September 1981
Commission Decisions
9-22-81
9-22-81
9-22-81
9-23-81

Manuei Palacios
Pocahontas Fuel Co.
The Hanna Mining Co.
Quarto Mining Co., Nacco Mining Co. & The
North American Coal Corp.

DENV 76-29-P
HOPE 75-680
LAKE 79-103-M

Pg. 2041
Pg. 2043
Pg. 2045

LAKE 79-119

Pg. 2051

NORT 71-96
PITT 78-127
SE 79-126-M
HOPE 79-221-P
YORK 81-8-M
PENN 80-171-DM
WEST 80-69-M
WEVA 81-318-D
WEST 80-471-M
DENV 79-371-PM
WEST 81-51-DM

Pg.
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2056
2075
2081
2085
2099
2104
2116
2120
2122
2125
2128

WEST 81-185-D
WEST 80-271-M
SE 81-8-M
WEVA 81-186
WEST 81-78-M
WEST 81-134
PENN 79-142
WEST. 81-348-RM
WEST 80-71-DM
PENN 81-132-R
PENN 81-92-R
PIKE 77-71
CENT 81-111-M
LAKE 81-27-M
SE 81-24-M
VA 81-16-D
WEVA 80-415

Pg.
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2149
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2171
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2207
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2219
2222
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2267

Administrative Law Judge Decisions
9-03-81
9-03-81
9-03-81
9-03-81
9-03-81
9-09-81
9-09-81
9-11-81
9-14-81
9-14-81
9-14-81
9-14-81
9-15-81
9-17-81
9-17-81
9-18-81
9-22-81
9-22-81
9-22-81
9-24-81
9-24-81
9-24-81
9-28-81
9-28-81
9-28-81
9-28-81
9-28-81
9-30-81

Glen Munsy v. Smitty Baker Coal Co. et al
Canterbury Coal Co.
Ideal Basic Industries Inc., Cement Div.
Alexander Brothers Inc.,
Atlantic Cement Co., Inc.
James L. Reiter v. New Jersey Zinc Co.
Sun Landscaping & Supply Co.
El-Bow Mining, Inc.
Washington Corp.
Washington Construction Co.
Centennial Developement Co.
J. Otto Horvath v. Green Electric Co. &
Lively Construction Co.
Massey Sand & Rock Co.
St. Catherine Rock Co.
Monterey Coal Co.
Black River Quarry, Inc.
C F & I Steel Corp.
Solar Fuel Co.
Chester M. Jenkins
Stafford Construction Co.
Consolidation Coal Co.
Consolidation Coal Co.
Victor McCoy v. Crescent Coal Co.
Cargill, Inc.
Cleveland Cliffs Iron Co.
Brown Brothers Sand Co.
D & J Coal Co., Inc.
Beckley Coal Mining Co.

Commission Decisions

SEPTEMBER
The following cases were Directed for Review during the month of September:
Secretary of Labor, MSHA v. Shamrock Coal Company, KENT 80-292; (Judge Lasher,
July 30, 1981).
Secretary of Labor, MSHA v. Old Ben Coal Company, LAKE 80-399; (Judge Moore,
July 31, 1981).
Secretary of Labor, MSHA v. Amax Lead Company of Missouri, CENT 81-63-M;
(Judge Morris, September 4, 1981 Order Granting Interlocutory Review).
Secretary of Labor, MSHA v. Medicine Bow Coal Company, WEST 81-163, 164;
(Judge Morris, August 7, 1981 Opinion, Interlocutory Review).
Review was Denied in the following cases during the month of September:
Johnny Howard v. Martin Marietta Corporation, SE 80-24-DM; (Judge Broderick,
July 31, 1981).
Secretary of Labor, MSHA v. Paramont Mining Corp., VA 81-45; (Judge Koutras,
August 19, 1981 Order, Interlocutory Review).
Secretary of Labor, MSHA, on behalf of James Miller v. Mine Shaft & Tunnel
Corporation, WEST 81-226-DM; (Judge Vail, September 2, 1981 Order, Interlocutory Review) •
Secretary of Labor, MSHA v. Amax Coal Company, LAKE 81-37; (Judge Kennedy,
August 21, 1981).

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

September 22, 1981

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. DENV 76-29-P
v.

IBMA 77-45

MANUEL PALACIOS
ORDER
The Secretary of Labor's motion for voluntary dismissal and
respondent's request for dismissal of his cross-appeal are granted.

2041

Distribution
Ann S. Rosenthal, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Michael T. Heenan, Esq.
Smith, Heenan, Althen & Zanoli
1110 Vermont Ave., N.W.
Washington, D.C. 20005

2042

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

September 22, 1981

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

Docket No. HOPE 75-680

and
UNITED MINE WORKERS OF AMERICA

IBMA 75-39
IBMA 75-40

v.
POCAHONTAS FUEL COMPANY
ORDER
On December 31, 1980, the United States Court of Appeals for the
District of Columbia Circuit issued its decision reversing the decision
of the Interior Department Board of Mine Operations Appeals. Pocahontas
Fuel Co., 7 IBMA 121 (1976), rev'd sub nom. Mullins v. Andrus, No.
77-1086, D.C. Cir., December 31, 1980. On August 21, 1981, the Court
issued its mandate. The Court remanded to the Secretary of Interior,
but acknowledged that further proceedings would take place before the
Commission pursuant to section 30l(c)(3) of the Federal Mine Safety
and Health Amendments Act of 1977, 30 U.S.C. §96l(c)(3)(Supp. III
1979).

Accordingly, the case is remanded to
for further appropriate proceedings.

A.

~~IA~
Marian Pearlman Nease,
Co~

~/

Chairman Backley did not participate in the consideration or
disposition of this matter.

2043

81-9-11

Distribution
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
James T. Hemphill, Esq.
3300 One Oliver Plaza
Pittsburgh, PA 15202
Steven B. Jacobson, Esq.
Decastro, West & Chodorow, Inc.
18th Floor
10960 Wilshire Blvd.
Los Angeles, CA 90024
Harrison Combs, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Michael McCord, Esq.
Frederick Moncrief, Jr., Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Charles C. Moore, Jr.
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2044

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

September 22, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. LAKE 79-103-M
LAKE 79-137-M
LAKE 79-139-M

THE HANNA MINING.COMPANY
DECISION
This civil penalty case is brought under the 1977 Mine Act,
30 U.S.C. §801 et. seq. (Supp. III 1979). On review the Hanna Mining
Company contests the administrative law judge's findings of violation
with respect to five citations issued by an inspector of the Mine Safety
and Health Administration (MSHA). For the reasons stated below, we affirm
the judge's decision.
CITATION 290181
This citation alleges a violation of 30 CFR §55.9-54, which states:
Berms, bumper blocks, safety hooks, or similar means
shall be provided to prevent overtravel and overturning
at dumping locations.
The citation was issued after. the inspector observed a large haulage
truck preparing to dump waste material. The truck had a 100 ton capacity,
a 1,000 horsepower engine, and its tires were about 9 feet in diameter.
The cab of the truck was about 5-1/2 to 6 feet high and the driver was
seated about 20 feet from the back of the truck. The truck's back wheels
were 1-1/2 to 3 feet from the dump ledge and resting against a 2 to
3 foot high berm. The ledge was 75 to 80 feet high and the berm was
constructed of loose, unconsolidated material. The judge affirmed the
citation finding that the berm "was not sufficient to prevent overtravel
or overturning," and that "[t]he evidence [did] not establish that other
means were provided to prevent overtravel or overturning."
Hanna argues that the finding of a violation was based "solely"
on a "secret" berm height requirement. This argument is based upon the
inspector's testimony that, as a "rule of thumb", in order for a berm to
properly perform its warning and restraining functions it should be equal
in height to the rear axle of the largest truck on the jobsite. Hanna
argues that reliance on this requirement not found in the standard's
language is inappropriate. Hanna submits the evidence establishes that
a berm was provided at the dumpsite and, therefore, that it was in compliance with the standard.
We find substantial evidence of record supporting the judge's finding
of a violation. We find that the record as a whole reveals that the
2 to 3 foot high berm present at Hanna's dumpsite was inadequate "to

2045

81-9-12

prevent overtravel and overturning." Thus, the facts of this case
establish noncompliance with the standard's plain language. Resort to
the inspector's asserted "mid-axle" guideline is unnecessary to establish
a violation. Cf. Clinchfield Coal Co., NORT 78-417-P (1979)(administrative
law judge)(l MSHC 2027), aff'd, No. 79-1306, 4th Cir., April 18, 1980 (1
MSHC 2337)(finding of illumination violation not based on agency guidelines).
The judge's finding that 30 CFR §55.9-54 was violated is therefore
affirmed. l/
CITATION 294629
This citation alleges a violation of mandatory standard 30 CFR
§55.11-1, which states:
Safe means of access shall be provided and maintained to all
working places.
The inspector issued the citation based on his observation of an
area where workers could travel underneath an overhead belt. The judge
found that this area was an unsafe means of access to a working place,
and, therefore, that a violation existed. The judge also found that
there was another means of access to the same working place and that
this means of access was safe.
Hanna contends that the standard's mandate was met given the judge's
finding of one safe means of access to the working place.
We disagree.
We agree with the Secretary and the judge that the standard requires
that each "means of access" to a working place be safe. This does not
mean necessarily that an operator must assure that every conceivable
route to a working place, no matter how circuitous or improbable, be
safe. For example, an operator could show that a cited area is not a
"means of access" within the meaning of the standard, by proving that
there is no reasonable possibility that a miner would use the route as a
means of reaching or leaving a workplace.
In the present case, Hanna failed to make such a showing and there
is substantial evid~nce to support the judge's finding that the cited
area was an unsafe means of access to a working place. Therefore, we
affirm the violation. ];_/
1/ The judge also found that the evidence failed to establish that
other means" were provided to prevent overtravel or overturning. Hanna
argues that a dumpman was present at the site and that this constituted
a "similar means" of compliance as provided for by the standard. Hanna
assumes, and we agree, that the judge implicitly found that no dumpman
was present at the time of the alleged violation. We conclude that
substantial evidence of record supports a finding that no dumpman was
present. Therefore, we need not decide whether such a person, if
present, would constitute a "similar means" to prevent overtravel and
overturning within the meaning of the standard.
]:_/ We note that at the hearing the area where the cited and alternative
routes were located was depicted through blackboard drawings which were
not preserved. The use of such evanescent exhibits unnecessarily
complicates meaningful review and may seriously disadvantage parties who
later seek to rely upon them.

11

2046

CITATION 294667
This citation also alleges a violation of 30 CFR §55.11-1 for
failure to provide a safe means of access.
The inspector issued this citation based on his observation of a
large ore spill in an aisle. The spill consisted of a pile of egg-size
or larger taconite pellets located in an aisle bounded on one side by
the outside wall of the building and on the other side by a row of
machines. The accumulation was approximately chest high and extended
out 15 to 18 feet from the apex of the pile. The spill was caused by a
mechanical defect in a conveyor belt located above the aisle. The
innnediate area -around the accumulation was not barricaded, nor was
notice of the hazard posted to keep persons from entering the area. The
judge found that the area was a means of access to a working place. He
held that as a result of the spill, and the fact that material was still
falling at the time of inspection, the means of access was unsafe and
violative of 30 CFR §55.11-1.
Hanna contends that alternative safe means of access were provided
and that the pile itself presented a barricade blocking travel in the
aisle so that the aisle was no longer a "means of access."
Again, we disagree. As we previously stated, 30 CFR §55.11-1
requires an operator to make each means of access to a working place
safe. Therefore, if the aisle was a "means of access" Hanna's duty was
to make the aisle safe regardless of the presence of additional safe
routes. As with the previous citation, Hanna did not show that there
was no reasonable possibility that a miner would use the aisle as a
means of access. Indeed, substantial evidence of record belies Hanna's
claim that the pile presented a natural barricade to travel. The pile
was chest high at its apex and became progressively lower. Even if the
center of the pile had a limited barricading effect due to its size, the
undisputed testimony was that the spill gradually extended out some 15
to 18 feet, thus posing a tripping or slipping hazard. Also, the judge's
finding of violation was based in part on the fact that pellets were
still falling from the elevated walkway above.
Thus, we affirm the judge's conclusion that the spill in the aisle
rendered the aisle an unsafe means of access.
CITATION 294696
This citation involves an alleged violation of mandatory standard
30 CFR §55.11-12, which states:
Openings above, below or near travelways through which men
or materials may fall shall be protected by railings, barriers, or
covers. Where it is impractical to install such protective devices,
adequate warning signals shall be installed.
The inspector observed three floor openings along the length of an
elevated walkway. One floor opening was bordered by a toeboard. The
other two were not. At the hearing all parties agreed that the openings
in the floor were small enough that a worker could not fall completely
through them to the floor below.
However, the inspector testified that
the hazard he foresaw was that a worker's foot or lower leg could fall
into the openings. In the inspector's view, as a result of the unprotected
floor openings an accident could result causing broken bones, sprains,

204?

lacerations and bruises. Further, the inspector testified that the
toeboard surrounding the one opening actually presented a stumbling
hazard since it was not used in conjunction with a railing.
The judge.found that a person or materials could fall "into or
through such an opening" and that the toeboard as constructed did not
provide "sufficient protection" as contemplated by the standard. Hanna:
contends that the judge erred in interpreting 30 CFR §55.11-12 as
being violated when men or materials may fall "into" as well as "through"
an opening. Hanna further argues that the record does not support a
finding that men or materials could fall "through" the openings in
question.
We reject Hanna's arguments and affirm the judge's conclusions.
In the context of the cited standard we interpret the word "through"
as encompassing falling into, as well as completely through, a floor
opening. This construction is in accord with the well-established rule
that remedial legislation and its implementing regulations are to be
liberally construed as long as such an interpretation is reasonable and
promotes miner safety. E.g., Freeman Coal Mining Co. v. IBMOA, 504 F.2d
741, 744 (7th Cir. 1974). Accord, Cleveland Cliffs Iron Co., Inc., 3
FMSHRC 291, 293-94 (1981). 30 CFR §55.11-12 is concerned with the hazard
presented to miners by the presence of unprotected openings on travelways. In this regard, a worker is exposed to the risk of injury whether
he falls completely through or only into unprotected openings. Furthermore, the reasonableness of this interpretation is well-founded in common
usage. See Webster Third New International Dictionary, 2384 ( 1971);
and 86 cT.s. "Through" at 813. Accordingly, the judge's finding of a
violation of 30 CFR §55.11-12 is affirmed.
CITATION 294654
This citation alleges a violation of 30 CFR §55.11-16, which states:
Regularly used walkways and travelways shall be sanded, salted, or
cleared of snow and ice as soon as practicable.
The inspector issued the citation based on his observation of a
thin accumulation of ice on the bottom step of a metal open-grated
stairway. The stairway led to the bottom area of the screen house and
the inspector testified that maintenance people, electricians, mechanics,
and others would be in that area. At the time of the inspection, however,
there was no activity in the area, and the inspector could not determine
how frequently the stairway was used, or how long the ice had been on
the step; The inspector testified that the source of the ice was a
leaking water pipe which sprayed down on the step. Ice formed because
of extreme winter temperatures and the fact that there was a crack in
the outside wall of the building adjacent to the stairway.
The judge upheld the violation finding that there was an accumulation of ice on the bottom stairway and that the stairway was a regularly
used travelway. He acknowledged that it was not clear how long the condition had existed, but inferred that the accumulation had been there for
some time in view of the source of the ice and the fact the inspector
discovered the condition three hours after the work shift began. Therefore, he concluded that the ice was not removed "as soon as practicable" as
required by the standard.

2048

Hanna argues that the judge erred in finding that the stairway
was a regularly used travelway, that the ice was caused by water leaking
from a pipe, and that the ice had not been removed as soon as practicable.
We reject each of Hanna's arguments. We affirm the judge's finding
that the stairway was a regularly used travelway. The inspector's
uncontradicted testimony was that in performing their duties maintenance
and other workers would be in the bottom area of the screen house. We
believe that it is reasonable to infer that the stairway would be used
by these employees in their regular travel. We note that Hanna, the
party in the best position to offer evidence respecting the use, or
lack thereof, of the stairway did not do so.
We reject Hanna's assertion that the judge erred in accepting the
inspector's testimony co~cerning the source of the water. The judge's
finding that the source was a drip or spray from a pipe above the stairway is supported by substantial evidence of record, namely the testimony
of the inspector as well as Hanna's safety director. In any event, it is
the presence of the ice that is important rather than its source.
Finally, Hanna's argument that the judge erred in finding that the
ice was not removed as soon as practicable is also rejected. We agree
with the judge that in view of the conditions at Hanna's workplace, i.e.,
the leaking pipe and the cracked exterior wall, and the fact that the
inspector discovered the ice on the stairway three hours after the
working shift had begun, the ice was not removed as soon as practicable.
Therefore, the judge's finding of a violation is affirmed.
In sum, the decision of the administrative law judge is affirmed.

2049

Distribution
Richard A. Williams, Jr., Esq.
Hvass, Weisman & King
715 Cargill Building
Minneapolis, Minnesota 55402

Mr. Harry Tuggle
United Steelworkers of America
Five Gateway Center
Pittsburgh, PA 15222
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Chief Administrative Law Judge
James A. Broderick
FMSHRC
1730 K St., N.W.
Washington, D.C. 20006

2050

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

September 23, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION . (MSHA)

Docket Nos. LAKE 79-119
LAKE 80-190
LAKE 80-209
LAKE 80-212
LAKE 80-246
LAKE 80-251
LAKE 80-252
LAKE 80-182

v.
QUARTO MINING COMP.ANY,
NACCO MINING COMPANY,
THE NORTH AMERICAN COAL
CORPORATION,
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
THE NORTH AMERICAN COAL
CORPORATION,

Docket No.

LAKE 80-276

Docket No.

LAKE 80-290

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.
NACCO MINING COMPANY,
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.
QUARTO MINING COMPANY

Docket Nos. LAKE 80-311
LAKE 80-360
LAKE 80-384
LAKE 80-385
ORDER

The issue in each of the above-captioned cases is the same: whether
the administrative law judge correctly held that a provision of the
operator's dust control plan, adopted pursuant to 30 C.F.R. §75.316, is
too vague to be enforced. The dust control provisions at issue in these
cases are identical. Subsequent to our directing these cases for review,

2051

81-9-13

each of the operators adopted, with the Secretary's approval, a new
dust provision replacing the dust control provision at issue here.
As a result of that change, we no longer believe that these cases
present a substantial question of law, policy or discretion.
Accordingly, the directions for review in the above-captioned cases
are vacated.

F

\~~ \llci&wu\'\Lwe

Marian Pearlman Nease, Commissioner

2052

Distribution
Michael McCord, Esq.
Nancy S. Hyde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Timothy Biddle, Esq.
John T. Scott, III, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
Administrative Law Judge Paul Merlin
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2053

Administrative Law Judge Decisicns

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

GLEN

.SEP 3 \8

Application for Review of
Discharge or Discrimination

MUNSEY,
Applicant
v.

Docket No. NORT 71-96
SMITTY BAKER COAL COMPANY, INC.,
P & P COAL COMP ANY, AND
RALPH BAKER,
Respondents

IBMA 72-21

DECISION
Appearances:

Stephen B. Jacobson, Esq., Los Angeles, California, for
Applicant, Glen Munsey;
J. Edward Ingram, Esq., Knoxville, Tennessee, for Respondents,
Smitty Baker Coal Company, Inc., and Ralph Baker;
Joseph E. Wolfe, Esq., Norton, Virginia, for Respondent,
P & P Coal Company.

Before:

Judge Stewart
FACTUAL AND PROCEDURAL BACKGROUND

This is a proceeding on remand by the Federal Mine Safety and Health
Review Commission (Commission) for additional findings on (1) whether
appropriate offers of reinstatement have already been made by (i) P and P
Coal Company or (ii) Ralph Baker, (2) the amount of lost wages due Glen
Munsey, and (3) the costs and expenses to be awarded. 1_/
This case began on April 22, 1971, when Glen Munsey (Applicant) filed
an application for review of an alleged discriminatory discharge by the
Smitty Baker Coal Company, Inc., on April 15, 1971. The application sought
relief under section llO(b) of the Federal Coal Mine Health and Safety Act
of 1969 (the Act), 30 U.S.C. § 820(b).
Applicant, a jacksetter, left his job underground at the face of Smitty
Baker No. 1 Mine along with two other miners due to alleged unsafe roof conditions in the area where he was working. When outside the mine, Applicant
asked if he could go home and return to work the next day. It was explained
to him that it would be unfair to allow him to go home while there were other
miners who chose to stay and work in the area where the roof had been checked

1_/

Munsey v. Smitty Baker Coal Company, Inc., P & P Coal Company and Ralph
Baker, 2 MSHC 1052 (1980) (hereinafter, Munsey II).

2056

and found to be safe. After Munsey refused to return to his regular duties at
the face, he was offered the opportunity to do different work sufficiently
far removed from the allegedly dangerous area to dispel any fear which he may
have had regarding returning to work setting jacks.
At a meeting on April 29, 1971, Applicant's union representative made
Ralph Baker an offer to waive back pay if he put Munsey back to work immediately at Smitty Baker Coal Company. There was also a confrontation involving
a threat that the operator would be put out of business if the Applicant was
not rehired. Under these circumstances, Ralph Baker declined to rehire
Munsey immediately but indicated that he would take Applicant ];_/ back to work
later. In its first decision remanding the case to the Board of Mine Operation Appeals (Board), the U.S. Court of Appeals, District of Columbia Circuit,
made it clear that a wrongful failure to rehire could be discriminatory
action under the Act. It included an order that the Board decide whether the
refusal to rehire was actuated by a forbidden retaliatory motive.
Pursuant to a motion by the Applicant, the Board, in the absence of a
timely objection, added three Respondents, P & P Coal Company, Mr. Ralph
Baker, and Mr. Smitty Baker to the proceeding without prejudice to the
presentation of any defenses on the merits by them.

On July 7, 1975, the Board issued a Memorandum and Order which retained
jurisdiction over the proceeding but referred it for further hearing and a
written recommended decision by an Administrative Law Judge.
In that decision which was issued on June 25, 1976, after the second
hearing conducted December 2-4, 1975, the Administrative Law Judge made
recommended findings and conclusions concerning the nine specific issues
presented on remand and those germane to the case at that time, including
a finding that the failure to rehire Munsey on April 29, 1971, was in violation of the Act.

On the second appeal, the United States Court of Appeals for the District
of Columbia affirmed the Administrative Law Judge's recommended finding that
Smitty Baker Coal Company and Ralph Baker violated section llO(b) of the
Federal Coal Mine Health and Safety Act of 1969 but remanded the case to the
Federal Mine Safety and Health Review Commission (Commission) to consider
additional issues. '}_/ Since the time that the controversy arose in 1971,
2/ Munsey was joined in his application by miners Ernest and Arnold Scott.
They subsequently withdrew from the case, filing affidavits stating that they
had only participated initially because they were advised that they had to do
so by officials of the United Mine Workers of America. These two miners were
later rehired by Ralph Baker.
3/ These findings were required due to the changed posture of the case.
Although the Board of Mine Operations Appeals declined to adopt the recommended decision that the failure to rehire on April 29, 1971, was in violation of the Act it specifically indicated that the relevant issues had been
considered. Glen Munsey v. Smitty Baker Coal Company, Inc., Ralph Baker,
Smitty Baker, and P & P Coal Company, IBMA 72-21 (June 30, 1977); 8 IBMA 47,

48, so.

2057

Smitty Baker Coal Company has ceased mining operations, including those at
the No. 1 Mine where Munsey had been employed; P & P Coal Company has
obtained a lease from Peabody Coal Company and opened a mine on property which
had been the former Smitty Baker Mine designated as the No. 2 Mine; and Ralph
Baker has incorporated a new mining company, Mason Coal Company, in a different location from that of the former Smitty Baker Coal Company operation.
The Commission in its decision issued on December 4, 1980, held that
Ralph Baker can be ordered to reinstate Munsey at Mason Coal Company; that
P & P Coal is a successor to Smitty Baker Coal Company; and that Ralph Baker,
Smitty Baker Coal Company, and P & P Coal Company are jointly and severally.
liable for the illegal discrimination against Glen Munsey.
Upon assignment of the case for rehearing, a hearing was set for
December 16, 1980. When Applicant indicated that he had not yet received
the Commission's decision and could not be prepared by that date, the hearing was reset for January 13, 1981, and the hearing was held on that date
in Abingdon, Virginia. Applicant was not prepared to submit evidence concerning earnings, attorney's fees, and costs. The record was left open for
late filing of statements of attorney's fees, costs and Munsey's earnings
that were to be obtained from the Social Security Administration.
At the hearing, the attorneys for the respective parties agreed that,
with regard to the prior testimony in the two earlier hearings conducted in
this case, counsel for Respondents would designate within 10 days of the date
of the latest hearing those portions of the testimony which they deemed to be
pertinent to the three issues under consideration herein. Thereafter, counsel
for Applicant would have the opportunity to designate back to counsel for
Respondents any portion of the record that it deemed pertinent to the issues
under consideration. At that point, counsel for Respondent would undertake
the responsibility of reproducing copies of those portions designated and
would supply them to the Judge for inclusion in the record of this proceeding.
These materials were filed on March 3, 1981.
Counsel for the parties agreed to the following schedule for the filing
of briefs in this matter. Within 25 days from receipt of the transcript from
the reporter, Respondents would brief the reinstatement issue. 4/ Within
25 days from receipt of Respondents' brief on the reinstatement-issue and the
fil.ing of late materials that had been agreed to, Applicant would thereafter
file its brief as to all issues in the case. Within 10 days from receipt of
4/ The posthearing brief for Respondents Ralph Baker and Smitty Baker Coal
Company was filed on March 3, 1981. Counsel for Respondent P & P Coal
Company requested, and was granted an extension of time in which to file a
brief on the issue of reinstatement. This brief was filed on April 15, 1981,
and the time constraints for the filing of subsequent briefs were adjusted
accordingly. Applicant filed his posthearing briefs on June 25, 1981.
Respondents Ralph Baker and Smitty Baker Coal Company filed a reply brief
on July 14, 1981. The Applicant failed to file its final reply brief within
the prescribed time.

2058

Applicant's brief on all issues in the case, Respondents would file a reply
brief on the reinstatement issue and their principal brief as to the issues
of back pay and attorneys' fees in this case. Within 10 days of receipt of
Respondents' briefs orr those matters, Applicant would file a reply brief as
t6 all issues in the case.
Proposed findings of fact and conclusions of law in the briefs filed by
the parties which are immaterial to the issues presented or inconsistent with
this decision are rejected. 21
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Reinstatement
In its decision on remand, the Commission noted that the record raises a
question as to whether Baker may have already made a suitable offer of reinstatement since Baker testified in December, 1975, that he offered Munsey
employment at Mason Coal Company "maybe a year ago, maybe not that long." In
his testimony, Munsey mentioned neither an offer of employment from Baker nor
a request for a job at Mason Coal. The Administrative Law Judge had recommended that Munsey be awarded $2,013.26 for his loss of pay during the period
from April 30, 1971, until October 30, 1971, when Smitty Baker Coal Company
ceased operations. After remand by the D.C. Circuit and a finding that P & P
Coal Company was a successor to Smitty Baker Coal Company and that Ralph Baker
could be ordered to reinstate Munsey at Mason Coal Company, it became neces- ·
sary to make specific findings on the issue of whether a suitable offer of
reinstatement had been made. 6/ The Commission, in its decision on remand,
included findings to the effect that, if a suitable offer was made and refused,

5/ Parts of the posthearing briefs were devoted to issues which have already
been resolved by the Commission and the U.S. Court of Appeals D.C. Circuit.
Respondents Smitty Baker Coal Company, Inc., and Ralph Baker argued that since
no complaint has been filed charging discrimination on April 29, 1971 (failure to rehire), or at any time other than April 15, 1971 (date of discharge)
Munsey has failed to complain of discrimination on April 29, 1971, and that
matter may not now be considered. Respondents also argued that because of
statement in Munsey's posthearing brief that "Applicant no longer contends
that Ralph Baker and Smitty Baker as individuals may be held responsible
* * *" he has waived any claim against either Ralph Baker or Smitty Baker
by abandoning any contentions against them after the second administrative
hearing. Respondents further argued that the cessation of operations of
Smitty Baker Coal Company, Inc., on October 1, 1971, was due to a strike and
was not a subterfuge, and that Mason Coal Company is not a proper party to
these proceedings. Since these issues have been previously resolved, they
were not reconsidered in this proceeding.
6/ Munsey II at 1053.

2059

then the need to offer reinstatement now is moot and that the making of a
suitable offer would toll the accumulation of lost wages due to Munsey as a
a result of the violation.
An offer of reinstatement can be considered "suitable" or "appropriate"
if it was made unconditionally, unequivocally, and in good faith. Lipman
Brothers, Inc., 164 NLRB No. 850 (1967). The offer must be one of full
reinstatement to his former position, or should that position no longer
exist, to a substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
The record on remand establishes that although no appropriate offer of
reinstatement was made by P & P Coal Company, appropriate offers of reinstatement were made by Ralph Baker at Mason Coal Company.
Munsey, or someone representing him, discussed reemployment on a number
of occasions with Clyde Poe, Charlie Poe 7/ or Ralph Baker. Respondents' witnesses related occasions on which offers of employment were made to Munsey.
At the hearing on remand, Munsey testified that he did not remember such
offers being made but he did not introduce evidence sufficient to rebut the
clear and convincing testimony that the conversations concerning the offers
occurred.
Munsey related occasions on which Respondents turned down requests for
employment made by him or on his behalf. Respondent made no attempt to rebut
much of this testimony. It was established, however, that in the course of
a number of these conversations, Munsey stated that he already had a good
job elsewhere. The detailed findings on the issues of whether P & P Coal
Company or Ralph Baker made a suitable offer of reinstatement are set forth
below.
No Suitable Offer of Reinstatement Made by P & P Coal Company
A suitable offer to reinstate Glen Munsey was riot made by P & P Coal
Company. Although employment was discussed by Munsey, or someone representing him, and a representative of P & P Coal Company on several occa- .
sions, at no time did P & P Coal Company make an unconditional, unequivocal,
good faith offer to hire Munsey.
1. At the 1981 hearings herein, Clyde Poe testified that on or about
Friday, March 10, 1972, he and Charlie James Poe met Munsey as they were going
into a bank. Charlie James Poe asked in a "light-hearted manner" if Munsey
wanted a job and Munsey replied that he had a job already and did not want a

7/

Charlie James Poe and Clyde Poe were co-owners of P & P Coal Company at
the times pertinent herein and remained so at the time of the hearing held
January 13, 1981.

2060

job at P & P. Clyde Poe characterized the conversation as "light-hearted"
because Charlie James Poe is a very talkative person. He acknowledged that
it was not a serious conversation.
Although Munsey testified at the most recent hearing that he did not
recall this conversation, the clear and convincing testimony of Clyde Poe
establishes that. the conversation took place. Poe also truthfully admitted
the circumstances and the manner in which Munsey was asked if he wanted a
job even though they were such that the conversation cannot be considered an
appropriate offer of reinstatement.
2. At the hearing held in 1975, Charlie James Poe testified that he
had a conversation relating to employment with Munsey on or about Saturday,
March 11, 1972. He testified that he met Glen Munsey and Fred Coeburn 8/
in a parking lot and that Munsey asked him for a job. Poe responded, "Well,
Glen, I'm hiring men off Ralph's panel and if you're on his seniority list,
I'll get to you and give you a job." In reply, Munsey laughed and said:
"No, I don't want no job up there. I got a good job over in Kentucky." Poe
asserted that Munsey then told him the name of his employer.
Prior to this testimony by Charlie James Poe, Munsey had testified.on
cross-examination that he did not remember a conversation of this .nature.
Although Munsey's testimony might be construed as a denial that the conversation on March 11, 1972, J_/ occurred, it certainly was not as convincing as
that of Poe who was certain of all aspects of the conversation except the
exact date on which it occurred. Here again, Poe gave the full details of
the conversation, including those detrimental to his case. Charlie Poe's
"of fer" of a job to Glen Munsey on this occasion was made contingent upon
Munsey being a member of the panel of former Smitty Baker Coal Company
employees. This panel listed the former employees by seniority and served
as the basis by which P & P hired its miners. Those miners hired from the
panel were chosen by seniority without further screening.
On Sunday, March 12, 1972, a meeting called by Charlie James Poe was
held in the UMWA hall in St. Charles. At this meeting, P & P hired its
employees from the panel comprised of the former employees of Smitty Baker
Coal Company. Munsey went to the meeting but left after he and a number of
other former employees who had been fired by Smitty Ba~er Coal Company were
told that they were not on the panel. Munsey did not actually check to see
if his name was on the panel or not.
At the 1975 hearing, Charlie James Poe testified that he did not hire
Munsey at the time because Munsey had informed him that he already had a job
8/ Fred Coeburn was the section foreman at Smitty Baker Coal Company who
had allegedly discharged Munsey on April 15, 1971.
J_/ At the hearing held in 1973, counsel inferred during cross-examination
that this conversation occurred on March 13, 1972.

2061

and did not want to work for P & P. Poe believed that all of Smitty Baker's
men were on the list but he did not check the panel list used by the union
and he did not do the actual hiring. The evidence fails to establish that
Munsey was on the panel comprised of Smitty Baker Coal Company employees at
the time the company ceased operations. His name was not likely to be on
such a panel since he had previously terminated his employment with that
company. Neither Munsey nor Charlie James Poe saw the actual panel list from
which former employees of Smitty Baker Coal Company were chosen by the union.
Poe believed that Munsey's name was on his list of panel members and asswned
that Munsey was included on the union's list. On the other hand, Munsey and
a nlllllber of other miners were denied employment specifically because they
were not on the panel.
The offer of employment made by Charlie James Poe on March 11, 1972, was
premised on Munsey being a member of the panel of Smitty Baker Coal Company
employees. The qualification attached to this "offer" rendered it, in effect,
no offer at all.
4. P & P Coal Company signed a contract with the UMWA on March 11,
1972, 10/ or thereabouts. Ed Gilbert testified that on the day that the contract was signed, he went to Charlie James Poe at his home and spoke with him
about the rehiring of Mr. Munsey and the Scotts. 11/ In the course of this
conversation, Charlie Poe did not say absolutely whether he would hire either
Munsey or the Scotts. Mr. Gilbert stated the UMWA position and asked Poe to
put them back to work. According to Gilbert, Mr. Poe responded that he had
worked out a deal with Smitty Baker whereby Smitty Baker would be responsible
for anything that would happen and that they were not going to hire them. 12/
At the 1975 hearing, Charlie Jamei;; Poe denied the existence of any agreement
with Ralph Baker to discriminate against Munsey. While the conversation may
not have included an absolute refusal to rehire Munsey, there was no appropriate offer of reinstatement at that time.
5. At the 1975 hearing, Munsey testified that he asked P & P Coal
Company three times for a job and he described two of those occasions.
His testimony was, in substance, that he spoke with Charlie James Poe
about 2 weeks after Poe t·ook over the mines. Poe was putting in
10/ At the hearing held in 1975, Ed Gilbert mistakenly testified that P & P
signed the UMWA wage agreement on March 13, 1972.
11/ The Scotts were two miners who had left the employment of Smitty Baker
Coal Company at the same time as Munsey.
12/ At the 1975 hearing, Ed Gilbert testified that he told Poe at the time
of this conversation that the discrimination case was pending. On the other
hand, Charlie James Poe testified at that hearing that he did not speak with
Ralph Baker about any agreement not to hire certain of the employees of
Smitty Baker Coal Company and that the first he heard of the discrimination
case was when he came into the hearing on that morning. This conflict in
testimony has already beep effectively resolved in finding that P & P Coal
Company, Inc., was a successor to Smitty Baker Coal Company, Inc.

2062

a crusher at the mines on a Saturday. When Munsey asked him for a job, Poe
responded "You wouldn't want to work here at this place." Poe did not give
any reason for this statement.
Munsey's testimony on this point, although lacking in some detail, was
given in a straightforward manner. The approximate date, the gist of the
conversation, and the circumstances surrounding the incident were stated in
such a manner as to establish that the incident did occur.
Munsey also testified that "he went back to Charlie James Poe once again
and asked him about a job and was told by Poe at that time they were not
doing any hiring." There were no witnesses present. At the 1981 hearing,
Munsey reiterated that he had asked Charlie James Poe for a job and Poe said
that he was not hiring anybody. Although Munsey's testimony regarding this
incident lacked clarity and detail, it was given in such a manner as to
establish that the conversation did occur. It is clear that no appropriate
offer of reinstatement was made in the course thereof.
6. Approximately 9 months to a year after P & P Coal Company opened,
Munsey asked Ed Gilbert to intercede with Charlie Poe to get him a job with
P & P Coal Company. Ed Gilbert spoke with Poe over the telephone. Poe told
Gilbert that he was not hiring because his business was in a slump. There
was clearly no appropriate offer of reinstatement on the occasion.
7. Approximately 2 years before the December 5, 1975, hearing, Glen
Munsey's wife went to Clyde Poe's store and asked him for a job on behalf
of Glen Munsey. Mr. Poe responded that P & P Coal Company was not hiring.
Again, there was no offer of reinstatement on this occasion.
Suitable Offer of Reinstatement Made by Ralph Baker
Smitty Baker Coal Company closed down operations in October, 1971. Ralph
Baker started the Mason Coal Company early the next year, opened the mine in
May, 1972, and started running coal in June of 1972.
The record establishes a pattern by Munsey of requesting employment at
both P & P Coal Company and Mason Coal Company even though he already had a
job and had no intention of leaving to accept another. It was not established
whether this course of conduct was idle conversation between acquaintances or
a deliberate attempt to make a case for his discrimination proceeding. In any
event, while P & P Coal Company did not make an appropriate offer, Mason Coal
Company needed Munsey's services and made more than one suitable offer to
reinstate him.
Glen Munsey testified that he did not go to Smitty Baker Coal Company or
anybody connected with it and request that he be rehired after April 29, 1971;
that he never spoke with Mr. Baker regarding employment at Mason Coal Company,
nor had he ever conferred with anyone he knew to be or thought might be a
foreman or a superintendent at Mason Coal Company about working for that
company, and that to his recollection, he never had anyone else contact Baker
for him. Under the circumstances this testimony lacks credibility.

2063

Munsey also testified that from 1971 through 1974, he worked for Helen
Ann Coal Company. His job with that company was "running bridge * * * on a
miner." The "bridgE,?" is a short conveyor which carries the coal cut by the
continuous miner back to the main conveyor. Mr. Munsey's station as a bridge
operator was approximately 90 feet outby the coal face but he had to approach
the face regularly in the performance of his job. When Munsey was employed
by Smitty Baker Coal Company, he was a jacksetter, a job which required him
to work in the immediate vicinity of the coal face. Munsey did not work as· a
jacksetter at Helen Ann Coal Company. 13/ Munsey testified that he did not
seek any particular job when he applied for work at Helen Ann Coal Company
but also that he "wanted out from the face * * * [and so he] learned to
start running the bridge."
Munsey admitted that, during the time he was working with Helen Ann Coal
Company, he had no thought of leaving that company to get a job at Mason Coal.
He stated that he would have considered working at Mason Coal Company after
he left Helen Ann Coal Company in 1974 if "they had offered me a job" but
that he would not have left Helen Ann Coai Company in 1972, 1973, or 1974 to
work for Mason Coal Company. During the time he worked for Helen Ann Coal
Company, the company was signatory to the UMWA contract. It is clear that
Munsey would not have left his job as a bridge operator and forfeited his
union status with the UMWA to go to work at the face at Mason Coal Company as
a jacksetter. Munsey stated that he would not have given up a job at a union
mine for one at a non-union mine. It was later established that Mason Coal
Company had a contract with the Southern Labor Union.
Ralph Baker testified that, after establishing Mason Coal Company in
1972, he was asked by Munsey for a job several times; Baker told Munsey that
he should come to work but Munsey never did. Baker testified in detail as
to two occasions on which he offered to hire Munsey. Baker also testified
that Munsey had asked him for work on four or five other occasions when the
two passed on the street. Munsey never went in and filled out one of the
written applications for employment but he had inquired about working at
Mason Coal Company until the time that Adrian Belcher quit. After Belcher
quit in 1975, Munsey did not talk to Baker or any of his foremen regarding
a job.
Baker's testimony in regard to the first of the two specific occasions
on which Munsey was offered employment was that Munsey asked for a job 2 or
3 months after Mason had started running coal in June, 1972. Mason Coal had
been shipping coal on spot orders to the Tennessee Valley Authority and to
other utilities. The conversation took place close to the Southern Railway
Depot in St. Charles. Glen Munsey started the conversation by asking if he
could have a job. Ralph Baker agreed to give him a job.
13/ Munsey testified that he never worked as a jacksetter with Helen Ann
Coal Company but that he had "set jacks at Bee Coal [Company]."

2064

Munsey then told Baker that he did not want a job--that he was already
working. Baker had no idea why Munsey asked him for a job when he did not
want a job, but did not think this was strange. He stated that people
frequently asked him for jobs when they did not really want them.
As noted above, Munsey originally testified that he never conferred with
anyone at Mason Coal Company regarding employment. On rebuttal, he softened
his position somewhat. In response to the question whether this conversation
in· St. Charles occurred, Munsey replied "Not as I can remember." Munsey
neither explained nor denied the conversation with Baker but rested on a
general, equivocal denial.
In June, 1973, Munsey asked for and was given a job by Baker's foreman,
Adrian Belcher. In summary, Baker's testimony was that Munsey had been
sitting in a car with Adrian Belcher, a section foreman at Mason Coal
Company. Baker walked up to the car and was told by Belcher that he,
Belcher, had hired Munsey as a jacksetter. Baker "told him that was good."
Mr. Belcher appeared to Baker to have been serious. Baker believed that
Munsey said something but could not remember what it was. Nothing was said
about seniority or back pay.
Munsey testified that Baker came over to the car and spoke with Adrian
Belcher while he was in the car but does not know or remember what Baker
and Belcher spoke about. Munsey asserted that Mr. Belcher did not hire him
to work at Mason Coal Company at that time and that he did not even know
that Belcher was a foreman at Mason Coal Company. In view of Munsey's
presence in the car with Mr. Belcher when Mr. Belcher and Mr. Baker were
talking, it is improbable that he was unaware at the time of the substance
of the conversation. His assertions that "(he does not) know what they were
talking about," followed by the assertion that he did not remember what was
said will not serve to rebut Baker's testimony in this regard.
The evidence establishes that Ralph Baker agreed to employ Glen Munsey
2 or 3 months after Mason Coal Company started running coal in June of 1972
and that he again agreed to employ Glen Munsey in June of 1973. Although
Ralph Baker had refused to rehire Munsey and the Scotts at Smitty Baker Coal
Company on April 29, 1971, he conditioned his refusal by stating that he would
not rehire them "at that time." The record clearly shows that he was willing
to hire them the succeeding year after establishing Mason Coal Company. Baker
hired back Arnold and Ernest Scott, former Applicants in this proceeding. They
made no agreement with Baker when they came back to work to drop their cases
nor did Baker expect that they would do so when they did come back to work.
No mention was made of the case nor was seniority given to them at the time.
No back pay was given. Baker believed that Munsey was a skilled jacksetter
and his unrebutted testimony was that he would have been glad to have Munsey
working at Mason Coal in that capacity.
Surrounding circumstances lend credence to Ralph Baker's testimony.
Munsey's purported refusal of employment is consistent with his testimony
that he would not have left his employment as a bridge operator at Helen Ann

·2065

Coal Company to work as a jacksetter at Mason Coal Company at the time the
offer was made.
Baker was serious about giving Munsey a job on the two occasions related
above. At no time did he make the acceptance of a job contingent upon dropping any claims for back pay that Munsey might have against him. The offers
were unequivocal, .unconditional and made in good faith. Under the circumstances of this case, it is clear that the offers of reinstatement were
suitable even though a specific promise to give back pay was not included. 14/
The relief provisions of the Act were intended to compensate for injury
suffered, not to place Munsey in a better position than he would have otherwise occupied. Therefore, the offers of reinstatement were suitable even
though no consideration was given to lost seniority or privileges. Mason
Coal Company, from its inception, had a collective bargaining agreement with
the Southern Labor Union rather than the United Mine Workers of America, the
co~lective bargaining agent at the Smitty Baker Coal Company operation.
Ralph Baker testified that a number of the former employees of Smitty Baker
Coal Company were hired by Mason Coal Company. These employees were not
accorded seniority or privileges at Mason Coal Compqny by virtue of their
prior employment with Smitty Baker Coal Company. This practice was uniformly
applied.
It is found that Ralph Baker made Glen Munsey an appropriate offer of
reinstatement on two separate occasions. The first such occasion occurred
2 or 3 months afer Mason Coal Company began running coal in June of 1972.
The second occasion occurred in June, 1973.
Relief to be Accorded
Pursuant to the terms of section 110 0£ the Act, Munsey is entitled to
an order requiring Respondents "to take such affirmative action to abate the
violation as the Secretary deems appropriate, including, but not limited to,
the rehiring or reinstatement of the miner * * * to his former position with
back pay."
Because a suitable offer of reinstatement has been made and refused, the
need to offer reinstatement is now moot. Moreover, the making of the suitable offer has tolled the accumulation of lost wages due Munsey as of the
date the offer was made. Respondent Ralph Baker was unable to establish the
14/ See N.L.R.B. v. Midwest Hanger Company, 550 F.2d 1101 (8th Cir. 1977).
The court therein stated at 1103: "It is clear that had the Company's
offer of reinstatement been conditioned solely on its refusal to give back
pay** * then the offer of reinstatement would not have been invalidated."
Citing D'Armigene, Inc., 148 NLRB 2, 15 (1964), enforced as modified,
353 F.2d 406 (2d Cir. 1965); Reliance-Clay Products, 105 NLRB 135 (1953).

2066"

exact date on which the first conversation took place. He was able to testify only that the conversation occurred 2 to 3 months after Mason Coal
Company began running coal in June, 1972. This failure to provide a specific
date must be resolved in Munsey's favor. If the operation began at the end
of June, the offer could have been made as late as October 1. For the purposes of determining the relief to be accorded, the date on which this suitable offer of reinstatement occurred will be taken as October 1, 1972.
Munsey is entitled to be paid those wages he would have earned but for
the illegal discrimination against him. It has already been determined that
$2,013.26 was due Munsey for wages lost through October 1971, when Smitty
Baker Coal Company ceased operations. P & P Coal Company which has been
found to be a successor began operations on April 1, 1972. 15/ Respondents
are, therefore, liable for any wages lost by Munsey from April 1, 1972, until
October 1, 1972, the date on which the accumulation of wages was found above
to have tolled.
The figures provided by Munsey 16/ for the amount of wages he would have
earned at P & P Coal Company were computed on the assumption that it operated
on a 5-day work week at a rate of $38.75 per day. If Munsey had been employed
from April 1, 1972, through the end of the quarter, June 30, 1972,-by P & P
Coal Company, he would have earned $2,518.75.
The figure provided for the
second half of 1972 was calculated on the basis of 95 days worked at a rate of
$38.75 and 35 days at a rate of $41.75. An appropriate figure for the third
quarter wages paid by P & P Coal Company cannot be accurately reached by
dividing the total half-year figure, $5,412.50, in half. Rather, it is
appropriate to multiply the number of work days in the third quarter (65)
times the rate in effect ($38.75). On this basis, Munsey would have earned
$2,518.75 in the third quarter of 1972 had he been employed by P & P Coal
Company. ];]__/
Munsey appended to his posthearing brief an itemized earnings statement
provided by the Social Security Administration. His earnings during the
15/ While the record provides indications that P & P Coal Company may have
commenced operations in some form as early as March 13, 1972, Munsey
asserted in his posthearing brief that operations actually began on April 1,
1972. The figures for lost pay offered by Munsey are calculated as of
April 1, 1972.
16/ No objection was made by Respondents to the dollar amounts estimated by
Munsey for the period of time from April 1, 1972, through September 30, 1972.
17/ It is arguable that calculations must also be made of the amount of
wages lost by Munsey because of the failure of Ralph Baker to offer him
employment at Mason Coal Company until October, 1972.
The exact date on which Munsey might first have been employed by Mason
Coal Company has not been established. Ralph Baker stated that the company
first began running coal in June of 1972, but Respondent's Exhibit No. 2,
a "Recapitulation/Work Time and Pay Rqt~s" for Mason Coal Company, indicates

2067

second (April-June) and third (July-September) quarters of 1972 were indicated thereon as follows:
April-June, 1972
July-September, 1972

$2,446.80
$1,746.00

In view of the above, it is found that Munsey is entitled to $72 in lost wages
for the second quarter of 1972 and $773 in lost wages for the third quarter.
These amounts reflect the difference between what Munsey would have earned
had he worked at P & P Coal and his actual earnings during the pertinent
period of time.
Costs and Expenses
Section 110(b)(3) of the Act reads as follows:
(3) Whenever an order is issued under this subsection,
at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses (including the
attorney's fees) as determined by the Secretary to have been
reasonably incurred by the applicant for, or in connection
with, the institution and prosecution of such proceedings,
shall be assessed against the person committing such
violation.
fn. 17 (continued)
that a considerable number of shifts were worked prior to June 30, 1972. No
indication exists on the record, however, as to the number of employees
working or the nature of the work performed.
The computation of earnings which Munsey would have made had he worked
for P & P Coal Company or Mason Coal Company were both determined on a
bi-annual basis. The figures provided for Munsey's actual earnings were
determined on a quarterly basis.
Mason Coal Company began operations during the second quarter of 1972.
If Munsey had worked at Mason Coal Company from the day it began operations
through June 30, 1972, he would have earned $1,557.50. This figure reflects
the wages due for 44-1/2 shifts at a rate of $35 per shift.
A total of 62-1/2 shifts were worked at Mason Coal Company at a rate
of $38 per shift during the entire second half of 1972. In the absence of
information which would allow a breakdown of this total by quarters, the
number of shifts ascribed to the third quarter is taken to be one-half of
the total or 31-1/4. Muney's earnings at Mason Coal Company in the third
quarter of 1972 would, therefore, have amounted to $1,187.50.
The amount that Munsey would have earned at Mason Coal Company is less
than he would have earned at P & P Coal Company. Since this provides an
inaccurate basis on which to calculate Munsey's loss, the calculations are
based on his earnings at P and P Coal Company.

2068

On the basis of this provision, Munsey asserts that he is entitled to
attorney's fees of $108,962.50 and costs of $367.16.

Mr. Munsey testified that he was represented first by Charles Widman,
then by Willard Owens and finally, by the current attorney of record, Steven
Jacobson. Charles Widman and Willard Owens were salaried member of the legal
staff of the UMWA during the time they represented Glen Munsey. Steven
Jacobson was a salaried member of the UMWA legal staff unt~l September, 1976.
Thereafter, Mr. Jacobson continued his representation of Glen Munsey in a
private capacity.
Munsey stipulated that he had never been charged for expenses and is not
expected to pay back fees. He testified that he was not obligated to the
Union for its provision of the services of these three attorneys. Munsey
also testified that he never discussed fees with any of these attorneys,
including Mr. Jacobson.
Section 110(b)(3) is couched in terms which, in pertinent part, provide
for assessment against Respondents of the costs and expenses, including
attorney's fees reasonably incurred by the Applicant. As a threshold question, it must be determined whether recovery may be had by Munsey despite
his stipulation that he did not incur any obligation to pay attorney's fees,
costs, or expenses.
Congress enacted the provision for attorney's fees in section 110(b)(3)
to encourage individuals injured by unlawful discrimination to vindicate
their private rights under the Act even though the personal recovery anticipated by the Applicant would, in some cases, be far less than the costs and
expenses incurred ·in maintaining the action. Provision of costs and expenses
was, therefore, a critical element of the enforcement scheme envisioned by
Congress. In order to vindicate the right of miners as a class to be free
from unlawful discrimination, the inherent disincentive presented by costs
and expenses in excess of anticipated recovery was removed.
Respondent asserts that the Act specifically limits the recoverable
costs and expenses to those actually ~ncurred by the Applicant. It was
argued that Munsey did not incur attorney's fees because he was not
personally obligated for costs and expenses to those who represented him.
Respondents' argument is without merit. It places undue emphasis on the
phrase "incurred by appl ican't," and, if ·adopted, would eviscerate the enforcement scheme envisioned by Congress. It makes no sense to restrict recovery
of costs and expenses to applicants who have formally agreed to pay these
costs and expenses when section 110(b)(3) was enacted in recognition of the
chilling effect that such obligations would have on the assertion of the
rights afforded by the antidiscrimination provisions of the Act. Munsey did
not incur a formal obligation to pay costs and expenses because he could not
afford to meet such an obligation. His situation was precisely that which
Congress intended to remedy with the enactment of section 110(b)(3).

2069

No reason can be found to warrant reduction in the level of enforcement
afforded by section llO(b) by attaching significance to a formalized.obligation to pay. An attorney providing free legal services in the vindication of
section llO(b) rights stands in the same position as one to whom a fee is
owed.
Compensation for legal services rendered in the absence of legal obligation on the part of the client to pay have been awarded to attorneys in private practice, private legal services organizations, foundations, and
.public-interest law firms pursuant to statutory provisions for awarding of
attorney's fees. Applicant has advanced no convincing reason nor any legal
authority to justify the extension of the right to recover fees or expenses
under such circumstances to unions or collective bargaining agents. It is
likewise inappropriate that Mr. Jacobson be awarded attorney's fees personally
for the legal services he provided while in the employment of the UMWA.
Recovery of attorney's fees and expenses will therefore be allowed only for
those services rendered and expenses incurred by Mr. Jacobson while he represented Munsey in the capacity of a private practitioner.
Respondent argued that attorney's fees had been disallowed in the recommended decision herein, issued June 25, 1976, and that the Board of Mine
Operations Appeals had overruled Applicant's exception to the disallowance
in its decision of June 30, 1977 (Glenn Munsey v. Smitty Baker Coal Company,
et al., 8 IBMA 43 (1977)). The Board found that "Munsey failed to meet his
prima facie burden consistent with the requirement of section llO(b)" and
denied "all exceptions not dealt with specifically." The Court of Appeals
affirmed the Board in part, reversed it in part, and remanded for consideration of specific issues. Glenn Munsey v. Federal Mine Safety and Health
Review Commission, 595 F.2d 735 (D.C. 1978). The Court did not specifically
affirm or reverse the Board's denial. of Applicant's exception to the disallowance of attorney's fees.
The Board did not offer an explanation for its denial of Respondent's
exception. It is entirely possible that the Board denied the exception
because recovery of expenses pursuant to section 110 was premised on
Applicant's prevailing in his claim of discrimination. The Court of
Appeal's reversal in part on substantive grounds undermines the Board's
derrial of the exception.
The basis for disallowing attorney's fees was not made on substantive
grounds but, rather, was based on the failure of Applicant to submit evidence
to establish the existence of such expenses. If the disallowance of fees to
that point in time stands, it would affect provision of attorney's fees
accrued through June 25, 1976. As noted above, recovery of fees prior to
that time is denied on other grounds. As a result, Respondent's argument is
moot.
The starting point for computation of fees is achieved by multiplying
a reasonable hourly rate by the number of hours reasonably expended on the

2070

lawsuit. 18/ This starting figure has been termed the "lodestar." The
lodestar fee is then adjusted to reflect a variety of other factors.
Counsel for Applicant submitted the following information with respect
to the hours spent representing Mr. Munsey from 1977 through the present.
This information was contained in Applicant's Exhibit No. 6 which was
accepted into evidence subject to the filing of available supporting
materials:
Preparation of petition for D.C. Circuit review
Preparation of D.C. Circuit brief and joint
appendix

.so
88.50
89.00

1977 - 89.00 hours at $70/hr. = $6,230.00
Preparation of opposition to briefing extension
Preparation of motion to substitute parties and
reply to opposition thereto
Preparation of reply brief
Preparation of motion for expedited oral
argument
Preparation of letter to Court
Preparation for and attendance at D.C. Circuit
argument
Preparation of opposition to motion to vacate
award of costs
Preparation of materials for Commission on remand
1978-79 - 143.25 hours at $80/hr. = $11,460.00
Preparation of July 1980 letter to Commission,
telphone calls from Commission staff re
documents
Preparation for and attendance at 1981 hearing
and preparation of requests for supplemental
documents
Preparation of materials on remand

1. 75
9.00
53.75
6.00
1.75
27.50
3.75
39.75
143.25
5.75
46.00
27.50
79.25

1980-81 - 79.25 hours at $110/hr. = $8,772.50
Counsel for Applicant supplemented Exhibit No. 6 with an affidavit
attached to the posthearing brief filed herein on June 25, 1981. He stated
18/ The method utilized in setting the attorney's fees due herein has been
gleaned in large part from Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.
1980) (hereinafter, Copeland).

