function for which it is designed.
In short, a truck with
a parking br ke which will not hold it or prevent its movement
while in a pa. king mode,· regardless of where it is parked,
does not sati$fy the intent of the standard.
'

1253

In the instant case, Inspector Boatright's testimony
that the brake would not hold the truck when it was tested
on a small incline has not rebutted by the respondent.
Mr. Boatright testified that the truck was empty at the time
he asked the driver to set the brake, and when he did,
the brake would not hold.
I conclude and find that MSHA has established a violation
by a preponderance of the evidence, and Citation No. 2076978
IS AFFIRMED.
With regard to Citation No. 2076972, concerning the
absence of protective covers on two compressed gas cylinders,
r·take note of the fact that the cited standard section
77.208(e) provides that:
Valves on compressed gas cylinders shall
be protected by covers when being transported or stored, and by a safe location
when the cylinders are in use.
Inspector Boatright testified that he observed the
two cylinders "stored" in a trailer "near" an area where
two mechanics were working on a bulldozer. The valves were
next to the cylinders, and he assumed that the mechanics
had used the cylinders and simply forgot to replace the
valves.
The cylinders were next to each other in an upright
position, and they were secured by a chain which was around
them.
Mr. Boatright also testified that he did not speak to
the mechanics, nor did he observe them using the cylinders.
Although Mr. Boatright stated that the cylinders were full,
he indicated that he would have issued a citation even if
they were empty. He confirmed that the mechanics were working
50 or 60 feet away from the trailer and the bulldozer was
in that same area away from the trailer. He also confirmed
that the cylinders were not "being ready to be used."
It seems clear to me from the inspector's testimony
that the cylinders in question were not being transported
or being used by anyone at the time the inspector made his
observations. Since he did not speak to the mechanics,· he
acted on pure assumptions and speculations which are unsupported
by any credible evidence. Further, although his citation
narrative gives the impression th~t the two mechanics were
using the cylinders, the facts show otherwise.

1254

In further explanation as to why he issued the citation,
Inspector Boatright stated that the cylinders were "just sitting there" (Tr. 190). He believed that they were being
"stored" (Tr. 191), and his citation states that they were on
a portable welding machine. He also stated that if the guages
are not on the cylinders, or if the cylinders are not being
used, then he would consider that they are "stored" (Tr. 190).
He confirmed that the cylinders in question had no guages or
hoses when he observed them.
In response to questions from respondent's counsel,
Mr. Boatright conceded that the normal storage area for full
and· empty cylinders is at the mine off ice located over a half
a mile away from the area of the trailer (Tr. 191). He also
indicated that prior to the day he cited the cylinders, whenever he had occasion to observe the trailer or a mechanics
truck, the valves and guages were always protected by covers
if they were on the cylinders (Tr. 191).
The question presented here is whether or not MSHA has
established that the cited cylinders were "stored" within the
meaning of section 77.208(e). If they were, the next question
is whether or not on the facts here presented, the cylinders
were required to have protective valve covers.
After careful review and consideration of all of the testimony and evidence adduced in this case, I conclude that the
two cylinders in question were stored at the time the inspector observed them. While it may be true that they were not
located at the normal storage area, they were on a portable
welding machine, in an upright position and were not in use.
I conclude that in their location, they were stored, and that
the valve covers should have been on them. The citation is
AFFIRMED.
Significant and Substantial Violations
Docket No. CENT 83-40
Citation No. 2076868
Inspector Boatright's citation concerning the inoperable
backup alarm on the 777 rock haul truck states that four frontend loaders, two dozers, three haul trucks, and four persons
on foot were in the pit area when the truck was operated in
reverse.
Mr. Boatright stated that the work shift started at 7:00
a.m., and that he cited the truck at 9:30 a.m. The inoperable
alarm was the result of a loose wire, and the truck was immedi~
ately taken out of service. He conceded that the alarm could
have been working before he cited it, and he conceded that wires
do become loose.

1255

Based on all of the facts and circumstances which prevailed
at the time of the issuance of this citation, I cannot conclude
that MSHA has established that the violation was significant and
substantial. Apart from the fact that the inspector observed no
one working behind the truck when it was being loaded, the evidence here establishes that until its arrival at the pit loading·
area, the truck was always driven in a forward mode along a
rather wide and clearly defined route.
In addition, the two
loaders used to load the truck, as well as the other loaders
which were cleaning the coal away from the loading area, were
all equipped with operable backup alarms which were sounding
while being operated in reverse.
The.loaders loading the coal
were operating at the same area where the truck would back up to
be loaded, and I cannot conclude that the operators were exposed
to any hazards.
With regard to the four men who Inspector Boatright stated
were on foot, I cannot conclude that their duties required them
to be positioned to the rear of the truck while it backed up to
be loaded.
Inspector Boatright conceded that he included these
men in his citation because it was possible that "somebody within the pit area may possibly stray within the hazard zone" (Tr.
38). This could be true of any violation of this kind.
However,
in order to support an "S & S" violation, I believe that an inspector should rely on facts which reasonably indicate a likelihood of injury during the normal mining and loading process.
Here, the inspector's beliefs that an accident or injury was
likely to occur is sheer speculation. Accordingly, his "S & S"
finding is unsupported, and i t is VACATED.
Citation No. 2076869
Inspector Boatright issued this citation after finding
that the front horn on another 777 rock haul truck was inoperative.
The condition was abated within an hour or so of the
issuance of the violation, and the condition was caused by a
loose wire.
The inspector cited the violation as "S & S" because
he was concerned that an individual or a piece of equipment could
inadvertently stray in front of the moving truck, and the truck
driver would have no way of sounding his horn.
While it is true that the truck in question was in otherwise good condition, had operative brakes, and traveled approximately five miles an hour while going up and down the pit ramp,
i t is also true that while driving t9 and from the pit area,
the truck would be moving faster, and the driver could encounter
unexpected pedestrian and vehicular traffic in and around his
route of travel. Without an operative horn, the driver would be
unable to warn such obstacles in his path, and a collision would
likely occur.
Regardless of whether the truck were empty or
full, I believe one can reasonably conclude that in the event of

1256

a collision, personal injuries or equipment damage would likely
result. Under the circumstances, I conclude and find that the
violation is significant and substantial, and the inspector's
finding in this regard is AFFIRMED.
Docket No. CENT 83-55
Citation No. 2076969
Inspector Boatright issued this citation after finding
that a Caterpillar rock haul truck used to haul top soil from
the pit to the reclamation area had an inoperative front horn.
He was concerned that a collision with other equipment might result in personal injuries or equipment damage.
While it is true here that the area where the other equipment noted in the inspector's citation was an area where the
cited truck in question would normally be stopped during the
loading process, once the truck left that area it could very
well encounter other equipment while on its way to the reclamation area. Without an operative front-horn to warn other vehicular traffic, any resulting collision would likely result in
injury to the vehicle operator or to the truck or other equipment. Accordingly, the inspector's "S & S" finding is AFFIRMED.
Citation No. 2076972
Inspector Boatright believed that the cylinder citation
was a significant and substantial violation because "if it continued to stay there, I'd say it would be reasonably likely
that something would happen with the equipment there." Based
on his other testimony as to all the circumstances which prevailed at the time he observed the cylinders, particularly the
fact that the cylinders were stored and secured in an upright
position with a chain, were not being used, were isolated from
the two mechanics, and were far removed from any other equipment, I cannot conclude that it was reasonably likely that any
injury or accident would occur. In short, I can find no evidence to support the inspector's conclusion that the violation
was significant and substantial. Accordingly, his finding in
this regard is VACATED.
Citation No. 2076973
Inspector Boatright's citation concerning the inoperative
backup alarm on the 988· front-end loader states that "three
persons were on foot working in the pit where the loader was
being operated." He testified that the loader was loading coal
out of the pit and into the truck, and that it operated forward
and in reverse during this loading process. He believed it was
"possible and reasonably likely" that a foreman and two workers
who were cleaning coal with shovels close to the loader would
be in the path of the loader while it operated in reverse.

1257

On cross-examination, Mr. Boatright stated that at no time
did the loader operator operate the machine more than 5 miles
an hour, at no time did he see anyone behind the machine, and,
in fact, he stated that at all times the employees were either
in front or on the side of the machine.
When asked to explain his "significant and substantial"
finding, Mr. Boatright stated that he believed "it would be
reasonably likely if this loader continued to operate like this
and backed over someone, that you would have a serious accident
or fatality."
When asked to explain why he believed an accident or injury
would occur since no one would have any business being in the
area where the loader was operating, Mr. Boatright stated that
he would have no way of knowing whether anyone would be walking
through the area on foot while leaving the pit. He also indicated more than once that had he permitted the loader to continue to operate with an inoperable backup alarm, that it would
have caused an accident in the event it backed over someone.
I can take judicial notice of the fact that if a loader
backed over someone, it would likely cause a serious injury.
However, I believe that the question of whether a violation is
significant and substantial should be based on a reasonable
likelihood of an accident based on the actual conditions which
prevailed at the time the inspector observes the condition which
prompts him to issue a citation.
On the facts of this citation, the inspector has not established that the foreman and the two coal shovelers were in
close proximity to the loader, or that their duties required
them to be in close proximity to the truck or behind it when it
backed up.
I am convinced that he included the "three persons
on foot" in the citation because he could never insure that they
would not stray or wander behind the loader.
I find this to be
rather speculative, particularly when he conceded on close crossexamination that the three persons he had in mind had no business
being in the immediate area where the loading was being done, and
that respondent's employees had clearly defined duties and responsibilities. Under the circumstances, I conclude that the
inspector's "S & S" finding is unsupportable, and it is VACATED.
Citation No. 2076978
This citation was issued after the inspector found that
the parking brake on a coal haulage truck was inoperative and
would not hold the truck when the brake was tested by "setting
it" while the empty truck was parked on an incline. The inspector was concerned about a possible injury in the event the truck
were parked on an incline and "got away" and ran into something.

1258

Although the inspector here had the driver park the truck
on an incline so that he could test the parking brake, there is
no evidence that during the normal course of any shift during
which the truck is used is it ever parked on an incline. The
inspector conceded that the truck is parked on level ground during the lunch break, and that at the end of the working shift it
is parked on level ground in a row with other trucks. Although
the inspector alluded to the fact that there are some pit areas
which are not on level ground, there is absolutely no evidence
that the truck in question would ever be stopped or parked in
any of these areas. As a matter of fact, the inspector conceded
that the haul truck in question is seldom parked during the working ·shift. Under these circumstances, I cannot conclude that it
was reasonably likely that an accident or injury would result
from the faulty parking brake during the normal working shift
when the truck is used. Absent any reasonable showing that the
truck would at any time be parked on an incline, I cannot conclude that it would be likely that the truck would roll and collide with another vehicle while it was parked on level ground.
Under the circumstances, the inspector's "S & S" finding is
VACATED.
During the course of the hearing, respondent's counsel
interposed objections with respect to the admissibility of certain MSHA exhibits concerning certain laboratory testing results
in connection with the dust citations issued in Dockets CENT
83-51 and CENT 83-54 (Tr. 84-128). However, the objections were
later withdrawn after the parties stipulated and agreed that the
two dust citations were not "significant and substantial" violations (Tr. 263-265).
Additional Findings and Conclusions.
83-54, 83-55.

Dockets CENT 83-40, 83-51,

Gravity
Citation 2076871, concerning an inoperative portable fire
extinguisher on the D-10 bulldozer, involved a low degree of
gravity since the record shows that other extinguishers were
available nearby, and the bulldozer had a built-in fire supression system. The inoperative front horn on the 777 rock haulage
truck is a serious citation because the driver would be unable
to signal anyone in the event of an emergency of sudden appearance of traffic or miners in the path of the truck. The remaining citation for an inoperative back-up alarm on another 777
haulage truck presented a low degree of gravity since I have
concluded that no one would likely be exposed to injury (CENT
83-40).
I find that the lack of an operable horn on the haul truck
was a serious violation (2076969). As for the remaining citations in this docket, I find that the conditions cited constituted

1259

a low degree of gravity. While the cited bulldozer (2076970)
had no portable fire extinguisher, other operable extinguishers
were readily available nearby. The inspector confirmed that
the 14-G road grader was seldom operated in reverse, and he
found a low degree of gravity for the inoperable back-up device.
The circumstances surrounding the cylinder citation reflects
that no one was in jeopardy of any harm or injury, and I have
concluded that the inoperative parking brake and the inoperative
alarm on the 988 front-end loader would not likely lead to any
injuries (CENT 83-55).
I cannot conclude that the two dust citations issued in
these dockets were serious violations. The inspector agreed to
change his initial "S & S" findings to "non-S & S". Apart from
this, with regard to Citation 2007403, Inspector Cameron confirmed that he found quartz present in only one sample, but that
other samples were in compliance and he did not send them to the
laboratory because there was insufficient quartz weight gain to
show any substantial presence of quartz.
With regard to Citation 2007402, the citation was extended
several times as work progressed to achieve abatement, and the
~espondent finally installed pressurized air conditioned cabs
for its drills. However, absent any detailed testimony concerning the seriousness of the cited dust concentrations, the affected
occupations, etc., I have no basis for concluding that the citation here was serious (CENT 83-51 and 83-54).
Good Faith Compliance
Inspector Boatright testified that the respondent was always cooperative in correcting any condition or practice which
has been cited as violations in these proceedings, and while
mine management did not always agree with him, all of the cited
conditions or practices were always corrected (Tr. 141).
Mr. Boatright confirmed that the respondent exhibited good faith
compliance by abating all of the citations which he issued
either within the time fixed by him or in advance of this time
(Tr. 43-44). Accordingly, I conclude that respondent exhibited
good faith in achieving abatement for all of the cited violations in these proceedings, and this is reflected in the civil
penalties assessed for the violations.
Negligence
Inspector Boatright testified that the respondent's surface
mining operations are by their very nature "pretty dusty", and
that dust, mud, and dirt does clog the truck horns and alarms,
thereby causing them to malfunction. He also confirmed that "on
the whole", the respondent has a "pretty good safety program",
and conducts a "pretty good operation" (Tr. 55-56).

1260

After careful examination of all of the testimony and evidence in this case, I conclude and find that all of the violations which have been affirmed in these proceedings resulted
from the respondent's failure to take reasonable care to prevent
the cited conditions or practices. I further conclude that all
of the violations resulted from ordinary negligence.
History of Prior Violations
Respondent's history of prior violations is reflected in
several computer print-outs produced by MSHA concerning the
history of paid violations at the Welch #1 Mine, the Heavner #1
Mine, and the No. Two Mine, for the periods March 21, 1981,
through June 5, 1983. The information submitted shows that the
respondent has made payment for a total of 17 violations issued
during these time periods~
Considering the inspector's testimony, as well as the information reflected in the computer print-outs, I cannot conclude that the respondent's prior compliance record is such as
to warrant any increases in the civil penalties otherwise
assessed by me in these proceedings.
Size of Business and Effect of Civil Penalties on the Respondent's
Ability to Continue in Business
I conclude that respondent is a medium sized operator, and
that the penalties assessed for the violations which have been
affirmed will not adversely affect its ability to remain in
business.

Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act', I conclude and find that the following civil penalty
assessments are appropriate for the citations which have been
affirmed:
Docket No. CENT 83-40
Citation No.

Date

2076868
2076869
2076871

3/21/83
3/21/83
3/21/83

30 CFR Section
77.410
77.1605(d)
77.1109(c) (1)

Assessment
$50
$80

$20

Docket No. CENT 83-51
Citation No.

Date

30 CFR Section

Assessment

2007403

5/3/83

71.101

$35

1261

Docket No. CENT 83-54
Citation No.

Date

30 CFR Section

Assessment

2007402

3/15/83

71.101

$35

Citation No.

Date

30 CFR Section

Assessment

2076969
2076970
2076971
2076973
2076978
2076972

6/6/83
6/6/83
6/6/83
6/6/83
6/6/83
6/6/83

77.1605{d)
77.1110
77.410
77.410
77.1605{b)
77.208{e)

$70
$30
$30
$40
$50
$35

Docket No. CENT 83-55

ORDER
Respondent IS ORDERED to pay the civil penalties assessed
above, in the amounts shown for each of the citations, and payment is to be made to the petitioner within thirty (30) days of
the date of these decisions. Upon receipt of payment, these proceedings are dismissed.
Docket No. CENT 83-52.

Findings and Conclusions.

This docket concerns five citations issued by MSHA Inspector Johnny M. Newport on May 17, 1983, after an inspection at
the respondent's Welch #1 Mine. All of the citations are "non
S & S" citations issued pursuant to section 104{a) of the Act.
Citations 2076408. 2076411, and 2076412 were all issued for
violations of mandatory safety standard 30 CFR 77.410, after the
inspector found that two front-end loaders and a grader operating in the pit area were equipped with automatic warning devices
that would not give an audible alarm when the equipment was
operated in reverse.
Citation 2076409 was issued after t.he inspector found that
a front-end loader operating in the pit area was equipped with
an inoperative horn. Citation 2076410 was issued because a
grader operating in the pit area was equipped with a discharged
fire extinguisher.
At the hearing, the· parties proposed to settle this case by
the respondent making full pa~ent for the proposed initial
assessments in the amount of ~00 for all of the citations. In
support of this proposed settlement disposition, petitioner's
counsel pointed out that the inspector found low negligence and
gravity, that no miners were found to be on foot in any of the
areas concerning the inoperable back-up devices and horn, and

1262

that three operational fire extinguishers were readily available in the area where the grader with the discharged extinguisher was operating. Further, petitioner's counsel asserted
that the respondent has a good compliance record for an operation of its size.
In addition to the foregoing, the record establishes that
three of the citations were abated within 10 or 15 minutes, one
within 30 minutes, and one within an hour or so of its issuance.
Further, all of the inoperable devices apparently involved loose
wires which were corrected as soon as they were brought to the
attention of the pit superintendent.
Conclusion
After careful consideration of all of the information of
record, including the pleadings and arguments made on the record
in support of the proposed settlement, I conclude and find that
it is reasonable. Accordingly, pursuant to 29 CFR 2700.30, IT
IS APPROVED.
ORDER
Respondent IS ORDERED to pay civil penalties in the following amounts within thirty (30) days of the date of this decision,
and upon receipt of payment by the petitioner, this case is
dismissed.
Citation No.

Date

30 CFR Section

Asses·sment

Settlement

2076408
2076409
2076410
2076411
2076412

5/17/83
5/17/83
5/17/83
5/l7/83
5/17/83

77.410
77.1605(d)
77.1110
77.410
77.410

$ 20
$ 20
$ .20
$ 20
$ 20
$100

$ 20
$ 20
$ 20
$ 20
$ 20
$100

Distribution:
Allen Reid Tilson, Esq.; U.S. Department of Labor, Office of the
Solicitor, 555 Griffin Square, Suite 501, Dallas, TX 75202
(Certified Mail)
Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box 447,
Muskogee, OK 74401 (Certified Mail)

slk/yh

1263

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

11AY 101984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JAMES M. CLARKE,
Complainant
v.
T. P. MINING, INC.,
Respondent

:

DISCRIMINATION PROCEEDING
Docket No. LAKE 83-97-D

...
.
.

MSHA Case No. VINC-CD-83-09
T. P. Strip

ORDER OF DISMISSAL
Before:

Judge Kennedy

The Solicitor having failed and refused to comply with
my order to provide an amended complaint in support of the
penalty proposal that was severed from the discrimination
complaint, it is ORDERED that (1) the order approving settlement of the discrimination complai
is AFFIRMED and the
complaint DISMISSED and (2) that h severed penalty proposal
be, and hereby is, DISMISSED FO
T OF PROSECUTION.

Distribution:
Frederick W. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
John J. Malik, Jr., Esq., Malik, Knapp, ~igerl & Frizzi,
3381 Belmont St., Bellaire, OH 43906 (Certified Mail)

/ejp

1264

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

MAY 111984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 84-2
A.C. No. 36-00963-03525

v.
Mathies Mine
MATHIES COAL COMPANY,
Respondent
•DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

On April 9, 1984, the Solicitor filed a Motion for
Decision and Order Approving Settlement in the above-captioned
case. The one violation at issue was originally assessed at
$2,000. The settlement proposed by the parties is for $1,500.
Order No. 2104294 was issued for violation of 30 C.F.R.
75.200, for failure to comply with the approved roof control
plan. Sacrifice coal was being mined when a roof fall occurred
which covered the continuous miner and entrapped the operator
for approximately 1 hour and 10 minutes.
§

The Solicitor submits that the $500 reduction from the
original assessment is warranted in view of the uncertainties
of litigation and after detailed consideration of the six
statutory criteria. The operator's negligence was assessed as
high. Subsequent investigation revealed two mitigating factors
regarding the level of negligence. First, the roof control
plan was not being complied with in that sacrifice stumps of
coal required to be left in place were mined. However, the
Solicitor points out that the roof control plan does not
specify a size for the sacrifice stumps that must be left
unmined. Second, prior to the coal being mined from the cited
area, there existed a "weak wall" condition at that location.
In order to remove this potential hazard, the operator mined
coal from the front stump of the sacrifice coal and eliminated
the "weak wall" condition. This '.'weak wall" posed a potential
hazard in particular to the miners recovering the crib by the
cited area. Given these two factors, the Solicitor asserts
that the negligence of the operator is reduced, and accurately
reflected by the proposed reduction in the civil penalty.

1265

The Solicitor also considered gravity and the probability
of harm associated with the violation. It was reasonably
likely that the aforementioned mining of the sacrifice coal
stump would have exposed the continuous miner operator to
potential injury due to the roof fall.
The operator demonstrated a good faith effort to abate
the violation. The operator reviewed the roof control plan
with all miners involved in retreat mining and the violation
was abated within t1'.e required time period.
I accept the Solicitor's representations and accordingly,
the proposed settlement is hereby approved.
ORDER
The operator is hereby ORDERED to pay $1,500 within
30 days of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
William M. Connor, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Karl T. Skrypak, Esq., Consolidation Coal Company,
Consol Plaza, Pittsburgh, PA 15241 (Certified Mail)
/fb

1266

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

WESTMORELAND COAL COMPANY,
Contestant

v.

HAY 11.1984

CONTEST PROCEEDING
;

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

Docket No. WEVA 82-340-R
Order No. 2002585; 7/15/82
Docket No. WEVA 82-341-R
Order No. 2002586; 7/15/82
Docket No. WEVA 82-342-R
Order No. 2002587; 7/15/82

UNITED MINE WORKERS OF
AMERICA,
Respondent

Docket No. WEVA 82-343-R
Order No. 2002588; 7/15/82
Docket No. WEVA 82-344-R
Order No. 2002589; 7/15/82
Docket No. WEVA 82-345-R
Order No. 2002590; 7/15/82
Docket No. WEVA 82-346-R
Order No. 2002591; 7/15/82
Docket No. WEVA 82-347-R
Order No. 2002592; 7/15/82
Docket No. WEVA 82-348-R
Order No. 2002593; 7/15/82
Docket No. WEVA 82-349-R
Order No. 2002594; 7/15/82
Docket No. WEVA 82-350-R
Order No. 2002595; 7/15/82
Docket No. WEVA 82-351-R
Order No. 2002596; 7/15/82
Docket No. WEVA 82-352-R
Order No. 2002597; 7/15/82
Ferrell No. 17 Mine

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-73
A. C. No. 46-02493-03504

v.

Docket No. WEVA 83-143
A. C. No. 46-02493-03515

WESTMORELAND COAL COMPANY,
Respondent

Ferrell No. 17 Mine

1267

DECISION APPROVING SETTLEMENT
AND DISMISSING NOTICES OF CONTEST
Before:

Judge Steffey

Counsel for both the Secretary of Labor and Westmoreland
Coal Company (WCC} filed on April 20, 1984, in the aboveentitled proceeding a motion for approval of settlement and
for dismissal of the notices of contest.
Under the parties'
settlement agreement, wee has agreed to pay reduced civil penal ties totaling $38,000 instead of the civil penalties totaling
$55,040 proposed by MSHA.
In orders issued in this proceeding on May 4, 1983, and
August 2, 1983, I consolidated the civil penalty issues raised
in Docket Nos. WEVA 83-73 and WEVA 83-143 with the issues
raised in the notices of contest which seek review of 13 withdrawal orders issued on July 15, 1982, under the unwarrantablefailure provisions of section 104(d} of the Federal Mine Safety
and Health Act of 1977. The aforesaid order of May 4 also
granted in part motions for summary decision filed by wee and,
in doing so, vacated all 13 of the withdrawal orders as having
been issued in error under section 104(d} of the Act. The
order of May 4 held, however, that the violations alleged by
MSHA in the 13 orders survived vacation of the orders so that
the 13 violations would have to be considered on their merits
in the civil penalty cases (Island Creek Coal Co., 2 FMSHRC 279
(1980}, and Van Mulvehill Coal Co., Inc., 2 FMSHRC 283 (1980}}.
The parties' settlement agreement renders moot the issues
raised in the notices of contest and makes it appropriate for
me to grant the motion for dismissal of the notices of contest,
as hereinafter ordered.
Section llO(i} of the Act lists six criteria which are
required to be considered in determining civil penalties. The
proposed assessment sheet in the official file in Docket No.
WEVA 83-143 shows that wee produces about 5,866,000 tons on an
annual basis which supports a finding that wee is a large operator. Consequently, to the extent that civil penalties are
based on the criterion of the size of the operator's business,
the penalties should be in an upper range of magnitude.
There is no information in the official file or in the motion for approval of settlement pertaining to the operator's
financial condition. The Commission held in Sellersburg Stone
Co., 5 FMSHRC 287 (1983}, that if an operator supplies no facts
regarding its financial condition, a judge may find that an
operator is able to pay civil penalties.
In the absence of any
facts to support a contrary conclusion, I find that WCC's ability to continue in business will not be adversely affected by
the payment of civil penalties. Therefore, no civil penaluies

1268

in this proceeding need to be reduced under the criterion of
whether the payment of penalties would cause the operator to
discontinue in business.
The proposed assessment sheet in the official file in Docket
No. WEVA 83-73 shows that Wee had less than .3 of a violation
per inspection day when its history of previous violations is
evaluated under the assessment procedures used by MSHA, as described in 30 C.F.R. § 100.3(c). When an operator has less
than .3 of a violation per inspection day, MSHA assigns zero
penalty points under section 100.3(c). There are no facts in
the record to show that MSHA incorrectly evaluated the criterion
of WCC's history of previous violations. Consequently, none of
the penalties to be assessed in this proceeding need to be increased under the criterion of the operator's history of prev~
ious violations.
·Three criteria remain to be considered, namely, negligence,
gravity, and whether the operator demonstrated a good-faith effort to achieve rapid compliance after the violations were cited.
The circumstances involved in the citing of the 13 violations
involved in this proceeding are unique so that all three of the
remaining criteria should be borne in mind in light of the facts
hereinafter discussed.
An explosion occurred on November 7, 1980, ln the 2 South
Section of wee' s Ferrell No. 17 Min·e. Five miners were killed
in the explosion. Immediately after rescue and recovery operations had been completed, the 2 South Section was sealed off
and MSHA has not yet completed its physical inspection of the
2 South Section. Although other sections of the mine were
allowed to produce coal after MSHA's investigation was completed,
except for the sealed off 2 South Section, the motion for approval of settlement (p. 2) states that the Ferrell No. 17 Mine
is presently closed in its entirety and that it is doubtful if
the 2 South Section will ever be reopened.

The motion for approval of settlement states that wee,
without regard to its potential civil and criminal liability,
cooperated fully in the investigations of the disaster. Subsequently, wee and several of its employees were indicted for violations of the Act with respect to the explosion. wee ultimately pleaded quilty to 16 violations and paid a total of $600,000
in fines. As part of the disposition of the criminal charges,
wee also made $475,000 in charitable contributions for improved
heal th care, the education of physic.ians, and safety training
in Boone County, West Virginia, where the Ferrell No. 17 Mine
is located.
The 13 violations involved in this proceeding were all
written on July 15, 1982, by an inspector in Arlington, Virginia,
on the basis of his examination of sworn statements obtained by

1269

MSHA's investigators in December 1980. The alleged violations
pertain to conditions which the inspector thought contributed
to the explosion which occurred on November 7, 1980. MSHA proposed large penalties ranging from $5,000 to $10,000 for six of
the alleged violations and all of those violations are alleged
in the proposal for assessment of civil penalty fi'led in Docket
No. WEVA 83-143. MSHA proposed the large penalties in Docket
No. WEVA 83-143 under section 100.5 of its assessment procedures
which specify that MSHA may waive the use of the formula described in section 100.3 and propose penalties under section
100.5 by making narrative findings pertaining to the six criteria. The remaining seven violations were alleged by MSHA in
the petition for assessment of civil penalty filed in Docket No.
WEVA 83-73. The penalties proposed for those seven violations
range from $420 to $655 and were determined by assigning penalty
points as described in section 100.3 of MSHA's assessment procedures.
While the discussion above is helpful for an understanding
of how the alleged violations in this proceeding were cited and
.how the penalties were proposed, it does not specifically show
why WCC's agreement to pay $38,000 in civil penalties, as opposed
to the $55,040 in civil penalties proposed by MSHA, is justified
when evaluated under the six criteria. That sort of showing
cannot be demonstrated without making a specific examination of
the violations which were alleged.
I shall briefly consider
each of the alleged violations under the docket number in which
the respective civil·penalties were proposed by MSHA.
Docket No. WEVA 83-143
As previously indicated above, all of the alleged violations were cited in orders written pursuant to section 104(d)
of the Act. Since I have already found in my order issued
May 4, 1983, that all 13 of the orders are invalid, they will
hereinafter be discussed as vacated orders, but the violations
alleged in the orders survived the vacation of the orders because they eould have been issued as valid citations pursuant
to section 104(a) of the Act (Island Creek Coal Co., 2 FMSHRC
279 (1980), and Van Mulvehill Coal Co., Inc., 2 FMSHRC 283
(1980)) •
Vacated Order No. 2002586 alleged a violation of section
75.316 because permanent stoppings had been replaced by plastic
stoppings and the plastic stoppings had not been properly maintained. MSHA believed that the improperly maintained stoppings
may have prevented air from going to the 2 South Section where
the explosion occurred. MSHA proposed a maximum penalty of
$10,000 for the aforesaid violation and wee has agreed to pay
in full that proposed penalty. Since WCC is paying the maximum
penalty permitted by the Act, no discussion is required to jus~
tify the settlement proposal with respect to the violation alleged in vacated Order No. 2002586.