2071

that Exhibit No. 6 reflected the "various tasks I have performed in connection with this case, and the hours I spent in performance." Counsel did not
state whether the hours claimed were established by daily records, by reconstruction through close examination of the record of the case or by mere
estimation.
The submissions of counsel for Applicant, though perfunctory, were
sufficient to perniit a determination of reasonableness to be made. It is
found that counsel for Applicant reasonably expended 89 hours 19/ in 1977,
143.25 hours in 1978-1979, and 79.25 hours in 1980-1981.
~
In an affidavit submitted with the posthearing reply brief, Mr. Jacobson
offered the following information. Mr. Jacobson is a member of the California,
District of Columbia and Illinois Bars. He graduated from Harvard Law School
in 1973. From 1973 to 1977, he was a staff attorney for the UMWA with
responsibility for mine safety litigation; since 1977, he has been in private
practice. He has argued "numerous precedent-setting cases" in the mine safety
and health area.
Mr. Jacobson stated that his billing rate was $70 per hour in 1977,
$80 per hour in 1978 and 1979, and $110 per hour in 1980 and 1981. It is
found that these are reasonable rates in the community for similar work.
It is also found that these dollar amounts accurately reflect the value of
Mr. Jacobson's time, given his background and, particularly, his expertise
in matters of this sort. 20/
The number of hours reasonably expended by Mr. Jacobson multiplied by
reasonable hourly rates result in a lodestar figure of $26,462.50. The burden
of justifying any deviation from this figure rests with the party proposing
the deviation. Copeland at 892.
Counsel for Applicant argued that the lodestar amount should be doubled
in view of the contingent nature of the litigation and the quality and value
of the work performed. This request is denied. The hourly rate underlying
the lodestar figure ~eflects an allowance for the contingent nature of
Mr. Jacobson's compensation. In addition, much of counsel's work was performed after the U.S. Court of Appeals had made it clear that Munsey was to
19/ Respondent objected to 88.5 hours claimed to have been expended in the
preparation of the second brief to the D.C. Court of Appeals because "as
to most of the issues presented by that appeal and brief, he lost." Each
of these issues was closely related to the cause upon which Applicant has
ultimately prevailed. Under such circumstances, the failure to prevail on
specific issues is not a proper basis for denying recovery for time spent
thereon.
20/ See Meisel v. Kremens, 80 FRD 419 (E.D. Pa. 1978), citing Lindy
Brothers Builders, Inc. v. American Radiator and Standard Sanitary
Corporation, 487 F.2d 161 (3d Cir. 1973).

2072

prevail at least in part.
An adjustment on the basis of quality and value
of the representation is appropriate only when the representation is
"unusually good or bad, taking into account the level of skill normally
expected of an attorney commanding the hourly rate used to compute" the
lodestar figure. Copeland at 893. No adjustment for the quality and value
of the representation is warranted herein.
The interests at issue and the results obtained are factors to be considered in determining whether a fee is reasonable. The back pay recoverd by
Munsey is far exceeded by the attorney's fees awarded herein. In succeeding
on the merits, however, Applicant vindicated not only his personal right but
the rights of all miners as a class to be free of unlawful, safety-related
discrimination. A reduction in attorney's fees because the fees exceed
Mr. Munsey's back pay recovery is not warranted.
Applicant also claimed compensable expenses in this proceeding as
follows:
Duplicating
Transcript of 1981 hearing

$200.00
135 .16

In view of the extensiveness of this proceeding, the claim for duplicating expenses seems reasonable and will be allowed. Applicant is clearly
entitled to recover his expenses for a transcript of the 1981 hearings.
Accordingly, expenses in the total amount of $335.16 are awarded herein.
In view of the fact that Munsey incurred no formal obligation for
attorney's fees or expenses, either to the UMWA or Mr. Jacobson, the order
entered herein will require that payment of the awarded fees be made directly.
Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 539 (5th Cir. 1970);
Brandenburger v. Thompson, 494 F.2d 885, 889 (9th Cir. 1974).
ORDER
In its decision remanding this case for proceedings necessary to further
determine the additional amount of lost wages and interest due Munsey, the
Commission ordered Ralph Baker, Smitty Baker Coal Company, and P & P Coal
Company, jointly and severally to pay, the amount of $2,013.26 plus interest
to Munsey. It is further ordered that these Respondents, jointly and
severally, pay the additional amount of $845.00, which makes a total amount
of $2,858.26, plus interest within 30 days of the date of this order.
Interest is to be computed on the total amount at a rate of 8 percent until
the date of payment.
It is further ORDERED that the Respondents, jointly and severally, pay
attorney's fees in the amount of $26,462.50 and expenses in the amount of
$335.16 to Steven Jacobson, Esq., within 30 days of the date of this decision.

~~ts~~
Forrest E. Stewart
Administrative Law Judge

2073

Distribution:
Steven B. Jacobson, Esq., 10960 Wilshire Boulevard, Suite 1800,
Los Angeles, CA 90024 (Certified Mail)
J. Edward Ingram, Esq., Fowler & Robertson, Seventh Floor, First
Tennessee Bank Building, Knoxville, TN 37902 (Certified Mail)
Joseph E. Wolfe, Esq., Earls, Wolfe & Farmer, P.O. Box 196, Norton,
VA 24273 (Certified Mail)

2074

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

CANTERBURY COAL COMPANY,
Applicant

Applications for Review
Docket No. PITT 78-127
Order No. lAM

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

Docket No. PITT 78-128
Order No. lDEM
David No. 5 Mine

UNITED MINE WORKERS OF AMERICA,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceedings
Docket No. PITT 78-301-P
A/O No. 36-00813-02012V
Docket No. PITT 78-302-P
A/O No. 36-00813-02014

v.
CANTERBURY COAL COMPANY,
Respondent

David No. 5 Mine

DECISION APPROVING SETTLEMENT
The Secretary of Labor has filed a motion for an order approving the
case disposition and settlement agreement in the above-captioned proceedings.

1./

Sections llO(i) and (k) of the Federal Mine Safety and Health Act of
1977 (hereinafter the Act), 30 U.S.C. §§ 801-960, provide:
"(i) The Commission shall have the authority to assess all civil
penalties provided in this Act. In assessing all civil monetary penalties,
the Commission shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business 6f the
operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation,
and the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation. In proposing
civil penalties under this Act, the Secretary may rely upon a summary
review of the information available to him and shall not be required to
make findings of fact concerning the above factors.
(k) No proposed penalty which has been contested before the Commission
under section 105(a) shall be compromised, mitigated, or settled except
with the approval of the Commission. No penalty which has become a final
order of the Commission shall be compromised, mitigated, or settled
except with the approval of the Court."
Editor's Note:
Case on Remand, See
1 FMSHRC 1311 (1979)

2075

On July 30, 1981, Petitioner filed its motion for an order approving
settlements, scheduling time for payment, and dismissing applications for
review. The settlement agreements were entered into between counsel for
Canterbury Coal Company (Canterbury) and MSHA on June 4, 1981, as follows:
§104(c)(l) Notice of Violation No. 1 DEM/AM (7-65), issued
on September 23, 1977, citing 30 CFR 75.200. The proposed
penalty is $800.00 and the proposed settlement is $500.00.
PITT 78-301-P
§104(c)(l) Order of Withdrawal No. 1 DEM (7-78), issued on
December 2, 1977, citing 30 CFR 75.200. The proposed
penalty is $1,500.00 and the proposed settlement is $500.00.
PITT 78-302-P
MSHA also moved that a time be set by the Administrative Law Judge upon
approval of the settlements for payment of the total amount of $1,000.00.
The parties have also agTeed that the above-captioned applications for
review be dismissed as part of the settlement. Respondent United Mine
Workers of America did not object to this disposition.
The reasons given by MSHA for the Motion are in substance as follows:
1. Size: The Order of Assessment, dated January 10, 1978 (PITT 78-301-P),
indicated that the Mining Enforcement and Safety Administration (MESA)
records on that day showed that the David No. 5 Mine and Canterbury Coal
Company both produced 486,584 tons of coal in the year preceding
January 10, 1978. The Order of Assessment, dated February 23, 1978 (PITT
78-302-P) indicated that MESA records show the mine produced the same
(486,584) tonnage for the year preceding the latter date but the parent
company, Aquitaine Incorporated, produced 1,132,587 tons annually for the
year. A narrative statement concerning the above-mentioned order of withdrawal was attached to the motion and the Assessor's finding therein was
the annual company production was 1,132,587 tons during 1976. The mine is
of upper middle range size for assessment purposes. The Company is of
lower middle range size.
2. Prior History: A certified computer printout showing only paid
violations assessed against Respondent indicates that there were 161 violations of all standards during that period for that mine.
3. NOTICE OF VIOLATION NO. 1 DEM/AM (7-65): If a hearing were to be
held, two Federal Inspectors would testify that each of them saw the substandard mine roof described in the notice of violation. The inspectors
observed four locations where the mine roof in the same area has fallen
between the roof bolts, indicating that the mine strata had shifted and was
less stable than at the time the roof was bolted (Tr. 224). The area had
pot holes or cavities indicating that additional support was required (Tr. 250).
Safety Precaution No. 1 of the approved roof control plan required additional
roof supports where conditions indicated a need (Tr. 231). In the notice of
violation the Inspectors cited that part of the plan as not being complied

2076

with. Safety Precaution No. 12 of the plan identifies additional supports·
(Tr. 234) to be longer roof bolts, posts, cribs, or crossbars (Tr. 230).
The existence of the cutter in the area is further evidence that the mine
roof was deteriorating. Whether anyone observed the roof condition before
the Inspectors saw it or not, a violation of 30 CFR 7.5. 200 occurred because
the Mine Operator should have known of the condition (Tr. 217) if adequate
examinations in a working place had been made (Tr. 221-222). The Office of
the Solicitor recognizes that Respondent's witnesses, at a hearing, would
not agree with all of the foregoing summarization of MSHA's position, but
the Office of the Solicitor's position is that a violation occurred and can
be proven.
a. Gravity: In the Inspector's Statement, the Inspector stated
he was of the opinion that there would be a hazard to one miner. The
Inspector was of the opinion that the condition was not serious when he
observed it because no one was in the area (Tr. 259), but it is a travel
area (Tr. 260). The Office of the Solicitor respectfully suggests that the
violation was serious in that death or serious injury to someone could
reasonably be expected as a result of the condition.
b. Negligence: The Inspector observed coal dust on the rock
dust on a rock where the cutter had opened. This caused the Inspector to
believe that the cutter occurred before the coal was mined in this area
two shifts previously (Tr. 191-197, 249). The Mine Operator would have
witnesses testify that the preshift examiner did not see the cutter and
the type of ventilation system used leaves almost no coal dust. The parties
agree that a cutter can occur anytime without warning. Accordingly, the
Office of the Solicitor will agree that the violation was not the result
of an unwarrantable failure in view of the conflicting testimony and the
unimportance of this issue since the unwarrantable chain was long ago broken
by a clean inspection. This was a travel area (Tr. 259) and the roof should
have been examined before the adverse conditions became so prevalent. The
section foreman told the Inspector he saw the cavities in the mine roof,
but did not consider.the roof such as to need additional roof supports
(Tr. 263). The Office of the Solicitor suggests that ordinary· negligence
is shown and has taken such into consideration in arriving at the $500.00
proposed settlement.
c. Good Faith: The Inspector's Statement shows that the Mine
Operator assigned extra persons to correct the condition. Although the
Inspector had to allow more time than was originally determined needed,
a normal degree of good faith is demonstrated. The area was "dangered
off" until.the condition was abated, and attention given to the problem
until abatement was obtained (Tr. 278). The Mine Operator demonstrated
good faith.
d. Prior Violations: On page one of the certified computer
printout mentioned in paragraph 2 above, it is shown that there were 17
paid 30 CFR 75.200 violations which occurred in this mine prior to
September 23, 1977 (the date the notice of violation issued).

2077

e. The narrative statement prepared by MESA's Office of Assessments
shows that the Assessor elected to waive the formula provided at 30 CFR
Part 100.3 and, instead, found special facts by which he suggested a proposed
penalty of $800.000 for the violation.. At the time the proposed assessment
was made, the Off ice of Assessments had a policy that unwarrantable violations would be routinely assessed specially. This policy was discontinued
because excessive proposed penalties sometimes resulted.
f. The Office of the Solicitor has proposed a settlement of
$500.00 instead of.the proposed penalty of $800.00 primarily because the
degree of negligence was less than that found by the Assessor.
4. ORDER OF WITHDRAWAL NO. 1 DEM (7-78): At a hearing the Federal
Inspector would testify that the Mine Operator had failed to follow the
required sequence for pillar removal and had mined the fender of a pillar
so the fender no longer provided the required protection. The roof support
was not provided· as required by the roof control plan in that breaker posts
had not been installed after the pillar had been mined through, there were
only two breaker posts on the right side, and the roadway was wider than
the allowed 14 feet but no timbers had been set to narrow it. Canterbury
witnesses would argue that the area described by the Inspector in the order
of withdrawal was an abandoned area. Thus, the proceeding would revolve
around the question of whether the area was active or abandoned, with
Inspector Dalton and the Canterbury witnesses both adamant as to their
respective positions.
a. Gravity: In the Inspector's Statement, he states that, in
his opinion, a hazard was posed to up to four miners who could be disabled
(but he would not expect a fatal accident). If Canterbury is correct in
its assertion that the area had been abandoned, no hazard was posed.
The violation of the roof control plan was serious, but no miner should
have been in abandoned area. MSHA does not accept the argument that the
area was not active, and suggests the violation was serious, but not as
serious as found by the Assessor.
b. Negligence: The Office of the Solicitor will agree that the
violation was not unwarrantable in view of the uncertainty as to whether
the area was active or abandoned. If abandoned there would still be a
question as to whether, when active, it had been mined according to the
roof control plan, or whether the timbers and breaker posts had been removed.
Canterbury would urge that the plan does not require the sequence the
Inspector states is required. Mr. Dalton, however, is a roof expert of
many years experience and certainly can read a roof control plan. The
Office of the Solicitor suggests that the violation was the result of
ordinary negligence.
c. Good Faith: As the Inspector noted in his statement, there
was no time provided for abatement since an order of withdrawal issued.
The order of withdrawal was terminated in less than two hours after issuance.
Good faith was demonstrated since there were several problems to be resolved.

2078

d.· Prior Violations: The certified computer printout lists 18
prior paid 30 CFR 75.200 violations. The September 23rd violation previously
discussed would bring the total to 19 prior violations of 30 CFR,75.200.
e. The narrative statement prepared by MESA's Office of Assessments
shows that the Assessor elected to waive the formula provided at 30 CFR 100.3
and made special findings pursuant to the policy then in effect which is
mentioned in paragraph 2-e above.
f. The Office of the Solicitor deems the proposed penalty of
$1,500.00 to be excessive considering the conflicting testimony which might
reduce the gravity and negligence, and the fact that credit was not allowed
for the rapid abatement. The parties have agreed upon a proposed settlement
of $500.00 and the Office of the Solicitor deems it reasonable.
5. The Office of the Solicitor asserts that a civil penalty of $500.00
for each of the two violations would be reasonable and the best interest of
the public would be served by the approval of the same.
6. Thirty days after approval is a reasonable time to allow in which
to pay the $1,000.00.
Based on the information furnished and an independent review and
evaluation of the circumstances, I find the settlement proposed is in
accord with the provisions of the Act.
ORDER
The settlement negotiated by the parties in the above-captioned
proceedings is APPROVED.
The above-captioned Applications for Review are hereby DISMISSED.
Respondent is ORDERED to pay'!:_/ the amount of $1,000 within 30 ·days of
the date of this order.

Forrest E. Stewart
Administrative Law Judge

2/

Section llO(j) of the Act provides as follows:
"(j) Civil penalties owed under this Act shall be paid to the Secretary

for deposit into the Treasury of the United States and shall accrue to the
United States and may be recovered in a civil action in the name of the United
States brought in the United States district court for the district where the
violation occurred or where the operator has its principal office. Interest
at the rate of 8 percent per annum shall be charged against a person on any
final order of the Commission, or the court. Interest shall begin to accrue
30 days after the issuance of such order."

2079

Distribution:
John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
William Sumner Scott, Esq., Dennis R. Joyce, Esq., Carl H. Shelly, Esq.,
The Grant Building, P. 0. Box 2674, Pittsburgh, PA 15230 (Certified Mail)
Harrison B. Combs, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, D.C. 20005 (Certified Mail)
Myrna P. Field, Esq., Attorney for Central Pennsylvania Coal Producers
Association, Suite 600, 1521 Locust Street, Philadelphia, PA 19103
(Certified Mail)

2080

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22o41

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

SEP 3 198\

Civil Penalty Proceedings
Petitioner

Docket No. SE 79-126-M
A.C. No. 31-00582-05004

v.

IDEAL BASIC INDUSTRIES, INC.,
CEMENT DIVISION,
Respondent

Docket No. SE 80-38-M
A.C. No. 31-00582-05006
Docket No. SE 80-57-M
A.C. No. 31-00582-05007
Docket No. SE 80-64-M
A.C. No. 31-00582-05008
Castle Hayne Plant and Quarry

DECISION
Appearances:

Darryl A. Stewart, Esq., Assistant Solicitor, Office of
the Solicitor, Mine Safety and Health Administration,
U.S. Department of Labor, Nashville, Tennessee, for
Petitioner;
Karl McGhee, Esq., Robert A. O'Quinn, Esq., Ideal Basic
Industries, Inc., Wilmington, North Carolina, for
Respondent.

Before:

Judge Lasher

This proceeding arose under section llO(a) of the Federal Mine Safety
and Health Act of 1977. A hearing on the merits was held on July 1, 1981.
After considering evidence submitted by both parties and proposed findings
of fact and conclusions of law proffered by counsel during closing argument,
I entered an opinion with respect to Citation No. 103822 on the record. 1/
My bench decision containing findings, conclusions and rationale appears-below
as it appears in the record, aside from minor corrections.
]:./ Tr. 85-88. Citation No. 103822 was one of three citations involved in
Docket No. SE 79-126-H. The two remaining citations in Docket No. SE
79-126-M, together with the five citations involved in the other three
dockets were resolved by either withdrawal by the Secretary, or the settlement reached by the parties at the hearing (Tr. 89-103).

2081

Docket No. SE 79-126-M
Citation No. 103822
This matter, which arises upon the filing of a petition
for penalty assessment by the Secretary of Labor, which was
filed on October 17, 1979, was heard in Wilmington,
North Carolina, on July 1, 1981. Both parties were represented by.counsel and evidence was received consisting of
the testimony of one witness for each side and documentary
evidence as well.
The Government seeks that a penalty be assessed for an
alleged violation of 30 C.F.R. § 56.16-4 as described in
Citation No. 103822, which was issued by inspector Edwin
Juso on July 25, 1978, which citation charges that bumper
blocks for the overhead crane used at the marl storage area
were not properly maintained. Portions of the bumper blocks
were missing, causing a twisting effect when contacted by the
crane. The inspector testified that part of the bumper was
missing at a point designated as "Y" on Exhibit R-2. The
bumper that was missing was a unit, consisting of a spring
with a telescoping cylinder on the inside thereof which was,
in effect, a shock absorber attached to the bumper block.
The inspector testified that had the crane contacted the
bumper (sometimes referred 'to in the record as a crane stop
and bumper block) that the natur'al tendency would have been
for the crane to twist, which could have caused the operator
of the crane to lose his balance. Other evidence in the
record, primarily from the inspector's notes, which are
reflected in Exhibit P-2, indicatesthat only minor injuries
would have been sustained had such an occurrence happened.
The essential issues were posed as a result of the testimony of Robert W. Pyles, Respondent's plant administrator,
whose testimony was considerably more detailed than that of
the inspector,, and who had the benefit of diagrams of the area
and equipment in question as reflected in Exhibits R-1 and
R-2. Mr. Pyles indicated that in normal conditions the crane
would not impact with the bumpers which are set in concrete
at either end of the track upon which the crane operates.
Significantly, he pointed out that the purpose of the shockabsorbing device on the bumper was primarily to protect electronic devices on the crane. His evidence indicated that the
retraction distance of the shock-absorbing device from the
plate and t; the front at which point impact would occur and
the point of maximlUTI contraction was 8 inches and that if such
an impact was received, the deflection of the operator's seat

2082

as a result of such impact would be only 1.65 inches as indicated by his computation. Mr. Pyles also indicated that the
shock-absorbing device would have been fabricated by a private
company upon the design and specifications of Respondent's,
based upon the characteristics of the crane, and that Respondent has at its operation other bumpers which do not have such
shock absorbers. This testimony was not rebutted in a substantial way and I fully credit Mr. Pyles' testimony in those
respects.
Mr. Pyles described the bumper which was in place on
July 25, 1978, at point "Y" on Exhibit R-2, .!.·~·, the place
where the inspector found a violation of the cited safety
standard and I likewise find, based upon this unrebutted
testimony, that there was a bumper in place at that, point,
albeit devoid of the shock-absorbing device.
There were no critical conflicts of testimony between
Petitioner's and Respondent's witnesses which require resolution, although I do find that the disparity between the
inspector's testimony that he did not observe any "twisting
effect on the crane" and the language of the citation which
indicates "portions of the bumper blocks were missing causing
a twisting effect when contacted by the crane", would represent a significant question of credibility were such a resolution to be necessary. The testimony of Mr. Pyles in the
respect noted is fully accepted and I must conclude therefrom
that a bumper was in place at the end of the rail in question
on July 25, 1978, within the meaning of 30 C.F.R. § 56.16-14 '!:._/
and that accordingly no violation occurred. It follows that
Citation No. 103822 must be vacated and it is so ordered.
Following rendition of the above bench decision, the parties conferred
and reached an amicable agreement settling the issues remaining in these
proceedings.
Upon motion of counsel for the Secretary (MSHA), Citation No. 111606
(Docket No. SE 79-126-M) and Citation Nos. 110011 and 110014 (Docket No.
SE 80-59-M) were withdrawn and ordered vacated at the hearing (Tr. 93, 94,
96). With respect to the four remaining citations, No. 1052.48 (Docket No.
SE 79-126-M), No. 110015 (Docket No. SE 80-38-M), No. 110012 (Docket No.
SE 80-57-M), and No. 110013 (Docket No. SE 80-64), as part of the settlement agreement, Respondent admitted the occurrence of the violations
alleged and the parties deferred the assessment of appropriate penalties
to the undersigned (Tr. 89, 90, 94).
After considering the parties' stipulations and argument (Tr. 90-102)
with respect to the statutory penalty assessment factors, penalties were
assessed as reflected in the summary below.

2/ 30 CFR 56.16-14 in pertinent part provides that "Operator-carrying
overhead cranes shall be provided with: (a) Bumpers at each end of each
rail. •• "

2083

SUMMARY OF DECISION
Citation/Order
Number

Original
Assessment

103822
105248
111606
3

$ 52
170
90
$312

Heard and ordered vacated
$150
Withdrawn by MSHA and vacated
$150

SE 80-38-M

110015

$160

$25

SE 80-57-M

110011
110012
110014
3

$ 84

84
150
$318

Withdrawn by MSHA and vacated
$84
\lithdrawn by MSHA and vacated
$84

$ 90
$880

$ 75
$334

Docket
Number
SE 79-126-M

SE 80-64

110013
8

Decision

ORDER
The Respondent is ORDERED to pay to the Secretary of Labor penalties in
the total sum of $334 within 30 days from the date of the issuance of this
decision.

~4~~?!! ~~t/f ·

Michael A. Lasher, Jr., Judge

Distribution:
Darryl A. Stewart, Esq., Assistant Solicitor, Office of the Solicitor,
U.S. Department of Labor, 801 Broadway, Room 280, Nashville, TN
37203 (Certified Mail)
Karl W. McGhee, Esq., and Robert A. O'Quinn, Esq., Ideal Basic
Industries, Inc., 409 Wachovia Bank Building, P.O. Drawer 59,
Wilmington, NC 28401 (Certified Mail)

2084

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),

Civil Penalty Proceeding
Petitioner

Docket No. HOPE 79-221-P
A/O No. 46-05643-03001

v.
Whitco No. 1 Mine
ALEXANDER BROTHERS, INC.,
Respondent
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, fo,r
Petitioner;
Donald D. Saxton, Esq., Wa~hington, Pennsylvania,
for Respondent.

Before:

Judge Stewart

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (MSHA), under section 109(a) of the Federal Coal Mine
Health and Safety Act of 1969, 30 u.s.c. § 801 et seq. (1970) (hereinafter
the Act),];/ to assess civil penalties against Alexander Brothers, Inc. At
];/

Section 109(a) of the Act reads in pertinent part as follows:
"(a)(l) The operator of a coal mine in which a violation occurs of a
mandatory health or safety standard or who violates any other provision of
this Act, except the provisions of title 4, shall be assessed a civil penalty by the Secretary under paragraph (3) of this subsection which penalty
shall not be more than $10,000 for each such violation. Each occurrence
of a violation of a mandatory health or safety standard may constitute a
separate offense. In determining the amount of the penalty, the Secretary
shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the operator charged in attempting to achieve
rapid compliance after notification of a violation.

*

*

*

*

2085

*

*

*

the hearing held on January 8, 1981, in Charleston, West Virginia, the parties agreed that the hearing would be limited to one contested issue-whether Respondent was subject to the Act.
After completing the presentation of their cases as to the jurisdictional issue, the parties proposed a settlement of the remaining issues.
The citations in this case and the settlement are as follows:
Number

Date

7-0012
7-0014
7-00lS
7-0016
7-0017
7-0018
7-0019
7-0020
7-0021
7-0022
7-0023

11/lS/77
11/lS/77
11/lS/77
11/lS/77
11/lS/77
11/lS/77
11/lS/77
11/lS/77
11/lS/77
11/lS/77
11/lS/77

30 C.F .R.
Standard

Assessment

77 .1707
77 .1103( d)
77 .sos
77 .sos
77.904
77 .sos
77.S04
77. S06
77 .S06
77 .sos
77 .S08
Total

$ 30
18
20
20
24
18
26
24
16
20
28
$244

Disposition
Settlement
$ 30

18
20
20
24
18
26
24
16
20
28
$244

In support of its motion to approve the settlement, Petitioner asserted,
in substance, as follows:
The assessment before me has no prior history of payments, so we have no prior history to show. We will so
stipulate.
We will stipulate that anything in the record that is
relevant to any of the criteria will, of course, be considered
by Your Honor, in determining and approving the settlement.

--------- --·-· - -·-·- -

fn. 1 (continued)
''(3) A civil penalty shall be assessed by the Secretary only after
the person charged with a violation under this Act has been given an opportunity for a public hearing and the Secretary has determined, by decision
incorporating his findings of fact therein, that a violation did occur,
and the amount of the penalty which is warranted, and incorporating, when
appropriate, an order therein requiring that the penalty be paid. Where
appropriate, the Secretary shall consolidate such hearings with other proceedings under section lOS of this title. Any hearing under this section
shall be of record and shall be subject to section SS4 of title S of the
United States Code."

*Section lOS,
* section *llO(i) and* the transfer
* provisions
*
*
of the Federal

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 ~ ~· (Supp. II 1978),
conferred jurisdiction over these proceedings to the Federal Mine Safety and
Health Review Commission.

2086

We would agree that the operator is a small operator.
The inspectors have testified that he always demonstrated
good faith in abating alleged violations and so, we would
agree that you can find "good faith" for each of them.
We agreed, at the beginning of the hearing, that he would
be able to pay the sum of two hundred and forty-four dollars
($244.00) without adverse effect on his ability to remain in
business. So, that leaves us with negligence and gravity.
Referring to the first one, Government's Exhibit No. 1
(Notice No. 6 RRW, Nov. 15, 1977), we feel taken into consideration would be the fact that the operator either didn't
know before or didn't believe that he was under the Act and
therefore, had not familiarized himself with such things as
what first-aid equipment he needed on there as required by
the regulations. Upon being informed, of course, he promptly
got it, so we would say that there is just ordinary negligence
there.
As to gravity, of course, once the equipment is needed,
it is very serious if it is not present. However,
Mr. Alexander has testified that his home was nearby and we
assume that he could get much of the equipment there, if he
needed it in a hurry.
The proposed assessment of that alleged violation is
thirty dollars ($30.00) which is the largest one for any of
the eleven that are in issue and it's the opinion of the
Solicitor, that considering the unique facts involved in
this case -- considering it did occur back in 1977 and inflation has changed matters somewhat -- all of these, I might
say were issued on November 15, 1977, so they are all old.
And therefo·re, we believe that it is in the best inte.rest of
the public that the settlement be approved.
Again, we have covered everything as to all of these
except negligence and gravity. This one (Notice No. 1 GLS,
Nov. 15, 1977) involves a citation alleging that the area
around the transformer was not kept free from grass and dry
weeds. There would be a danger of possible fire as a result
of this. Of course, the transformer must malfunction before
that would occur. And we feel that, although there is a
certain risk or hazard to the miners, that it is not too
great, because nobody ordinarily works close to the
transformer.
As to negligence, we would suggest an ordinary degree
of negligence. The proposed assessment for that is
eighteen dollars ($18.00), which ordinarily would be quite

2087

small and unacceptable but in view of the confusion as to
whether this is or is not under the Act, we feel that we are
justified in proposing such a settlement.
We have four 77.505 alleged violations. The first one,
Government Exhibit No. 5 (N-0tice No. 2 GLS, Nov. 15, 1977),
is that the power cables entering the fuse box did not have
the required fittings. The insulation around the power cable
was adequate, so the danger there would be that possible
vibration could impair the insulation. We would say that
· there is a potential hazard, but no present hazard until the
cable was penetrated. For that one, the proposed penalty is
twenty dollars ($20.00) and we consider that to be reasonable.
The next one, which is Government's Exhibit No. 7 (Notice
No. 3 GLS, Nov. 15, 1977), is another 77.505, because the
cable entering the breaker compartment did not have the proper
fitting. My statement would be the same to that, with a proposed penalty of twenty dollars ($20.00).
The next proposed one is Government No. 9 (Notice No. 4
GLS, Nov. 15, 1977), which concerns a 77.904 violation that
the circuit breaker located in the tipple did not show what
circuits they controlled. For that one, there was a proposed
penalty of twenty-four dollars ($24.00). The circuit breaker
should be labeled and so, we consider that there is a hazard
to the miners by not having it so. The circuit breaker, of
course, is back-up protection and that would lessen the
gravity to some extent.
We still consider that to be serious and consider it to
be ordinary negligence, in view of the fact that the operator
was unaware that he was under the provisions of the Act.
The next one, Government's Exhibit No. 11 (Notice No. 5
GLS, Nov. 15, 1977), is 30 CFR 77.505. Because the power
cable on a transformer did not have the proper fittings, my
statement would be the same and the proposed assessment for
this one is eighteen dollars ($18.00) instead of the twenty
(20) as it was previously, but we feel it is reasonable, in
view of the facts.
The next one is Government's Exhibit No. 13 (Notice No. 6
GLS, Nov. 15, 1977). It is a 30 CFR 77.504 violation and the
proposed penalty is twenty-six dollars ($26.00). It is for a
splice which was not adequately insulated.
Of course, whether a splice is insulated or not or adequately insulated and calls for a judgment call, however,
Mr. Smith is an electrical inspector, and I think, he has

2088

sufficient experience that he would spot it, so we do consider there was a hazard there, and so it is serious and is
a result of ordinary negligence.
The next one, Government's Proposed Exhibit No. 15
(Notice No. 7 GLS, Nov. 15, 1977), is an alleged violation
of 30 CFR 77.506, because the circuit protection was not
provided with number eight cable, supplying power to a water
pump. There is a proposed penalty of twenty-four dollars
($24.00) for that. We consider that, in order for there to
be a hazard there, there must be a malfunction but we do
consider it serious and the result of ordinary negligence.
Considering the next one, Government's Exhibit No. 17
(Notice No. 8 GLS, Nov. 15, 1977), the proposed penalty is
sixteen dollars ($16.00) and it is an alleged violation of
30 CFR 77.506, because short circuit overload protection was
not provided for a cable supplying power to a pump. What we
said on the previous one would be true on this one, also,
except that, again, here you'd have to have a malfunction
before you would have a hazard, and so, we consider sixteen
dollars ($16.00) is acceptable and in view of the reasons we
have stated, although it is very low.
The next one, Government's Exhibit No. 19 (Notice No. 9
GLS, Nov. 15, 1977) is a violation of 30 CFR 77.505, because
of a power cable entering the compartment of a dryer was not
with the proper fitting. What we've said previously would be
true with that. We have proposed the same penalty of twenty
dollars ($20.00).
The final one, Gqvernment's Exhibit No. 21 (Notice No. 10
GLS, Nov. 15, 1977) is a 77.508, because lightning arresters
were not provided for the exposed power conductors and there
is a proposed penalty of twenty-eight dollars ($28.00) for
that alleged violation. We consider that it is serious since
it was high and it is a result of ordinary negligence.
At the conclusion of the hearing, the settlement agreement was approved,
contingent on resolution of the jurisdictional issue. In its effort to establif?h that Respondent's operation was a "coal mine" within the meaning of the
Act, MSHA called four witnesses: Raymond Webb, former MSHA inspector now
employed by W and C Coal Company; Conrad Spangler, MSHA subdistrict manager;
John McGann, MSHA inspector; and Frank Alexander, president, Alexander
Brothers, Inc. Frank Alexander was called as a witness by Respondent.
Jurisdiction
The refuse pile from which Respondent took its raw material was comprised of the waste material which the Pond Creek Coal Company (later part

2089

of the Island Creek Coal Company) disposed of in the course of mining at
i·ts Bartley No. 1 Underground Coal Mine from the 1930 's until 196 7. The
Bartley No. 1 Mine had been sealed prior to the initiation of Respondent's
operation.
After the cessation of operations at the Bartley No. 1 Mine, the
property on which the refuse pile was located was leased from its owner,
Mr. Henry Warden, by the Whitco and Recco Coal Corporation (Recco). Recco
engaged in the reclamation of coal from the refuse pile, but did not do so
profitably. Respondent purchased Recco's equipment 2/ and acquired rights
to the lease in late 1972 or early 1973.
The refuse pile from which Respondent took its raw material covered a
large area on the side of a mountain. It consisted of coarse and fine coal,
rock dust, garbage, rock, timbers, wood, steel, dirt, tin cans, bottles,
metal, and general debris.
Respondent's operation was divided into two "phases." 3/ In the first
phase, waste material was taken from the refuse pile, loaded into trucks and
transported to the site at which the initial, rough screening processes were
carried out. At the site, the material was dumped into a bin and then
subjected to a number of separation and sizing processes. The phase 1
processes included the following operations: The waste material was separated by size and the larger size material was passed through a hammer mill.
A magnet was used to remove scrap metal and "pickers" removed rock and other
obvious waste from the material. When enough material had been accumulated
for further processing, the end product of the phase 1 processing was loaded
into trucks and hauled to the cleaning plant where phase 2 processing was
carried out.
At the cleaning plant, the material was loaded into a bin; it was then
fed from the bin by a belt conveyor into a tank where it was fixed with water.
After the material passed into a "jig" where non-coal was removed. The larger
pieces were again separated out, passed through a crusher and broken down to
1 inch in size. The crushed coarse was again screened to remove larger pieces.
These larger pieces were passed to Respondent's heavy media washer for further
ash-control treatment. The fine material was separated into coal and non-coal
by·a cyclone-washing process. The cleaned coarse and fine coal was remixed
and loaded into railroad cars for shipment.
The percentage of coal to waste in the material taken by Respondent from
the refuse pile varied. At the time of the hearing, Frank Alexander estimated
2/

Respondent never used the Recco equipment in its operation.
At the hearing, Frank Alexander referred to a third phase--a cyclone separator. The use of the cylone separation process was included by Mr. Alexander
in his description of phase 2 of his operation. Subesequent testimony established that cylone separators were also considered to be part of phase 3.
Respondent's description of its operation in its posthearing brief includes
reference to the use of a cyclone in phase 2.

3/

2090

that the percentage of coal was 20 to 25 percent. In traditional preparation
facilities, the raw material processed is run-of-mine and, therefore, contains
a much higher percentage of coal than did the refuse processed in the Alexander
Brothers' operation. As a consequence, traditional facilities do not resort
to some of the techniques employed by Alexander Brothers for separation of
coal and waste, however, in both types of operation, the preparation process
involved "breaking, crushing, sizing, cleaning, washing, drying, mixing,
storing, and loading" of coal. Despite the differences in the volume of
production, the composition of the raw material, and the percentage of coal
in the raw material fed to the plants, preparation facilities associated with
ordinary large mines do substantially what Respondent did. Such preparation
plants operated by the owner of the mine have consistently been inspected by
MSHA and its predecessors, the Bureau of Mines and the Mining Enforcement and
Safety Administration (hereinafter collectively referred to as MSHA).
Section 4 of the Act designates those mines subject thereto as follows:
"Each coal mine, the products of which enter commerce, or the operations or
products of which affect commerce, and each operator of such mine, and every
miner in such mine shall be subject to the provisions of this Act."
The parties stipulated that the products of Respondent's operation
entered commerce. The determinative issue, therefore, is whether
Respondent's operation might be categorized as a "coal mine" within the
meaning of the Act, thereby subjecting Respondent to the coverage of the
Act.
The term "coal mine" was defined in section 3(h) as follows:
"[C]oal mine" means an area of land and all structures,
facilities, machinery, tools, equipment, shafts, slopes,
tunnels, excavations, and other property, real or personal,
placed upon, under, or above the surface of such land by any
person, used in, or to be used in, or resulting from, the work
of extracting in such area bituminous coal, lignite, or
anthracite from its natural deposits in the earth by any means
or method, and the work of preparing the coal so extracted,
and includes custom coal preparation facilities. [Emphasis
added.]
At the outset, it is to be noted that the Act was a remedial and safety
statute, the primary purpose of which was to protect the health and safety
of the Nation's coal miners. 4/ It is proper to construe the Act liberally
so as to most fully effectuate the purposes enunciated by Congress. 1./
See section 2(a) of the Act, 30 u.s.c. § 801.
See Magma Copper Company v. Secretary of Labor,
citing Whirlpool Corporation v. Marshall, 445 U.S. 1, 13, 100 S. Ct. 883,
891, 63 L.Ed.2d 154 (1980).
4/

S/

20Hl

With this premise in mind, three of the phrases of section 3(h) must be
examined to determine whether Respondent's operation was a "coal mine" within
the meaning of the Act. The argument could be made that jurisdiction exists
because (1) the land and property which was the basis of Respondent's operation resulted from earlier coal mining and retained the status of a coal mine,
(2) that Respondent performed "the work of preparing the coal so extracted,"
or (3) that Respondent operated a "custom coal preparation facility."
The refuse pile from which Respondent obtained its raw material was an
area of land or property "resulting from" the work of extracting coal from
its natural deposit in the earth. It remained a coal mine within the meaning of the Act despite its having been abandoned by the original operator,
Pond Creek Coal Company. An operator remains responsible for such abandoned
refuse piles and must comply with the requirements of the Act, including the
extinguishing of fires in the pile. Kessler Coals, Inc. v. Mining EnforceMent and Safety Administration and United Mine -workersC>f America, Docket
No. HOPE 76-235 (March 18, 1975). In that case the site had been abandoned
as a depository for the by-products from mining; Kessler Coals, Inc. did
not dispose of debris from its preparation plant on the refuse pile which
had been created by the predecessor, Glogora Coal Company.
Thus, at least so~e of the property on which Alexander Brothers operated retained the status of a "coal mine" under the Act. While Respondent's
operation might be held subject to the Act on this a basis alone, it has
been clearly enunciated in cases, which will be discussed later, by a U.S.
Court of Appeals and a U.S. District Court that such operations are subject
to the Act on a different theory. Respondent's operation was a "coal mine",
subject to the Act, because Respondent engaged in the work of preparing coal.
In construing the phrase "and the work of preparing the coal so extracted,"
the pivotal question herein is whether coverage of the 1969 Act may extend
to a person !j_/ en3aged in the preparation of coal which was previously
extracted from its natural deposit in the earth by a different person.
While recourse to legislative history of the Act is unhelpful for the
most part, ]_/ the intent of Congress with respect to section 3(h) can be
6/ Section 3(f) of the Act provfdes--that "'person' means any individual,
partnership, association, firm, subsidiary of a corporation, or other
organizat..i.on."
7/ The legislative history does not contain an express explanation of the
congressional intent in enacting sections 3(h) or 3(i).
In its report on the 1977 Act, the Senate Committee on Human Resources
stated the following re~arding the amendment to section 3(h):
"(The 1977 Act) enlarges the definition of "mine" in section 3(h) to
include those mines previously covered by the Federal Metal and Non-Metallic,
Mine Safety Act. This definition is also expended [sic] to include facilities
for the preparation of coal, except that the Secretary is to give due consideration to the convenience of giving one Assistant Secretary all authority

2092

gleaned from a reading of the language of the section in light of the purposes of the Act. On the surface, the language of section 3(h) is broad
enough to encompass persons who engage in the work of preparing coal previously extracted from its natural deposit by another person. Furthermore,
nowhere in the Act is there any indication that Congress intended to exclude
such persons from the coverage of the Act.
Respondent clearly engaged in the "work of preparing the coal" as
defined in the Act. Donovan v. Tacoma Fuel Company, Civil Action No.
77-0104D (D.W.
June 29, 1981). :§._/ The "work of preparing the coal"
is defined in section 3(i) as follows: "'[W]ork of preparing the coal'
means the breaking, crushing, sizing, cleaning, washing, drying, mixing,
storing, and loading of bituminous coal, lignite, or anthracite, and such
other work of preparing such coal as is usually done by the OJ?erator of the
coal mine." Each of these processes was carried out in some fashion in
Respondent's operation. The concluding phrase of section 3(i) does not
restrict "the work of preparing the coal" to processing undertaken by the
person who extracted the coal from its natural deposit in the earth. This
broad, descriptive phrase is a clear expression of congressional intent that
the processes specifically listed in the definition are not exclusive. In so
finding, Respondent's argument that section 3( i) restricts the scope of "the
work of preparing the coal" to persons who extract coal from its natural
deposit is expressly rejected.

Va.,

There is no basis for Respondent's argument that it processed refuse
rather than coal. Respondent's raw material was comprised of up to 25 percent coal. The fact that run-of-mine is of a much higher percentage of coal
fn. 7 (continued)
with respect to health and safety of miners employed at one physical establishment." Report of the Senate Committee on Human Resources No. 95-181,
May 16, 1977, p. 59.
Respondent's argument that this passage was an expression by Congress
of its understanding that the 1969 Act did not extend to facilities for the
preparation of coal where such facilities were not located "at the site of
a coal mine" is without foundation. The passage addresses the expansion of
MSHA's jurisdiction over coal preparation facilities under the 1977 Act but
was not intended to convey and does not convey any clue to congressional
understanding of the scope of the jurisdiction conveyed to MSHA by the 1969
Act. Rather, the passage addresses the vehicle for intra-agency resolution
of the problems presented by partially coextensive statutes.
:§._/ The court in Tacoma found that the crushing and mixing operation carried
out by Tacoma Fuel Company was the "work of preparing the coal" as defined
in section 3(h) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., despite the fact that Tacoma Fuel Company did not engage in
the extraction of coal from the ground but merely purchased coal from various
miners of coal f.o.b. its plant. The definition of the "work of preparing
the coal" contained in the 1977 Act is identical to that contained in the
1969 Act.

2093

is of no consequence. The purpose of Respondent's operation was the separation of the marketable coal from previously deposited waste. The useless
waste material was then discarded. Only in the most roundabout sense could
it be said that it was the refuse rather than coal that was prepared. It
was clearly coal that was prepared throughout Respondent's operation.
A memorandum from the Assistant Solicitor of MSHA's predecessor dated
March 31, 1972 (the Geisler Memorandum), improperly interpreted the Act by
expressing the opinion that the Geisler Coal Company which prepared coal
purchased from other operators was not subject to the Act. This interpretation was subsequently corrected when in October, 1976, the Assistant
Solicitor issued a memorandum (hereinafter, the 1976 memorandum) expressly
rescinding that conclusion of the Geisler Memorandum. In the 1976 memorandum, the Assistant Solicitor stated that he was of the opinion that the
person who performs the "work of preparing the coal so extracted" need not
be the same person who "extracts the coal from its natural deposits in the
earth." Although such policy memoranda by MSHA and its predecessor are not
binding on this Commission or the courts, a U.S. District Court, in Tacoma,
further discussed below, approved the view of the Assistant Solicitor
expressed in the 1976 memorandum. 2_/
It has recently been held that operations similar to those of
Respondent are subject to the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (hereinafter, the 1977 Act). In pertinent part, a
coal mine is defined in that Act to be "an area of land * * * or other
property * * * used in, or to be used in, or resulting from, * * * the
work of preparing coal." 10/ As noted above in footnote~/, the section
9/

Petitioner acknowledged that such policy memoranda did not have the
and effect of a legal decision." The 1976 memorandum was followed
by MSHA even though Conrad Spangler, an MSHA subdistrict manager, testified
that, without regard to the 1976 memorandum, it was his opinion that the
Alexander Brothers' operation was not a coal mine. Mr. Spangler did not
explain the basis for his opinion but he believed that the processing of
refuse piles was a valuable cleanup operation. It is clear that the
administrative law judge is not bound by the opinion of MSHA personnel as
to matters of law, especially when they were actually following the 1976
memorandum by inspecting reclamation operations and issuing citations for
violations of the Act.
10/ Section 3(h) of the 1977 Act reads as follows:
"(h)( 1) "coal or other mine" means (A) an area of land from which
minerals are extracted in nonliquid form or, if in liquid form, are
extracted with workers underground, (B) private ways and roads appurtenant
to such area, and (C) lands, excavations, underground passageways, shafts,
slopes, tunnels and workings, structures, facilities, equipment, machines,
tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or
resulting from, the work of extracting such minerals from their natural
deposits in nonliquid form, or if in liquid form, with workers underground,
or used in, or to be used in, the milling of such minerals, or the work of
preparing coal or other minerals, and includes custom coal preparation
11force

2094

3(i) definition of "the work of preparing the coal" is the same under both
the 1969 Act and the 1977 Act. Two relevant cases have upheld the authority of MSHA to inspect coal preparation facilities even though the person
processing the coal is not the same person who extracted the coal from its
natural deposit sometime in the past. In Marshall v. Stoudt's Ferry
Preparation Company, 602 F.2d 589 (3d Cir. 1979), cert. denied, 444 U.S.
1015 (1980) (hereinafter, Stoudt's Ferry), it was held that the word
"mine" 11/ as us·ed in the 1977 Act included the Stoudt Ferry Preparation
Company'$ preparation plant which separated a low-grade fuel from sand and
gravel dredged from a riverbed. The court found that "the work of preparing coal * * * is included within the 1977 Act whether or not extraction is also being performed by the operator." Id. at 592.
In Tacoma, the court found that "the work of preparing coal is, by
itself, sufficient to place Tacoma Fuel Company's operation within the section 3(h) definition of a 'coal mine'." Tacoma Fuel Company neither owned
nor operated mines. The company purchased coal from various miners of coal
f.o.b. its plant. It then mixed and crushed the coal and sold it to various
customers. The jurisdiction asserted by MSHA in following its 1976 memorandum was expressly upheld.
With regard to the relevant facts upon which the finding of jurisdiction rests, the instant case cannot be distinguished from Stoudt's Ferry and
Tacoma. Respondent's operation constitutes the work of preparing coal and,
as such, would be subject to the provisions of the 1977 Act even though
Respondent does not extract coal from its natural deposit in the earth.
fn. 10 (continued)
facilities. In making a determination of what constitutes mineral milling
for purposes of this Act, the Secretary shall give due consideration to
the convenience of administration resulting from the delegation to one
Assistant Secretary of all authority with respect to the health and safety
of miners employed at one physical establishment;
"(2) For purposes of titles II, III, nd IV, "coal mine" means an area
of land and all structures, facilities, machinery, tools, equipment, shafts,
slopes, tunnels, excavations, and other property, real or personal, placed
upon, under, or above the surface of such land by any person used in, or to
be used in, or resulting from, the work of extracting in such area bituminous
coal, lignite, or anthracite from its natural deposits in the earth by any
means or method, and the work of preparing the coal so extracted, and
includes custom coal preparation facilities; * * *·"
11/ The court in Stoudt's Ferry noted that "[a]lthough it might seem
incongruous to apply the label "mine" to the kind of plant operated by
Stoudt's Ferry the statute makes clear that the concept that was to be
conveyed by the word is much more encompassing than the usual meanings
attributed to it--the word means what the statute says it means."
Stoudt's Ferry at p. 592. The point is equally well taken in"the
instant case.

2095

There is no difference material herein between the language used in the
1969 Act relating to coal preparation and that used in the 1977 Act. 12/ The
definition in the 1969 Act includes "the work of extracting * * * coal* * *
from its natural deposits in the earth by any means or method, and the work
of preparing the coal so extracted." The definition in the 1977 Act includes
"the work of extracting (coal) from (its) natural deposits * * * or the work
of preparing coal." 13/ The breadth of the language in thel969 Act indicates that such language was intended to be descriptive rather than limiting.
In drafting and adopting section 3(h) of the 1969 Act, Congress left no doubt
that the Act was to apply to the entire coal mining industry. There is
nothing in section 3(h) which would permit the exclusion of Respondent from
the coverage of the Act. That is, there is no language therein which would
permit the categorical exclusion of a person who does not extract the coal
from its natural deposit but performs the work of preparing coal; nor is
there language which would categorically exclude a person performing the work
of preparing coal unless such preparation was performed contemporaneously
with the extraction of the coal from its natural deposits.
12/ A case can be made that Congress intended that even the specifically
enumerated impoundments, retention dams, and tailings ponds were covered by
this definition of "mine" in the Coal Act. This legislative history of the
1977 Act states:
"Title I of S. 717 contains amendments to the definitions in the Coal
Act, which reflect both the broader jurisdiction of that Act, and makes
refinements which nearly seven years of experience with the administration
and enforcement of the Act have indicated are necessary.
"Thus, for example, the definition of "mine" is clarified to include the
areas, both underground and on the surface, from which minerals are extracted
(except minerals extracted in liquid form underground), and also, all private
roads and areas appurtenant thereto. Also included in the definition of "mine"
are lands, excavations, shafts, slopes, and other property, including impoundments, retention dams, and tailings ponds. These latter were not specifically
enumerated in the definition of mine under the Coal Act. It has always been
the Committee's express intention that these facilities be included in the
definition of mine and subject to regulation under the Act, and the Committee
here expressly enumerates these facilities within the definition of mine in
order to clarify its intent. The collapse of an unstable dam at Buffalo Creek,
West Virginia, in February of 1972 resulted in a large number of deaths, and
untold hardship to downstream residents, and the Committee is greatly concerned that at that time, the scope of the authority of the Bureau of Mines
to regulate such structures under the Coal Act was questioned. Finally, the
structures on the surface or underground, which are used or are to be used
in or resulting from the preparation of the extracted minerals are included
in the definition of "mine.'"' Senate Report No. 95-181.
13/ In both Acts, the phrases are clearly stated in the alternative. In
context, no material distinction attaches to the use of the words "and" in
the 1969 Act and "or" in the 1977 Act.

2096

In its brief, Petitioner asserted that Respondent's operation constituted a "custom coal preparation facility" within the meaning of the Act
and argued that the pertinent language of section 3(h) was properly interpreted by MSHA in its 1976 memorandtnn in which the Assistant Solicitor
stated:
We are of the view that Congress did not intend the word
"custom" to be used in a restrictive sense but in a broad
sense. Thus, a coal preparation plant operator who pursues
a common course of action or practice of preparing coal to
meet the customary requirements of the electric utility
market or the coal coking market, directly or indirectly,
without a "personal order or specifcation" but which meets
the customary requirements or specifications of the purchasers and users of the coal, also falls within the term
"custom coal preparation plant." [Emphasis added.]
In section 3(h), "custom" is used as an adjective modifying the phrase
"custom coal preparation facilities." It is accepted that Congress intended
"custom" to be interpreted in a broad sense but the interpretation urged by
MSHA is at odds with the traditional definition of the word. There is no
need herein to resolve the meaning of "custom" or to determine the scope of
the phrase "custom coal preparation facilities" given the alternate basis
for jurisdiction enunciated above.
Respondent also argued that section 3(h) of the 1969 Act was void for
vagueness because it was not "definite and certain enough to enable every
person, by reading the law, to know what his rights and obligations are and
how the law will operate when put into execution * * * and it did not
"provide clearly ascertainable and well defined standards to guide the
ministerial officers charged by law with its implementation and administration" (citing Weissinger v. Boswell, 330 F. Supp. 615 (M.D. Ala. 1971)).
The due process clause of the Fifth Admendment to the United States
Consitution requir~s that a statute be of a reasonable degree of certainty
and definiteness. A statute which is non-criminal and does not impinge upon
a fundamental right is unconstitutionally vague only if it is written so
that "men of como.on intelligence must necessarily guess at its meaning."
See 16A Am. Jur. 2d Consitutional Law § 818 n. 20. Section 3(h) passes
constitutional muster under this standard. Respondent's perplexity is
undoubtedly due to the broadness of the Act; not its vagueness. It is
clear that Respondent's operation is subject to the Act.
Respondent also argued that the notices and orders at issue herein are
"void and of no effect and should be rescinded" because MSHA violated its
internal procedures by failing to give Alexander notice and a warning that
it had reconsidered its position and changed its opinion with respect to
inspecting Respondent's operation. The internal procedures to which
Respondent referred were instructions contained a memorandum dated

2097

December 1, 1976, from Petitioner's Assistant Solicitor-Regulations and
Procedures-to MSHA District Manager's requiring notification be given to
operators prior to the first inspection conducted pursuant to the 1976
memorandum. Respondent admitted in its final posthearing brief that it
had received such notice on October 12, 1977. At that time, a notice of
violation was issued to Respondent. No opinion is expressed as to the
validity of the notice of violation issued on October 12, 1977. The notices
of violation at issue herein were dated November 15, 1977, more than a month
after MSHA' s first .exercise of jurisdiction. At least with regard to the
notices at issue herein, MSHA complied with the internal procedures required
of its personnel in the memorandum dated December 1, 1976.
Proposed findings of fact and conclusions of law in the briefs filed by
the parties which are immaterial to the issues presented or inconsistent with
this decision are rejected.
ORDER
The approved settlement negotiated by the parties in the above-captioned
proceeding is AFFIRMED.
Respondent is ORDERED to pay the amount of $244 within 30 days of the
date of this order.

Forrest E. Stewart
Administrative Law Judge
Distribution:
John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Donald D. Saxton, Esq., 63 South Main Street, Washington, PA 15301
(Certified Mail)

2098

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

SEP 3 1981

Civil Penalty Proceeding

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

Docket No. YORK 81-8-M
A/O No. 30-00006-05012

v.