121'0

Vacated Order No. 2002587 alleged a violation of section
75.316 because wee had failed to follow its approved ventilation plan by not providing crosscuts at or near the face of
each entry before the entries were abandoned. The order states
that there is no evidence to show that it was unsafe to develop
the required crosscuts. MSHA considered the violation to have
been serious, to have been associated with a high degree of negligence, and proposed a penalty of $5,000 which wee has agreed
to pay in full.
Inasmuch as MSHA properly proposed a large penalty which wee has agreed to pay in full, no discussion is required to justify acceptance of the settlement proposal with respect to vacated Order No. 2002587.
Vacated Order No. 2002588 alleged that a violation of section 75.316 occurred because wee had frequently failed to keep
in a closed position the ventilation doors which had been installed in 1 South between 1 East and 1 West. MSHA considered
the violation to have been very serious, to have been associated
with a high degree of negligence, and proposed a penalty of
$8,000, whereas wee has agreed to pay a reduced penalty of
$2,500. A reduction is justified in this instance because the
language used in citing the violation speaks of "numerous occasions during the course of last year" when the doors were not
closed.
If a hearing had been held, it is doubtful that MSHA
would have been able to prove that the doors were open at the
time the explosion occurred so as to support a finding that
failure to keep the doors closed specifically contributed to
the cause of the explosion.
Vacated Order No. 2002589 alleged a violation of section
75.305 because wee•s section foreman admitted that he did not
examine at least one entry of each intake and return air course
in its entirety when he made a weekly examination for hazardous
conditions. The section foreman traveled in the track entry
and made intermittent examinations of the intake and return
entries. MSHA considered the violation to have been very serious, to have been associated with a high degree of negligence,
and proposed a penalty of $8,000, whereas wee has agreed to pay
a reduced penalty of $2,500. A substantial reduction is warranted in this instance because the section foreman's failure
to examine the intake and return entries in their entirety during a weekly inspection could hardly be shown to have directly
contributed to the explosion.
Vacated Order No. 2002590 alleg~d a violation of section
75.303 because wee•s personnel were not making preshift examinations on each shift prior to the entrance of miners into 2 South
for the purpose of removing mining equipment during a 2-week
period in late August and early September 1980. MSHA considered
the violation to have been extremely serious, to have been

1271

associated with a very high degree of negligence, and proposed
a penalty of $10,000, whereas wee has agreed to pay a reduced
penalty of $6,000. A reduction in the proposed penalty in this
instance is also warranted because no facts are given in the
file or MSHA's narrative findings which show how a failure to
make a preshift examination during a 2-week period in August and
September would have contributed to an explosion which occurred
on November 7, 1980.
Vacated Order No. 2002593 alleged a violation of section
75.303 because wee's personnel failed on November 7, 1980, to
make an inspection for methane and oxygen deficiencies in the 2
South Section within 3 hours before five miners entered that section for the purpose of retrieving some track rails. The miners
entered the 2 South Section about 1:55 a.m. and were killed by
the explosion which occurred a short time later. MSHA considered
the violation to have been extremely serious, to have been associated with a very high degree of negligence, and proposed a maximum penalty of $10,000 which wee has agreed to pay in full. wee•s
agreement to pay the proposed maximum penalty makes it unnecessary
to discuss the matter of whether the settlement proposal may be
accepted with respect to the violation alleged in vacated Order
No. 2002593.
Docket No. WEVA 83-73
Vacated Order No. 2002585 alleged a violation of section
75.322 because wee's personnel had made a change in ventilation
on October 27, 1980, which materially affected the main air current. MSHA assessed a penalty under the provisions of section
100.3 by assigning a maximum number of points under the criteria
of negligence and gravity which resulted in a proposed penalty
of $655, whereas wee has agreed to pay a reduced penalty of $250.
A reduction in the proposed penalty is justified in this instance
because there is nothing in the order to show that a change in
ventilation/on October 27, 1980, contributed to the explosion
which occurred over a week afterwards. Also the change in ventilation involved stopping one out of two fans.
There is nothing
to show that only one fan was being used on November 7, 1980,
when the explosion occurred.
Vacated Order No. 2002591 alleged that a violation of section 75.314 occurred because wee's personnel frequently failed
to make the required examinations in idle and/or abandoned areas
not more than 3 hours before miners who check and install pumping equipment entered such areas to work. MSHA assigned a maximum number of penalty points under the criteria of negligence
and gravity and proposed a penalty of $655, whereas wee has agreed to pay a reduced penalty of $250. The parties' agreement
to reduce the penalty in this instance is also justified because
the order fails to explain how the alleged violation contributed
to the occurrence of the explosion on November 7, 1980.

1272

Vacated Order No. 2002592 alleged a violation of section
75.303 because wee's personnel failed to make the required preshift examination of haulageways and travelways within 3 hours
preceding the oncoming shift. The order states that inspections
of haulageways and travelways were made, but the examinations
were made at the start of the shift while the miners were on
their way to the working sections. MSHA assigned less than the
maximum number of penalty points under the criteria of negligence
and gravity and proposed a penalty of $420, whereas wee has agreed to pay a reduced penalty of $200. A reduction in the proposed penalty is warranted in this instance because the order
shows that wee's personnel did make examinations of the haulageways and travelways before miners began working, but did not make
the examinations at the required time.
Vacated Order No. 2002594 alleged a violation of section
75.303 because wee's personnel failed on November 7, 1980, to
make a preshift examination in the 3 East off 2 North Section
within 3 hours before miners entered that section. MSHA assigned
a maximum number of penalty points, and almost a maximum number
of penalty points, under the criteria of negligence and gravity,
respectively, and proposed a penalty of $500 which wee has agreed
to pay in full.
MSHA properly proposed a penalty of $500 because
the failure to perform the preshift examination occurred on the
same day as the explosion even though the failure to make the
preshift examination, in this instance, did not pertain to the 2
South Section where the explosion occurred.
Vacated Order No. 2002595 alleged that a violation of section 75.303 occurred because wee's personnel failed to make a
preshift examination in the 1 East Section on October 24, 1980,
before miners entered that section to recover belt structures.
MSHA assigned the maximum number, and almost the maximum number,
of points under the criteria of negligence and gravity, respectively, and proposed a penalty of $500 which wee has agreed to
pay in full.
MSHA properly proposed the penalty in this instance
and wee•s agreement to pay the full amount should be approved.
Vacated Order No. 2002596 alleged a violation of section
75.301 because the rescue team, while recovering the bodies of
five miners killed by an explosion, found water which was within
12 inches of the mine roof in the No. 2 entry. The inspector
who wrote the order speculates that the water may have contributed to the inadequate ventilation which resulted in the explosion. MSHA assigned a maximum number of penalty points under.
the criteria of negligence and gravity and proposed a penalty
of $655, whereas wee has agreed to pay a reduced penalty of $200.
A reduction in the penalty is warranted in this instance because
the person who wrote the order is speculating about whether
water observed in an entry after occurrence of an explosion
contributed to the cause of the explosion. The explosion could
have caused a pump to stop working or could have broken a

~1273

waterline which could have produced the accumulation of water.
Payment of a substantial penalty ought to be based on more than
mere speculation.
Vacated Order No. 2002597 alleged a violation of section
75.1106 because one of WCC's miners used a cutting torch on
November 6, 1980, in the 1 East belt entry near the mouth of 2
South Section. He failed to use a fireproof enclosure and a
qualified person did not test continuously for methane while
the torch was being used. MSHA assigned the maximum number of
penalty points under the criteria of negligence and gravity and
proposed a penalty of $655, whereas wee has agreed to pay a reduced penalty of $100. The reduced penalty is warranted in
this instance because large penalties have been assessed in
this proceeding primarily on the basis of whether a given vio~
lation may have contributed to the cause of the explosion which
occurred on November 7, 1980. The torch was used on the day
preceding the explosion and there is nothing in the file to
show that a torch had been used on the 2 South Section at the
time the explosion occurred. Moreover, section 75.1106 provides for the use of a fireproof enclosure "whenever practicable". The order does not say that use of a fireproof enclosure
is practicable when the miner using the torch is cutting down
belt conveyor hangers, as was being done in this instance.
Finally, use of a torch in a belt entry, which has a neutral
split of intake air, is not as hazardous as it would be if the
torch had been lighted in a return entry or at the working
faces.
I find, on the basis of the foregoing discussion of the
six criteria, that the motion for approval of settlement should
be granted and that the settlement agreement should be approved.
The motion for approval of settlement stresses the fact
that wee demonstrated good faith in cooperating in the investigation of the explosion and in making a large voluntary charitable contribution to improve health and safety in Boone County,
West Virginia.
I believe that those are additional reasons
which support acceptance of the settlement agreement.
Another point which should be emphasized is that all of
the alleged violations were cited in orders written on July 15,
1982, by an MSHA inspector who reviewed sworn statements obtained in December 1980 by MSHA's investigators.
If a hearing
had been held, those sworn statements would have had to have
been reexamined by the parties and any party who might have
wished to controvert anything in a sworn statement would have
had the burden of trying to find witnesses with vivid memories
who could recall details of events which occurred nearly 4
years ago.

1274

In such circumstances, acceptance of a settlement is preferable to holding a hearing, especially when it is considered
that wee has agreed to pay substantial penalties totaling
$38,000.
WHEREFORE, it is ordered:
(A)
The joint motion for approval of settlement is granted
and the settlem~nt agreement is approved.
(B)
Pursuant to the parties' settlement agreement, Westmoreland Coal Company, within 30 days from the date of this
decision, shall pay civil penalties totaling $38,000 which are
allocated to the respective alleged violations as follows:
Docket No. WEVA 83-73
Vacated Order No. 2002585 7/15/82 § 75.322
Vacated Order No. 2002591 7/15/82 § 75.314
Vacated Order No. 2002592 7/15/82 § 75.303
Vacated Order No. 2002594 7/15/82 § 75.303
vacated Order No. 2002595 7/15/82 § 75.303
Vacated Order No. 2002596 7/15/82 § 75.301
Vacated Order No. 2002597 7/15/82 § 75.301
Total Settlement Penalties in Docket No.
WEVA 83-73

$

250.00
250.00
200.00
500.00
500.00
200.00
100.00

. .. . . . . . . . . . . . . . . . . . . . .. .. . . . . . .. $ 2,000.00
Docket No. WEVA 83-143

$10,000.00
Vacated Order No. 2002586 7/15/82 § 75.316
§
5,000.00
75.316
Vacated Order No. 2002587 7/15/82
2,500.00
Vacated Order No. 2002588 7/15/82 § 75.316
2,500.00
Vacated Order No. 2002589 7/15/82 § 75.305
6,000.00
Vacated Order No. 2002590 7/15/82 § 75.303
10,000.00
Vacated Order No. 2002593 7/15/82 § 75.303
Total Settlement Penalties in Docket No.
WEVA 83-143 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • $36, 000. 00

.. .

Total Settlement Penalties in This
Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $38, 000. 00
(C)
The motion for dismissal of the notices of contest is
granted and the 13 notices of contest filed by Westmoreland Coal
Company in Docket Nos. WEVA 82-340-R through WEVA 82-352-R are
dismissed.

~e.oi~

Richard C. Steffey
~
Administrative Law Judge

1275

Distribution:
Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut
Avenue, NW, Washington, DC 20036 (Certified Mail)
Frederick w. Moncrief, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Bmulevard, Arlington, VA 22203
(Certified Mail)
Scott L. Messmore, Esq., Senior Attorney, Eastern Operations,
Westmoreland Coal Company, P. O. Drawer A & B, Big Stone Gap,
VA 24219 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 - 15th
Street, NW, Washington, DC 20005 (Certified Mail)

1276

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

MARJORIE ZAMORA,
Complainant

HAY 111984

DISCRIMINATION PROCEEDING
Docket No. WEST 83-48-D

v.
UNITED STATES FUEL COMPANY,
Respondent

.

DENV CD 83-9
King 4, King 5 and King 6

DECISION
Appearances:

Marjorie Zamora, Vernal, Utah, pro se;
Barry D. Lindgren, Esq., Mountain States Employees
Counsel, Inc., Denver, Colorado,
for Respondent.

Before:

Judge Vail

STATEMENT OF THE CASE
Complainant filed this proceeding under section 105(c) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
et seg. Cthe Act), claiming that she was discharged by respondent
because of safety related activity protected under the Act.
Initially, complainant filed a complaint of discriminatory
discharge with the Secretary of Labor under section 105(c)(2) of
the Act. The Secretary, after investigation, declined to prosecute the complaint. Complainant then brought this proceeding
directly against respondent under section 105(c)(3) of the Act.
A hearing on the merits was held in Price, Utah on August
25, 1983. Complainant appeared pro~; respondent appeared
through counsel. Both parties filed post-hearing briefs. Based
on the evidence presented at the hearing and considering the
contentions of the parties, I make the following decision. To
the extent that the contentions of the parties are not incorporated in this decision, they are rejected.
STATUTORY PROVISIONS
Section 105(c)(l) of the Act, provides in pertinent part as
follows:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the

1277

exercise of the statutory rights of any miner, representative of miners or applicant for employment
in any coal or other mine subject to this chapter
because such miner, representative of miners, or
applicant for employment has filed or made a complaint
under or related to this chapter, including a complaint
notifying the operator or the operator's agent, or the
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.
Section 10S{c){2) of the Act, provides in pertinent part as
follows:
Any miner or applicant for employment or representative
of miners who believes that he has been discharged, interfered with, or otherwise discriminated against by
any person in violation of this subsection may, within
60 days after such violation occurs, file a complaint
with the Secretary alleging such discrimination ••.•
Section 105{c){3) of the Act, provides in pertinent part as
follows:
Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in
writing, the miner, applicant for employment, or representative of miners of his determination whether a
violation has occurred. If the Secretary, upon investigation, determines that the provisions of this
subsection have n'9t been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to file an action in his own behalf before the Commission, charging discrimination or
interference in violation of paragraph (1) ••••
FINDINGS OF FACT
1. United States Fuel Company {"respondent") is a subsidiary
of Sharon Steel Corporation. It operates three coal mines near
Hiawatha, Utah employing approximately 465 employees; supervisory
and underground {Transcript at 65).
2. Marjorie Zamora {"complainant") started working for
respondent as an underground miner in July 1977. After four
months she was given the job as instructor and after a year and a
half was designated training supervisor which position she held
until November 2, 1982 when whe was discharged {Tr. at 11, 12).

1278

3. William C. Vrettos is respondent's manager of industrial
relations and is responsible for personnel, office
administration, payroll, safety, and training.
In January 1981,
Lou Mele was the Director of Safety and Training. Under his
supervision were the complainant, as supervisor of training, and
Gary Lauflin, supervisor of safety. Mele terminated his
employment with respondent in August 1981 and thereafter the
complainant and safety supervisor reported directly to Vrettos
(Tr. at 139).
4. During the latter part of 1981, Vrettos and the
complainant had several meetings where they discussed the
objectives of the training department for the forthcoming year
(1982). Vrettos proposed a rough outline of what the objectives
of the department would be and complainant ultimately submitted a
written plan outlining sp·ecific objectives and completion dates
which was approved by Vrettoa (Exhibit R-1 and Tr. at 139-141).
5. In March 1982, Vrettos met with complainant to review the
first quarter results of the 1982 action plan for the training
department. He determined that complainant had not been
following the plan and "specifically" told her that they were to
adhere to the plan "without exception" (Tr. at 142).
6. In April 1982, complainant entered the miners bath house
at the Middlefork mine and heard several miners discussing with
representatives of the Safety Department a request that the
miners sign their 5000-23 task training forms. Three miners
maintained they had not received the task training indicated on
the forms (Tr. at 14). Complainant told the representatives of
the Safety department that the miners were right and that the
forms should not be shown or exposed to other miners in the bath
house. The following day complainant met with representatives of
the Safety department and Vrettos and stated that the 5000-23
task training forms were to be kept secure and private and that
the forms were being filled out wrong (Tr. at 16 and 17).
Vrettos told complainant she was being "pretty hard on safety"
and criticized her for being an improper supervisor (Tr. at 16).
Vrettos agreed to a class being held for teaching supervisors how
to fill out the miners task training forms. This class was
scheduled and held on April 22, 1982 (Tr. at 21 and Exhs. C-1,
C-2, C-3 and C-4).
7. Complainant scheduled emergency medical technician
training (EMT) for May and June 1982, and volunteered to teach
the classes (Exh. C-5). Vrettos offered to contact doctors for
the sessions but requested an outline of what was to be covered.
Complainant furnished photocopies of pages from her manual which
Vrettos rejected as not adequate to inform the doctors of what
was required of them. Complainant then offered to get the

1279

doctors to appear at the classes but found on contacting them
that they were busy so the classes were delayed further into the
summer. Complainant was criticized by Vrettos for this delay and
also for not keeping the training room cleaned up. This room was
being used by Vrettos for supervisory training during the same
period as complainant's EMT classes (Tr. at 29-31).
8. Complainant was requested by Vrettos on the May 1982
training report to furnish July and August 1982 schedule of all
training planned. Vrettos wrote on the bottom of the form "I
will schedule the instructor class." Complainant set up an
instructors class for August 1982. She requested in a letter
dated July 28, 1982, film from the Heart Association to be used
in the training. Due to a party scheduled one day in August and
the Mine Rescue Contest, which complainant had to attend,
employees from the Safety Department did not attend the
instructor's class until the 24th of September, 1982. As a
result, complainant was required to ask for an extension on the
date she was to return the film to the Heart Association (Tr. at
34, 35 and Exhs. C6-C7).
9. In June 1982, as a result of several miners asking the
complainant about annual retraining, she went through her files
and listed those miners who would require such retraining CExh.
C-9). Vrettos had indicated that upon submission of a list of
such miners, they would be scheduled to come in on complainant's
shift for retraining rather than have her return to the mine
during that particular miner's shift. Vrettos argued with
complainant about how to set the annual retraining classes so
that it would not cause confusion as to who was trained.
Finally, by September 1982, Vrettos agreed to allow complainant
to set up the classes for the tipple and surface miners as she
suggested. However, due to deer season and other interferences
such as mixup on dates, only half of the miners scheduled attended the session. This put the matter 50 percent behind
schedule CTr., at 44).
10. In September 1982, an internal auditor of Sharon Steel
Corporation did an audit of several of respondent's
administrative functions that included safety, training, and
personnel records. As to the training department, two areas were
noted to be deficient. Training records (5000-23 forms) were
incomplete for many underground miners based upon a random sample.
Also, as to mine rescue requirements, the respondent was not in
compliance with the law by not having two full teams ready to
provide mine rescue service to the respondent CExh-R-2 and Tr. at
147-148).
11. On October 14, 1982, complainant was requested to come to
Vrettos' office for a meeting. Vrettos and Richard Graeme,

1280

respondent's vice president and general manager, were present.
Complainant ~as presented a letter signed by Vrettos indicating
that projects in the 1982 action plan had not been completed
despite oral and written directions. Complainant was demoted
from training supervisor to training instructor and warned that
unless her performance and accountability improved significantly
in the very near future, her employment with U.S. Fuel would be
jeopardized. Complainant was to report to Vrettos for the
balance of 1982 and then to the Safety Training Supervisor upon
notice in 1983. Salary level would remain at its present level
without reduction in lieu of any raise for the next twelve months.
The letter stated the following instructions1
The Training Department's goals through the rest of 1982
are to complete the followings responsibilities:
1. As asked for since July, a schedule of the Annual
Retraining by mine and individual is to be completed by
Friday, October 22, 1982. If the schedule is altered
you are to communicate the changes to myself within 24
hours.
2. All Maintenance Training records are to be updated,
organized and reviewed with me on October 22nd. The
format was given to you in October after written
requests in September.
3. Your efforts to keep Task Training updated have been
very unsuccessful and you have not followed by direct
instruction on auditing. You will complete a monthly
audit of all personnel on the property and update the
Task Training form by the last day of each month. To
conclude your audit, a formal notification is to be made
to each respective mine foreman or department head as to
the Task Training (by individual) which needs to be made.
Monthly ydu will note if the mine foreman has completed
the task training or not. You are to continue to
publish the Task Training list monthly.
4. The Training Room has continued to appear unsightly.
The Training Room appearance is most important to
setting impressions of an operations. In the future, no
training materials or tools are to be left out of the
storage area more than four hours before or after
training takes place. A plan is to be put into effect
by October 29th to identify and store all materials and
equipment used for training including a diagram of the
plan. On the 29th of Oct. a tour of the new layout and
storage is to be given to myself and other interested
parties explaining the changes and instructions for

1281

others to follow when using the training room facilities.
A list of "RULES" for everyone's use is to be posted on
the incoming door. And a list of all equipment is to be
provided.
5.
"Communicator" was not published in the third
quarter. A November edition and a December edition is
to be published giving all writers a two week notice of
deadline. This communication device has become more
effective with each publication and your editorial
guidelines are very successful. Timely publication is
important.
6. A Task Training check list for each classified
equipment operation is to be made by March of 1983. The
first two will be reviewed on November 12th .•• shuttle
car and roof bolter. ·These are to be combination JSA
and procedure guidelines for supervisors to use in Task
Training new employees.
7. The Mine Rescue training requirements and monthly
guidelines are to be outlined for 1982/83 as previously
requested by October 29th in formal letter format to
myself for review. Changes to the program are to be
communicated to me in advance of the training session.
8. In general your time at U.S. Fuel is not used
affectively to accomplish Training's objectives. In the
future, all secretarial typing and copying requirements
are to be channeled through me 24/48 hours in advance of
need. Your time as a Training Instructor is too valueable to be repeate~ly used on these items.
9. On Fridays of each week, we will review a written
report of your last weeks schedule and accomplishments
as well as your coming weeks schedule. Please follow
the Monthly Report format (which is now being replaced
by the weekly report). Please include a monthly updated
calendar of events weekly.
10. Electrical Training Program. Due in June, 1982
please provide an electrical training course outline for
an effective 40 hour class. The sessions are to be in
two hour modules including identification of materials,
aids, handouts and instructors of the course.
11. Publish monthly an update of all state and federal
certifications on the property to all mine foreman and
above.
Include in your last weeks meeting with myself.

1282

These instructions are not to overshadow your many
accomplishments since you have been at U.S. Fuel. You have helped
and assisted the organizational effort in many ways. It is most
important that you restrict your efforts to the priorities listed
in this letter to assure the Training function is aq_~omplished.

cc: R. Graeme

/s/ William C. Vrettos
William C. Vrettos
Manager, Industrial Relations
(Exh. C-10)

12. On October -20, 1982, complainant contacted Frank Roybal
and Mark Garcia of the Union Safety Committee at the bath house
for King 4 and 5 mine. She told them of her problems with
training and asked if they wanted to get it "straightened out" by
calling in the Mine Safety and Health Administration (MSHA).
Later, complainant had a conversation with George Hillas,
financial secretary of the union, and Hillas asked if there was
some way that the company and safety committee could get together
to straighten out the problems with training. Hillas did not feel
that the employees or the company could afford to be "hassled" by
MSHA at that time (Tr. at 53).
13. On October 28, 1982, complainant and Vrettos discussed
the annual retraining class scheduled for November 1, 1982.
Complainant had prepared an outline of what she intended to cover
during the course (Exh. R-3). Vrettos suggested that complainant
cover certain items including three suggested by Gary Barker,
respondent's general supervisor, including roof and rib control
plan, sanders be inspected on the mantrip, and the ventilation
plan. Vrettos also told complainant that she was to cover the 10
points for surf ace miners re.quired to be covered in annual
retraining under the union contract (Tr. 159-162). Also, Vrettos
proposed that Keith Thomas teach the class on the rib and roof
control plan (Tr. at 164).
14. On November 1, 1982, Vrettos attended the annual
retraining course scheduled that day and taught by the complainant.
She had a pile of 5000-23 forms on her desk in which were two
forms she claimed were improper. After going through the training
plan, complainant informed Vrettos that there was "a possible
faulty certification in the pile." Vrettos asked complainant to
give him the forms which she refused to do unless there were
members of the union safety committee there. Frank Guisman, a
member of the union safety committee was summoned to the class and
Vrettos and Guisman took the forms to be copied (Tr. at 54-56).
Vrettos had been present throughout the day except for 10 to 20
minutes when he left the room to have copies made of the task
training forms.

1283

15. At the end of the day, he met with complainant and
Richard Graeme and reviewed the adequacy of the training the
complainant had given that day. Vrettos went through the outline
for the class and told the complainant that she had not adequately
covered many of the items including check in and out procedures,
mining plans, mining cycle was not covered, fire extinguishers,
and the rib and roof control plan was covered in less than 10
minutes time. This was the part of the course that was supposed
to be taught by Keith Thomas as discussed by Vrettos and
complainant at their October 28th meeting (Tr. at 169-170). As a
result of this discussion, Vrettos concluded that complainant was
not keeping proper records and not doing a proper job of training
and informed her that he was going to suspend her and audit the
files. Vrettos ask~d for complainant's keys to all of the files
and requested that she come back to the off ice on the next day
(Tr. at 178).
16. On the following morning, Vrettos, with two secretarial
employees, took random samples of the records for face bosses,
electricians, and newly hired employees and found that 8 of 22
employees had not had orientation training forms completed and
placed in their files which meant they should not be working
underground. 13 of 26 new employees did not have timbering or
belt tests training completed so should not have been released to
general labor underground. There were very few electrical
certifications, mine certifications, mine foreman or fire boss
certifications in the records. Of 10 to 15 experienced miners,
records were reviewed and it was found that 40 percent of the
tasks they were classified in had no forms on record showing that
they had been task trained (Tr. at 179).
17. A meeting was held on the day following the audit of the
training department records. Vrettos, Miners' Union International
and district safety representative, district president, and safety
committee chairman were present. Also, Gary Lauflin was in
attendance and conducted the meeting. The records from the audit
of the training department were made available to the people in
attendance after Lauflin had reviewed what they revealed. The
Union representatives chose not to review these records (Tr. at
180). The safety supervisor contacted MSHA and asked if it was
permissible to use College of Eastern Utah instructors to complete
annual retraining for the miners. The College of Eastern Utah has
a mining department with MSHA qualified instructors. Permission
was given by MSHA for respondent to do this (Tr. at 181).
18. On November 2, 1982, Vrettos met with complainant and
informed her of the results of the audit. and told complainant he
was changing her suspension to a termination as of that date. The
"blue slip" given to complainant read "improper insufficient work

1284

performance." Later on Vrettos called complainant and asked if
she wished to "quit." Complainant's response was "No, you fired
me and we'll leave it there" (Tr. at 182).
19. On November 27, 1982, complainant filed a discrimination
complaint with the Utah Anti-Discrimination Division alleging she
was fired because of her sex and age (56) and replaced with a male
who was younger and less experienced. The matter was settled by a
written agreement dated January 19, 1983 wherein the respondent
agreed to revise complainant's personnel file from "poor work
performance" to "resigned for personal reasons", expunge file of
any and all comments related to this charge, provide neutral
references, and discontinue its appeal action against
complainant's request for unemployment compensation CExh. R-4).
DISCUSSION
Under the analytical guidelines established in Secretary on
behalf of Fasula v. Consolidation Coal Corp., 2 FMSHRC 2786
(October 1980), rev'd on other grounds sub nom., Consolidation
Coal Corp. v. Marshall, 663 F. 2d 1211 (3rd Cir. 1981), and
Secretary on behalf of Robinette v. United Castle Coal Company, 3
FMSHRC 803 (April 1981), a prima facie case of discrimination is
established if a miner proves by a preponderance of the evidence
that (1) she engaged in protected activity and (2) the adverse
action against her was motivated in any part by that protected
activity.
If a prima facie case is established, the operator may
defend affirmatively by proving that the miner would have been
subject to the adverse action in any event because of his unprotected conduct alone. See NLRB v. Transportation Management
Corp.,
U.S.
, 76 L.Ed. 2d 667 (1983). Also, see
Secretary on behalf of Patricia Anderson v. Stafford Construction
Company and Federal Mine Safety and Health Review Commission, F.
2d
CD.C. Cir. 1984), stating that an agency like the
Commission has ample authority to adopt the Fasula burden of proof
allocation. See Berch v. FMSHRC, 719 F. 2d 194, 196 (6th Cir.
1983).
In the case at .issue here, Complainant alleges she was fired
or discharged from her position as training instructor for
respondent because she stated at the annual retraining session on
November 1, 1982, that the training plan was not being followed
and that "fraudulent" certification of training was issued for
training not given or was inadequate. Also, that this was a
culmination of a problem between complainant and William Vrettos,
her immediate supervisor, which started in April 1982
(Complainant's Brief at p. 1).
I find that when the complainant asserted that there were
some inadequate certifications of training of miners on their
5000-23's both in April 1982 and on November 1, 1982, during the

1285

retraining class, she was engaged in activity that is protected
under the Act. The facts show that complainant was sufficiently
concerned about the 5000-23 forms to contact Vrettos and employees
of the safety department about this (Finding No. 6). On October
20, 1982, she also contacted members of the miner's union safety
committee and advised them of her problems with training. At this
time the complainant asked if the union officials thought the
matter should be referred to MSHA. The union's response was that
it should be worked out with the company at that particular time
rather than involve MSHA (Finding No. 12).
The specific question is whether complainant's discharge was
in any way or part motivated by or retaliation for the above
protected activity.
If so, a prima facie case is proven and the
burden shifts to respondent to demonstrate by a preponderance of
the evidence that the complainant would have been discharged even
if she had not engaged in the protected activity.
Respondent presents two arguments: 1) That complainant's
termination was not motivated in any part· by her protected
activity. 2) If it were found that respondent was motivated in
part in discharging complainant for her protected activity, she
would have also been terminated for her unprotected activities
alone (Respondent's Brief at 6 and 9).
I find that the complainant has failed to show that she was
fired by reason of her protected activity under the Act. The
preponderance of the most credible evidence shows that complainant
was discharged for her failure to adequately perform the duties
assigned her as respondent's training supervisor. Also, timeliness of completion of tasks under the year's (1982) action plan
was obviously a cause for conflict and discord between complainant
and Vrettos. This is evident from the various documents admitted
as exhibits in this case which describe the dissatisfaction of
complainant's immediate supervisor with her job performance (Exhs.
C-1, C-5, C-10, R-1, R-3).
The undisputed evidence shows that a 1982 action plan was
discussed and agreed upon between Vrettos and complainant in the
latter part of 1981 (Exh. R-1). The most credible evidence shows
that complainant failed to follow or meet the requirements of the
plan by March, 1982. At a meeting between complainant and
Vrettos, he informed her that she had not met the deadlines or
performed the tasks set out and was in the future to adhere to it
"without"exception" (Finding No. 5). Also, at meetings between
Vrettos and complainant in May and the second week in July 1982,
and then weekly thereafter into the fall, Vrettos "tried to get
Marge to follow the plan." (Tr. at 142). The parent company's
internal audit in September 1982 found deficiencies in the
training department indicating a "lack of timely follow-up to
document the training conducted on hourly employees, noncompliance

1286

with MSHA regulation requiring the documentation on both safety
and task training", and other suggestions that management should
adopt in training procedures (Exh. R-2). Based on this audit,
Vrettos met with complainant on September 15, 1982, and
established a two week deadline for auditing task training records
to have them be in compliance with company and MSHA regulations.
This was not completed as requested and the deadline was extended
to October 10, 1982 which again was not met. Vrettos then
assigned the job of auditing the underground mines to the Safety
Department while complainant was assigned the job of auditing
surface employees. Complainant had not performed her part of the
task by October 28, 1982 (Tr. at 149-154).
As a result of the above continuing concern over the training
department, Vrettos·met with complainant on October 14, 1982 and
outlined his criticisms of her performance. This was reduced to
writing (Exh. C-10). Complainant was demoted from supervisor to
training instructor and givert written job responsibilities and
deadlines (Finding No. 11). Also, complainant was advised that
her job with respondent was in "jeopardy".
On October 28, 1982, Vrettos again met with complainant and
indicated she was failing to furnish required weekly reports of
her performance and also discussed the forth-coming annual
retraining session. Vrettos gave her specific instructions as to
what he wanted covered and that other employees were to instruct
certain parts of the course. After his attendance at the meeting,
Vrettos met with complainant and expressed displeasure with her
performance and compliance with his instructions. Following an
audit of the training department records on the following morning,
Vrettos discharged complainant.
Complainant contends that much of the above occurred because
of Vrettos attempt to make her job difficult, if not impossible to
perform, to create a paper-trail rather than give proper training,
and transfer her duties from training to other individuals not
qualified (Complainant's Brief p. 1). Also, the charge is made by
complainant that Vrettos was upset because of her "exposure" in
the November 1, 1982 retraining session of "fraudulent
certification" of task training forms. Whether or not Vrettos was
"upset" over this is not the issue here. The specific issue is
whether complainant was discharged because of these complaints. I
do not find the evidence in this case supports complainant's
argument. The facts as detailed above, show that when complainant
indicated to Vrettos her concern regarding task training, he
arranged for such a training class to be taught by complainant
(Tr. at 144 and Exh. C-1 and C-2). This incident showed that
Vrettos responded in April 1982 in a positive manner to
complainant's concerns.

.1287

Further, prior to complainant's statements made at the annual
retraining class on task training, Vrettos had already indicated
complainant's job was in jeopardy, not due to her protected
activity, but rather, her failure to perform her duties of
supervisor of the training department in a satisfactory manner.
I am persuaded by the overwhelming weight of evidence that
respondent fired the complainant for her unprotected conduct
alone.
CONCLUSIONS OF LAW
1. Respondent at all times pertinent to this case was the
operator of mines subject to the provisions of the Federal Mine
Safety and Health Act of 1977.
2. I have jurisdiction over the parties and subject matter
of this proceeding.
3. Complainant failed to show by a preponderance of the
evidence that she was fired because of any activity protected
under the Act.
ORDER
Based upon the above findings of fact and conclusions of law,
IT IS ORDERED that this proceeding is DISMISSED.

~~-:?~-·_/J?~
Virg~J.

Admi

• Vail
strative Law Judge

Distribution:
Ms. Marjorie Zamora, 238
(Certified Mail)

s. 300 West, Vernal, Utah

84078

Barry D. Lindgren, Esq., Labor Relations, Mountain States
Employers Counsel, Inc., 1790 Logan Street, Denver, Colorado
80201 (Certified Mail)

/blc

1288

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, &TH FL®R
WASHINGTON, D.C. 20006

May 11, 1984
KITT ENERGY CORPORATION,
Contestant

v.

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

.

CONTEST PROCEEDING

:

Docket No. WEVA 84-92-R
Citation 2262913; 11/29/83

.

Kitt No. 1 Mine

DECISION
Appearances:

Bronius K. Taoras, Esq., for Kitt Energy
Corporation, Contestant;
Jonathan Kronheim, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Respondent.

Before:

Judge Merlin

This case is a Notice of Contest filed on December 27,
1983, by Kitt Energy Corporation under Section lOS(d) of the
Act, 30 u.s.c. § 81S(d) to review a citation dated November 29, 1983, issued by an inspector of the Mine Safety and
Health Administration (hereinafter referred to as "MSHA")
under Section 104(d) (1) of the Act, 30 U.S.C. § 814(d) (1).
By Notice of Hearing dated January 13, 1984, this case was
set for hearing on March 13, 1984. The hearing was held as
scheduled.
At the hearing, the parties agreed to the following
stipulations:
(1)

The applicant is the owner and operator of the
subject mine.

(2)

The mine is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977.

(3)

The Administrative Law Judge has jurisdiction
of this case pursuant to Section 105 of the
1977 Act.
.

(4)

The inspector who issued the subject order
was a duly authorized representative of the
Secretary of Labor.

1289

(5)

A true and correct copy of the subject order was
properly served upon the operator in accordance
with the 1977 Act.

(6)

A copy of the subject order is authentic and may
be admitted into evidence for the purpose of establishing its issuance, but not for the truthfulness or relevance of any statement asserted
therein.

(7)

Inspector Tulanowski conducted an inspection of
the Kitt No. 1 Mine on November 29, 1983.

(8)

In the course of his inspection, Mr. Tulanowski
discovered two areas as described in the subject
order along the C Mains No. 2 belt where float
coal dust was present in the belt entry.

(9)

The float coal dust was present only on the floor,
and not on the roof or ribs or on the equipment
in the entry.

(10) The float coal dust described in the order
constituted a violation of 30 C.F.R. § 75.400.
(11) The subject mine is classified as a gassy mine,
liberating 2,400,000 cubic feet of methane per
24 hours.
(12) Section 104(d) (1), Citation No. 2263047, ~ssued
on November 2, 1983, is the p,rocedural basis
for the order which is the subject of this p;roceeding.
Section 304(a) of the Act, 30 U.S.C. § 814(~), which
also appears in 30 C.F.R. § 75.400, proyides as follows:
Coal dust, including float coal dust deposited
on rock dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be
peri:nitted to accumulate in active workings, or on
electric equipment therein.
The subject Order No. 2262913 describes the violative
condition or practice as follows:
There was float coal dust (_black in color) deposited
on the rock-dusted surface of the mine floor, beginning at survey station No. 48 + 39.83 C-Mains No. 2
Conveyor belt, and extending for a distance of approximately 600 feet inby and beginning at the tailpiece
and extending for a distance of approximately 600 feet
outby. This condition was reported in the preshift
examiner's book since the 11-14-83. John Helms, Mine
Foreman.

1290

The validity of the underlying citation was upheld in a
decision dated March 23, 1984 (WEVA 84-60-R). As set forth
above, the parties have stipulated that.a violation existed
as described in the order. The issue remaining for resolution with respect to the validity of this (d) (1) order is,
therefore, unwarrantable failure.
Old Ben Coal Company, 1
FMSHRC 1954, 1959 (1979). Unwarrantable failure exists
where the operator failed to correct conditions it knew or
should have known existed or which it failed to correct
because of a lack of due diligence or because of indifference or lack of reasonable care.
Zeigler Coal Company, 7
IBMA 280 (1977) •
It was reported in the preshif t books that from November 14 to November 28 the belt needed dusting (Tr. 15). The
operator's witnesses allege that the entry "needs dusted" in
the preshift and onshif t reports did not refer to float coal
dust. However, this entry was the only one ever made to describe the condition of the belt. The onshift report for
the very shift on which the order was issued contained an
entry "needs dusted". The operator has stipulated the existence of float coal dust in this instance.
(Tr. 6)
A
review of all of the evidence renders more persuasive the
inspector's testimony, that based upon his experience the
entry "needs dusted" in the preshift and on shift books
indicated the presence of float coal dust (Tr. 60-66).
In addition, in more than three fourths of the reports,
it was also recorded that there was work in progress (Tr.
16-17, 60). Mr. Phares, the belt cleaner who was working
the midnight shift when the subject order was issued, testified about his work on the belt during this two week
period (Tr. 126, 158-161). Each day he dragged the belt and
worked ·on the areas which needed float dust cleared away
(Tr. 126). He also checked the drive for splices, rock
dusted the drive, ch~cked the take up rollers, and made sure
that the drive was running safely and water was correctly
put on the belts (Tr. 134). Mr. Phares testified that there
was a belt cleaner on another shift, Mr. Carr, who had been
working the afternoon shift before the order was issued (Tr.
127, 149). Mr. Phares and Mr. Carr rotated shifts (Tr.
127). Mr. Carr did not testify and the witnesses who did
testify did not know exactly what his duties were or how
much time he spent cleaning the belt (Tr. 127, 149-150, 249250) .
As demonstrated by the preshif t books and the testimony
at the hearing, this is not a case where the operator did
not work on the belt. The record shows that work was done
on the belt throughout the period, but it also shows that
the work done was never enough to entirely clean up the
belt. Mr. Phares testified that on one occasion, he had
been able to clean the entire belt up to the tailpiece in

1291

one day's time but only on the clearance side (Tr. 158-161).
Moreover, Mr. Phares told the mine foreman and the section
foreman that the belt was in bad condition, it was hard for
him to keep up with the amount of dust on the belt, pod
dusting was needed and it would be nice if he had some help
(Tr. 138-142, 166-167). The mine foreman came by nearly
every day so he actually knew the condition of the belt (Tr.
162). The section foreman admitted that prior to November 28, Mr. Phares had said a number of times he could not
do the belt by himself (Tr. 238).
The section foreman testified that he did not give Mr. Phares any help because he
thought Mr. Phares was doing a good job (Tr. 239). Mr.
Phares may have been doing a good job in that he was doing
all that could reasonably be expected of him. However, as
shown by the condition found by the inspector and admitted
by the operator, and as demonstrated by Mr. Phares' testimony, he was not able to clean the entire beltline by himself.
Despite the fact that Mr. Carr may have spent some
time cleaning the belt on another shift, the entire length
of the beltline was not cleaned. The operator should have
put men on the belt, in addition to Mr. Phares and Mr. Carr,
sufficient to completely clean it. The operator's failure
to do so in the face of its actual knowledge of the belt's
condition constituted unwarrantable failure.
A separate and distinct basis for finding unwarrantable
failure exists because of the operator's failure to clean up
the belt on November 28. Mr. Phares testified that at the
end of the November 28 midnight ·shift, i.e. 8:00 a.m. on
that morning, he told the mine foreman the belt was in bad
shape and needed dusting (Tr. 28-29, 141). There is some
conflict in the evidence over what, if anything, the operator did in the intervening two shifts to clean up the belt.
Mr. Phares testified that when he returned the next night,
it looked like very little had been done (Tr. 145-146, 164).
The operator's evidence indicated that some portion of the
belt may have been cleaned between Mr. Phares' work on the
November 28 midnight shift and his work on the November 29
midnight shift (Tr. 225-229). But this evidence is not
clear because there was confusion between the witnesses over
the location of certain points in the belt entry (Tr. 79-83,
189-191). Moreover, the only work that could have been done
in the interval between Mr. Phares' two midnight shifts
would have had to have been done by Mr. Carr on the afternoon shift of November 28, but the operator's section
foreman did not know what Carr did on that shift (Tr. 250).
In any event, on the morning of November 28, management personnel were told by Mr. Phares that the belt was in bad
shape and needed dusting.
In light of this information, the
operator should have investigated the situation and taken

1292

action to have it completely cleaned up once and for all.
Here again, Mr. Phares may have had some help from Mr. Carr,
the extent of which cannot be determined on this record, but
whatever the extent of such help, it was insufficient because the belt was not completely cleaned. Old Ben Coal
Corporation, supra.
In light of the foregoing, the subject order is Affirmed and the operator's Notice of Contest is Dismissed.

-==RP~lin.

Chief Administrative Law Judge

Distribution:
Bronius K. Taoras, Esq., Kitt Energy Corporation, 455 Race
Track Road, P.O. Box 500, Meadow Lands, PA 15347
(Certified Mail}
Jonathan Kronheim, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
(Certified Mail}

/nw

1293

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

FMC CORPORATION,
Contestant

CONTEST PROCEEDING

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

:
:

FMC CORPORATION
Respondent

Docket No. WEST 81-100-RM
Citation/Order No. 5771201
11/12/80

.: FMC Mine
..: CIVIL PENALTY PROCEEDINGS
:
:

:

Docket No. WEST 80-140-M
A.C. No. 48-00152-05013
Docket No. WEST 80-477-M
A.C. No. 48-00152-05025
Docket No. WEST 81-233-M
A.C. No. 48-00152-05041 I
Docket No. WEST 81-289-M
A.C. No. 48-00152-05047 I

:

FMC Mine

:
:
:

v.

HAY 141984

..

Appearances:

John A. Snow, Esq., Vancott, Bagley, Cornwall &
McCarthy, Salt Lake City, Utah,
for Contestant/Respondent1
Robert J. Lesnick, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Respondent/Petitioner.

Before:

Judge Vail

STATEMENT OF THE CASE
These consolidated cases arise under the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seg. In the four
civil penalty cases, the Secretary seeks to have a civil penalty
assessed for an alleged violation of a mandatory safety standard.
Docket No. WEST 81-100-RM is a request for review by FMC
Corporation CFMC) of Citation No. 577120 issued for an alleged
violation of 30 c.F.R. 57.3-22. Docket No. 81-233-M is the civil
penalty proceeding pertaining t~ Citation No. 577120 contained in
WEST 81-100-RM, and on motion of FMC, was consolidated with WEST
81-233-M.
An evidentiary hearing was held in Green River, Wyoming.
Based upon the entire record and considering all of the arguments
of the parties, I make the following decision. To the extent
that the contentions of the parties are not incorporated in this
decision, they are rejected.

ISSUES
The principal issues presented in this proceeding are: Cl)
whether respondent has violated the provisions of the Act and
implementing regulations as alleged in the proposal for assessment of civil penalties filed herein; and, if so, (2) the
appropriate civil penalty that should be assessed against the
respondent for the alleged violations upon the criteria as set
forth in section llOCi) of the Act. Additional issues raised by
the parties are identified and disposed of in the course of this
decision.
In determining the amount of a civil penalty assessment,
section llOCi) of the Act requires consideration of the following
criteria: Cl> the operator's history of previous violations, (2)
the appropriateness of such penalty to the size of the business
of the operator, (3) whether the operator was negligent, (4) the
effect on the operator's ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of
the operator in attempting to achieve rapid compliance after
notification of the violation.
STIPULATIONS
The parties stipulated to the following:
1. FMC does not contest the jurisdiction of Federal Mine
Safety and Health Act in any of the above consolidated cases.
2.

FMC mine would be considered a large operation.

3. The history of past violations would neither cause an
increase or decrease in the amount of a civil penalty assessed in
these cases.
4. The assessment of a civil penalty would not affect FMC's
ability to continue iri business.
5. FMC exhibited good faith in the abatement of the issued
citations considered in these consolidated cases.
Docket No. WEST 80-477-M
During an inspection of the No. 8 shaft-sinking project at
respondent's FMC mine, MSHA inspector Fred Hanson issued a type
107(a) order No. 337405 alleging a violation of 30 C.F.R.
§ 57.19-128 which reads as follows:
Mandatory. Ropes shall not be used for hoisting
when they have: (a) More than six broken wires in

1295

any lay. Cb) Crown wires worn to less than 65 percent of the original diameter. Cc) A marked amount of
corrosion or distortion. Cd) A combination of similar
factors individually less severe than those above but
which in aggregate might create an unsafe condition.
The inspector stated in the order that a section of the
hoist rope, approximately 30 feet in length above the bucket, had
numerous broken wires and a considerable amount of distortion.
He stated that this created a hazard to personnel working below
in the shaft. In a subsequent action, the inspector changed the
"part and secti6n" designation in the order to a 30 C.F.R.
§ 57.19-128(d).
Hanson testified that after bringing the rope to the surface
it was cleaned with a solvent. He observed approximately 30 feet
of the rope was in "very poor shape" with more than 6 broken
wires in a lay. l; The crown wires were very worn with some
wires sticking out (Transcript at 11-12). Melvin Jacobson, MSHA
Field Office Supervisor, testified that he observed the rope on
the day the citation was issued and opined that the rope was in a
severe "state of affairs" with broken wires and abrasions (Tr. at
29).
A section of the rope was cut off, tagged, and sent to MSHA
Technical Support Staff in Denver, Colorado for examination. In
a document dated November 1, 1980, Roy L. Jameson, safety
specialist, reported that from the results of the wire rope
analysis and a tensil test, it was concluded that this rope
specimen was appropriately removed from service because of severe
deterioration. The service life of the rope specimen was
considered to have exceeded a safe margin of safety for man
hoisting CExh. P-6).
Respondent argues that the petitioner failed to prove by a
preponderance of the evidence that a violation of the cited
standard occurred. Julius Jones, respondent's safety manager,
testified that after the rope had been pulled from the shaft and
placed on the ground, he ran a rag over it and found no broken
wires. This is an accepted practice used to check for broken
wires in a rope (Tr. at 33-34 and Exh. R-1). David Jones,
respondent's safety director, testified that he did not observe

1/ Lay. The direction, or length, of twist of the wires and
strands in a rope. Zern. d. The length of lay of wire rope is
the distance parallel to the axis of the rope in which a strand
makes one complete turn about the axis of the rope. Bureau of
Mines U.S. Dept of Interior, A Dictionary of Mining, Mineral and
Related Terms (1968).

1296

distortion in the rope and after unraveling the strands, found
some broken wires but less than six in a single lay (Tr. at 57).
Also, a measurement showed that wear of the crown wires was less
than 35 percent (Tr. at 57-58).
After careful consideration of all the evidence in this
case, I find that the petitioner failed to prove that the
condition of the cited rope was a violation of 30 C.F.R. § 57.19128(d). The specific issue is whether there was a violation of
subsection (d) of standard § 57.19-128. That is, were there a
combination of factors, less severe than the three listed
factors, that might create an unsafe condition.
In light of the
petitioner's evidence, I do not find that he has proven such a
combination of factors. Also, I find that the (d) portion of the
standard to be too vague, indefinite, and uncertain to give the
respondent notice of what is required to determine when the rope
should be replaced.
The testimony as to the condition of the rope is conflicting
and confusing. Jameson reported that under microscopic examination, he found crack initiations and crown wear. Although
there is considerable general information in his report dated
November 1, 1980 (Exh. 6), and the supplement thereto, the
specifics do not show a violation of any of the first three
provisions of the standard. There was no showing of 6 broken
wires in a lay although there was testimony that crack initiations be considered evidence of broken wires.
Also, no distortion was alleged to exist in the tested wire,
although some corrosion was found. At the most, the report
lacked clarity. The conclusion stated the writer's opinion that
the rope should be removed from service due to deterioration.
I
find no mention of deterioration in the standard as grounds for
citing an operator.
Jameson appeared at the hearing and testified regarding his
report and stated that the tensil test of the rope had no direct
relationship to the possibility of breakage of the rope.
It will
only tell you whether the rope will break at a higher or lower
strength than that assigned in the catalogue listing of its
tensil strength (Tr. at 43). The balance of Jameson's testimony
failed to explain where in his report it proved a violation of
any of the three specific items listed as (a)(b) and Cc) under
the standard was indicated. It must be assumed from this
evidence that the violation occurred under Cd).
Petitioner's witnesses testified that the rope was unsafe
based upon generalizations. These statements would, in
combination, allude to paragraph Cd) of the standard which states
that conditions less severe than the three specific findings
might create an unsafe condition. I find this part of the
standard vague and difficult to apply. Any number of situations
and conditions come to mind that might create an unsafe condition.

1297

My concern is that such a provision is not specific enough
to put the operator on notice as to what the requirement is as to
when a hoist rope should be removed from service if it does not
meet the first three provisions of the standard. Apparently, the
same concerns where recognized by the drafters of these standards
as 57.19-128 was rewritten and new standards adopted effective
January 24, 1984. These standards are now designated 30 C.F.R.
§ 57.19-24. There is not a reference in this standard similar to
Cd) in§ 57.19-128, and the term might has been abandoned in the
new adopted standard.
Regarding the issue of vagueness in standards or
regulations, the Commission has authority to determine the
validity of standards under the 1977 Act. See Sewell Coal
Company, 2 MSHC 1345 (1981), Alabama By-Products Corporation, 2
MSHC 1981 Cl982). In order to pass constitutional muster, a
statute or standard adopted thereunder, cannot be "so incomplete,
vague, indefinite or uncertain, that men of common intelligence
must necessarily guess at its meaning and differ as to its
application." Connolly v. Gerald Constr. Co., 269 U.S. 385, 391
(1926). Rather, "laws (must) give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited
so that he may act accordingly." Grayned v. City of Rockford,
408 U.S. 109, 108-109 (1972).
Therefore, in this case the question is whether the operator
would know what section (d) of the cited standard required of him.
I find that the wording of this section would be difficult to
interpret and follow. Also, the drafters of the replacement
regulations recently adopted felt the same way and chose not to
adopt a similar provision. Therefore, Citation No. 337405 is
vacated.
Docket No. WEST 80-140-M
In this case, petitioner issued four citations and proposed
penalties therefore as follows:
Citation No.
576186
575778
337305
337306

Date
8/15/79
8/16/79
8/17/79
8/17/79

30 C.F.R.
Standard
57.12-18
57.15-5
57.16-6
57.9-2

Proposed
Penalty
$210.00
255.00
30.00
305.00

Citation Nos. 575778 and 337306
At the hearing of this case, the parties stipulated that a
deposition would be taken of the inspector issuing citation Nos.

1298

575778 and 337306 and furnished to the Judge in order that a
decision could be rendered. On April 20, 1984, the petitioner
filed a motion to withdraw the proposal for penalties for the
mine inspector who issued the citations is not now employed by
MSHA and unavailable to provide testimony in support of the
citations. The respondent has filed no opposition to this motion
and therefore the two citations are vacated.
Citation No. 576186
MSHA inspector Gerry Ferrin issued citation No. 576186,
while on a regular inspection, for an alleged violation of 30
C.F.R. § 57.12-18 2/ due to the respondent's failure to have a
label on a main power switch to show which piece of equipment it
controlled. Ferrin testified that identification of which piece
of equipment was controlled by the switch could not be identified
by its location from the distribution center it was attached <Tr.
at 6). The hazard in this case was that a maintenance mechanic
or or electrician working on the particular piece of equipment
involved could tag or lock out the wrong switch through misidentification and receive an electrical shock (Tr. at 6, 7).
There is nominally 480 volts involved here. The equipment
serviced by this particular switch and cable was a fan.
The respondent did not present any evidence or submit a
brief in this case. I find that a violation of·§ 57.12-18, as
alleged did occur. The operator was negligent in failing to
properly label the switch involved here. The gravity is that a
serious injury could occur to a miner including death as a result
of such a failure to provide proper labeling. The operator
abated the citation in good faith by labeling the male portion of
the plug at the bitter end of the trailing cable that fits into
the distribution box (Tr. at 12, 15). I find the proposed
penalty of $210.00 is reasonable in this case.
Citation No. 337305
MSHA inspector Martin Kovick, during a regular inspection of
respondent's surface operation issued Citation No. 337305 wherein

2/ 57.12-18 Mandatory. Principal power switches shall be
labeled to show which units they control, unless identification
can be made readily by location.

1299

he alleged a violation of 30 C.F.R. § 57.16-6 3/. Kovick
testified that he observed a Union Pacific Railroad Company
{"Union Pacific") truck near the respondent's load-out area with
acetylene tanks standing in the back of the truck with the gauges
or regulators on them. The standard requires that when
compressed gas cylinders are transported or stored~ the
regulators {valves) are to be removed and covers are to be put on
{Tr. at 21).
Respondent presented testimony at the hearing that the mine
site involved i~ this citation is located on property it leases
from Union Pacific and that the railroad's property "pretty much"
surrounds respondent's leasehold {Tr. at 28). Robert L. May,
respondent's surface safety supervisor, stated that Union Pacific
employees and vehicles have a right of entry onto and across the
respondent's property including a key to the main gate.
Respondent did not produce at the hearing, or subsequent thereto
as agreed to at the hearing, a copy of the document or lease
agreement covering Union Pacific's rights on respondent's leased
property.
Respondent argued that they had entered into the lease
agreement prior to the Federal Mine and Safety Act being adopted
and that the Union Pacific is not subject to the Act. Also, the
Union Pacific retained an exclusive right to right-of-way over
the leased property and is not subject to control by respondent
{Tr. 31).
The specific issue is whether the violation cited in this
case was the responsibility of the respondent.
I find that the
petitioner has failed to prove that the mine operator in this
case is responsible for the Acts of the Union Pacific employees.
The facts show that the alleged violation of § 57.16-6 did occur
on mine property under the control of respondent. Also, the
parties agree that the compressed gas cylinders were in a truck
owned by Union Pacific and operated by their employees. There is
no evidence, or does the petitioner contend, that the Union
Pacific is an agent or independent contractor for the mine
operator. Therefore, the provisions of the Act and regulations
that apply to these two situations are not applicable here.
I am unable to find any provision of the Act or its
regulations, or prior decisions by the Commission or the Courts,
which gives direction as to whether the mine operator should be

3/ 57.16-6 Mandatory. Valves on compressed gas cylinders shall
be protected by covers when being transported or stored, and by a
safe location when the cylinders are in use.

1300

held responsible for all acts on the mine property which violate
the Act. In El Paso Rock Quarries, Inc., 1 FMSHRC 35, 32, (1981)
the Commission considered the issue of whether the operator may
be held liable when its customers or employees of its customers
do not comply with mandatory safety standards. In this case, the
parties were "rock pickers" who are not employees of the operator
but were allowed on the mine property as customers or employees
of customers to break up rock blasted loose by the operator and
subsequently collected in a truck and hauled away. The
Commission affirmed Judge Moore's decision that the "rock
pickers" are miners in accord with section 3(g) of the Act which
defines "miner" as "any individual working in a coal or other
mine."
I find a definite distinction between the customers in the
El Paso, c~se and other decisions involving independent
contractors and haulers of materials and the Union Pacific employees in this case. Here, ·the truck was only passing through
the mine property on its way to other Union Pacific property. It
would be stretching the usual liberal interpretation of the Act
too far to find the employees of Union Pacific in this instance
"miners" and, as such, subject to the mandatory standards.
Such an interpretation would impose a requirement on the operator
to be responsible and check all vehicles that entered on its
property for whatever reason. I do not believe there is
sufficient control of the Union Pacific employees in this case to
justify such an interpretation.
I find that the petitioner has failed to prove a violation
here against respondent and Citation No. 337305 is dismissed.
Docket No. WEST 81-289-M
Citation No. 576979 was issued to respondent on September 8,
1980, ·and charges a violation of 30 C.F.R. § 57.9-37 as a result
of a maintenance jeep being parked on a grade without the wheels
being blocked or turned into the rib. The jeep rolled forward
pinning a miner against the belt control box. The accident
resulted in injuries to the miner. The cited standard provides
as follows:
Mandatory. Mobile equipment shall not be left
unattended unless the brakes are set. Mobile equipment with wheels or tracks, when parked on a grade,
shall be either blocked or turned into a bank or rib;
and the bucket or blade lowered to the ground to
prevent movement.
Respondent does not deny that the accident occurred or the
violation of the standard cited. Instead, respondent contends
that the penalty proposed by the Secretary is too high. In
support of this argument, respondent contends it was their policy
to require that all mobile equipment, when parked on a grade,
have chocks placed behind the wheels and that it be turned into
the rib. Kim Curtis. the miner involved in the accident in this

1301

case, testified that he was told by his supervisor, that any time
he got off the mantrip (jeep), to make sure to put blocks behind
the wheels. This conversation occurred approximately two weeks
prior to the accident. Curtis admitted that there were blocks
available on the jeep. However, he was only going to stop for a
half minute and didn't set the blocks (Tr. at 8, 9).
The facts in this case shows that respondent's employee
Curtis was negligent in failing to follow the procedure for
parking vehicles on a grade. Also, the gravity of the violation
is high as evidenced by the resulting injuries to the miner and
potential for death that could result. However, the facts also
show that the respondent had required that its miners follow the
procedures outlined in the standard. Curtis testified that as a
result of a similar.accident which had occurred earlier, his
supervisor had told him that any time he got off the mantrip, to
make sure he put the blocks behind the wheels (Tr. at 7).
It is well-settled that under the Mine Act, an operator is
liable without fault for violations of the Act and mandatory
standards committed by it employees. Allied Products Co. v.
FMSHRC,
F. 2d
, No. 80-7935, 5th Cir. Unit B (Feb. 1,
1982). In Southern Ohio Coal Company, 4 FMSHRC 1464, (August
1982), the Commission reversed an administrative law judge's
decision holding that the negligence of rank-and-file nonsupervisory employees may be directly imputed to the operator
for the purpose of penalty assessment. The Commission stated as
follows: "However, where a rank-and-file employee has violated
the Act, the operator's supervision, training and disciplining of
its employees must be examined to determine if the operator has
taken reasonabl~ steps to prevent the rank-and-file miner's
violative conduct. Nacco, supra, 3 FMSHRC at 850-851."
The only evidence presented in this case regarding this
point indicates that Curtis's supervisor had instructed him to
follow the procedures outlined in the standard as late as two
weeks prior to the accident (Tr. at 6). Based on this, I find
that the penalty proposed by the Secretary should be reduced. I
find a penalty of $100.00 is reasonable in this case.
Docket No. WEST 81-233-M.and
Docket No. WEST 81-100-RM
Citation No. 577120 was issued on November 12, 1980 as a
result of an accident on November 6, 1980 involving a rock that
fell and struck a miner. The citation alleged a violation of 30
C.F.R. § 57.3-22 which states as follows:
Mandatory. Miners shall examine and test the back,
face, and ribs of their working places at the beginning of each shift and frequen_tly thereafter.
Supervisors shall examine the ground conditions during
daily visits to insure that proper testing and ground

1302

control practices are being followed. Loose ground
shall be taken down or adequately supported before any
other work is done. Ground conditions along haulageways and travelways shall be examined periodically and
scaled or supported as necessary.
The condition or practice described in the above citation
reads as follows: "A miner working in 20 cross-cut of #4 room in
7 CM Panel was injured when a rock about 42 inches long, 20
inches wide and from 10 to 4 inches thick fell from the roof
stricking (sic) him in the upper back. The roof was approx. 7
1/2 feet above the floor. The miner stated that he checked this
rock at the beginning of the shift but did not continue to check
it or support it. Approx. two hours after checking the rock it
fell and struck him. This man's foreman had not been in this
area during the shift prior to the accident. The shift started
about 0001 hours 11/6/80 and .the accident happened about 0240
hours 11/6/80. The miner.arrived at his working place at
approximately 0045 hours 11/6/80. The miner stated that he had
sounded the rock but had not tried to scale it down." The
citation was abated by holding a safety meeting and everybody was
cautioned about working under bad ground and the proper way to
scale and support.
As a result of the issuance of the above citation,
respondent filed a notice of contest which is docketed at WEST
81-100-RM and has been consolidated with the penalty proceeding
WEST 81-233-M. In the request for review, respondent requested
that the citation be vacated.
The facts in the above consolidated cases are not basically
in dispute. I find that on November 6, 1980, Ivan Miller,
respondent's employer, commenced work at the FMC mine at 12:00
midnight. For six months, Miller, as part of a crew, was working
in a section of the mine described as 7 CM Panel of the mine, and
on the night of the accident, in 20 cross-cut of #4 room. Miller
had been working in this same area for the preceding six months
and during that time, was in the area 3 or 4 times a week and the
only shift working in the area during that time (Tr. 7). Miller
testified that he entered the mine at midnight and after loading
up the welder, it took approximately one and a half hours to get
to the area where he was to work (Tr. at 23).
The area where the roof fall occurred was in an established
part of the mine and the roof had been bolted. Miller stated
that he examined the roof by "sounding" it and barred down some
loose rocks (Tr. at 6). Miller did not know where the rock that
struck him fell from so did not know if he barred that area.