Ravena Quarry & Plant

ATLAi~TIC

CEMENT· COMPANY, INC.,
Respondent
DECISION

The above-captioned case is a civil penalty proceeding pursuant to
Section 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
801 et~., (hereinafter, the Act). The case was submitted by the parties
for decision on a stipulated record.
The following facts were stipulated by the parties regarding the
citation at issue herein, Citation No. 204374:
Respondent, Atlantic Cement Co., operates a quarry and
cement manufacturing facility in Ravena, New York. At the
times relevant herein the size of the facility for the
purposes of the act were slightly over seven hundred thousand
man hours per year. On August 6, 1980, MSHA inspector
Hopkins, on a routine inspection of Respondent's facility,
issued a citation to Respondent for a violation of §56.15-5
because Hopkins observed an employee of Respondent working
on top of the number two kiln and descending the side of the
kiln to a ladder without the use of a safety belt and line.
The top of the kiln was approximately twenty-two feet from
the floor. A safety belt and line had been provided but
it was not being worn by the employee. The department in
which the employee was working holds, and at that time
held, short safety meetings at the start and end of each
shift where the use of safety belts and lines was repeatedly
discussed. Because of said safety meetings, the mine
inspector concluded the Respondent could not have known or
predicted that the employee would not have been wearing a
safety belt. The top of the kiln is a fairly smooth surface
and a person would have to slip, fall or trip before an
accident could occur. At the time of the alleged violation
the kiln was wet due to a slight rain shower. Employees
are rarely on top of the kiln.
The citation was terminated by Respondent and the
inspector explaining to the employee the importance of
wearing a safety belt and line. Respondent gave the

2099

employee a three-day disciplinary suspension, which was
subsequently reduced to one day. Respondent has a well
established past practice of enforcing its safety rules
through disciplinary measures.
Citation No. 204374 was issued pursuant to Section 104(a) of the Act
by Inspector Hopkins upon his observation of the following condition or
practice:
An employee was observed working on top of #2 Kiln
and descended the side of the kiln to a ladder, which
gave him access to the floor. The top of the kiln was
elevated approx(imately) (22) twenty-two feet from the
floor. A safety belt and line (were) provided but not
being worn by the workman.
The citation was terminated within 15 minutes after the "hazard of
not wearing a safety belt and line was explained to the employer."
The inspector cited 30 CFR §56.15-5 which requires in pertinent part
that "Safety belts and lines shall be worn when men work where there is a
danger of falling." The parties' stipulation of facts clearly establishes
the occurrence of a violation of the mandatory standard as alleged. The
employee failed to wear safety belt or lines while working on the curved
surface of a kiln, 22 feet "from the floor" -- a location where there was
a danger of falling.
Respondent argues that it cannot be held to have violated section 56.15-5
because the failure of the employee to wear a safety belt and line was in
violation of the company's regularly enforced safety rules. Respondent
contended that the imposition on it of liability for the employee's failure
was improper where the safety equipment had been provided, the employee had
been instructed regularly in the need to wear the equipment, the employee
had acted in direct contravention of Respondent's rules without Respondent's
knowledge, and Respondent regularly enforced its safety rules through the
use of disciplinary measures. Respondent contended, in short, that it had
done everything within its power to provide for the safety of its employees
in this regard.
The question whether an operator can be held liable for a violation of
a mandatory standard regardless of fault has already been answered in the
affirmative by the Commission. Secretary of Labor v. El Paso Rock Quarries,
Inc., 2 MSHC 1132 (1981) (hereinafter, El Paso). In El Paso, the
administrative law judge had vacated a citation alleging violation of 30
CFR §56.9-87 (failure to provide automatic reverse signal alarm on heavy
duty mobile equipment) because the Secretary of Labor failed to establish
that the mine operator knew or should have known of the condition. The
Commission reversed, holding that, unless the standard itself so requires,
an operator's negligence has no bea~ing on the issue of whether a violation

2100

occurred. The Commission noted that it had previously rendered this holding
in U.S. Steel Corporation v •. Secretary of Labor, 1 MSCH 2151 (1979) (hereinafter, U.S. Steel) with respect to the Federal Coal Mine Health and Safety
Act of 1969, 30 U.S.C. §801 et~ (1976) (amended 1977). The factual
situation in U.S. Steel is closely analogous to the one at hand. Notices of
violation were issued to U.S. Steel on two separate occasions after Federal
inspectors observed a total of 3 employees of U.S. Steel neither wearing
nor carrying a self-rescue device as required by §75.1714-2(a). U.S. Steel
advanced the argument that it had complied with the standard by "establishing
a program designed to assure that self-rescue devices are available to all
employees, by training employees in the use of the devices, and by enforcing
its program with due diligence." The Commission rejected the argument on
the grounds that an operator is liable for violations without regard to
fault.
It is found, therefore, that Respondent may be held liable in the
instant case as a matter of law for the failure of its employees to wear
safety belt and line where there was a danger of falling.
In issuing citation no. 204374, Inspector Hopkins found that the
violation was "significant and substantial" within the meaning of the Act.
Respondent contends that this finding is improper in light of the test
enunciated by the Commission in Secretary of Labor v. Cement Division,
National Gypsum Company, 3 FMSHC 822, (1981) (hereinafter, National Gypsum)
The Commission held therein that a violation is of such a nature as could
significantly and substantially contribute to the cause and effect of a
mine,safety or health hazard if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.
The Commission stated further that: "(A) violation 'significantly and substantially' contributes to the cause and effect of a hazard if the violation
could be a major cause of a danger to safety and health • . . • Our interpretation of the significant and substantial language as applying to violations
where there exists a reasonable likelihood of an injury or illness of a
reasonably serious nature occurs falls between these two extremes -- mere
existence of a violation, and existence of an imminent danger." It was
Respondent's contention that the violation herein did not "present a
reasonable likelihood of causing an injury or illness which will be of a
reasonably serious nature."
Respondent asserted that the inspector found that the occurrence of an
accident was improbable "because the surf ace on which the employee was
working was smooth and slightly rounded." This assertion is not supported
by the record. The alleged finding by the inspector was not included in
the stipulation by the parties nor was it in the text of the citation which
charged a significant and substantial violation. The stipulated record
establishes that the violation was significant and substantial. Even if
·it had been established in the record that MSHA's proposed assessment,
results of initial review, or the background material used in the preparation of those documents used the word "improbable" in referring to the
likelihood of occurrence of an accident, said word would not be determinative

2101

of the issue in this proceeding. Hearings before the Commission are de ~·
The conclusions of the inspector or those of Petitioner's Office of Assessments
are not binding herein.
It is found that, on the facts of this case, there existed a reasonable
likelihood that a fall resulting in injury would occur because of the failure
to wear belt and line. As is readily apparent from the photographs of the
kiln, designated exhibits "A" and "B", the kiln at its highest point was
22 feet above the "floor" and curved downward at an increasing contour. The
kiln was exposed.· Its surface was fairly smooth and slightly wet. Each of
these factors increased the likelihood that an accident and injury would
occur.
Respondent argued that an injury expected to result in lost work days
or restricted duty could not be considered of a reasonably serious nature.
Again this argument is rejected since the allegations are not supported by
the record. Even a fall on the smooth wet surface of the kiln could cause
serious injury. A fall of 22 feet under the conditions established by the
record would very likely result in an injury of such magnitude as to be
clearly one of a reasonable serious nature.
Respondent's argument that the failure to wear a safety belt and line
could not be the cause of an injury is completely meritless. The failure
to wear belt and line increased the likelihood that the injury suffered as
a result of a fall would be serious. Said failure could be a major cause
of an injury suffered in a fall.
In view of the above, the violation is found to have been of such a
nature as could significantly and substantially contribute to the cause
and effect of a mine safety hazard.
Assessment:
Section llO(a) of the Act requires that the operator of a mine in
which a violation occurs shall be assessed a civil penalty. Findings of
fact pertinent to each of the six statutory criteria follow.
The gravity of the violation is determined to be moderate. As noted
above in the discussion regarding the ruling that the inspector properly
found the violation to be significant and substantial, the surface of the
kiln was curved, fairly smooth and slightly wet. If the employee had
fallen, he undoubtably would have suffered serious injury. Even though a
serious injury would have occurred, the overall gravity of the situation
was reduced to moderate because employees rarely had occasion to be on top
of the kiln and the violation was an instance of isolated misconduct on
the part of Respondent's employee.
The employee hqd been provided with belt and line, and had been
instructed to use them. Respondent had no knowledge, actual or constructive,
of the employee's failure to use the belt and line. It is found that
Respondent was not negligent.

2102

The violation was abated innnediately. The employee was reinstructed
on the need to use belt and line. He was also given a suspension.
Slightly over 700,000 man hours per year were worked at the Ravena
Quarry and Plant. Respondent had a good history of prior violations. In
the absence of evidence to the contrary, it is found that the penalty
assessed herein will not adversely a~fect Respondent's ability to remain
in business.
In view of the above, Respondent is assessed a penalty of $100.00.
ORDER
It is ORDERED that Respondent pay the sum of $100,00 within 30 days of
the date of this decision.

Forrest E. Stewart
Administrative Law Judge
Distribution:
Jithender Rao, Esq., Office of the Solicitor, U.S. Department of Labor,
1515 Broadway, Room 3555, New York, NY 10036 (Certified Mail)
Richard K. Muser, Esq., Clifton, Budd, Burke & DeMaria, 420 Lexington
Avenue, New York, NY 10170 (Certified Mail)

2103

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

SEP 9 1981
JAMES L. REITER,

Complaint of Discharge
Complainant
Docket No. PENN 80-171-DM

v.

NEW JERSEY ZINC COMPANY,
Respondent
DECISION
Appearances:

James L. Reiter, Summitt Hills, Pennsylvania, pro se at the
hearing; and Charles W. Elliott, Esq., Thomas and Hair,
Allentown, Pennsylvania on the Brief for Complainant.
Robert W. Frantz, Esq., and Brian C. Murchison, Esq., Hamel,
Park, McCabe & Sanders, Washington, D.C., for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This proceeding was commenced by James L. Reiter (hereinafter
"Complainant") against New Jersey Zinc Company (hereinafter "New Jersey Zinc")
by an allegation that Complainant was discharged from his employment at
New Jersey Zinc on October 1, 1979, because of activity protected under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(c) (hereinafter "the Act").
On November 13, 1979, Complainant filed a
discrimination complaint with the Secretary of Labor, Mine Safety and Health
Administration (hereinafter "MSHA"). On January 25, 1980, MSHA notified
Complainant that it determined that no violation of section 105(c) had
occurred but that Complainant had 30 days to file his own action with the
Federal Mine Safety and Health Review Commission (hereinafter "the
Commission"). This action was filed on February 15, 1980. Complainant was
represented by counsel from September 24, 1980 until May 11, 1981, the day
prior to the date of the hearing. On May 11, 1981, Complainant discharged
his counsel and elected to represent himself at the hearing. After the hearing, he again retained counsel to prepare his brief.
Upon completion of prehearing requirements, a hearing was held in
Philadelphia, Pennsylvania on May 12-13, 1981. At the hearing, testimony was
received from the following witnesses: Gerald L. Beam, Michael Trobetsky,
Wilson G. Dunlap, Jr., James L. Reiter, Charles W. McNeal, William Smith,
Kenneth R. Cox, Donald Habersberger, Milton Gould, Steven Trimper, and Walter
Toepfer. After the hearing, both parties filed briefs in support of their
positions.

2104

OBJECTIONS TO THE TRANSCRIPT
On August 13, 1981, counsel for New Jersey Zinc raised a content.ion that
the following three errors existed in the transcript:
Review of the transcript in this case reveals that it
contains some errors, which I bring to your attention:
Volume I, page 35, line 9:
Should read:

"and confined me • • • "
II
"and come find me

Volume I, page 136, line 16:
Should read:

"I wouldn't say •
"I would say • • • "

Volume I, page 149, line 13:
Should read:

"Yes."
"No."

II

On August 17, 1981, counsel for Complainant, who was not present at the
hearing, objected to the last two alleged errors.
While none of these alleged errors is material to the outcome of this
case, I agree with counsel for New Jersey Zinc that the transcript of the
hearing is in error and it will be corrected.
ISSUES
Whether New Jersey Zinc violated section lOS(c) of the Act in discharging
Complainant and, if so, what relief shall be awarded to Complainant.
APPLICABLE LAW
Section lOS(c) of the Act, 30 U.S.C. § 815(c) provides in pertinent part
as follows:
(1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject to
this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or because
such miner, representative of miners or applicant for employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101 or
because such miner, representative of miners or applicant for

2105

employment has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is
about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant
for employment on behalf of himself or others of any statutory
right afforded by this Act.
(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged,
interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60 days
after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to
the respondent and shall cause such investigation to be made
as he deems appropriate. Such investigation shall commence
within 15 days of the Secretary's receipt of the complaint,
and if the Secretary finds that such complaint was not
frivolously brought, the Commission, on an expedited basis
upon application of the Secretary, shall order the immediate
reinstatement of the miner pending final order on the
complaint.
(3) 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 not been violated, the
complainant shall have the right, within 30 days of notice of
the Secretary's determination, to file an action in his own
behalf before the Commission, charging discrimination or
interference in violation of paragraph (1). The Commission
shall afford an opportunity for a hearing (in accordance with
section 554 of title 5, United States Code, but without regard
to subsection (a)(3) of such section), and thereafter shall
issue an order, based upon findings of fact, dismissing or
sustaining the complainant's charges and, if the charges are
sustained, granting such relief as it deems appropriate,
including, but not limited to an order requiring the rehiring
or reinstatement of the miner to his former position with
back pay and interest or such remedy as may be appropriate.
Such order shall become final 30 days after its issuance.
Whenever an order is issued sustaining the complainant's
charges under this subsection, a sum equal to the aggregate
amount of all costs anrl expenses (including attorney's fees)
as determined by the Commission to have been reasonably
incurred by the miner, applicant for employment or representative of miners for, or in connection with, the institution
and prosecution of such proceedings shall be assessed against

2106

the person committing such violation. Proceedings under this
paragraph shall be subject to judicial review in accordance
with section 106. Violations by any person of paragraph (1)
shall be subject to the provisions of sections 108 and llO(a).
STIPULATIONS
The parties stipulated the following:
1. At all times relevant to this proceeding, New Jersey
Zinc operated the Friedensville Mine in Center Valley,
Pennsylvania.
2. The Friedensville Mine is subject to the jurisdiction
of the Act.
3. The Administrative Law Judge has jurisdiction over
this proceeding pursuant to Section 105(c) of the Act.
4. Complainant, James L. Reiter, was last employed by
the New Jersey Zinc Company from July 22, 1976, up to
October 1, 1979.
5. Mr. Reiter received his license as a blaster by the
Commonwealth of Pennsylvania in August, 1977 pursuant to
regulatory requirements of the Commonwealth of Pennsylvania,
Department of Environmental Resources (Title 25, Rules and
Regulations, Part I, Subpart D, Article IV, Sections 207.33,
210.5, 211.31, 211.51).
6. The New Jersey Zinc Company provided Mr. Reiter the
necessary training to obtain a blaster's license. The Company
paid the State all fees associated with applying for, obtaining, and twice renewing Mr. Reiter's license.
7. On September 24, 1979, the Company was notified by
the Office of Deep Mines of the Department of Environmental
Resources, Commonwealth of Pennsylvania, that Mr. Reiter and
another employee, Mr. Wilson Dunlap, had returned their
blaster's licenses to the Department.
8. On September 25 and 27, 1979, Mr. Reiter, acting in
his capacity as miner's representative, accompanied an
·inspector from MSHA on a general inspection of the mine. No
citations were issued by MSHA as a result of this inspection.
9. On September 28, 1979, Mr. Walter Toepfer, Mine
Superintendent of the Company, had several discussions with
Mr. Reiter and Mr. Dunlap, on the subject of the blaster's
licenses.

2107

10. The Complainant was engaged in activities protected
under the Act in his attendance at safety meetings between
Company representatives and employees in his capacity as
miner's representative, in his accompanying MSHA mine inspector, John D'Augustine, in an inspection of the mine on
September 25 and 27, 1979; and in his participation in a
safety meeting as described aforesaid, on September 28, 1979.
11. The Complainant was trained for, able to perform,
and had performed ·the following tasks as part of his job
classification of miner which do not require a blaster's
license under the laws of the Commonwealth of Pennsylvania;
lead scaler, roof bolter, grout operator, jack leg, and
service truck operator.
12. At no time was the Complainant or any other miner
with the Complainant's job classification required to detonate
explosives.
13. It is the policy of New Jersey Zinc Company that
only supervisory personnel are authorized to detonate
explosives.
14. On October 1, 1979, Wilson Dunlap informed
Mr. Toepfer that he would request the return of his license
from the Department of Environmental Resources. Mr. Dunlap
subsequently requested and obtained his license from the
Department.
15. On October 1, 1979, Mr. Reiter informed Mr. Toepfer
that he would not request the return of his blaster's
license. On October 1, 1979, Mr. Reiter was discharged from
his job.
16. At the time of the Complainant's discharge, Wilson
Dunlap, who was a licensed blaster, was working on the blasting crew that the Complainant was working with.
17. On November 13, 1979, Mr. Reiter filed a Complaint
with the Mine Safety and Health Administration, alieging that
he was discharged for his safety-related activities in
violation of Section 105(c) of the Act.
18. Following investigation of the Complaint, the Mine
Safety and Health Administration determined that a violation
of Section l05(c) did not occur, and so informed Mr. Reiter
by letter on January 25, 1980.
19. On February 15, 1980, Mr. Reiter filed with the
Federal Mine Safety and Health Review Commission a Complaint
of discrimination under Section 105(c) of the Act.

2108

20. On August S, 1980, the Company filed with the
Federal Mine Safety and Health Review Commission an answer
de~ying Mr. Reiter's allegations.
FINDINGS OF FACT
I find that the evidence of record establishes the following facts:

1. New Jersey Zinc is the operator of the Friedensville Mine, an underground mine located in Center Valley, Pennsylvania.
2. Complainant was first hired by New Jersey Zinc in 1972 as an underground laborer. He quit this job on June 5, 1973, but was rehired on
August 22, 1973. He again quit this job on February 7, 1974, but was rehired
on April 2, 1974. On June 10, 1974, he was promoted to "mine utility" but
again quit this job on August 31, 1974. His final period of employment at
New Jersey Zinc began on July 22, 1976, when he was rehired as an underground
laborer. He was promoted to "mine utility" on January 10, 1977, and promoted
to "miner" on May 1, 1978. He was discharged on October 1, 1979.
Complainant's duties as a "miner" included, among other things, leading in
the loading of explosives.
3. Pennsylvania law requires that a blaster's license is necessary for
distributing, charging or blasting explosives underground.

4. In 1977, Complainant applied to the Office of Deep Mine Safety,
Pennsylvania Department of Environmental Resources to take the examination
for a blaster's license. Complainant passed the examination and received
a blaster's license.

S. In August, 1978, Complainant's blaster's license was renewed by the
State of Pennsylvania without objection by Complainant.
6. On August 14, 1978, Complainant sustained an inguinal hernia. He
filed a claim for workmen's compensation with the State of Pennsylvania.
New Jersey Zinc opposed this claim, but on June 12, 1979, the Pennsylvania
Bureau of Occcupational Injury and Disease Compensation ordered New Jersey
Zinc to pay Complainant $2,169.43 less 20 percent attorney's fee. Complainant
was unhappy that New Jersey Zinc was not ordered to pay his attorney's fee in
the workmen's compensation case.
7. In early August, 1979, New Jersey Zinc mailed the application to
renew blaster's licenses for .28 employees, including Complainant and Wilson
Dunlap, to the Pennsylvania Office of Deep Mine Safety together with a check
for the cost of the renewal fees. The State processed the applications and
sent new license cards to each of the 28 employees.
8. On August 31, 1979, Milton Gould, a foreman and shift boss at New
Jersey Zinc, asked Complainant to bring in his new blaster's license since
the old license expired on August 31, 1979. Complainant said he would do
so.

2109

9. On September 1, 1979, Complainant sent a letter to the State
·enclosing his new blaster's license and stating: "I did not send ·for this
blaster's license and I do not wish to have one. Please refund the money
forwarded by the New Jersey Zinc Company." At approximately the same time,
Wilson Dunlap, one of the three license blaster's on Complainant's shift,
also returned his blaster's license to the State.
10. Complainant was on vacation and did not work during the first
2 weeks of September, 1979.·
11. After Complainant returned to work in mid-September, 1979, he was
asked by foreman Gould why he had not produced his blaster's license. Complainant responded that he had returned the license to the State. Complainant further stated that he would request the return of his license if
New Jersey Zinc would reimburse him for the $400 attorney fees in his workmen's compensation claim. Complainant also agreed to get his license back
if New Jersey Zinc would buy him a new pair of boots.
12. On September 24, 1979, the State advised New Jersey Zinc that Complainant and Dunlap had returned their blaster's licenses. New Jersey Zinc
then attempted to get a determination from the State whether Complainant and
Dunlap could continue to work as licensed blasters.
13. On September 25, 1979 and September 27, 1979, MSHA Inspector
John D'Augustine conducted a regular inspection of the mine and New Jersey
Zinc selected Complainant, a miner's representative for United Steelworkers
of America, Local 5485 (hereinafter "USWA"), out of four possible men to be
the union walkaround on this inspection. The operator's representative during this inspection was Donald Habersberger, the mine's safety and industrial
engineer. During this inspection, Complainant complained to the inspector
about the following conditions or practices: failure to scale loose ground
in active workings; drilling into bootleg holes; and inexperienced employees
performing complex jobs. Complainant also asked the inspector to check out
a miner complaint concerning a "giraffe" or aerial platform. No crew was
present in the area and permission was not obtained to operate the equipment
so that it could be checked. No citations or orders were issued by the MSHA
inspector during this inspection of the mine. However, the MSHA inspector
recommended that New Jersey Zinc improve its maintenance of ribs and scaling
of loose material.
14. On September 27, 1979, State Inspector William Smith visited the
mine and advised mine management that he would issue a closure order for
the mine and prosecute mine management if it used lead blaster's who did not
have current State blaster's licenses.
15. On Friday, September 28, 1979, Complainant and Wilson Dunlap were
called to a meeting in Mine Superintendent Walter Toepfer's office. At that
time, Complainant and Dunlap stated that they had returned their blaster's
licenses to the State. Toepfer advised them of the consequences if either
of them worked as a lead blaster without a blaster's licenses. Although

2110

Complainant initially agreed to seek the return of his blaster's license, he
subsequently stated that he had changed his mind and would not request the
return of his license because the license was a violation of his personal
rights and he did not need the license. Superintendent Toepfer told
Complainant and Dunlap that they had until the close of business on Monday,
October 1, 1979, to get their blaster's licenses back or there would be no
further work for them.
16. On October 1, 1979, Wilson Dunlap signed a letter to the State
requesting the return of his license. Dunlap was not disciplined for this
incident and is still employed at New Jersey Zinc.
17. On October 1, 1979, Complainant advised Superintendent Toepfer that
he would not request the return of his blaster's license. Complainant was
advised that this action .would result in his discharge. Complainant alleged
that New Jersey Zinc was discriminating against him because the license was
not needed to perform his job. Complainant was discharged on October 1, 1979,
for his refusal to request the return of his blaster's license.
18. For approximately 8 months prior to his discbarge, Complainant was
a member of the USWA safety committee and, in that capacity, filed safety
complaints with New Jersey Zinc. Complainant's safety complaints included
problems with loose ground and drilling through bootleg holes.
19. At no time prior to his discharge, did Complainant notify New Jersey
Zinc that his refusal to renew his blaster's license was motivated by a
concern about safety.
20. Complainant's grievance concerning his discharge was denied by
New Jersey Zinc. The USWA did not request arbitration.
21.

Complainant's claim for unemployment benefits was denied.

22. Complainant earned $6.97 per hour at the time of his discharge by
New Jersey Zinc. Since the date of his discharge on October 1, 1979,
Complainant's income has been as follows: 1979 - wages $252.92; 1980
wages $5,204.36 and unemployment benefits $2,949.00; and 1981 to May wages $2,126.13 and unemployment benefits $1,935.00.
23. From September 19, 1980 to May 11, 1981, and from June 29, 1981,
to date, Attorney Charles w. Elliott represented Complainant and spent
80-1/2 hours on this matter. Attorney Elliott requests approval of attorney's
fees of $60 per hour for a total of $4,830.
DISCUSSION
During the course of the hearing and in his posthearing brief, Complainant asserted several different claims concerning his allegation that he was
discharged in violation of section 105(c) of the Act. He alleged the following claims: (1) he made safety complaints concerning loose ground and drilling into bootleg holes; (2) he complained to the MSHA inspector about

2111

insufficient safety training and other safety problems; and (3) his refusal
to renew his blaster's license was a refusal to work under unsafe conditions.
In Secretary of Labor on behalf of David Pasula v. Consolidation Coal
Company, 2 FMSHRC 2786 (October 14, 1980) (hereinafte~ Pasula), the
Commission analyzed section lOS(c) of the Act, the legislative history of
that section, and similar anti-retaliation issues arising under other Federal
statutes. The Commission held as follows:
We hold that the complainant has established a prima
facie case of a violation of Section lOS(c)(l) if a preponderance of the evidence proves (1) that he engaged in a
protected activity, and (2) that the adverse action was
motivated in any part by the protected activity. On these
issues the complainant must bear the ultimate burden of persuasion. The employer may affirmatively defend, however, by
proving by a preponderance of all the evidence that, although
part of his motive was unlawful, (1) he was also motivated by
the miner's unprotected activities, and (2) that he would
have taken adverse action against the miner in any event for
the unprotected activities alone. On these issues, the
employer must bear the ultimate burden of persuasion. It is
not sufficient for the employer to show that the miner
deserved to have been fired for engaging in the unprotected
activity; if the unprotected conduct did not originally concern the employer enough to have resulted in the same adverse
action, we will not consider it. The employer must show that
he did in fact consider the employee deserving of discipline
for engaging in the unprotected activity alone and that he
would have disciplined him in any event. Id. at 2799-2800.
In Pasula, supra, the Commission held that the miner's refusal to work
was protected under the Act. The evidence in Pasula established that the
miner refused to perform work he believed to be unhealthful after contacting
management to obtain corrective action and requesting an MSHA inspection.
The Commission further found that the miner's "good faith belief was reasonable, and was directed to a hazard that we consider sufficiently severe
" Id. at 2793.
A.

Safety Complaints to New Jersey Zinc

As a member of the USWA safety committee, Complainant filed written
safety recommendations with management on February 17, 1979 and August 16,
1979. The former dealt with scaling loose ground and the latter dealt with
drilling through bootleg holes. While both of these complaints constitute
protected activity under section lOS(c) of the Act, Complainant has failed
to produce any evidence that the determination to discharge him was motivated
in any part by the safety complaints. Moreover, in light of the other evidence discussed infra, no inference can be drawn which would satisfy
Complainant's burden under Pasula.

2112

B.

Safety Complaints to MSHA inspector

On September 25, 1979 and September 27, 1979, Complainant served as
the miner's representative during the MSHA regular inspection of this mine.
In that capacity, Complainant told the inspector of conditions and practices
which he believed to be in violation of the law. The fact that the MSHA
inspector did not issue any citations or orders is irrelevant to this issue.
If ·complainant's complaints to the MSHA inspector played any part in the
operator's decision to discharge him, then he has established a prima facie
case under Fasula, supra. Even though there is no direct evidence to connect
these protected activities with the subsequent discharge, such a connection
may be established by inference. While these protected activities occurred
during the week prior to discharge, a consideration of all the evidence
shows that Complainant's discharge was based solely upon his refusal to
request the return of his blaster's license. Thus, his activities during
the MSHA inspection played no part in the determination to discharge him.
C.

Refusal to Request Return of Blaster's License

Pennsylvania law requires that at least one licensed blaster be present
when explosives are distributed or charged underground. Complainant first
obtained his blaster's license from the State in 1977. At the hearing, he
alleged that one of his incorrect answers was erased by the person giving the
examination and that he was given another opportunity to answer that question.
This assertion, even if true, is irrelevant to the instant proceeding. Complainant did not protest or object to the renewal of his license in August,
1978. In fact, when Complainant returned his renewed blaster's license for
1979-80 to the State on September 1, 1979, he did not complain to the State
or New Jersey Zinc about any safety concerns. The evidence clearly establishes that at no time prior to his discharge on October 1, 1979, did Complainant ever allege that he returned his blaster's license for safety
reasons. Rather, it was Complainant's position that he had the personal
right to refuse such a license and that his job did not require such a
license. The issue of whether a blaster's license was required to perform
the job classification of "miner" on October 1, 1979 is not a health or
safety matter protected under section 105(c) of the Act, but is a contractual
matter over which I have no jurisdiction. The issue before me is whether
Complainant's refusal to request the return of his blaster's license is a
refusal to work under unsafe conditions which constitutes protected activity
under section 105(c) of the Act. On this issue, Complainant also'fails. At
no time did Complainant refuse to work. In fact, he insisted that he was, at
all times, ready and able to work as a "miner".
While it might be possible that a good faith, reasonable refusal to
request the return of a blaster's license could constitute protected activity
under section 105(c), such a refusal would have to be preceded by specific
complaints to the mine operator or governmental authorities concerning the
safety hazards faced by the licensee. Moreover, such a refusal must be reasonable and made in good faith. In the instant case, Complainant fails on
each of the above criteria. He never made any specific safety complaint to

2113

New Jersey Zinc concerning the hazards he faced because of his blaster's
license. His apparent willingness to be employed without a blaster's license
belies his safety claim. Likewise, he made no such complaint to the State or
MSHA. I find that'his refusal to seek the return of his blaster's license
was not made in good faith because he admitted that he would have requested
the return of his license if New Jersey Zinc would have bought him a new pair
of boots. Moreover, there was other credible testimony that Complainant
offered to request the return of his blaster's license if New Jersey Zinc
would have reimbursed him for the $400 attorney fee paid in connection with
his earlier workmen's compensation claim. These facts indicate that despite
his protestations of safety matters, Complainant was attempting to use the
blaster's license for an additional pecuniary gain. Thus, Complainant's
refusal to seek the return of his blaster's license was not a good faith
refusal to work under unsafe conditions.
The evidence establishes that Complainant was discharged by New Jersey
Zinc solely for his refusal to request the return of his blaster's license.
Complainant's assertion that he would have been discharged because of his
safety activities, even if he had requested the return of his license, is
based on speculation an<l conjecture and is entitled to no weight. Complainant failed to establish that New Jersey Zinc violated section 105(c) of the
Act in connection with his discharge.
CONCLUSIONS OF LAW
At all times relevant to this decision, Complainant and New Jersey
Zinc were subject to the Act.
1.

2. This Administrative Law Judge has jurisdiction over the parties and
subject matter of this proceeding.
3. Prior to October 1, 1979, Complainant engaged in the following
activities which constitute protected activities under section 105(c) of the
Act: (1) Safety complaints to New Jersey Zinc management concerning ~caling
loose ground and drilling into bootleg holes; and (2) service as a safety
commiteeman for the USWA and as miner's representative during the MSHA
inspection of September 25, 1979 and September 27, 1979.
4. Complainant's return of his blaster's license to the State and his
refusal to request a return of his blaster's license from the State are
unprotected activities under section 105(c) of the Act.
5. Complainant failed to establish that his discharge by New Jersey
Zinc was motivated in any part by his protected activities.
6. New Jersey Zinc established that it discharged Complainant solely
for his refusal to request a return of his blaster's license.
7. New Jersey Zinc did not violate section 105(c) of the Act in
discharging Complainant.

2114

8.

Complainant's Complaint of Discharge is dismissed.
ORDER

WHEREFORE, IT IS ORDERED that Complainant's Complaint of Discharge is
DISMISSED.

J~

Distribution Certified Mail:

A•. Laurenson, Judge

v

Mr. James L. Reiter, 34 East Ridge Ave., Summit Hills, PA 18250
Charles W. Elliott, Esq., Thomas and Hair, Suite 101, 123 North Fifth
Street, Allentown, PA 18102
Robert W. Frantz, Esq., and Brian c. Murchison, Esq., Hamel, Park,
McCabe and Saunders, Suite 700, 888 16th St., N.W., Washington, DC
20006
Special Investigations, MSHA, U.S. Department of Labor, 4015 Wilson
Blvd., Arlington, VA 22203

2115

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE. SUITE 400
DENVER, COLORADO 80204

SEP 9 \qe,

)

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

)
)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 80-69-M

)

v.

)

A/C No. 02-01915-05003

)

SUN LANDSCAPING AND SUPPLY COMPANY,

)

MINE: White Marble

)

Respondent.

)
)

DECISION
Appearances:
Marshall P. Salzman, Esq.
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue, Box 36017
San Francisco, California 94102
For the Petitioner
W. T. Elsing, Esq.
34 West Monroe, Suite 202
Phoenix, Arizona 85003
For the Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE CASE
The Petitioner filed a petition for assessment of proposed civil
penalties against the Re~pondent for alleged violations on April 4, 1979,
of regulations promulgated by authority of the Federal Mine Safety and
Health Act of 1977 (hereinafter "the. Act"). The Respondent denied that the
White Marble Mine operation was subject to the jurisdiction of the Act and
alleged that the operation was terminated before it ever got ipto
production.
'
FINDINGS OF FACT
1.

Respondent's business is a small operation.

2. The imposition of the proposed penalties would not affect
respondent's ability to remain in business.
3.

Respondent has no history of prior violations.

2116

4. The two citations at issue were duly served on April 4, 1979, by
an MSHA inspector who was an authorized representative of the Secretary of
Labor.
5. Respondent's operation consisted of blasting white marble in the
pit area and hauling the material to the main highway in order to
transport it to the crusher and screening plant. There, the material was
processed and laid in stock piles awaiting shipment to Phoenix by truck.
6. On the date of the inspection, April 4, 1979, the MSHA inspector
observed crushed white marble material 1n piles of up to 15 tons each.
7. Sometim~ after the inspection on April 4, 1979, the Respondent
moved its operation to a different location in Arizona.
8. Some of the equipment purchased by the Respondent for use in its
business operation was manufactured outside the State of Arizona.
Specifically, the Caterpillar loader, dri 11 and compressor were produced or
manufactured in Illinois.
JURISDICTION
The act of setting up Respondent's business, including the processing
of the marble into stock piles for sale, and ~he purchase of the equipment
as described in the Findings of Fact, affects commerce. It has previously
been held in a case involving this same Respondent that the setting up of
mining facilities with the intent to mine marble, crush it, and sell it in
the future affects commerce and, thus, places the operator under
jurisdiction of the Act. Secretary of Labor, Mine Safety and Health.
Administration (MSHA) v. Sun Landscaping and Supply Company, 2 FMSHRC 975
(1980).
In the instant case, there were no facts presented by the Respondent
upon which a different conclusion could be reached. Accordingly, I find
that Respondent's mining operation was subject to the jurisdiction of the
Act.
CITATION NO. 381381
Petitioner alleges that the operator of the Caterpillar bulldozer was
exposed to 206% of the permissible noise level and that feasible
engineering or administrative controls were not being used to reduce this
level in order to eliminyte the need for hearing protection, in violation
of 30 C.F.R. 55.5-50(b). / The bulldozer operator was wearing personal
hearing protection.
-

1/ · [Mandatory.] When employees' exposure exceeds that listed in the above
table, feasible admin~strative or engineering controls shall be utilized.
If such controls fail to reduce exposure to within permissible levels,
personal protection equipment shall be provided and used to reduce sound
levels to within levels of the table.

2117

The evidence is undisputed that, during a sampling time of 360
minutes, the bulldozer operator was exposed to 206% of the permissible
noise exposure or 97 dBA. The maximum permissible noise exposure for 360
minutes is 92 °dBA, according to the cited regulation. Therefore, feasible
administrative or engineering controls must be utilized to reduce the
exposure to within permissible levels. If these controls fail to reduce
the noise exposure to within permissible levels, personal protection
equipment shall then be used.
The Petitioner introduced evidence as to feasible engineering or
administrative controls. These controls included installation of a
windshield at a cost of between $50.00 and $150.00. The MSHA inspector
testified that the windshield alone would have been sufficient to reduce
the noise exposure· to within acceptable limits.
The burden of going forward with evidence showing that the utilization
of feasible controls would not reduce the exposure to within permissible
levels then shifted to the Respondent. The President of Respondent
corporation testified that it would cost several thous.and dollars to'
construct a frame for the windshield and that the glass alone would cost in
excess of $400.00. In addition, the bulldozer would be out of operation
two to four days for the installation, and the value of the dozer was
$100.00 per hour. He concluded that "by adhering to the regulation [the
cost] would have been in the thousands of dollars, not hundreds."
I find the evidence of the Petitioner to be more credible and
convincing than that of the Respondent in regard to evidence concerning
feasible controls. On rebuttable, the MSHA inspector testified that it had
been his experience that the windshield could have been installed for
$150.00. Even if the installation were to cost three times that amount,
it was a feasible control and a long way from "thousands of dollars."
I therefore conclude that the citation should be affirmed.
CITATION.NO. 381382
Again, alleging a violation of 30 C.F.R. 55.5-50(b), the Petitioner
states that the drill operator was exposed to 332% of the permissible noise
exposure and that feasible engineering or administrative controls were not
being utilized to reduce this level in order to eliminate the need for
personal hearing protection.
The evidence is undisputed as to the noise exposure recorded by th~
dosimeter during the 360 minute sampling period. According to the chart
received into evidence, this exposure amounted to 100 dBA. 92 dBA is the
maximum permissible noise exposure level. Therefore, the issue is whether
or not feasible administrative or engineering controls were being utilized
to reduce the exposure to within permissible levels. The drill operator
was wearing personal hearing protection.

2118

The Petitioner introduced evidence that a muffler system could have
been utilized. The manufactured cost would be $550.00 and a "prefab" one
would cost $-150.00 to $350.00. At the time of the inspection, an MSHA
inspector discussed with Respondent's employee b.oth sound proofing with
shields and a "homem~de" muffler system.
The Respondent failed to go forward with any evidence that feasible
controls had been utilized or that such controls would not reduce exposure
to within permissible noise levels. The only testimony offered was hearsay
evidence that the earplugs and earmuffs were approved by a State mine
inspector and were also reconnnended to the President of Respondent
corporation by his "eye, ear, and nose doctor" as being sanitary and
helpful. Under these circumstances, the Petitioner has proven his case to
a preponderance of the evidence and is entitled to a favorable decision on
his petition. Accordingly, the citation should be affirmed.
Considering the factors set forth in section llO(i) of the Act in
regard to both citations, I find that the amount of penalty assessed should
be the amount prayed for in the petition.
CONCLUSIONS OF LAW
1.
parti~s

The undersigned Administrative Law Judge has jurisdiction over the
and subject matter of these proceedings~

2. The Petitioner has proven, by preponderance of the evidence, two
violations of 30 C.F.R. 55.5-50(b), as alleged in Citation Nos. 381381 and
381382.
ORDER
Citation Nos. 381381 and 381382 are affirmed and the penalties
assessed are $28.00 each. Respondent is ordered to pay total civil penalties in the sum of $56.00 within 30 days of the date of this Decision~

Jon D. Sol~7
I/
. Admini strati Ve Law Judge
~-

Distribution:
M.arshall P. Salzman, Esq.
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue, Box 36017
San Francisco, California 94102
W. T. Elsing, Esq.
34 West Monroe, Suite 202
Phoenix, Arizona 85003

2119

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

'SEP 1 1 \9\\,

Complaint of Discrimination

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JACK HATTER,
Complainants

Docket No. WEV.A 81-318-D
Lick Branch No. 1 Mine

v.
EL-Bow-MINING, INC.,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
Statement of the Case
This is a discrimination proceeding filed by the complainant
against the respondent pursuant to section lOS(c) of the Federal Mine
Safety and Health Act of 1977, for an alleged act of discrimination
which purportedly occurred sometime in November, 1980. The matter
was scheduled for hearing on September 16, 1981 in Bluefield, West
Virginia, but the hearing was continued at the request of the parties
so that a proposed settlement could be submitted for my consideration.
By joint motion filed August 18, 1981 0 complainant filed a motion
to withdraw its complaint and the parties submitted their proposed
settlement disposition, the terms of which are as follows:
1.

Upon execution of this agreement, respondent will
post immediately on the mine bulletin board, or
in a conspicuous place where notices to employees
are customarily posted and maintain for a period
of 14 consecutive days from the date of posting,
the Notice attached hereto and made a part hereof.
Said Notice is to be signed by a responsible official
of the respondent and the date of actual posting is to be
shown thereon.

2.

Respondent will comply with the terms and provisions
of said Notice.

3.

Applicant will, upon respondent's execution and completion of performance of this agreement, withdraw.
El-Bow Mining Inc. 's complaint of discrimination filed
with the Department of Labor.
Respondent agrees to pay a civil penalty in the amount
of $200.

2120

4.

The execution of this settlement agreement by the
res.ponde~t shall not be construed as an admission
of violation of the Federal Mine Safety and Health
Act of 1977.
Discussion

The parties are in agreement that the proposed settlement disposition
of this matter is in their interest, and after review and consideration
of all of the pleadings filed in this matter, including the terms of the
settlement, I conclude that the settlement disposition is a reasonable
and fair resolution of the dispute and that approval of same is in the
public interest.
ORDER
In view of the foregoing the motion to withdraw is GRANTED and
the proposed settlement is APPROVED, and upon full compliance and
completion with the terms thereof as set forth above, this matter is
DISMISSED.

/I'-?

A' ~ P--

-~;p.Ko~a./U--z-t/~
j/Administrative Law Judge

Distribution:
David E. Street, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Thomas L. Woolwine, Labor Consultant, J.T. Associates, Box 4234, Bluefield,
WV 24701 (Certified Mail)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

SEP 14 1981

)

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

)
)

CIVIL PENALTY PROCEEDING

)

DOCKET NO. WEST 80-471-M

)
)

v.

)

WASHINGTON CORPORATION, d/b/a
WASHINGTON CONSTRUCTION COMPANY,

)
)

ASSESSMENT CONTROL NO.
10-00556-05009

)

MINE:

Dry Valley

)

Respondent.

)
)

~~~~~~~~~~~~~~~~~~~

BENCH DECISION AND ORDER
Appearances:
Robert A. Friel, Esq.
Office of the Solicitor
United States Department of Labor
8003 Federal Office Building
Seattle, Washington 98174
for the Petitioner
Mr. James A. Brouelette,
EEO/Safety Officer
Washington Corporations
P. O. Box 8989 - 500 Taylor
Missoula, Montana 59807
for the Respondent
Before:

Judge Jon D. Boltz

This proceeding is brought by the petitioner, Secretary of Lqbor,
on a petition for assessment of civil penalty against the respondent for an
alleged violation of 30 C.F.R. 55.3-1 • .!/The cited regulation is
promulgated by authority of the Federal Mine Safety and Healttt Act of
1977.

1/ Mandatory. Standards for the safe control of pit walls, including the
overall slope of the pit wall, shall be established and followed by the
operator. Such standards shall be consistent with prudent engineering
design, the nature of the ground and the kind of material and mineral
mined, and the ensuring of safe working conditions according to the degree
of slope. Mining methods shall be selected which will ensure wall and bank
stability, including benching as necessary to obtain a safe overall slope.

2122

The peti~.oner specifically·alleges in Citation No. 345076 that the
regulation.was violated in that the high wall in the respondent's mine was
approximately 100 feet high and had an original vertical angle of approximately 3/4 to 1, that. this high wall was developing an overhang approximately 20 feet down from the crest, and that there were also fractures
visible in the cap rock.
At the conclusion of the hearing the· parties waived the filing of
post-hearing briefs and agreed that a bench decision could be rendered at
this time.
I make the following findings of fact:

1.

The respondent had no significant history of previous violations.

2.

The respondent 1s a moderate sized operator.

3.

The payment of proposed penalty will not affect the respondent's
ability to continue in business.

4.

The respondent demonstrated good faith in achieving rapid compliance after notification of the violation.

5.

The MSHA inspector who issued and served the citation involved was
a 9uly authorized representative of the Secretary.

6.

The respondent's products enter commerce and the mine involved 1s
subject to the jurisdiction of the Act.

It is undisputed that a bulldozer operator had been working near or
under the overhang described in the citation. The MSHA inspector testified
that he issued the citation because of loose overhanging material on the
wall itself. He testified that the overhanging material protruded
approximately three feet out from the wall and there must have been
something wrong with the mining method or the overhang would not have
developed. ·However, there is no evidence that the slope of the pit wall
was not in conformity with prudent engineering design.
Respondent's exhibit R-2 is the mining plan followed by the Respondent
and establishes standards for the safe control of the pit walls including
the overall slope of the wall. The plan states that the high wall will be
excavated at a slope of 60 degrees. It also states that no catch benches
are specified in the design, but alterations for their additiqn, if
required, will be made to conform to sound engineering and mining
practices. There is no evidence that this was not a proper standard.
The question presented is whether there was a violation of the cited
regulation because of the subsequent development of overhanging material
which the respondent had not taken down. The MSHA inspector testified that
in his opinion the bank was dangerous, and it has already been shown .that
miners had been working near or under the bank.

2

··~3

I find th~t the respondent had established standards for safe
control of the pit wall, including the slope of the wall. The evidence of
the petitioner shows that there may have been a violation of 30 C.F.R.
55.3-5, !:./ in that men were working near or under dang~rous banks, but
I do not find evidence that the respondent failed to adopt standards for
safe control of pit walls including their overall slope. Accordingly,
Citation No. 345076 is vacated.
ORDER
The foregoing bench decision is AFFIRMED.

Distribution:
Robert A. Friel, Esq.
Office of the Solicitor
United States Department .of Labor
8003 Federal Office Building
Seattle, Washington 98174
Mr. James A. Brouelette,
EEO/Safety Officer
Washington Corporations
P. 0. Box 8989 - 500 Taylor
Missoula, Montana 59807

2/

Mandatory. Men shall not work near or under dangerous banks.
Overhanging banks shall be taken down immediately and other unsafe
ground conditions shall be corrected promptly, or the areas shall
be barricaded and posted.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400

DENVER.COLORADO 80204

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

v.
WASHINGTON CONSTRUCTION COMPANY,
Respondent.

)
)
)
)
)
)
)
)
)
)
)
)

SEP 14 1981

CIVIL PENALTY PROCEEDING
DOCKET NO. DENV 79-37l~PM
A/C No. 10-00634-05003
MINE: Monsanto Quartzite Quarry

BENCH DECISION AND ORDER
Appearances:
Robert A. Friel, Esq.
Office of the Solicitor
United States Department of Labor
8003 Federal Office Building
Seattle, Washington 98174
For the Petitioner
James A. Brouellette
EEO/Safety Officer
Washington Corporations
500 Taylor
P.O. Box 8989
Missoula, Montana 59807
For the Respondent
Before: Judge Jon D. Boltz
This proceeding is brought by the Petitioner, Secretary of Labor, Mine
Safety and Health Administration (MSHA), on a petition for assessment of
civil penalties against the Respondent for alleged violations of a
regulatio·n promulgated by authority of the Federal Mine Safety and Health
Act of 1977 (hereinafter "the Act").
At the conclusion of the hearing, the parties agreed to waive the
filing of post hearing briefs and agreed that a Bench Decision could be
issued.
I make the following findings of fact:
I.

The Respondent has no significant history of previous violations.

2.

The Respondent is a moderate sized operator.

2125

3. The payment of the proposed penalties will not affect the
Respondent's ability to continue in business.
4. The Respondent demonstrated good faith in achieving rapid
compliance after notification of the violations.
5. The MSHA inspector who issued and served the citations involved
was a duly authorized representative of the Secretary.
6. The Respondent's products enter commerce and the mine involve<l is
subject to the jurisdiction of the Act.
The citations at issue, Nos. 345023, 345024, and 345025, were dated
July 12, 1978, and w~re s~bsequently. served on thy Respondent. Each
citation alleges a violation of 30 C.F.R. 56.5-5. I The Respondent
contends that the citations should be dismissed because of the long time
between their issuance and this hearing on August 6, 1981. The records
in the file disclose that· the Secretary filed a petition within the time
prescribed by the regulations and, although it did take possibly an unusual
length of time before a hearing could be scheduled, there is no showing
that the Respondent's case was prejudiced. Mr. Brouelette stated during
the course of the hearing that he had testified as to all bf the facts that
individuals who are no longer with the Respondent company would have
testified to had they been present. Mr. Brouelette also stated that the
Secretary had lost pleadings filed in response to the petition filed by the
Petitioner. In this regard, I should point out that a procedµral rule of
the Commission requires that responsive pleadings be filed with the
Commission and not with the Secretary. Accordingly, I find that there is
no merit in Res.pondent' s contention.
The evidence is undisputed that the results of the sampling ~f three
miners in regard to airborne contaminants revealed that they were subjected
to harmful exposure based upon threshold limit values duly adopted in
accordance with the regulation. The employee referred to in Citation No.
345023 received approximately ten times the allowable amount. In Citation
No. 345024, the employee received approximately six times the allowable
amount. In Citation No. 345025, the employee re~eived approximately three
times the allowable amount. Thus, there was a violation of the regulation
cited unless it is shown that the regulation would allow the use of
respiratots. It is undisputed that the miners involved were using
respirators· or that respondent issued respirators for their use.
1/ Mandatory. Control of employee exposure to harmful airborne
contaminants shall be, insofar .as feasible, by prevention of contamination,
removal by exhaust ventilation, or by dilution with uncontaminated air.
However, where excepted engineering control measures have not been
developed .•• employees may work for reasonable periods of time in
concentration of airborne contaminants exceeding permissible levels if they
are protected by appropriate respiratory protective equipment ••.•

2126

The Petitioner presented evidence that it would have been feasible to
lower the amount of silica in the air by use of water-spraying nozzles
installed on hoses. The Respondent claimed that it did not have sufficient
water pressure for that purpose. However, after completion of its mining
season, ~espondent did in the Spring of 1979 dig its .well 65 feet deeper
and install a submersible pump and other equipment which ultimately reduced
the airborne contaminants to an acceptable level. The evidence shows that
accepted engineering control measures could have been applied in order to
control the amount of airborne contaminants, thus, allowing the Respondent
to be in compliance with the regulation without the use of respirators.
Respondent also contends that it was not convenient to shut down the
operation to make the needed engineering changes until the completion of
the mining season in October 1978. However, as long as there are accepted
engineering control measures available which when utilized will alleviate
the problem as shown in this case, a violation of the regulation is
necessarily proven, and the Petitioner has established a prima facie case.
I find that the Pet it ioner has proven by a preponderance of the
evidence that the three citations should be affirmed. The penalties are
assessed in amounts of $30.00, $30.00 and $24.00 for Citation Nos. 345023,
345024 and 345025, respectively~ as prayed for in the petition.
ORDER
The foregoing Bench Decision is affirmed and the Respondent is ordered
to pay a total civil penalty of $84.00 within 30 days of the date of this
Decision.

Distribution:
Robert A. Friel, Esq.
Office of the Solicitor
United States Department of Labor
8003 Federal Building
Seattle, Washington 98174
James A., Brouelette
EEO/Safety Officer
Washington Corporations
500 Taylor, P.O. Box 8989
Missoula, Montana 59807

2127

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
333 W. COLFAX AVENUE. SUITE 400
DENVER, COLORADO 80204

SEP 14 1981

)

SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA), on
BEHALF OF CALVIN M. BIGELOW,

)
)
)

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE

)

Complainant,

)

DOCKET NO. WEST 81-51-DM

)

v.

)
)

CENTENNIAL DEVELOPMENT COMPANY

MINE:

FMC Mine

)
)

Respondent.

)
)

~~~~~~~~~~~~~~~~~~~

DECISION AND ORDER
On September 4, 1981, the parties to the proceeding filed with the
Connnission a Stipulation of Settlement, Consent and Motion seeking an
agreed disposition of the case.
Under the terms of the stipulation, the parties agree that respondent
shall compensate Calvin M. Bigelow in the amount of $8,000.00 in settle~
ment of his claim against respondent resulting from this discharge and that
respondent shall expunge the employment record of Calvin M. Bigelow of any
adverse references relating to his discharge.
By joint motion, the parties seek an order providing: that respondent
tender the agreed upon sum to Calvin M. Bigelow wi.thin 40 days and that
respondent expunge from his employment record any adverse references
relating to his discharge.
Given the complainant's consent to the terms of the settlement and
finding that such settlement will effectuate the purpose of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., it is
ORDERED: that the settlement agreed to by the parties is hereby
APPROVED, that the joint motion is hereby GRANTED in full, that the
respondent tender to the complainant the sum of $8,000.00 within 40 days
from August 19, 1981, the date he signed the stipulation, and that this
case is hereby DISMISSED WITH PREJUDICE.

Administrative Law Judge

2128

Distribution:
James H. Barkley, Esq·.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Ronald F. Sysak, Esq.
Prince, Yeates & Geldzahler
Third Floor, Mony Plaza
424 East 5th South
Salt Lake City, Utah 84111

2129

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUI':, SUITE 400

SEP 14 198\

DENVER, COLORADO 80204

)

J. OTTO HORVATH,

)
)
Complainant.

)

)

v.

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE
DOCKET NO. WEST 81-185-D

)

)
GREEN ELECTRIC COMPANY; AND
LIVELY CONSTRUCTION COMPANY,

MSHA CASE NO. DENV CD 81-3

)

)

MINE:

Fork Union Coal Company

)

Respondent.

)

~~~~~~~~~~~~~~~~~~~~-)

DECISION AND ORDER
Pursuant to a notice of hearing dated June 29, 1981, a hearing in the
above-entitled proceeding was held in Giilette, Wyoming, on August 25, 1981.
At the hearing, counsel for the respondent presented a stipulation and
release of claim signed by complainant. The release states that complainant
agrees to a dismissal of the complaint he has filed against Green Electric Company
and Lively Construction Company (Docket No. WEST 81-185-D) with prejudice and
agrees not to bring any further complaint against either respondent arising out
of his employment relationship with said parties.
Complainant's release of all claims made in this proceeding is based on a
settlement agreement between him and the two respondents dated August 25, 1981.
That agreement shows that respondent jointly agreed to pay complainant $4,000.00
in settlement of any and all claims, known or unknown, which complainant may
have against the two respondents.
The complainant and counsel for both respondents appeared at the hearing
and all stated for the record their agreement and satisfaction with the settlement.
Having received the complainant's consent to the terms of the settlement
and finding that such settlement will effectuate the purposes of the Federal Mine
Safety and Health.Act of 1977, 30 U.S.C. § 801 ~~., it is
ORDERED: That the settlement agreed to by the parties is ~ereby APPROVED
and that as to both respondents, this case is hereby DISMISSED WITH PREJUDICE.

Administrative Law Judge

2130

Distribution:
Thomas Padget, Esq.
Thomas, O'Neil & Padget
202 Warren Avenue
Gillette, Wyoming 82716
John H. Shepard, Esq.
Morman, Smit, Shepard, Hughes & Wolsky
P. 0. Box: 29
Sturgis, South Dakota 57785
Howard Burnett, Esq.
Box 338
Glen White, West Virginia

25849

2131

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

)

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

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 80-271-M

)

v.

)

A/O No. 04-01854-05004

)

MASSEY SAND AND ROCK COMPANY,

)

MINE: Indio Sand & Rock Pit

)

Respondent.

)
)

~~~~~~~~~~~~~~~~~~

DECISION
Appearances:
Theresa Kalinski, Esq., Office of the Solicitor, United States Department
of Labor, 3247 Federal Building, 300 N. Los Angeles Street, Los Angeles,
California 90012
For the Petitioner,
Mr. Jack Corkill, Compliance Officer, Massey Sand and Rock Company, 43850
Monroe Street, P.O. Box 1767, Indio, California 92201
For the Respondent
Before: Judge Virgil E. Vail
I. Procedural Background
The above-captioned civil penalty proceeding was brought pursuant to
Section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a) [hereinafter referred to as "the Act"] .
. Pursuant to notice, a hearing on the merits was held at Indio,
California on January 22, 1981. Cosme Gutierrez, federal mine inspector,
appeared on behalf of the petitioner. Respondent offered the testimony of
Richard P. Edens, David Holliday and Frank Pease. Neither party elected to
file a post-hearing brief.

2132

II. Findings of Fact
CITATION NO. 380866
1. On October 24, 1979, during an inspection, Coseme Gutierrez
noticed that the Hough front-end loader was leaking hydraulic fluid. (Tr.

6).
2. While the front end loader was on a 4 to 5% incline, Gutierrez
requested that the operator turn off the machine and test the emergency
brake. The test was conducted and it was found that the brake would not
hold the roll. (Ti. 6-7)~ Prior to the test the operator of the loader
had told the inspector that the brake was not working.
3. The front end loader was approximately 16 to 19 feet high, 22 to
25 feet in length and 10 to 12 feet wide. (Tr. 6).
4. The loader had a ten yard bucket in front and was being used to
load materials onto trucks or to stockpile materials. (Tr. 6 and 51).
CITATION NO. 380865
5. The respondent keeps a pile of material that is approximately 60
to 90 feet high. This material is continually being pushed into a hopper
by rubber tired bulldozers. (Tr. 20).
6. The operator at the hopper sits on a work platform that is 12 feet
high. (Tr. 21). His job is to use the backhoe to keep the large rocks out
of the grid and to watch the plant. (Tr. 35-36).
7. Six to eight feet to the right-hand side of the operator's
platform there is a control panel. (Tr. 21 and 40). The purpose of the
control panel is so the operator can start and stop the conveyor belts and
the feeder. (Tr. 38).
8. On October 24, 1979, the control panel had been disconnected
because recent heavy rains had caused flooding. Since the control panel
·11as in a low lying area, the wires were under water and the respondent had
been forced to deenergize the control panel. (Tr. 23 and 37).
9. Since the control panel had been disconnected, the operation had
to be started by another employee at the control shack, which was located
approximately 1000 feet from the work platform. (Tr. 23).
10. The operator was unable to see the control shack, nor could the
miner at the shack see the work platform where the operator was because
there were materials stacked 30 to SO feet high between the two locations.
(Tr. 22 and 36).
11. There was a two-way radio provided so the operator and the miner
at the control shack could communicate with one another. (Tr. 36).