1303

Miller testified that he started cutting with a welding
torch on a steel plate and continued working for approximately an
hour to an hour and a half, after his arrival at the location,
when a rock fell and struck him in the back causing injuries. He
also stated that he had frequently checked the roof while he was
working {Tr. at 8).
MSHA Inspector William Potter testified that he went to the
FMC mine to investigate this accident shortly after it was reported by the respondent. When he arrived at the location
underground, the injured miner had been removed to the hospital.
He examined the site and concluded that the rock that struck the
miner had fallen from a point right over where the miner was
working. Potter stated that he would call the location where the
rock had fallen from as the "brow." {Tr. at 48).
There is some testimony by Potter in this case that a crack
had existed in the area from where the rock fell for a period of
time and that Miller and other miners whose names he did not know
had indicated that they had tried unsuccessfully in the past to
bar this down {Tr. 46). I reject this as being unsupported by
the most credible evidence of record. First, it is denied by the
injured miner Miller who testified at the hearing that he did not
know where the rock fell from. Also, the other sources
of information was based on reference to statements made by
unidentified miners who were present during the investigation but
did not testify at the trial. No testimony of any witness
corroborated this information and fails to refute the testimony
of Miller.
Based on the most credible evidence in this case, I find
that petitioner, has not proven a violation by respondent of
§ 57.3-23 in thrs case.
This was not a new section of the mine
but rather an established area where the injured miner had been
working for six months. Miller was an experienced underground
miner and familiar with the conditions in a trona mine such as
the FMC mine. The evidence is not disputed that Miller examined
the roof of the area upon arrival and, in fact, barred down some
loose before he began his work. He also checked the roof
"frequently" while he worked. Potter testified that he thought
checking the roof on a basis of every 45 minutes to an hour would
be sufficient {Tr. at 33, 34). It is not determined here what
more the respondent, or its employee, could have done to have
prevented this accident. The procedure for supporting the roof
in this area of the mine is to use roof bolts on four foot
centers. This had been done. For a dangerous looking rock or
area, that cannot be barred down, timbering is used. However,
the credible evidence does not establish that such a situation
existed in this case. I therefore ORDER that Citation No. 577720
be vacated.

130.4

ORDER
1. In Docket No. WEST 80-477-M Citation No. 337405 is
VACATED.
2. In Docket No. WEST 80-140-M, Citation Nos. 575778 and
337306, in accordance with motion by petitioner to withdraw its
petitions for penalties, are DISMISSED. Citation No. 576186 is
affirmed and a penalty of $210.00 is assessed. Citation No.
337305 is DISMISSED.
3. In Docket No. WEST 81-289~M, Citation No. 576979 is
affirmed and a penalty of $100.00 is assessed.
4. In Docket Nos. WEST 81-233-M and WEST 81-100-RM,
Citation No. 577720 is vacated~
Respondent is ordered to pay a civil perialty in the total
amount of $310.00 within 40 days of the date of this decision.

~/??~£
Vircj{l E. Vail
Administrative Law Judge
Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, United States
Department of Labor, 1585 Federal Building, 1961 Stout Street
Denver, Colorado 80294 (Certified Mail)
John A. Snow, Esq., Vancott, Bagley, Cornwall & McCarthy 50 South
Main Street, Suite 1600, Salt Lake City, Utah 84144
(Certified Mail)
/blc

1~0fi

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

LAWRENCE L. EVERETT,

MAY 141984

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. YORK 83-6-DM

INDUSTRIAL GARNET EXTRACTIVES,
Respondent

MSHA Case No. CD 83-58

DECISION
Appearances:

Lawrence L. Everett, West Paris, Maine, pro se;
Carol A. Guckert, Esq., Portland, Maine, for~
Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant filed this case, contending that he was discharged on June 21, 1983, from the position of electrician
which he had with Respondent because of activity protected
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq.
Respondent denied that Complainant's discharge
was related to protected activity. Respondent filed certain
interrogatories on Complainant, some of which were answered
and some of which Complainant refused to answer.
Respondent
moved to dismiss the complaint on March 12, 1984, because of
Complainant's failure or refusal to answer the interrogatories.
I withheld my ruling on the motion. At this time, I Deny the
motion because Respondent failed to establish any prejudice
resulting from the refusal to answer the interrogatories in
question.
Pursuant to notice, the case was heard in Auburn, Maine,
on March 22, 1984. The case was consolidated for hearing with
the case of Ferrie W. Everett v. Industrial Garnet Extractives,
Docket No. YORK 83-7-DM, but since the cases involve separate
alleged discriminatory discharges, they are being decided
separately. Complainant and Forrie w. Everett testified on
Complainant's behalf; George B. Robinson, Deborah Hartness,
Bruce Sturdevant, Thomas Scott Hartness, Donald Berry, Daniel
Abbott and Richard Kusheba testified on behalf of Respondent.
The parties were afforded the opportunity of filing posthearing
briefs. Complainant filed such a brief; Respondent did not.

1306

Based on the entire record, and considering the contentions
of the parties, I make the follow~ng decision.
FINDINGS OF FACT
Complainant was employed .by Respondent beginning in
February, 1982, as a plant electrician. He had been an
electrician for 12 to 14 years, and his most recent previous
position was as an electrician for a mobile home manufacturer.
When he began with Respondent, he was paid $5.00 per hour.
Complainant found the Respondent's plant to be in "a total
shambles;" he had no material to work with and told Scott
Hartness, the Vice President for production who had hired him,
that he could not work under the conditions. Hartness assured
him that he would see that whatever Complainant needed would be
made available to him. An account was opened at an electric
supply company and a hardware store and Complainant was
authorized to buy materials and supplies.
Complainant understood that he was responsible to Hartness
alone. However, for about 1 month in the Spring of 1983, Wally
Hinch was made maintenance foreman, and at other times Bruce
Sturdevant was given authority over both production and
maintenance employees. Sturdevant never told Complainant that
he was his supervisor and Scott Hartness did not specifically
inform Complainant that Sturdevant was his boss. Complainant
regarded Hartness as his supervisor and continued to discuss
maintenance problems directly with him.
Complainant discussed safety problems in the plant with
Hartness regularly, and on several occasions submitted written
reports of unsafe conditions. The conditions were discussed
but "that was about the end of it."
In July, 1982, an MSHA inspection team visited the
facility.
Complainant went through the mill with them. A
number of electrical problems were pointed out and several
citations were issued. Complainant was directed by Hartness
to remedy the problems.
On June 20, 1983, a front-end operator, Danny Abbott, was
working on a machine when it was started by another employee.
Abbott had failed to lock out the machine. He told Complainant
about it and Complainant told Sturdevant. Sturdevant "didn't
want to talk about it. Just turned around and walked away"
(Tr. 19). Complainant then notified Hartness of the incident.
Hartness told Sturdevant to "make sure he understands to lock
the machinery out" (Tr. 99). Respondent was apparently having

1307

a problem with employees concerning lockouts and more lockout
tags had recently been ordered. Complainant had special
responsibility in this connection since he was an electrician,
and had given lectures to employees on electrical lockouts.
After the incident involving Danny Abbott, but still about
midmorning, Complainant was working on the engine of a fork
truck. He found a short circuit, "a wiring mess" (Tr. 20), and
in tracing the wires, he blew a number of fuses.
He finally
ran out of fuses.
He worked on the truck past dinner time.
Sturdevant told Complainant "look we've got to have that fork
truck, it's the only one we've got and I don't care how you
get it, but get it between all the other things" (Tr. 21).
Complainant punched out for dinner and drove his truck to
the hardware, got the needed fuses and returned to the mill.
He had a cup of coffee and sandwich; then he punched in, put
the fuse back in the fork truck and had it running before the
fork truck operator returned. He finished out the shift at
about 5:00 p.m., and went home.
Respondent paid its employees during their lunch time and
beginning in the Spring of 1983 notified all employees that
they were to remain on the company premises during lunch.
Thereafter, a number of employees complained to Sturdevant and
Hartness that Complainant continued to leave the premises to eat
lunch. Hartness specifically told Complainant that he was not
to leave at lunch time. Wally Hinch also told him and Complainant
objected with choice expletives to this direction. During the
afternoon of June 20, Sturdevant told Hartness that Complainant
had left again for lunch and that the other employees thought
Complainant was being treated with special favor.
At the end of
Complainant's shift, Hartness told him "I've had some complaints
lodged against you." Hartness then turned to talk to another
employee and Complainant left for home.
On June 21, 1983, when Hartness came to work about
20 minutes before 7, Sturdevant told him that he "pulled
[Complainant's] time card" (Tr. 102), which meant that he
fired him. When Complainant arrived that morning, Hartness
told him "Bruce pulled your time card • • • for leaving company
property during lunch hour" (Tr. 102).
Complainant then handed Hartness a written list of safety
complaints alleging that lock out procedures are not being
followed or enforced, general housekeeping is "practically
nonexistant," safety railings and catwalks are missing, a number
of unsafe electrical practices were permitted in the mill, and

1308

there was excessive dust in the air when the plant was operating.
Hartness handed the written statement to Sturdevant. Sturdevant
and Hartness wanted to talk about why Complainant left the
company property the previous day; Complainant wanted to talk
about his written complaint. Finally Complainant said that he
did not want to be bothered with this petty bullshit and that
Hartness and Sturdevant could take the job and shove it.
When he was discharged, Complainant earned $6.50 per hour.
He remained off work following his discharge until September 17,
1983, when he began working for Cornwall Industries as a
maintenance electrician and mechanic. He earns $5.30 per hour.
He does not seek to be reinstated in his position with Respondent.
ISSUES
1. Whether Complainant's discharge was motivated in any
part by activities protected under the Mine Safety Act?
2.
If it was, whether Respondent established that it would
have discharged him in any event for unprotected activities alone?
3.
If Complainant's discharge was in violation of the Act,
what remedies is he entitled to?
CONCLUSIONS OF LAW
In order to establish a prima f acie case of discrimination
under section 105(c) of the Mine Act, a Complainant bears the
burden of production and proof to show (1) that he engaged in
protected activity and (2) that an adverse action against him
was motivated in any part by the protected activity. Secretary
on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
(October 1980), rev'd on other grounds sub nom. Consolidation
Coal co~ v. Marshall, 663 F.2d 1211 (3rd cir:-1981), and
Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803 (April 1981) • In order to rebut a prima facie
case, an operator must show either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity.
If an operator cannot rebut the prima facie
case in this manner, it may nevertheless affirmatively defend
by proving that (1) it was also motivated by the miner's
unprotected activities, and (2) that it would have taken the
adverse action in any event for the unprotected activities alone.
The operator bears a burden of proof with regard to the.affirmative defense. Haro v. Magma Copper co., 4 FMSHRC 1935, 1937
(November 1982):----T°he ultimate burden of persuasion that illegal
discrimination has occurred does not shift from the Complainant.
Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC at 818 n. 20. The Supreme Court recently approved the

1309

National Labor Relations Board's virtually identical analysis
for discrimination cases arising under the.National Labor
Relations Act. NLRB v. Transportation Management Corp.,
76 L.Ed. 2d 667 (1983) • See ·also Boich v. FMSHRC, 719 F. 2d 194
(6th Cir. 1983) (approving the Commission's Pasula-Robinette
test).
It is clear that Complainant was concerned about safety at
the mill, particularly electrical safety.
It is also clear
that there were unsafe conditions and practices at the mill.
Complainant's personality was abrasive, particularly toward
his supervisors, and they reacted against his abrasiveness.
Part of the reaction, particularly that of Sturdevant, seems to
have been the result of Complainant's bringing up safety matters.
The proximity to the discharge of Complainant's remonstrance
to Sturdevant about the Danny Abbott lock-out problem, (a
protected activity) "is itself evidence of an illicit motive."
Secretary of Labor v. Stafford Construction Company and FMSHRC,
No. 83-1566, slip op. at 13 (D.C. Cir. April 20, 1984). I
conclude, therefore, that Complainant's discharge was motivated
in part by activity protected under the Mine Safety Act.
Other factors, however, played a part in the decision to
discharge Complainant. The evidence establishes that he
frequently violated the company rule that employees remain on
the premises during lunch time - this resulted in numerous
complaints from other employees who felt that Complainant was
given favorable treatment because of personal friendship with
Sturdevant. Complainant also had and voiced a negative attitude
about the company: He expressed the hope that the company would
go bankrupt or that it would be shut down by the State environmental authority. At a supervisors meeting on June 17, 1983,
a number of supervisors complained that Complainant "had become
a source of trouble with the other men • • • [and] has been
causing moral (sic) problems by telling everyone that Central
Maine Power was going to shut us down; the DEP was going to shut
us down • • • • he was constantly telling the other men that
IGE [Respondent] was never going to make it and other disparaging
remarks" (Respondent's Exh. 2). I conclude, therefore, that in
discharging Complainant, Respondent was also motivated by his
unprotected activities.
Did Respondent establish by a preponderance of the evidence
that it would have discharged Complainant regardless of his
protected activity? The stated reasqn for the discharge was
Complainant's leaving the company premises during lunch time.
In fact, he did and had done so in the past and was reprimanded
for it a number of times. He obviously believed the rule was
petty and flouted it. Whether the rule was petty or not, the

131_0

the flouting of it was causing dissention among the employees
and undermining the authority of Sturdevant and Hartness. A
complicating factor, however, is the fact that Complainant was
authorized to leave the property to purchase supplies and he
did so regularly.
It is clearly established that he both
purchased supplies and took lunch time when he left on June 20.
The supervision in the plant was lax and erratic. Scott Hartness
was "at times vague" (Tr. 80) according to Sturdevant.
Complainant contends that his discharge was unfair and unreasonable. The fairness and reasonableness of discharging Complainant
under the circumstances is not an issue which I have authority to
resolve, however. However unfair or unreasonable discharging
Complainant may have been, I conclude that the preponderance of
the evidence establishes that Complainant would have been discharged for unprotected activity alone, namely violating the
company rule concerning the lunch hour and undermining employee
morale. Therefore, no violation of section 105(c) of the Act has
been established.
ORDER
Based upon the above findings of fact and conclusions of
law, the complaint and this proceeding are DISMISSED for failure
to establish a violation of section 105(c) of the Act •

.//{~ ~/3i,vdL-t-l~-/(_

J.

James A. Broderick
. Administrative Law Judge

Di;::;tribution:
Mr. Lawrence L. Everett, RR 2, Box 1640, West Paris, ME 04289
(Certified Mail)
Carol A. Guckert, Esq., Law Office of Ralph A. Dyer, 477 Congress
Street, Portland, ME 04101 (Certified Mail)
/fb

1311

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

LONNIE JONES,

MAY iL \984

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 83-257-D(A)

D & R CONTRACTORS,
Respondent

MSHA Case No. BARB CD 83-19
DECISION

Appearances:

Jeffrey A. Armstrong, Esq., Appalachian
Research and Defense Fund of Kentucky,
Inc., Barbourville, Kentucky, for
Complainant;
Larry E. Conley, Esq., Williamsburg,
Kentucky, for Respondent.

Before:

Judge Melick

This case is before me upon the complaint of Lonnie
Jones under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act",
alleging that he was discharged from the partnership known
as D & R Contractors on April 25, 1983, in violation of
section 105(c)(l) of the Act.l Mr. Jones had charged in
his initial complaint before this Commission that he had
been unlawfully discharged on that date as an employee of
Mingo Coal Co., Inc. However, by decision dated March 8,
1984, it· was held that Jones had not been employed by Mingo
Coal Company, and that no representative or agent of Mingo
Coal Company was involved in the discharge of Jones from
D & R Contractors. That complaint was accordingly dismissed.
Lonnie Jones v. Mingo Coal Co., Inc., 6 FMSHRC 632.

1

Section 105(c)(l) of the Act provides in part as follows:
"No person shall discharge * * * or cause to be discharged or otherwise interfere with the exercise of the statuto~y rights of any miner * * * in any * * * mine subject to
this Act because such miner * * * has filed or made a complaint under or related to this Act, including a complaint
notifying the operator or the operator's agent * * * of an
alleged danger or health violation in a * * * mine * * * or
because of the exercise by such miner * * * on behalf of
himself or others of any statutory right afford by this
Act."

1312

In order for the Complainant to establish in this case
a prima facie violation of section 105(c)(l) of the Act, he
must prove by a preponderance of the evidence that he engaged
in an activity protected by that section and that his discharge or removal from D & R Contractors was motivated in any
part by that protected activity. Secretary, ex rel David
Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980),
reversed on other grounds, sub nom Consolidation Coal Company
v. Secretary, 663 F.2d 1211 (3rd. Cir. 1981). See also NLRB
v. Transportation Management Corporation, 76 L.Ed.2d 667
(1983), affirming burden-of-proof allocations similar to
those in the Pasula case, and Boich v. FMSHRC, 719 F.2d 194
(6th Cir. 1983).
In this case, Mr. Jones has alternatively asserted that
he was discharged on the afternoon of April 25, 1983,
because he had refused to continue working overtime after
working a 10-hour shift. At hearing, Jones alleged that he
arrived at the Mingo coal mine for work at about 7:15 on the
morning of the 25th and worked until approximately 5:00 p.m.
with only a one-half hour break for lunch. He further
alleged that he had a headache and the flu that day and was
therefore not feeling well. He thus claims that when the
"foreman", Ron Perkins, approached him that afternoon about
working overtime, he declined believing it would be hazardous. Jones claims that when he was discharged later that
afternoon by Perkins, that action was based upon his refusal
to work any additional overtime, a work refusal protected by
the Act. A miner's exercise of the right to refuse work is
a protected activity under the Act so long as the miner
entertains a good faith, reasonable belief that to work
under the conditions presented would be hazardous.
Robinette v. United Castle Coal Company, 3 FMSHRC 803 (1981).
See also Eldridge v. Sunfire Coal Company, 5 FMSHRC 408
(1983).
Timeliness of Filing.
It is not disputed that Lonnie Jones was removed from
D & R Contractors on April 25, 1983, and that he filed his
complaint of unlawful discrimination with the Federal Mine
Safety and Health Administration CMSHA) on May 10, 1983,
alleging that both Mingo Coal Company and D & R Contractors
violated his section 105Cc> rights~ By letter dated
June 13, 1983, MSHA notified Mr. Jones of its determination
that a violation of the Act had not occurred. Allowing
5 days for mailing of the above letter, it may be presumed
in the absence of any contrary evidence that Mr. Jones
received notice of the determination on June 18, 1983.
Jones did not, however, seek to join D & R Contractors in
his complaint before this Commission until August 22, 1983,

1313

some 35 days beyond the 30 day filing deadline set forth in
section 105(c}(3} of the Act. D & R Contractors thereafter
opposed the motion for joinder on the grounds that it was
not timely filed.
I find, however, for the reasons set forth below that
the delay in joining D & R Contractors was excusable. The
delay, consisting of only 35 days, was brief and no legal
prejudice has been demonstrated.
I note, moreover, that
D & R Contractors was cited in the initial complaint to MSHA
filed by Mr. Jones and that it was therefore then given
notice of action contemplated against it under section
105Cc> of the Act. Accordingly, D & R Contractors would be
expected at that time to have begun preparation of its
defense of this matter including the preservation of
evidence.
I also find that Jones could reasonably have been confused as to the proper entity to proceed against. As a
layman of limited education, it is understandable that he
may have been confused as to the legal niceties of his
employment relationship.
Until Mingo Coal Company filed its
initial responsive pleading asserting as one of its defenses
that Jones was a partner of D & R Contractors and that that
entity was entirely responsible for any violations under the
Act, it is understandable that Jones may not initially have
joined D & R Contractors in this proceeding.
It is also
significant that the referenced pleading of Mingo Coal
Company was itself filed untimely on August 17, 1983, and
that the motion for joinder was filed only 5 days thereafter, on August 22, 1983. Within this framework, the
motion for joinder of D & R Contractors, filed some 35 days
beyond the deadline set forth in section 105(c}(3} of the
Act, is deemed to have been timely filed. 2
The Merits.

2 This determination of timeliness overrules a previous
determination made at hearing. The decision at hearing was
made on the erroneous miscalculation that the delay in f iling the motion for joinder of D & R Contractors had been
filed some 14 months late. When the error was discovered by
the undersigned, D & R Contractors was given opportunity to
present additional evidence and to cross-examine witnesses
who had appeared at the hearings in this case.
It is noted
that counsel for D & R Contractors was present throughout
the hearings and that D & R Contractors waived the opportunity to present additional evidence and/or to cross-examine
witnesses.

1314

The issue on the merits is whether Mr. Jones' refusal
to continue to work overtime under the circumstances herein
was an activity protected by section 105(c) of the Act and,
if so, was his removal from the partnership D & R Contractors motivated in any part by that protected activity.
Whether the activity was protected depends on whether Jones
entertained a "reasonable, good faith belief that a hazard"
existed at the time he refused to continue working overtime.
Robinette, supra, at page 810. In Robinette, the Commission
defined the good faith requirement as an "honest belief that
a hazard exists." In explaining the "reasonableness" portion of the test, the Commission rejected the adoption of a
stringent rule requiring "objective, ascertainable evidence"
to corroborate the validity of the miners' fear.
Robinette,
at p. 811. The Commission held that the "reasonableness"
test may be met through evidence establishing "that the
miners' honest perception was a reasonable one under the
circumstances." See also Secretary on behalf of Pratt v.
River Hurricane Coal Company, 5 FMSHRC 1529 (1983) and Har~
v. Magma Copper Co., 4 FMSHRC 1935 (1982). On the facts of
this particular case, I do indeed find that Mr. Jones entertained a good faith, reasonable belief that to continue
working in his condition would have been unsafe.
It is not disputed that Jones had worked from 7:15 on
the morning of April 25, until about 5:00 p.m. that day with
only a one-half hour break for lunch. Furthermore, it is
not disputed that during the course of that almost 10-hour
work shift, Jones was performing a variety of strenuous physical tasks in the difficult environment of a 26-inch seam of
"low coal." These activities included setting timbers,
dragging water pumps, shoveling coal from the ribs, hauling
a 75 pound coal drill and its cable, untangling the cable,
pushing a 60 pound box of dynamite, drilling and blasting,
rock dusting with 50 pound bags of rock dust, and setting
ventilation curtains. Jones maintains that by 5:00 p.m., he
was so tired he could "hardly get around" and his ability to
concentrate was "not too good." The dangers existing for
miners and particularly for a shot firer handling explosives
under such conditions are obvious.
As the shot firer, Jones was also exposed to blasting
powder.
It is not disputed that continued exposure to the
chemicals in blasting powder may induce headaches and that
Jones had such a headache. Jones also felt "lousy" that day
because he was still recovering from the flu.
The duplicate
certificate in evidence shows that on April 14, 1983, Jones
had in fact been treated for the flu by R. D. Pitman, M.D.
Accordingly, when Perkins asked Jones to continue working overtime after the mining crew had already completed a

1315

10-hour shift, Jones refused and purportedly told Perkins
that he was too tired and that "somebody might get hurt bad."
Indeed, Perkins himself conceded at hearing that the crew
could have safely worked only 9 or 10 hours on the day at
issue and acknowledged that when he asked Jones to continue
working overtime, Jones had already worked a 10-hour shift.
Within this framework of evidence, it is apparent that
Mr. Jones entertained a reasonable good faith belief that to
continue working overtime under the conditions presented did
indeed pose a safety hazard to himself and to the other
miners working with him.
His refusal to continue working
overtime therefore constituted a protected activity within
the scope of section 105(c)(l) of the Act.
In his posthearing brief, Perkins does not appear to
dispute that Jones' refusal to continue working overtime was
based on a reasonable good faith belief of a safety hazard,
but claims that Jones failed to testify or present any other
evidence that he communicated to Perkins or to any of the
other partners that his work refusal was based on a matter
of safety.
In Secretary on behalf of Dunmire and Estle v.
Northern Coal Company, 4 FMSHRC 126 (1982); the Commission
stated that "(w]here reasonably possible a miner refusing to
work should ordinarily communicate, or at least attempt to
communicate, to some representative of the operator his
belief in the safety or health hazard at issue." The purpose of the rule is to assist in "weeding out work refusals
infected by bad faith." ·Secretary on behalf of Dunmire and
Estle, supra, at p. 134. Accordingly, when the bona fides
of a work refusal is not challenged, as it is not in this
case, and where the representative of the operator acknowledges the existence of the safety hazard at issue, as
Perkins did in this case, the communication requirement is
superfluous.
In any event, contrary to the Respondent's allegations,
the Complainant did in fact testify that in response to
Perkin's request to continue working overtime he said "Buddy
• • . I can't. I'm too tired.
I might forget something
around here.
Somebody might get hurt bad" (Tr. 119). I
find this testimony to be credible. There is, first of all,
a credible factual basis to support Jones contention that
after the 10-hour work shift he was suffering fatigue and a
headache and that he was still recovering from the flu when
Perkins asked him to work additional overtime. Perkins
himself acknowledged that 9 or 10 hours was "a good day's
work" and indicated that to go beyond that might be unsafe.
In addition, the working relationship among the "partners"
was such that it would reasonably be expected that Jones
would not have simply refused to work without offering some
explanation. Under the circumstances, even though I find

1316

that it is not necessary for the Complainant to have met the
requirements of the communication rule, I find that he has
nevertheless met those requirements in this case~
The Complainant must also show in setting forth a prima
facie case that his discharge was motivated in any part by
the protected activity.
It may reasonably be inferred from
the timing of Jones' discharge only minutes after his
refusal to continue working overtime, that it was indeed
motivated by the protected activity. See Secretary on
behalf of Anderson v. Stafford Construction Co., et al.,
No. 83-1566, D.C. Cir. April 20, 1984. There is no question
that Ron Perkins, the person who discharged Jones, knew of
Jones' protected activity and it may also reasonably be
inferred that Perkins was hostile toward that protected
activity because it had a direct negative impact on his
earnings.
There was, moreover, no credible "non-protected" reason
advanced for Jones' discharge. Perkins testified that he
fired Jones because of his bad work habits, because Jones
wanted only to do the job of "tamping" and would not volu.1teer to do anything else and because Jones wou~d grumble
about working. In spite of these alleged serious deficiencies, however, Perkins had laid o~f two other miners only a
short time before Jones' discharge. There is, moreover, no
evidence that Perkins had previously warned Jones of these
allegedly bad habits or discussed these problems with the
other "partners" before the April 25th removal. Perkins'
claims are indeed devoid of any corroboration and I find
them to be without credibility. It is clear that Jones'
discharge was motivated entirely by his protected activity.
Accordingly, I find that Mr. Jones was discharged by D & R
Contractors in violation of section 105(c)(l) of the Act.
ORDER
1. The parties are hereby ordered to confer regarding
the possibility of settlement concerning reinstatement,
costs, damages, and attorneys' fees in this-case and to
report to the undersigned in writing on or before May 25,
1984, concerning the results of such discussions.
2.
In the event the parties are unable to reach a
settlement of these matters, they are to submit to the
undersigned on or before May 25, 1984, a statement of
undisputed facts relating to the issues of reinstatement,
costs, damages, and attorneys' fees, and to indicate the
specific matters remaining in dispute.

1317

3. This decision is not a final disposition of this
case and no final disposition will be rendered until such
time as the issues of reinstate~ent, damages,[sts, and
attorneys' fees are r solved. :

~

~

i

tJ ~"~

~v

Chief Adm1
Distribution:

·.

1

·

strative Law Judge

\

Es~., Appala~ian

Jeffrey A. Armstrong,
Research and
Defense Fund of Kentucky, Inc., P.O. Box 919,
Barbourville, KY 40906 (Certified Mail)
Larry E. Conley, Esq., P.O. Box 577, 102 South Third
Street, Williamsburg, KY 40769 (Certified Mail)
/fb

1318

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

MAY 151984

CONTEST PROCEEDING

PYRO MINING COMPANY,
Contestant

Docket No. KENT 84-87-R
Order No. 2338185; 1/24/84

v.

Docket No. KENT 84-88-R
Order No. 2338186; 1/24/84

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

Pyro No. 9 Slope
William Station
DECISION

Appearances:

William M. Craft, Assistant Safety Director,
Sturgis, Kentucky, for Contestant;
Darryl A. Stewart, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for Respondent.

Before:

Judge Steffey

A hearing in the above-entitled consolidated proceeding
was held on February 28, 1984, in Evansville, Indiana, pursuant
to section 105(d), 30 u.s.c. § 815{d), of the Federal Mine
Safety and Health Act of 1977. I consolidated for hearing with
the issues raised by the notices of contest the civil penalty
issues which will be raised when the Secretary of Labor files a
proposal for assessment of civil penalty with respect to the
two violations of 30 C.F.R. § 75.200 alleged in Order Nos.
2338185 and 2338186. No decision by me on the civil penalty
issues will be made, however, until the operator has had an
opportunity to participate in the civil penalty procedures described in Part 100 of Title 30 of the Code of Federal Regulations, as hereinafter explained.
At the conclusion of presentation of evidence by both
parties, I rendered a bench decision, the substance of which
is set forth below:
The parties stipulated at the beginning of the hearing
that each order, No. 2338185 and No. 2338186, issued on January 24, 1984, properly alleged a violation of section 75.200,
and that the inspector had correctly noted in each order that

1319

the violation was "significant and substantial". 1/ Having
made the aforesaid stipulation, the contestant stated that the
only point which was being contested at the hearing was whether
the violations should have been cited under section 104{d) of
the Act in unwarrantable failure orders, rather than in citations, written under section 104{a), which could also have been
used to designate the violations as being "significant and substantial". 2/
1/ The phrase "significant and substantial" comes from section
104{d) (1) of the Act which reads as follows:
"{d) (1) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory
health or safety standards, he shall include such finding in any
citation given to the operator under this Act.
If, during
the
same inspection or any subsequent inspection of such mine within 90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any
mandatory health or safety standard and finds such violation to
be also caused by an unwarrantable failure of such operator to
so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area affected by such violation,
except those persons referred to in subsection {c) to be withdrawn from, and to be prohibited from entering, such area until
an authorized representative of the Secretary determines that
such violation has been abated.
[Emphasis supplied.]
2/ The Commission recently sutained the Secretary of Labor's
practice of issuing citations with an indication on the face of
the citations that the violations being cited are "significant
and substantial" {Consolidation Coal Co., 6 FMSHRC 189 (1984)).
Section 104{a) readsas follows:
"Sec. 104. {a) 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.
Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to
the provision of the Act, standard, rule, regulation, or order
alleged to have been violated.
In addition, the citation shall
fix a reasonable time for the abatement of the violation. The
requirement for the issuance of a citation with reasonable
promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act."

1320

The parties' stipulation enables me to skip from a detailed
consideration of the first three findings, namely, (1) that violations occurred, (2) that they did not cause an imminent danger,
and (3) that they were "significant and substantial", which have
to be made before an order can be issued under section 104(d) (1),
to the ultimate question of whether the violations were caused
by an unwarrantable failure of the operator to comply with section 75.200.
My conclusion as to whether there was an unwarrantable failure will be based largely on the findings of fact which are set
forth below:
1.
Inspector James E. Franks went to the Pyro No. 9 Slope,
William Station Mine on January 24, 1984, to check on a roof
fall which had occurred. While he was in the mine, he went to
the No. 5 Unit and specifically to the last open crosscut between the Nos. 4 and 5 entries. At that time, he issued two
unwarrantable-failure orders. The first one was Order No.
2338185 which described the violation of section 75.200 as follows (Exh. 1) :
The approved roof-control plan (dated 8/12/83,
page 4, par 12(C)) was not being followed on the No.
5 Unit, ID No. 005, in that the last open crosscut
between Nos. 5 and 4 entries (100 feet inby spad No.
1380, #5 entry) was unsupported for an area of approximately 15 ft. long by. 20 ft. wide and the area
had not been dangered off, so as to warn persons
that the area was unsupported.
2. The provision in the operator's roof-control plan which
the inspector believed was violated was paragraph 12C which
reads as follows (Exh. 2, page 4):
All places where the roof is not supported shall
have conspicuous markers or signs or reflective
sticks suspended 'from the roof placed outby the
unsupported roof.
3.
The inspector also wrote Order No. 2338186, pursuant to
section 104(d) (1) of the Act, describing a second violation of
section 75.200 as follows (Exh. 3):
The last open crosscut between Nos. 5 and 4
entries (100 ft. inby spad No. 1380 #5 entry) No.
5 Unit, ID No. 005, was cut through in the middle
and cleaned up, and the area (15 ft. long by 20 ft.
wide) was unsupported and the evidence indicated
crosscut had been rock dusted, cable for the roof
bolter was all the way through the unbolted crosscut, and the tire prints of a piece of equipment,

1321

probably the roof bolter, was present in the rock
dust all the way through the unbolted. (unsupported)
crosscut, one or more persons had traveled through
the unsupported area.
4.
The inspector testified that there was a roof-bolting
machine in the crosscut between the Nos. 4 and 5 entries. He
stated that the fact that the roof-bolting machine was in the
entry at the time he wrote both withdrawal orders was immaterial
in determining whether there was a violation of paragraph 12C of
the roof-control plan because the inspector's interpretation of
that paragraph is that the company is required to hang the specified warning devices as soon as a place is cleaned up, regardless of whether the roof-bolting machine and its operator are
immediately available to go into the place that has been cleaned
up, for the purpose of installing roof bolts. The inspector believed that the warning devices were required even if an ongoing
production shift is in progress. The inspector believed that it
was especially bad that the warning devices had not been placed
in the crosscut in this instance because no active production
was going on in the No. 5 Unit at the time he wrote the order,
although some maintenance or nonproductive work was being performed.
5.
Contestant presented three witnesses, but the testimony
of two of them is especially noteworthy. The first one was a
mechanic named Henry Michael Dennis who had been asked by Ken
Reed, a boss on the third. shift, to do some work on a roofbol ting machine in a crosscut between the Nos. 4 and 5 entries.
When Dennis went to the place to do the work, he found that the
roof-bolting machine was being used in the crosscut, but it was
situated under what Dennis characterized as unstable-looking
rocks in the roof. Therefore, Dennis asked that the roof-bolting
machine be backed towards the No. 5 entry. At that point, Dennis
went to the repair shack to get some parts. When he returned,
he found the roof-bolting machine closer to the No. 4 entry than
it was to the No. 5 entry, although when he had left the roofbolting machine, it had been closer to the No. 5 entry than it
was to the No. 4 entry. Since Dennis had not seen the roofbolting machine moved, he did not know whether it went under
unsupported roof to be on the side closest to the No. 4 entry.
In any event, he did the work on the brakes and the torquing device of the machine that he had come there to perform.
6. The other significant witness presented by the company
was Ronnie Presley who was normally assigned to the group of
miners who clean up roof falls.
On the morning of January 24,
1984, the day on which the orders were issued, Presley had been
requested by John Greenwell, a day-shift foreman, to go to Pyro
No. 5 Unit and perform any roof bolting which needed to be done
in any area which had been cleaned up but left unsupported.

1322

Presley first installed bolts in the face area and then moved
down to the crosscut between the Nos. 4 and 5 entries. After
he had installed two rows of bolts in the crosscut, Dennis, as
indicated in Finding No. 5, supra, asked Presley to move the
roof-bolting machine back towards the No. 5 entry. When Presley
did so, he observed some places in the roof at the new location
which did not look particularly stable for the performance of
maintenance work under them. Without thinking about the safety
factor involved, he inadvertently pulled the roof-bolting machine the remainder of the way through the crosscut.
In doing
so, he passed under unsupported roof. Because of Presley's inadvertent act, the roof-bolting machine was near the No. 4
entry in the crosscut when Dennis came back to work on the
machine.
7. Presley admitted during his testimony that he had violated the roof-control plan, or section 75.200, by going under
unsupported roof.
He stated that when he came out of the mine
that same day, he was reprimanded for his violating the roofcontrol plan and company policies. He was also suspended for 1
day because of the violation.
Docket No. KENT 84-87-R
At the conclusion of the evidentiary presentations, contestant's representative reiterated his belief that while violations, as the company had conceded, had occurred, he did not
think that the company's complicity rose to the level of negligence which is required to support a finding of an unwarrantablefailure violation.
The company's representative placed in the
record as Exhibits B through 0 references to various administrative law judges' decisions.
I have no disagreement with those
decisions which seem to follow acceptable definitions of unwarrantable failure.
I.am not aware of a Commission decision which
provides any changes in the definition of unwarrantable failure
given by the former Board of Mine Operations Appeals in its decision in Ziegler Coal Co., 7 IBMA 280 (1977), in which the
Board defined the identical provision of unwarrantable failure
in section 104(c) of the Federal Coal Mine Health and Safety
Act of 1969 as follows (7 IBMA at 295-296):
In light of the foregoing, we hold that an
inspector should find that a violation of any mandatory standard was caused by an unwarrantable
failure to comply with such standard if he determines that the operator involved has failed to
abate the conditions or practices constituting
such violation, conditions or practices the operator knew or should have known existed or which it
failed to abate because of a lack of due diligence,

1323

or because of indifference or lack of reasonable
care.
The inspector's judgment in this regard must
be based upon a thorough investigatiOn and must be
reasonable.
In applying the above definition to the first order, No.
2338185, the Secretary's counsel stated that there was a violation of a mandatory safety standard since there is a provision
in contestant's roof-control plan which states that there must
be a posting of conspicuous marking devices. He further noted
that a violation of the roof-control plan is a violation of a
mandatory standard, or a violation of section 75.200 because
that section requires each operator to file and follow the provisions of a roof-control plan.
I have no reason to disagree with the aforesaid portion of
the Secretary's argument, but some refinement should be made in
his conclusion to the effect that any time there is a violation
of a safety standard, the violation in and of itself constitutes
ordinary negligence.
In Southern Ohio Coal Co., 4 FMSHRC 1459
(1982) , the Commission distinguished between relying upon the
acts of a rank and file miner for the purpose of finding that a
violation occurred as opposed to relying upon the acts of a
rank and file miner for the purpose of imputing negligence to
the operator.
In other words, an operator is liable for the
occurrence of a violation without regard to fault (U. s. Steel
Corp., 1 FMSHRC 1306 (1979)), but the negligence of a rank and
file miner should not be imputed to the operator for the purpose
of assessing penalties.
In any event, the above observations do not quite reach
the point that I must make a ruling upon because I must determine whether the facts in this proceeding show that contestant's
failure to hang the required warning devices was caused by a
lack of due diligence or because of indifference or lack of reasonable care. Contestant's representative made an argument
based upon the provisions of paragraph 12 of the roof-control
plan which reads as follows (Exh. 2, page 4):
12.

Before the side cuts are started, the roof in
the area from which it is turned shall be supported with permanent supports according to
the approved plan. Except where old workings
are involved, mine openings shall not be holed
through into unsupported areas. Before a mine
opening holes through into a permanently supported entry, room, or crosscut, it shall be
examined from both sides. The intersection so
created shall be considered unsupported and be
immediately dangered off with conspicuous
markers or signs suspended from the roof at

1324

each end of the crosscut and no work shall be
done in or inby {except for setting two temporary supports and making a gas check) such
intersection until either;
A.
B.

C.

The newly created opening is permanently
supported or
The newly created opening is timbered off
with at least one row of timbers installed
on not more than 5 foot centers across the
mouth of the open crosscut. Where crosscuts are driven from both sides and holed
through, it will not be considered an intersection but conspicuous signs shall be
suspended from the roof. Once set, the
jacks or posts shall not be removed until
other supports are installed in the area.
All places where the roof is not supported
shall have conspicuous markers or signs or
reflective sticks suspended from the roof
placed outby the unsupported roof.

Contestant's representative argues that paragraph 12 requires
warning devices to be installed "immediately" in the circumstances
described in the first part of paragraph 12, but contestant contends that the word "immediately" is not used in subparagraph C
relied upon by the inspector. Contestant's representative asked
the inspector about the lack of the word "immediately" in subparagraph C and the inspector agreed that the circumstances described in the first part of paragraph 12 did not exist at the
time Order No. 2338185 was written. Therefore, the inspector
said that the word "immediately", as used in the first part of
paragraph 12, did not apply to the violation of subparagraph C
which the inspector believed was violated.
In the inspector's
opinion, the installation of the warning devices was required by
the roof-control plan irrespective of whether the word "immediately" appeared in that subparagraph.
The Secretary's counsel contradicted contestant's argument
by pointing out that subparagraph C clearly states that "[a]ll
places where the roof is not supported shall have conspicuous
markers, or signs, or reflective sticks suspended from the roof."
The Secretary's counsel contended that as soon as the company
sees an unsupported place, no matter where it is, the company
is required to hang the markers. He argued that it is the existence of the unsupported roof which requires the markers and that
they are required even if the word "immediately" does not appear
before the provision requiring the warning devices to be installed.
I think that the Secretary's counsel is probably correct
in making the aforesaid argument because subparagraph C definitely

1325

requires installation of the warning devices at "all places
where the roof is not supported". Despite the discussion above,
I was impressed by the fact that contestant's representative is
an experienced person in dealing with procedures in underground
mines, and he stated that it is simply not the practice, for
example, if they are working at the face, to install warning devices. In fact, he said that at the face, there is no way that
a person would be likely to walk under unsupported roof when
there is a roof-bolting machine engaged in putting up roof bolts.
The important aspect of contestant's argument is that a
roof-bolting machine was being used in the crosscut at the time
the inspector wrote the order. Contestant's argument is that
the roof-bolting machine was there with its lights on and the
operator was working on the machine. The existence of the roofbolting machine and its operator would, contestant claims, have
served as a warning that there was unsupported roof in the area
or the roof-bolting machine would not have been there.
The inspector's testimony controverted the above argument
by pointing out that the order was written with respect to a
different situation from that which prevails at the face because a person can walk through a crosscut, but cannot walk
through the solid coal which one encounters at the face.
Consequently, the possibility does exist, according to the inspector, that even if the roof-bolting machine is operating in a
crosscut, some miner may walk past the machine without considering whether or not the roof-bolting machine is doing actual
supporting work in a place which/has been cleaned up but which
has not yet been permanently sup~orted. The roof-bolting machine operator himself is engaged in important and dangerous
work and he is not paying any particular attention to other
persons in the mine who might be ordered to do work which could
cause them to go past his machine under unsupported roof before
he would notice that they had exposed themselves to the hazard
of a possible roof fall.
The inquiry as to whether contestant showed a lack of due
diligence or a lack of reasonable care has to be decided on the
narrow question of whether contestant should have hung the required conspicuous markers in the crosscut as soon as the coal
was loaded out. The evidence shows that contestant did not intend to send the roof-bolting machine into the crosscut immediately for the purpose of installing permanent supports. The
work of supporting the roof was eventually done on an idle shift
and the foreman who sent the miner to do the roof supporting
treated it as "catch-up" work. The evidence shows, therefore,
that contestant did not with due diligence hang the conspicuous
markers which were required to be installed by paragraph 12C of
its roof-control plan.

1326

It is true that there was no foreman on the section when
the inspector wrote the order, but I think that there must have
been a foreman on the section when the crosscut was cleaned up
and when the coal was removed from the mine. It was under that
foreman's jurisdiction that the required conspicuous markers
should have been hung. So he was the one who showed a lack of
due diligence in seeing that the markers were hung. The duty
of hanging markers should not have been left to the preshift
examiner who apparentiy did hang some warning devices, or at
least Exhibit C shows that he did some dangering off in the No.
5 Unit. The point is that before the preshift examination was
made, the conspicuous markers should have been installed.
The language used by the former Board was failure to do
something because of indifference or lack of reasonable care.
I do not like to say that contestant has indifference because
other evidence indicates that contestant is not generally indifferent about safety, but I think that there was a lack of due
diligence and of reasonable care on the part of the foreman in
this instance.
Therefore, I agree with the inspector that an
unwarrantable failure occurred when contestant failed to put up
the conspicuous markers described in Order No. 2338185 which
will hereinafter be affirmed.
Docket No. KENT 84-88-R
The next matter to be considered is whether the violation
cited in Order No. 2338186 was properly alleged in an unwarrantable failure order because contestant has already stipulated
that the violation of section 75.200 alleged in the order did
occur. Therefore, it is again necessary to consider whether
contestant showed a lack of due diligence or a lack of reasonable care with respect to the inspector's claim that one or more
persons went under unsupported roof.
Originally this case raised the question of whether the
inspector had properly inferred that there was a violation of
section 75.200 because he saw that a cable had been dragged
through a crosscut and that tracks of a roof-bolting machine
appeared in a crosscut under an area of unsupported roof. The
inspector concluded from his observations that there was no way
the machine could have gone through the crosscut having unsupported roof without passing beneath the unsupported roof.
If contestant had not presented its witnesses in this case,
I would have been confronted with the aforesaid preliminary
question of whether the inspector's inferences had been properly drawn. Contestant's presentation of Ronnie Presley as a
witness, however, eliminated any need to decide any question
about inferences because Presley, as noted in Finding Nos. 6

1327

and 7, supra, testified that he, without giving proper consideration to safety regulations or company policy, did inadvertently tram the roof-bolting machine through the crosscut beneath
unsupported roof. That same day Presley was reprimanded and suspended for 1 day for having violated both section 75.200 and company policy. Presley testified that he had been warned not to
go under unsupported roof, but that in an effort to get the roofbolting machine into a secure place for maintenance work to be
performed on it, he had inadvertently forgotten about the fact
that he was passing under roof in which permanent roof bolts had
not yet been installed.
In the circumstances described above, it would be improper
for me to conclude that management showed a lack of due diligence
or that the second violation of section 75.200 occurred because
of indifference or lack of reasonable care. In this instance, I
am reminded of the Commission's decision in Nacco Mining Co., 3
FMSHRC 848 (1981).
In that case, the Commission held that no
negligence should be imputed to the operator when a section foreman who had always followed safety regulations and who had always
been a very careful foreman, for some reason acted in an aberrant
fashion, and went under unsupported roof which fell and caused
his death.
The Commission stated in that case that it could not
hold the company to have been guilty of negligence because the
company could not have anticipated that the foreman would act as
he did.
I believe that the events leading up to the writing of Order
No. 2338186 are very similar to those which existed in the Nacco
case because in this case Presley acted in a wholly unexpected
manner by tramming his roof-bolting machine through an unsupported
area without giving due thought. Contestant reprimanded him for
his careless act and suspended him for it on the same day that it
happened.
Contestant's evidence shows that it did not condone Presley's
action.
If the inspector had known all the facts now in the
record of this proceeding, he would perhaps not have cited the
violation in an unwarrantable-failure order. In any event, I believe the facts given above support a conclusio~ that the violation of section 75.200 cited in Order No. 2338186 did not occur
because of a lack of due diligence or because of indifference or
a lack of reasonable care. Therefore, the violation of section
75.200 cited in Order No. 2338186 was improperly alleged as an
unwarrantable-failure violation pursuant to section 104(d) (1) of
the Act. Order No. 2338186 will hereinafter be modified to a
citation.
Civil Penalty Issues
Contestant filed a motion for an expedited hearing in this
proceeding. The motion was granted and a hearing was held on

1328

February 28, 1984, which was as early as the parties' schedule
would permit. The bench decision could not be issued in final
form until the transcript was received and the transcript was
not received until May 1, 1984. During the period between the
hearing and receipt of the transcript, MSHA's Office of Assessment proposed penalties of $1,000 each for the violations of
section 75.200 cited in Order Nos. 2338185 and 2338186. A copy
of contestant's answer to the proposed assessment was received
by me on April 3, 1984. In that letter contestant stated that
"* * * Order No~ 2338185 was vacated and Judge Steffey indicated
he would assess the penalty on Order No. 2338186."
On April 13, 1984, I received a copy of the Assessment
Office's reply to contestant's interpretation of the outcome of
the hearing held in this proceeding. The pertinent part of the
Assessment Office's reply is set forth below:
As the Administrative Law Judge (ALJ) has vacated
Order No. 2338185, the civil penalty will be voided.
Your letter of March 29, will be considered a request to contest the civil penalty on Order No.
2338186 so that the ALJ has jurisdiction to decide
on the civil penalty.
In the future, you should
file a separate request (blue card) for a hearing
on the civil penalty, even though you have previously contested the validity of the order or citation.
It is obvious from contestant's letter to the Assessment
Office that contestant did not understand my rulings with respect
to the civil penalty issues. My order providing for hearing
issued on February 17, 1984, explained on page 2 that the civil
penalty issues were being consolidated for purpose of receipt of
evidence pertaining to the six criteria, but that order and my
opening remarks at the hearing stated as follows (Tr. 2):

* * * I have consolidated for hearing with the
issues raised by the notices of contest the civil
penalty issues which will be raised when and if the
Secretary of Labor files a proposal for assessment
of civil penalty with respect to the two violations
of section 75.200 alleged in Order Nos.· 2338185 and
2338186. No decision by me on the civil penalty
issues, however, will be rendered until such time
as the operator has had an opportunity to participate in the civil penalty procedures described in
Part 100 of Title 30 of the Code of Federal Regulations.
My bench decision contained the following discussion of
the civil penalty issues (Tr. 156-157):

1329

I don't normally in one of these cases convert
orders to citations because I simply find that no
unwarrantable failure occurred and therefore it's
an invalid order.
But in this case, the civil penalty portion of the case is still pending because
the proposal for assessment of civil penalty hasn't
been filed yet.
I want the company to have the benefit of conference before I assess the penalty.
Therefore, in this instance, when my decision comes
out, I shall convert the Order 2338186 to a citation,
checking the S and S portion of the citation. Therefore, unless the Department of Labor appeals my decision and gets me reversed on the conversion of the
order to a citation, the Secretary will propose a
penalty for a citation in this instance, instead of
an order.
I shall hereinafter explain for contestant's benefit what
procedures should be followed with respect to the civil penalty
aspects of the proceeding.
Since this was probably contestant's
first exposure to a consolidated notice-of-contest and civil
penalty proceeding, I am n·ot surprised that some confusion exists
as to what my bench decision held, particularly when it is realized that contestant did not have a copy of the transcript or
bench decision when it wrote its letter to the Assessment Office.
The first aspect of contestant's letter to the Assessment
Office which needs to be corrected is the fact that my bench decision stated that I would vacate Order No. 2338186 and would
convert the order to a citation because the violation survived
the vacation of the order (Island Creek Coal Co., 2 FMSHRC 279
(1980), and Van Mulvehill Coal Co., Inc., 2 FMSHRC 283 (1980)).
The length of the hearing was considerably reduced by contestant's having stipulated at the commencement of the hearing (Tr.
4) that both violations had occurred and that both could appropriately be considered as "significant and substantial" violations.
In such circumstances, it is especially true in this
proceeding that the violation would survive my finding that no
unwarrantable failure existed with respect to Order No. 2338186.
The quotation from the Assessment Office's reply to contestant's letter shows that the Assessment Office was under the
erroneous impression that my bench decision had not only vacated
Order No. 2338185 but had also held that no violation of section
75.200 had been proven. The Assessment Office's reply is correct, however, in stating that it is necessary for a proposal
for assessment of civil penalty to be filed with the Commission
before I have a case before me which gives me jurisdiction to
assess a penalty on the basis of the record made in this proceeding.

1330

In order that no confusion will continue to exist with respect to the civil penalty issues, I shall further explain the
procedure which I would expect the Assessment Office and contestant to follow in order to dispose of the civil penalty issues.
The Assessment Office has already proposed penalties with respect
to Order Nos. 2338185 and 2338186 under Assessment Control No.
15-13881-03520, but that proposed assessment included proposed
assessments for Citation Nos. 2074792, 2074793, and 2338327. If
the Assessment Off ice fails to sever the proposed assessments
for Order Nos. 2338185 and 2338186 from the other three citations,
the civil penalty case may end up before me with three alleged
violations to be considered which were not the subject of the
hearing held with respect to Order Nos. 2338185 and 2338186.
Therefore, I would suggest that the Assessment Office propose
penalties for the violations of section 75.200 alleged in Order
Nos. 2338185 and 2338186 under an assessment control number which
would include only those two orders. Additionally, the proposed
assessment should refer to No. 2338186 as a citation issued under
section 104(a) of the Act instead of an order issued under section 104(d) (1) of the Act. The new citation designation would be
with the "significant and substantial" block checked on it.
If the Assessment Off ice is agreeable to the above suggestion, the amended proposed assessment should be resubmitted to
contestant for its consideration. Contestant should bear in mind
that it is entitled to ask for a conference with respect to Order
No. 2338185 and Citation No. 2338186 just as it would with respect
to any other proposed assessment.
If contestant, however, wishes
to have me assess a penalty for both Order No. 2338185 and Citation No. 2338186, it should file a "blue card" with respect to
both the order and the citation. Contestant is also free to pay
the proposed penalty for either or both the violations.
If contestant elects to pay the penalty for one violation, it may do so,
and then file a blue card with respect to the violation for which
it wishes to have me assess the penalty. After the Solicitor's
Office has filed a proposal for assessment of civil penalty with
respect to one or both of the violations which contestant did not
elect to pay at the Assessment Office level, contestant should,
as usual, file an answer to the proposal for assessment of civil
penalty.
In that answer, contestant should state that a hearing
has already been held by me with respect to the violations alleged in Order No. 2338185 and Citation No. 2338186 and that the
civil penalty case should be forwarded to me for the purpose of
assessing a penalty (or penalties) on the basis of the hearing
record made in this proceeding.
I believe that the discussion above should enable the Assessment Off ice and contestant to dispose of the procedural steps required for dealing with all civil penalty issues.
WHEREFORE, it is ordered:

1331

(A)
The notice of contest filed by Pyro Mining Company in
Docket No. KENT 84-87-R is denied and Order No. 2338185 issued
January 24, 1984, pursuant to section 104(d) (1) of the Act, is
affirmed.
(B) The notice of contest filed by Pyro Mining Company in
Docket No. KENT 84-88-R is granted and Order No. 2338186 issued
January 24, 1984, under section 104{d) (1) of the Act, is vacated
insofar as it purports to have been issued as an unwarrantablefailure order and is modified to a citation issued under section
104(a) of the Act with a designation of a "significant and substantial" violation~
(C)
The civil penalty issues are severed from this consolidated proceeding for disposition under Part 100 of Title 30 of
the Code of Federal Regulations, with the understanding that if
Pyre Mining Company files a request for hearing (or blue card)
with respect to either or both violations alleged in either
Order No. 2338185 or Citation No. 2338186, the proposal for
assessment of civil penalty with respect to the request for hearing will be forwarded to me for assessment of a penalty (or penalties) based on the record in this proceeding.

~(!.~~

Richard C. Steffey
~
Administrative Law Judge

Distribution:
William M. Craft, Assistant Director of Safety, Pyro Mining
Company, P. o. Box 267, Sturgis, KY 42459 (Certified Mail)
Darryl A. Stewart, Esq., Office of the Solicitor, u. s. Department of Labor, Room 280, u. S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)

yh

1332

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

MAY 161984
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 83-82
A.C. No. 33-01869-03504

v.
Getz Strip
GETZ COAL SALES, INC.,
Respondent

...
DECISION

Appearances:

Patrick M. Zohn, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for
Petitioner.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the
petitioner against tne respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
820(a), seeking civil penalty assessments for four alleged
violations of certain mandatory safety standards promulgated
pursuant to the Act. Respondent filed a timely contest and
requested a hearing. A hearing was convened in Youngstown,
Ohio, on April 12, 1984. Although the petitioner appeared
at the hearing, respondent's counsel did not.
As a result of the failure by respondent's counsel to
appear, the hearing proceeded without him, and the respondent
was held to be in default. Further, in view of this
respondent's past history of failing to appear at scheduled
hearings, with absolutely no effort on its part to advise
the court of its non-appearance, and in view of this
respondent's flagrant disregard and obvi0us contempt for
the Commission and its Administrative Law Judges, the
respondent has been certified to the Commission for appropriate disciplinary sanctions pursuant to Commission Rule
80, 29 CFR 2700.80. In addition, in view of counsel's
contumacious conduct in failing to appear at the hearing
pursuant to notice, he too has been certified to the
Commission for appropriate disciplinary action.

1333

Issues
The principal issue presented in these proceedings are
(1) whether respondent has violated the provisions of the
Act and implementing regulations as alleged in the proposal
for assessment of civil penalty filed, and, if so, (2) the
appropriate civil penalty that should be asses~ed against
the respondent for the alleged violations based upon the
criteria set forth in section llO{i) of the Act. Additional
issues raised are identified and disposed of where appropriate in the course of this decision.
In determining the amount of a civil penalty assessment,
section llO{i) of the Act requires consideration of the
following criteria:
(1) the operator's history of previous
violations, (2) the appropriateness of such penalty to the
size of the business of the operator, (3) whether the operator
was negligent, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violation, and
(6) the demonstrated good faith of the operator in attempting
to achieve rapid compliance after notification of the
violation.
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.

Section llO{i) of the 1977 Act, 30 u.s.c. § 820{i).

3.