2133

Ill. Discussion and Conclusions
CITATION NO. 380866
Citation no. 380866 1 / alleges a violation of mandatory safety
standard 56.9-3 which provides that, "Powered mobile equipment shall be
provided with adequate brakes. 1·1
It is uncontradicted that the emergency brake was not in good working
condition. Frank Pease, the respondent's heavy equipment repair foreman,
testified that after the citation was issued he was sent to work on the
emergency brake. He found that the lining was off the brake shoes. (Tr.

SO).
Respondent offered an operator's manual, pertaining to this piece of
machinery, in order to prove that the emergency brake is only to be used to
hold the machine in a stationary position after it has come to a stop.
(Respondent's Exhibit 2). I do not disagree with respondent's argument,
but it is of no value in deciding the issue now before us.
The test was conducted while the machine was stopped and in a
stationary position. The fact is that the emergency brake was defective in
that it would not stop the machine from rolling when it was in a
stationary position.
Respondent's second argument is that the petitioner never proved that
the hydraulic fluid leaking from the machine came from the brakes. The
inspector testified that the leakage was the reason he conducted the test
on the brakes, however the origin of the fluid is not an essential element
in proving a violation.
Finally, respondent contends that standard 56.9-3 does not comport
with due process requirements because it does not give fair warning a• to
what conduct is required or prohibited. Respondent raised this issue in
its answer, however neither party chose to address it at the hearing.
This issue has already been addressed in the case of Secretary of
Labor v. Concrete Materials, Inc. 2 FMSHRC 3105 (1980). In that case the
operator challenged standard 56.9-3 as violating due process requirements
because of vagueness. The Administrative Law Judge stated that_:
The question in this case is whether the operator ~new
that the operation of the cited trucks with the then
existing brakes would be hazardous or whether a con-

1/ Citation ho •. 380866 states that: "The emergency brake on the ff596 front
end loader when set would not hold machine. This machine was also leaking
a substantial amount of hydraulic fluid. These condition(s) could cause
equipment operator to lose control and injury (sic) people in immediate
area or the operator himself."

213-4

scientious safety expert would have protected against
the brake conditions because they presented a reasonably
foreseeable hazard.
The judge went·on to reject the due process argument.
In· the present case the govenment proved that the defective emergency
brake presented a safety hazard. Furthermore, a witness for the respondent
testified that the brake was defective. Under such circumstances, I find
it difficult to believe that respondent felt the loader was equipped with
"adequate brakes."
For the reasons stated above, I conclude that the citation should be
affirmed.
Penalty Assessment
The respondent has had only a small number of prior violations. Since
there is nothing contrary contained in the record, I assume that the
imposition of a penalty will not affect respondent's ability to remain in
business.
I conclude that the respondent knew or should have known of the
violation. It is a relatively easy procedure to test the ~mergency brake
and if this had been done respondent ~ould have discovered the defect.
The defect could have led to a serious injury for either the operator
or anyone in the immediate vicinity. Also, the respondent did not abate
the citation when he became aware of the defect. An order of withdrawal
was issued on October 31, 1979 because the brakes had not yet been fixed.
(Order no. 380860). For these reasons, I find that the gravity of the
violation was severe and that respondent failed to act in good faith.
Under the circumstances, as they have been described above, I find
that a penalty in the amount of $275.00 is appropriate.
CITATION NO. 380865
Citation no. 380865 2 / states that:
The control s~·:itches to the feed hopper,
primary belt conveyor were inoperable.
These switches did not work when belt
operator was asked to start and shut off
equipment. An employee could easily fall
into moving equipment resulting in serious
injury and no one in the immediate area
would have control of shutting off equipment.

2/ Citation 380865 alleges a violation of mandatory safety standard 56.9-2
which provides that, "Equipment defects affecting safety shall be corrected
before the equipment is used."

2135

Respondent did not attempt to refute the allegation that the switches
at the control panel were inoperative. Rather, respondent argued that this
did not constitute a violation of the Act. Respondent points to 56.9-6
which provides that:
When the entire length of a conveyor is visible from the starting
switch, the operator shall visually check to make certain that al.l
persons are in the clear before starting the conveyor. When the
entire length of the conveyor is not visible from the starting switch,
a positive audible or visual warning system shall be installed and
operated to warn persons that the conveyor will be started.
The company had an audible warning system and therefore, the respondent
contends it was 1n compliance.
I disagree. Safety standard 56.9-6 applies only to conveyors. In
this case not only are we concerned with the conveyor belt system, but the
hopper and the back hoe also. I agree with the inspector that.since the
operator had no way of stopping the equipment because the switches had been
disconnected, this constituted a defect in the equipment.
Secondly, respondent argues that the second set of switches which were
provided were sufficient for co~pliance. There were two switches, one for
the feeder and one for the first conveyor. These switches were located 10
to 15 feet from where the operator sat. (Tr. 40).
I conclude that the presence of the second set of switches was
insufficient to correct the equipment defect. First of all, in order for
the operator to get to the switches he had to climb down a ladder. This
would take up valuable time in case of an emergency. Most importantly
though is the fact that the on-off switches were unreliable. Richard
Edens, the electrician for the plant, testified that the switches were
working on the day the citation was issued, but could not remember if they
were actually tested to see if they were operable. (Tr. 40 and 44).
Furthermore, he stated the presence of iron ore at the site sets up a
magnetic field between the wires so that at times the switches will not
stop the equipment. (Tr. 44).
There is no other logical conclusion but to find that Citation no.
380,865 should be affirmed. Operating equipment of this nature from a point
where the person who has control of starting and stoppi~g the equipment
cannot even see the operator clearly violates 56:9-3.
Penalty Assessment
The negligence of the respondent was slight since the switches at the
control panel had to be disconuected because of the recent flooding and
normally they would have been energized. However, the seriousness of this
violation is such that I cannot approve a reduction of the proposed penalty
assessment. If an employee were to slip and fall into the machine it would
not be known innnediately by other employees and when it was discovered it
is unlikely that the equipment could be stopped before serious inJury
resulted. For these reasons, I assess a penalty of $75.00 for the
violation.

2136

ORDER
Respondent is hereby ORDERED to pay the amount of $350.00 within forty
days of this decision.

~d·f.~
Virg. E. Vail
AdmiiStrative Law judge

Distribution:
Theresa Kalinski, Esq.
Office of the Solicitor
United States Department of Labor
3247 N. Los Angeles Street
Los Angeles, California 90012
Mr. Jack Corkill, Compliance Officer
Massey Sand & Rock Company
43850 Monroe Street
P. 0. Box 176 7
Indio, California 92201

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),

EP 17 1981

Civil Penalty Proceeding
Petitioner

Docket No. SE 81-8-M
A.O. No. 08-0075-05005F

'V.

St. Catherine Quarry
ST. CATHERINE ROCK COMPANY,
Respondent
DECISION
Appearances:

Ken W. Welsch, Attorney, U.S. Department of Labor, Atlanta,
Georgia, for the petitioner;
David A. Davis, Esq., Bushnell, Florida, for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty filed
by the petitioner against the respondent on January 5, 1981, pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 820(a), charging the respondent with two alleged violations issued pursuant
to the Act and the implementing mandatory safety and health standards.
Respondent filed a timely answer in the proceedings and a hearing was held on
July 7, 1981, in Tampa, Florida and the parties appeared and participated
therein. The parties waived the filing of posthearing arguments, but were
afforded the opportunity to make argtnnents on the record and those have been
considered by me in the course of this decision.
Issues
The principal issues presented in these proceedings are (1) ·whether
respondent violated the provisions of the Act and implementing regulations as
alleged in the proposals for assessment of civil penalties filed in these
proceedings, and, if so, (2) the appropriate civil penalties that should be
assessed against the respondent for the alleged violations based upon the
criteria set forth in section llO(i) 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 llO(i)
of the Act requires consideration of the following criteria: (1) the oper~
ator's history of previous violations, (2) the appropriateness of such penalty

2138

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.

30 U.S.C.

The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
§ 801 ~ seq.

2.

Section llO(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 20 C.F.R. § 2700.l et seq.

§

820(i).

Stipulations
The parties stipulated as to jurisdiction, agreed that the respondent is
a sma~l crushed stone operator employing approximately seven employees, that
the mine operates one daily 8-hour production shift 5 days a week, and that
the respondent has no previous history of paid or assessed violations (Tr.
6-7).
Respondent's counsel raised an objection to proceeding with the hearing
on the ground that respondent was not afforded an opportunity for .a trial by
jury. The objection was denied, and my ruling in this regard is herein
reaffirmed. It seems clear to me that civil penalty proceedings pursuant to
the Act are civil rather than criminal, and that the respondent has not been
deprived of any Sixth Amendment right to a trial by jury in a criminal matter,
or of any right conferred by the Seventh Amendment to a jury trial in a civil
penalty assessment case. The rights to which respondent is entitled are
those specifically provided for in the Act, namely an APA hearing before a
Commissi'on Judge, with the opportunity to participate fully therein, including the right to confront and cross-examine the inspectors who issued the
citations.
In a case under the Occupational Safety and Health Act (OSHA), the
Supreme Court, on March 23, 1~77, ruled that the Seventh Amendment guarantee
of a jury trial in suits at common law does not apply to hearings before the
Occupational Safety and Health Review Commission in contested civil penalty
proceedings. Atlas Roofing Co., and Frank Irey, Jr., Inc. v. Occupational
Safety and Health Review Commission et. al., 1977-1978 OSHD, 21,615, affirming decisions of the third and Fifth Circuit Appeals Courts, reported at
1975-1976 OSHD 19,878 and 20,002. In Mohawk Excavating, Inc., the Second
Circuit Court of Appeals ruled on February 8, 1977, that civil penalties
under OSHA are civil rather than criminal because Congress characterized them
as such, and the only consequence of a judgement is a money penalty, 1976-1977
OSHD, 21,537. Under the circumstances, I conclude that these precedents are
applicable in civil penalty proceedings brought under the Mine Act and
respondent is not entitled to a trial by jury.

2139

Discussion
The citations which issued in this case were the result of an investigation conducted by MSHA into the causes of a fatality which occurred at the
mine site on July 2, 1980, when a front-end loader operator (Henry Quarterman)
was drowned after the loader he was driving jumped a berm and went into a
body of water adjacent to a pit loading area. The citations which were issued
are as follows:
Citation No. 091484, July 9, 1980, 30 C.F.R. § 56.9-2.
A Michigan 175B front end loader serial No. 427B253 owned
and operated by St. Catherine Rock Co. was not maintained in a
safe condition in that; the transmission forward and revers~
shift lever had been bent and would not stay engaged in forward gear, allowing the loader to become free wheeling. This
loader was involved in a fatal accident on July 2, 1980.
Citation No. 091485, July 9, 1980, 30 C.F.R. § 56.9-3.
A Michigan 175B front end loader serial No. 427B253 own.ed
and operated by St. Catherine Rock Co. was being operated with
defective brakes. Following a fatal accident that occurred on
July 2, 1980, an inspection of the loader revealed the front
master cylinder empty of brake fluid, the left braking caliper
frozen, and the emergency air locks system inoperable.
Testimony and Evidence Adduced by Petitioner
·Edward Rooth, son of the owner of St. Catherine Rock Quarry, described
the circumstances surrounding the fatal acc·ident of July 2, 1980. He stated
that at 4:00 p.m., the accident victim Henry Quarterman returned to the shop
to add brake fluid to the end loader, and that Mr. Quarterman and Mr. J. D.
Hadley also bled the brakes. Mr. Booth did not remember telling the inspector that they had also added brake fluid around 3:00 p.m, and he thought it
unlikely that the brakes would have needed fluid after only 45 minutes since
it was usually needed only every three to four months. He testified that on
July 2, fluid was put in both front and back cylinders and he did not recall
informing the inspector that brake fluid was put in only the rear cylinder.
Mr. Booth testified that the forward/reverse lever on the loader had
been bent for almost a year due to a rock falling on it. He stated that he
was not involved with the repair work and was not sure whether the lever had
been repaired although he did remember telling the inspector that the machine
had not been repaired. He admitted that the machine sometimes slipped into
neutral but stated that it could easily be put back into forward without taking one's hands off the steering wheel. He indicated that sometime after
4 o'clock he watched Mr. Quarterman drive the loader down the pit ramp, stand
up in the seat, and then go into the water. He did not know how fast the
loader was going although he admitted having told the inspector that it was
about 25-30 miles per hour. (Tr. 8-22).

2140

On cross-examination, Mr. Booth testified that both he and
Mr. Quarterman tested the machine after adding brake fluid, and that the
brakes and the shift lever were working properly. After adding the fluid,
Mr. Booth got into his truck and went down to the pit, which the parties
stipulated was around 390 feet from the top of the ramp. J. D. Hadley was in
his bulldozer, stripping overburden approximately 500 yards away and was
unable to see Mr. Quarterman as he headed down the ramp. Mr. Booth saw
Mr. Quarterman stand up as he came down the ramp and yelled for him to jump
off, but he could. not be heard over the noise of the motor. (Tr. 22-31).
In response to bench questioning, Mr. Booth stated that the water in
the pit was 30 to 35 feet deep, and that the loader usually stopped near· the
stack of material located by the water. He believed that Mr. Quarterman
could not stop the machine while he was standing up, but thought that he
could have dropped the bucket to slow down or driven the loader into the
bank. The machine was also equipped with a manually operated emergency
brake. He noted that Mr. Quarterman had been employed with the company for
over 20 years and was considered an experienced machine operator. (Tr. 33-42).
MSHA Inspector Harry Verdier, confirmecl that he investigated the .. fatal
accident on July 3, 1980, and testified that he had more than 20 years of
experience operating pit trucks, front end loaders, and dozers, and had
perfonned minor maintenance work on them.
Mr. Verdier stated that he inspected the front end loader after it had
been retrieved from the water, and noticed that the forward/reverse_ lever was
in neutral. Through his conversation with Edward Booth, he learned that
there hacl been a problem with the selector lever causing it to slip out of
forward gear, and Mr. Booth told him that a rock had fallen on the lever a
year earlier and damaged it. The steering wheel, but not the lever, had been
replaced. Mr. Booth told Hr. Verdier that when the lever flew out of gear
during operation, he could reposition it by using his foot.
Mr. Verdier testified that in checking the brake system, he and George
Long, a mechanic, unlocked the back seat, checked the rear master cylinder,
and found it to be half full of brake fluid. They stuck their fingers in the
front master cylinder and found no fluid. They could find no broken hoses.
In speaking with Edward Booth, Mr. Verdier learned that brake fluid had been
added at 3 o'clock and at 4 o'clock on the day of the accident. Mr. Booth
told him that .no fluid was put in the front because they had not had brakes
in the front of the loader for some time. Mr. Verdier testified that on
July 9, 1980, Edward Booth stated to his father, "come on dad, you knew those
brakes were bad, they been bad for some time," and that his father had
replied, "you' re just young, you don't understand."
Mr. Verdier stated that when he inspected the loader he noticed that the
back rear disc near the brake pad was rusty, and that the right rear one had
some rust and some shiny spots. The rust proved that the pads were not
rubbing against the disc properly. He also found a frozen left caliper, and
observed that the air pressure gauge measured zero. This being the case, he

2.141

believed that the emergency air lock system should have come on automatically
because the system activates when pressure goes below 60 pounds. He also
noticed that the wheels on the loader were turning freely when it was pulled
from the water, demonstrating to him that it had no brakes. (Tr. 42~53).
On cross-examination, Mr. Verdier explained that he checked the air
pressure gauge on July 3 after the loader had been pulled from the water. He
believed that even though it had been in the water, if it ·was perfectly air
locked, pressure would not have leaked. He believed that the brakes did not
lock because of a defective check valve. (Tr. 62-64).
In response to bench questioning, Mr. Verdier stated that if the gear
lever switch was in neutral the loader would roll on an incline, but if it
was in forward, it would tend to hold still. He thought that since
Mr. Edward Booth had seen Mr. Quarterman half standing, trying to steer the
machine, that possibly the engine had stalled. If the machine was not running, there would be no power steering thereby making it nearly impossible to
steer. With the gear in neutral, the front master cylinder dry of brake.
fluid, and the left rear caliper frozen, the operator would be less able to
control his equipment on an incline. Mr. Verdier conceded that he performed
only visual testing and that the machine was not started because the engine
was full of water and it would have been ruined. (Tr. 68-79).
On redirect examination, Mr. Verdier stated that the battery was missing
when the machine was pulled out of the water, and he believed that the rear
brakes were not adequate to stop the machine although he agreed with
Mr. Edward Booth that an operator could push the lever from neutral to
forward with his foot while in a seated position. (Tr. 82-88).
Testimony and Evidence Adduced by Respondent
J. D. Hadley, an employee at St. Catherine Rock Company for 11 years,
testified that he worked with Mr. Quarterman nearly every day and that he was
an excellent worker. On the day of the accident, Mr. Hadley was at the shop,
where he assisted Mr. Quarterman and Hr. Edward Booth in bleeding the brakes
and adding fluid. Mr. Hadley stated that all four brakes were bled and then
were tested for their stopping efficiency. He then went down one .ramp with
his dozer while Mr. Quarterman went down another with the loader. Within
10 minutes, Mr. Edward Booth approached him, yelling that Mr. Quarterman and
the loader had gone into the water. (Tr. 92-94).
On cross-examination, Hr. Hadley testified that Mr. Quarterman had complained that his brakes were going out, and to remedy the problem, Mr. Edward
Booth bled the plugs and added fluid. Only the back cylinder needed fluid
since the front one was half full, and Mr. Hadley could not recall anyone
having mentioned that the cylinder had been filled earlier that day. (Tr.
95-97).
_In response to bench questioning, Mr. Hadley stated that he had operated Mr. Quarterman's lo-ader the day before the accident and had not had al)y

2142

problems with it. He had heard Mr. Quarterman complain about the loader in
the past because fluid would empty out and the lines.would have to be bled,
and he had no idea why the master cylinder emptied out while the loader was
immersed in the water since he discovered no leaks in the system (Tr. 97-99).
Mr. George Bowman, a field mechanic for Lender Machinery Company for
23 years, testified that he delivered the loader in question to St. Catherine
Rock Company, and had repaired the machine for the past 6 years and inspected
it after the accident. The engine had been removed by the time he arrived to
examine the machine, and he believed that the brake fluid could not have
leaked out of the· machine after leaving the shop unless there had been a
massive rupture. He thought the fluid could have escaped through a hole in
the reservoir cap while the loader was in the water.
Mr. Bowman testified that after inspecting the machine, he d·etermined
that the bent lever and brake calipers did not need to be replaced. Since
the lever did not interfere with shifting, he though the gear problem was
probably due to a weak spring or worn grooves. The only possible malfunction
he saw was in the compensator valve which operates as a shock, easing the
impac't of the disc on the brake. He noticed water on the compensator· indicating a possible leak, which would cause the fluid to run out onto the
ground. He stated that the compensators were repaired after the accident
because they could affect the safety of the machine.
Mr. Bowman testified that the reason the air pressure gauge r.ead zero
when Inspector Verdier looked at it was because it was electrical and no
current was in the system while the battery was out of the machine. He
stated that the emergency air system automatically activates when there is
a loss of air pressure. In his opinion, even if only one half of the brakes
were working, it would have been adequate to stop the machine. (Tr. 101-117).
On cross-examination, Mr. Bowman admitted that he is one of 13 field men
who regularly repair this machine. He verified that one of his delivery men,
a Mr. Long, had told him that there was no brake fluid in the front cylinder,
but he did not know whether Mr. Long had only examined the reservoirs for
fluid or had checked the entire brake system. Mr. Bowman explained that the
emergency brake system is activated by a valve which releases air pressure
when there is a loss of air, and if there was a massive air leak, there would
be no air for the emergency system. He could find no holes in the hoses
which would have caused such an air leak.
Mr. Bowman conceded that if the rear brake system had been operating
properly, the disc would be shiny with no rust on it. Although he believed
that the pistons and calipers were not frozen, he agreed that if they were,
they would have kept the brakes from functioning, and indicated that this
problem could have caused the rust on the rear disc. (Tr. 117-138).
In response to bench questioning, Mr. Bowr.ian stated that the bent lever
did not contribute to the gear prohlems. He also thought that the master
cylinder could be dry even when there was brake fluid behind the piston.

2143

This fluid would be enough to stop the machine, but he conceded that the
fluid might not be adequate for a braking distance of 390 feet, the length of
the incline from the shop to the water. Mr. Bowman stated further that the
emergency brake system could be operated both manually and automatically, and
after completing his repairs of the machine, the hand brake was working
properly. (Tr. 140-154).
Inspector Verdier was recalled and admitted that he had not been aware
that the system was electric and that the absence of power caused the gauge
to measure zero. He still believed that the brakes were not functioning
since the wheels turned freely when the machine was removed from the water
and he disagreed with Mr. Bowman's conclusion that the amount· of brake fluid
behind the master cylinder would be sufficient to operate the brakes
(Tr. 158-162).
Findings and Conclusions
Citation No. 091484
Fact of Violation
This citation alleges a violation of 30 C.F.R. § 56.9-2, which states
that "equipment defects affecting safety shall be corrected before the equipment is used." The equipment defect discovered by the inspector was a bent
lever on the forward and reverse transmission shift lever. The con~ition
affecting safety was the fact that the lever would not stay engaged in forward gear and would slip into neutral causing the machine to become free
wheeling.
The evidence presented at the hearing indicates that the respondent knew
that the lever was bent and that there was a problem in keeping the lever in
gear. The lever had been bent for nearly a year, the result of a rock having
fallen on the steering wheel. While the steering wheel had been replac~d,
nothing had been done to repair the gear lever. Both Mr. Booth and Mr. Bowman
testified, however, that the bent lever did not contribute to the gear
slippage problem. Mr. Rowman concluded that the lever did not need to be
replaced to abate the cited condition because its bent shape did not interfere
with shifting. He testified that the gear slippage problem was more likely
caused by a bad dent, a weak spring, or some worn parts, which were apparently
not visible.
While I agree that the described cited equipment defect (bent lever) is
not the defect affecting safety, I do find that the evidence establishes an
unsafe condition. Mr. Booth admitted that the machine slipped into neutral
causing it to become free wheeling. Inspector Verdier testified that just a
slight tap caused the lever to disengage from its forward position. This
indicates that even a small bump in the road would trigger the condition.
Although Mr. Bowman felt that the lever could be easily slipped back into
gear while the operator remained in a seated position by keeping his hands
on the steering wheel and using his foot to move the lever, the sensitivity

2144

of the lever demonstrates that the condition could arise suddenly and without
the operator's knowledge. As the situation here illustrates, this could pose
a danger if the machine was travelling on an incline.
Inspector Verdier testified that when the machine was pulled from the
water, the forward/reverse lever was in neutral. If the loader had stalled,
as he surmised, and the brakes had not worked properly, the machine would
roll freely with the transmission in neutral. While the loader may not have
stopped if the lever had been in forward, it may have slowed it sufficiently
to have prevented the resulting accident.
In view of the foregoing, I conclude and find that petitioner has established a violation of section 56.9-2. The condition of the lever, which
allowed it to slip from forward into neutral was a condition affecting
safety. When a lever suddenly slips into neutral, it poses a danger to the
unsuspecting operator who should be in full control of the vehicle, and
respondent should have been alerted to the fact that this condition was abnormal. Even if the defective condition did not cause the accident, and even if
the accident had not occurred, I would still find a violation of the cited
safety standard. The question of whether a violation of a cited standard has
occurred is not dependent on the occurrence or non-occurrence of an accident.
Additionally, although the inspector cited the bent lever as the source of
the problem, the unsafe condition was adequately described to apprise the
respondent of the specific violation, and the respondent was not prejudiced.
The citation states that the gear lever would not stay engaged in forward
gear and allowed the loader _to become free-wheeling, see Secretary of Labor
v. Jim Walters Resources, Inc., 8 FMSHRC 1827, 1 BNA MSHA 2233 (1979). The
citation is AFFIRMED.
Citation No. 091485
This citation alleges a violation of 30 C.F.R. § 56.9-3, which requires
that powered mobile equipment be provided with adequate brakes. The inspector determined that the front end loader involved in the accident had defective brakes because his examination revealed that the front master cylinder
was without brake fluid, the left braking caliper was frozen, and the
emergency air lock system was inoperable.
The inspector testified that he found no brake fluid in the front master
cylinder while the rear cylinder was only half full. Although a field mechanic
thought that the amount of fluid in the back would be enough to stop the
loader, he admitted that it might not be adequate if the operator continually
had his foot on the brake for the entire length of the 390 foot incline. The
inspector concluded that the amount of fluid was not sufficient to stop the
loader.
Although Mr. Booth stated that some brake fluid was added to both the
front and rear brake cylinders on the day of the accident, he also stated
that one cylinder already had some and the inference is that he may not have
added fluid to both cylinders on that day. (Tr. 11). This inference is

2145

bolstered by the inspector's testimony that Mr. Booth told him that fluid was
added to only the rear cylinder since the front brakes had been bad for some
time, and Mr. Hadley stated that the front cylinder was half full and no
brake fluid was added. When the inspector checked the machine after the
accident, he found the front cylinder to be completely dry of fluid, and
since no holes were found in the brake lines, consideration must be given to
other evidence which might explain this dramatic loss of fluid in the front
cylinder. According to Mr. Hadley, Mr. Quarterman had complained about the
brakes in the past; and had indicated that the fluid would empty out of the
system. Further, the inspector testified regarding Mr. Booth's statement to
his father, acknowledging that they had known for some time that the brakes
were bad. Evaluation of these facts leads me to conclude that the front
brakes had not been working properly for some time, and that brake fluid had
to be added periodically. Further, even though Mr. Hadley stated that he had
operated the loader the day before the accident, the fact remains that he did
not add more brake fluid to the front cylinder on the day of the accident and
the cylinder was only half full.
Although Mr. Bowman determined that the brake calipers and pistons were
not f'rozen, he agreed that the rusty discs indicated that the rear brake
system was not operating properly. The inspector testified that.the discs
would be shiny if the brake pads were rubbing against the discs. Since they
were rusty, he concluded that the calipers.were not working properly and were
frozen.
Although the inspector found the air pressure gauge measuring zero after
the loader had been retrieved from the water, this does not indicate that the
emergency air lock system was not operating. Further testimony revealed that
the gauge was electrical, and since the battery had been removed from the
loader, the inspector's reading was inaccurate. Although the inspector based
his finding that the emergency air brake system was inoperable on the gauge
reading of zero, and the fact that the wheels spun freely as the machine was
lifted from the water, there is no conclusive evidence establishing whether
the entire system was working properly on the day of the accident. However,
I conclude that the preponderance of the evidence adduced establishes that
the brakes were not working properly on the day of the accident and were
therefore, not adequate. Accordingly, I find that p~titioner has established
a violation of section 56.9-3, and the citation is AFFIRMED.
Negligence
With regard to the forward/reverse lever, the evidence establishes that
the respondent knew that the lever had a tendency to slip out of forward gear
and into neutral. Mitigating the fact that the respondent knew it was using
equipment with a defective part, is the respondent's argument that the driver
could easily put the lever back in gear with his foot without taking his
hands off the steering wheel. Although this technique may have worked adequately on level ground, it did not provide a viable method when the machine
was running on an incline with poor brakes. The respondent knew where the

2146'

machine was operating and i t knew that there were brake problems. I, therefore, find a high degree of negligence on the part of the respondent with
regard to Citation No. 091484.
I also find that the respondent knew that there was a problem with the
front brakes, and unjustifiably permitted the loader to be operated with
reliance on the rear brakes to stop the vehicle. Mr. Hadley had heard
Mr. Quarterman previously complain about the brakes in the past, and even so,
on the day of the accident, brake fluid was put only in the rear master
cylinder. William Booth's undisputed statement to his father shows knowledge
of the bad brakes, and even though the senior Mr. Booth was present at the
hearing, he did not testify or refute the statement. The testimony and evidence lead me to conclude that the front brakes were not working and this
same testimony and evidence leads me to conclude that the respondent was
fully aware of the problems with the brakes.
Respondent seems to argue that the rear brakes could have stopped tbe
vehicle if the accident victim had lowered the bucket, pulled the manual
emergency brake, or steered into the bank. Respondent apparently attempts
to share some of the responsibility for the accident with the deceased,
because Mr. Quarterman did not use these alternative methods of ~raking.
I cannot conclude that the evidence establishes that Mr. Quarterman was
contributorly negligent in operating the loader. The loader was regularly
operated on the incline between the shop and the pit, and respondent was
aware of the defective brakes and knew or should have known that an- emergency
situation could have arisen~ No evidence was offered showing that respondent
instructed its loader operators on the use of emergency braking procedures.
In addition, Mr. Quarterman was an experienced machine operator, having been
employed with the company for over 20 years. This experience leads me to
believe that he would have tried every feasible method of stopping the loader
when the brakes went out, and the fact that he was seen standing suggests an
attempt to steer the machine to safety. I, therefore, find that respondent
was extremely negligent in permitting this loader to be operated when it was
fully aware of the braking problems.
Gravity
In this case, the defective front-end loader resulted in the death of
the operator, and I believe it is reasonable to conclude that both violations
may have contributed to the accident. I therefore find that the violations
were extremely serious.
Good Faith Compliance
The inspector issued a withdrawal order after making his post accident
inspections. Petitioner states that the violations were abated in good
faith and the evidence of record supports this conclusion (Tr. p. 176, Exh.
G-5). As a matter of fact, the loader was practically overhauled, and I
have considered this fact in assessing the penalties.

Size of Business and Effect of Civil Penalties on Respondent's Ability to
Remain in Business
The parties stipulated that respondent is a small crushed stone operator
employing approximately seven employees and that the mine operates one daily
8-hour production shift 5 days a week. The parties offered no evidence on
the effect of a civil penalty on respondent's ability to remain in business.
Accordingly, I cannot conclude that the civil penalties assessed will
adversely affect the respondent's ability to remain in business.
History of Prior Violations
Respondent has no previous history of paid or assessed violations, and
I have taken this into consideration in assessing the penalties for the
citations which have been affirmed.
Penalty Assessment
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 penalties are reasonable and appropriate in the
circumstances and they are irnpose<l by me for each of the citations which have
been affirmed.
Citation No.

Date

091484
091485

07/09/80
07/09/80

30 C.F.R. Section
56.9-2
56.9-3

Assessment
$1,500
2,500

ORDER
The respondent IS ORDERED to pay civil penalties in the amounts shown
above, totalling $4,000 within thirty (30) days of the date of this decision
an<l or<ler, and upon receipt of the same by MSHA, this matter is DISMISSED.

1ft~.~~t~
Administrative Law Judge

Distribution:
David A. Davis, Esq., Davis & Skidmore, P.O. box 127, Bushnell, FL
33513 (Certified Mail)
Ken W. Welsch, Esq., Offic~ of the Solicitor, U.S. Department of Labor,
1371 Peachtree Street, N.W., Room 339, Atlanta, GA 30367
(Certifie<l Mail)

2148

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

SEP 17 &\\

Civil Penalty Proceeding

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

Docket No. WEVA 81-186
A/O No. 46-05121-03038F

Petitioner
v.

Wayne Mine
MONTEREY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
AND

ORDERING PAYMENT OF CIVIL PENALTY
Appearances:

Edward H. Fitch, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner;
Timothy M. Biddle, Esq., Crowell & Moring,
Washington, D.C., for the Respondent.

Before:

Judge Cook

On January 22, 1981, the Secretary of Labor (Petitioner) filed a petition for assessment of civil penalty in the above-captioned case pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et ~· (Supp. III 1979) (Act). The petition charges Monterey Coal
Company (Respondent) with a violation of mandatory safety standard 30 C.F.R.
§75.1726(b) in that:
It was revealed during the investigation of a fatal accident, based upon sworn testimony and evidence observed at the
scene of the accident that the victim and continuous miner
operator were performing the work of evaluating damage
sustained to the miner under the ripper head that was not
blocked in the elevated position in the No. 2 entry, on the
Intake Mains Section (001), being developed in the direction
of the Intake Airshaft.
An answer was filed, the case was consolidated with the associated
notice of contest proceeding in Docket No. WEVA 80-322-R, a prehearing
order was issued, and the matter was scheduled for hearing. Various
motions seeking approval of settlement were filed on May 8, 1981,

2149

September 1, 1981, and September 8, 1981. The settlement proposed in
the September 8, 1981, filing is identified as follows:
Order No.

Date

30 C.F.R.
Standard

Assessment

Settlement

675312

3/19/80

75.1726(b)

$1,000

$1,000

Information as. to the six statutory criteria contained in section 110
of the Act has been submitted. This information, found in Docket Nos. WEVA
80-322-R and WEVA 81-186, has provided a full disclosure of the nature of
the settlement and the basis for the original determination. Thus, the
parties have complied with the intent of the law that settlement be a
matter of public record. The various filings submitted by the parties
are set forth below.
On May 8, 1981, the Petitioner filed a motion requesting approval of a
$500 settlement which stated, in part, as follows:
This case involves one violation of 30 CFR 75.1726(b)
which was originally assessed a penalty of $1,000. The
Secretary has determined, based on the attached letter filed
by counsel for Monterey, that a voluntary penalty payment of
$500 is an appropriate resolution of the conflict involved in
this matter.
As a condition of the settlement Monterey has agreed to
withdraw its notice of contest involving this citation in
Docket No. WEVA 80-322-R.
The violation involves the fatality of a maintenance
foreman who, knowing repair work was being done on the
hydraulic hose, failed to block a miner ripper head before
reaching under the ripper head. The victim apparently did
not believe the ripper head would fall when the hose was
disconnected. Blocking material was present in the immediate area, and the victim, being a foreman, should have been
the individual most responsible for complying at that instant
with the standard cited in the citation involved in this
proceeding.
While the Secretary does not adopt the contents of
counsel's letter, it is clear to the Secretary that the
settlement is consistent with the remedial purposes of the
Federal Mine Safety and Health Act of 1977, and is in the
range of a penalty the Seeretary would expect to be assessed
if the case proceeded to a hearing on the merits.
The attached letter from counsel for the Respondent stated, in part, as
follows:

2150

The deceased, John Groves, was a maintenance foreman at
Monterey's Wayne Mine in West Virginia. On March 19, 1980,
at about 10:45 p.m., Groves and a miner operator named Wilbur
were changing bits on the ripper head of a continuous mining
machine which was de-energized and parked in an intersection. [l/] The ripper head was elevated approximately 34 feet as they performed that task. At the same time, two
repairmen were preparing to change an O-ring at a fitting on
a hose which was part of the hydraulic system for the right
support jack of the ripper head. As they changed bits, Groves
and Wilbur noticed some fluid leakage under the ripper head.
Groves began to peer under the ripper head to figure out where
the fluid was coming from.
According to the testimony given during the MSHA accident
investigation, one of the repairmen, Robert Burress, walked
around to the front of the miner prior to disconnecting a
hydraulic hose to replace the O-ring and told Groves that he
was going to have to take the hose off. He recalls specifically telling Groves that he was afraid the jack would let
the ripper head down when he disconnected the hose. According
to Burress, Groves told him to go ahead and disconnect the
hose because a safety valve would hold the ripper head in an
elevated position. Burress returned to the side of the
machine and disconnected the hose. When he disconnected it,
the ripper head fell on Groves who had inexplicably crawled
part way under the ripper head, apparently to get a closer
look at the fluid leak. It was clear from the testimony of
the witnesses that Groves did not believe the ripper head
would fall when Burress disconnected the hose. Unfortunately,
Groves was wrong and paid for the mistake with his life.
Several factors suggest a lower penalty would be more
appropriate than the $1,000 assessed. First, Groves was a
maintenance foreman who had an impeccable safety record and
who was characterized by the witnesses as being "safety
conscious." Monterey has records to show that Groves was
trained specifically in the requirement for blocking raised
equipment. Groves signed a statement of company policy to
that ·effect. Moreover, Groves himself had instructed miners
in blocking procedures. Witnesses confirmed that Groves knew
how to block equipment; in fact he had demonstrated this by
using blocking procedures only three days prior to the accident. On the day of the accident, there was no impediment
to blocking the elevated ripper head. Wooden blocks provided
for that purpose were located near the scene of the accident.

1_/

The fatal accident investigation report prepared by the Mine Safety and
Health Administration states that the accide11t occurred on March 17, 1980.

2151

The inspector who issued the Order following the investigation stated on MSHA Form 7000-4 (his "worksheet"):
"It is relevant to note that the victim was
a supervisor of equipment maintenance and was
trained in hydraulics, block [sic] of equipment, etc. and has instructed miners in the
aforementioned at this mine. Also, it was
reyealed during the investigation that the
victim assisted other mechanics in blocking
up the ripper head of the miner a few shifts
prior to the accident, which indicated that
he was knowledgeable of the related hazards.
* * * The fatal act committed by the victim
was strictly contrary to the company policy
in effect, the instructions he had been given
and instructions and/or training he had given
the miners. * * * The management personnel
and miners demonstrated an outstanding attitude
and was [sic] very cooperative in helping to
obtain all the surrounding.facts of this fatal
accident."
The circumstances of this tragic fatality indicate truly
idiosyncratic conduct on the part of the foreman who was
killed. I cannot discern anything Monterey could have done
differently to prevent the accident. The accident occurred
because of the inexplicable conduct of an experienced and
safety conscious maintenance foreman who was trying to do'
his job and apparently believed he was doing it safely.
While we recognize the Act mandates strict liability, under
the peculiar circumstances of this accident no legitimate
purpose would be served by penalizing the company with a
penalty assessment of $1,000.
On July 23, 1981, an order was issued denying the Petit.ioner' s May 8,
1981, motion for approval of settlement. The order stated, in part, that:
[T]he information contained in the official case files in
Docket No. WEVA 81-186 and Docket No. WEVA 80-322-R, the
associated notice of contest case, presently indicates
that the continuous miner operator was under the raised
ripper head of the machine, and thereby exposed to danger,
while under the direct supervision and control of the
maintenance foreman shortly prior to the occurrence of the
accident which claimed the maintenance foreman's life.
On September f, 1981, the Respondent filed a motion for reconsideration
of settlement denial stating, in part, as follows:

2152

Respondent Monterey Coal Company respectfully submits
this Motion to provide the presiding Judge with additional
information about the actions of the continuous miner operator immediately prior to the accident.
As explained in the Solicitor's Motion to Approve
Settlement, Monterey was cited for a violation of 30 C.F.R.
§ 75.1726(b) after the occurrence of an accident at Monterey's
Wayne Mine which killed a maintenance foreman. The information provided herewith supplements the information provided
in the Solicitor's Motion to Approve Settlement.
In an effort to provide the presiding Judge with complete
information with respect to the activities of the miner operator, who was helping the deceased maintenance foreman determine the location of a fluid leak under the continuous mining
machine, counsel for Monterey has reviewed Monterey's 'transcripts of the accident investigation interviews conducted by
MSHA shortly after the accident, reviewed MSHA and State of
West Virginia accident reports, studied Monterey's reports of
the accident and, on August 28, 1981, interviewed the miner
operator who witnessed the accident, Mr. David Wilbur.
Both the Order of Withdrawal and the MSHA Form 7000-4
(Inspectors Statement) reflect the issuing inspector's belief
that Hr. Wilbur was under the ripper head (the ripper head
was elevated approximately 40" off the mine floor before it
fell) with the maintenance foreman immediately prior to the
accident. The Order of Withdrawal reads, in part:
It was revealed during the investigation of
a fatal accident, based upon sworn testimony
and evidence observed at the scene of the
accident that the victim and continuous miner
operator were performing the work of evaluating
damage sustained to the miner under the ripper
head that was not blocked in an elevated position.
The inspector's statement reads, in part:
It is worthy to note the miner operator was
under the miner ripper head with the victim
prior to the occurrence of the accident, in
that the helper stepped out from under the
head immediately prior to the accident.
Monterey believes the inspector who issued the order and
who made the statement on Form 7000-4 concluded that the miner
operator was under the ripper head based on the interviews

2153

conducted of the miner operator shortly after the accident.
Prior to interviewing Mr. Wilbur, the MSHA accident investigation team interviewed several other crew members who were
present when the accident occurred. None of those crew
members were located in a position to see what the deceased
maintenance foreman and Mr. Wilbur were doing immediately
prior to the accident. For instance, the repairman who disconnected a hose coupling which caused the head of the mining
machine to fall testified as follows:
DAVIS [MSHA]:

Q.

Did you see [Mr. Groves, the
maintenance foreman] at any
time prior to the accident
looking in that area where
the hose coupling was to be
disconnected?

BURRESS:

A.

No, sir. He was in front of
the miner all the time that I
was up there at the miner
performing that work.

*

*

*

DAVIS:

Q.

Immediately prior to this accident did you verbally inform
Mr. Groves and Mr. Wilbur who
was working with him in front of
the miner of what you intended to
do in removing the hose coupling?

BURRESS:

A.

Yes, sir. I didn't speak directly
to David Wilbur, I spoke directly
to John Groves, but I spoke loud
enough so David Wilbur should have
heard it because he was standing
close to John Groves and Lemasters
heard what I said to him and he was
back at the jack which is probably
12' • • • from it.

DAVIS:

Q.

What did you tell them exactly,
do you remember?

BURRESS:

A.

Yes, sir, I said, "John, I tightened
t?at fitting and the leak won't stop,
the oil ring's broke, I'm going to
have to take the hose off to replace
the oil ring and I'm afraid the head
might come down because we don't trust

2154

those safety valves or anything in
those heads." And John says, "O.K.,
it'll stay there." That's exactly
what he said, "O.K., it'll stay there."
A few questions later, Burress made the following statement:
DAVIS:

Q.

You·did not observe their location or
work or whatever they were observing
and so forth after you had looked up
and seen Mr. Groves shining his light
over top of the ripper head?

BURRESS:

A.

No, sir, I didn't. The only way I
could have seen what, you know, they
might have been doing was to have quit
what I was doing and walked around the
edge of the head there. As far as I
knew they were through because they
had set all the bits, they were through
setting the bits and I guessed they
observed that cut place in there and
wanted to get a closer look at it.
That's the only thing I could figure
out, it was something that wasn't
planned to do, you know, they just
went ahead and done it, went ahead
and looked at it.

When David Wilbur was interviewed, Investigator Davis
read into the investigation record a written statement prepared by Mr. Wilbur following the accident. After reading
into the record part of Mr. Wilbur's account of the events
leading up to the accident, the following exchange took
place:
DAVIS:

[reading statement of David Wilbur]

*** 'I trammed the continuous miner
down the number 2 entry to its
present location, which is the
accident scene. Me and John Groves
started removing a broken bit holder
and removed a broken bit.'
WILBUR:

The holder wasn't broken, just had a
broke bit in it. We took it out.

DAVIS:

Thank you. We observe that it was a
bit. Now let me stop just a minute.

2155

As I am going through this [Wilbur's
written statement], anything that
should happen to come to your mind that
you've forgotten or is different, you
interrupt me would you?
[continuing to read Wilbur's statement]
We observed that a bit had damaged the
transmission gear case. Lemasters
and Burress were working on the right
side of the miner, that's the operator's
side, replacing and [sic] "O" ring to
the right head jack ("O" ring to the
staplelok fitting".) John and I were
up under the ripper head about one minute
prior to the accident. I called out and
then the head fell.'
WILBUR:

No, I don't think we were all the way
up under it. We were just • • • we
were more or less leaning under. I
don't know e~actly how far we was up
under, but we wasn't crawled up under.
We more or less leaning there and kind
of leaned down under it looking at it.

DAVIS:

Q.

But you were, were you positioned
under the confines of the head itself,
your body?

WILBUR:

A.

I guess we was, yeah, I guess we was,
not all the way but we was under it.

DAVIS:

Q.

Partially?

[no response]
DAVIS:

[continuing to read Wilbur's statement]
'I called out and then the head fell
(at 10:50 p.m.).'

WILBUR:

I don't know if I called out then or if
I was behind it, I just ain't real
clear about where, I don't know if I
was exact behind him or maybe to the
side of him, I don't know exactly what
I seen, I remember turning and calling
at him, reaching for him.

DAVIS:

O.K., we will proceed. [continuing to
read Wilbur's statement] 'John Groves

2156

told me as he was leaning down under
the head that it was going to have to
be welded up. When I seen it fall I
was located to the rear of him and
about three feet from him.'
Later in the Wilbur interview, the following exchange
took place:
DAVIS:

Q.

And, Mr. Wilbur, at the time that you
were seated under the ripper head
that was the ripper head?

WILBUR:

A.

I didn't crawl up under it all the way,
I just more or less leaned up under it,
I raised up and kind of looked up under
it to see what needed to be fixed.

DAVIS:

Q.

Would that have been from the operator's side that you maybe have leaned
under the ripper head?

WILBUR:

A.

Yes.

DAVIS:

Q.

How much did your body did you project
under the head?

WILBUR:

A.

I don't know, I don't know exactly, I
just more or less looked up under it
to see if it was broke, the arm was
broke or just needed a bolt or, you
know, something like that.

DAVIS:

Q.

Did you position, do you recall
[whether] you positioned your head
or shoulder or any portion thereof
up under it or just maybe your·arm?

WILBUR:

A.

I don't know, I could have had my
head under it or something, I don't
know.

DAVIS:

Q.

You're not for sure though, are you?

WILBUR:

A.

No, I'm not.

Mr. Wilbur's oral statement given to undersigned counsel
on August 28, 1981, and which presumably would reflect his
testimony if this matter must go to trial, confirmed his
statements during the accident investigation interview.

215?

Mr. Wilbur ·said that shortly before the accident occurred,
he and the maintenance foreman were bending down side by
side trying to locate the source of a leak under the ripper
head near the chassis of the machine. He described their
position as "leaning up under" the ripper head. When asked
to describe his exact position when they were "leaning up
under" the ripper head, Mr. Wilbur said that he believed that
his head might have moved siightly under the foremost part of
the ripper head, but not his body. He said that at no time
was his body under the ripper head. When asked whether he
would have been killed or injured if the ripper head had
fallen when he was in that position, Mr. Wilbur said that he
wasn't sure but that it was possible that his head would have
been grazed. Immediately prior to the accident, Mr. Wilbur
moved back a short distance from the ripper head; Mr. Groves,
the deceased, apparently decided to crawl up and get a closer
look at the leaking transmission case when the head fell on
him.
From the series of events which occurred immediately prior
to the accident, it is clear that the maintenance foreman
believed that the ripper head had a ~heck valve which would
prevent it from falling. No "work" in the usual sense of the
word was being perfonned under the ripper head by the maintenance foreman or by Mr. Wilbur. Instead, the two of them
were simply trying to figure out where a leak was coming from.
The maintenance foreman apparently wanted a closer look, so
he crawled under the ripper head to see better; Mr. Wilbur
was standing close by awaiting his report. At that moment
several feet away, Mr. Burress disconnected a hose on the
mining machine which released enough hydraulic pressure to
cause the ripper head to fall on Mr. Groves. Mr. Wilbur was
not injured.
Monterey believes the facts set forth above are accurate.
Monterey also believes that it would serve little purpose to
assess a high civil penalty to deter it from future violations
of this nature. As recognized by the MSHA investigation team
(and stated specifically on the Inspector's statement),
Monterey had a specific company rule which prohibited work on
raised equipment unless it was blocked and had repeatedly
instructed its maintenance personnel to that effect both
orally and in writing. Material to block the ripper head was
located nearby the scene of the accident. The deceased maintenance foreman was described by both crew members and the
company as being highly skilled and safety conscious. He
obviously believed that the ripper head had a check-valve
which would not permit the ripper head to fall, and said so
specifically to Mr. Burress, who was preparing to disconnect
the hydraulic hose.

2158

Given all these circumstances, Monterey believes there
would be nothing gained by going to trial.to explore the
uncontested facts associated with this accident. In its
view, the only issue in such a proceeding would be the
amount· of civil penalty that should be assessed based on
the six statutory factors under § llO(i) of the Act. The
two most important factors in this case are gravity and
negligence. The gravity of the violation is clear: a
fatality occurred. Negligence is the remaining factor and
Monterey believes it is the sole factor for consideration
in this case. The Congressionial purpose for requiring
assessment of civil penalties on a strict liability basis
is to deter future violations and to remind operators of
the high degree of care owed the miners. Monterey is well
aware of its obligation to the miners and the requirement of
complying with the mandatory standards under the Act. No
violation of this nature had occurred at the mine before,
according to MSHA's computer records. Monterey had a
specific and communicated rule prohibiting the activity
which killed the maintenance foreman. The deceased foreman was experienced and had been thoroughly trained. He
made a mistake and paid for it with his life.
Under these circumstances, Monterey believes that the
amount agreed to by MSHA and by Monterey is appropriate and
consistent with the public interest. It is the presiding
Judge's duty to assure that a settlement was not reached
for improper reasons violative of the Mine Safety Act's
objectives. Davis Coal Co., 2 FMSHRC 619 (1980). Monterey
believes the facts presented justify approval of the settlement as consistent with the objectives of the Act.
The foregoing statements did not materially change the foundation upon
which the determination was made that the proposed $500 settlement could not
be approved. Therefore, an order was issued on September 2, 1981, denying
the Respondent's motion for reconsideration of settlement denial.
On September 8, 1981, the Petitioner filed a motion requesting approval
of a $1,000 settlement. The motion states, in part, as follows:
Following the Administrative Law Judge's Order Denying
Respondent's Motion for Reconsideration of Settlement Denial,
issued on September 2, 1981, counsel for the parties discussed
this matter anew on September 3, 1981.
The Respondent has now proposed that these matters be
resolved by the full payment of the original assessment in
this matter, and the voluntary withdrawal of their notice
of contest proceeding (WEVA 80-322-R) upon approval of the
resolution of the civil penalty proceeding.

2159

As the terms of the proposed settlement have been
changed, the Secretary now submits this new proposal for
settlement.

The reasons given above by counsel for the parties have been reviewed
in conjunction with the information submitted as to the six statutory criteria contained in section 110 of the Act. After according this information
due consideration, -it has been found to support the proposed $1,000 settlement. It therefore appears that a disposition approving the settlement will
adequately protect the public interest.
ORDER
Accordingly, IT IS ORDERED that the proposed $1,000 settlement, as outlined above, be, and hereby is, APPROVED.
IT IS FURTHER ORDERED that the March 2, 1981, order consolidating the
proceedings in Docket Nos. WEVA 80-322-R and WEVA 81-186 for hearing and
decision be, and hereby is, DISSOLVED.
IT IS FURTHER ORDERED that the Respondent, within 30 days of the date
of this decision, pay the agreed-upon penalty of $1,000 assessed in this
proceeding.