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

This case concerns four section 104{a) citations issued
by MSHA Inspector James A. Boyle, during the course of an
inspection of the respondent's mine on May 16, 1983, and the
cited conditions and practices follow below.
Citation No. 2067133, cites a violation of mandatory
safety standard 30 C.F.R. 77.1710{i), and describes the
following condition or practice:
Seatbelts were not provided for the Caterpillar
D9G bulldozer {Serial No. 66A 11107) where there is
a danger of overturning and where roll protection
{ROPS) is provided. Kenny Doren was operating the
bulldozer at the 002-0 pit, stripping overburden
under the supervision of Roy Cusick, foreman.

1334

Citation No. 2067134, cites a violation of 30 C.F.R.
77.1606(c), and states the following condition or practice:
An equipment defect affecting safety was
present on the caterpillar D9G bulldozer (serial
#66Alll07) , in that the operator cab doors were
not maintained in a working condition. The left
cab door was held closed with a tarp strap, the
latch was missing. The right cab door was held
open with a tarp strap, the inside door handle
was missing. Kenny Doren was operating the bulldozer at the 002-0 pit, stripping overburden.

Citation No. 2067135, cites a violation of 30 C.F.R.
77.1710(i}, and states the following condition or practice:
Seatbelts were not provided for the Caterpillar 90G bulldozer (Serial No. 66Al0646), where
there is a danger of overturning and where roll
protection (ROPS) is provided. Dave Henry was
operating the bulldozer at the 002-0 pit, stripping
overburden, under the supervision of Roy Cusick,
foreman.
Citation No. 2067136~ cites a violation of 30 C.F.R.
77.1606(c), and states the following condition or practice:
An equipment defect affecting safety was
present on the Caterpillar D9G bulldozer (Serial
No. 66A 10646), in that the operator's cab doors
were not maintained in a working condition. The
left cab door latch was missing and the latch was
bad, had to be held shut with a piece of wire.
Dave Henry was operating the bulldozer at the
002-0 pit, stripping overburden, under the supervision of Roy Cusick, foreman.

Petitioner's Testimony and Evidence
MSHA Inspector James A. Boyle, testified a~ to his
background and experience as a surface mining inspector,
and he confirmed that on May 16, 1983, he inspected the
Getz Strip Mine, located in the Lisbon, Ohio, area, and
owned and operated by Roland A. Getz (Tr. 20-22). He also
confirmed that he inspected two Caterpillar D9G bulldozers
and that he issued four citations for certain conditions
which he found which were in violation of the cited mandatory
safety standards (Exhibits P-3 through P-6; Tr~ 46).

1335

Mr. Boyle testified that the bulldozers were operating
in the 002 pit area stripping overburden, and he described
the terrain and conditions under which they were operating.
He confirmed that no seatbelts were provided for the cited
bulldozers, and that they were both equipped with ROPS
(Tr. 23-27) •
Mr. Boyle indicated that the area where the bulldozers
were observed stripping was "fairly level." However, he also
indicated that the cited bulldozers were continuously required
to travel up and down a ramp area in order to dispose of the
material which they were mining, and that while the area is
sometimes slippery when wet, on the day he cited the violations, it was dry (Tr. 2S). He described the ramp as being
lSO to lSS feet long, with an open end, and he stated that
one side would be against the spoil, and the other side
would be "open." He also indicated that the distance from
the top of the ramp down into the pit was SO to 70 feet, but
that on the day in question it was probably SO feet (Tr. 28).
Mr. Boyle conceded that while the bulldozers were operating
in the pit there would be no danger of their overturning.
However, since they had to travel the ramp area during their
normal operation, there would be a danger of overturning on
the ramp (Tr. 29). He went on to describe the conditions he
cited, and he confirmed that the cited equipment was not
equipped with the required seatbelts, and that the door on
one of the bulldozers had a missing latch and was secured
by a strap, and the doors on the other bulldozers were not
maintained in proper working order in that the latch and door
handle was missing and had to be held shut with a piece of
strap (Tr. 30-32). Although the actual mechanical operation
of the dozers was not affected, Mr. Boyle believed that the
cited conditions did affect the safety of the operators
(Tr. 32-34) •
In response to further bench questions, Mr. Boyle stated
that the reason he did not fill in the "negligence" and
"gravity" blanks on the face of the citations which he issued
is that since he found that the violations were not "significant
and substantial," his instructions were that he was not to fill
out those blanks when he issues "non-S&S" violations (Tr. 36-37)
With regard to the conditions of the door latches which
he cited, Inspector Boyle was of the opinion that the operators
would have difficulty in getting out of the equipment in the
event it overturned, and since the bulldozers have hydraulic

1336

lines which run under the machine in the area where the
operators are seated, in the event that the transmission got
hot and the lines ruptured, there could be a fire, and the
operator wouldn't notice it until it spread to where he was
seated (Tr. 32-33).
Findings and Conclusions
In view of the respondent's failure to appear at the
hearing pursuant to notice, I have considered this as a
waiver of his right to be heard on the record and to defend
against the violations, and I held him in default. While
Commission Rule 63, 29 C.F.R. 2700.63, requires that a show
cause order be issued before a party is held in default for
failing to answer an order by the Judge, under the circumstances of this case, respondent is not prejudiced by my
not issuing such an order. Rule 2700.63(b) authorizes a
judge to enter summary civil penalty dispositions where a
respondent is in default, and based on this respondent's
long history of ignoring notices, orders, and other Commission
findings, any further notices to the respondent would simply
be fruitless.
Since the respondent failed to appear at the hearing, I
have decided this case on the basis of the evidence and testimony
presented by the pet~tioner in support of the citations. After
consideration of the unrebutted testimony of Mr. Boyle, as well
as the evidence and arguments made by the petitioner in support
of its case, I conclude and find that the petitioner has
established the fact that the violations occurred as stated
by the inspector in the citations which he issued. Accordingly,
the citations are all AFFIRMED.
I take note of the fact that one of the purported reasons
for the respondent's counsel failing to appear at the hearing is
that since the four citations were "single penalty assessments"
totalling $80, counsel apparently believed that it was not
"worth the litigation effort." However, it is clear that I
am not bound by MSHA's proposed initial "single penalty assessments" of $20 for each of the violations in question. Pursuant
to section llO(i) of the Act, penalty assessments imposed by
the Commission's judges in a contested case docketed before
the Commission, are based on the judge's de novo consideration
of all of the facts and circumstances surrounding the cited
conditions or practices, as well as the six statutory criteria
set forth in the Act.

1337

Even if I were to affirm the inspector's findings that
these violations were not "significant and substantial," the
fact that MSHA imposed an "automatic" initial penalty
assessment in the amount of $20 under its regulatory scheme
found in Part 100, Title 30, Code of Federal Regulations, is
not binding on me.
I may reject or accept such an assessment depending on the facts and circumstances presented in
any given case. Further, based on my consideration of the
evidence and testimony of record, I may also accept or
reject the findings by the inspector that the violations
were not "significant and substantial," and may modify the
citations to reflect these de novo findings.
When asked to explain why he did not consider the cited
conditions or practices to be "significant and substantial,"
~.nspector Boyle responded as follows (Tr. 3 7) :
MR. ZOHN: And I believe, and of course,
Mr. Boyle could correct me if I'm wrong, he saw
the bulldozers on the floor of the pit, rather
than on the ramp. And, that the danger of over.;..
turning, in almost all cases, is when they push up
onto the open, up onto the ramp and as they're
backing down onto the open side, they have a tendency
to back down faster, so, that's the greatest danger
of overturning, is when they are operating on the
ramp, which is·a common occurrence, or a frequent
occurrence, operating in the pit.
JUDGE KOUTRAS: All right. Now, if that's the
case, then, again, why wouldn't these be significant
or substantial?
MR. ZOHN:
following up.

Well, that was one of my questions,

BY MR. ZOHN:

Q.
If you had to cite thes~ conditions over again,
would you have cited them as non S and S, or would
you have given them a higher degree of danger?
A.
Well, there again, if those two bulldozers
were working where there was a definite time that
there would be an overturn, say both of them were
coming down the ramp, you could make them S and S,
then, yeah.

Q.

So, in operating on--

1338

A.
See, that was one of the biggest things when
we went to this non S and s, is where do you draw
the line. We've been criticized because we cited
a bulldozer out, doing reclamation, that there was
no other equipment or persons around.
JUDGE KOUTRAS:
I may have been the Judge that
did that to you; but, anyway go ahead.
THE WITNESS: But, anyhow, they say, well,
you cited them for say, a backup alarm, and there
was no one in the area, there was never a hazard,
and you made it S and S. But a lot of inspectors
base that, the afternoon shift, he may be working
in an area where's six people involved. So we cited
him in the spoils for a non S and S citation, and
that afternoon, he'd be in an area where there would
be other equipment and people involved. So, you
have to draw the line, and see where this equipment
is working and the potential, that, afternoon you
definitely know he'll be in another area. So
there's where, I think, this whole thing on this
S and S, and non S and S, has really confused a lot
of us.
BY MR. ZOHN:

Q.
I, another question, in that respect, of the
classification of these violations; do you, in fact,
now have the opportunity to inspect this mine as
frequently as you did, say-A·.
No. See, there's another thing that certain
type mines are getting in, what we refer to, as a
pattern·on these two inspections a year now. They'll
look at their calendar and say, well, it's April,
he's due, and we'll fix things up; where the other
five months of the year, he won't. And it's really
hurt the safety and health part of it, on these
only two inspections.

*

*

*

*

*

*

BY MR. ZOHN:

Q.
Okay. So were these bulldozers operating on
the ramp, during the course of that day? Would they
be operating on--

1339

A.

Yes.

One would.

JUDGE KOUTRAS:

And see when you have-Excuse me, you say one would?

THE WITNESS: One was, and then, the other was
ripping, and then, when he gets so much ripped, then
they'd both be pushing off this.
JUDGE KOUTRAS:

Okay.

BY MR. ZOHN:

Q.
Did you see them operating up on the incline,
at all?
A.

Yeah.

Q.
All right. Based upon your observations of
them operating on the incline, would you have
issued them now as S and S citations?
A.
I'd have to check the area first, and see how
much of a danger there was. Now, these can be,
these ramps can be anywhere from forty foot wide
to seventy foot wide, and if they're both going up
the middle, there is no danger there, but one time
or another, the ones on the edge, there is a danger
there then.
MR. ZOHN:
your Honor.

I don't have any further questions,

JUDGE KOUTRAS: Okay. What the, do you recall
what the widths of the ramps were, on these days?
THE WITNESS:
I think those, the ramps, that day,
were in the neighborhood of forty to fifty feet wide.

Significant and Substantial
On the facts of this case, I conclude and find that the
violations cited by Inspector Boyle were significant and
substantial. His testimony is that the two bulldozers
operated on a daily basis in the pits, and while it is true
that at the t_ime he observed them they were running on fairly
level terrain, he also indicated that they traveled up and
down an inclined ramp, and that there was a danger of overturning. Further, in the event of an accident, or overturning,
Mr. Boyle further testified that the condition of the cab

134,0

doors, the lack of proper latches, and one or more missing
handles, would likely trap the operators in the cabs in
the event the equipment overturned, and that they would
have difficulty in getting out of the equipment. Given
these circumstances, I conclude and find that it was
reasonably likely that an injury would result from the cited
conditions or practices. Accordingly, the violations are
modified to reflect that they were significant and substantial,
and the inspector's initial findings to the contrary are
rejected.
Gravity
I find that all of these citations constitute serious
violations. Failure to provide seatbelts and the lack of
door handles on the operator's cab, presented a serious
hazard to the equipment operator in the event of an accident.
If the bulldozers were to overturn, the lack of seatbelts
would likely throw the operators out of the cab, and the lack
of adequate door handles would prevent their escape from the
vehicles in the event of an emergency, particularly if the
overturned equipment were to come to rest on the one "goodside" of the cab.
Negligence
Inspector Boyle believed that the respondent's negligence
with.respect to the condition of the doors on the cited bulldozers was moderate. He stated that with the older bulldozers,
while it was difficult to obtain parts such as door handles,
he still allowed them to be operated (Tr. 34; 36). Mr. Boyle
also confirmed that the foreman was aware that seatbelts were
required (Tr. 29). I conclude and find that the violations
resulted from ordinary negligence on the part of the respondent.
Good Faith Compliance
Inspector Boyle confirmed that abatement was achieved in a
timely manner by the respondent, and the door handles were
replaced (Tr. 29; 34-36). He also confirmed that seatbelts
were installed. Under the circumstances, I conclude and find
that the respondent timely abated the cited conditions and
practices, and insofar as the citations are concerned, abated
them in good faith.

1341

History of Prior Violations
Exhibits P-1 and P-2, are computer print-outs of the
respondent's history of prior violations for the period
May 16, 1981 through May 15, 1983, and prior to May 16,
1981. Prior to May 16, 1981, the respondent was assessed
for a total of 17 citations, two of which were paid. For
the period May 16, 1981, through May 15, 1983, respondent
was assessed for two citations, and they remain unpaid.
Based on the respondent's past compliance record, as
reflected in the print-outs, I cannot conclude that it is
per se a bad record of compliance warranting additional
increases in the civil penalties which I have assessed for
the four violations which have been affirmed. What I have
difficulty comprehending is why this respondent, with an
otherwise good compliance record, consistently ignores and
flaunts the law after he has abated the conditions, and seeks
to be heard through the hearing process.
Size of Business and Effect of Civil Penalties on The
Respondent's Ability to Continue in Business
The record reflects that the respondent is a small strip
mine operator. Absent any evidence to the contrary, and in
view of the respondent's failure to appear and argue otherwise, I cannot conclude that the civil penalties assessed
by me for the citations which have been affirmed will adversely
affect the respondent's ability to continue in business.
During his closing argument on the record, petitioner's
counsel requested a substantial increase in the initial penalty
assessments proposed for these violations, and he did so on the
basis of the evidence and testimony which indicated that the
bulldozers in question were operating in areas where there
was a danger of overturning, that no seatbelts at all were
provided, and that the lack of adequate door handles and
latches would entrap the operators if the vehicles were to
overturn. Counsel also agreed that I was not bound by the
initial MSHA assessments made for these violations, and he
alluded to the fact that the respondent has a history of
flaunting the law (Tr. 47-48).
Petitioner's counsel also moved that in view of the
failure of the respondent or his counsel to appear in this
proceeding, that I refer the matter to the Commission forappropriate disciplinary action pursuant to the Commission's
rules.
In support of his motion, counsel argued that the
respondent has an obvious contempt for these proceedings, that
this is not the first time he has failed to appear at a
hearing, and that in each instance where other Commission

1342

Judges have ordered payments of civil penalties, or that
respondent answer show-cause or other orders, he has
flagrantly disregarded them. Counsel also stated that the
respondent has made no payments for any civil penalties
ordered by the Commission Judges in past proceedings, and
that the Department of Labor has sought injunctions against
the respondent for non-payment of penalties in the United
States District Court (Tr. 12-15; 48-50). Petitioner's
counsel also stated that the respondent and his foremen
treat MSHA inspectors with general disrespect and that the
respondent attempts to avoid the law rather than obey it
(Tr. 16) •
In support of his assertion that the respondent has
flagrantly disregarded the authority and jurisdiction of
the Commission, petitioner's counsel alluded to several
prior decisions and orders issued by me, by Chief Judge
Merlin, and Judges Broderick and Melick, and a discussion
of these follow below:
In MSHA v. Getz Coal Sales,Inc., VINC 79-60-P, decided
by me on August 7, 1980, 2 FMSHRC 2172, respondent Roland
Getz failed to appear at a hearing convened in Warren, Ohio,
and he did so without prior notice that he would not appear.
He simply ignored the notice, and my personal telephone call
to him the morning of the hearing. In that case, he specifically requested a hearing, and did not even give me the courtesy
of a telephone call that he would not appear. He was defaulted,
and an order was entered that he pay the assessed civil penalty
of $75.
In MSHA v. Getz Coal Sales, Inc., LAKE B0-396, Judge
Broderick entered a default order on February 9, 1981,
requiring the respondent to pay a penalty of $26 for his
failure to file an answer or otherwise respond to the Judge's
show-cause order. Judge Merlin issued a similar default
order on May 13, 1983, in MSHA v. Getz Coal Sales, Inc.,
LAKE 83-4, and ordered the respondent to make an immediate
payment of $46.
In MSHA v. Getz Coal Sales, Inc., LAKE 83-86, Judge
Melick approved a settlement motion calling for the respondent
to pay a $30 assessment in satisfaction of a citation
initially assessed as $42, and in that case, as well as the
others noted above, petitioner's counsel states that respondent
has made absolutely no payments, and has simply ignored the
orders issued by the Judges.

1343

Respondent's Failure to Appear at T,he Hearing
The record in this case reflects that both the respondent
and his counsel received notice of the hearing scheduled in
this case, and the postal certified mailing receipts which
are part of the record attest to that fact. Respondent received
my original hearing notice issued on January 16, 1984, and his
counsel received the amended notice issued March 22, 1984,
advising him of the specific hearing site. These notices were
issued well in advance of the scheduled hearing on April 12,
1984.
In addition to the written notices served on the
respondent and his counsel, petitioner's counsel advised me
that he personally spoke with respondent's counsel on the day
before the hearing and advised him that he should appear.
When counsel failed to appear the morning of the hearing, I
personally telephoned his off ice and was advised by his
clerical staff that he was away, but that he was aware of
the fact that this matter was scheduled for hearing. Given
these circumstances, it seems clear to me that respondent and
its counsel had ample notice of the hearing, yet they
flagrantly ignored the notices and orders.
Although responoent Roland Getz has a history·of obvious
contempt for these legal proceedings, and apparently derives
some vicarious pleasure by thumbing his nose at the Department
of Labor, as well as the Commission, I fail to understand and
comprehend counsel Neal s. Tostenson's conduct in ignoring the
notices served on him in this proceeding. As a member of the
Bar, I would think that he would be cognizant of his ethical
responsibilities as counsel of record in these proceedings, and
act accordingly. If counsel conducted his practice in this
manner while before a United States District Court, he would
more than likely find himself in contempt of court. Lacking
such contempt powers, I do have the discretion to certify the
matter to the Commission for possible disciplinary action under
its rules, and I may also consider referring the matter to the
local bar where counsel is admitted to practice.
After careful consideration of the motion made by
petitioner's counsel to certify this matter, IT IS GRANTED,
and the matter will be certified to the Commission for consideration of appropriate disciplinary action under 29 C.F.R.
2700.80.

.1344

Penalty Assessments
On the basis of the foregoing findings and conclusions,
and considering the statutory criteria found in section llO(i)
of the Act, I conclude and find that the following civil
penalties are reasonable and appropriate for the violations
which have been affirmed.
Citation No.
2067133
2067134
2067135
2067136

Date

30 CFR Section

Assessment

5/16/83
5/16/83
5/16/83
5/16/83

77.1710(i)
77.1606(c)
77.1710(i)
77.1606{c)

$135
175
135
175
$620

ORDER
Respondent IS ORDERED to pay the civil penalties in the
amounts shown above within thirty (30) days of the date of this
decision, and payment is to be made to MSHA.
IT IS FURTHER ORDERED THAT:
In view of the circumstances surrounding the
respondent's apparent flagrant disregard for the
authority and jurisdiction of the Commission, and
in view of Counsel Neal S. Tostenson's failure to
appear at the scheduled hearing pursuant to notice
duly served on him, the matter is ref erred to the
Commission pursuant to Rule 80, 29 CFR 2700.80.
See: Secretary of Labor ex rel. Roy A. Jones v.
James Oliver & Wayne Seal, FMSHRC Docket No. NORT
78-415, March 27, 1979; Canterbury Coal Co., 1 FMSHRC
335 (May 1979);· Secretary of Labor v. Co-Op Mining
Company, 1 FMSHRC 971 (July 1979) {Disciplinary
Proceeding No. D-79-2).

/li~.4ali~
Administrative Law Judge

1345

Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department of Labor, 881 Federal Office Bldg., 1240 E. 9th St.,
Cleveland, OH 44199
(Certified Mail)
Neal S. Tostenson, Esq., Georgetown Bldg., Georgetown Rd.,
P.O. Box 447, Cambridge, OH 43725
(Certified Mail)
Mr. Roland A. Getz, President, Getz Coal Sales, Inc.,
8310 Hoffee Road, Lisbon, OH 44432
(Certified Mail)

/ejp

1346

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

MAY 171984

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

v.
THE PITTSBURG & MIDWAY COAL
MINING CO.,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. CENT 83-65
A.C. No. 29-00096-03506

. McKinley Mine

DECISION
Appearances:

Jordana w. Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Petitioner;
John A. Bachmann, Esq., Denver, Colorado, for
Respondent.

Before:

Judge :Broderick

STATEMENT OF THE CASE
The Secretary seeks a civil penalty for one alleged violation of a mandatory standard, that contained in 30 C.F.R.
§ 77.202.
Pursuant to notice, the case was heard in Albuquerque,
New Mexico on April 17, 1984. Forester Horne and Harold Shaffer
testified on behalf of Petitioner, and Petitioner called Frank
Scott, a representative of Respondent as a witness. Frank Scott
and Gary Cope testified on behalf of Respondent. At the conclusion of the testimony, counsel orally argued their respective
positions on the record, and waived their right to file post. hearing briefs. Based on the entire record and considering the
contentions of the parties, I make the following decision.
FINDINGS OF FACT
1. At all times pertinent to this proceeding, Respondent
was the owner and operator of a surf ace coal mine in McKinney
County, New Mexico, known as the McKinney Strip Mine.

2.

Respondent is a large operator.

3. Respondent's history of previous violations is small.
A penalty otherwise appropriate should not be increased because
of the history.
4. A penalty in this case will not have any effect on
Respondent's ability to continue in.business.
5. On June 9, 1983, Federal Mine Inspector Forester Horne
inspected the subject mine and issued Citation No. 2071336
alleging a violation of 30 C.F.R. § 77.202.
6. The tipple control room at the subject mine i~ on the
top floor of the coal transfer building and is about 80 feet
from the surface. The coal comes in the transfer building and
its transferred to the stacker belt. Coal dust results from
this operation.
7. The tipple control room is about 20 feet by 15 feet.
It contains two panels or boxes, one known as the main crusher
panel or main breaker box, and the other called the heat trace
box or panel. The former is about 6 feet high and 2 feet wide.
The latter is about 2 feet by 2 feet.
1

8. The main crusher panel contains a motor starter, with
an overload relay, a transformer and numerous wires.
·
9. The heat trace panel contains a number of circuit
breakers.
10. On June 9, 1983, there was an accumulation of coal
dust in the main crusher panel and the heat trace panel. The
dust on the base of each panel measured approximately one~eighth
of an inch. It was black in color. There was dust on the
equipment within each box although most of it had settled to the
base. The dust was not in suspension.
11. The dust had come up through the floor of the room and
around the conduits under the panels.
12. The condition described in Finding No. 10 was such
that it would have taken 2 to 3 days to accumulate. It was
apparent to visual observation.
13. In the normal operation of the main crusher panel and
the heat transfer panel, no ignition source, arc or spark is
created.

1348

14. In the event of a phase to phase or phase to ground
fault within one of the panels, an ignition could be created.
If an ignition occurred, it could put the dust accumulation in
suspension and an explosion could result.
REGULATION
30 C.F.R. § 77.202 provides as follows: "Coal dust in the
air of, or in, or on the surfaces of, structures, enclosures,
or other facilities shall not be allowed to exist or accumulate
in dangerous amounts."
ISSUES
1. Whether Respondent allowed coal dust to exist or
accumulate in dangerous amounts in the panels in the tipple
control room of the subject mine on June 9, 1983?
2. If so, what is the appropriate penalty for the
violation?
CONCLUSIONS OF LAW
1. Respondent is subject to the provisions of the Federal
Mine Safety and Health Act of 1977 in the operation of the
subject mine, and I have jurisdiction over the parties and
subject matter of this nroceeding.
2. The condition described in Finding of· Fact No. 10
constituted a violation of the mandatory safety standard contained in 30 C.F.R. § 77.20~.
DISCUSSION
The critical issue in .this case is whether the coal dust
accumulations existed "in dangerous amounts." There are few
cases interpreting this phrase. But see Consolidation Coal
Company, 3 FMSHRC 318 (1981) (ALJ); Secretary v. co-op Mining
Company, 5 FMSHRC 1041 (1983) (ALJ). Whether an accumulation
is dangerous depends upon the amount of the accumulation and
the existence and location of sources of ignition. The greater
the concentration, the more likely it is to be put into suspen~
sion and propagate an explosion. I accept the inspector's
testimony as to the amount of the accumulation and conclude that
it was significant. It is true that there were no bare wires
or any equipment that would cause arcing or sparking without
some equipment failure or defect. But there was energized
electrical facilities present and faults or failures in such
facilities are common occurrences.. I conclude that if the
extent of the accumulation is such that it is black in color,
and if potential ignition sources are present, the accumulation
exists in a dangerous amount.

1349

3. The violation was moderately serious. An ignition was
unlikely to occur, but if it did, serious injuries would result.
4. The violation resulted from Respondent's negligence.
Respondent knew or should have known of its existence and
cleaned it up.

5.

The violation was abated promptly and in good faith.

6. Considering the criteria in section llO(i) of the Act,
I conclude that an appropriate penalty for the violation is
$400.

ORDER
Based upon the above findings of fact and conclusions of
law, Respondent is ORDERED to pay the sum of $400 within 30 days
of the date of this decision for the violation found herein to
have occurred.

J

<

Distribution:

l~ )46~&dvvie/l
James A. Broderick
Administrative Law Judge

Jordana w. Wilson, Esq., Office of the Solicitor, U.S.
Department of Labor, 555 Griffin Square Building, Suite 501,
Dallas, TX 75202 (Certified Mail)
John A. Bachmann, Esq., The Pittsburg & Midway Coal Mining
Company, 1720 South Bellaire Street, Denver, CO 80222
(Certified Mail)
/fb

1350

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

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

HAY 171984

CIVIL PENALTY PROCEEDING
Docket No. KENT 83-248
A. C. No. 15-13881-03504
Docket No. KENT 84-72
A. C. No. 15-13881-03514

v.
PYRO MINING COMPANY,
Respondent

Pyro No. 9 Slope
William Station
Docket No. KENT 84-71
A. C. No. 15-11408-03518
Pride Mine
DECISION

Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,

u. s. Department of Labor, Nashville, Tennessee,
for Petitioner;
William M. Craft, Assistant Safety Director,
Sturgis, Kentucky, for Respondent.

Before:

Judge Steffey

A hearing was convened in the above-entitled proceeding on
February 28, 1984, in Evansville, Indiana, pursuant to section
105 (d) , ·30 U.S. C. § 815 (d), of the Federal Mine Safety and
Health Act of 1977.
The parties were given an opportunity to discuss settlement prior to the convening of the hearing. As a result of
their discussion, a settlement of all issues was achieved.
Under the parties' settlement agreement, respondent will pay reduced penalties totaling $734 instead of the penalties totaling
$1,684 proposed by the Mine Safety and Health Administration.
Some aspects of the parties' settlement agreement are unique in
that the parties asked me to modify a citation issued under section 104(d) (1) to a citation issued under section 104(a), as
hereinafter fully explained.
Section llO(i) of the Act lists six criteria which are required to be considered in determining civil penalties. The
proposed assessment sheets in the official files show that

1351

respondent produces approximately 2,813,000 tons of coal annually. That production figure supports a finding that respondent
operates a relatively large coal business and that penalties
should be in an upper range of magnitude insofar as they are
determined under the criterion of the size of the operator's
business.
Respondent did not present any evidence at the hearing pertaining to its financial condition. The Commission held in
Sellersburg Stone Co., 5 FMSHRC 287 (1983), that if an operator
fails to introduce any data pertaining to its financial condition, a judge may presume that the operator is able to pay pen~
alties.
In the absence of any information in the record to support a contrary conclusion, I find that payment of penalties
will not cause respondent to discontinue in business and that it
is unnecessary to reduce any penalties because of the operator's
financial condition.
All of the proposed assessment sheets indicate that, during
the 24 months preceding the citing of the violations alleged in
this consolidated proceeding, respondent was cited for such a
few violations of the mandatory health and safety standards,
that MSHA assigned zero penalty points under the penalty assessment formula described in 30 C.F.R. § 100.3(c). Therefore, no
penalty assessed in this proceeding needs to be increased under
the criterion of respondent's history of previous violations.
Each of the proposed assessment sheets shows, with one exception, that all assessments proposed by MSHA have been reduced
by 30 percent pursuant to section 100.3(f) because respondent
. demonstrated a good-faith effort to achieve compliance within
the time for abatement given by the inspectors in their citations. The one exception occurred with respect to Citation No.
2337388 and special circumstances pertain to that citation as
hereinafter explained.
. The above discussion of four of the six criteria is applicable to all penalties proposed by MSHA in this proceeding. The
remaining two criteria of negligence and gravity are hereinafter
considered in an evaluation of each violation alleged in each
docket number.
Docket No •. KENT 83-248
The proposal for assessment of civil penalty in Docket No.
KENT 83-248 seeks to have penalties assessed for three alleged
violations. Citation No. 2217774 alleged a violation of section
75.202 because the roof in the vicinity of the air shaft had
been resupported after the occurrence of a roof fall, but the
inspector believed that additional supports in the form of cribs

1352

were needed because of the adverse conditions which existed in
the area. The Assessment Office considered the violation to
have been moderately serious, to have been associated with a
low degree of negligence, and proposed a penalty of $50 which
respondent has agreed to pay in full (Tr. 4).
Inasmuch as the
roof had been resupported after the roof fall, but had not been
supported as well as the inspector believed to be desirable, it
appears that the Assessment Office proposed a reasonable penalty
and that respondent's agreement to pay the full amount should be
approved.
Citation No. 2217821 alleged a violation of section 75.1303
because a misfired shot had not been removed from the left rib
of the No. 1 entry before mining was conducted inby the misfired
shot. The Assessment Office considered the violation to have
been moderately serious, to have been associated with a low degree of negligence, and proposed a penalty of $50 which respondent has agreed to pay in full (Tr. 4). I would normally expect
the failure to remove a misfired shot to be a more serious violation than it was considered to be in this instance, but the
Assessment Office assigned penalty points under section 100.3
for the criteria of negligence and gravity exactly as those criteria had been evaluated by the inspector who wrote the citation.
The inspector was present when the misfired shot was removed and
was in a position to observe the circumstances~surrounding the
violation better than anyone else~
In such circumstances, I
find that the penalty.. was properly proposed and that respondent's
agreement to pay the full amount should be approved.
Citation No. 2217824 alleged a violation of section 75.202
because brows in the vicinity of overcasts in the track, belt,
and return entries needed additional support. The Assessment
Office considered the violation to have been moderately serious,
to have been associated with ordinary negligence, and proposed
a penalty of $74 which respondent has agreed to pay in full (Tr.
5). The Assessment Office assigned penalty points in accordance
with the evaluation made by the inspector who wrote the citation.
He was in a position to determine the seriousness of the violation and to appraise the operator's degree of negligence.
Therefore, I find that the penalty was properly proposed and that respondent's agreement to pay the penalty in full should be
approved.
Docket No. KENT 84-71
The proposal for assessment of civil penalty filed in Docket No. KENT 84-71 seeks assessment of a penalty for a single
violation of section 75.604 which was alleged in Citation No.
2337395 because five splices in the trailing cable attached to
the cutting machine were not effectively insulated and sealed

1353

to exclude moisture. The Assessment Office assigned.penalty
points in accordance with the inspector's evaluation of negligence and gravity. Therefore, I find that the penalty of $85
was properly proposed and that respondent's agreement to pay
the penalty in full (Tr. 5) should be approved.
Docket No. KENT 84-72
The proposal for assessment of civil penalty filed in Docket No. KENT 84-72 seeks assessment of penalties for six alleged
violations of the mandatory health and safety standards. Two
of the citations (Nos. 2337926 and 2337927) alleged violations
of section 75.400. The Assessment Office assigned penalty
points in accordance with the inspector's evaluation of negligence and gravity. The inspector considered the violation alleged in Citation No. 2337927 to be more serious than the one
alleged in Citation No. 2337926 because he believed that the
loose coal accumulations described in Citation No. 2337927 exposed more persons to injury than the accumulations described
in Citation No. 2337926.
The inspector considered that both
violations were associated with ordinary negligence. Respondent
has agreed to pay in full the proposed penalties of $74 and $91
for the violations alleged in Citation Nos. 2337926 and 2337927,
respectively.
I find that the penalties were properly proposed
and that respondent's agreement to pay the penalties in full
should be approved.
Citation No. 2337929 alleged a violation of section 75.517
because the insulation on the trailing cable to the cutting
machine had been damaged sufficiently to expose bare conductor
wires. The inspector considered the violation to have been
serious and to have been associated with a high degree of negligence. His evaluation resulted in a proposed penalty of $112
under the assessment formula in section 100.3. Respondent has
agreed to pay the proposed penalty in full (Tr. 8).
I find that
the penalty was properly proposed and that respondent's agreement to pay the penalty in full should be approved.
Respondent's answer to the Secretary's proposal for assessment of civil penalty filed in Docket No. KENT 84-72 withdrew
respondent's request for a hearing with respect to the violation
of sections 75.604 and 75.701 alleged in Citation Nos. 2337944
and 2337945, respectively. Respondent's withdrawal of its request for hearing has the technical effect of leaving the matter
before me for approval because section llO(k) of the Act provides that a proposed penalty which has once been contested so
as to bring it before the Commission cannot be compromised,
mitigated, or settled without the approval of the Commission.
Both of the violations pertained to creation of shock hazards
because of poor insulation in one instance and lack of a frame

1354

ground in the other instance. The inspector considered both
violations to have been moderately serious and to have been
associated with ordinary negligence. His evaluations resulted
in proposed penalties for each violation of $74 which respondent has agreed to pay in full (Tr. 7). I find that the penalties were properly proposed and respondent's agreement to pay
the penalties in full should be approved.
The final violation to be considered in Docket No. KENT
84-72 is a violation of section 75.316 alleged in Citation No.
2337388 which was written pursuant to the unwarrantable-failure
provisions of section 104(d) (1) of the Act. The Assessment
Office waived application of the penalty formula described in
section 100.3 with respect to the violation alleged in Citation
No. 2337388 and proposed a penalty of $1,000 on the basis of
narrative findings written pursuant to section 100.5. At the
hearing, counsel for the Secretary of Labor stated that he had
discussed with the inspector who wrote Citation No. 2337388 the
conditions surrounding his writing of the citation and the Secretary's counsel said that the citation incorrectly implies
that the cutting machine was not equipped with water sprays
when, in fact, it was so equipped. The Secretary's counsel
also stated that respondent's mana~ement was in the process of
advancing the waterline at the tim~ the citation was written.
Additionally, the Secretary's couns~l stated that, while the
ventilation and dust control plan does specify that the cutting
machine has to be equipped with four water sprays, the plan
does not specifically state that the machine can be used only
if the waterline is connected to the machine.
The Secretary's counsel stated that even though it would
make little sense to have water sprays on a machine without
having them connected to a waterline, he believed the ambiguous
wording of the plan had caused the violation to be rated as
much more serious than it was.
In such circumstances, the Secretary's counsel moved that I modify the citation to a citation
written pursuant to section 104(a) of the Act and that the modified citation should be written without checking the block on
the face of t~e citation indicating that the violation was a
significant artd substantial violation (Tr. 9-11).
I believe that the Secretary's counsel provided sufficient
reasons to justify the grant of his motion that I modify Citation No. 2337388 from one issued pursuant to section 104(d) to
a citation issued pursuant to section 104(a). The inspector
who wrote the citation did not consider the violation to have
been very serious because he evaluated the gravity of the violation to be the same as has previously been discussed above when
penalties of $50 have been proposed by the Assessment Office
for violations in citations written pursuant to section 104(a).

1355

The only reason the Assessment Office waived the provisions
of section 100.3 and proposed a penalty of $1,000 under section
100.5 was that the inspector believed that a high degree of negligence was involved. The explanation given by the Secretary's
counsel, however, indicates that respondent's ventilation and
dust control plan is ambiguous as to the question of attachment
of the waterline to the cutting machine in the face area. Since
the ventilation and dust control plan contains ambiguous language which makes it inappropriate to find that respondent's
management was necessarily indifferent or showed a lack of due
diligence in having the cutting machine connected to the waterline, I believe that the citation was improperly issued under
the unwarrantable-failure provisions of the Act and that the
citation should be modified, as hereinafter ordered, to a citation issued under section 104(a) of the Act.
When the parties stated that they had not agreed upon a
specific penalty for the alleged violation of section 75.316,
but had only agreed that the citation should be modified to a
citation issued pursuant to section 104(a) without a designation of significant and substantial, I noted that I had written
a decision 1/ in which I held that the Commission and its judges
are not bound by the provisions of section 100.4 2/ so as to be
required to assess a penalty.of only $20 if we have before us a
civil penalty proceeding involving a citation issued under section 104(a) without a designation that the violation is significant and substantial.· 3/
Citation No. 2337388, as modified, cites a violation of
section 75.316 because the cutting machine was being used without having the waterline connected to it. The parties have
stipulated that the violation was not significant and substantial,
1/ U. S. Steel Mining Co., Inc., Docket Nos. WEVA 82-390-R, et
al., issued April 30, 1984, pages 19-25.
27 30 C.F.R. § 100.4 provides, in pertinent part, as follows:
"An assessment of $20 may be imposed as the civil penalty where
the violation is not reasonably likely to result in a reasonably serious injury or illness, and is abated within the time
set by the inspector.
* * *"
3/ The Commission held in Consolidation Coal Co., 6 FMSHRC
189 (1984), that MSHA's inspectors may designate on a citation
written pursuant to section-104(a) of the Act that a violation
is "significant and substantial". That phrase is derived from
section 104(d) (1) of the Act which specifies that an inspector
must find that any violation cited pursuant to section 104(d)
"* * * is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard * * *"

1356

or of a nature which could have been expected to cause an injury of a reasonably serious nature as the term "significant
and substantial" has been defined by the Commission in National
Gypsum Co., 3 FMSHRC 822 (1981). In such circumstances, only a
very small portion of the penalty should be assessed under the
criterion of gravity. Most of the penalty should be assessed
under the criteria of the operator's size and the fact that ordinary negligence must be considered to have been associated
with failure to. attach the waterline prior to using the machine
even if the ventilation plan did not specifically state that
attachment of the waterline was a prerequisite for using the
machine to cut coal. I have previously stated above that no
penalty in this proceeding should be increased under the criterion of history of previous violations. The penalty should
not be increased under the criterion of good-faith abatement because the violation was corrected within the 30-minute period
allowed for abatement by the inspector. Therefore, I believe
that a penalty of $50 should be assessed for the violation of
section 75.316 alleged in Citation No. 2337388.
WHEREFORE, for the reasons hereinbefore given, it is
ordered:
(A) The parties' motion for approval of settlement is
granted and the settlement agreement is approved.
(B) The motion made by counsel for the Secretary of Labor
for modification of Citation No. 2337388 is granted and Citation No. 2337388 dated August 19, 1983, is modified to a citation issued under section 104(a) of the Act without a designation of significant and substantial.
(C) Pursuant to the parties' settlement agreement and the
grant of the parties' other requests in this proceeding, Pyre
Mining Company shall, within 30 days from the date of this decision, pay civil penalties totaling $734.00 which are allocated
to the respective alleged violations as follows:
Docket No. KENT 83-248
Citation No. 2217774 4/18/83 § 75.202 .•••.•. $ 50.00
50.00
Citation No. 2217821 4/20/83 § 75.1303 ••••••
74.00
Citation No. 2217824 4/22/83 § 75.202 ••••••
Total Settlement Penalties in Docket
No. KENT 83-248 •••••.•••••••••••••.•••.•••• $174.00
Docket No. KENT 84-71
$ 85.00
Citation No. 2337395 9/27/83 § 75.604
Total Settlement Penalties in Docket
No. KENT 84-71 ••.••••••••••••••••••••••••• $ 85.00

Docket No. KENT 84-72

....... $ 50.00
...... 74.00
. . . .. . 74.00
. ..... 91. 00
. ..... 74.00
...... 112.00
. . . . . .. . . . . . . . . . . . $475.00

Citation No. 2337388 8/19/83 § 75.316
Citation No. 2337926 10/25/83 § 75.400
Citation No. 2337944 10/25/83 § 75.604
Citation No. 2337927 10/26/83 § 75.400
Citation No. 2337945 10/27/83 § 75.701
Ci ta ti on No.• 2337929 10/28/83 § 75.517
Total Settlement and Assessed Penalties
in Docket No. KENT 84-72

Total Settlement and Assessed Penalties
in This Proceeding •••••••••••••••••••••••• $734.00

~ e.rrJGjfe

Richard c. S t e f f e y 7 ' Administrative Law Judge

Distribution:
Darryl A. Stewart, Esq., Office of the Solicitor, u. s. Department of Labor, Room 280, u. S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)
William M. Craft, Assistant Safety Director, Pyro Mining Company,
P. O. Box 267, Sturgis, KY 42459 (Certified Mail)

yh

l.358

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

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

MAY 221984

.: CIVIL PENALTY PROCEEDING

Docket No. CENT 80-312-M
A.C. No. 29-00166-05005

v.
DUVAL CORPORATION,
Respondent

.

Nash Draw Mine

DECISION
Appearances:

Eloise v. Vellucci, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Lina s. Rodriguez, Esq., ·Bilby, Shoenhair,
Warnock & Dolph, Tucson, Arizona,
for Respondent.

Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., (the
"Act"), arose from an inspection of respondent's Nash Draw Mine.
The Secretary of Labor seeks to impose civil penalties because
respondent allegedly violated two safety regulations promulgated
under the Act.
Respondent denies that any violations occurred.
After notice to· the parties, a hearing on the merits was
held in Carlsbad, New Mexico on November 2, 1983.
The parties filed post trial briefs.
Issues
The issues are whether respondent violated the regulations; if so, what penalties are appropirate.
Stipulation
The parties stipulated as to certain evidence and they
further agreed that the size of respondent's Nash Draw mine is
179,041 man hours. The company's total size is 5,773,849 annual
man hours (Tr. 10).

1359

The two" citations here allege respondent violated Title 30,
Code of Federal Regulations, Section 57.19-120 and Section
57.11-50.
Citation 162288 provides as follows:
57.19-120 Mandatory. A systematic procedure of
inspection, testing, and maintenance of shaft and
hoisting equipment shall be developed and followed.
If it i~ found or suspected that any part is not
functioning properly, the hoist shall not be used
until the malfunction has been located and repaired
or adjustments have been made.
Citation 162289, provides as follows:
57.11-50 Mandatory. Every mine shall have two or
more separate, properly maintained escapeways to the
surface from the lowest levels which are so positioned
that damage to one shall not lessen the effectiveness
of the others. A method of refuge shall be provided
while a second opening to the surf ace is being developed. A second escapeway is recommended, but not required, during the exploration or development of an ore body.
In addition to separate escapeways, a method of refuge
shall be provided for every employee who cannot reach
the surf ace from his working place through at least
two separate escapeways within a time limit of one hour
when using the normal exit method. These refuges must
be positioned so that the employee can reach one of
them within 30 minutes from the time he leaves his workplace.
Summary of the Evidence
MSHA's evidence: Sidney Kirk, a supervisory mine inspector,
testified for MSHA (Tr. 14-17).
At approximately 11:30 a.m. on January 9, 1980 Inspector
Kirk received a call from Marvin Nichols, his supervisor. The
supervisor advised him that respondent was having hoisting
control problems on the No. 5 hoist at the Nash Draw mine.
Nichols had told the company the oncoming miners should not go
underground until the malfunction was corrected (Tr. 18). In the
interim the company was directed to inform the MSHA off ice in
Carlsbad of any developments (Tr. 18).
About 3:30 p.m., respondent's representative Merle Elkins
called Inspector Kirk. He indicated the electrical malfunction
was continuing. Elkins stated he was familiar with sections

1360

57.19-120 and 57.11-50 (Tr. 19). Kirk said they should consider
the impact of the regulations before putti~g any miners
underground. Kirk also inquired about the 3 p.m. shift. When
he learned the miners had gone underground, he immediately went
out to the mine (Tr. 19).
At the mine Kirk learned from supervisor MaGraw, and others,
that the No. 5 hoist would operate on man speed but not on ore or
automatic speeds (Tr. 20, 22, 50). Ore speed is automatic and
much faster. Man speed requires manual control. The hoist
control system permits the operator to twist a handle to convert
to man from ore speed (Tr. 20). Man speed runs about 650 feet
per minute. This is about 200 to 250 feet per minute slower than
ore speed (Tr. 19, 20). McGraw felt he was in compliance with
the regulations because there were ladderways in each shaft.
They could be used as an escape device from the 900 foot level
(Tr. 21).
At Kirk's request the skif was automatically loaded. When
the hoistman applied power to raise the skif it started creeping
down. Brakes were required. In the meantime the company
electricians continued checking various components in the control
box cabinet (Tr. 22, 23).
MaGraw declined to bring the miners out without an MSHA
order. Kirk obliged. The citation issued at 1737 hours states
respondent was in violation of Section 57.19-120 CTr. 23-25,
Exhibit C2). The company was cited because if a fire or a
blowout occurred underground, a second escapeway was not
available. After the inspector arrived at the mine the company
contended the hoist would operate on manual. But it went
backwards instead of coming up the shaft (Tr. 26, 27).
The hoisting logs reflected these malfunctions had been reoccurring since about 2 a.m., on January 8. (Tr. 27, 28). There
had been a full shift on January 9 and the company was 3 to 4
hours into the afternoon shift when the imminent danger order was
issued (Tr. 27, 28).
The other mine shaft, the regularly used man shaft, incorporates the exhaust ventilation system. In the event of an
underground catastrophe, such as a detonation, fire, or smoke accumulation or blowout the 13 or 15 miners could not exit via the
intake shaft because of the hoist malfunction (Tr. 28, 29, 35).
Citation 162289 was issued because respondent did not have a
second escapeway since the hoist was inoperative (Tr. 30-33).
Management contended the ladders furnished the second escapeway.

1361

But the inspector felt that was insufficient. This is because
Section 57.11-55 provides that an incline in excess of 300 feet
shall be provided with emergency hoisting equipment CTr. 33)
Inspector Kirk returned to the mine about 1:00 p.m. but,
contrary to expectations, the hoist was not then functioning
correctly. The inspector modified the citation to permit some
miners to go underground to load the skif so it could be tested.
The citation was terminated at 2 a.m. the following day (Tr. 39,
40, 64, 67).
The inspector did not observe any miners being hauled out by
the No. 5 hoist. Nor was any attempt made to do so. The workers
were brought out via the No. 6 shaft after the imminent danger
order was issued {Tr. 53, 62). The statutory definition of
imminent danger is contained in 30 U.S.C. 802Cj). The withdrawal
order was issued here because of the electrical problems. While
the miners were underground there was but a single exit CTr. 55).
MSHA's policy is this: If a malfunction occurs, they will
allow the shift below to stay underground provided the miners do
not open any new ground. But the policy prohibits the next shift
from going underground. The miner's representative must concur
in any decision of the miners to remain underground (Tr. 69).
Norman Gonder, John Solar, John Magraw, Jack Hunt, and Harry
Awbrey testified for respondent.
The Nash Draw mine, an underground potash mine, is mined by
the roof and pillar method. The potash exists in a salt
formation. The formation is relatively safe since the potash is
in a noncombustible ore body. In addition the formation is
non-gassy, is without water, and requires no timbers for support.
While the mine has won safety awards there have been roof falls,
blowouts and fatalities at the mine (Tr. 77, 78, 100, 101).
The hoists (No. 5 and No. 6) are in separate shafts about
300 feet apart. The No. 5 is a counterbalance system with two
separate hoist conveyances (Tr. 87-89, 95, 96, Exhibit R2A, R4).
The No. 6 shaft is large enough to accommodate a vehicle (Tr. 92,
93).
The shafts extend as deep as the 900 foot level. To reach
the ore a miner goes down two more slopes, an additional 170
vertical feet (Tr. 98).
In July 1983 Warren Traweek, the 40 year old assistant
safety director climbed out of the mine via the ladders. The
climb took 39 minutes. He stated that he took his time and
didn't hurt himself (Tr. 99, 103). In an emergency you could

1362

climb out in about 20 to 25 minutes (Tr. 105). If the hoist was
operating on man speed a miner coµld get up the shaft in about a
minute (Tr. 104-105).
John Solar, respondent's electrician, and others started
working on the No. 5 hoist when it broke down. He worked all day
and part of the next night to correct the malfunction (Tr.
110-112). The malfunction of No. 5 did not affect the No. 6
hoist. The hoists are controlled by separate motors (Tr.
111,112). In checking the system Solar had to occasionally turn
off the power. Solar never permitted anyone to operate the
equipment while they were checking it (Tr. 113-115, 124).
Escapeways include the No. 6 hoist and the ladders in the No. 5
and No. 6 shafts (Tr. 114).
On the day the citation was issued there was no fire
underground nor were any miners in danger (Tr. 115, 116). Solar
identified respondent's weekly maintenance log on the No. 5 hoist
(Tr. 117, 118, 123, Exhibit R9). The hoistman checks out equipment and Solar performs the maintenance. A mechanic also
performs various periodic equipment checks (Tr. 119, 120).
The No. 5 hoist would still run by hand controls and miners
could be brought out with that control. But the hoist wouldn't
run right on automatic (Tr. 125). If a malfunction occurred when
on automatic you could turn it off by hand (Tr. 125). Miners
could still be brought out if you were operating it by hand (Tr.
125, 128). The hoist was not malfunctioning other than when it
was in the automatic mode (Tr. 128).
John Magraw, respondent's manager for mine development, did
not prohibit the 3 p.m. shift from going underground (Tr. 134).
He felt there was no danger to the miners (Tr. 134, 135).
Jack H. Hunt, respondent general superintendent, was aware
they were having intermittent hoist problems. He called the MSHA
Dallas office about 11:00 a.m. (Tr. 142-145). Marvin Nichols
CMSHA} told Hunt it ~s normal procedure to finish the shift being
worked but not to lower the next shift (Tr. 146). About 3:15
p.m. Hunt directed that Sid Kirk, at MSHA's local office, be
advised of the situation (Tr. 147). Hunt and Kirk discussed the
hoist problem. Kirk was displeased that the second shift had
gone underground (Tr. 149).
At no time did Hunt see any miners being hauled by the No. 5
hoist (Tr. 153).
After Kirk arrived he indicated he would not abate the
citation unless he tested the skif with a load. Accordingly,
Kirk modified his order to permit a foreman and a few workers to
go underground to place some ore in the pocket CTr. 153, 154).

1363

If the No. 6 hoist malfunctioned while the miners were
underground the miners could have used the ladders in the No. 5
and No. 6 shafts (Tr. 156, 157). Hunt was not aware of any
miners using the No. 5 hoist after the malfunction (Tr. 159).
Harry Awbrey, respondent's chief electrician, didn't find
too much wrong with the electrical equipment. He checked the
directional relays and latched them back. Except for low voltage
the equipment seemed normal (Tr. 182, 183).
The No. 5 hoist operates on DC current. This automatic
static regulated hoist is exceedingly complicated. In contrast,
the No. 6 hoist operates on AC current and requires lower voltage
than the No. 5 hoist CTr. 184).
It was established that the problem was not with the hoist
but with the incoming Public Service Company voltage from a
temporary transformer. The No. 5 hoist is so sensitive that it
triggered out from the voltage drop when the current fluctuated.
Hoist No. 6 is not as sensitive. Public Service Company replaced
the temporary transformer with a permanent one (Tr. 186-188).
Discussion
As a threshold matter respondent contends that by virtue of
30 C.F.R. § 57.19 no violation of § 57.19-120 can be sustained.
In short, respondent claims that Citation 162288 must be vacated.
The regulation relied on by respondent reads:
§

57.19 Man hoisting.

The hoisting standards in this section apply to
those hoists and appurtenances used for hoisting
persons. However, where persons may be endangered
by hoists and appurtenances used solely for handling
ore, rock, and materials, the appropriate standards
should be applied.
Emergency hoisting facilities should conform to
the extent possible to safety requirements for other
hoists, and should be adequate to remove the persons
from the mine with a minimum of delay.
Respondent's argument lacks merit. While the No. 5 hoist is
primarily a production hoist it is uncontroverted that the hoist
had been identified as a "second escapeway" in the company's
escape plan (Tr. 51, 82-83). This causes the No. 5 hoist to be
an apparatus "used for hoisting persons" within the meaning of 30
C.F.R. § 57.19.

1364

A credibility issue focuses on whether the hoist was used
before the malfunction was repaired. On this issue I credit
Inspector Kirk's testimony. His review of the hoisting logs
indicated that the hoist began to malfunction on January 8,
continued through the night of January 9, and when he issued the
MSHA withdrawal order the company was 3 to 4 hours into the
afternoon shift (Tr. 27, 28).
This evidence is further confirmed by the obvious fact that
a production crew and a preparation crew were underground when
the withdrawal order was issued. But when Inspector Kirk wanted
to test the hoist at 9 p.m. on January 9 there was no available
ore.
It was then necessary to modify his withdrawal order to
permit four employees to go below to muck the ore so the hoist
could be loaded and retested. The ore had no doubt been removed
by the No. 5 production hoist. In view of this finding I
necessarily reject the company electrician's testimony to the
contrary (Tr. 108, 112-114).
Exhibits R9, RlO, and Rll do not assist respondent's
position. These exhibits are copies of entries from notebooks
entitled "5 and 6 Hoist Log Book Electrical"i "Hoist Safety" and
"Hoist and Ropes-Log." Respondent's case is not aided because
none of these exhibits reflect the use or non-use of the No. 5
hoist during this incident. I particularly note that the
inspector as well as the company's chief electrician referred to
the hoisting logs. The "records would show that it hoisted ore"
(Tr. 27, 28, 195, 196).
Respondent's post trial brief pivots on certain facets.
Initially, it is asserted that at no time during this incident
did any miners use the No. 5 hoist. I completely agree with
respondent's statement of the evidence. However, Section
57.19-120 applies to any malfunction regardless of whether the
hoist lifted miners.
Respondent's brief further asserts once it became apparent
that the hoist was malfunctioning it was not used for any purpose
other than testing. This point has been reviewed and ruled
against respondent.
For the foregoing reasons I conclude that the hoisting
regulation applies to respondent's production hoist. In
addition, I find that the hoist was used in production before the
malfunction was located and repaired.
Citation 162288 should be affirmed.
Civil Penalty
The six criteria for assessing a civil penalty are set forth
in 30 u.s.c. § 820Ci>.

1365

Following the statutory directives I find that the evidence
reflects that in the two years before this citation respondent
was assessed 18 violations at the Nash Draw Mine (Exhibit Cl).
The penalty, as proposed, appears appropriate in relation to the
stipulated size of the respondent. The negligence of the
operator was high inasmuch as it continued to use the hoist
after the malfunctioned occurred. When a company fails to
introduce any financial data a judge may presume that payment of
a penalty will not cause the company to discontinue in business.
Buffalo Mining Company 2 IBMA 226 (1973)~ Associated Drilling,
Inc., 3 IBMA 164 (1974). The gravity of the violation was not
severe since no miners used the No. 5 hoist. The Secretary's
Off ice of Assessments did not credit respondent with any
statutory good faith.
I concur in the disallowance of that
credit. Respondent's evidence indicates that the hoist was
malfunctioning the day after the inspection. Further, the
records would show they hoisted ore during this time (Tr. 195,
196).
On balance I deem that the proposed penalty of $395 is
appropriate and it should be affirmed.
Citation 162289 alleges a violation of Section 57.11-50.
In essence the regulation requires that an operator shall
maintain at least two separate escapeways. In addition, such
escapeways shall be so positioned that damage to one shall not
lessen the effectiveness of the other.
The evidence established that there were two separate ladde1
escapeways in each shaft. The shafts were not interconnected anc
they were 300 feet apart. Accordingly, damage to one could not
lessen the effectiveness of the other.
The Secretary's post trial brief asserts that Section
57.11-50 must be construed in conjunction with Section 57.11-55,
which provides:

57.11-55 Mandatory. Any portion of a designated
escapeway which is inclined more than 30 degrees
from the horizontal and that is more than 300 feet
in vertical extent shall be provided with an emergency hoisting facility.
The Secretary's argument runs along these lines: Section
57.11-50 requires that the escapeways be "properly maintained."
This means they must have an emergency hoisting facility. Since
the hoisting facility in the No. 5 shaft was not operative a
violation occurred.
I disagree with the Secretary's theory. The requirements of
Section 57.11-55 cannot be transposed as a requirement for
Section 57.11-50. If the Secretary .had wished to do so he could

1366

have charged respondent with violating Section 57.11-55.
Possibly he did not do so because no evidence deals with the
incline of the escapeway from the horizontal, an essential
feature of Section 57.11-55.
The cases relied on by the Secretary do not support his
position. In Peggs Run Coal Co., Inc., 5 IBMA 144 (1975) and
Consolidated Coal Co. v. Mine Workers, 3 FMSHRC 405 (1981) the
designated escapeways were inadequate because of accumulated
water, a faulty roof, and minimal clearance in the passageway.
No such situation exists here.
The Secretary has failed to establish a violation of Section
57.11-50. Accordingly, Citation 162289 and all proposed
penalties should be vacated.
Briefs
The solicitor and respondent's counsel have filed excellent
detailed briefs which have been most helpful in analyzing the
record and defining the issues.
In connection with Citation 162289 respondent's brief
contains an extensive recital of the regulatory and legislative
history of 30 C.F.R. 57.11-50. Since I do not find a violation
of that regulation I do not reach that particular issue.
To the extent that the briefs here are inconsistent with
this decision, they are rejected.
Order
Based on the findings of fact and conclusions of law stated
herein, I enter the following order:
1. Citation 162288 and the proposed penalty of $395 are
affirmed.
2. Citation 162289 and all proposed penalties therefor are
vacated.

Q;;~Ma-~~

V"'~d~lnist;~: Law Judge

1367

Distribution:
Eloise v. Vellucci, Esq., Office of the Solicitor, Department of
Labor, 555 Griffin Square, Suite 501, Dallas, Texas 75202
(Certified Mail)
John A. Robertson, Esq., Bilby, Shoenhair, Warnock & Dolph
Ninth Floor Valley National Building, P.O. Box 871, Tucson,
Arizona 85702 (Certified Mail)

/blc

1368

I

I

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

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

:

.

MAY 221984

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 83-115
A.C. No. 36-03425-03518

v.
Docket No. PENN 83-116
A.C. No. 36-03425-03519

U.S. STEEL MINING COMPANY,
INC.,
Respondent
:

Docket No. PENN 83-148
A.C. No. 36-03425-03525

:
:

Docket No. PENN 83-155
A.C. No. 36-03425-03526

..

.
:

.

Docket No. PENN 83-156
A.C. No. 36-03425-03527
Docket No. PENN 83-157
A.C. No. 36-03425-03528
Maple Creek No. 2 Mine

DECISION
Appearances:

Thomas A. Brown, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., United States Steel
Corporation, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Melick

These cases are before me upon the petitions for civil
penalty filed by the Secretary pursuant to section 105Cd> of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq., the "Act," for violations of regulatory standards.
The general issues before me are whether U.S. Steel
Mining Company, Inc., (U.S. Steel), has violated the regulations as alleged, and, if so, whether those violations are
of such a nature as could significantly and substantially
contribute to the cause and effect of a mine safety or
health hazard i.e. whether the violations are "significant
and substantial." If violations are found, it will also be
necessary to determine the appropriate penalty to be
assessed.