Distribution:
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue,
N.W., Washington, DC 20036 (Certified Mail)
Administrator for Metal and Nommetal Mine Safety and Health,
U.S. Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

2160

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE. SUITE 400

SEP 18 1981

DENVER. COLORADO 80204

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

BLACK RIVER QUARRY, INC.,
Respondent.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 81-78-M
ASSESSMENT CONTROL NO.
45-00006-05006F
MINE:

Black River Quarry

~~~~~~~~~~~~--'-'~~~~~~

DECISION
Appearances:
Ernest Scott, Jr., Esq., Office of the Solicitor
United States Department of Labor
8003 Federal Office Building, Seattle, Washington
for the Petitioner
James L. Hawk, President,
Black River Quarry, Inc.
6808 South One Hundred Fortieth, Seattle, Washington
for the Respondent
Before:

Judge Virgil E. Vail
DECISION AND ORDER
STATEMENT OF THE CASE

This proceeding was brought by the Secretary of Labor pursuant to
Section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801, ~ ~· (hereinafter the Act), for assessment of a civil penalty for
an alleged violation of a mandatory safety standard. A hearing was held on
April 29, 1981 at Seattle, Washington. The respondent was no~ represented
by counsel, however, James L. Hawk, President of the respondent company,
appeared on its behalf.
At the conclusion of all of the evidence, the parties agreed to waive
the filing of post hearing briefs and argued their respective positions
relative to this case.

2161

STIPULATIONS
The parties stipulated as follows:
1. That a proposed assessment was issued to the
respondent received a copy thereof.

~espondent

and that

2. Respondent admits paragraphs I and II in the petition for
assessment in this case, ~hich relate to jurisdiction.
FINDINGS OF FACT

1. Respondeni operates a rock quarry business involved in drilling
and blasting rock, which is crushed and sold primarily for road use.
2. Citation No. 586066 was issued to the respondent subsequent to a
fatal accident which occurred on October 1, 1980, involving Clyde Knerson,
(hereinafter referred to as "Knerson").
3. At. the time that the above citation was issued, respondent
employed approximately 23 to 24 employees and produced approximately a
quarter of a million tons of material per year •. The gross sales from
production was approximately $1,000 ,000 (Tr,· 12).

4. Knerson was employed by the respondent in the capacity of a
working foreman. He had worked for respondent for 30 years at various jobs
including mechanic and crusher man (Tr. 26). Knerson also served as
respondent's safety man (Tr. 35 and 45).
5. On October 1, 1980, Knerson was attempting to replace a defective
right hydraulic cylinder on one of respondent's off-road trucks a 1963
Euclid, 16 cubic yard capacity, off-road, dump truck numbered 103
(Exhibits P-1 and R-A and Tr. 16).
6. The defective hydraulic cylinder was one of two which raises the
box. To replace the cylinder, it is necessary to raise the box and remove
the two pins from the respective ends of the cylinder (Tr. 22)~

7. The box on the truck is counter-weighted so that when it is fully
raised it is necessary to power it back down with the hydraulic cylinders
(Tr. 20).
8. On the day of the fatal accident, Raymond Ballard drpve the truck
involved herein, to the respondent's yard to have the hydraul'ic cylinder
repaired. He raised the box on the truck to its full height and left it
that way to be repaired (Tr. 58).
9. Proper procedure for working on a truck with the box raised is to
put a pin into a hole provided in the truck's frame and the box which
prevents the box from falling (Tr. 20 and Exhibit R-C).

2162

10. Knerson was assisted in the repair work on the truck by John
Calistro, a truck driver for the respondent.
11. Knerson first removed the hydraulic fluid hoses to the cylinders
and then assisted Calistro in removing the top pin on the defective
cylinder.
12. Knerson then hooked a "come-along" from the frame of the truck to
the raised box. When the "come-along" is operated, it pulls down the
raised box and releases pressure on the cylinder so that the bottom pin can
be removed (Tr. 33).
13. Knerson stood on the frame of the truck under the box, and
operated the "come-along" while Calistro went underneath to remove the pin.
When Knerson applied pressure with the "come-along" the box fell crushing
him between the box and frame and causing his death (Tr. 34).
14. The pin had not been placed in the frame of the truck to prevent
the box from falling (Tr. 34).
15. Knerson was considered a competent, conscientious and safe worker
by fellow employees (Tr. 48 and SO).

ISSUES
Two basic issues are involved in the assessment of a civil penalty:
(1) did a violation of a mandatory safety standard occur, and (2) what
amount should be assessed as a penalty if a violation is found to have
occurred.
In determining the amount of civil penalty that should be assessed for
a violation, the law requires that six factors be considered: (1) history
of previous violations; (2) appropriateness of the penalty to the size of
the operator's business; (3) whether the operator was negligent; (4) effect
of the penalty on the operator's ability to continue in business; (S)
gravity of the violation; and (6) the operator's good faith in attempting
rapid abatement of the violation.

DISCUSSION
Citation No. 586066 .!:./ charges the respondent with having violated
mandatory safety standard 56.14-30. The standard provides that:
56.14-30 Mandatory. Men shall not work on or from
a piece of mobile equipment in a raised position until
it has been blocked in place securely. This does n~t
preclude the use of equipment specifically designed as
elevated -mobile work plat forms.

1/

On October 1, 1980 about 12:45 p.m. an employee of Black River Quarry,
Inc. was crushed to death while changing the right hydraulic cylinder
on a 16 cubic yard capacity 1963 model T0-63 Euclid dump truck numbered
103. The victim was positioned between the raised, unblocked dump bed
and the truck frame when the le ft hydraulic cylinder failed and the
truck bed fell.

2163

The facts in this case are undisputed. All of the evidence shows that
Knerson worked under the raised truck box without putting the pin that is
provided to prevent or block the box from falling in place. I find that
Knerson's act'ions were in violation of mandatory safety standard 56.14-30.
Respondent argues that they should not be held responsible for the
negligent actions of its employees when such actions are contrary to its
safety training and instructions. Further, the deceased employee was
respondent's safety instructor, had an excellent safety record during his
past 30 years of employment with the respondent and never evidenced this
type of aberrant and unpredictable action. Also, respondent argues that
the government cannot expect businesses to have employees who are totally
infallible.
·
A careful review of all of the evidence in this case shows that the
respondent was not negligent in this case. The deceased employee had been
furnished safety instructions through courses given by the Mine Safety and
Health Administratibn and had reviewed fatalgrams with his supervisor
pertaining to the exact type of accident involved herein (Exhibit R-E). He
had been asked prior to the accident by both Ballard and Calistro about
placing the pin in the truck box to keep it from falling (Tr. 33 and 58).
However, the fact that the evidence fails to establish any negligence
on the part of the respondent in this case does not result in a lack of
liability on respondent's part for the violation of mandatory safety
standard 30 C~F.R. 56.14-30. The Federal Mine Safety and Health Review
Commission has held that an operator is liable for violations of the
mandatory safety standards without regard to fault. United States Steel v.
Secretary of Labor, 1 BNA MSHC 2151 (1979) and Secretary of Labor v.
Marshfield Sand and Gravel, 1 BNA MSHC 2475 (1980).
Further, I concur with the decision reached by Judge Cook in Secretary
of Labor v. Ben M. Hogan Company, Inc., 3 FMSHRC 1121 (1981). Judge Cook
considered a similar set of facts to the case here under consideration. An
employee, while sitting on the tire of a loader was attempting to work on
the engine with the transmission in gear and the bucket raised. The loader
was not blocked or turned towards a bank and started ahead pulling the
employee into the machine causing his death. Judge Cook found that the
respondent demonstrated no negligence in that case. However, he found that
this does not result in a lack of liability for the violation of a
mandatory safety standard. He pointed out that it has consistently been
held that a mine operator may be held liable for a violation of a mandatory
safety standard regardless of fault. El Paso Rock Quarries, Inc., 3 FMSHRC
35, 2 BNA MSHC 1132 (1981), United States Steel Corporation, 11 FMSHRC 1306,
'
1 BNA MSHC 2151, 1979 CCH OSHD par. 23,863 (1979)!

As to assessing a penalty in such a case as this where the respondent
is found not to have been negligent, the Act has addressed the question in
Section 110 which contains the Act's major penalty provisions. In
mandatory terms~ section .llO(a) directs the Secretary, who has enforcement
responsibility under the Act, initially to assess a penalty for each
violation; section llO(i) similarly provides that the Connnission, which has
ajudicative responsibilityJ "shall have authority to assess all civil
penalties in (the) Act." l
The language of the two sub-sections --- under the language of all of
section 110 --- is plainly based on the premise that a penalty will be
assessed for each violation at both the Secretarial and Connnission levels.
Secretary of Labor v. Tazeo, Inc. Docket No. VA 80-121 (1981). The Mine
Act's legislative history shows that Congress intended a mandatory penalty
structure. Congress consistently described penalties as mandatory. In
general, see Senate Subconnnittee on Labor, Comm. on Human Resources, 95th
Cong. 2nd-sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 85,. 88, 375-376, 600-601, 629, 910, 1167, 1211-12, 1364-65
0978) ("Leg. Hist."). The Review Commission stated in Tazeo, Inc., supra,
that both the text and legislative history of section 110 make clear that
the Connnission and judges must assess some penalty for each violation
found.

2/

Section llO(a) provides in relevant part:

The operator of a coal or other mine in which a violation occurs of a
mandatory health or safety standard or who violates any other provision of
this Act, shall be assessed a civil penalty by the Secretary which penalty
shall not be more than $10,000 for each such violation •.••
Section llO(i) provides:
The Commission shall have authority to assess all civil penalties
provided in this Act. In assessing civil monetary penalties, the
Commission shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the violation,
and the demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation. In proposing
civil penalties under this Act, the Secretary may rely upon a,isununary
review of the information available to him and shall not be required to
make findings of fact concerning the above factors.

2165

Accordingly, the respondent is found to be liable for .the violation of
mandatory safety standard 30 C.F.R. § 56.14-30.
In determining the amount that should be assessed as a civil penalty,
I find as follows:
A.

History of Prior Violations

Although there was no direct proof as to the number of prior
violations acquired by the respondent, there was testimony by its president
that there were some payments made (Tr. 13). I conclude that the history
of prior violations did not warrant any increased civil penalty assessment
in this case.
B.

Size of Business

The parties agreed that the mine in question employed 23 to 24 people
at the time of the violation and had sales of a gross amount of $1,000,000.
However, at the time of the hearing, the employees were reduced in numbers
due to a depressed demand for its products from the construction industry.
In 1980 the respondent's size in terms of production was a quarter of a
million tons. I conclude that the respondent was a small to medium sized
operator.
C.

Good Faith Compliance

The respondent demonstrated good faith in this instance by inunediately
calling all employees together after this accident and instructing them on
the proper method of blocking dump trucks before working on them.
D.

Negligence

The record supports a finding that the respondent was not negligent in
causing this accident. The MSHA inspector testified that he did not give
them much for negligence because he was convinced it was respondent's
policy to pin the raised truck beds before working on them (Tr. 47).
However, as stated above, the lack of negligence on the respondent's part
does not avoid the assessment of a penalty.
E.

Gravity·

In view of the fatal accident which resulted , it is found that the
violation was extremely serious. Further, with the other employee,
Calistro, working under the truck the possibility of his injur~ or death
existed.

2166

F. Effect on Operator's Ability to Continue in Business
The respondent's president testified that paying a penalty would not
affect their ability to continue in business (Tr. 13). I find that a
penalty properly otherwise assessed in this proceeding will not impair the
operator's ability to continue in business.
Penalty Assessed
Upon consideration of the entire record in this case, I find that
assessment of a penalty of $400.00 is warranted.
ORDER
The respondent is ORDERED to pay a civil penalty of $400.00 within
30 days of the date of this decision.

~~L~

Vir~Vail

Administrative Law Judge
Distribution:
Ernest Scott, Jr., Esq.
Office of the Solicitor
United ~tates Department of Labor
8003 Federal Office Building
Seattle, Washington 98174
Mr. James L. Hawk, President
Black River Quarry, Inc.
6808 South One Hundred Fortieth
Seattle, Washington 98178

216'7

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE. SUITE 400
DENVER, COLORADO 80204

SEP 22 111

)

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

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 81-134

)

v.

)
)

C F & I STEEL CORP-ORATION,

ASSESSMENT CONTROL NO.
05-00296-03055

)
)

Respondent,

MINE: Allen Mine

)
)

~~~~~~~~~~~~~~~~~~

DECISION
Appearances:
Katherine Vigil, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Build{ng
1961 Stout Street
Denver, Colorado 80294
For the Petitioner
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290
For the Respondent
Before: John A. Carlson, Judge
This case, heard under provisions of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq [the "Act"], arose out of an
inspection of respondent's underground CO'al mine near Weston, Colorado.
The Secretary of Labor seeks a $66.00 civil penalty for an alleged
violation of a mandatory safety standard ...:./

1/ At the outset of the hearing petitioner moved to withdraw a second
citation,number 1014217, which was a part of this docket. The Secretary
represented that he lacked sufficient evidence to establish violation. The
motion was granted and the petition as to that citation was dismissed. The
dismissal is reaffirmed here.

2168

Specifically,' the citation alleges that respondent failed to provide
adequate protection to a t~ailing cable furnishing electrical power to a
continuous mining machine. / The matter was tried in Denver, Colorado on
July 23, 1981. The parties agreed to waive briefs and submitted the matter
after closing arguments.
DISCUSSION
The Secretary's inspector issued the citation because he believed a
piece of mobile equipment, a battery utility trailer (BUT car), had run
over the trailing cable furnishing power to a continuous miner. He based
this belief upon dust marks he observed on the cable as it lay in a haulage
way.
Respondent concedes that the cited standard is violated where an
operator permits equipment such as a BUT car to move across a cable. It
denies, however, that the evidenc·e shows that the cab le was in fact run
over.
The issue for decision here is whether the circumstantial evidence
presented justifies a conclusion that the markings on the cable were left
by the wheels of the car. For the reasons which follow, I hold that it
does not.
Based upon the undisputed evidence, I find that the car in question
weighs several tons. The 440 volt cable, which lay on the soft, moist
floor of the haulage way is 2 1/2 inches in diameter and the top of its
cover displayed at least one dust mark. I further find that the cable,
beneath the mark, was imbedded in the floor a distance of about 1/3 of its
diameter; and that subsequent examination disclosed that the cable was
undamaged.
As to further particulars, most of the testimony is in conflict, The
Secretary's inspector first spoke of a single mark which he believed was 8
or 10 inches wide but did not measure. He said he saw no others, but then
revised his testimony to suggest that he saw "two sets of tire marks, one
on each side." (Tr. 19-20.)
Respondent's own mine inspector, who was present during the
government's inspection, insisted that he was shown but a single mark. He
also maintained, contrary to the government's inspector, that the mark was
solid with no distinctive tread pattern. In his view, the mark was left by
the feet of miners who had simply stepped on the cable on their way to work
stations.
Both witnesses, of course, rely wholly upon inferences drawn from a
few observed facts. The respondent's inferences are more persuasive than
those of the government. I must agree with respondent, for example, that

2/ The standard involved is 30 CFR § 75.606 which provides: "Trailing
cables shall be adequately protected to prevent damage by mobile
equipment."

2169

had the heavy BUT car actually crossed the cable, it would have press~d
the cable more deeply into the soft floor. That the cable sustained no
damage lends further .credence to respondent's theory.
In short, the inspector's inferences are too speculative and
fragmentary to serve as the 'basis for a finding of violation. I therefore
conclude that no violation was proved.
ORDER
In accordance with the findings and conclusions embodied in the
narrative portion of their decision, it is ORDERED that the Secretary's
petition for assessment of penalty in connection with citation number
1014211 is vacated, and this present proceeding is dismissed.
It is further ORDERED, pursuant to the Secretary's withdrawal motion,
that the petition filed in connection with citation ·number 1014217 is
likewise vacated and that proceeding is dismissed.

Judge
Distribution:
Katherine Vigil, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290

2170

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 I.ABOR,

Civil Penalty Proceeding
Petitioner
Docket No. PENN 79-142
A.C. No. 36-06100-03004

v.
SOLAR FUEL COMPANY,
Respondent

Solar No. 9 Mine

DECISION
Appearances:

Susan L. Olinger, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Petitioner;
Charles E. Sliter, Esq., Hamel, Park, McCabe & Saunders,
Washington, D.C., for Respondent.

Before:

Judge James A. Laurenson

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA) under section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereinafter the Act),
to assess a civil penalty against Solar Fuel Company (hereinafter Solar) for
two violations of a mandatory safety standard. Pursuant to cross motions
fil~d by the parties, I issued a summary decision on July 3, 1980, in favor
of Solar. Thereafter, on June 23, 1981, the Commission reversed my decision
and remanded the case to me for disposition consistent with its decision.
On August 3, 1981, a hearing was held in Falls Church, Virginia on the
ahove matter. In light of the Commission decision which held that 30 C.F.R.
§ 75.503 applies to equipment which is intended to be or is habitually taken
or used inby the last open crosscut, the parties agreed to my ent~ring
summary decision on behalf of MSHA with regard to the fact of violation. On
the issue of the amount of civil penalty which should.be assessed, Inspector
Earl L. Miller testified on behalf of MSHA. Both parties presented arguments
and waived the filing of briefs.
APPLICABLE LAW
Section llO(i) of the Act, 30 U.S.C. § 820(i) provides in pertinent
part:
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator's
history of previous violations, the appropriateness of such

2171

penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation.
30 C .F .R. § 75.503 provides as follows: "The operator
of each coal mine shall maintain in permissible condition
all electric face equipment required by §§ 75.500, 75.501,
75.502 to be permissible which is taken into or used inby
the last open crosscut of any such mine."
STIPULATIONS
1. On May 3, 1979 and May 4, 1979, duly authorized representative of
the Secretary of Labor, coal mine inspector Earl Miller, performed a regular
quarterly inspection at the Solar Fuel Company's Solar No. 9 Mine.
2. During the course of his inspection on May 3, 1979, Inspector Miller
observed that a Jeffrey mining machine located in an intake air course outby
the last open crosscut, was not in permissible condition (see Citation No.
0617857, received in evidence as Exh. No. G-1). He also observed a roof
bolting machine, in non-permissible condition in an intake air course outby
the last open crosscut, on May 4, 1979, at the same mine in the same working
section. (See Citation No. 0617859, attached hereto as Exh. No. G-2).
3. The section of the mine in question was being prepared for mining
operations which were scheduled to begin shortly after the issuan~e of the
subject citations. The operator intended to use both pieces of equipment
inby the last open crosscut while performing these mining operations.
4. On May 3, 1979, mining activities at this section of the mine,
during the shift in which Citation No. 0617857 was issued, produced 105 tons
of coal after the citation was issued.
5. On May 4, 1979, mining activities at this section of the mine,
during the shift in which Citation No. 0617859 was issued, produced 285 tons
of coal after the citation was issued.
6.

Solar Fuel Company is the owner and operator of the subject mine.

7. Solar Fuel Company and Solar No. 9 Mine are subject to the Federal
Mine Safety and Health Act of 1977.
8. The Administrative Law Judge has jurisdiction over the parties in
the subject matter of this proceeding.
9. Copies of the citations are authentic and were properly served
upon the Respondent.

2172

DISCUSSION
Solar stipulated that it intended to use the equipment, which was not
in pennissible condition, inby the last open crosscut. The Commission's
Decision in this matter, therefore, mandates a fin·ding of a violation of
30 C.F.R. § 75.503 in connection with both citations. Solar does not oppose
MSHA's motion for partial summary decision.
The remaining issues concern the amount of civil penalties to be
assessed for thes.e violations. Citation No. 0617857 alleged that the Jeffrey
Miner was not maintained in permissible condition in that the ballast box f9r
the lighting system had an opening in excess of .005 of an inch. Citation
No. 0617859 .alleged that the roof bolting machine was not in permissible
condition because a bolt was broken off the lid of the ballast box for the
lighting system. Additionally, two conduits were cut off the packing glands
on the roof bolts. MSHA Inspector Earl Miller testified that he did not
consider either of these violations to be significant or subst,antial at the
time the citations were written. He did not believe that Solar was aware of
either violation. Re stated that an accidental occurrence was improbable in
each case. The inspector's statements were premised upon the fact that he
found no methane reading on his methane detector and that the area was well
rock dusted and damp. However, bottle samples of air were later analyzed to
to show .01 to .02 percent methane. He cop.ceded that this was a very low
level of methane and did not present any danger to persons in the area. MSHA
initially proposed civil penalties in the amounts of $38.00 and $40.00 for
these two citations. At the hearing, counsel for MSHA requested "the
assessment of a substantial penalty. • • • "
Solar attempted to show that a Draft Electrical Manual prepared by MSHA
constituted MSHA's enforcement policy at the time these two citations were
issued. Inspector Miller denied this fact and stated that he had not seen
the Draft Electrical Manual until shortly before the hearing. Moreover, he
testified that, to his knowledge, it had always been MSHA policy to cite
permissibility violations found outby the last open crosscut where the
equipment was intended to be used inby the last open crosscut. In any event,
Solar never asserted or established that it relied on the Draft Electrical
Manual at any time prior to the dates of these citations. Of course, any
statement in the Draft Electrical Manual is not a rule of law binding upon
the Commission. Old Ben Coal Co., 3 FMSHRC 2806, 2809 (1980). I find that
this case is distinguishable from King Knob Coal Co., 3 FMSHRC 1417 (1981)
where the Commission agreed that the operator was not negligent because the
MSHA Manual caused confusion concerning the appropriate standard of care.
There is no evidence herein of any confusion attributable to statements in
the Draft Electrical Manual. Hence, I find that the statements in the
Draft Electrical Manual are irrelevant to the criteria for assessment of a
civil penalty pursuant to section llO(i) of the Act.
In assessing a civil penalty, the six criteria set forth in section
llO(i) of the Act shall be considered. As pertinent here, Solar's prior
history of 13 violations in the previous 2 years is noted. I also note that

2173

5 of these 13 violations were for the same section in controversy here:
30 C.F.R. § 75.503. On the other hand, Solar received an MSHA safety award
at this mine in 1979. In any event, the assessment of civil penalties
herein will not affect the operator's ability to continue in business.

Contrary to the statements of the MSHA inspector, I find that Solar
knew or should have known of these violations. This is so because a bolt
was missing from the cover of a ballast box. This condition should have
been apparent to Solar. The other cited violations should have been
detected by Solar. I find Solar chargeable with ordinary negligence. The
gravity of these conditions is slight. The almost nonexistent level of
methane indicates that the possibility of an explosion was extremely remote.
Both citations were abated in good faith.
Based upon all of the evidence of record and the criteria set forth in
section llO(i) of the Act, I conclude that civil penalties should be imposed
for the violations as follows:
Citation No. 0617857
Citation No. 0617859

$ 38.00

$ 40.00

It should be noted that Citation No. 0617858 was vacated by MSHA on
February 8, 1980, because it was issued in· error.
ORDER
WHEREFORE, IT IS ORDERED that Respondent Solar pay civil penalties
within 30 days for the violations as follows:
Citation No.

Regulation

Civil Penalty

0617857
0617859

30 C.F.R. 75.503
30 C.F.R. 75.503

$38.00
40.00

Distribution Certified Mail:
Susan I.. Olinger, Esq., Office o'f he Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
Charles E. Sliter, Esq., Hamel, Park, McCabe & Saunders, Suite 700,
888 Sixteenth Street, N._w., Washington, DC 20006
James L. Custer, Manager, Safety and Health, Solar Fuel Company,
P.O. Box 488, Somerset, PA 15501

2174

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

EP 22 \98\
CHESTER M. JENKINS,

Contest of Citation
Contestant

v.

Docket No. WEST 81-348-RM

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

Citation No. 354435
Republic Unit Mine
Respondent

DECISION AND ORDER OF DISMISSAL
On July 15, 1981, Mr. Chester M. Jenkins, a miner employed at Day
Mines, Inc., filed a notice of contest under section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act," J:./
seeking to contest the issuance to Day Mines, Inc., the mine operator, of
Citation No. 354435, a citation issued under section 104(a) of the Act.
The operator itself has not filed a notice of contest within the 30 days
required by section 105(d) of the Act. On Sep·tember 1, 1981, the Secreta~y filed a motion to dismiss the miner's contest on the grounds that
the miner is "barred from challenging" the subject citation under section
105(d).
]:./

Section 105(d) of the Act provides:
"If, within 30 days of receipt thereof, an operator of a coal or other
mine notifies the Secretary that he intends to contest the issuance or
modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or
(b) of this section, or the reasonableness of the length of abatement time
fixed in a citation or modification thereof issued under section 104, or
any miner or representative of miners notifies the Secretary of an intention to contest the issuance, modification, or termination of any order
issued under section 104, or the reasonableness of the length of time set
for abatement by a citation or modification thereof issued under section
104, * * * the Commission shall afford an opportunity for a hearing * * * "
(Emphasis added.)

2175

Under section 105(d), an operator may challenge the issuance or modification of citations and certain orders, the notification of a proposed
assessment of penalty, and the reasonableness of the time set for abatement.
Under the plain language of that section, the miner and representative of
miners are given authority to challenge only the issuance, modification or
termination of certain orders and the reasonableness of time set for abatement. Where the language of a statute is plain and admits of no more than
one meaning, there is no need for interpretation and no need to resort to
the rules of construction. Caminetti v. U.S., 242 U.S. 470 at 485, 61 L.Ed
442, 37 S. Ct. 192 (1916). Accordingly, I find that there is no authority
under the provisions of section 105(d) of the Act for a miner to contest
the issuance of a section 104(a) citation. ]:_/
The Secretary's motion to dismiss is therefore GkANTED and it is
ORDERED that the captioned proceeding be DISMISSED. '}../
'\ "·

I

~

/{\{../L-:\

J

t

,.

II

!

'-i( . / t,-, ...._,., /\.·...'~

G y M 'Tick
,_, - .
Ajmini trative · aw Judge

.

Distribution:

I

I.)
!

\
i

•I

Mr. Chester M. Jenkins, 787 Knob Hill Tr{jut Creek Road, Republic,
Washington 99166 (Certified Mail)
Robert Mullen, General Counsel, Day Mines, Inc., P.O. Box 1010,
Wallace, Idaho 83873 (Certified Mail)
John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
2/ See United Mine Workers of America v. Secretary of Labor, CENT 81-223-R
(August 28, 1981); Council of the Southern Mountains v. Donovan, No. 99-2982
(D.D.C. 1981), 2 BNA MSHC 1329, 1322, n. 8.
.
~../
If the operator should later contest the proposed assessment, the miner
in question may nevertheless participate· as a party to the civil penalty proceeding. 29 C.F.R. § 2700.4.

2176

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE. SUITE 400
DENVER, COLORADO 80204

)

SECRETARY OF LABOR, MINE SAFETY AND
)
HEALTH ADMINISTRATION (MSHA), on
)
behalf of STEPHEN SMITH, DONALD HANSEN,)
THOMAS SMITH, AND PATRICIA ANDERSON,
)
)

Complainants,
v.

)
)

APPLICATION FOR REVIEW OF
DISCRIMINATION
DOCKET NOS.· WEST 80-71-DM
WEST 80-155-DM
WEST 80-156-DM
WEST 80-165-DM

)

STAFFORD CONSTRUCTION COMPANY,

(Consolidated)

)
)

Respondent.

)
)

~~~~~~~~~~~~~~~~~~~~-

Appearances:
James H. Barkley, Esq., Office of Henry C. Mahlman, Associate
Regional Solicitor, United States Department of Labor,
Denver, Colorado 80294,
for Complainants
Richard D. Alaniz, Esq., Pate,
Houston, Texas 77056,

Br~ckner

& Sipes, Attorneys at Law,

for Respondent
Before:

Judge John J. Morris
DECISION
STATEMENT OF THE CASE

The Secretary 9f Labor of the United States, the individual charged
with the statutory duty of enforcing the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq., (the Act) brings this action on behalf of
four complainants. He asser~the workers were illegally discharged from
their employment by Stafford Construction Company (Stafford) in violation
of § 815(c)(l) of the Act.
The statutory provision, now codified at § 30 U.S.C. 815(c)(l),
provides as follows:
§ 105(c)(l) No person shall discharge or in any
manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any miner,
representative of miners or applicant for employment in
any coal or other mine subject to this Act because such
miner, representative of miners or applicant for employment
has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's
agent, or the representative of the miners at t.he coal or

217?

other mine of an alleged danger or safety or health
violation in a coal or other mine, or because such
miner, representative of miners or applicant for
employment is the subject of medical evaluations
and potential transfer under a standard published
pursuant to section 101 or because such miner,.
representative of miners or applicant for employment has instituted or caused to be instituted any
proceeding under or related to ~his Act or has
testified or is about to testify in any such
proceeding; or because of the exercise by such
miner, repres~ntative of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this Act.
After notice to the parties, a hearing on the merits cormnenced in
Canon City, Colorado in May 1980. The hearing was concluded in September,
1980. The parties filed extensive post trial briefs.
ISSUES
The issues are whether complainants were discharged as a result of
engaging in a protected activity. Further, if the finding is affirmative,
what relief, if any, should be granted. Additional issues arise from the
affirmative defenses of respondent.
APPLICABLE CASE LAW
The Connnission has ruled that to establish a prima facie case for a
violation of § lOS(c)(l) of the Act a complainant must show by a
preponderance of the evidence that (1) he engaged in a protected activity
and (2) that the adverse action was motivated in any part by the protected
activity. The employer may affirmatively defend, however, by proving with
a preponderance of all the evidence that, although part of his motive was
unlawful, (1) he was also motivated by the miner's unprotected activities,
and (2) that he would have taken adverse action against the miner in any
event for the unprotected activities alone. Consolidation Coal Company,
(David Pasula) 2 FMSHRC 2786 (1980), petition for review filed, No. 80-2600
(3d Cir. November 12, 1980).
The four cases herein were consolidated. The acts of alleged
discrimination are essentially diverse and accordingly, each case is
discussed separately and in the same order as presented at the hearing.
l

The four persons allegedly discriminated against were: Stephen Smith,
a heavy equipment operator; Thomas Smith, the brother of Stephen Smith and
a heavy equipment operator; Patricia Anderson, the Stafford office
secretary, and Donald Hansen, at various times a heavy equipment operator,
assistant project manager, and safety officer. All of the cases involve
credibility determinations.

2178

DOCKET NO. WEST 80-156-DM
STEPHEN SMITH
INTRODUCTION TO THE CASE
Stephen Smith claims he was discharged because he complained about
unsafe conditions at the Cotter Mill site. After various oral complaints
to Stafford officials he contacted MSHA on December 19 and filed a written
complaint on December 20. He was not allowed to work on December 20 and he
was terminated that evening.
Stafford ass.erts it did not discriminate against Smith. It's affirmative defense is that Smith was terminated because the company was reducing
its work force in anticipation of a shut down.
FINDINGS OF FACT
The evidence is conflicting.
credible:

I find the following facts to be

1. Stephen Smith was hired by Stafford on July 7, 1978 and terminated
December 20, 1978. Smith operated a pusher cat in breaking rock and
cutting new roads (Tr. 17, 18).
2. Stafford was building a retention dam for Cotter Mill. Staffordis
answers in two cases admit it is an operator and that its products enter or
affect commerce, (Tr. 18, 68, Answer in WEST 80-156-DM and in WEST
80-71-DM).
3. During Smith's employment he complained verbally to Stafford
officials concerning safety. His verbal complaints involved lighting in
the dump and borrow areas as well as lighting and brakes on the machines.
Whenever he felt something was unsafe he would speak to someone about it.
He complained about 10 times from July to December (Tr. 19, 71-75, 79).
4. Smith asked for illumination because it was dark during half of·
his shift. (Tr. 19).
5. There were no brakes on Smith's #351 scraper. To stop the
equipment it was necessary to drop the pan and drag it. This condition
existed throughout a three week period when Smith operated the #351 (Tr.
79).
6. His safety complaints, which Smith considered serious, were
directed to Rick Auten, Mark Jackson and Richard Schneider, re~pectively
Stafford's superintendent, foreman and maintenance foreman. (Tr. 21, 80).
7. Other operators were complaining of safety conditions such as the
condition of the tires on the equipment, lack of working lights, lack of
back-up lights, no illumination on the cat itself, lack of seat belts and
back-up alarms (Tr. 72-80).

2179

8. In November, Smith told Auten and Jackson that he was going to
request an MSHA inspection. Auten and Jackson did not reply. Prior to
December 20, MS·HA had been on the plant site quite a few times (Tr. 22,
241, 681-685). MSHA showed up about every month. When Hansen took over as
safety engineer there were 20 to 30 MSHA citations on the board dated
·between September 1978 and January 1979. (Tr. 22, 241, 681-685).
9. Smith called the MSHA office on December 19, 1978, and he met with
two MSHA inspectors the following morning. The morning of December 20,
Smith presented a written complaint signed by himself and his brother,
Thomas Smith. The written complaint had been made out by Smith and his
brother at home. Smith took the complaint to work with him on December 20,
had other operators sign it, and delivered it to MSHA after he was sent
home. (Tr. 22, 23, 140-144, Exhibit P~l).
10. On December 20, Smith showed his handwritten complaint to Auten
and Jackson on the jobsite at 12:30 p.m. The shift was to begin in 30
minutes. Smith wasn't allowed to work that day. Smith's failure to work
came about in this manner: It was the custom to assemble the operators and
then drive them to their respective equipment. Jackson, according to
Smith, was a hot rodder with the truck; further, Smith previously had a bad
experience while riding in the back of a pickup. He, accordingly, asked
Jackson if he could ride in the front seat. Since the front seat was
already occupied Jackson said he'd return to pick him up. When Jackson
returned he told Smith he wasn't needed that day (Tr. 25, 31-34).
11. The equipment normally assigned to Smith was operated on this
particular shift on December 20 ; no equipment was idle that was capable of
running. (Tr. 34, 59).
12. Smith didn't work his shift on December 20. He next appeared on
the jobsite at 9:30 p.m. on the same date to pick up his brother. At that
time Mark Jackson gave Smith his paycheck ahd termination slip (Tr. 52,
P~2).
The pay slip showed the termination was due to a reduction in
force. However, Smith had no knowledge of any such reduction, and Stafford
was working two shifts per day (Tr. 57-58, Exhibit P-2).
13. On December 19, Patricia Anderson was asked to fill out a
termination slip for Stephen Smith (Tr. 244, 249).
14. At the time of the MSHA investigation of the Stephen Smith
discharge, Pat Anderson, the Stafford secretary, was directed by management
to prepare a documentation from the personnel records showing that a
reduction in force had occurred. Anderson could not prepare such a report
because so many men had been hired. On December 20, 1978, StaEford was
hiring new employees (Tr. 173, 183, 184).
'
15. Prior to December 20, Stephen Smith had never been suspended in
any way by Stafford (Tr. 18).

2180

16. Before December 20, Pat Anderson participated in and overheard
conversations between Harold Stafford (President) and Richard Schneider
(held various managerial positions), and others in management where they
stated that they had determined it was Stephen Smith who was informing MSHA
of the accidents and problems on the jobsite. They stated that Stephen
Smith was to be fired (Tr. 189, 192-199, 208, 212-213, ~OS, 341).
17. On or about December 1, 1978, when Donald Hansen was promoted to
assistant project manager, Hansen was involved in conversations with
Poynter (project manager) and Harold Stafford about employees turning in
complaints to MSHA. Stafford said if they found out who these individuals
were they were to. find a reason to terminate them inunediately (Tr. 671673)
18. On or about December 22, Poynter, in a conversation with Hansen,
identified Smith as the one who'd been making the complaints to MSHA. He
further stated that Harold Stafford had wanted him fired and for that
reason he was terminated (Tr. 672-673).
19. Stafford officials were concerned about time constraints in
their contract, and they planned on working through the winter if the
weather permitted. {Tr. 425).
20. Harold Stafford, president of the company, planned on working
through the winter if the weather permitted. (Tr. 173, 176, 183, 425).
21. The daily reports of foreman Mark Jackson indicate the weather
was good for the most part from December 18 through December 28, (Exhibit
P-5, R-13).
22. The job was shut down January 5, 1979 when the ground froze (Tr.
181).
DISCUSSION
The credible facts establish that Stephen Smith was engaged in a
protected activity and he was terminated for engaging in such activity.
Stafford's defense seeks to establish that Stephen Smith was
discharged due to a reduction in the working force. For the following
reasons, I do not find Stafford's evidence to be persuasive.
Pat Anderson was in a posit ion to know the facts concerning a
reduction in force since she was in charge of issuing pay checJ<s and
termination not ices. She testified that Stafford, on December' 20, 1978
was operating two shifts per day and was not in the process of reducing its
work force (Tr. 172-174, 182, 244). Stafford and Hansen had prior to
December 20 stated to her that they would work through the winter. (Tr.
176-183). Anderson had been instructed to indicate "reduction in force" on
all termination slips unless the worker quit or moved away (Tr. 322-326,
R-4, R-5). As ma~y men were hired as were fired in November and December
(Tr. 302). Anderson had only prepared a list of those fired, not those
workers hired (Tr. 391).

2181

In December Stafford had approximately 160 employees (Tr. 252). Its
asserted reduction in force as shown by its own evidence, consisted of the
following terminations:
December 19 - Smith and Baun
December 21 - May
December 22 - Auten and Spier
A reduction of five, in these circumstances hardly constitutes a
quantitative persuasion of a reduction in force.
Additionally, .I do not find it credible that Stephen Smith was
selected to be part of any anticipatory reduction in force due to his
alleged tardiness and general incompetence as an operator. The exhibits
show that Stephen Smith worked every week beginning with his initial
employment in July 1978 (R-7). Prior to December 20, 1978 he had riever
been reprimanded for any alleged tardiness, absenteeism or incompetence.
Schneider, who held various managerial positions with Stafford,
testified that the company planned to work through the winter. Further, he
agreed that Stephen Smith's absenteeism wasn't greater than any other
employee's. (Tr. 428 -430). Schneider concluded that a reduction in
force caused Smith's termination. However, I find the reduction in force
took place on January 5, 1979 when the job was shut down by the project
engineers, Wahler and Associates, due to the ·weather. (Tr. 609).
One matter requiring discussion is the evidence that the termination
slip was made out by Pat Anderson on December 19, 1978. Stafford argues
that this establishes the fact that the decision to lay off Smith was made
prior to Stafford's knowledge of Smith's written complaint to MSHA.
Stafford's position then is that if the complaint to MSHA is the protected
activity at issue, it played no part in the decision to terminate Smith.
Stafford's position overlooks several factors. The termination slip
was not delivered to Smith until December 20, after Stafford was aware of
Smith's complaints to MSHA. Further, prior to December 19, respondent had
concluded that Smith was informing MSHA of accidents and safety problems on
the job. As a result of this conclusion, Stafford decided to terminate
Smith.
The evidence does not show that Smith had contacted MSHA prior to
December 19, 1978. However, Smith's verbal safety complaints to management
officials must have given rise to Stafford's suspicions and supported
respondent's conclusion that Smith had been discussing safety matters with
MSHA. Therefore, Smith's expressed concern for safety was th~ basis for
his termination. Accordingly, I find that Stephen Smith was fired for
engaging in protected activity, and, thus he was discriminated against in
violation of the Act.
BACK WAGES
Stephen Smith~s regular rate of pay was $11.50 per hour, and his
overtime pay was $16.32. Overtime was paid after eight hours per day or 40
hours per week. (Tr. 59-61). Stephen Smith was discharged on December 20,
1978 and reinstated on May 16, 1978. During the above period the project
was shut down due to weather from January 5, to early March (Tr. 838).

2182

Between December 20 and January 5, Smith contends he missed 65 days of
work. He asserts that his back wages are $8,101.60 ($124.64 x 65).
I find the Stafford records, because they are records, are more
reliable than Smith's oral testimony on the back wage issue (Tr. 61, R-7).
The wage sunnnary indicates Stephen Smith did not work any overtime in
December or November, 1978. An award including overtime·would in this case
be speculative because the record fails to offer any evidence that overtime
was worked during the period Smith was laid off. Accordingly, any back
wages would be calculated at $92.00 per day ($11.50 x 8).
Smith urges he is entitled to wages for 65 days, but I calculate that
there are 66 days of lost wages involved. Accordingly, Stephen Smith's
back wages are $6,072.00 ($92.00 x 66). Smith testified that between his
termination and reinstatement he had gross income totaling $2,050.00 (Tr.
63, 64). This is to be deducted from the total back wages. Smith is due
the amount of $4,022.00 in unpaid back wages, less amounts withheld
pursuant to state and federal law.
DOCKET NO. WEST 80-165-DM
TOM SMITH
INTRODUCTION TO THE CASE
Tom Smith asserts he was fired because he and his brother Stephen
filed a written complaint with MSHA.
Stafford denies it discriminated against him. It contends he was
fired on January 5, 1979, because he negligently broke a lift arm; further,
Stafford claims he could have prevented such damage.
FINDINGS OF FACT
The evidence is conflicting.

I find the following facts to be credible.

1. Tom Smith, the brother of complainant Stephen Smith, was employed
by Stafford between August 20; 1978 and January 3, 1979. Tom Smith
operated dozers and pulled a disc (Tr. 745, 747).
2. Tom Smith made four or five oral complaints concerning safety to
management representatives Auten, Jackson and Schneider during the months
of September, October and November. Specifically, he complained about a
lack of lights on his dozer and that a short stack was causing smoke to
blow in his face (Tr. 746-747).
3. On December 20 Tom Smith and his brother, Stephen, filed a written
complaint with MSHA concerning safety at the Stafford site (Tr. 745-747,
Exhibit P-1).

2183

4. On January 3, while operating a 16 motorgrader Smith struck a
.partially buried rock. The impact broke the lift arm on the blade.
Usually when equipment is damaged in this manner the operator helps the
welder or mechanic make the repairs and then goes back on the job as it
takes about an hour to weld the break. On this date Smith was sent home.
(Tr. 749).
5. On January 3, after the incident involving the grader·Smith saw a
D-8 dozer which he'd operated before pulled off to the side and shut down.
He pointed this machine out to Schneider, but Schneider replied that his
machine was broken. He was told to go home. (Tr. 779, 780).
6. Smith called in to work on January 4. He was told that his machine
was still down. On January 5 he came in to pick up his payroll check. At
this time Donald Hansen gave him his termination notice and two payroll
checks. (Tr. 749, 750, 753).
7. The Stafford termination notice to Tom Smith contains three main
headings, namely, "Lay off", "Discharge", and "Voluntary Quit". Under
"Voluntary Quit" the box "Dissatisfied" had been scratched over. Under
"Discharge" the box of "other" was marked. The explanation written on the
slip was that "Subject operated a blade in a manner that broke a lift arm
per witnesses costing company money". (Exhibit P-9).
8. Prior to this occurrence Tom Smith hadn't damaged any Stafford
equipment (Tr. 743).
9. Operators who had damaged Stafford equipment and who were not
terminated included: Larry Provost (motor blown up); Loren Pennington
(broke an arm); Richard Gangler (broke a track); Gary Hust (broke a left
arm); Steve Smith (not a relative of complainants), (rolled a scraper).
10! After December 20 and a few days before Smith's termination, Donald
Hansen / was driving Harold Stafford across a field and upon seeing
Smith,-Stafford said "there is that SOB who is causing us a lot of -- whose
brother is causing us a lot of problems, and if you get a chance, fire
him." (Tr. 848).
11. Hansen fired Tom Smith because he broke a blade and because Harold
Stafford wanted him fired. (Tr. 849, 851).
12. Hansen said Tom Smith was the only one ever fired for breaking a
lift arm. (Tr. 852).
DISCUSSION
The credible facts establish that Tom Smith was engaged in a protected
activity and he was terminated for engaging in that activity.

1/

Complainant in Docket No. WEST 80-71-DM

2184

Stafford asserts Tom Smith was fired because he carelessly damaged
company equi_pment. The company policy was that it would let a man go if
through his negligence he broke company equipment, and it was obvious he
could have prevented the damage. (Tr. 873).
Respondent's evidence shows that certain workers were terminated and
respondent's reasons therefor were as follows:
Norman Coulter, discharged in September 1978, was let go because he
was rough in handling equipment. (Tr. 876, 877).
Jack McCullough, was let. go in October 1978. McCullough walked away
from the oiling truck after.turning the oil on. He was responsible for the
loss of about 400 gallons of oil. (Tr. 878, 879).
John Smith, (not related to complainants), on November 1978, was
instructed that the hydraulic was out on the disc and that as a result it
could only turn one way. Smith ignored the instructions. This tore the
disc up, and pulled the tongue off. (Tr. 880).
Bill Ryball, (November 1978), who claimed he was a top mechanic, broke
each sprocket tooth when he installed a double flange roller rather than a
single flange. (Tr. 882).
Randall K. Jones, (November 1978), fell asleep and as a result he was
involved in a head-on collision with a 651 scraper. (Tr. 883).
Clarence Harding, (March 1979), was "terribly hard" on equipment.
He'd go forward and "throw it" in reverse. He was warned but continued to
abuse the equipment. (Tr. 884-886).
John Jones, (June 1979), was let go because he abused equipment. (Tr.
886).
Steve McGinnis, (June 1979), a grader operator, ignored instructions
given to all operators to check their oil and water. The engine froze.
(Tr. 886).
Ron Durham, (August 1979), was on the water wagon apparently involved
in a head-on collision (Tr. 886).
Al Sanchez, (May 1979), was operating a scraper and he sideswiped a
641 water wagon. Sanchez had been warned several times about being
careless. (Tr. 888, 948).

2185

Stafford's evidence does not establish its defense. Rather, the facts
indicate a worker will be terminated if his activity approaches a
deliberate disregard of instructions or gross negligence rather than mere
carelessness.
It is interesting to note that none of those terminated in the
Stafford list (R-12), except for Tom Smith, were involved in the breaking
of a lift arm. Additional positive evidence of the weakness of Stafford's
argument is that Schneider confirms Hansen's testimony that he broke a lift
arm but was not terminated. (Tr. 852).
Additional persuavise evidence against respondent's affirmative
defense is that Schneider, after investigating the Smith accident did not
recommend that Smith be fired. Schneider, as maintenance supervisor,
normally would terminate an operator if he believed he was negligent in the
operation of equipment. He testified at length concerning his reputation
for this policy. The workers had also given him a nickname (unstated) in
this regard. (Tr. 873, 874). With that background, Schneider investigated
the Tom Smith accident, but he was not involved in the decision to
terminate him. (Tr. 906, 921, 938). Based on the above, if credence is to
be given to respondent's contentions, one would expect that Schneider would
have recommended that Tom Smith be fired.
Smith contends he should have been treated like workers Provost,
Pennington, Gangler (also called Gekler), Hust, and Steve Smith (not
related). These workers damaged company equipment but were not terminated.
(Finding of Fact, , 9). Stafford seeks to destroy this evidence by showing
that the workers were basically not at fault and for this reason they were
not terminated. I am not persuaded. A careful analysis of that evidence
establishes factual situations which are more akin to Tom Smith's accident
than are those situations where the workers were terminated. Respondent's
account of these incidents is as follows:
Respondent does not address the Provost accident.
Pennington had done slope work which caused the ball joints on the
motor grader to snap off (Tr. 889-890). Probably 20 such ball joints were
broken during the Cotter project. Pennington wasn't terminated because
Schneider, then the maintenance manager, didn't feel he was abusing the
equipment (Tr. 891).
Richard Geckler :ran the tracks off of a push cat thr·ee times. They
were trying to keep this particular equipment going until the track could
be rebuilt. (Tr. 891-893).
Gary Hust damaged a #494 while working rocks. He had a rock go off
his dozer and push in the radiator guard. (Tr. 893-894).
Steve Smith (not complainant) while operating a 651 scraper (#351) had
a rock come out from under his left rear tire. This knocked the scraper

2186

off of the embankment and caused it to roll.
scrapers. (Tr. 895-896).

This happened to several

A final issue to be addressed concerns the.statement of Harold
Stafford that Tom Smith should not have been in the area when the accident
occurred. (Tr. 962-968). The evidence is uncontroverted· that Smith was
instruct·ed by a supervisor to operate his blade in this area; further, he
had been there about two hours when the accident occurred. I find from the
credible uncontroverted evidence that Smith had been instructed to operate
in the zone where he was located. (Tr. 753, 768, 770).
In summary,- I conclude that Stafford has not established its
affirmative defense.
I find Smith's termination arose from the "problems" created for
Stafford by the submission of the safety complaints to MSHA on December 20,
1978 by Stephen and Tom Smith. Donald Hansen alone fired Smith. He
testified that he terminated Smith because of the instructions from Harold
Stafford to find an excuse to fire Smith because his brother had caused
trouble for Stafford. I find from the record taken as a whole that the
"trouble" attributable to Stephen Smith was the safety complaint.
The submission of the safety complaint was a protected activity.
Therefore, I conclude that Tom Smith was discharged for engaging in a
protected activity in violation of the Act.
BACK WAGES
Tom Smith was terminated January 3, 1979. His straight time rate of
pay was $11.50 per hour, or $92.00 per day. (Tr. 760). The uncontroverted
evidence shows the ground froze and the work stopped on January- 5, 1979,
and resumed in.early March, 1979 (Tr. 838). Smith was reinstated on May
16, 1979. Smith's days of lost wages would be as follows:
January 1979
February
March
April
May
Total

2 days
None
20 days
30 days
11 days
63 days

Complainant calculates 56 lost working days, but he does not detail those
calculations. Based on 63 working days at $92.00 per day, Tom Smith is
entitled to a gross award of $5,796.00. Smith earned $348.00 ~hile he was
laid off. This amount is to be deducted from his gross award. Accordingly, he is due $5,448.00 in unpaid back wages, less amounts withheld
pursuant to state and federal law.
CROSS EXAMINATION OF WITNESS HANSEN
Respondent refused to cross examine witness Donald Hansen in the Tom
Smith case. The basis of respondent's objection is that MSHA had not pro-

2187

vided them with a statement purportedly given by Hansen on January 31,
1979. An extensive inquiry was conducted on the record by the Judge to
establish the whereabouts of the purported statement.
It is uncontroverted that Donald Hansen gave MSHA three statements all
of which were transcribed and signed by Hans·en. Two statements dealt with
his own case and one related to Patricia Anderson's case·. (Tr. 1219). The
possibility of the existence of an additional Donald Hansen statement
arises from the following events: a round t;<ible discussion between MSHA
inspectors and Stafford officials occurred on the morning of January 31,
1979. On the same afternoon Harold Stafford, respondent's president and
MSHA officials talked in private to Donald Hansen. Stafford and the MSHA
official had recorders but the MSHA official inadvertently failed to turn
on his recorder. (Tr. 1234). On discovering that MSHA had no transcription
of the conversation with Hansen MSHA requested and received the tapes made
by Harold Stafford. These tapes had only a buzzing background and no
transcriptions could be made. (Tr. 1221). The Stafford tapes were returned
to the Stafford attorneys. (Tr. 1221). No statements were available from
Hansen in either of the Smith brothers' cases. (Tr. 1220). C~pies of all
available statements that were taken that day were provided to Stafford
attorneys. (Tr. 1223).

On these facts I conclude that the motion to produce the Hansen
statement in the Tom Smith case was improvidently granted. There was no
statement of witness Donald Hansen that could. have been transcribed for
cross examination in the case. Therefore, I vacate my prior order to
produce.
DOCKET NO. WEST 80-71-DM
DONALD HANSEN
INTRODUCTION TO THE CASE
There are several possible reasons for Stafford's decision to fire
Donald Hansen. Among them are (1) he told Harold Stafford not to change
witness statements; (2) he called a superintendent a son-of-a-bitch;(3) a
combination of (1) and (2); then he was rehired and terminated a second
time when Harold Stafford had a flare up of temper over Hansen's MSHA
discrimination complaint; (4) he was not discharged at all but he quit.
Hansen contends the evidence supporting the views that he quit and that he
was initially fired for his comment regarding a superior is not credible.
Stafford denies it discriminated against Hansen.
defense is that Hansen quit.

It's affirmative

FINDINGS OF FACT
The facts are conflicting.
credible.

I find the following facts to be

2188

1.

Donald Hansen was employed by Stafford Construction Company on May
15, 1978. (Tr. 1039).
2. Hansen was originally hired as an equipment operator and later he
was placed in charge of maintenance. In October 1978 he went back to
operating a bulldozer. In December he was assistant project manager. (Tr.

1040).
3. Hansen was not involved in the discharge of Stephen Smith, but he
supervised the discharge of Tom Smith. (Tr. 1040-1041).

4. When Jim Fritz was installed as superintendent in February 1979,
Hansen assumed various other duties including that of safety engineer.
Conflicts between Fritz and Hansen began at that time. (Tr. 1086-1087,
ll93).
5. Hansen was in daily contact with Fritz. Hansen describes his
relationship with Fritz as "one day good and the next day bad". (Tr.

1098).
6. Hansen and Fritz had several arguments concerning company
activities. (Tr. 1099-1100).
7. One dispute began on March 6 when Hansen asked Fritz why the sand
trucks weren't running. Fritz didn't answer then but on the following day,
Fritz told Hansen it wasn't any of Hansen's business. [Hansen agreed it
wasn't his business.] Hansen and Fritz swore at each other. Shortly
thereafter, about 10:00 a.m., Hansen went to Harold Stafford's office. He
told Stafford there was a problem between Fritz and himself. (Tr.

1.101-1104).
8. While Hansen was in Stafford'~ office he observed Harold Stafford
writing on MSHA statements. These statements had been taken from various
supervisors involved in the discharge of Steve and Tom Smith. There were
little pieces of yellow paper or tabs attached to the statements. Hansen
only recognized foreman Mark Jackson's statement. Everett Poynter, who was
present, was adding to his written statement because the recorder had not
been working all of the time when the statement was taken. (Tr. 1103-1106,
1249-1255, Exhibits R-15, R-16).
9. Hansen questioned Harold Stafford about the statements. Stafford
indicated he was going over the statements as he had been instructed to do
by his attorney. The statements had yellow stickers advising him of
changes to be made. (Tr. 1248, 1249, Exhibit R-15).
l

10.

Hansen stated he didn't think it was right for Staffotd to be
changing the statements. He stated that any changes should be a matter for
the person who wrote the statement. Harold Stafford told Hansen not to
worry about it. (Tr. 1254~1255).

11. After 15 or 20 minutes Stafford and Hansen left the office
together and made the six or seven minute drive to the job site. After
leaving the office Hansen said "I am tired of Jim Fritz's shit and I don't
want to work with him anymore, and I'm going to quit." Stafford then

2189

stated that the problem between Hansen and Fritz involved a difference of
opinion and a personaiity conflict. (Tr. 1104, 1109, 1110, 1258).
12. On the jobsite Stafford and Hansen immediately met with Fritz,
who spoke first. He said, "Don, you got to keep your nose out of my
business. You are going out there and talking to the foreman and accusing·
me and calling me a son-of-a bitch, and a dumb one, and I can't put up with
that. You are under my authority and you are undermining my authority, and
pretty soon nobody is going to listen to me. I just can't put up with it.
I don't want you running down and sticking your nose in my business like
you did with the sand and whatever." As .the meeting concluded Stafford
asked the two men to shake hands. This occurred on March 7. (Tr. 11121113, 1261).
13. On March 8 Fritz confronted Hansen about changes Hansen had made
on a company organizational chart. Hansen had redrawn the chart to show
that he was directly responsible to Harold Stafford rather than to Fritz.
Hansen denies this was a "heated" argument, but he concedes that Fritz
seemed "very irritated." (Tr. 1117, 1118, 1195).
14. On March 9 about 7:30 or 8:00 o'clock in the morning Hansen
talked to foreman Potter about hauling rock. After a brief conversation
Potter said (referring to Fritz) "We 11, that dumb son-of-a-bitch doesn't
know nothing." Hansen replied: "Well, he may be a son-of-a-bitch but the
thing about it, you are going to have to talk to him, not to me." (Tr.
1120-1121).
15. At an undetermined time on March 9 Fritz terminated Hansen. He
stated as his reason that the foreman said that Hansen had called him a
son-of-a-bitch. (Tr. 1116).
16. On or about March 20 Hansen filed a discrimination complaint with
MSHA. The basis for his complaint was that he had been fired for
disagreeing with the act ions of Harold Stafford in changi'ng the MSHA
statements. (Tr. 1050).
17. On March 29 Harold Stafford found out about the discrimination
complaint. He called his attorney and was advised to rehire Hansen because
there were too many other lawsuits going including Rippy's, the NLRB, and
the trust suits. (Tr. 1267, 1268).
18. Fritz called Hansen on March 29 and said maybe they'd made a
mistake in firing him. Hansen was offered his old job as blade operator.
(Tr. 1125-1126).
19. On April 2, the following Monday, Hansen returned to the jobsite
but didn't work. He spent the entire shift riding in the pickup with
foreman Chuck Luther. Luther and Schneider told Hansen there was no
available equipment for him to operate. (Tr. 1055, 1061).
20. On the same day Hansen asked Fritz about back pay and Fritz said
he (Hansen) would have to talk to Harold Stafford about that. Hansen told

2190

Fritz that his return to work was conditioned on his rece1v1ng his back
pay, and he would talk to Stafford about the pay. Stafford was not present
at the jobs.ite on April 2. (Tr. 1128, 1134).
21. On the night of April 2 Hansen went to Stafford's apartment.
Fritz, Schneider, and Stafford were present. Hansen asked Stafford if he
was going to pay him his back pay. Stafford picked up an envelope and said
"This is a bunch of horseshit and lies you old son-of-a-bitch, and I'm not
going to give one dam dime unless you work for it, and everyone else has
the same treatment." Hansen renewed his request for back pay. Stafford
replied "You quit, and that is not my fault." Hansen said "Well, Theisen
said if I continued working, I could jeopardize my back pay." Stafford
replied "Bullshit." (Tr. 1136, 1140, 1272-1273).
22. The next afternoon (April 3) at the jobsite, as Hansen was
turning in his equipment, Stafford heard Aldrich, the office manager,
arguing with Hansen. Fritz was also present. Aldrich said (referring to
Hansen) "He is quitting. He is not coming back to work, and he wants a lay
off slip." Stafford said "We are not going to give any lay off slips if you
are going to quit and you are not coming back. Now, is there any problem
with that? Hansen said "No, whatever." The termination slip was made out
at that time. Hansen didn't receive his check that day because since he'd
quit he could pick it up on Friday (Tr. 1268-1271).

DISCUSSION
Under the doctrine expressed in Consoiidation Coal Company, (David
Pasula), sup;ra, complainant must show by a preponderance of the evidence
that he was engaged in a protected activity and that the adverse action
against him was motivated in part by the protected activity. In this case
I do not find that Hansen was engaged in a protected activity. A careful
weighing of the evidence leads to the foregoing voluminous findings of
fact. The ultimate conclusion is that Hansen was fired by Fritz for
reasons other than for any actions of Hansen that could be considered
protected activity. He was subsequently offered back his old job as a
blade operator. The offer was never accepted by Hansen because he could
not resolve to his satisfaction payment of his back wages.
Complainant's post trial brief asserts there are.several possible
reasons for his discharge. These are (1) that Hansen told Stafford not to
change the witness statements; (2) He was discharged for calling a superintendent an S.O.B; (3) He was discharged for the events in (1) and/or (2)
then rehired and later terminated when Harold Stafford had a flare up of
temper occasioned by Hansen filing an MSHA related complaint; (4) He was
not discharged at all but quit. However, Complainant asserts 9he credible
evidence does not support either the "quit" theory or the second reason
above.
Only allegations (1) and (3) raise any question of the existence of
protected activity. Complainant's initial possible reason focuses on the
witness statements. Hansen concludes Harold Stafford was upset with his
comment on changing the witness statements. Stafford was not his usual

2191

"jolly go smiley" self
(Tr. 1109-1110).

in

the six or seven minute .drive to the worksite.

Hansen's conclusions are not credible. On the way to the jobsite
Hansen said he'd rather quit than cause any problems. Stafford replied "Oh
no, I need you, you can't quit" (Tr. 1110-1111). Stafford's stat.ements and
his willingness to drive to the jobsite and arrange a conference with
Hansen and Fritz contradicts Hansen's conclusion.
The MSHA complaint later filed by Hansen, although not introduced in
evidence, apparently asserts that he was fired for conrrnenting on
Stafford's activities in changing the witness statements. Inferentially
complainant has charged Harold Stafford with tampering with MSHA
statements, but such statements were never offered in evidence. The only
statement containing a yellow tag was the statement of Adair Rippy (Exhibit R-15). The cover page of the six page typed statement contains a
yellow tag with this writing appearing on it: "need to add information p.
4." On page four the following typed question and answer, among others,
appear in the text of the statement:

Q:

To your knowledge that you know of no one that was
discharged for breaking an arm?

A:

No. I don't know other than Tom Smith;

the following appears handwritten after the foregoing typed portion:
"but we have fired approx 5 or 6 individuals for breaking
or misuing (sic) equipment in a rec.kless manner"
Further down the page appears the following script on a yellow tag:
"Here, the question was not asked whether he knew of any other equipment
has been broken and if so, how".
The above changes in the MSHA witness statements are certainly
innocuous and do not support Hansen's allegation that Harold Stafford was
tampering with the statements.
I am unable to find any basis for Hansen's claim that he was fired
because of his comments in connection with MSHA statements. There would
hardly have been an effort by Harold Stafford to patch things up between
Hansen and Fritz if Stafford intended to be retaliatory.
Complainant's second contention centers on the fact that Hansen could
not have been fired by Fritz for merely calling him an S.O.B. Considering
the record in this case, calling a foreman an S.O.B. by itself would not be

2192

a basis for discharge of the employee. However, that fact when considered
in combination with Hansen's other conflicts with Fritz supports Stafford's
contention that the conflict between Hansen and Fritz was the reason for
Hansen's discharge. Hansen's arguments and disputes with Fritz began
virtually from the first day Fritz became superintendent, (Findings of Fact
, 4, 5, 7, 11, 12, 13, 14, 15). The evidence on these conflicts arises
from Hansen's testimony. The Stafford evidence merely confirms it. Hansen
cannot ignore his own evidence.
I conclude Hansen was lawfully discharged by Fritz on March 9, 1979.
An employer may discharge an employee for abuse of authority or
insubordination, provided these reasons are real and not pretextual. In re
Spalding, Division of Questor Corporation, 225 NLRB 946 (1976). An
employee was lawfully discharged for repeated arguments and outbursts
against his supervisor in Butler-Johnson Corp v. NLRB, 608 F. 2d 1303, (9th
Cir., 1979). Cf Manuel San Juan Co., Inc. 211 NLRB 812 (1974); Farah Mfg.
Co., Inc. 202 NLRB 666, (1973); Cable Dairy Products Cooperative, Inc. 205
NLRB 160, 84 LRRM 1094 (1973). While the above cases deal with the
National Labor Relations Act they give guidance here by analogy.
Complainant's third contention is that he was fired because of a
combination of telling Stafford not to change the MSHA statements and
because he called Fritz an S.O.B. Hansen ma{ntains that he was then
rehired and terminated a second time when Harold Stafford had a flare· up
of temper occasioned by Hansen filing an MSHA discrimination complaint.
After he was fired by Fritz, Hansen filed his MSHA complaint~ He was
thereupon offered back his old job. He went to the site the following
Monday but always in issue was Hansen's claim for back pay (March 9 through
April 2). Fritz could not resolve the matter and said only Harold Stafford
could resolve the point. Hansen was on the jobsite all day but there was
no opportunity to talk to Stafford. That night he went to Stafford's
apartment where the back pay issue was raised. Stafford refused to pay him
any back wages and that concluded the discussion.
I disagree with complainant's allegation that Harold Stafford's flare
up of temper and accompanying statements on April 2 are indicative of
retaliatory actions for Hansen filing an MSHA complaint. (Facts, 21). I
have previously co.ncluded ·there was no basis for Hansen to file his MSHA
complaint. Even if there had been a basis for Hansen to file such a
complaint, an employer may legimately dispute those allegations.
Briefly stated, I find that Hansen had already been discharged by
Fritz, and it was Hansen, and not Stafford, that placed conditions on his
accepting reemployment with the company. Hansen cannot ignore his own
testimony that he was not returning to work until the issue of back pay was
resolved with Stafford. (Tr. 1133-1134).

2193

I conclude that Hansen was not fired on April 3 in retaliation for
having filed an MSHA complaint, but, in fact, Hansen never accepted
.Stafford's offer of reemployment.
Complainant attacks the credibility of the evidence that supports the
view that he quit after the shift on April 2. In essence, complainant
argues that Harold Stafford is not a credible witness because he says
Hansen quit after he worked his shift on April 2, but the termination slip
is dated April 3. (Exhibit P-14). I am not persuaded by complainant's
argument for sev'eral reasons. Stafford at many times failed to display a
dexterity with specific dates. I agree with complainant that Stafford
testified Hansen quit at the close of the shift on April 2. However, the
following events are very clear: first, Hansen went back to the job site on
April 2; second, Hansen did not see Stafford on the site that day to
resolve the back pay issue; third, Hansen went to Stafford's apartment that
night; fourth, Hansen was asked to and did turn in his gear the next day;
fifth, on April 3 Stafford directed the office ~anager to indicate on the
termination slip that Hansen had quit and Hansen didn't argue with Stafford
at that time. The fact that Stafford's testimony on this point was
erroneous as to the date Hansen quit does not add greater credibility to
Hansen's case. In summary, I conclude that Stafford could consider that
Hansen's failure to accept the offer of reemployment constituted a showing
that he had quit.
Two events in this case require comment. One event involves an
alleged telephone call from Harold Statford to Hansen. Hansen contends
that when he answered the telephone the only "conversation" was the
clicking of a ·revolver. The other event concerns Hansen's conclusion that
he was severely pressured at Stafford's apartment the night of April 2.
Complainant's post trial brief does not claim that these occurrences
establish any particular point so it is not necessary to lengthen this
decision with a further discussion of these factual situations.
For the foregoing reasons I conclude that Hansen was not engaged in a
protected activity prior to his discharge on March 9, 1979 and·without such
protected activity no claim for discrimination can lie under the Act. I
also conclude that Stafford did not discharge Hansen on April 3 in
retaliation for Hansen's filing a discrimination complaint with MSHA.
Hansen's complaint of discrimination should accordingly be dismissed.
DOCKET NO~ WEST 80-155-DM
PATRICIA ANDERSON
INTRODUCTION TO THE CASE
Complainant's theory of the evidence is as follows: Mrs. Anderson, the
Stafford secretary-bookkeeper was asked by Harold Stafford to help prepare
documents that would show MSHA investigators that Stafford was undergoing a
reduction in force. Mrs. Anderson reviewed the records but was unable to

2194

find any support for Stafford's argumer1t. Thereafter, Mrs. Anderson was
asked to tell MSHA investigators that when Steve Smith was terminated
Stafford was· undergoing a reduct ion in force. Anderson told Stafford
officials she would not lie to MSHA investigators.. In retaliation for her
refusal to cooperate in obstructing the Steve Smith investigation she was
terminated.
Respondent denies any claim of discrimination and contends Patricia
Anderson was terminated because of her inability to handle her bookkeeping
job.
FINDINGS OF FACT
The evidence is conflicting.
credible.

I find the following facts to be

1. Patricia Anderson was employed as a bookkeeper and secretary for
Stafford Construction from June 1978 to February 12, 1979. (Tr. 1308).
2. The night of January 30, 1979, Mrs. Anderson met with Stafford
Company officials on two separate occasions. (Tr. 1345-1346, 1369).
3. The first meeting was held at the construction trailer and was
with Schneider, .Fritz, and Hansen. The purpose was to secure documents .i:~ ...
the MSHA investigators who were to meet with Stafford officials the
following day. They went through the employees files and made a 1 ist of
dates and the indicated reasons for terminations. A majority of the
termination slips indicated there had been a reduction in force. (Tr. 1346;
1370, 1375).

4. One of the most conunon terms on the termination slips was a
"reduction in force." (Tr. 1394).
5. Mrs. Anderson was called to a second meeting at the Stafford
office in downtown Canon City. Harold ·stafford, Mrs. Stafford, Schneider,
Poynter, Jackson, Hansen and Mrs. Anderson were present. The meeting
lasted 1 1/2 to 2 hours. (Tr. 1346, 1371, 1373).
6. Anderson was asked to listen to the company attorney's tape. This
tape was ~ conversation between Harold Stafford and the attorney on
handling MSHA business. Anderson was also asked to listen to a tape by
Mark Jackson. She was also requested to read Mark Jackson's statement so
she could see the w~y that MSHA tricked people into making statements that
weren't exactly right. Mrs. Anderson didn't read the Jackson statement.
(Tr. 1348, 1372-1373).

7. The purpose of the meeting, according to Anderson, was also to
instruct her as to what she was to testify to at the MSHA meeting. She was
asked to testify that there had been, in the Steve Smith case, a reduction
in force. (Tr. 134 7) •

2195

8. Anderson said she couldn't lie; she couldn't testify that there
had been a reduction in force. Harold Stafford finally said Mrs. Anderson
could just say whatever she wanted to. (Tr. 1348, 1349).
9. Mrs. Anderson was asked to testify about the Stafford records.
Harold Stafford told her that if she had any questions in her mind she was
to write them on the blackboard. (Tr. 1373, 1392).
10. After this meeting Harold Stafford didn't talk to Anderson anymore
and would come in and glare at her. (Tr. 1350).
11. Mrs. Stafford didn't speak to Anderson after the January 30
meeting, but Mrs. Stafford had started glaring at her two to three weeks
before the January 30 meeting. (Tr. 1350, 1384).
12. Mrs. Anderson's last working day was February 8. She was given
her termination slip on February 12. (Tr. 1350, 1351, 1355-1356).
DISCUSSION
The threshold issue to be addressed concerns respondent's contention
that Patricia Anderson, as a clerical-secretary-bookkeeper employee, was
not a "Tiner" under the Act. Resp~ndent relies on the definitions of
"miner"_/ and "coal or other mine"_/ as well as an interagency
agreement between MSHA and OSHA. The agreement 3 / specifically lists what
MSHA considers to be mining operations.
In May 1979, the United States Court of Appeals for the Third Circuit
considered the definitions of "miner" and "operator" in the 1977 Act. The
Court ruled, in part, that nonproduction personnel (those not directly
involved in the extraction process) logically fall within the statutory
definition of miner, for the definition of "coal or o"ther mine" includes
not only the immediate area of mineral extraction, but all lands, means of
access, excavations, and equipment ancillary to the extraction process.
Persons working in these ancillary areas are persons working in coal or
other mines, and, therefore, are miners even though they are unlikely to be
immediately involved in the production or extraction process. National
Industrial Sand Association v. Marshall., 601 F. 2d 689, (3rd Cir., 1979).
The agreement between MSHA and OSHA, cited by respondent, is not
controlling. The agreement does not purport to include coverage by job
classifications. It merely gives examples of the type of mining operations
which MSHA and OSHA con~ider to be within the coverage of the Act.
Accordingly, I conclude that Patricia Anderson is a miner within the
coverage of the Act.

1/

21
3!

30 u.s.c. 802(g)
30 u.s.c. 802(h)(l)
CCH Health and Safety Law Reports , 516.62 p. 9 370

2196

MERITS OF ANDERSON CASE
The circumstances giving rise to the foregoing findings of fact must
be put into perspective.
On January 30, 1979, the day before the MSHA investigators arrived to
take statements in the Steve Smith case, Mrs. Anderson was instructed to
review personnel records and list those employees who had been terminated
because of a reduction in force (RIF). Later that nfght a meeting was held
with various company officials.
Seven company officials were present at the later meeting. Stafford
was preparing his defense that Steve Smith was terminated because of a
reduction in force. At this point in time virtually all of the work force
had been reduced due to the ground freeze on January 5th.
At the meeting, Anderson was asked to testify that there had been a
RIF. She refused, saying she couldn't lie. However, Anderson admitted she
was never asked to lie. (Tr. 1381). All of the testimony about anyone
implying that she should lie was generated solely by Mrs. Anderson.
Certainly efforts to suborn perjury can be very subtle, but I conclude
no such effort was made here. After Mrs. Anderson gratutiously stated "I
can't lie" there was additional conversation.· Mrs. Anderson credits Harold
Stafford with "finally" stating "Just say whatever you want to." (Tr.
1349). Also, at the meeting, Harold Stafford commented that if Mrs.
Anderson had a question in her mind she was to write out the question on
the blackboard. (Tr. 1373).
The above activities in my view are not indicative of an effort to
obstruct the investigation of the Stephen Smith case. Nor do they
constitute discriminatory conduct since at this point no adverse action had
been taken nor indicated against Mrs. Anderson. Mrs. Anderson claims she
was made to feel unpopular and was threatened at the meeting. No threats
or the exertion of pressure against Mrs. Anderson which would constitu.te
discrimination appear in the record. The fact that Harold and Mrs.
Stafford glared at her does not amount to a violation of§ lOS(c).
As previously noted, supra. page 5, Stafford's defense in the Stephen
Smith case, although unsuccessful, has more than a scintilla of evidence
to support it. To rule that Stafford's conduct during the January 30
meeting was in violation of the Act would essentially mean that an employer
could never discuss with any employee what he considered his defense to be
in an MSHA case.
The only possible protected activity in this case was the right of
Mrs. Anderson to testify that there had not been a reduction in force. As
stated above, Stafford did not interfere with this right prior to the MSHA
investigation. Mrs. Anderson never did give a statement to the MSHA investigators. (Tr. 1381).

2197

At the time her employment was terminated, nearly two weeks after the
January 30 meeting, Mrs. Anderson was not preparing to testify nor had she
previously t~stified adversly to Stafford's case. Accordingly, I conclude
that Mrs. Anderson was not fired in retaliation for any protected activity.
Therefore, Mrs. Anderson's complaint of discrimination should be
dismissed.
REINSTATEMENT
At the time they filed their complaints the parties requested that
they be reinstated to their former positions; however, at trial they waived
that right.
CIVIL PENALTIES
In each of these cases the Secretary seeks a civil penalty of
$4,000.00 against Stafford for the violation of Section lOS(c) ?f the Act.
The credible evidence has been reviewed and the complaints of Stephen
Smith and Thomas Smith are to be affirmed. The Act provides that any
violation of tge discriminat~on section shall "be subject to the provisions
of section 108 / and llO(a). / The statute authorizes the imposition
of a penalty in an amount not to exceed $10,000. 30 U.S.C. 820(a). In
assessing civii monetary penalties the Commis-sion is to be guided by
section llO(i)_/ of the Act.
Considering the pertinent statute and in view of the facts in the
Stephen Smith and Tom Smith cases I deem a penalty of $2,000.00 to be an
appropriate civil penalty in each case.
Based on the foregoing findings of fact and conclusions of law as
stated above I enter the following:
ORDER
DOCKET NO. WEST 80-156-DM
STEPHEN SMITH
1. Complainant Stephen Smith was unlawfully discriminated against and
discharged by Respondent for engaging in an activity protected under
Section lOS(c) of the Act, and his complaint of discrimination is
sustained.

4/

51
6/

30 u. s. c. 818
30 u.s.c. 820(a)
30 u.s.c. 820(i)

2198

2. Respondent is ordered to pay Stephen Smith the sum of $4,022.00 in
back pay. Further, respondent is to pay interest on said back pay at the
rate of 12 1/2% per annum. 7 /
3. The employment record of Stephen Smith is to be ~ompletely
expunged of all comments and references to the circumstances involved in
his discharge.
4. A civil penalty of $2,000.00 is assessed against respondent for
violating Section 105(c) of the Act.
DOCKET NO. WEST 80-165-DM
THOMAS SMITH
1. Complainant Thomas Smith was unlawfully discriminated against and
discharged by respondent for engaging in an activity protected under
Section 105(c) of the Act, and his complaint of discrimination is
sustained.
2. Respondent is ordered to pay Thomas Smith the sum of $5,488.00 in
back pay. Further, respondent is to pay interest on said back pay at th.e
rate of 12 1/2% per annum.
3. The employment record of Thomas Smith is to be completely expunged of all comments and references to the circumstances involved in his
discharge.
4. A civil penalty of $2,000.00 is assessed against respondent for
violating Section 105(c) of the Act.
DOCKET NO. WEST 80-71-DM
DONALD HANSEN
The complaint of discrimination filed by Donald Hansen is dismissed.

7/ Interest rate used by Internal Revenue Service for underpayments and
overpayments of tax, Rev Ruling 79-366 Cf. Cf. Florida Steel Cgrporation,
231 N.L.R.B. No. 117, 1977-78, CCH, N.L.R.B. Para 18,484; Bradley v. Belva
Coal Company, WEVA 80-708-D April 1981.

2199

DOCKET NO. WEST 80-155-DM
PATRICIA ANDERSON
The complaint of discrimination filed by Patricia Anderson is
dismissed.

Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Richard D. Alaniz, Esq.
Tate, Bruckner & Sykes
2200 South Post Oak Road, Suite 555
Houston, Texas 77056

2200

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

CONSOLIDATION COAL COMPANY,
Contestant
v.

Contest of Order
Docket No. PENN 81-132-R
Order No. 1043545

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

Laurel Mine
Respondent
Civil Penalty Proceeding

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

Docket No. PENN 81-156
A.C. No. 36-03298-03037

v.
Citation No. 1043455
CONSOLIDATION COAL COMPANY,
Respondent

Laurel Mine

DECISION
Appearances:

Jerry F. Palmer, Esq., Pittsburgh, Pennsylvania, for
Consolidation Coal Company;
James P. Kilcoyne, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the Secretary of Labor.

Before:

Judge Melick

These consolidated cases are before me pursuant to sections 105(a)
and 105(d) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et~., the "Act," to contest an order of withdrawal issued to the
Consolidation Coal Company (Consolidation) pursuant to section 104(b) of
the Act (Order No. 1043545) and for review of a civil penalty proposed by
the Mine Safety and Health Administration (MSHA) for that order and the
section 104(a) citation underlying that order (Citation No. 1043455). '};_/

'J:./

Section 104(a) of the Act provides as follows:
"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,

2201

An evidentiary hearing was held in Wheeling, West Virginia, on June 11,
1981.
The primary issue before me is whether Consolidation violated the regu1 atory standard at 30 C.F.R. § 75.403 as alleged in Citation No. 1043455,
and, if so, whether that violation was abated within the period of time set
forth in the citation. If it is found that the violation was not timely
abated, a further issue is whether the period for abatement should have
been extended. Finally, if it is found that there was a violation of the
cited standard, a determination must be made as to the appropriate civil
penalty to be assessed for that violation considering the criteria under
section llO(i) of the Act.
The Citation
The citation at bar was issued by MSHA inspector Earl Miller to mine
foreman Tom Hofrichter at 8:30 a.m. on March 19, 1981, and alleged as
follows:
Based on laboratory analysis by MSHA all four of the
rock dust samples that were collected in a rock dust survey
during a health and safety inspection on 2/4/81 in the
south east mains section contain less than the required
amount of incombustible materials. They were as follows,
(1) D12+00 intake 24 percent, !El intake 2+00 19 percent,
!Fl 2+00 intake 20 percent, !El intake 2+00 19 percent.
fn. 1 (continued)
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 re~sonable 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."
Section 104(b) provides as follows:
"If, upon any follow-up inspection of a coal or other mine, an authorized representative of the Secretary finds (1) a violation described in a
citation issued pursuant to subsection (a) has not been totally abated
within the period of time as originally fixed therein or subsequently
extended, and (2) that the period of time for the abatement should not be
further extended, he shall determine the extent of the area affected by the
violation and shall promptly issue an order requiring the operator of such
mine or his agent to innnediately cause all persons, 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 t~1at such violation has been abated."

2202

The cited regulatory standard reads in relevant part as follows:
Where rock dust is required to be applied, it shall be
distributed upon the top, floor, and sides of all underground
areas of a coal mine and maintained at such quantities that
the incombustible content of the combined coal dust, rock
dust, and other dust shall not be less than 65 percentum.

* * *·
At hearing, MSHA inspector Charles Burk, Jr., testified concerning the
regular inspection he performed at Consolidation's Laurel Mine on February 4,
1981, which eventually led to the issuance of the citation. During the
course of that inspection, he performed a rock-dust survey in the Southeast
Mains section. Following the MSHA band-sampling procedure, he collected
four samples, one each from the No. 4 entry, the No. 5 entry, the No. 6 entry,
and the No. 7 entry. Jeff Kozora, Consolidation's safety inspector for the
Laurel Mine observed Burk collect these samples and offered no objection to
the procedures followed.
There is no dispute that the areas cited were areas required to be rock
dusted. Nor is there any dispute concerning the preservation of the samples
collected by Burk, the chain of custody of those samples to the MSHA laboratory, or the laboratory procedures. The samples were found to have 24 percent,
19 percent, 20 percent, and 19 percent incombustible content, respectively.
Accordingly, Citation No. 1043455 was issued for a violation of the standard
at 30 C.F.R. § 75.403.
In its defense, Consolidation appeared to contend at hearing (but did
not argue in its brief) that MSHA had failed to establish the reliability
of its dust-sampling procedures. In particular, it alleged that Inspector
Burk actually gathered a 1-3/4-inch sample of material from the mine floor,
whereas MSHA procedures apparently call for a !-inch sample. Since no actual
measurements were taken by anyone when the samples were collected and since
the operator's representative who was present when the samples were taken did
not then object to the sampling, I find no factual basis for the contention.
Even assuming that a 1-3/4-inch sample was indeed taken from the mine floor,
Consolidation presented no evidence that the sample would have accordingly
been tainted. Moreover, MSHA expert witness John Nagy testified without
contradiction that even if a 1-3/4-inch sample had been collected that procedure would not have compromised the test objectives. Particularly because
of Nagy's undisputed expertise, I accord his testimony great weight. Accordingly, I find that the testing procedures here followed were sufficiently
reliable to have provided valid test results. I find that the incombustible
content of the dust samples taken at the Nos. 4 through 7 entries was as
reported in the MSHA laboratory analysis (MSHA Exh. 1), .!.·~·, 24 percent,
19 percent, 20 percent, and 19 percent, respectively. Since this incombustible content is less than the 65 percentum required under the provisions of
30 C.F.R. § 75.403, I find that the violations have been proven as charged.

2203

The Withdrawal Order
The section 104(b) withdrawal order issued by MSHA inspector Earl
Miller on March 24, 1981, alleged as follows:
The operator did not make a reasonable effort to rock
dust the area in the south east mains section. Rock dust
had been applied in the No. 4 and No. 5 entries; however,
No. 6 and No. 7 entries had not been rock dusted. No men
were observed dusting in the area at the time of the
inspection.
Since Consolidation has admitted that at least 240 feet of the areas
initially cited had not been rock dusted even as of March 24, 1981, when
Inspector Miller issued the order at bar, it is clear that the violation
had not been abated within the time specified in the citation,_!.~., by
4 p.m. on March 20, 1980. The question before me then is whether the
inspector acted reasonably in refusing to extend the time for abatement.
The reasonableness of his actions must be determined on the basis of the
facts confronting him at the time he issued the order. United States Steel
Corporation, 7 IBMA 109 (1976). Thus, the facts confronting Inspector
Miller at 10:15 a.m. on March 24, 1981, when he issued the order, must be
examined.
In determining whether the period for abatement should have been
extended by Inspector Miller at that time, the following factors should be
considered: (1) the degree of danger that any extension would have caused
to miners, (2) the diligence of the operator in attempting to meet the time
originally set for abatement, and (3) the disruptive effect an extension
would have had upon operating shifts. Consolidation Coal Company, BARB
76-143 (1976).
The overriding consideration in this regard is, of course, the degree
of danger that any extension would have caused to miners. It is undisputed
that previous testing had demonstrated that over one 24-hour period,
4,300 cubic feet of methane had been liberated from the Southeast Mains section and 9,700 cubic feet of methane had been liberated from the entire mine.
In addition, at the time Miller issued the order at bar, at least seven miners
were working in active sections not mor~ than 200 feet from the cited area and
where ignition sources admittedly existed. Miller also found serious violations which could have resulted in the accumulation of explosive hydrogen
gases at the battery-charging station 250 feet from the cited area. It is
not disputed that under the circumstances a fire or explosion in either of
these active areas could have traveled to the No. 6 and No. 7 entries and
could have been perpetuated and magnified by coal dust in these entries.
Miller thus correctly concluded that a hazardous condition from the exposed
coal dust existed as a result of Consolidation's failure to complete the
rock dusting as required in the original citation and would have continued
to expose at least seven miners working nearby to fatal injuries. Any
extension of the abatement period would, therefore, have commensurately
extended the miner's' exposure to these hazards.

2204

The second consideration is the diligence of the operator in attempting
to meet the time originally set for abatement. It is undisputed that ~hen
the underlying citation was issued at 8:30 on the morning of March 19, 1981,
mine foreman Tom Hofrichter agreed that the cited condition could be abated
by 4 p.m. the following day, March 20, 1981, and, accordingly, Miller allowed
that much time for abatement. It is further undisputed that the condition
could have been abated by two men working one 8-hour shift. It was nevertheless established that Consolidation had failed to complete abatement
nearly 5 days after the citation had been issued and was at that-time doing
nothing to further the abatement process. Moreover, at the time the order
was issued, Consolidation could offer no extenuating circumstances or
justification for its failure to have fully abated the condition. While
the area which had not yet been rock dusted, was, according to the inspector, nearly half of the area originally cited, even assuming that the area
only consisted of the 240 linear feet admitted by Consolidation, it was
substantial in relation to the total area cited and is persuasive evidence
that little effort was made to correct the condition. Accordingly, I conclude that Consolidation did not make a diligent effort to abate the condition within the time originally established.
A third factor to consider is the disruptive effect that an extension
of abatement time would have upon operating shifts. Consolidation claims
that work in the mine was indeed disrupted as a result of the order since
the areas subject to the order served as a return for the left split of air
and the section foreman was accordingly told not to set up for mining on
that split of air. Presumably, however, the men were assigned to work elsewhere during the 4-1/4 hours needed to complete abatement. Consolidation
also asserts that production was further disrupted because a few men from a
working crew had to be diverted to complete abatement. While the argument
is certainly entitled to credit for its audacity, I find no merit to a contention of disruption based on its own intentional or negligent failure to
have completed abatement within the time required. Under the circumstances,
I conclude that the issuance of the withdrawal order had only minimal effect
on operating shifts. I observe moreover that termination of the order was
further delayed by the fact that the operator's rock-dusting equipment in the
cited section was admittedly not functioning and other equipment had to be
brought in. In any event, I find that any adverse effect the order had is
far outweighed by the other factors considered herein. I therefore conclude
that Inspector Miller did not act unreasonably in not extending the time for
abatement. Accordingly, Order of Withdrawal No. 1043545 was properly issued
and is affirmed.
Appropriate Penalty
Under section llO(i) of the Act, the following criteria are to be considered in assessing a civil penalty: (1) the operator's history of previous violations, (2) the appropriateness of such penalty to the.size of
the business of the operator charged, (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

2205

the operator in attempting to achieve rapid compliance after notification
of the violation. The operator and the mine here at issue are large in size.
There is no contention that any penalty that might be imposed would affect
the operator's ability to continue in business. A computer printout summarizing the history of violations at the Laurel Mine indicates a significant number of violations over a recent 2-year period but only one previous
violation of the standard cited in this case. I find that the operator is
chargeable with simple negligence in failing to detect and correct a condition which it should have known existed in the cited entries. An area of a
coal mine that has been rock dusted is plainly visible. I find, however,
that the operator was grossly negligent in failing to abate the cited condi tions within the time specified for abatement after it knew of the cited
hazard and indeed failed to correct the condition for nearly 5 days. It is
obvious within this framework that Consolidation failed to exercise good
faith to achieve timely abatement and indeed did not achieve abatement until
an order of withdrawal had been issued. The hazard of fire and explosion
here was aggravated by the fact that it was allowed to continue to exist
for such a long period of time. Based on the undisputed testimony of MSHA's
expert witness, John Nagy, it is apparent that the conditions did pose a
danger of serious injury or death to at least seven or eight miners. Considering all of these factors, I conclude that a penalty of $2,000 is
appropriate.
ORDER
Citation No. 1043455 and Order No. 1043545 are hereby AFFIRMED.
Consolidation Coal Company is ORDERED to pay a penalt of $2,000 within
30 days of the date of this decision.

'
Distribution:
Jerry F. Palmer, Esq., Consolidation Coal
Pittsburgh, PA 15241 (Certified Mail)

0 Washington Road,

James P. Kilcoyne, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480-Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)

2206

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

Contest of Citation

CONSOLIDATION COAL COMPANY,
Contestant

Docket No. PENN 81-92-R

v.

Citation No. 845008

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

Renton Mine
Respondent
DECISION

Appearances:

Jerry F. Palmer, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for Contestant;
David T. Bush, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Respondent.

Before:

Judge Melick

This case is before me upon the notice of contest filed oy the
Consolidation Coal Company (Consol) under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act," challenging
the validity of a citation issued by the Mine Safety and Health Administration
(MSHA) on February 2, 1981, under the provisions of section 104(d)(l) of the
Act. l:_/ In contesting the citation, Consol specifically alleges that: (1)
there was no violation of the cited mandatory standard, and, even assuming
that there was a violation, that, (2) the violation was not 'one that could
significantly and substantially contribute to the cause and effect of a coal
mine safety or health hazard, and (3) the violation was not due to the unwarrantable failure of the operator to comply with the standard. At the request
of Consol, an evidentiary hearing was held in Pittsburgh, Pennsylvania.
1/

Section 104(d)(l) provides in relevant part as follows:
"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 did 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."

2207

The citation at bar alleges a violation of the operator's ventilation
plan under the mandatory standard at 30 C.F.R. § 75.316. That standard has
been interpreted as requiring the operator to comply with the ventilation plan
approved by the Secretary. Zeigler Coal Company, 4 IBMA 30 (1975), aff'd.,
536 F.2d 398 (D.C. Cir. 1976). More specifically, the citation alleges as
folLows:
The ve.ntilation plan was not being complied with on the
6 East active working section in that a room located 101 feet
directly inby station No. 9098 was driven in (mined) approximately 39 feet. No ventilation devices, mine curtain or tubing, was [sic] installed at the time of inspection to ventilate
the face. Two sets of examination dates and initials was [sic]
on the left rib: 1-31-81, J.K.; 02-01-81, D.F.
The operator's ventilation plan then in effect provided in part as
follows: "Crosscut is normally provided at face before room or entry is
abandoned. However, if crosscut is not or cannot be driven at face, line
brattice will be installed." I find that these provisions of the ventilation
plan have indeed been violated. 2/ The essential facts in this regard are
not in dispute. At the time MSHA inspector Lloyd Swayne issued the subject
citation at about 9:30 a.m. on February 2, 1981, the cited entry was approximately 39 feet deep. No crosscut had been cut at the face and no ventilation
device was present in the entry. The face of the entry was admittedly not
then a "working face" since all phases of the mining cycle had terminated
there on January 30, 1981, during the 8 to 4 shift and no additional mining
in that entry was contemplated for the immediate future. Section foreman
Rich<!rd Walker explained that he had decided instead to cut through a crosscut adjacent to the mouth of the cited entry and to continue mining in another
entry before returning to work in the cited entry. It is not disputed that
brattice curtain had previously been installed in the cited entry as mining
progressed and remained in place as late as 7 a.m. on the day the citation
was issued. The brattice had subsequently been removed, however, by persons
not identified.
Within this framework of undisputed evidence, it is clear that the cited
entry had been temporarily abandoned on January 30, 1981, after having been
penetrated to a depth of 39 feet but before a crosscut had been driven from
its face. The section foreman decided to abandon that entry for a short time
in favor of mining coal in an adjacent crosscut and nearby entry. It is also
2/ While MSHA alleges that Consol actually violated the provisions of Drawing No. 12 incorporated as part of that plan, I disagree. Drawing No. 12 is
inapplicable on its face because.it applies only when a double split of air
is utilized. Here, it is admitted that only a single split of air was in
effect. Moreover, I do not find that mining was progressing at the time the
citation at bar was issued and I therefore do not find that the requirement
set forth as part of Drawing No. 12 that "line brattice or tubing [be]
advanced to 10 feet of face as mining progresses" is applicable hereto.

2208

clear that under the cited prov1s1ons of the ventilation plan, line brattice
was required under these circumstances to have been installed in the cited
entry. Since brattice was admittedly not installed at the time the citation
was issued, I find that the ventilation plan has been violated and that a violation of the cited standard has therefore been proven.
Whether that violation is "significant and substantial," however,
depends on whether, based on the particular facts surrounding the violation,
there existed a reasonable likelihood that the hazard contributed to would
have resulted in an injury of a reasonably serious nature. Secretary of Labor
v. Cement Division, National Gypsum Company, 3 FMSHRC 822 at 825 (1981). The
test involves two considerations: the probability of resulting injury and the
seriousness of the resulting injury. Inspector Swayne here concluded that the
violation was "significant and substantial" because "it was evident that methane
was accumulating" in the cited entry and because of the potential for nearby
ignition sources. While Swayne had applied a different standard in reaching
this conclusion, I find, based on a de nova analysis of the facts surrounding
the violation, that it was nevertheless "significant and substantial" under the
National Gypsum test.
In determining that ','methane was accumulating," Inspector Swayne relied
upon a methane test he performed in the cited entry at about 9:30 that morning
showing a concentration of .3 percent methane and upon a determination that
there was absolutely no movement of air in that entry. This evidence is not
contradicted. The .3 percent methane then found was admittedly not of sufficient concentration to constitute an imminent danger of explosion or fire
but, as Swayne pointed out, if that had accumulated to a concentration of
1 percent or more then an explosive concentration would have existed. While
the records of daily inspections kept at the Renton Mine do show that with one
exception no methane had been detected at the face of the subject entry from
January 30, 1981, through 7:30 a.m. on February 2, 1981, the day the citation
was issued, it is apparent from the testimony of Section Foreman Walker that
during that same period line brattice was hung to within 15 feet of the face
of that entry thereby providing ventilation to remove the methane from the
face. When Swayne cited the condition at 9:20 on the morning of February 2,
however, the brattice had been taken out leaving the entry without ventilation.
Indeed, Swayne was unable to detect any movement of air at the face. The fact
that Section Foreman Walker found more than the required ventilation at a point
outby the cited entry is of little consequence since there was admittedly no
ventilation in the entry itself where the methane was accumulating. Under the
circumstances, I find that Swayne was correct in concluding that methane was
accumulating in the cited entry.
Inspector Swayne further testified that before an explosion or fire could
occur, in addition to an increase in the concentration of methane, an ignition
source would also have to be present. He found that an energized roof-bolting
machine working some 75 feet fr~m the mouth of the cited entry was one such
potential ignition source. He opined that the electrical cables to that machine
could be severed by a roof fall or from the operation of the machine itself. He
surmised that the bolting machine could also strike the ribs or tools on the

2209

machine could jostle about, thereby creating sparks. This testimony is not disputed by the operator. Within this framework of evidence, I am convinced that
when the citation at bar was issued there indeed existed a reasonable likelihood
that the hazard contributed to would have resulted in an injury of a reasonably
serious nature. Thus, the violation was "significant and substantial."
A determination must next be made as to whether the instant violation
was the result of. the "unwarrantable failure" of the operator to comply with
the law. A violation is the result of "unwarrantable failure" if the violative condition is one which the operator knew or should have known existed or
which the operator failed to correct through indifference or lack of reasonable
care. Zeigler Coal Company, 7 IBMA 280 (1977). In this regard, I find first
that the operator may be presumed to know the clear requirements of its own
ventilation plan and that accordingly in this case it may be presumed that
Consol knew that line brattice was required to have been maintained in the
cited entry. This presumption is reinforced by the undisputed testimony that
such brattice had existed in the cited entry in apparent compliance with the
ventilation plan until at least 7:00 that morning when Foreman Walker made his
onshift examination in the subject entry. This was only 2 and 1/2 hours before
the citation was issued by Inspector Swayne. There is no evidence before me,
however, regarding· the circumstances under which that brattice came to be
removed between 7 a.m. and 9:30 a.m. Foreman Walker testified that he did not
authorize its removal and did not know who actually removed it. Under these
circumstances, I cannot find that a respons.ible agent of the operator knew or
should have known of the violative condition, i.e., the removal of the brattice.
Accordingly, I find that the violation was not-one which the operator knew of
or should necessarily have known of and therefore the violation was not the
result of the "unwarrantable failure" of the operator to comply with the law.
The section 104(d)(l) citation at bar must be accordingly modified to a section
104(a) citation.
ORDER
Pursuant to section 105(d) of the Act, I hereby modify the Secretary's
citation in the captioned case from one issued under section 104(d)(l) of the
Act to a citation under section 104(a) of the Act and affirm the latter
citation and the "significant and substantial" findings at endant therewith.

G
A

Distribution:
Jerry F. Palmer, Esq., Consolidation Coal C
1800 Washington Road, Pittsburgh, PA 1524!
David T. Bush, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104
(Certified Mail)

2210

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

September 28, 1981
VICTOR McCOY,

COMPLAINT OF DISCHARGE,
DISCRIMINATION, OR
INTERFERENCE

Complainant

v.
CRESCENT COAL COMPANY,
Respondent

Docket No. PIKE 77-71
DECISION

Appearances:

Stephen A. Sanders, Esq. and Tony Oppegard,
Esq., Appalachian Research and Defense Fund
of Kentucky, Inc., Prestonsburg and Hazard,
Kentucky, for Complainant;