1369

Docket No. PENN 83-115. The one citation in this case,
No. 2013930, charges a violation of the standard at 30 C.F.R
§ 75.701-5 and specifically alleges as follows:
Separate clamps were not provided for
the electrical and frame grounds to attach
the grounds to the DC grounding medium (mine
rail), which were serving the two Ricks water
pumps located along the Cherokee haulage at
40 split; the pumps were receiving power from
the energized 550 volt DC trolley system.
All four ground wires were attached to one
clamp.
The cited standard provides as follows: "The attachment of grounding wires to a mine track or other grounded
power conductor will be approved if separate clamps, suitable for such purpose, are used and installed to provide a
solid connection."
Respondent does not dispute that a violation occurred
as charged, but argues that the violation was not "significant and substantial." In order to establish that a violation of a mandatory safety standard is "significant and
substantial" the Secretary must prove: (1) the underlying
violation of a mandatory safety standard, (2) a discrete
safety hazard--that is, a measure of danger to safety-contributed to by the violations, (3) a reasonable likelihood that the hazard contributed to will result in an
injury, and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature. Secretary
v. Mathies Coal Company, 6 FMSHRC 1 (1984).
According to Inspector Okey Wolfe of the Federal Mine
Safety and Health Administration, (MSHA), the cited ground
wires were attached to a single clamp which was, in turn,
attached to the rail. Wolfe observed that such clamps may
loosen from normal rail traffic and that in the event of a
derailment would easily separate. He observed that should
the clamp come off of the rail, the frames of both water
pumps would become energized and an individual could be
shocked or electrocuted. The hazard was increased by the
wet conditions in the vicinity of the pumps.
Gary Stevenson, an electrical engineer for U.S. Steel
testified that so long as all of the grounds were connected,
there would be no hazard, but conceded that if any of those
connections came loose, there would indeed be a hazard.
Within this framework of evidence, I have no difficulty
concluding that the violation meets the "significant and

1370

substantialn criteria set forth in the Mathies decision.
Accordingly, I find the violation was nsignificant and
substantial" and constituted a serious hazard.
Inasmuch as it required an affirmative act to connect
the wires onto one clamp, and that this type of violation
had been previously cited at this mine, I find that the
operator was also negligent.
Docket No. PENN 83-116. Two citations were brought
within this docket. Citation No. 2000148 charges a violation of the standard at 30 C.F.R. § 75.503 and specifically
alleges as follows:
~~...,......~~....,--~~~,,___~~

Changes required to be made on six
service machine 115 V.8.C. single phase
control cable connector to maintain
permissibility for the longwall mining system
have not been made. A letter from Service
Machine Company dated June 28, 1982, was sent
to the mine advising them of the changes to
be made. It cannot be verified whether
management received notification or not.
MSHA Inspector James Potiseck conceded that he could
not verify that the mine operator had received notice of the
necessary modification either from MSHA or from the Service
Machine Company prior to the issuance of his citation.
Indeed, Potiseck admitted that the letter in evidence
(Government Exhibit No. 9) supposedly informing U.S. Steel
of the required changes was sent to the wrong address. The
district electrical engineer for U.S. Steel, Gary Stevenson,
testified that af~er receiving the citation, he had been
unable to locate anyone who had received the noted letter.
Within this framework of evidence, it is clear that
U.S. Steel did not receive notice of the change in the permissibility requirements for the cited longwall mining unit.
Without such prior notice, there can be no violation.
Accordingly, the citation is vacated.
Citation No. 2102668 alleges a violation of the standard at 30 C.F.R § 75.517 and charges specifically as
follows:
The trailing cable serving the Fletcher
twin boom roof bolter at the 6 Flat 19 room
section CID013) was not adequately insulated
and fully protected. There had been damage
to the cable and the outer jacket had been
cut open for a distance of 23 inches of which

1371

4 inches was not taped at all and the
remainder of the area had four places where
the tape had deteriorated and the ground
wires were exposed.
The cited standard requires, as here relevant, that
power wires and cables shall be insulated adequately and
fully protected. According to Inspector Okey Wolfe, the
ground wires could be seen inside of the cable jacket for
the 4 inches that had not been taped. In addition, within
the taped area, one of the phase wires was exposed. The
tape itself had also deteriorated exposing the ground wires.
According to Wolfe, the wires carried 440 volts alternating
current and posed a shock hazard to persons handling the
cable. Ordinarily~ it would be necessary for a person to
handle the cable as the roof bolter is moved to a new entry.
According to U.S. Steel electrical engineer Gary
Stevenson, no hazard exists so long as the inner insulation
is intact. He also pointed out that the ground wires alone,
even if exposed, posed no hazard. Stevenson conceded, however, that he did not know whether the inner insulation in
the exposed area was in fact intact. Under the circumstances I accept the testimony of Inspector Wolfe, who
actually observed the exposed wires and the deteriorated
condition of the trailing cable and I accordingly find that
there was a "significant and substantial" violation of the
cited standard. Mathies, supra. The testimony of Inspector
Wolfe that the condition was not difficult to observe is
undisputed and accordingly, I also find that the operator
was negligent in failing to detect and correct the
violation.
Docket No. PENN 83-148. U.S. Steel does not challenge
the existence of the violations charged in the two citations
at issue in this case, but contests only the "significant
and substantial" findings associated therewith. Citation
No. 2011291 charges a violation of the operator's ventiltion
plan under the standard at 30 C.F.R. § 75.316. The citation
reads as follows:
There was a violation of the approved
ventilation, methane, and dust control plan
in No. 29 room of 6 Flat 28 room section.
There were no jacks or boards and posts
installed behind the canvas check in 29 room.
The check (temporary stopping) was loose and
not reasonably air tight and was not
directing all of the air to the working face
of No. 31 room.

1372

The cited provisions of the operator's roof control
plan provide as follows:
"Approved brattice cloth spadded
or nailed to the roof and sides with supporting framework
consisting of brattice, boards, posts, two by fours, or roof
jacks [shall be] used to direct air towards the working
places." Samuel Cortis, U.S. Steel's district chief mine
inspector, conceded that the cited temporary stopping was
not supported as required by the plan and that some air was
indeed escaping under the canvas curtain. He observed, however, that 8,400 cubic feet per minute of air was reaching
the working face of the No. 31 room when only 5,000 cubic
feet per minute was required by the ventilation plan.
MSHA Inspector Robert Swarrow conceded that although
air was leaking through the cited stopping, more than the
legally required amount of air was ventilating the working
faces.
Swarrow further conceded that any temporary stopping
will leak some air and that stoppings are not required to be
airtight. He nevertheless concluded that the violation was
"significant and substantial" because "you might not get
sufficient ventilation to clear the faces of methane gas."
Methane testing at the time revealed no more than .5 percent
methane present.
While there was admittedly a violation of the ventilation plan, since the amount of air reaching the working
faces exceeded the requirements of the plan by 3,400 cubic
feet per minute, I cannot find that the violation was either
serious or "significant and substantial." If indeed more
than 8,400 cubic feet per minute of air is deemed to be
necessary for ventilating the working faces, then MSHA
should require that the ventilation plan be amended to
require that amount of air. The failure of the mine operator to have detected and corrected this violation during
preshift examinations, demonstrates, however, that it was
negligent.
Citation No. 2104283 alleges a violation of the standard at 30 C.F.R. § 75.503 and reads as follows:
"The
Kersey battery powered tractor at the 6 Flat 28 room section
(ID002) was not being maintained in permissible condition.
Locks were not being used to prevent the plugs from coming
loose from the battery case." The parties stipulated and
agreed at hearing that the facts concerning this alleged
violation were nearly identical to the facts relating to a
violation charged in another case pending before the undersigned judge (Docket No. PENN 83-166, Citation No. 2102678)
and that the decision in that case should govern the disposition of the instant citation. The determination in that
case that the violation was "significant and substantial"

1373

and caused by the operator's negligence is accordingly incorporated herein by reference.
Docket No. PENN 83-155. Citation No. 2103162 charges a
violation of the standard at 30 C.F.R. § 75.516 and alleges
as follows:
"The power wires serving power to the car
spotter at 2 Flat tipple A track were in contact with combustible material as they were hung on wooden header blocks and
wooden cribs [and were] also in contact with coal ribs and
wires were energized." Respondent does not dispute that a
violation occurred as charged but argues that it was not
"significant and substantial."
According to MSHA Inspector Alvin Shade, there were no
breaks in the wire insulation and no tension in the wire.
There was, in addition, about 3 feet of clearance between
the rail cars and the roof were the wire was strung. According to U.S. Steel District electrical engineer Gary
Stevenson, the insulation on the wire was rated for 600
volts, whereas the wire itself was carrying only 120 volts.
In addition, according to Stevenson, there was such low
current in the wire that even assuming that the insulation
had been removed, the heat generated would be about the same
as an ordinary light bulb and therefore would be unlikely to
ignite either coal or wood. This evidence is not disputed
by MSHA and, accordingly, I find that the hazard associated
with the admitted violation was minimal. The violation was
not "significant and substantial." Mathies, supra.
I find,
however, that the mine operator was negligent since the violation required an affirmative act and was plainly visible
to a preshift examination.
Citation No. 2103073 alleges a violation of the standard at 30 C.F.R. § 75.503 and, more particularly, charges
as follows:
"The chain drive conveyor for the longwall in
the 6 Flat 11 room section MRVOOl was not maintained in permissible condition. There was an opening in excess of .005
in present between the plain flange joint of junction box
for the electrical drive motor of the chain drive conveyor."
The Respondent again does not dispute that a violation
occurred as charged but argues that the violation was not
"significant and substantial."
According to the undisputed testimony of MSHA Inspector
Francis Wehr, there was indeed an opening in the junction
box in excess of .005 of an inch. The box was located 8 to
10 feet from the longwall shear. According to his undisputed testimony, the Maple Creek No. 2 Mine is classified as
a "gassy mine" because it emanates 1,000,000 cubic feet of
methane over a 24-hour period. With the cited opening in
the junction box, methane could leak inside and, assuming an

1374

arc or spark, could explode. At the tim~ of the citation,
there was ample intake air in the area and only .1 percent
of methane detected. No mining operations were being performed at the time.
Mine foreman and longwall coordinator Joseph Hann testified for the operator that ordinarily 18,000 to 20,000 cubic
feet of air per minute flushes the cited area of any methane.
In addition, according to Hann, there had never been any
methane reported at the cited location. He also pointed out
that if the ventilation fan would fail, the longwall
machinery would stop automatically.
In essential respects the testimony of Inspector Wehr
is not disputed.
It is clear that the existence of methane
is unpredictable and that the cited mine was considered to
be "gassy." The hazard of an explosion or fire and associated injuries under the circumstances, was therefore reasonably likely. The violation was accordingly, "significant
and substantial" and serious. Mathies Coal Company, supra.
I further find that the operator was negligent in failing to
detect the violation.
Citation No. 2103078 alleges a violation of the standard at 30 C.F.R. § 75.200 and more particularily charges as
follows:
There were three 6 foot conventional
[roof bolts] along the B track haulage road
of Cherokee that were missing or dislodged.
Cl)
Between 61-62 chute a[n] 8 foot by
8 foot area of unsupported roof that was
loose and drummy, (2) At 47 chute an area of
unsupported mine roof of 6 feet by 8-1/2 feet
of mine roof th.at the roof was loose and
drummy, (3) At 47 chute an area of 6 feet by
9-1/2 feet of unsupported mine roof that was
solid when tested."
The cited standard provides in part that the roof and
ribs of all active underground roadways, travelways and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs.
The Respondent again does not dispute that a violation
occurred as charged but argues that the violation was not
"significant and substantial."
Indeed, the facts as alleged in the citation are not
disputed. According to MSHA Inspector Francis Wehr, the
roof in two of the cited areas was loose and drummy sounding
and this indicates that the roof strata is not tightly

1375

laminated and there may be gaps in the strata. According to
Wehr, loose conventional roof bolts allow the strata to
separate and create a hazard roof falls.
The cited roof
conditions were in the busy haulage area.
According to Wayne Croushore, mine foreman, it was
unlikely that the roof would fall "right away." He observed
that he and the inspector stood beneath the cited conditions
to take measurements and that accordingly, he thought the
condition was not unsafe. Croushore also pointed out that
the preshift examination is performed while moving on a jeep
and it is therefore difficult to see loose and/or missing
roof bolts.
Within this framework, I conclude that the violation
was "significant and substantial" Mathies, supra. I also
find the operator to have been negligent in failing to
detect the cited conditions. It is no defense that the
conditions were difficult to observe while moving in a jeep.
The proffered defense only points out the need for a more
thorough preshift examination.
Citation No. 2104446 alleges a violation of the standard at 30 C.F.R. § 75.701-5 and charges as follows:
"Separate clamps were not provided for the frame ground and
the electrical return ground for the lights in the dinner
hole of the 8 Flat 6 RN section 001. Both wires were on
same clamp." The cited standard provides as follows:
"The
attachment of ground wires to a mine track or other grounded
power conductor will be approved if separate clamps, suitable for such purpose, are used and installed to provide a
solid connection."
The Respondent again does not dispute that a violation
occurred as charged but argues that the violation was not
"significant and substantial." According to Inspector Wehr,
if the clamp separates from the rail, either from a derailment or vibration, there is a potential for shock, electrocution or burns to miners touching metal baskets in the dinner
hole. According to electrical engineer Gary Stevenson,
there would be no hazard if the wires attached to the clamp
became separated. In his opinion, if there were a derailment, the wires would most likely separate or break.
Stevenson did not, however, deny that there would be a shock
hazard should the wires remain connected upon the separation
of the clamp. Under the circumstances, I find that the violation was "significant and substantial" and serious.
Mathies, supra. Based on the undisputed testimony of
Inspector Wehr that the cited condition was highly visible
and that it required an affirmative act to place both wires
on a single clamp, I also find that the operator was
negligent.

1376

Citation No. 2104449 alleges a violation of the standard at 30 C.F.R. § 75.503 and charges more particularly as
follows:
The Joy continuous mini11g machine SNJM274
was not maintained in permissible condition
in the 6 Flat 28 room section MNV002. One of
the left headlights was not securely fastened
to frame of the machine and the other
headlight was provided with a locking device,
but did not lock the screw type lens cover in
place.
Respondent again does not dispute .that a violation
occurred as charged but alleges that the violation was not
"significant and substantial." The hazard associated with
the violation was described by Inspector Wehr as allowing
the lens to loosen through vibration and allow methane into
the light compartment. The methane could explode from an
arc or spark inside the compartment and allow the flame path
to escape. Clearly such an explosion could cause fatalities.
Wehr also observed that high levels of methane have been
liberated in the vicinity of the area cited ·and indeed the
operator had previously been cited for an "imminent danger"
having 1.5 percent levels of methane in the No. 28 room section. Wehr also observed that it is not unusual for arcing
and sparking to occur within the light compartments because
of vibration from the continuous mining machine. Wehr
pointed out that although he charged two separate violations
in the citation, he was asserting that only the loose lens
was "significant and substantial" and that only it presented
an explosion hazard.
The mine foreman did not dispute Wehr's assessment of
the hazard and conceded that the continuous mining machine
has "quite a bit of vibration while mining coal." According
to electrical engineer Gary Stevenson, there "should be" no
arcing or sparking in the headlights of the continuous miner
because there is ordinarly a "firm and ti~ht connection."
Stevenson admitted, however, that if the lens cover did back
off and there was arcing in the presence of methane at combustible levels, there would indeed be a hazard.
Within this framework of evidence, I conclude that the
violation was indeed "significant and substantial" and a
serious hazard. I agree, moreover, with the undisputed
testimony of Inspector Wehr that the cited condition should
have been discovered during the required electrical examinations. Accordingly, I also find the operator negligent.

1377

Docket No. PENN 83-156. Citation No. 2103100 alleges a
violation of the standard at 30 C.F.R. § 75.503 and more
particularly charges as follows: "The Kersey batfery
powered tractor Serial No. 76158 at the 6 Flat 19 room section CID013) was not being maintained in a permissible condition. Locks were not provided to prevent the plugs from
coming loose from the battery box receptacles."
At hearing the parties agreed and stipulated that the
facts surrounding this alleged violation were nearly identical to another violation presently before the undersigned
judge in Docket No. PENN 83-166, Citation No. 2102678. The
parties further agreed that the determination in that proceeding should be incorporated by reference and be determinative of the disposition of this citation. Since I have
found that the violation charged in Citation No. 2102678 was
"significant and substantial" and caused by the operator's
negligence those findings are likewise incorporated herein
by reference.
Docket No. PENN 83-157. At hearing, the Secretary
requested to withdraw Citation No. 2104224 based on the discovery that a suitable lifting jack had indeed been provided
for the No. 65 eight ton locomotive being operated at the
105B track and that accordingly, there was no violation of
the standard at 30 C.F.R. § 75.1403. Based on the
Secretary's representation, the undersigned approved of.the
withdrawal. Accordingly, Citation No. 2104224 is vacated.
The Secretary also moved at hearing for a settlement of
Citation No. 2104225 and the operator agreed to pay the proposed civil penalty of $91 in full. Based on the representations and documentation presented at hearing, I find that
the proposal for settlement is in accord with the provisions
of section llOCi> of the Act, and, accordingly, I approve
the settlement.
In determining the appropriate penalties to be assessed
in the various cases before me, I am also considering the
evidence that the operator abated all of the cited conditions in a timely manner and in good faith, that the operator is large in size, and that the operator had a fairly
substantial history of violations, including violations of a
number of the standards cited herein.
ORDER
The U.S. Steel Mining Company, Inc., is ordered to pay
the following civil penalties within 30 days of the date of
this decision:

1378

Docket No. PENN 83-115
Citation No. 2013930

$ 250

Docket No. PENN 83-116
Citation No. 2000148
Citation No. 2102668

vacated
250

Docket No. PENN 83-148
Citation No. 2011291
Citation No. 2104283

100
206

Docket No. PENN 83-155
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

2103162
2103073
2103078
2104446
2104449

126
400
400
126
400

Docket No. PENN 83-156

206

Docket No. PENN 83-157
Citation No. 2104224
Citation No. 2104225

vacated
91
$2,555

rJ, \

!~ \Jl ..~~

Gary ,ME\lick
ASsista~t Chie
Distribution:

Administrative Law

udge

\

Thomas A. Brown, Esq., bffice of the Solicitor, U.S.
Department of Labor, Robm 14480 . ateway Building, 3535
Market Street, Philadelphia, PA ,:19104 CCertified Mail)
Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant
Street, Room 1580, Pittsburgh, PA 15230 {Certified Mail)
/fb

1379

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

MAY 221984

CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA},
Petitioner
v.

:

U. S. STEEL MINING COMPANY,
INC.,
Respondent

Docket No. PENN 83-151
A.C. No. 36-00970-03520

.
: Docket No. PENN 83-166
: A.C. No. 36-00970-03518
.
Docket No. PENN 83-167
A.C. No. 36-00970-03523

Maple Creek No. 1 Mine
DECISION
Appearances:

Thomas Brown, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., United States Steel
Corporation, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Melick

These cases are before me upon the petitions for civil
penalty filed by the Secretary, pursuant to section 105Cd}
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., the "Act" for violations of regulatory standards. The general issues before me are whether U.S. Steel
Mining Company, Inc., (U.S. Steel}, has violated the regulations as alleged, and, if so, whether those violations are
of such a nature as could significantly and substantially
contribute to the cause and effect of a mine safety or
health hazard i.e. whether the violations are "significant
and substantial." If violations are found, it will also be
necessary to determine the appropriate penalty to be
assessed.
DOCKET NO. PENN 83-151. As amended at hearing, Citation
No. 2102679 charges a violation of the standard at 30 C.F.R.
§ 75.1714-2Cc} and specifically alleges as follows:
"Gary
Gamon shuttle car operator was observed on the seven flat
eight room section ID014 without the 1 hour filter type
self-rescue device which was determined to be approximately
140 feet away." The cited standard provides as follows:
"Where the wearing or carrying of the self-rescue device is
hazardous to the person, it shall be placed in a readily

1380

accessible location no greater than 25 feet from such
person."
Respondent does not dispute that a violation occurred
as charged, but argues that the violation was not "significant and substantial." In order to establish that a violation of a mandatory safety standard is "significant and
substantial," the Secretary must prove:
Cl)
the underlying
violation of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and
(4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature. Secretary v. Mathies
Coal Company, 6 FMSHRC 1 (1984).
Inspector Okey Wolfe of the Federal Mine Safety and
Health Administration (MSHA) testified that during the
course of his inspection of the Maple Creek No. 1 Mine on
January 24, 1983, he observed the shuttle car operator, Gary
Gamon, 140 feet from his shuttle car without his one-hourfilter-type-self-rescue device. Gamon had left it on the
shuttle car.
It is not disputed that under the cited standard the self-rescue device could properly have been removed
from the miner's belt and placed on the shuttle car (because
of its potential for bruising the miner while working the
shuttle car) so long as the device remained within 25 feet
of the miner. The violation was "significant and substantial" according to Wolfe, because of the hazard to the miner
of suffocation from carbon dioxide resulting from fire and
smoke.
He thought it reasonably likely that a fire could
occur anywhere outby the cited section from sources such as
coal, pumps or trolley wires and noted that protective
measures must be taken quickly in the presence of carbon
dioxide.
Joseph Ritz, ventilation foreman, accompanied Wolfe
during this inspection. Ritz thought it "highly unlikely"
for fire or smoke to occur at the mine. According to Ritz,
the shuttle car operator left his machine to assist with
line brattice and could be expected to have been away from
his equipment for only 10 minutes. Ritz opined, moreover,
that it would have taken the operator only 10 to 15 seconds
to return to his shuttle car for his self-rescue device and
that would have been as fast as retrieving it from his belt.
Even assuming, however, that the miner could have
sprinted the 140 feet to his shuttle car as fast he could
have removed the self-rescuer from its container on his
belt, it is reasonably likely that, as a result of an explosion, fire or dense smoke the miner's path to his shuttle

1381

car could very well be obstructed. Under these circumstances, the failure to have his self-rescuer readily accessible could prove fatal.
Under all the circumstances, I find
that the violation was "significant and substantial."
According to Inspector Wolfe, Respondent had never
previously been cited for a violation of the cited standard
and in his opinion, the individual miner had forgotten to
take his self-rescuer with him. Wolfe's determination of
relatively low negligence is accordingly appropriate.
CITATION NO. 2103095. The operator does not dispute that
the cited violation did in fact occur. The parties agreed
and stipulated at hearing that the same hazard existed concerning this citation as existed with respect to Citation
No. 2102678 in Docket No. PENN 83-166. Since I have found
infra that the latter violation was indeed "significant and
substantial" the violation herein is also "significant and
substantial" and constituted a serious hazard. Relying upon
the negligence findings relating to Citation No. 2102678 I
find correspondingly that the operator was also negligent
herein.
DOCKET NO. PENN 83-166
CITATION NO. 2012691. At hearing, the Secretary requested
to withdraw and vacate this citation because the inspector
who cited the conditions had died and alternative evidence
was deemed insufficient to support the citation. Under the
circumstances, the request was granted and the citation is
accordingly vacated.
CITATION NO. 2102678. The operator does not dispute the
existence of the violation cited herein, and challenges only
the "significant and substantial" findings associated therewith.
The citation charges a violation of the standard at
30 C.F.R. § 75.503 and more particularly alleges as follows:
"The Kersey battery powered tractor, serial No. 76-153,
approval No. 26-2213-11 was not being maintained in a permissible condition at the seven flat eight room section
ID014. The plugs to the battery tray were not locked to
prevent the plugs from coming loose."
The cited standard requires that the "operator of each
coal mine shall maintain in permissible condition all electric face equiment required by sections 75.500, 75.501,
75.504 to be permissible which is taken into or used inby
the last open crosscut of any such mine." The Secretary
contends, and the operator does not dispute, that the provisions of 30 C.F.R § 18.4l(f) are incorporated by reference
into this citation. Section 18.4(f) states as follows:

1382

"For a mobile battery-powered machine, a padlock to the
receptacle will be acceptable in lieu of an interlock provided the plug is held in place by a flouted ring or an
equivalent mechanical fastening in addition to the padlock.
A connector within a padlock enclosure will be acceptable."
MSHA Inspector Okey Wolfe testified that during the
course of his inspection of the No. 1 Mine, on January 24,
1983, he observed the cited battery-powered tractor without
the padlock specified in the cited regulation. Wolfe
observed that if the threaded plugs powering the tractor had
become unthreaded, the 250 volt cable could pull out of the
machine thereby creating an arc.
He noted that the No. 1
Mine was subject to section 103Ci), spot inspections under
the Act because of its high liberation of methane. Wolfe
accordingly opined that there was a reasonable likelihood
for such an arc to result in a methane explosion.
The operator's witness Don Basile, conceded that if the
plug connection should become loose while the equipment was
operating under load, then an arc could indeed occur. He
thought, however, that since the arc would have to travel 6
or 7 inches before entering the outside atmosphere, the
chances of an explosion were remote. Basile further stated
that he had never seen a sleeve or collar loosen suff iciently to permit the plug to become disconnected.
Particularly in light of the gassy classification of
the Maple Creek No. 1 Mine, I find that the arcing hazard
presented by the unsecured plug was quite serious and constituted a "significant and substantial" violation.
I find
that I must also agree with Inspector Wolfe's assessment of
negligence in this case, inasmuch as it was obvious in this
case that the padlocks had not been secured in an appropriate manner and that this was a frequent type of violation at
this mine.
DOCKET NO. PENN 83-167
CITATLON NO. 2104362. This citation alleged a violation
of a safeguard notice issued pursuant to 30 C.F.R. § 75.1403
on July 31, 1973. It charges that "the No. 31 eight ton
locomotive being operated by Bill Wiles on the eight flat
56 room track was not provided with a suitable lifting jack."
The specific safeguard notice dated July 31, 1973, (Government Exhibit No. 2) stated in part that a 13-ton locomotive
was not equipped with a suitable lifting jack and bar in the
eight flat section and that all locomotives in the mine
shall be equipped with suitable lifting jacks and bars.
It
is not disputed that the locomotive cited in this case did
not in fact have a suitable lifting jack or bar.

1383

According to MSHA Inspector Francis Wehr, Sr., the
locomotive and rail cars used in the No. 1 Mine frequently
derailed. Individual rail cars weighed 2 or 3 tons empty
and up to 12 tons loaded. He observed that in the event of
a derailment and the absence of an available jack and bar, a
person pinned beneath a car or the locomotive could not
readily be rescued. Wehr observed that although a
"rerailer" was available on the locomotive, it is necessary
to move the cars and locomotive for it to operate. With a
jack and bar, it is not necessary that the locomotive or
cars be moved horizontally--an important distinction. The
jack in this case was located about 1,000 feet from the
locomotive. Wehr opined that even if the location of the
jack were known, it would have taken at least 10 minutes to
have retrieved it.
According to transportation foreman, Ira Seaton, the
.ainer assigned to the locomotive told him that the jack was
only five blocks away (estimated at 425 feet).
The miner
said he had used the jack at that location and intended to
retrieve it after loading coal.
Particularly in light of the frequent derailments at
the No. 1 Mine, and the grave dangers posed by the heavy
equipment used on the track, I find the cited violation to
be "significant and substantial." Particularly in light of
the history of derailments and other similar violations at
this mine, I find that the operator was negligent in failing
to enforce its policy of requiring jacks and bars on the
locomotives.
·
CITATION NO. 2011298. This citation alleges a violation of
the standard at 30 C.F.R § 75.503 and specifically charges
as follows:
"The Fletcher roof bolting machine operating in
nine flat left straight was not maintained in permissible
condition in that the hose conduit and the outer jacket for
the f luorscent lights was damaged, exposing the insulated
power wire securing electrical power to the lights." It is
not disputed that to meet the "permissibility" requirements
of the cited standard the operator must maintain the cited
equipment in compliance with the standards set forth in
30 C.F.R. Part 18.
In this case the cited roof bolter had been the subject
of an MSHA approved field modification under 30 C.F.R.
§ 18.81.
(Operator's Exh. No. 1). These modifications must
conform to the requirements of Subpart B of Part 18 of the
regulations.
See 30 C.F.R. § 18.81Cb). Subpart B of Part
18, and specifically section 18.39 (i.e. 30 C.F.R. § 18.39)
requires in part that "hose conduit shall be provided for

1384

mechanical protection of all machine cables that are exposed
to damage." Apparently in keeping with that requirement,
U.S. Steel requested, and MSHA approved, in the field modif ication the use of "MSHA approved conduit" (Operator's Exh.
No. 1, p. 5) for the power cable between the junction box
and the light here cited. According to the undisputed evidence, however, the hose conduit for that power cable had
been damaged thereby exposing the insulated power wire
inside. Since the required h~se conduit was not being maintained in a "permissible" condition a violation of 30 C.F.R.
§ 503 therefore existed.
I must agree, however, with the Secretary's position at
hearing, that the violation was not "significant and substantial." It is undisputed that the entire illumination system
on the roof bolter was deemed "intrinsically safe" by MSHA.
Accordingly, even should the cable become severed, there was
no capability of a methane ignition. The violation is
accordingly also of low gravity. I find that the operator
was, however, negligent in failing to detect the violation
in light of the undisputed evidence that the condition had
existed for at least a week.
In determining the appropriate penalties to be assessed
in this case, I am also considering evidence that the operator abated all of the cited violations in a timely manner,
that the operator is large in size, and that the operator
had a fairly substantial history of violations, including
violations of several of the standards cited.
ORDER
Citation No. 2012691 is vacated. The U. s. Steel
Mining Company, Inc., is ordered to pay the following civil
penalties within 30 days of the date of this decision:
DOCKET NO. PENN 83-151
Citation No. 2102679
Citation No. 2103095

$ 200
220

DOCKET NO. PENN 83-166
220

Citation No. 2102678

1385

DOCKET NO. PENN 83-167
Citation No. 2011298
Citation No. 2104362

l

I

11

.

}

/
I

Gary ,M
Assist
Distribution:

100
250
$ 990

Administrative Law Judge

I

Thomas Brown, Esq.,\of ice of the Solicitor, U.S. Department
of Labor, Room 14480 G1ateway Building, 3535 Market Street,
Philadelphia, P~ 19104 (Certified Mail)
Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant
Street, Room 1580, Pittsburgh, PA 15230 (Certified Mail)

/fb

~u.s.

GOVERNMENT PRINTING OFFICE•

1984-42t·ss9/13602

1386