Henry Stratton, Esq. and David Stratton, Esq.,
Stratton, May & Hays, Pikeville, Kentucky,
for Respondent.

Before:

Chief Administrative Law Judge Broderick

On May 10, 1977, Victor McCoy filed a Complaint of Discrimination against Crescent Coal Company under § llO(b) of
the 1969 Coal Act, 30 u.s.c. § 820(b) (1976 and Supp. I
1977). McCoy claims he was discharged on April 22, 1977,
for refusing to ride an unsafe belt line into Crescent's
Mine lOC. According to Crescent, he voluntarily quit
because of a general distaste for underground mining.
A hearing was held on April 21, 22, 24, and May 27,
1981, in Pikeville, Kentucky.
1/ Former miners at Mine lOC
who testified for McCoy were Eddie Overstreet, Teddy Overstreet, Paul Bartley, Michael Church, Jesse Spears, William
Ramey, and Victor McCoy, the Complainant. George Lowers, an
inspector employed by the Mine Safety and Health Administration
(MSHA) also testified for McCoy. Witnesses for Crescent
were William Bevins, who was a foreman during part of McCoy's
tenure and mine superintendent when he left, Dennis Ratliff,
McCoy's last foreman, Jerry Anderson, mine mechanic, Herbert
Mack Gibson, the purchasing agent, and miners Clifford
Justice, Steve Hackney, Dale Ratliff, and Jeff Wright.
Morris Scott, another miner, was called at my instance and
was examined by both parties.

1/
This case has been assigned to three administrative law
]udges over the ~ast four years. After it was assigned to
me, Crescent's motion for a de novo hearing was granted on
March 5, 1981. In this decision~am considering only the
evidence introduced since I took jurisdiction of the case.

2211

Post-hearing briefs have been filed and, having considered them and the record as a whole, I make the following
decision.
Statutory Provision
Section llO(b) (1) of the 1969 Coal Act reads,
No per~on shall discharge or in any other way
discriminate against or cause to be discharged or
discriminated against any miner or any authorized
representative of miners by reason of the fact that
such miner or representative (A) has notified the
Secretary or his authorized representative of any
alleged violation or danger, (B) has filed, insti-tuted, or caused to be filed or instituted any proceeding under this Act, or (C) has testified or is
about to testify in any proceeding resulting from
the administration or enforcement of the provisions
of this Act.
·
Findings of Fact
1.
Crescent's Mine lOC was an underground coal mine
located in Pike County, Kentucky.
Coal was extracted from a
low seam, the height of which varied from about 32 inches to
about 40 inches.
2.
The miners entered and left the mine in one of three
ways. They rode to the face area in a battery-powered
scoop, they walked '!:_! along the belt line (miners rarely
walked along the scoop entranceway), or they rode the belt
line itself. Walking was very tiring and took 30 to 60
minutes, depending on a miner's size, physical fitness, and
the mine conditions along the belt line. The belt line
could carry a miner in a prone position into or out of the
mine in less than 10 minutes.
However, this was contrary to
MSHA regulations.
30 C.F.R. § 75.1403-5. There were no
lights along the belt line, miners riding it had no way to
stop it and it passed through at least one area where the
roof was only inches from the belt.

2/
The height of the coal of course made walking upright
Impossible.
Crawling is probably a more accurate description of the locomotion involved.

2212

3.
Company policy at Crescent ostensibly prohibited miners
from riding the belt line. Nevertheless, nearly all the
miners, including supervisors, rode it on a regular basis,
particularly when the scoop was inoperable, which was common.
Company management knew or should have known this but never
disciplined a miner for it nor threatened such discipline.
In fact, management encouraged the miners to ride the belt.
As a result, a miner who chose not to ride the belt line was
at a disadvantage. He would enter and leave the mine later
than his co-workers and considerably more exhausted from the
walk.
4.
McCoy, like the other miners, often rode the belt line
at Mine lOC. But as time passed, he grew more apprehensive.
On a number of occasions, he failed to jump properly from
the moving belt and fell down. Once, he "froze" on the belt
and had to be dragged off. He repeatedly told his foreman,
William Bevins, that he was afraid to ride the belt line.
5.
On April 22, 1977, shortly after the start of his
shift, McCoy emerged from the mine to tell Dennis Ratliff,
who had succeeded Bevins as his foremen, that he would not
ride the belt line and that he would not walk in. Bevins,
who had been promoted to mine superintendent, was summoned.
6.
McCoy repeated to Bevins his refusal to ride or walk
the belt line and asked him for another job. Bevins told
McCoy that no other jobs were available. He did not insist
that McCoy ride the belt line.
Instead he told McCoy that
he would either ride or walk in; it would make no difference
since McCoy was paid on a portal-to-portal basis. McCoy
then left the mine property.
Issues
1.
Was McCoy discharged or in any other way discriminated
against by Crescent?
2.
If so, was it because of activity protected by
of the 1969 Coal Act?

§

llO(b)

Discussion
Did McCoy Quit or was he Fired?
On April 22, 1977, Victor McCoy refused to ride the
belt into Mine lOC and also refused to walk in via the beltline. Exasperated, he asked William Bevins for another job.
Bevins told him no other job was available and that he would
have to either ride the belt or walk in. McCoy then left.

2213

McCoy's quitting was equivalent to a discharge. Bevins
testified that McCoy was automatically discharged when he
refused to go to work.
I find, therefore, that McCoy was
actually discharged for refusing to work. Alternatively,
for reasons which will appear below, I find that the evidence amply supports a finding that McCoy was constructively
discharged.
Riding the Belt
There is no doubt that miners at Mine lOC rode the belt
regularly, both into and out of the mine. Testimony to the
contrary was simply not credible. Most of Crescent's witnesses admitted riding the belt, including William Bevins,
who eventually became mine superintendent.
If there was a
company policy prohibiting it, it was not enforced.
In
fact, it was a policy kept in reserve to be followed when a
mine inspector was present or expected.
The dangers of riding the belt are obvious. The belt
line entranceway was unlighted and there were no reflectors
to alert miners to their positions along the belt.
The belt
travelled through at least one location where the vertical
clearance was barely sufficient for a miner to pass underneath.
There were no accessible stop controls along the
belt, so if a miner was unable to jump off, he would either
be thrown into a crushing machine or off the end of the belt
to a pile of coal about 70 feet below.
It was not uncommon
for miners to suffer various bruises and sprains in jumping
from the belt. One miner was more seriously injured when
his clothing became entangled in the rollers.
It is clear
and I find that miners who rode the belt were exposed to a
real danger of serious injury.
For McCoy, riding the belt was particularly difficult.
He was not as agile as the other miners and continually
bruised himself jumping off the belt. He grew so apprehensive that one day he "froze" and had to be dragged from
the belt or he would have dropped off the end.
Cases under § llO(b) of the Coal Act and the corresponding provision of the 1977 Mine Act have established the
rule that a miner may not be fired for refusing to work
under conditions he reasonably believes are unsafe or unhealthful. ~, Phillips v. Interior Board, 500 F. 2d 772
(D.C. Cir. 1974); Secretary of Labor ex rel. Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980). Plainly,
McCoy was entitled by statute to refuse to ride the belt.

2214

Walking to the Face Area
McCoy's only practical alternative to riding the belt
was to walk into and out of the mine, except on the infrequent occasions when the scoop was operable. He claims that
walking the beltline was unsafe because of hazardous conditions, particularly near the entrance.
Specifically, he
states that there were areas of unsupported roof and electrical cables·on the floor in wet areas.
This aspect of his
claim was not alluded to when McCoy filed his original claim
(~alled an Application for Review of Discharge under the
1969 Coal Mine Act). Although the testimony is in conflict,
I find that McCoy did not expressly complain to his supervisors of safety conditions related to the roof or floor of
the beltline.
I further find that he did not indicate to
Respondent that he refused to walk the beltline because he
thought it was unsafe. ~
The crux of the matter, then, is whether McCoy was protected by the Act not only when he refused to ride the belt,
but also when he refused to walk in. Ordinarily, a miner
exercising the right to refuse to work must contemporaneously ground his refusal on a claim that he is exposed to
hazardous conditions. Cf.
Secretary of Labor ex rel. Duncan et al. v. T.K. Jessup, Inc., 3 FMSHRC 1880, 1883 (1981).
In this case, however, McCoy's refusal to walk the beltline
was protected because it was a grossly unreasonable alternative to riding the belt.
Substantially all the employees, including supervisors,
regularly rode the belt in and out of the mine.
Realistically, it was a condition of employment at Mine lOC. Although management did not specifically require the employees
to ride the belt or specifically forbid them. to walk, I find
that it encouraged the former and discouraged the latter.
For example, all the employees rode to and from the job site
with the supervisor. On one occasion when McCoy walked from
the mine outside, the truck had left the job site and he was
required to get home on his own.

3/
A Federal inspector toured the mine on June 2, 1977,
approximately six weeks after McCoy left. He issued notices
and orders alleging various violations, including broken
roof bolts and dislodged timber supports along the beltline,
loose rock hanging down between bolts, and standing water on
the beltline floor so that the bottom belt was running
through water. ~here is evidence that the conditions found
by the Inspector in June which resulted in closure orders
were basically the same conditions which confronted McCoy in
April.

2215

It is not enough that the alternative work is safe. 4/
An unreasonable alternative is really no alternative at all.
Cf. 29 C.F.R. § 1977.12(b) (2). The alternative which Crescent offered to riding the belt was so onerous and so disfavored by management that it was an unreasonable alternative to what I have found was a dangerous condition.
Conclusion
I find, therefore, that McCoy had a right under § llO(b)
to refuse to ride the belt or walk into the mine on April 22,
1977.
I do not decide that a miner who properly exercises a
right to refuse to work is entitled to other work equivalent
or even comparable to the job he refuses.
However, the
miner is entitled to have management investigate and correct
the problem so that he may resume his regular duties.
Management may not simply ignore his concerns and permanently relegate him to less desirable tasks as a condition
to honoring his refusal to perform hazardous work. The
miner is protected by § llO(b) when he refuses to accept
such an arrangement. Had I concluded that McCoy resigned
rather than was fired, therefore, the resignation would
amount to a constructive discharge under the facts presented
in this case.
Conclusions of law
1.
I have jurisdiction over the parties and subject
matter of this proceeding.
Respondent was subject at all
times pertinent to this proceeding to the provisions of the
Federal Coal Mine Safety Act of 1969, and Complainant was a
miner protected under that Act.
2.
Complainant Victor McCoy was discharged by Respondent on April 22, 1977, for refusing to work. The discharge violated § llO(b) of the Coal Mine Safety Act of
1969.
Order
1.
Crescent Coal Company shall offer reinstatement to
McCoy in the position from which he was discharged at the
rate of pay fixed for that position on the date of reinstatement.

4/
I do not find it necessary to decide whether walking
1nto the mine on April 22, 1977, was safe or unsafe.

2216

2.
Crescent Coal Company shall pay to McCoy back pay
covering the period from April 22, 1977, until the day he is
offered reinstatement. Back pay shall be computed on a
quarterly basis and, for each calendar quarter, equals the
gross pay McCoy would have received minus interim earnings.
Crescent shall deduct from the back pay award the amounts
required by state or Federal law.
Interest on the net back
pay award shall be computed at a rate of 7% for the period
April 22, 1977, through January 31, 1978, 6% for the period
February 1, 1978, through January 31, 1980, and 12% for the
period thereafter. ~
3.
Crescent Coal Company shall pay a reasonable attorney's
fee for services rendered by counsel for McCoy.
4.
Upon being notified that the decision in this case has
become a final order of the Commission, the Secretary of
Labor shall institute proceedings to assess a civil penalty
against Crescent Coal Company for the violation found
herein.
5.
Counsel for the parties shall advise me in writing by
October 15, 1981, whether they have agreed on the amounts
due under paragraphs 2 and 3 of this order.
If so, they
shall submit those amounts.
If not, further proceedings
will be necessary.
For the purpose of determining the
proper award, I will retain jurisdiction of this case.

J
Distribution:

_A43roJz,~~~/i/

6)41t.CSJames A. Broderick
Chief Administrative Law Judge

Next page.

~/

These figures are based on the adjusted prime rates
used by the Internal Revenue Service for underpayments and
overpayments of tax. The NLRB also uses these figures to
compute interest on back pay awards. Florida Steel Corp.,
231 N.L.R.B. No. 117, 1977-78 CCH NLRB
18,484. Appropriate formulae for computation of interest payments are
found at 3 NLRB CASEHANDLING MANUAL, § 10623, et~ (1977}.

,I

2217

Distribution:

By certified mail.

Stephen A. Sanders, Esq., Attorney for Victor McCoy, Appalachian Research and Defense Fund for Kentucky, Inc., P.O.
Box 152, Prestonsburg, KY 41653
Tony Oppegard, Esq., Attorney .for Victor McCoy, Appalachian
Research and Defense Fund for Kentucky, Inc., P.O. Box 360,
Hazard, KY 41701
Henry Stratton, Esq. and David Stratton, Esq., Attorneys for
Crescent Coal Company, Stratton, May & Hays, P.O. Drawer
851, Pikeville, KY 41501
Thomas A. Mascolino, Esq., Counsel for Trial Litigation,
Off ice of the Solicitor, Division of Mine Safety·, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
Special Investigation, MSHA, U.S. Department of Labor, 4015
Wilson Boulevard, Arlington, VA 22203

2218

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

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

Civil Penalty Proceeding
Docket No. CENT 81-111-M
A.O. No. 16-00246-05019F

v.

Belle Isle Mine

CARGILL, INCORPORATED,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
Statement of the Case
This is a civil penalty proceeding initiated by the petitioner
against the respondent through the filing of a proposal for assessment
of a civil penalty 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 for 14 alleged violations of mandatory safety standards.
Respondent tiled a timely answer and the matter was scheduled
for hearing in Franklin, Louisiana on October 6, 1981. However, by
motion filed September 14, 1981, petitioner seeks approval of a proposed
settlement negotiated by the parties. The citation=;, initial assessments,
and the proposed settlement amounts are as follows:
Citation No.

Date

30 CFR Standard

Assessment

Settlement

082224
082226
0565746
0566594
0566596
0566597
0566598
0566599
0566600
0566601
0566605
0566606
0566607
0566609

5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80
5/1/80

57.4-51
57.20-30
57.5-2
57.12-3
57.12-3
57.12-3
57.12-3
57.12-3
57.12-3
57.12-18
57.12-3
57.12-30
57.12-B
57.12-30

6,000
8,000
8,000
2,500
5,000
5,000
6,500
5,SOO
6,000
6,000
5,500
5,000
300
8 2 000
$ 77, 300

2,000
3,000
8,000
2,500
5,000
3,000
3,000
3,000
3,000
2,000
3,000
5,000
300
__8,000
$ 50,800

2219

$

$

Discussion
The citations in this matter arise out of an investigation by
MSHA of a mine explosion that occurred at the Belle Isle Mine operated
by Cargill, Inc., near Franklin, St. Mary Parish, Louisiana, on June 8,
1979. At the time of the explosion, 22 persons were in the mine,
seventeen of the miners were rescued and five died as a result of the
explosion.
Pursuant to an investigation, the Secretary issued 90 citations
together with its final report on May 1, 1980. Of these citations, 76
were settled at the conference level for a total of $29,233. Pursuant
to settlement negotiations, respondent offered a $50,800 penalty payment
for the remaining 14 citations. Petitioner's settlement proposal has
taken this amount offered by respondent and allocated it among the various
citations. Petitioner states that its allocations have been approved
by the inspectors who issued the original citations.
Petitioner points out that seven citdtions were issued for a violation
of 30 CFR § 57.12-3, and two of these citations have been settled for
the full amount of the assessment. The remaining citations have been
allocated penalties of $3,000 each. Petitioner points out that each
violation involved a similar electrical condition, i.e., the cables were
not protected against overcurrents caused by short-circuits or overloads.
The gravity is extremely high because as petitioner asserts, each violation
could have been the ignition source which caused the explosion. The
reduced penalty reflects respondent's argument that overload protection
was provided for the trailing cables while confirming MSHA's authority to
issue a citation for each occurrence of a violation.
Citation 082224 alleged that a fire alram system was not provided
to warn all underground employees. Petitioner asserts that an assessment
of $2,000 is appropriate for this citation because of the respondent's
exceptional good faith abatement. By installing an extensive audio and
visual system, respondent has substantially improved the safety conditions
which existed prior to the disaster.
Citation No. 082226 was issued because the inspector found that
on June 8, 1979, the men had not been removed from the area where blasting
was taking place even though on numerous occasions dangerous accumulations
of flammable gas had been encountered through the mine. Petitioner asserts
that since primary and bench blasting is now done with miners out of the
mine, a $3,000 settlement is appropriate.
Citation No. 0566601 alleged that certain circuit equipment was
not appropriately labeled to indicate the location of the circuits they
were supplying. Petitioner states that a $2,000 penalty is appropriate
since this condition did not contribute to the explosion.

2220

The remaining four citations were allocated an amount equal to their
original assessment. In further support of its settlement motion, petitioner
has submitted respondent's history of prior violations and asserts
that the proposed settlement is a reasonable and adequate resolution of
the citations and penalties in issue.
Conclusion
After careful review and consideration of the pleadings, arguments
and information of record in support of the motion to approve the
proposed settlement, I conclude and find that is reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. 2700.30, the motion
is GRANTED and the settlement is APPROVED.
ORDER
Respondent IS ORDERED to pay civil penalties in the settlement
amountsabove in satisfaction of the citatiorsin question within thirty
(30) days of the date of this decision and order, and upon receipt of
payment by the petitioner, this proceeding is DISMISSED.

h-t'I~~
George A. Koutras
Administrative Law Judge

Distribution:
Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Ave., NW,
Washington, DC 20036 (Certified Mail)
Edward Fitch, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

2221

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

'SEP 2 8 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 81-27-M
A.C. No. 20~00418-0SOlOF

v.
Empire dine
CLEVELAND CLIFFS IRON COMPANY,
Respondent
UNITED STEELWORKERS OF AMERICA,
Intervenor
DECISION
Appearances:

Gerald A. Hudson, Esq., Office of the Solicitor,
U.S. Department of Labor, Detroit, Michigan, for
the Petitioner;
Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman,
Graybill & Greenlee, P.C., Ishpeming, Michigan, for
the Respondent;
Ernest Ronn, Marquette, Michigan, for the Intervenor.

Before:

Judge Melick

This case is before me upon a petition for assessment of civil penalty under section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the "Act." The Secretary proposes a penalty for an
alleged violationo·f the mandatory safety standard at 30 C.F .R. § SS .9-S4,
charging that the Cleveland Cliffs Iron Company (Cleveland Cliffs) failed
to provide an adequate berm to prevent the overtravel and overturning of a
haulage truck at the Empire Mine's south waste-rock dump. The general
issues in this case are, of course, whether Cleveland Cliffs violated the
cited standard and, if so, the appropriate civil penalty to be assessed for
the violation. Hearings in this case were held in Marquette, Michigan,
commencing June 30, 1981.
I.

The Alleged Violation
The citation at bar specifically alleges as follows:
The berm provided at the dumping location (south waste
rock dump) site 2S.S, was not adequate to prevent overtravel

2222

of truck No. 3415. Berm heights measured on the day of the
accident using a Stanley 6-foot tape measure were 18 to
40 inches. Mid-axel [sic] height of a similar model truck
was measured with a 12-foot Lufkin steel tape, 48 inches.
The berm shall be improved after removal of the truck at the
toe of the dump slope and before resuming dumping operations.
The cited standard, 30 C.F.R. ~ 55.9-54, provides as follows:
"Mandatory. Ber.ms, bumper blocks, safety hooks, or similar means shall
be provided to prevent overtravel and overturning at dumping locations·."
The essential facts are not in dispute. On January 22, 1980, the
deceased, Michael Bianchi, had been assigned as a temporary driver on an
85-ton WABCO haulage truck at the Empire open pit iron mine. Bianchi was
killed when he jumped to escape from his truck as it flipped over and slid
to the bottom of a 200-foot slope at the Empire Mine south waste dump.
According to the undisputed evidence, the incident occurred at around
10:10 that morning as Bianchi was backing a truckload of waste rock in
preparation for dumping at the slope. In spite of efforts by a nearby
bulldozer operator to signal Bianchi to stop, the truck rode up onto the
berm adjacent to the slope. The berm gave way and the truck flipped over
and slid to the bottom of the slope. The berm adjacent to where the truck
passed through was variously estimated to have been from about 12 to
30 inches high on the right (facing the slope) and from 34 to 42 inches on
the left. It was constructed of boulders up to 2 and 1/2 feet in diameter,
sand and crushed stone.
Since Cleveland Cliffs concedes that the berm provided at the south
waste-rock dumping location at its Empire Mine was indeed not adequate to
have prevented the overtravel and overturning of the subject haulage truck
(and since no bumper blocks, safety hooks, or other similar means were
here utilized to prevent overtravel and overturning), it is apparent that
the violation is proven as charged.
By way of attempted defense, Cleveland Cliffs presents a variety of
specious arguments. It first suggests that the standard does not apply to
vehicles under power. In other words, the berm need only be sufficient
to prevent the overtravel and overturning of parked or coasting vehicles.
There is absolutely no basis for reading such an exclusion into the plain
language of the standard and it is accordingly rejected. The operator next
contends that the phrase "to prevent overtravel and overturning," as used
in the cited standard, should be deemed essentially superfluous since the
real purpose of berms and other restraining devices is not to prevent overtravel or overturning per se but only to warn drivers of the need to apply
their brakes. It is a cardinal rule of construction, however, that a statute
or regulation should be construed to give effect to all its provisions, so
that no part will be inoperative or superfluous. Zeigler Coal Company v.
Kleppe, 536 F.2d 398 (D.C. Cir. 1976). Within the framework of this rule,
I find that I must give operative effect to the phrase "to prevent overtravel and overturning" as used in the cited standard. Respondent's argument is accordingly rejected.

2223

Cleveland Cliffs next argues that even assuming the cited berm was
deficient under the standard, it was nevertheless in "substantial compliance"
with MSHA's "guidelines." MSHA's enforcement guidelines for the standard at
bar, which were apparently furnished to the operator sometime before the
citation herein, read as follows:
APPLICATION: Use axle height as a guideline if the
truck is able to dump. A somewhat lower berm or block will
be acceptable if it is needed to clear tail lights, etc.
The operator argues that it was in substantial compliance with these guidelines, and that MSHA should accordingly be estopped from enforcing the more
stringent language of the standard itself. However, following Supreme Court
precedent, the Commission held in Secretary v. King Knob Coal Company, Inc.,
3 FMSHRC (1981), that the doctrine of "equitable estoppel," such as the operator is attempting to invoke herein, cannot be applied against the Federal
Government, i.e., MSHA. The Commission further noted in that decision that
MSHA's guidelines do not have any binding effect.
In any event, I do not find on the facts of this case that Cleveland
Cliffs complied in any way with even MSHA's less stringent "guideline" that
the berm need only be axle height. On the same morning as the fatal accident, MSHA supervisory engineer William Carlson measured the height of the
berm adjacent to where the subject truck had passed through. He estimated
it to be 18 inches high on the right side (facing the slope) at a horizontal
distance of 8 inches from the tire tracks and 40 inches high at a corresponding position to the left of the tire tracks. Carlson opined that his
measurements could even have been overestimated by as much as 6 inches. I
fihd these conservative measurements to have been the most reliable since
they were made in close time proximity to the accident, were made with a
tape measure, and were made in the presence of Cleveland Cliffs officials
who voiced no objection to the measurement procedures. I observe, moreover,
that company safety coordinator, James Tonkin, estimated without taking any
measurement that the berm to the right of the tire tracks was only 30 inches
high and that mine superintendent Roger Solberg admitted that the berm on the
left side was only 42 inches high. Within this framework of evidence, it
is clear that, even assuming the axle height of the truck at issue was only
46 inches as represented by the operator, the subject berm was in any case
not of sufficient height to meet even MSHA's more liberal "guideline." I
note, moreover, that Tonkin testified that larger 120-ton trucks having an
even greater axle height were also using the dump at issue, therefore also
in clear violation of the "guidelines." The operator's third argument is
for these additional reasons clearly unsupportable.
Respondent next argues that the use of a bulldozer operator signalling
from inside his closed cab was equivalent to using a "spotter" to direct the
trucks backing at the dump site and constituted a means "similar" to berms,
bumper blocks, and safety hooks within the meaning of the cited standard.
Under the rule of ejusdem generis, however, general language in a regulation
which follows a specific designation of a particular class of items is to be

given a meaning restricted by that specific designation and will include only
things of the same kind, class, character, or nature to those specifically
enumerated. Association of Bituminous Contractors, Inc. v. Andrus, 581 F.~d
853 (D.C. Cir. 1978); General Electric Company v. OSHRC, 583 F.2d 66 (2d. Cir.
1978). Applying this rule of construction, it is clear that a person designated as a "spotter" is not of the same nature or character as physical
restraints such as berms, bumper blocks, and safety hooks and therefore does
not come within the general language "or other similar means" as used in the
cited standard. The operator's argument herein is accordingly rejected.
Inasmuch as the use of the so-called spotter herein did not prevent the subject truck from overtraveling and overturning, it is clear that a violation
of the cited standard would in any event have existed. Indeed, there was
obvious confusion over the proper signal to be used to stop a backing truck.
One witness thought the bulldozer operator signalled by raising his blade
and backing up while another thought it was by shaking the head or waving
the hand.
Finally, Cleveland Cliffs appears to argue that the cited standard is
so vague that it denies constitutional due process of law. When the contention is analyzed, however, it is apparent that the challenged vagueness
is directed not to the regulatory standard itself but only to the MSHA
"guidelines" and to MSHA's enforcement practices. Inasmuch as I am not
here called upon to determine whether an MSHA guideline or enforcement
practice has been violated, the argument is, of course, without any
relevance.
II.

The Amount of Penalty

In determining the amount of 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) the effect on the
operator's ability to continue in business, (4) whether the operator was
negligent, (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.
The operator here is large in size but appears to have had only a moderate history of violations. However, in the year preceding this incident,
the Empire Mine had been twice cited for insufficient berms. This factor
is particularly significant in finding the operator negligent in this case
for in spite of this past history, the bulldozer operator in charge of constructing berms at the south waste-rock dump on the day of this fatal accident had received no management instruction regarding the sufficiency of the
berms. Indeed, the undisputed evidence shows that he had been relying on the
advice of another employee that berms only 3 feet in height were sufficient-a height which did not even meet the criteria, allegedly relied upon by the
operator, under MSHA's more liberal enforcement guidelines. Its negligence
is further highlighted by the existence of the obvious hazard ,presented by
the 200-foot drop-off at the south waste-rock dump. Under the circumstances,

2225

I find that Cleveland Cliffs was indeed negligent in failing to maintain an
adequate berm. The high gravity of the violation is obvious in that it
resulted in the tragic death of truck driver Michael Bianchi. Abatement was
achieved in this case by the construction of an 84-inch berm. There is no
dispute that the operator did demonstrate good faith in achieving rapid
abatement. There is no evidence that the penalty here imposed would have
any effect on the operator's ability to continue in business. Considering
these factors, I find that a penalty of $8,000 is appropriate.
ORDER
The Cleveland Cliffs Iron Company is ORDERED
within 30 days of the date of this decision.

a penalty of $8,000

Distribution:
Gerald A. Hudson, Esq., Office of
Labor, 231 West LaFayette, Room
Mail)

Solicitor, U.S. Department of
7, Detroit, MI 48226 (Certified

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill & Greenlee,
P.C., Peninsula Bank Building, Ishpeming, MI 49849 (Certified Mail)
Ernest Ronn, Safety and Health Coordinator, United Steelworkers of
America, District 33, 706 Chippewa Square, Marquette, MI 49855
(Certified Mail)

2226

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

~ 28 1981
Civil Penalty Proceeding

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

Docket No. SE 81-24-M
A.O. No. 09-00265-05005

v.

Junction City Mine

BROWN BROTHERS SAND COMPANY,
Respondent
DECISION
Appearances:

Ken Welsch, Trial Attorney, U.S. Department of Labor,
Atlanta, Georgia, for the petitioner; Carl W. Brown
and Steven Brown, pro se, for the respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated 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 for one alleged violation of the mandatory safety standard
30 CFR 56.12-23. Respondent filed a timely answer and notice of contest,
and a hearing was convened in Columbus, Georgia, on August 31, 1981.
The parties appeared and participated fully therein, and they waived
the filing of posthearing proposed findings and conclusions. However,
I have considered the arguments advanced by the parties in support of
their respective cases during the course of the hearing in this matter.
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~·

2227

Discussion
Citation No. 090842, November 5, 1980, cites a violation of 30
CFR 56.12-23, and states as follows:
The connections to the slip rings of the dredge
pump drive motor were not guarded. The guard
had been left off and the energized components
were readily accessable (src) to the dredge
operator.
Testimony and Evidence Adduced by the Petitioner
The citation in question in this case was issued by MSHA Inspector
Thomas W. Hubbard, after inspection of the subject mine on November 5, 1980.
Mr. Hubbard has since been permanently transferred to California, and
to preclude the expense and logistical costs incurred in b~inging him
to the hearing, petitioner's counsel file a motion pursuant to the
Commissions Rules, and the appropriate provisions of the Federal Rules
of Civil Procedure, to permit the telephone deposition of Mr. Hubbard
and for leave to introduce the deposition at the hearing in lieu of his
"live" testimony. The motion was granted, and by Order issued by me on
August 6, 1981, petitioner was permitted to take the inspector's deposition.
Respondent was afforded a full opportunity" to participate in the taking
of the deposition, including the right to question and cross-examine
the inspector. As a matter of fact, petitioner's counsel arranged for
a conference call which would have permitted the respondent to participate
in the taking of the deposition without the necessity of his leaving his
own mine office and at no travel or other expense to him. However,
respondent refused to participate or otherwise cooperate in the taking
of the deposition and insisted that MSHA produce the inspector.
Mr. Hubbard's sworn deposition was produced and offered in evidence
by the petitioner at the hearing and it was received in evidence and is
a part of the record (Tr. 13). Respondent refused to make any comments
regarding the deposition, and although given a copy and a full opportunity
to refute the testimony, he refused to do so.
In addition to the deposition of Mr. Hubbard, petitioner presented
testimony by Supervisory Inspector Reino Mattson and Electrical Inspector
Russell Morris. Although Mr. Mattson was not with Inspector Hubbard when
he inspected the mine site on November 5, 1980, he has inspected the
mine on previous occasions and is familiar with the respondent's operations,
and has some knowledge of the cited dredge pump motor. Although Mr. Morris
is from another MSHA subdistrict office, he is a qualified electrical
inspector and testified as to motors which are similar to the one which
was cited.
Corrections to Deposition
At page 7 of Inspector Hubbard's deposition, the respondent Carl
Brown is identified as Paul Brown. This is an obvious typographical

2228

error made at the time the deposition was transcribed and the parties
obviously recognized it as such.
Respondent's Testimony and Evidence
Although given a full opportunity to present testimony and evidence
in his defense, respondent refused to testify or to cross-examine
Mr. Mattson or Mr. Morris. He also refused to offer any statements
to refute the matters testified to by Inspector Hubbard in his sworn
deposition. However, respondent did offer four photographs of the cited
dredge pump motor (exhibits R-1 through R-4).
Respondent conceded that the motor in question was unguarded on
November 5, 1980, when the citation was issued by Inspector Hubbard.
However, he contended that since the motor had been operated for some
30 years with no one being injured, the fact that the protective screen
guard had been removed on November 5th did not render it hazardous.
Respondent did concede that the motor was initially guarded with a
heavy wire mesh guard which had been fabricated at the mine and installed
sometime prior to the inspection of November 5th. The guard had been
installed at the insistence of another MSHA inspector who advised
him that it was required. Since the respondent complied no guarding
citation was issued during this previous inspection.
Findings and Conclusions
Fact of Violation
Respondent does not dispute the fact that the cited dredge motor
was in fact unguarded on November 5, 1980. Nor does he dispute the fact
that the wire mesh screen which served to guard the motor in question
had been removed from the motor and not replaced at the time Inspector
Hubbard observed the condition cited (Tr. 61-62). Aside from the fact
that respondent does not believe that the unguarded motor posed any
hazard, his sole defense to the citation is his belief that the inspector
was "nit picking", and unwarranted and ill-advised personal attacks as
to the inspector's motives. As far as I am concerned, respondent Carl
Brown has been treated more than fairly and objectively by the inspectors.
He obviously is not too enchanted with any attempts to regulate his mining
activity and this fact is attested to by the voluminous letters he has
written over the past year or so expressing his views concerning mine safety
and health enforcement.
Mandatory safety standard 56.12-23, provides as follows:
Electrical connections and resistor grids that
are difficult or impractical to insulate shall be
guarded, unless protection is provided by location.

2229

On the facts and evidence presented in this case, I conclude and
find that the exposed motor area cited by Inspector Hubbard was required
to be guarded. The question as to the degree of hazard involved when
it is not guarded is a matter which goes to the gravity of the violation
and may not serve as an absolute defense to the citation, unless the
respondent can show that the motor was "protected by location". On ·
the facts presented in this case, I cannot conclude that the respondent
has established that the motor was guarded by location. The evidence
adduced reflects that the motor was in an area where at least one workman
was present on the. dredge, and that it was in close proximity to several
walkways. Further, since the respondent previously fabricated a guard
and installed it on the motor, an inference may be drawn that he agreed
that the motor required some protective device such as a wire mesh guard.
Only after respondent was cited by Inspector Hubbard, which exposed him
to an assessment of a civil monetary fine, did respondent assert that
the requirements for a guard was "nit-picking".
I conclude and find that petitioner has established the fact of
violation by a preponderance of the evidence adduced in this case, and
the citation issued by Inspector Hubbard is AFFIRMED.
Negligence
I conclude that the conditions cited in the citation issued in
this case resulted from the respondent's failure to exercise reasonable
care and that this constitutes ordinary negligence.
Gravity
I find that the citation in question is serious. Although the
of someone coming into contact with the unprotected electrical
motor parts was somewhat remote, the proximity of the unguarded motor
to an area where a person could readily pass by and come in contact
with the motor posed a potential hazard.
pos~ibility

Good faith compliance
Compliance was achieved by fabricating another guard and installing
it on the exposed motor the same day the citation issued (pg. 10, Hubbard
deposition). I find that respondent exercised rapid compliance in
achieving abatement of the cited condition, and this is reflected in
the penalty assessment.
History of prior violations
Petitioner's 'counsel offered a computer print-out listing two prior
citations of section 30 CFR 56.12-8~ issued on May 1, 1979, for which
civil penalties in the amount o.f $168 were paid. However, the computer
print-out is obviously erroneous since it shows Engelhard Minerals and
Chemicals Corporation at the mine "controller", and the "Junction City Mine"

2230

as the mine for which the citations are charged. Under the circumstances,
I rejected the offered computer print-out as evidence of the respondent's
history of prior violations (Tr. 5-6). However, I will take official
notice of my prior decision in MSHA v. Brown Brothers Sand Co., Docket
SE 80-124-M, May 1, 1980, where I assessed a civil penalty for a previous
violation issued on June 26, 1980, as well as decisions rendered by
Judge Cook where he assessed civil penalties against this same respondent
for three citations issued November 20, 1978, May 1, 1979, and November 27,
1979, (Dockets BARB 79-312-M, SE 79-90-M, and SE 80-58-M, March 30, 1981).
Respondent's history of prior citations, as reflected in the aforementioned
prior decisions, is not such as to warrant any additional increases in
the civil penalty assessed by for the citation which I have affirmed in
this case.
Size of Business and Effect of the Penalty Assessment on Respondent's
Ability to Continue in Business.
Petitioner concedes that the respondent is a small family owned
mining operation and I conclude and find that this is the case. With
regard to the effect of the civil penalty assessed in this case on the
respondent's ability to continue in business, there is no evidence
that respondent is adversely affected by the payment of the penalty in
question. I conclude that payment of the penalty will not cause the
respondent to ceas.e his mining business.
ORDER
In view of the foregoing findings and conclusions, including
consideration of the requirements of section llO(i) of the Act, I
con~lude that a civil penalty in the amount of fifty-dollars ($50)
is reasonable for the citation issued in this case, No. 090842, November 5, 1980,
30 CFR 56.12-23, and Respondent IS ORDERED to pay the penalty assessed
within thirty (30) days of the date of this decision and order, and upon
receipt of payment by the petitioner, this proceeding is DISMISSED.

~ff:fa-{! ~

~~ . f~t::la!'·t:~

Admin' trative Law Jurlge

Distribution:
Carl W. Brown, Brown Brothers Sand Co., Box 32, Howard, GA 31039
(Certified Mail)
Ken Welsch, Esq., U.S. Department of Labor, Office of the Solicitor,
1371 Peachtree St., NE, Rm. 339, Atlanta, GA 30367 (Certified Mail)

2231

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

~ 28 1981

Complaint of Discharge,
Discrimination, or Interference

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of RICHARD A.
FLEMING,
Complainant

Docket No. VA 81-16-D
No. 1 Mine

v.
D & J COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Barbara Krause Kaufmann, Attorney, Office of the Solicitor,
U.S. Department of Labor, for Complainant;
James E. Arrington, Jr., Esq., and Gregory R. Herrell, Esq.,
Browning, Morefield, Schelin, and Arrington, P.C., Lebanon,
Virginia, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to an order issued March 4, 1981, a hearing in the aboveentitled proceeding was held on April 28, 1981, in Richlands, Virginia,
under section 105(c)(2) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(c)(2).
Completion of Record
At the concl~sion of the hearing, counsel for both complainant and
respondent stated that they had intended to present one additional witness
in support of their respective cases, but were unable to do so because the
two witnesses had failed to appear at the hearing (Tr. 259). Counsel stated
that they would like to have the record remain open until such time as they
could determine whether they would like to present the testimony of the two
remaining witnesses in the form of depositions. It was agreed that counsel
would notify me by May 15, 1981, as to whether they would depose the two
witnesses. Counsel for complainant filed a letter on May 8, 1981, in which
she stat.ed that depositions would not be taken by counsel for either party.
I indicated at the hearing that my decision would show whether the record
had been expanded by receipt of the depositions. Inasmuch as the parties
decided not to take the depositions, the record in this proceeding is closed
and consists of the three exhibits received in evidence at the hearing and
the 266 pages of transcript comprising the testimony of the witnesses presented at the hearing on April 28, 1981.
Counsel for complainant filed her brief on July 7, 1981, and counsel for
respondent filed their reply brief on July 24, 1981.

2232

Issues
Although complainant's brief and respondent's reply brief express their
statements of the issues in somewhat different language, the two main issues
in this proceeding may be expressed as set forth on page 2 of complainant's
brief:
1.
Was complainant, Richard Fleming, engaged in protected activities
within the meaning of the Act?
2.
Was complainant discharged by respondent because he engaged in
protected activities?
Complainant's brief (p. 3) also raises a third issue, that is, the
amount of civil penalty which should be assessed, assuming' that a violation
of section 105(c)(l) of the Act is found to have occurred. Since my decision
finds that no violation of section 105(c)(l) was proven, it is not necessary
for me to consider the issues with respect to assessment of a civil penalty.
Findings of Fact
My decision in this proceeding will be based on the findings of fact
set forth below. My findings include all the facts proposed by the parties
in their briefs to the extent that the proposed findings are correct. There
are some rather egregious errors in complainant's proposed findings of fact.
Those errors will hereinafter be discussed in this decision under the heading
of "Consideration of the Parties' Arguments".
1.
D & J Coal Company, Inc., the respondent in this proceeding, operated
its No. 1 Mine for a period of about 3-1/2 years before the mine was closed
on March 24, 1981. The mine was closed after respondent encountered large
amounts of rock which made production of coal uneconomic. During the last
3 months of active mining from January 1981 through March 24, 1981 the mine
suffered operating losses totaling $59,433 (Exh. A; Tr. 240).
2.
D & J Coal Company on June 27, 1980, at the time the unlawful
discharge alleged in this proceeding occurred, was owned by three individuals
named Carmel Deel, O'Dell Deel, and Verlin Deel, each of whom owned a onethird interest. Some time after June 27, 1980, O'Dell Deel and Carmel Deel,
who are brothers, purchased the one-third interest owned by Verlin Deel.
Therefore, at the time the No. 1 Mine was closed, Carmel Deel and O'Dell Deel
each owned a one-half interest in the corporation (Tr. 238-239). Verlin Deel
is not related to either O'Dell or Carmel Deel (Tr. 152; 173).
3.
At the time of the hearing held on April 28, 1981, Carmel and O'Dell
Deel were trying to find a location where a new mine could be opened, but
none had been found at that time. They are not planning to open the new mine
under the name of D & J Coal Company and they do not plan to reopen the No. 1
Mine. They estimate that their liabilities are equal to their assets, but
they still owe for equipment and have been able to obtain an extension on
their obligation to make payments while they are seeking to find a location

2233

for a new mine. No one is drawing a salary or wages at the present time
(Tr. 242). During the last 3 months of the company's operations, the two
owners received a salary of $75 per day and the mine foreman, Charles Quinley,
received a salary of $115 per day (Tr. 256).
4.
Respondent's profit and loss s~atement shows that it also owes civil
penalties in the amount of $2,319 which it is unable to pay at the present
time (Tr. 257). Respondent has asked MSHA for an extension of time within
which to pay the civil penalties and Carmel Deel testified at the hearing
that if an adverse ruling should be made against respondent in this proceeding, that he would have to ask for permission to postpone payment of any
back wages awarded to complainant until such time as a new mine can be opened
so as to produce a business which would have an income from which back wages
could be paid (Tr. 253).
5.
The complainant in this proceeding, Richard A. Fleming, began working
at respondent's No. 1 Mine in November 1979 as helper for the operator of the
roof-bolting machine. After about a week, a new employee was hired and was
given the position of helper for the operator of the roof-bolting machine.
At that time, complainant was assigned to the position of general inside
laborer whose job consisted primarily of hanging ventilation curtains and
applying rock dust to the mine floor and ribs. Complainant stated that he
was told that he would be allowed to rotate as helper for the operator of the
roof-bolting machine until the new employee and complainant had each learned
to operate the roof-bolting machine. Complainant alleges, however, that he
was thereafter permitted to perform only the duties of a general inside laborer
and was given no opportunity to learn to operate the roof-bolting machine(Tr. 9).
6.
During the portion of complainant's employment beginning in November
1979 and extending to the end 'of December 1979, complainant took 2 days off
after calling respondent's management to report that he would not be at work
on those days. In January 1980 respondent took off a third day to attend to
some personal business and failed to call respondent's management in advance.
Respondent's management called complainant's aunt and advised her that complainant had been discharged for not reporting to work. When complainant
learned from his aunt that he had been discharged, he called one of respondent's owners, O'Dell Deel, and explained why he had not reported for work.
O'Dell told complainant to report to work the next day and explain the reason
for his absence from work on the previous day to the mine foreman, Charles
Quinley, and another of the owners, Verlin Deel, who worked at the mine as a
scoop operator. O'Dell said that if those two men were willing to reinstate
complainant, it was satisfactory with him. Complainant reported for work and
Charles Quinley and Verlin agreed to allow complainant to continue working
at the No. 1 Mine (Tr. 9-10; 57; 97; 114; 144; 245).
7.
Complainant continued to work, after the first reinstatement, as
a general inside laborer. The helper to the operator of the roof-bolting
machine left and another person was hired to take his place. Complainant
asked management to let him become the helper the next time that position
became available. Soon thereafter, the helper's position again became open
and in February 1980 complainant was allowed to assume the position of helper

2234

to the operator of the roof-bolting machine. Subsequently, the operator of
the roof-bolting machine resigned and complainant was permitted to become
the operator of the roof-bolting machine in early March 1980 (Tr. 10-12).
8.
Complainant does not allege that he discussed any health or safety
matters with respondent's management prior to January 1980 (Tr. 11). While
complainant worked as a helper to the operator of the roof-bolting machine,
he did not use temporary supports, as required by respondent's roof-control
plan, because the operator of the roof-bolting machine did not want him to
bother with erecting temporary supports prior to installation of roof bolts
(Tr. 62; 76). After complainant became the operator of the roof-bolting
machine in early March 1980, he stated that he installed roof bolts without
using temporary supports because both the mine foreman, Charles Quinley, and
part-owner, Verlin Deel, saw him installing roof bolts without using temporary
supports and at no time did they ever instruct him to use temporary supports
or ever explain to him any provisions of the roof-control plan (Tr. 16; 63;
76; 79).
9.
A copy of the roof-control plan was at all times hanging in the
mine office during complainant's entire employment by respondent, but at no
time did complainant ever read the roof-control plan or examine it (Tr. 68-69).
Complainant carried in his lunch box a copy of the Union contract and was
able to explain its terms in considerable detail when any disputes arose as
to his rights under the contract (Tr. 59-60; 97).

10.
When complainant became the operator of the roof-bolting machine
in early March 1980, he was an inexperienced operator. After about a week
of operating the roof-bolting machine, compla.inant testified that his skill
increased to the extent that he could install bolts in from 8 to 10 headings
a day. The largest number of places which complainant ever bolted during a
single shift was 10, whereas the operator who ran the roof-bolting machine
prior to complainant's obtaining the job was able to install roof bolts in
about 14 or 15 headings per shift and the operat0r who succeeded complainant
as operator of the roof-bolting machine could install bolts in from 14 to 15
headings per shift (Tr. 66; 81; 76; 116). Complainant contended that he could
operate the roof-bolting machine as fast and as skillfully as the other operators and that the only reason he failed to install as many roof bolts as the
other operators did was that he was installing temporary supports, whereas
they were not. Complainant argued that if the other operators had used temporary supports, they would not have been able to bolt any more places during
a shift than he bolted (Tr. 77).
11.
As stated in Finding No. 8 above, complainant did not at first use
temporary supports after he became the operator of the roof-bolting machine.
On May 20, 1980, however, an event occurred which caused complainant to begin
using temporary supports. That event was the arrival at respondent's mine of
an MSHA inspector named N. K. Rasnick. Inspector Rasnick, with respondent's
permission, called the miners together and read the roof-control plan to them.
Inspector Rasnick explained to them that it was equivalent to committing
suicide for them to install roof bolts without using temporary supports
(Tr. 17-18). Complainant was so impressed with the inspector's lecture, that
he claims that he told respondent's mine foreman, Charles Quinley, that he

2235

wanted to use temporary supports and asked Quinley to provide him with the
necessary timbers or with metal jacks which would work. Complainant contends
that he daily asked for timbers because the jacks could not be adjusted to
fit the varying heights which he was encountering in the mine. Complainant
alleges that management never did supply him with either workable jacks or
sufficient timbers to use in all entries (Tr. 19-20).
12.
Complainant stated in his direct testimony that seven entries were
being mined and that the entries were lower on the left side of the mine
than on the right. · Complainant said that the mining height varied from a
low of 40 inches on the extreme left or entry No. 1, to a high of 5-1/2 feet
on the extreme right, or entry No. 7 (Tr. 20). Complainant later testified
that the mining height varied from a low of 48 inches in the No. 1 entry to
a high of 6 feet in the No. 7 entry (Tr. 91). Complainant stated that there
were timbers on the roof-bolting machine which measured 5 feet in length, but
he claimed that he could not use them because of the varying heights in the
mine (Tr. 20). Complainant testified that the lack of a sufficient supply
of timbers prevented him from being able to use temporary supports at all in
the No. 1 and No. 7 entries because his timbers were not long enough to reach
the 6-foot mining height in the No. 7 entry, and that if he cut off his limited
supply of timbers short enough to be used in the No. 1 entry, he would then
not have timbers of the right length to use in the other entries (Tr. 20;
92-93).
13.
Complainant testified that about June 1, 1980, respondent began to
engage in retreat mining or the pulling of pillars (93-94). At that time,
management brought in a plentiful supply of timbers to be used in the retreatmining process. Although the timbers were not brought into the mine for use
as temporary supports, complainant testified that he began to use the timbers
for temporary supports (Tr. 95). He was able to use them in all entries
because he had timbers to use in the 6-foot No. 7 entry as well as timbers
that he could cut off for use in the 40 to 48-inch No. 1 entry (Tr. 94-95).
Management at no time objected to complainant's use of temporary supports
(Tr. 200).
14.
Complainant testified that on June 4, 1980, Verlin Deel, one of the
mine's owners, who also operated a scoop, watched complainant while he was
installing roof bolts and remarked to complainant, as he had several times
before, that complainant was not installing roof bolts fast enough to keep
ahead of the miners who were drilling and shooting coal, and that unless he
could increase his operating speed, management would have to replace him as
the operator of the roof-bolting machine. After complainant came out of the
mine on June 4, 1980, Verlin Deel informed complainant that he would not be
allowed to operate the roof-bolting machine the next day. Complainant and
Verlin engaged in a heated argument during which complainant stated that
Verlin could not, under the Union contract, replace him as operator of the
roof-bolting machine. Complainant then filed a grievance with the Union.
Respondent refused to sign the grievance because respondent's management
contended that complainant had quit in a rage, whereas complainant argued
that he had been discharged (Tr. 13; 25-26; 115; 147; 175). The grievance
was never officially decided because respondent's management agreed to reinstate complainant after a Union representative advised management that miners
had won similar grievances in the past (Tr. 59-60; 246).

2236

15.
After the second discharge on June 4, 1980, complainant returned
to work on June 11, 1980, but he agreed to relinquish his job as operator
of the roof-bolting machine and resume the position of general inside laborer
in return for management's offer to pay him the wages of an operator of a
roof-bolting machine for doing the work of a general inside laborer (Tr. 27; 65).
16.
Complainant testified that his reinstatement on June 11 was marked
by an atmosphere of strained relations between him and respondent's management
(Tr. 28). His primary duties as a general inside laborer were to hang curtains,
construct brattices, and apply rock dust. Complainant said that the mine
foreman followed him around constantly to see that he performed his assignments promptly. If he were rock dusting, he would be told to go hang a curtain.
If he were hanging a curtain, he would be told to go and hang a different
curtain which had been torn down. He was told several times each day that he
would have to improve the way he was doing his job or he would be discharged.
Complainant stated that management would interrupt his lunch period by telling
him to do some sort of job. Complainant explained that under the Union contract, if a person's lunch period is interrupted, he is entitled, after doing
the assigned work, to resume his lunch period and take the full 30 minutes
which he had a right to take in the first instance. Complainant said that
his lunch period was interrupted two or three times and then he was reprimanded for having taken a 45-minute lunch period. Complainant testified that
he did not let management's constant harassment bother him because he knew
that management was looking for an excuse to discharge him and he was making
every effort to prevent them from having a reason to discharge him (Tr. 28-32).
· 17.
On June 26, 1980, when complainant was in the mine office at the
end of his shift, Verlin Deel told complainant that the other miners were
complaining to Verlin because they were having to do the work which complainant was supposed to be doing. Both Verlin's and complainant's descriptions
of the incident show that the discussion was quite heated (Tr. 32; 177).
After leaving the mine on June 26, complainant called the MSHA office and
reported to Inspector N. K~ Rasnick that temporary supports were not being
installed in respondent's mine prior to installation of roof bolts. The
inspector advised complainant that since the next day, June 27, 1980, would
be the last day of work prior to the commencement of vacation, it was unlikely
that anyone would b~ able to come to respondent's mine to investigate the
complaint on June 27, but that some action would be taken (Tr.· 34).
18.
Complainant testified that he overslept on the morning of June 27
and arrived at the mine about a half hour late after the other miners had
already gone into the mine to work. While complainant was preparing to go
underground, the phone in the office rang and complainant answered it because
no one else was in the office. The call was from an MSHA supervisor of
inspectors named E. C. Rines. Complainant asked Rines if he was calling in
reference to a complaint about failure to use temporary supports and Rines
said that he was. Complainant explained to Rines that he was the one who had
called Inspector Rasnick the preceding day. Rines told complainant that complainant's name would not be used. Then Rines asked complainant to have the
mine foreman to call him (Tr. 33-34; 104).

19.
Complainant testified that he thereafter went underground and told
Quinley, the mine foreman, that Quinley had been asked to return an important
phone call, but complainant stated that he did not tell Quinley what the
subject matter of the phone call had been (Tr. 35; 71). Quinley testified
that complainant gave him the name of the man whose call was to be returned
(Tr. 119; 148). Verlin Deel said that if complainant gave Quinley a name,
Verlin did not recall hearing it, but-Veriin did tell Quinley to find out
what the call was about (Tr. 177). Verlin stated that complainant told
Quinley the number to be called was on the desk (Tr. 178). Greg Deel is. the
son of Carmel Deel, one of the owners of respondent's mine (Tr. 209). Greg
is unrelated to Verlin Deel (Tr. 173). Greg is the "surface man" and was in
the mine office when Quinley came out to make the phone call. Greg testified
that when Quinley told him he had received a message to call E. C. Rines,
that Greg recognized the name to be that of an MSHA employee. Greg testified
that there was no message on the desk of any kind and that ,the only way they
were able to return the call was that Greg had written in the back of the
phone book the number of the MSHA office in Norton (Tr. 214-215). The supervisory inspector, E. C. Rines, testified that he only gave complainant his
name and place of employment (Tr. 104).
20.
Greg testified that he and Quinley both tried to call Rines, but
they could not get a dial tone on the phone (Tr. 210-211). They walked to an
adjacent mine, located about 150 feet from their mine, and were unabl..e to
get a dial tone on that phone either. They returned to respondent's mine
office. After about an hour, Quinley went back into the mine with the understanding that Greg would keep trying to get Rines on the phone and that Greg
would let Quinley know what Rines wanted when Greg succeeded in talking to
Rines (Tr. 159-160; 177-178).
21.
Complainant's testimony as to the events which occurred after he
entered the mine on June 27, 1980, the day of his discharge, is generally
lacking in credibility for reasons which will hereinafter be noted. Complaiaant testified that after he had given Quinley the message about calling
E. C. Rines, he was told to perform his regular duties which primarily consisted of hanging curtains and applying rock dust (Tr. 71). Complainant
was at first very doubtful about what he had done on the morning of June 27
(Tr. 35-36), but he knew that some fly curtains had been pulled down by the
scoop and that he had to go "hunt up some" (Tr. 37). Complainant also knew
for certain that he had applied rock dust in the No. 7 entry because of some
unspecified peculiarities that he recalled (Tr. 39). Complainant also said
that he recalled speaking to Ronnie Lester in the No. 7 entry because someone
borrowed some tools from him in the No. 7 entry (Tr. 39). Complainant said
that he was not 100 percent certain that he spoke to Ronnie Lester in the
No. 7 entry, but complainant said he then went into the No. 6 entry and
learned that the miners who had borrowed his tools were using them to repair
the coal drill (Tr. 39). Complainant then, without any reservations as to
certainty, stated unequivocally that he saw Ronnie Lester and John Carpenter
working on the coal drill in the No. 6 entry (Tr. 41).
22.
Complainant explained that he had had some training as a repairman
when he previously worked for Clinchf ield Coal Company and that he knew more
about repairing equipement than anyone at respondent's mine (Tr. 80; 84). Complainant, therefore, said that he checked on the status of the repairs being

2238

performed on the coal drill and first sa;id that the men working on the drill
had "everything under control" and that there "wasn't anything there for me
to do" (Tr. 40). Complainant later testified that when he went into the No. 6
entry, he gave the miners some suggestions on how to repair the drill (Tr. 80).
Subsequently, complainant testified that one of the miners who was working
on the coal drill came and borrowed his hammer and, that since he could not
hang curtains without his hammer, he had to return to the No. 6 entry and
ask when they would be finished with his hammer. Shortly after he arrived in
the No. 6 entry to ask about the hammer, the miners finished repairing the
coal drill and returned his hammer to him along with the other tools which
they had borrowed from him on June 27 (Tr. 42).
23.
As indicated in Finding No. 16 above, complainant first testified
that Quinley followed him around to make sure he was working all the time and
that Quinley would constantly send him to do a different job before he could
finish the one he was then doing. Complainant later stated that he had an
option, when told to hang a given curtain, of either going to hang it right
then or of hanging the curtain in due course if his duties, within a reasonable
period of time, would take him to the area where the curtain needed to be hung
(Tr. 42). Complainant first stated that Quinley only gave him general instructions on June 27, but later he stated that Quinley specifically told him to
hang a curtain in the No. 1 entry. Then complainant recalled having applied
rock dust in each heading (Tr. 44-45), although he had previously been certain
about having applied rock dust only in the No. 7 entry (Tr. 39).
24.
Complainant also claimed that Quinley watched him closely all morning
on June 27, but simultaneously testified that Quinley and Verlin Deel both went
outside to return the phone call at 10:00 a.m. and that Quinley did not come
back into the mine until 11 or 11:30 a.m. (Tr. 45). Also Quinley is said by
complainant to have gone outside and obtained a load of rock dust at some time
during the morning of June 27 (Tr. 46). Even though complainant stated that
Quinley was outside until about 11 or 11:30 a.m., complainant then testified
that he saw Quinley at the coal drill about 11 or 11:30 a.m. after Quinley
had come back from trying to return the phone call (Tr. 43). If Quinley had
followed complainant as constantly and as continuously as complainant alleged,
he would only have needed to look up at any given moment and Quinley would
have been 20 or 30 feet from complainant (Tr. 44).
25.
After hanging the curtain in the No. 1 entry mentioned in Finding
No. 23 above, complainant testified that he then went to the No. 3 heading
where the roof-bolting machine was being used. While complainant was applying
rock dust in the No. 3 heading, the miners completed that phase of their roof
bolting and started backing the roof-bolting machine out of the No. 3 entry.
In order to get out of the path of the moving roof-bolting machine, complainant said that he went into the break outby the No. 3 entry and sat down
against the rib so that the roof-bolting machine could be taken to another
entry. Complainant alleges that Quinley was also sitting against the rib outby
the No. 3 entry. Therefore, complainant said that he sat down beside Quinley
and talked to him about the weather and such things for about 2 minutes while
the roof-bolting machine was passing. Complainant then testified that he
picked up his rock-dusting bag and started back to the place where he had
been rock dusting. At that point, complainant alleges that Quinley told him

2239

to get into the scoop as Quinley was taking him outside. After complainant
had gotten into the scoop with Quinley, complainant asked why they were
going outside and complainant alleges that Quinley replied that he was going
to fire complainant for sitting down on the job (Tr. 45-48). Complainant
then alleges that he asked Quinley if Quinley was firing him for sitting
down for 30 seconds and that Quinley said "That's right" (Tr. 48).

26.
Complainant said that he and Quinley then rode outside on the scoop
and that both of them went into the mine office where they talked to Verlin
Deel, owner of a one-third interest in the mine, and Greg Deel, the "outside
man". Quinley told Greg to write out a discharge slip stating that complainant was being suspended for 5 days with intent to fire him for sitting down
on the job. Quinley signed the discharge slip after Greg had written it.
Complainant contends that the discharge slip had already been written before
he and Quinley entered the mine office because Greg handed the discharge
slip to Quinley without writing anything (Tr. 50-52). Verlin Deel is alleged
to have said that he had found out from the Union how to discharge complainant
this time and do it right. Complainant explained that the Union contract
requires that a miner be suspended for 5 days before a discharge becomes ef fective so that the miner may file a grievance with the Union while still in an
employed status (Tr. 51-52).
27.
The testimony of complainant and the testimony of Verlin D~el,
Charles Quinley, and Greg Deel concerning the details of the events which
occurred on Friday, June 27, 1980, the day of complainant's discharge, vary
in some details, but there is no dispute between complainant and the other
three men about the fact that complainant was allegedly:discharged for sitting
down on the job (Tr. 126; 151; 179; 213). Quinley, Verlin Deel, and Carmel
Deel all additionally testified that complainant was discharged for failing to
perform the tasks which he was· assigned to do. They stated that complainant
would be assigned a job such as hanging curtains or rock dusting. They could
check on the assignments at a later time and the work would not have been done.
They would then find complainant talking with one or niore of the other miners
instead of doing the work he had been given to do (Tr. 115; 175; 247).
28.
Among the details which cast doubt upon complainant's credibility
are those pertaining to the time intervals betweeri certain occurrences on
June 27. As indicated in Finding No. 24 above, complainant stated that he
knows for certain that Quinley went out of the mine to make the phone call at
10:00 a.m. Quinley, the mine foreman, on the other hand, did not purport to
know exactly when he went outside to make the phone call, but agreed on crossexamination, that complainant came in about a half hour late at 7:30 a.m.
Quinley and Verlin Deel both said that they went outside to make the call
irmnediately after complainant had told them about it. Quinley stated that
it takes about 10 minutes to go from the underground working section to the
outside and that he would estimate that he was in the mine office to return
the call by about 7:45 a.m. (Tr. 129). Quinley said that Greg tried to make
the call and could not get a dial tone in either respondent's mine office or
in an adjacent mine office of another operator whose mine office was about
150 feet from respondent's mine office. Quinley further stated that he was
not outside for more than an hour and that he would estimate that he was back
on the working section by 9 :00 a.m. (Tr. 130).

2240

29.
Quinley stated that when he returned underground after going out
to make the phone call, he saw complainant sitting against the rib. He said
complainant had not done any new rock dusting and had failed to hang the
curtain which Quinley had told him to hang (Tr. 149-150). Quinley testified
that he did not even get off the scoop and told complainant to get in the
scoop so that they could go outside. Quinley estimates that they were back
outside by 9:15 a.m. Quinley said that Verlin Deel and complainant argued
for a while before complainant left the mine office after being discharged.
Quinley stated that after he gave complainant the discharge slip, Verlin
told him that the phone call had pertained to an allegation that management
had not been using temporary supports in respondent's mine (Tr. 126; 134).
Verlin Deel and Greg Deel also testified that Quinley had brought complainant
out of the mine to discharge him before Quinley was ever told that a complaint
had been made to HSHA about an alleged failure to use temporary supports
(Tr. 180; 212). Greg testified that he was able to return Rines' call between
9:00 and 9:30 a.m. (Tr. 211). The supervisory inspector testified that he
thought the call was returned between 9:30 and 10:00 a.m., but that he did
not think the call could have been returned later than 10:00 a.m. (Tr. 104).
The preponderance of the evidence, therefore, supports a finding that the
phone call was returned no later than 10:00 a.m. Since it takes at least
10 minutes to get to the surface, Quinley could not have left the mine at
10:00 a.m., as stated by complainant, and still have succeeded in returning
the call by 10:00 a.m. (Tr. 129).
30.
One aspect of complainant's testimony about the events of June 27
was proven to be completely false. That was his statement, as indicated in
Finding No. 21 above, that he had seen Ronnie Lester in the mine during the
morning of June 27 when, as a matter of fact, Ronnie Lester was absent on
June 27 (Tr. 229). Complainant's own testimony shows that he knew that
Ronnie Lester was the operator of the coal drill (Tr. 83; 99). Complainant
also testified that John Carpenter, who normally operated the roof-bolting
machine (Tr. 100), was running the coal drill on June 27, and that Genco,
who normally helped operate the roof-bolting machine, was actually operating
the roof-bolting machine on June 27 (Tr. 55). Those facts should have alerted
complainant to the fact that Ronnie Lester, the normal operator of the coal
drill, was absent, but complainant was tripped up on that aspect of his allegations so that he falsely testified that he saw Ronnie Lester during the
morning of June 27.
31.
Complainant's felicity for devising answers was illustrated at
pages 63 and 65 of the transcript. On page 63, he stated that he did not
bring timbers into the mine for use as temporary supports when he was the
operator of the roof-bolting machine because that was not one of his duties
as operator of the roof-bolting machine. He said that bringing in timbers
from the outside was a duty of the general inside laborer, the supply man, or
the scoop operator. After complainant had agreed to resume the duties of a
general inside laborer in return for complainant's offer to pay him the wages
of the operator of a roof-bolting machine, complainant stated that although
he hauled timbers when instructed to do so by the foreman, hauling timbers
was not a duty of a general inside laborer (Tr. 65).

2241

32.
Verlin Deel, Jr., was the helper to the operator of the roofbolting machine on the morning of June 27 (Tr. 224; 231). He testified that
he installed four metal jacks as temporary supports and that the metal jacks
were carried on the· roof-bolting machine (Tr. 232). He stated that it takes
about 2 or 3 minutes to install four metal jacks as temporary supports. Deel,
Jr., stated that the regular operator of the roof-bolting machine was John
Carpenter who could install roof bolts in. one working place within a period
of 15 minutes, but Carpenter was running the coal driLl on June 27 and Bryan
Genco, the regular helper to the operator of the roof-bolting machine, was
actually operating.the roof-bolting machine. Carpenter was running the coal
drill because the normal operator of the coal drill, Ronnie Lester, was
absent (Tr. 229). Because Genco was not the regular operator, it took Genco
from 20 to 30 minutes to install roof bolts in a single working place (Tr. 225).
Deel, Jr., had only worked in the mine since June 1980 and had never seen
complainant do any work other than that of a general inside laborer (Tr. 233).
Deel, Jr. 's testimony about the use of temporary supports was not part of his
direct testimony and he discussed his use of temporary supports only after
I happened to ask him about his duties as helper to the operator of the roofbolting machine.
Consideration of Parties' Arguments
Anyone who first reads the 31 findings of fact set forth above and then
reads the proposed findings of fact given on pages three to eight of·complainant's brief, will think that complainant's counsel was using a different transcript from the one used by me because very few of the facts given in complainant's brief agree with those given in my 31 findings of fact. Therefore,
before I can begin to consider the arguments given on pages eight to 24 of
complinant's brief, I must explain why the facts alleged on pages three to
eight of complainant's brief must be rejected for being either erroneous or
incomplete or misleading.
Complainant's brief states on page three that I shall have to make credibility resolutions in order to decide the issues in this proceeding. Respondent's reply brief (p. 4) agrees that "[p]art of this case hinges on the
credibility of the witnesses". I agree wholeheartedly with that much of the
briefs submitted by both parties. In determining credibility, a person's
total testimony must be considered because, as the Commission noted in Thomas
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 813 (1981), a lack of credibility by a witness with respect to one point does not mean that his testimony
must be rejected as to all things if his testimony is corroborated by other
evidence as to other matters. Additionally, it is important to consider all
of a person's traits and characteristics in determining credibility. The way
that a witness expresses his thoughts and describes events is also important.
Even though one witness may answer a question with a rather complete exposition which sounds convincing, he may be expounding upon a complete fabrication.
Another witness may answer questions in such a brief way, that he sounds unconvincing even though he is telling exactly what happened to the best of his
ability to describe a given event.

2242

Complainant's First Discharge
Complainant's brief (p. 3) states that complainant was discharged in
January 1980 for missing one day of work. That sort of incomplete description fails to reflect complainant's unsatisfactory performance which led to
his discharge. Finding No. 6, supra, shows that complainant had taken 2 days
off prior to the third absence in January which resulted in his first discharge.
Complainant stated during the hearing that, under the Union contract, a miner
can be discharged for missing 3 days at work during a 30-day period and
defended his absences by stating that he had taken 3 days off within a 45-day
period (Tr. 97). Complainant conceded that in a small mine like respondent-'s,
which employs only eight miners, the operator is greatly inconvenienced when
a single person unexpectedly takes a day off because of management's limited
ability to shift workers so as to cover for the work which will not be done
by the person who is absent (Tr. 98). The fact that the mine foreman, Charles
Quinley, and a one-third owner, Verlin Deel, agreed to reinstate complainant
on the following day after his first discharge shows that respondent's management was willing to give an employee a chance to redeem himself. Moreover,
it should be noted that complainant was reinstated after his first discharge
without any pressure by the Union to get complainant reinstated (Tr. 144).
Complainant's Position as Operator of the Roof-Bolting Machine (March to June 4)
Complainant's brief (p. 3) incorrectly states that complainant was promoted in March to the position of helper to the operator of the roof-bolting
machine. Finding No. 7, supra, shows that complainant became a helper to the
operator of the roof-bolting machine in February 1980, not March 1980, as
stated in complainant's brief. As reflected in Finding No. 8, supra, complainant did not erect any temporary supports while he held the position as
helper to the operator of the roof-bolting machine.
Complainant's brief (p. 3) incorrectly states that complainant began to
use temporary supports on March 20, 1980, after an MSHA inspector explained
the roof-control plan to the miners in respondent's mine. Finding No. 10,
supra, correctly states that complainant became the operator of the roofbolting machine in early March 1980 and Finding No. 11, supra, correctly states
that complainant did not use temporary supports between early March and May 20,
1980, when the inspector explained the roof-control plan to the miners at
respondent's mine (Tr. 17). Assuming that early March is about March 10,
1980, and recognizing that complainant actually began to use temporary supports
after the inspector's visit on May 20, 1980, it is clear that complainant
bolted without temporary supports for a period of about 52 days before he
ever gave any thought to the fact that he ought to be using them.
As shown by Finding No. 14, supra, complainant was either discharged or
quit on June 4, 1980, after having an argument with Verlin Deel, a one-third
owner of respondent's mine. Finding No. 15, supra, reflects the fact that
although complainant was reinstated as a miner at respondent's mine, he was
reinstated as a general inside laborer who was to receive the pay of an operator of a roof-bolting machine. Therefore, complainant actually used temporary supports only for the period from May 20, 1980, to June 4, 1980, or a
period of 11 days. Even during those 11 days, complainant did not use
temporary supports when installing bolts in the Nos. 1 and 7 entrtes because

2243

he claimed that he did not have timbers high enough to support the roof in
the 6-foot No. 7 entry and that he wouldn't cut off the timbers he did have
for use in the 40-to-48-inch No. 1 entry. Complainant said that he was not
supplied with timbers of sufficient height for the No. 7 entry until respondent began pillaring operations about 2 to 4 days before complainant's second
discharge on June 4, 1980. The evidence shows, therefore, that complainant
actually used timbers or temporary supports in all entries for from 2 to 4
days out of the entire time that he held the position of operator of the
roof-bolting machine (Finding Nos. 12 and 13, supra).
Complainant's brief (p. 4) incorrectly states that, after the inspector's
visit to the mine, complainant "insisted on using temporary supports, in the
form of either timbers or jacks, before adding permanent roof support". Complainant stated unequivocally at transcript page 20 that he was never supplied
with metal jacks. Complainant's brief (p. 4) ignores complainant's testimony
as to the height of respondent's mine and adopts a height given by Verlin
Deel, one of the mine's owners. When complainant is justifying his difficulties in securing timbers, he should be held to the mining heights which he
claimed existed in the mine rather than permit him to ref er to a mining height
given by Verlin Deel whose testimony complainant considers to be highly unreliable. As shown by Finding No. 12, supra, complainant at first stated
that the height of the mine varied from 40 inches to 5-1/2 feet; he thereafter increased the height from 48 inches to 6 feet.
For a number of reasons, it was necessary for complainant to take the
position that the metal jacks supplied by respondent were unworkable. First,
he knew that if he admitted that they would work at all, he would have to
agree that the jacks could be erected as temporary supports in a matter of
3 or 4 minutes and that complainant's inability to install roof bolts in more
than 10 places per shift, as opposed to 15 by other roof halters, would
require him to acknowledge his lack of skill as an operator of a roof-bolting
machine, rather than shore up his argument that the only reason he could not
install roof bolts as fast as the other miners was that he had insisted on
installing temporary supports, whereas they did not use temporary supports.
This point is of vital importance in this case because, as I have explained
above, complainant installed roof bolts for 52 days without using temporary
supports and yet he unequivocally admitted that he never succeeded at any
time in installing bolts in more than 10 working places per shift, even when
he was not using temporary supports, although both his predecessor and succesor
as operator of the roof-bolting machine could install bolts in from 14 to 15
places per shift (Finding No. 10. supra).
Another reason that complainant had to take the position that the jacks
would not work is that he claimed that he only carried four timbers 5 feet
long on the roof-bolting machine and that he could not use those timbers
because the height varied from 40 inches to 6 feet (Finding No. 12, supra).
Anyone knows that if the roof height varies from 40 inches to 6 feet, there
has to be some roof height which is 5 feet, or 60 inches high, when one is
bolting an area which ranges between 40 inches and 72 inches in height. Therefore, complainant necessarily could have used the 60-inch timbers at least once
in a while as temporary supports.

2244

A further reason that complainant had to take the position that the
jacks would not work is that they had an adjustment of 18 inches. Complainant had this fact ever in mind because when he first gave a variable height
in the mine he gave a low of 40 inches and a high of 5-1/2 feet, or a variable
height of 26 inches which was a variation of more than 18 inches. When complainant next gave different heights for the mine, he raised the low to
48 inches, but he found it necessary to increase the height of the mine to
6 feet, or 72 inches, because he knew that if he raised the minimum to
48 inches and left the maximum at 5-1/2 feet, or 66 inches, he would be supplying heights with. an 18-inch variation which was exactly the range of adjustment of the jacks which had been supplied by respondent.
Complainant's brief concedes in footnote 4 on page 4 that a question
exists as to whether metal jacks were ever made available, but complainant
states that I do not need to resolve that question. Complainant cites some
of Verlin Deel's testimony to the effect that he was not sure of the extent
of the adjustments which could be made in the jacks. Complainant also cites
Quinlty's testimony in which he took the position that the jacks were there
if the miners wanted to use them.
Among complainant's other oversights in the argument in footnote 4 on
page 4, is his failure to take into consideration Quinley's testimony on
pages 157 and 158 where Quinley stated that he had actually tested the jacks
and knew that they worked. He further stated that the height of the mine did_
not vary more than 18 inches at the time complainant was roof bolter, but that
the height did vary more than that after complainant was discharged. Quinley
stated that the increased height was allowed for by management's supplying
long jacks which were laid on the high side of the mine and picked up by the
roof bolters when they were bolting on the high side.
The other very significant testimony which complainant chooses to ignore
in the footnote on page 4 is that Verlin Deel, Jr., testified that he was the
helper to the operator of the roof-bolting machine on June 27, 1980, when complainant was discharged. He stated that he personally used metal jacks as
temporary supports, that they were adjustable, and that they were kept on the
roof-bolting machine. He further testified that it takes only 2 or 3 minutes
to set the metal jacks as temporary supports (Finding No. 32, supra).
Now that complainant has been reminded of the fact that a miner on June 27,
1980, was installing temporary supports, I am sure that his argument will be
that I should not give any credibility to the testimony of Verlin Deel, Jr.,
because his father was a one-third owner of the mine. I might have been
inclined to agree with that sort of argument if I had not examined the testimony closely. It turns out that respondent's counsel did not ask Verlin
Deel, Jr., a single question about temporary supports or the time it takes to
set them at the time respondent's counsel presented Verlin Deel, .Jr. 's direct
testimony. If respondent's management had intended to coach Verlin Deel·, Jr.,
as to the kind of testimony he should provide for this proceeding, I cannot
imagine that management would have failed to make certain that Verlin Deel,
Jr., testified on direct as to his having been using metal jacks as temporary
supports on June 27, 1980. Such testimony not only shows that the metal jacks

2245

would work and were being used, but it also refutes complainant's contention
that temporary supports were not being used in the mine on the day of his
discharge (Tr. 74). Other reasons for giving Verlin Deel, Jr., a high credibility rating was his fairness in dealing with questions about complainant.
For example, while Verlin Deel, Jr., stated that he had observed complainant
sitting down in the mine, he also stated that everyone sits down once in a
while (Tr. 234). Even though Verlin Deel~ Jr., did not know whether the coal
drill was being repaired on June 27, 1980, he supported complainant's testimony to that effect by stating that the coal drill broke down almost every
day and that he would assume that sometime during the day on June 27, 1980,
it would need to be repaired since that was a daily occurrence (Tr. 235).
For the reasons given above, Verlin Deel, Jr.'s testimony should be given
a high credibility rating and is sufficient support for a finding that metal
jacks were supplied by management, that they worked, and that they were being
used on June 27, 1980, the day of complainant's discharge.
Complainant's brief (p. 5), for no apparent reason, relies on Verlin
Deel's description of where timbers were stored to explain how hard it was for
complainant to obtain timbers for use in making temporary supports. The brief
states that complainant had to go beyond the last open crosscut to find timbers
and a saw for the purpose of cutting timbers to use for temporary supports,
but complainant cites Verlin Deel's testimony at page 200 in support of that
statement, whereas complainant himself stated at page 94 that he and.his helper
had to go three breaks and carry 6-foot long timbers to the area and cut them
and set them. It should be borne in mind, however, that complainant said he
only had timbers of sufficient length for the No. 7 entry for 4 days at most
(Tr. 94). Thus, while he claims that his roof-bolting speed was reduced
greatly when he began to bolt during retreat mining, he was only engaged in
very slow timber cutting for ~ out of the total of 63 days during which he was
employed as operator of the roof-bolting machine.
Complainant's brief (p. 5) refers to the fact that Verlin Deal and Charles
Quinley criticized complainant's inability to install roof bolts fast enough
to keep ahead of the other miners who were drilling, shooting, and scooping
up coal. The brief defends complainant's inability to install roof bolts
rapidly by contending that the only reason complainant was slow was that he
insisted on setting temporary supports. As I have explain~d above, and as my
findings of fact show (Nos. 10 through 13, supra), complainant admitted that
he was slow and that he never succeeded in bolting more than 10 places per
shift for the 52 days during which he worked without using temporary supports.
Moreover, complainant did not use temporary supports·in all entries except
for the last 2 to 4 days of the time he was employed as the operator of the
roof-bolting machine. The evidence simply does not support complainant's
contention that his lack of speed as a roof bolter was caused by his insistence
that temporary supports be erected prior to installation of roof bolts. A
company which tolerates a slow roof bolter for 52 days certainly has a right
to complain about his lack of speed after he has done the work that long without
showing any improvement in the speed at which he was able to install roof
bolts. Even complainant stated that he was inexperienced when he started
operating the roof-bolting machine and that his speed increased during the
first week to the point that he was able to install roof bolts in about

2246

10 places during a single shift. The trouble was that complainant never did
get above a speed of installing bolts in 10 places per shift even though he
held that position for 52 days before he ever began to use temporary supports.
Complainant's brief (p. 5) gives an erroneous description of complainant's
second discharge by saying that "[u]ltimately, Fleming was discharged for "slow
production" on June 4 (Tr. 116)". No one used the term "slow production" on
page 116. Moreover, the witness carefully explained on page 116 that complainant was not an experienced operator when he was given, at complainant's request,
the opportunity to be the operator of the roof-bolting machine. Complainant
was told at the time he became the operator that he could retain the position
only if he showed that he could handle the job (Tr. 175). Complainant's own
testimony shows without any equivocation that he could not install roof bolts
in more than 10 working places per shift regardless of whether he used temporary supports or not. After respondent's management had given complainant
a period of 52 days without using temporary supports, 7 days with partial
temporary supports, and 4 days with temporary supports in all entries,a total
trial period of 63 days (March 10 to June 4), Verlin Deel, a one-third owner,
told complainant that he would have to relieve him of the job of operator of
the roof-bolting machine. Complainant took the position that, under the Union
contract, Verlin Deel could not make him give up the job of operating the roofbolting machine.
Complainant's brief (p. 5) further makes a misleading statement of the
facts by stating that "[t]his discharge [of June 4] was brought to the union's
attention and resolved in the grievance procedure." As I have explained in
Finding No. 14, supra, the grievance filed by complainant with respect to his
alleged discharge on June 4 was never officially decided. Respondent's management simply agreed to allow complainant to continue working at respondent's
mine after respondent's management was advised by a Union representative that
miners had won similar cases. It is significant that when complainant returned
to work on June 11, he agreed to accept the position of a general inside
laborer after management agreed to pay him the salary of an operator of a roofbolting machine.
Complainant's Position as General Inside Laborer (June 11 to June 27)
The discharge which is the subject of the complaint in this proceeding
occurred on June 27, or the 13th day after complainant had returned to work
on June 11 and had agreed to do the work of a general inside laborer while
getting paid the wages of an operator of a roof-bolting machine. Complainant's
brief (p. 5) states that management did not complain during this period about
the way complainant was performing his job. Complainant's own testimony, as
indicated in Finding No. 16, supra, shows that management told complainant
several times a day that his work was unsatisfactory. To use complainant's
own words (Tr. 28):
A.
I could not sit down to eat my lunch without being ordered to go
take care of something which meant that I had to interrupt my lunch.
I was continuously told that I had to do better; I had to do more;
I was not doing good enough. If I didn't improve I wouldn't be
around much longer.

224'/

Q.

When were things such as that said to you?

A.
At various times throughout the day, whenever someone had
something for me to do. If I were rock dusting and Charles Quinley
had a curtain that needed to be hung, he would come and inform me
of it and then add on top of the instructions, you will have to
start doing better.
Q.
Was this_ statement, you will have to start doing better, said
to you at times you were performing other job duties?
A.

Absolutely.

Complainant completely contradicted his statement above when he was
describing his work on the 13th and last day of his employment as a general
inside laborer. At that time, he testified (Tr. 42):
Q.
Had you seen Mr. Quinley between the time you told him about the
phone call and this time?
A.

Yes.

Q.

Had you had any discussions with him?

A.
Only the normal discussions whereas he would inform me of anything
that needed to be done. And it was his practice that in his tour of
the face area, if he found a curtain down he would come to me and inform
me of it, at which time I would have the option to either hang it immediately or if I, in my regular course of my duties were going to take
me in that direction in the near future, I would just work down towards it.
The same supervisor, Charles Quinley, who was previously depicted as having
been harassing complainant, is described above as having a "practice" of reporting curtains to complainant and giving him an option to hang them immediately
or do them in due course. Despite complainant's many contradictory statements,
as illustrated above and as set out in my Findings of Fact Nos. 23, 24, 29, 30,
and 31, supra, complainant's brief (pp. 14-15) praises his own demeanor as a
witness, claims that his recollections were largely uncontradicted, and urges
that I rank him as a much more credible witness than Charles Quinley, the
foreman who discharged complainant.
Complainant's brief (p. 6) refers to the fact that on June 26, after
complainant had worked as a general inside laborer for 12 days, Verlin Deel,
a one-third owner of the mine, engaged in a conversation with complainant.
Complainant emphasizes that Verlin told him on June 26 that he would get
8 hours of work out of complainant one way or another and make it so hard on
complainant that he would leave. Both men agreed that it was a heated conversation. It is a fact, however, that even though complainant reported for work
a half hour late the next morning, June 27, no one treated him harshly in any
way. Complainant gave his supervisor, Charles Quinley, a message about returning a phone call. Verlin Deel was present and did not give complainant any
orders. Instead, complainant states that, "after delivering the me.ssage to
Mr. Quinley, I went on about my duties hanging curtains and rock dusting"
(Tr. 35).

2248

When complainant described the heated conversation of June 26, he stated
as follows (Tr. 32):
A.
I do not recall what started the conversation, but it ended in
a discussion of Union rights and contract obligations and it ended
in a rather heated discussion between Mr. Deel and myself about my
duties that were going to be assigned to me the next day. * * *
The part of the heated conversation which complainant could not remember was
recalled by Verlin Deel who testified as follows about the heated conversation
of June 26 (Tr. 176-177):
Q.
The day before the firing of Mr. Fleming did you have occasion
to engage in any discussion with him?
A.
Yeah, I called him in the office the evening before and I told
him that some of the men had made a complaint that he wasn't keeping
up his job; they was having to do his job. And I told him, I said,
you are going to have to do your job if you stay here. And so he
kindly had a few words to say, you know, kindly talked smart, and
I guess I talked smart to him, too. * * *
The reason that the above-described testimony is important is that it
shows beyond any doubt that complainant was warned on the day before his
discharge that his work as a general inside laborer was unsatisfactory and it
also shows that complainant only argued his rights under the Union contract.
Nothing whatsoever was said about complainant's alleged insistence on using
temporary supports when he was the operator of the roof-bolting machine.
In footnote 5 on page 6 of complainant's brief, it is stated that Quinley
alleged that he was constantly having to speak to complainant about his inadequate job performance. The footnote then states that Quinley could not give
a single specific incident of poor job performance. There are many statements
in the record about complainant's failure to do his job. It should be borne
in mind that hanging curtains and rock dusting across seven entries is not the
sort of work which creates specific incidents of poor job performance. As
Quinley stated, it was obvious across the section when curtains were not hung
and rock dust was not applied (Tr. 146). Quinley stated that he warned complainant daily about inadequate job performance (Tr. 123) and, as indicated
above, complainant himself said he was "continuously told" he would have
"to do better" (Tr. 28). Additionally, as also noted above, Verlin Deel
certainly warned complainant about inadequate job performance on June 26, the
day before he was discharged for sitting down on the job.
There is no record support whatsoever for the claim in complainant's
brief (p. 6) to the effect that complainant "went to the number six or number
seven heading where he met Charles Quinley (Tr. 35)". Complainant's brief
(footnote 6, p. 6) then alleges that respondent's witnesses presented contradictory testimony as to where complainant first entered the working section
on June 27. The brief claims that Quinley testified it was the No. 3 entry
(Tr. 149), whereas Verlin Deel testified it was the No. 5 entry (Tr. 182).

2249

As to the claim in complainant's brief that complainant met Charles
Quinley in the No. 6 or No. 7 entry, complainant did not specify any entry
as the meeting place between him and Quinley (Tr. 35). Moreover, he stated
that he did not recall exactly where he started hanging curtains that
morning, but he said he might have started in the No. 6 or No. 7 entry (Tr. 35).
The only witness who really professed to know where Quinley and complainant
met on the morning of June 27 was Verlin Deel who stated at transcript
page 203 that he first saw complainant in the last open crosscut near entry
No. 5. Verlin said that Quinley "came walking up through there" and one
must assume that Quinley and complainant met at entry No. 5 since complainant
did not say where they met. As for complainant's claim in footnote 6 that
Quinley testified that they met in entry No. 3, Quinley did not say where
they first met on the morning of June 27. Complainant's brief cites transcript page 149 as the basis for claiming that Quinley said they met at entry
No. 3. On page 149, however, Quinley is describing the place where complainant
was sitting at the time Quinley decided to discharge him on June 27 and the
only entries mentioned there are Nos. 1 and 2. Quinley finally decided that
the site of complainant's discharge was outby the No. 3 entry, but Quinley
decided that only after being shown a map of the mine prepared by complainant.
for the purpose of showing the site of his discharge (Tr. 46; 171; Exh. 2).
Quinley also stated that he found complainant sitting where he had left him
(Tr. 171). The testimony, therefore, shows that neither Quinley nor complainant ever specifically designated the place where they met on June 27 ·to discuss the phone call, so any finding as to their exact place of meeting rests
on the statement of Verlin Deel that complainant and Quinley met in the
vicinity of the Noo 5 entry.
Complainant's brief (p. 7) alleges that complainant installed a total
of four or five curtains on the morning of June 27. Complainant cites transcript page 35 in support of his claim that he hung four or five curtains,
but when complainant was asked if he knew where he began hanging curtains,
he answered "No, not exactly" and stated that he generally began in the
No. 7 or No. 6 entry, but he didn't say that he did hang curtains in either
the No. 7 or No. 6 entry. When complainant was asked by his own counsel
if he could recall how many curtains he hung, he answered "[n]ot exactly"
(Tr. 36). On page 37 complainant spoke of generalities about fly curtains
and said that some curtains had been pulled down by the scoop and he said
that if you follow the scoop you "usually" find them, but he did not testify
that he found any by following the scoop on June 27. In fact, the only
curtain which complainant specifically claimed to have hung on June 27 was
the curtain in the No. 1 entry (Tr. 44).
Complainant's brief (p. 7) tries to establish a sequence of events for
June 27 based on an amalgamation of the contradictory testimony of complainant and Quinley. Complainant acknowledges in footnote 7 on page 7 that the
witnesses contradicted each other, but complainant states that it is unnecessary to resolve the credibility questions about the events of June 27
because of certain credibility arguments which are made in complainant's
brief on pages 8 to 15. Those arguments will next be considered.

2250

The Credibility of Charles Quinley, the Mine Foreman
Complainant's brief (p. 8) acknowledges that he must prove that he was
discharged for engaging in a protected activity. He alleges that his testimony supports a conclusion that he was discharged for engaging in a protected
activity and argues tha.t all I have to do before reaching that desired conclusion is to find that his testimony is credible, while I find that the
testimony of Charles Quinley, the mine foreman who discharged him, is
incredible. Complainant argues that Quinley's testimony shows that he was
an evasive witness with a selective memory. Several examples of Quinley's
evasive testimony are given. It is first noted that Quinley was responsible
for all activities on the working section, yet when he was asked by his counsel
on direct examination if the miners were using safety jacks in their roofbolting procedures, he answered the question with the words "Safety jacks
(Tr. 123)", instead of saying "Yes" or "No".
As I explained in the second paragraph of this decision under the heading
of "Consideration of Parties' Arguments", supra, the mere fact that a witness
answers a question briefly, or in a way which might be considered evasive,
does not mean that his credibility is necessarily impaired. Quinley had a
characteristic of giving monosyllabic answers. For example, he answered
another of his counsel's questions as follows (Tr. 142-143):
Q.

Is it unusual for bolts to be out in the mine?

A.

No.

Q.

That's a connnon occurrence in all mines?

A.

Connnon.

Quinley later answered one of my questions as follows (Tr. 145):
Q.

He would come to work, but he wouldn't work· after he got there?

A.

After he got there.

On another occasion, the following exchange between me and Quinley occurred
(Tr. 158):
Q.

You should have brought one [metal jack] in here and demonstrated.

A.

Should have.

Notwithstanding the alleged evasiveness of Quinley in answering questions
in as few words as possible, he conceded unequivocally that the miners were
not using jacks or temporary supports when questioned about that subject by
complainant's counsel during cross-examination (Tr. 140):
Q.
And it is your testimony that those [metal jacks] were installed
in every place before bolting?
A.

They were supposed to have been.

2251

Q.

But is it your testimony that they were installed?

A.

I can't say that they were.

Complainant's brief (p. 9) alleges that Quinley testified that there
were not enough jacks on the section. Complainant cites Quinley's testimony
on page 125 in support of that allegation. The actual testimony is as
follows (Tr. 125):
Q.

Did you have enough jacks for the job?

A.

Yes sir.

Complainant may have been referring to the fact that on page 125 Quinley
first stated that timbers were not needed for use as temporary supports because
four metal jacks with an 18-inch variable adjustment were carried on the roofbolting machine for use as temporary supports. Quinley conceded, after saying
that they had enough jacks, that there might have been times when the jacks
wouldn't fit and he also conceded that it would have been necessary for them
to use timbers in such circumstances. Inasmuch as Quinley said that the
height of the mine varied from 46 inches to 50 inches (Tr. 137), it would have
been a rare situation when jacks with an 18-inch adjustment would fail to fit.
As indicated in Finding No. 12, supra, complainant was very uncertai~ about the
heights he encountered in the mine, so Quinley can hardly be discredited as
a witness just because he gave different estimates as to the mine's variable
heights from the ones given by complainant. Moreover, as I have already
pointed out under the heading of "Complainant's Position as Operator of the
Roof-Bolting Machine", supra, complainant relied in his brief (p. 4) on variable mine heights given by Verlin Deel and those variable heights are different from the ones given by complainant.
Complainant's brief (pp. 10-11) next challenges Quinley's credibility
because it is claimed that he gave different and inconsistent answers when he
was asked, on three different occasions, about the amount of time which it
takes to install temporary supports. Complainant alleges that .the first time
Quinley discussed the use of temporary supports, he stated that it takes about
the same amount of time to support a roof with temporary and permanent supports
as it does to bolt a roof with only permanent supports (Tr:--138). Complainant
says that the second time Quinley discussed temporary supports, he stated that
it takes about 10 minutes more to cut and set four timbers than it would to
install only permanent supports (Tr. 142). The third time he addressed the
question of temporary supports, complainant alleges that he said it would
take approximately 3 or 4 minutes extra to put up temporary supports before
installation of permanent roof bolts (Tr. 158). Complainant's brief (p. 10)
concludes that Quinley's inconsistent and self-serving replies speak for themselves and show that his testimony lacks credibility.
There are several errors in complainant's arguments about Quinley's
inconsistent answers to questions about the length of time required for setting
temporary supports. In the first place, although Quinley was asked about the
length of time it takes to set temporary supports on three different occasions,
his answers were consistent each time. In the second place, complainant incorrectly refers to two occasions which really constituted a single time
(Tr. 138 and 142). Finally, complainant chose to ignore the first time (Tr. 125).

2252

To set the record straight as to the number of times Quinley was asked about
the length of time it takes to set temporary supports, the first time was
when his own counsel asked him (Tr. 125), the second time was when complainant's counsel asked him (Tr. 138-142), and the third time was when I asked him
(Tr. 158).
Complainant's contention that Quinley inconsistently answered questions
about the length of time it takes to set temporary supports is achieved by
ignoring the fact that he insisted each time he was asked about temporary supports that the miners were furnished with metal jacks which could be installed
in almost no additional time as compared with the miners' having to use timbers
which he conceded might require as much as 10 minutes of additional time. To
show that his answers were consistent, it is necessary to examine the testimony
in each instance. Quinley first distinguished between use of metal jacks and
timbers when questioned by his own counsel (Tr. 125):
Q.
But you didn't have timbers in there [on the roof-bolting machine]
because you used safety jacks?
A.
That's right. Our height varied up and down and to use the timbers
like that on the pinner, you would have had to cut all the time, haul
them in these cuts, stand them up. Where you take the jack, they have
got an eighteen inch variation to them. Use them, no worry.
When Quinley was asked about the period of time it takes to set temporary
supports by complainant's counsel, he answered her questions as follows
(Tr. 138-142):
Q.
How long does it take to put roof bolts in a section of this mine
without setting temporary supports.
A.

How long?

It's according to who does it.

Q.

Give me an average.

A.

A good operator, fifteen to twenty minutes.

Q.

And how much longer does it take if you do set temporary supports?

A.
Takes about the same time, because you have a helper to help you set
the jacks.

*****
Q.

And how long does it take to set temporary supports?

A.
Just as long as you can spin a jack stand, [fraction] or five to
ten seconds to a stand.

*****

2253

Q.
At the time when timbers had to be cut before they were set as
temporary supports, did this cause the bolting operation to take
longer.
A.

Yes.

Q.

How much longer?

A.

Well, it's according to how hard they worked at it.

Q.
Well, let's assume that somebody is working at the average speed,
how long does it take to cut and set a timber?
A.

I would say ten minutes more.

Q.

Ten minutes more?

A.

For four timbers.

The third time Quinley ~,as asked about how long it takes to set temporary
supports was when he answerea my questions as follows (Tr. 158):
Q.
How much extra time did you say it took to set the four temporary
supports?
A.

I wouldn't say any time.

Q.

It has to take some time.

A.

Maybe some, not that· much to amount--maybe two or three minutes.

Q.
If you had a man that wasn't using roof bolts or jacks at all and
another man who did use them, you would say that the time they would
bolt a place wouldn't vary more than how many minutes between the two
men?
A.

Couldn't be over three.

Q.

Three or four minutes?

A.
Something like that. All you have to do is stand them up and put a
stand on them, that's all.
The testimony reviewed above shows that Quinley pref erred to take the
position that an experienced operator and helper should be able to install
roof bolts while using metal jacks as temporary supports without allowing
any additional time for the setting of the jacks, as compared to bolting
without use of any temporary supports at all. Quinley, on one occasion,
stated that he had done nothing but install roof bolts for 7 years before
he became a section foreman and that "[i]f anybody knows [about roof bolting],
I ought to" (Tr. 117). Despite his reluctance to agree that it takes any
additional time at all to install jacks, he consistently, when pressed on the
subject, reluctantly conceded that it might take from 2 to 4 minutes to
install jacks as temporary supports. He also conceded, when he was asked
about installing temporary supports, that if metal jacks weren't available,

2254

it would requil;:'e extra time up to about 10 minutes to cut timbers and install
them. The foregoing extensive review of Quinley's testimony about the period
of time it takes to install temporary supports shows that Quinley cannot be
discredited as a witness on the basis of an allegation that his testimony was
inconsistent as to the amount of time it takes to install temporary supports.
Complainant's brief (pp. 10-11) next.argues that Quinley's testimony
should be discredited because of his inconsistency in answering questions
about the duties to which complainant had been assigned on the morning of
June 27. Complainant first notes that Quinley stated, as his basis for concluding that complainant had done no work on the morning of June 27, that
"[t]he curtain at the mouth of the place he [complainant] was sitting in wasn't
hung. And that's the one I left him definitely to set and rock dust the place"
(Tr. 149). Complainant then points out that Quinley, on cross-examination, had
stated in answer to a question about whether he had given complainant any
specific instructions that he had "[j]ust [told complainant to] rock dust and
ventilate" (Tr. 138). Complainant argues that Quinley can't have it both ways
because Quinley either did give specific instructions or he did not. Complainant's brief (p. 11) further contends that respondent has completely failed
to submit any evidence to substantiate its primary defense that complainant
was discharged for sitting down on the job and failing to engage in productive
work on June 27.
Complainant's arguments in the preceding paragraph overlook a considerable amount of evidence which supports the respondent's position in this proceeding much more than it does the complainant's contentions. Quinley's
direct testimony shows that he spent some time and gave some specific thought
to the work which he assigned complainant to do on the morning of June 27.
Quinley stated that he had a miner by the name of Perry Ramey assisting complainant in the performance of complaiant's duties of hanging curtains and
rock dusting (Tr. 118). On June 27, after complainant had told Quinley about
the need for Quinley to return a phone call, Quinley instructed complainant
to take care of all ventilation and rock· dusting on that day because Perry
Ramey was going to help "shoot" (Tr. 119). Quinley recalled that while he
was giving complainant instructions as to his duties for the day, another
miner came up and asked to borrow some of complainant's tools which complainant normally carried with him (Tr. 164). Quinley testified that he did not
stay around to watch complainant work because he had to go outside, after
assigning complainant's duties, for the purpose of returning the phone call
(Tr. 160). Quinley came back into the mine about 9:00 a.m. and found complainant sitting against the rib outside the No. 3 entry. Quinley noted that
the curtain in the No. 3 entry had not been hung and that no new rock dusting
had been done. Quinley was riding in the scoop and he stated that he did
not even get out of the scoop. He had had trouble in getting complainant to
do his work of hanging curtains and rock dusting ever since complainant was
reinstated on June 11. At that moment, Quinley decided that he had had
enough of complainant's failure to work and just told complainant to get in
the scoop as he was taking him outside for the purpose of discharging him
(Tr. 123; 145-146; 150-151).
Complainant's brief (p. 11) also contends that Quinley's testimony should
be discredited because he admitted, after much evasion, that he did not know
whether curtains had been hung by complainant in any entry other than the No. 3

2255

outside of which complainant had been found sitting. It is true that Quinley
reluctantly admitted that he did not know which entries had curtains, but that
admission is more damaging to complainant's credibility as to his description
of the events which occurred on June 27 than it is to Quinley's credibility.
The reason for reaching the foregoing conclusion is that complainant contends
that Quinley continuously followed compla~nant around on the morning of June 27
and watched everything that complainant did, except for the hour when Quinley
went outside to return the phone call (Tr. 42; 44).
Quinley's testimony is much more credible as to the events which happened
on the morning of June 27 than complainant's testimony because it was Quinley's
failure to watch complainant and Quinley's having been outside up to the time
he fired complainant that forced Quinley to have to admit that he did not know
whether curtains had been hung in any of the headings other than No. 3--and
possibly No. 4 (Tr. 170-172). If Quinley had been in the mine on the morning
of June 27 long enough to have followed complainant around, as complainant
contended, Quinley would have been able to state that, while he could not see
into any of the headings except No. 3 and No. 4 at the time he discharged complainant, he knew that the curtains did or did not exist in the other headings
by virtue of the fact that he had been following complainant that morning and
knew the curtains were up or were not up.
Complainant at no time denied that he had failed to hang a curtain in the
No. 3 heading. He claimed that he went into the No. 3 heading to apply rock
dust and that when he went into the No. 3 entry, the roof-bolting machine was
being operated (Tr. 44-47). Complainant's own testimony also shows that he
understood that his duties on the morning of June 27 consisted of hanging
curtains and applying rock dust (Tr. 35). Complainant's failure to install a
curtain in the No. 3 heading was in violation of 30 C.F.R. § 75.302(a) which
provides in pertinent part:
(a) Properly installed and adequately maintained line brattice
or other approved devices shall be continuously used from the last
open crosscut of an entry or room of each working section to provide
adequate ventilation to the working faces for the miners and to remove
flammable, explosive, and noxious gases, dust, and explosive fumes * * *
Therefore, Quinley was justified in being upset with complainant's failure to
hang a curtain in the No. 3 heading because complainant's having allowed roof
bolting to be done in the No. 3 heading without installing a line brattice
was a violation of the safety regulations as well as a failure to perform the
duties which he had been assigned to do on the morning of June 27.
Complainant's brief (p. 12) next attacks Quinley's credibility by citing
testimony in which Quinley had stated that he could make decisions about discharging personnel, but preferred not to make such decisions on his own initiative (Tr. 135). I t is then argued that it is "unbelievable" that Quinley
could thereafter have claimed, as he did, that he had made the decision to
discharge complainant without consulting higher management (Tr. 126). The
foregoing argument misapplies the testimony cited in the argument and overlooks other testimony. Quinley explained that he was able to make the decision

2256

to discharge complainant because the mine owners knew what he had been putting
up with and· they had already told Quinley to "get rid" of complainant if
Quinley couldn't get him to do his job (Tr. 152). A careful reading of the
testimony cited by complainant and the testimony cited in the preceding
sentence shows that Quinley made the decision to discharge complainant on
June 27 after having had plenty of prior authorization by respondent's management to discharge him.
Complainant's brief (pp. 13-14) states that the final aspect of Quinley's
testimony which shows that he is not a credible witness was his repeated
assertion that he did not know he was going out of the mine on June 27 to
return a call from MSHA. Complainant cites the testimony of Greg Deel, the
outside man, for the purpose of showing that Quinley himself tried to dial
the number as well as Greg. It is said that the testimony of both Quinley
and Greg shows that they both knew they were trying to call someone who worked
for MSHA (Tr. 119-120; 148; 215). In Finding of Fact Nos. 19 and 20, supra,
I have compiled the testimony of all witnesses about the manner in which Quinley
was told about the phone call from E. C. Rines, the MSHA supervisory inspector,
and the steps that were taken by Quinley and Greg Deel to return the call. The
preponderance of the evidence shows beyond any doubt that Quinley, Greg Deel,
and Verlin Deel all knew that they had been asked to return a call from an
MSHA employee before they ever succeeded in talking to him. That, however,
does not mean that they knew before Quinley had brought complainant out of
the mine to discharge him that complainant had reported to MSHA that temporary
supports were not being used in respondent's mine. E. C. Rines testified in
this proceeding that, in addition to the four complete inspections which are
made of underground mines each year, there are about 30 types of policy inspections (Tr. 106; 109). Consequently, the mere fact that a person is asked to
return a call made by an MSHA inspector does not provide an operator of a coal
mine with any reason to believe that one of his employees has reported him to
MSHA for a violation of a mandatory health or safety standard.
The Credibility of Richard A. Fleming, the Complainant
Complainant's brief (pp. 14-15) states that his testimony, as compared
with that of Charles Quinley, was inuninently credible and well reasoned. It
is said that complainant's demeanor on the witness stand was conunendable,
that he recalled the events of June 27 clearly, and that he did not hesitate
to answer any question on cross-examination. It is contended that complainant's attention to detail on the witness stand may be assumed to be characteristic of his attention to detail inside the mine. Complainant, however, does
concede that his testimony was contradicted as to some allegations. For
example, complainant acknowledges that he testified that he came out of the
No. 3 heading on the morning of June 27 and sat down beside Quinley who was
already sitting there, whereas Quinley testified that he did not sit down
at all and that complainant certainly did not sit down beside him on June 27.
Complainant urges me, however, to discredit Quinley's testimony and accept
complainant's as to this contradicted occurrence because Verlin Deel, Jr.,
confirmed in his testimony that complainant had to sit down next to the coal
rib to allow the "drill" to pass.

2257

Complainant inadvertently referred to a "drill" on page 15. All witnesses, without exception, have referred only to a roof-bolting machine in the
No. 3 heading on June 27 in connection with complainant's allegation that he
had to sit down against the rib to permit the roof-bolting machin~ to pass.
Complainant's brief (p. 15) does not give a transcript reference in support
of the claim that Verlin Deel, Jr. 's testimony corroborates complainant's
allegation that he had to sit down against the rib to get out of the path of
the roof-bolting machine and I have searched Verlin Deel, Jr. 's testimony
in vain for any statement showing that he agreed that complainant had to sit
down against the rib on June 27 to allow the roof-bolting machine to pass.
Verlin Deel, Jr., stated that he heard Quinley tell complainant to hang a
curtain or c.urtains before Deel went into an undesignated entry to assist the
operator of the roof-bolting machine. Deel, Jr., testified that complainant
was in the crosscut outside the entry when he went in to assist in roof bolting and that complainant was still in the crosscut outby· the entry when the
roof-bolting machine was brought out of the entry. There is no indication
in Deel, Jr. 's testimony that complainant was ever in the entry applying
rock dust while they were roof bolting. Deel, ·Jr., did say that he was pulling up the trailing cable on the roof-bolting machine at the time Quinley came
back into the mine and took complainant outside (Tr. 224-225; 228; 234). Therefore, Deel, Jr. 's testimony corroborates Quinley's version of what happened
on June 27 more than it corroborates complainant's account of the events.
As I have indicated in Finding of Fac·t Nos. 23, 29, 30, 31, supra, ancl
in my discussion under the heading of "Complainant's Position as Operator of
the Roof-Bolting Machine", supra, complainant's testimony is filled with contradictions which support a conclusion that he relied on his knowledge of the
duties which should be done by a general inside laborer to fabricate a plausible account of what he actually did on the morning of June 27. Therefore,
I must reject all of the arguments in complainant's brief to the effect that
complainant's testimony is entitled to a high credibility rating.
Complainant's Protected Activity
Complainant's brief (p. 15) states that complainant was engaged in a protected activity under the Act and alleges that "[t]hroughout the time [complainant] was a roof bolter he insisted on setting temporary supports". As I
have already explained in great detail under the heading of "Complainant's
Position as Operator of the Roof-Bolting Machine", supra, complainant operated
the roof-bolting machine for about 52 day~ before he used any temporary supports at all. He then used partial temporary supports from May 20·to about
June 1 and finally used temporary supports in all entries for from 2 to 4 days
before he either walked off the job or was discharged on June 4. The discharge
which is before me in this proceeding occurred on June 27--not June 4--and the
alleged protected activity involved complainant's calling MSHA to report that
respondent was not using temporary supports, but complainant was not employed
as a roof bolter at the time he made the call to MSHA and had not been a roof
bolter for 16 working days before he made the call.
Complainant's brief (p. 16) relies on the Commission's decision in Thomas
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981), in support of a claim
that an employee is entitled to use "self-help" in order to protect himself

2258

from a hazardous condition. Complainant's reliance on the Robinette case is
misplaced. In that case, the Conunission held that a person may use affirmative action to lessen a hazard after exercising his right to refuse to work
where hazards exist.
The arguments in complainant's brief (p. 16) about complainant's having
to use self-help to protect himself from hazardous conditions are contrary
to the facts and are completely unrelated to the issues in this proceeding.
Complainant's own testimony in this proceeding shows that at no time did
management suggest that he should install roof bolts without using temporary
supports. While it is true that complainant contended that it was difficult
for him to obtain timbers for use as temporary supports, he did continue to
operate the roof-bolting machine in the Nos. 1 and 7 entries without temporary
supports from May 20 to about June 1. Therefore, at no time did complainant
ever refuse to work under an allegedly hazardous condition and at no time did
he ever use affirmative action by refusing to install roof bolts until management supplied timbers which were short enough for the No. 1 entry and long
enough for the No. 7 entry. When complainant did begin to use temporary supports in all entries on or about June 1, he used timbers which had been provided by management. Although he claims that the timbers became available
only because management brought the timbers in to use in pulling pillars, the
fact remains that complainant never at any time engaged in any activities
which justify reliance by complainant on the Conunission's holding in the
Robinette case, supra, especially since complainant's discharge on June 27
had nothing to do with his use of temporary supports while he held the position
of roof bolter.
Complainant's brief (p. 17) refers to complainant's having called MSHA
on the evening of June 26 to report the allegation that temporary supP,orts
were not being used at respondent's mine. Complainant's brief (p. 17) then
quotes from section 105(c)(l) of the Act and correctly argues that an operator
may not discharge or otherwise discriminate against a miner who makes a complaint about a safety hazard to MSHA. If the evidence in this proceeding
showed that respondent had discharged complainant because he reported respondent's failure to use temporary supports to MSHA, I would have no difficulty
in finding that respondent had violated section 105(c)(l). The evidence,
however, does not show that complainant was discharged for reporting the
failure to use temporary supports to MSHA. On the contrary, he was discharged
for failing to do the work which had been assigned to him, that is, hanging
curtains and applying rock dust.
Complainant's brief (p. 17) continues trying to claim that complainant's
insistence on using temporary supports was a protected activity which is
somehow related to complainant's discharge on June 27. Complainant was not
a roof bolter at the time he was discharged on June 27 and had not been a roof
bolter since June 4. Complainant's failure to do his work as a general inside
laborer did not in any way slow down the installation of roof bolts. John
Carpenter, who became operator of the roof-bolting machine after June 4, was
able to install roof bolts in 15 working places per shift as compared to
complainant's ability to bolt only 10 places. Therefore, respondent had no
reason whatsoever for discharging complainant on June 27 because he had, while
performing his duties as a roof bolter between May 20 and June 4 followed
the requirements of respondent's roof-control plan by using temporary supports
before installing roof bolts.

2259

Alleged Illegal Discharge
Complainant's brief (p. 18) alleges that "[o]wner Verlin Deel admitted
that Fleming [complainant] was the only miner who ever set temporary supports".
During cross-examination by complainant's counsel, Verlin Deel testified as
follows (Tr. 206):
Q.
Now, other than Mr. Fleming did any other miner, as a practice,
use temporary supports?
A.
Yes, John [Carpenter] and Genco, they went to using them later
on, and when they started using them -- that was Bryan Genco.
Q.

In other words, they used them sometimes?

A.

Yeah, sometimes.

Q.

But not all the time?

A.

Not all the time.

As I have already pointed out under the heading "Complainant's Protected
Activity", supra, the fact that complainant used temporary supports for 11 of
the 63 days he was a roof bolter has nothing to do with his discharge. The
alleged illegal discharge must stand or fall on the question of whether complainant was discharged because he reported to MSHA on June 26 [not June 27,
as stated on page 18 of complainant's brief] that respondent's miners were
not using temporary supports.
Complainant's brief (p. 18), after having argued extensively that Quinley's
testimony should be totally discredited (Br., p. 8), chooses to adopt Quinley's
statement that complainant told Quinley on June 27 to ·call E. C. Rines, the
MSHA supervisory inspector in Norton, whereas complainant testified that he
only told Quinley that there was a message on the desk for him about an important phone call Quinley was to return (Tr. 35; 71). As indicated in Finding
of Fact No. 19, supra, every witness (Complainant, Quinley, Verlin Deel, and
Greg Deel) who had anything to do with the phone call gave somewhat conflicting accounts of it. From a credibility standpoint, it would have made a
slightly better case for complainant if he had told Quinley on the morning of
June 27 that E. C. Rines, a supervisory MSHA inspector in Norton had called
and had asked that Quinley return his call. Complainant, however, testified
that he had been instructed by Rines not to use Rines·' name and to tell Quinley
to return a phone call (Tr. 35). Rines testified that he gave complainant
only his name and the fact that he worked for MSHA. Therefore, unless complainant wrote Rines' name on the message he claims he left on the desk
(Tr. 71), there would have been no possible way for Quinley or Greg Deel to
have determined whose phone call Quinley had been asked to return.
Greg testified that there was no message on the desk and that the only
way he knew what number to call was that he knew when Quinley gave him Rines'
name that Rines worked for MSHA. Greg stated that he had written MSHA's
number down in the back of the phone book and that he knew what number to
call by obtaining MSHA's number from the phone book. I can't see how it

2260

could possibly have enhanced Greg's credibility or respondent's position in
this proceeding for Greg to have claimed that he had to look up MSHA's number
if the number had been written by complainant on a message and left on the
desk in the office. Moreover, since Rines himself testified that he gave
complainant only his name and the fact that he worked for MSHA, I conclude
that Quinley must have known Rines' name when he came into the office and
that Quinley must have obtained Rines' name from complainant despite complainant's testimony to the effect that he did not give Rines' name to Quinley.
Aside from th~ credibility determinations involved in the preceding discussion, it makes no difference how Greg and Quinley found out that they were
supposed to call Rines in Norton. The significant aspect of the effort to
call Rines on the morning of June 27 is that the evidence conclusively supports a finding that Quinley and Greg knew that they were supposed to return
a call which had come from an MSHA employee. Of course, as indicated in
Finding of Fact Nos. 20 and 29, supra, Quinley decided to discharge complainant
before he ever learned that complainant had reported respondent's failure to
install temporary supports to MSHA.
Complainant's brief (pp. 19-20) quotes some testimony by Quinley in which
he stated that he thought when complainant told him to call Rines that Rines
was a Union man who might be calling in connection with >~ >~ ,·~ trouble we
might have had with him [complainant] before and hired him back (Tr. 148)".
Complainant then argues that regardless of whether I find that Quinley knew
that complainant had made a complaint to MSHA before complainant was discharged, that Quinley's belief that complainant was again giving respondent
"trouble" shows that Quinley wanted to discharge complainant for engaging in
protected activities because the only prior trouble complainant had which
involved the Union concerned complainant's setting of temporary supports,
a protected activity.
11

There are several defects in the foregoing argument. First, although
Quinley thought the call might involve the Union when he got on the scoop to
go outside, he was advised by Greg Deel as soon as he gave Greg the name of
the person to be called that they were supposed to call an MSHA employee--not
a Union employee. Therefore, Quinley had no reason to associate complainant
with any "trouble" pertaining to a call to MSHA because complainant had never
made any complaints to MSHA about conditions at respondent's mine prior to
June 26 and Quinley did not have knowledge of the subject matter of the call
of June 26 until after he had discharged complainant.
A second defect in the argument is that complainant's use of temporary
supports and "trouble" with the Union are not synonymous, interchangeable,
or even interrelated matters. One of the important aspects of this case is
that complainant, up to June 26, had never thought of going to MSHA to obtain
redress for any of his alleged grievances. As indicated in Finding of Fact
No. 9, supra, complainant at no time ever read or examined respondent's roofcontrol plan, but he did carry around with him a copy of the Union contract.
He was an expert in expounding upon his rights under the Union contract.
When complainant filed his grievance with the Union on June 4 (Tr. 25-26),
he filed it immediately after he was asked to relinquish his position as
operator of the roof-bolting machine to another employee who could bolt
faster than complainant (Tr. 25; 60; 175). The record does not contain

2261

a detailed description of the grounds of the grievance filed with the Union,
but the evidence in the record about the grievance shows that complainant's
grievance dealt with complainant's rights under the Union contract rather
than his insistence on installing temporary supports. Consequently, the
record doesn't support complainant's contention that "trouble" with the
Union is tantamount to complainant's insistence upon the use of temporary
supports.
A third defect in the argument is that the events which occurred on
June 26 prior to complainant's discharge on June 27 do not support complainant's argument that "trouble" with the Union automatically caused respondent's
management to conclude that complainant should be discharged for having
engaged in a protected activity. It must be borne in mind that when complainant was reinstated on June 11, he took the position of general inside laborer.
On June 26, Verlin Deel talked to complainant in the mine office and told him
that management had received complaints from the other miners about complainant's failure to do his work. Complainant described the conversation as
follows (Tr. 32):
A.
I do not recall what started the conversation, but it ended in a
discussion of Union rights and contract obligations and it ended in a
rather heated discussion between Mr. Deel and myself about my duties
that were going to be assigned to me the next day. * * * ]:_/
The foregoing testimony shows that complainant, on the evening preceding his
discharge on June 27, had argued Union contract rights with respondent's
management. Since complainant had filed a grievance with the Union after
the heated argument complainant had had with management on June 4, the
evening of the preceding discharge, there is no reason for me to find that
respondent's management would equate "trouble" with the Union as being synonymous with a complaint to MSHA about safety matters or any sort of protected
activity.
Complainant's brief (p. 21) notes that Greg Deel testified that Quinley
used the underground paging phone to announce that he was coming outside with
complainant (Tr. 212). Then,complainant argues that since complainant stated
in his direct testimony that Quinley did not stop to use the phone when they
went out together on the scoop (Tr. 49), that it must be concluded that Greg
had called underground to advise Quinley of the subject matter of the phone
call from MSHA. Therefore, it is argued that Quinley must have known about
complainant's having reported the failure of respondent to use temporary
supports prior to the time that Quinley discharged complainant.
The preceding argument would be convincing except for at least three
defects in it. First, as I have hereinbefore explained in considerable detail,
complainant's credibility in this proceeding is very poor. Therefore, the
mere fact that he said Quinley did not call outside does not mean that Quinley
failed to announce that. he was coming out with complainant. Second, Greg Deel

]:_/
Although complainant alleged that Verlin had threatened to assign him
all sorts of jobs for the purpose of forcing him to resign, complainant's
testimony shows that he was given no burdensome duties when he reported for
work the next day despite the fact that he came in a half hour late (Finding
of Fact No. 23, supra.)

2262

stated that a paging telephone was used by Quinley. A paging telephone can
be heard for several breaks in a coal mine. It is highly improbable that Gre·g
himself would have called underground to announce over a loudspeaker that
someone had reported respondent to MSHA for failing to use temporary supports
and that Greg thought that complainant was probably the one who had called
MSHA. Third, Greg voluntarily brought out in his direct testimony that
Quinley had "hollered" outside to notify Greg that he was coming outside
with complainant on the scoop. Greg stated that he did not tell Quinley
about the complaint made to MSHA until after Quinley had arrived in the mine
office •. Consequently, I disagree with the contention in complainant's brief
(p. 20) that I "must find" on the basis of the record that Quinley knew complainant had called MSHA and that complainant's call was the actual reason
complainant was discharged.
Complainant's brief (p. 22) seeks to establish an "animus" by respondent's
management toward complainant by noting that Verlin Deel threatened to fire
complainant in the heated discussion between complainant and Verlin which
occurred on June 26 before complainant's discharge on June 27 (Tr. 32; 177).
There is no doubt but that respondent's management was upset with respondent's
failure to do his work. Both complainant and Verlin agree that their conversation was "heated". The mere fact, however, that complainant's relationship with his employer was discordant does not mean that their argument had
anything to do with a protected activity for which respondent had decided
to discharge complainant.
Complainant's brief (p. 22) also argues that there were many opportunities for the discharge of complainant, but they did not occur until after
complainant reported the failure to use temporary supports to MSHA. It is
contended that the occurrence of the discharge on the very next day following
complainant's call to MSHA shows that the discharge was illegally motivated.
Complainant also 9enies that respondent regularly criticized complainant's
work. That argument is defective for at least two reasons. · First, it ignores
complainant's own testimony that he was daily told that his work was unsatisfactory (Tr. 28) and it overlooks the fact that Verlin Deel himself answered
my questions about complainant's failure to perform his work as follows
(Tr. 193):
Q.
If you were a part owner of the mine didn't it bother you to see
him [complainant] doing nothing?
A.

Yeah, it did.

Q.

And you didn't say anything to him, though?

A.

Sure, I said a lot to him.

Q.

You did?

A.

Yeah.

Q.

On June 27th?

2263

A.
No, before that. What time he worked for me, I tried to get him
to do his job. I talked to him several times and tried to get him to
do his job. And actually, I didn't want to get rid of him. I wanted
him to work.
Complainant's brief (p. 23) argues that Quinley did not know what complainant had done on June 27 and therefore Quinley had no basis for discharging
him for failure to perform his duties. It is said that complainant's version
of the events of June 27 should be credited as compared to Quinley's and it
is contended that complainant's statement that he sat down beside Quinley,
who was already sitting down, should be credited over Quinley's claim that
he did not sit down at all. Finally, it is argued that complainant's account
is supported by the equipment operator. I have already dealt with all of the
foregoing arguments at least once in this decision. I have already shown
why complainant's testimony is to be given less credit than Quinley's and it
is incorrect that the Verlin Deel, Jr. 's testimony supports complainant'~
testimony. Verlin Deel, Jr., said that he saw complainant sitting down and
that he heard Quinley tell him to hang a curtain. Deel, Jr., stated that he
later saw complainant and that the curtain had not been hung (224-225).
Deel, Jr., also said that he heard Quinley tell complainant that they were
going outside and that Quinley and complainant were about 12 to 15 feet
apart. Deel, Jr., did not state that he saw Quinley seated against the
rib (Tr. 228-229). I don't see how it can be correctly contended th~t Deel,
Jr. 's testimony supports complainant's version of the events which occurred
on June 27.
Complainant's brief (p. 24) takes the narrow position that firing a
person for sitting down on the job contains no other ramifications and
argues that only one other .person had ever been discharged for sitting down
on the job and that that discharge occurred under circumstances highly distinguishable from the events which led to complainant's discharge. The other
person who was discharged was fired because he refused to perform some work
which Quinley asked him to do (Tr. 142). Complainant was also fired for
refusing to do work which he was assigned to do (Tr. 146; 149). Also Quinley
explained that he did not object to a miner's taking a break when he was
caught up on his work and that he wouldn't have been upset by the fact that
complainant was sitting down on June 27 if complainant had done the work which
he had been assigned to do (Tr. 161).
Complainant's brief (p. 24) completes its extended argument with the
unfounded conclusion that complainant has proven a violation of section
105(c)(l) i f the principles of the Commission's decision in David Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980), are applied to the facts in
this proceeding. It is contended that complainant was engaged in a protected
activity both because he insisted on setting temporary supports and because
he had called MSHA to report respondent's failure to use temporary supports.
Complainant argues that even if one assumes, without admitting, that any
part of respondent's motivation for discharging complainant was for an unprotected activity, it cannot be found that complainant would have been
discharged for his unprotected activities alone.

2264

In the Fasula case, the Commission held that a miner has shoi:vn a prima
facie case of discrimination or discharge if he has proven that he engaged
in a protected act and that the adverse action or discharge was motivated
in any part by the protected activity. If the miner succeeds in establishing
his prima facie case, respondent has the burden of showing by a preponderance
of the evidence that, although it was motivated by the protected activity,
in part, the adverse action would have been taken in any event for the unprotected activity alone. The Fasula case is not applicable to this proceeding because complainant failed to present a prima facie case showing that
his discharge by. respondent was motivated by complainant's protected activity
of calling MSHA to report respondent's failure to use temporary supports,
or by his alleged protected activity of having used temporary supports
for about 11 days while he was employed as a roof bolter.
Respondent's Reply Brief
My consideration of the parties' arguments above has dealt only with the
arguments in complainant's brief. I have carefully read respondent's sixpage reply brief. My decision shows that I am in substantial agreement with
the arguments made in respondent's reply brief. Therefore, I shall not further
lengthen this decision by discussing arguments with which I am in general
agreement.
Civil Penalty Issues
My order of March 4, 1981, consolidated for hearing in this proceeding
all civil penalty issues which might be raised if a violation of section
105(c)(l) of the Act had been proven. Inasmuch as no violation of section
105(c)(l) was proven, the civil penalty issues are moot and no action on
that aspect of the proceeding is required.
WHEREFORE, it is ordered:
(A) The Complaint of Discharge, Discrimination, or Interference filed
in Docket No. VA 81-16-D is denied for failure to prove that a violation of
section 105(c)(l) of the Federal Mine Safety and Health Act of 1977 occurred.
(B) All civil penalty issues are severed from this proceeding and
dismissed as moot.

~c.~w~

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

Barbara Krause Kaufmann, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)

2265

Distribution (Cont'd.):
James E. Arrington, Jr., Esq., and Gregory R. Herrell, Esq., Attorneys
for D & J Coal Company, Inc., Browning, Morefield, Schelin, and
Arrington, P.C., 2 Mill Street, Post Office Box 156, Lebanon, VA
24266 (Certified Mail)
MSHA, Special Investigation, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

2266

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),

Civil Penalty Proceeding
Petitioner

Docket No. WEVA 80-415
A.C. No.

v.

Beckley Mine
BECKLEY COAL MINING COMPANY,
Respondent
and
BECKLEY COAL MINING COMPANY,
Applicant
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Contest of Citation
Docket No. WEVA 79-465-R
Citation No. 646219
September 7, 1979

Respondent

Beckley Mine

DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Harold S. Albertson, Esq., for Respondent.

Before:

Administrative Law Judge William Fauver

These proceedings involve the same citation. In WEVA 80-415
the
Secretary seeks a civil penalty under section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et~· In WEVA 79-465-R,
the company seeks review and vacation of the citation under secti_on 105(d) of
the Act. The cases were consolidated and heard at Charleston, West Virginia.
The parties were represented by counsel, who have submitted their proposed
findings, conclusions, and briefs following receipt of the transcript.
Having considered the contentions of the parties and the record as a
whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following:

2267

FINDINGS OF FACT
1. At all pertinent times, Respondent, Beckley Coal Mining Company,
operated a coal mine known as the Beckley Mine in Raleigh County,
West Virginia, which produced coal for sales in or substantially affecting
interstate commerce.
2. In the Second Northeast Section of the Beckley Mine, the return
escapeway often alternated between the No. l and No. 2 entries to avoid
adverse roof conditions or water accumulations.
3. The intake escapeway was through the track-haulage entry (No. 4),
which ran parallel to Entries 1, 2 and 3, the b~lt entry.
4. Under Respondent's approved plan, escapeways had to be at least
6 feet wide, as high as the coal seam, and marked with one-fourth-inch lifelines with reflective material every 25 feet.
5. On August 22, 1979, federal inspector Chester D. Pennington,
accompanied by Respondent's Safety Director, Ronald D. Scaggs, traveled the
return escapeway on foot. At the No. 20 crosscut, the inspector observed 12 to
15 inches of water that prevented passage. The water extended from rib to rib
for about 200 feet, or as far as the inspector could see with his cap lamp.
As a custom and practice, if water was above "boot level" (about 12 inches),
the escapeway was to be rerouted because passage in case of an emergency would
be difficult or dangerous.
7. Mr. Scaggs suggested rerouting part of the escapeway into the belt
entry (No. 3), which was in a neutral air course between the return
and intake entries. The inspector traveled to the belthead with Mr. Scaggs
and waited there while Mr. Scaggs rerouted the escapeway. Mr. Scaggs cut the
lifeline at the No. 25 break, crouched through a 30-inch square door into the
belt entry, traveled to the No. 15 break, and cut the line there also. He
then returned to the No. 25 break, pulled the piece of cut line through the
water accumulati~n, tied it to the original line and took it through the door
and down the belt entry untir he reached the No. 15 break. He also marked
the door at the No. 25 break with chalk to show that the escapeway passed
through it and marked the cribs in the belt entry with chalk. He spent about
45 minutes rerouting the escapeway.
haul~ge

8. As rerouted, the return escapeway began in the No. 1 entry near the
next to last crosscut. At the No. 35 break, it passed into the No. 2 entry,
ran to the No. 28 break, and passed back to the No. 1 entry. At the No. 25
break, it passed through the 30-inch square steel door into the belt entry
(No. 3). From there, it ran down to the No. 15 break and back into the return
air course (Nos. 1 and 2 entries).
9. Inspector Pennington told Mr. Scaggs that he would first have to.
check with his supervisor about the rerouting plan, and that he doubted that

2268

the supervisor would approve it because clearance in the belt entry was not as
great as in the original escapeway. In the belt entry, timbers were set near
the left rib; the width between the timbers and the right rib ranged from
3-1/2 to 5 feet. He did not issue a citation that day for the accumulation
of water in the escapeway.
10. Mr. Scaggs told the evening and day shift company safety inspectors, and the section foreman, that the escapeway had been rerouted. He also
posted the change on the c~alkboard in the foremen's room.
11. That evening, Mr. Scaggs directed an employee to inspect the No. 1
entry from the No. 15 break to the No. 1 break to see if there were any more
water accumulations. More water accumulations were discovered at the No. 12
break and other breaks further down the return escapeway. On the next shift,
the escapeway was rerouted into the belt entry all the way to the No. 1 break.
Inspector Pennington was not aware of this further change in the rerouted
escapeway.
12. Emergency travel in the beltway would be difficult because of its
narrow width where timbered and because of overcasts and beltheads. At various
places, a stretcher-bearer would have to crouch beneath overcasts, lift the
stretcher over a belthead, or stoop to pass under a belthead.
13. The inspector's supervisor, George S. Vargo, refused to approve
the alternative route, on the grounds that clearance in the belt entry was
insufficient and passage through the steel door was too narrow.
14. The inspector did not inform Mr. Scaggs of Mr. Vargo's decision.
On September 7, the inspector returned to the mine and met Danny Miller, a
safety inspector for Respondent. They traveled the return escapeway, and
found that the accumulation of water was still present at the No. 20 crosscut. The inspector found that there had been no efforts to pump out the
water. He observed chalk marks indicating that the escapeway had been
rerouted. He did not ask Mr. Miller about a lifeline or travel the rerouted
section to observe whether a lifeline had been installed. Based on the conditions he observed, Inspector Pennington issued Citation No. 646219 for a
violation of 30 C.F.R. § 75.1704. The citation reads in part: ''Water
approximately 15 inches deep was allowed to accumulate in the No. 1 and
No. 2 entries at No. 20 crosscut in 2 northeast mains escapeway." This
condition was abated on September 17 by pumping the water out of the
escapeway.
DISCUSSION WITH. FURTHER FINDINGS
Based on the citation issued September 7, 1979, Respondent is charged
with a violation of 30 C.F.R. § 75.1704, which provides:
Except as provided in §§ 75.1705 and 75.1706, at least
two separate and distinct travelable passagewa~s which are

2269

maintained to insure passage at all times of any person,
including disabled persons, and which are to be designated
as escapeways, at least one of which is ventilated with
intake air, shall be provided from each working section continuous to the surface escape drift opening, or continuous
to the escape shaft or slope facilities to the surface, as
appropriate, and shall be maintained in safe condition and
properly marked. Mine openings shall be adequately protected
to prevent the entrance into the underground area of the
mine of surface fires, ftnnes, smoke, and floodwater. Escape
facilities approved by the Secretary or his authorized representative, properly maintained and frequently tested, shall
be present at or in each escape shaft or slope to allow all
persons, including disabled persons, to escape quickly to the
surface in the event of an emergency.
Respondent contends, first, that the Secretary is estopped from bringing
this action. It argues that Mr. Scaggs, Respondent's Safety Director, justifiably relied on Inspector Pennington's representation that he would first discuss the proposed alternative escapeway with the MSHA District Manager to find
out whether the proposed route would be permitted, and then notify Mr. Scaggs
of the District Manager's decision, before issuing a citation~ The inspector
returned to the mine about 2 weeks after the August 22 inspection and, without
speaking with Mr. Scaggs, issued a citation. Respondent requests that the
Commission accept the estoppel argument because the Government's conduct
"threatens to work a serious injustice against Beckley Coal Mining Company"
and because, although the Supreme Court has held that equitable estoppel
generally does not apply against the federal government, opinions in lower
federal courts have permitted estoppel in some circumstances. Respondent
urges the Commission to follow the trend in the lower federal courts.
The Secretary argues that: Under the Act, an inspector is required to
issue a citation upon observing a violation of a mandatory safety standard; on
August 22 the water accumulation in the designated escapeway was a clear violation; and the inspector's discussions with Respondent's Safety Director amounted
to determining an acceptable-means of abatement. The Secretary argues that the
inspector's faiiure to issue a citation on August 22 did not prevent him from
issuing a citation for this violation at a later date or estop the Government
from bringing this case. The Secretary also argues that anyone entering into
an agreement with an agent of the Government assumes the risk that the agent
has exceeded his authority and that the inspector exceeded his authority by
agreeing not to issue the citation immediately.
The Secretary proposes a penalty of $500.
I conclude that the Secretary is not estopped from bringing this action.
Secretary of Labor v. King Knob Coal Company, Inc., 2 FMSHRC 1417 (June 29,_
1981), involved a defen~e of estoppel based on the company's reliance on an
MSHA inspector's manual. The Commission rejected this defense, stating:

2270

Absent the Supreme Court's expressed approval of that
decisional trend, we think that fidelity to precedent requires
us to deal conservatively with this area of the law. This
restrained approach is buttressed by the consideration that
approving an estoppel defense would be inconsistent with the
liability without fault structure of the 1977 Mine Act. * * *
Such a defense is really a claim that although a violation
occurred, the operator was not to blame for it. Furthermore,
under the 1977 Mine Act, an equitable consideration, such as
the confusion engendered by conflicting MSHA pronouncements,
can be appropriately weighed in determining the appropriate
penalty * * *
King Knob Coal Company, Inc., 2 FMSHRC at 1421-1422.
Since Respondent is charged with maintaining an unsafe escapeway as of
September 7, 1979, rather than the date of the earlier inspection (August 22),
the remaining issue is whether the Secretary has proved a violation as of
September 7.
The cited standard (section 75.1704 of the regulations) requires that
escapeways be safe, suitably marked, and adequate for persons, including disabled persons, to escape quickly to the surface. Escapeways must be approved
by the Secretary or his authorized representative(_!..~., the District Manager).
The criteria for approval are in sections 75.1704-1 and 75.1704-2. Section
75.1704-1 provides that, where the height of the coal seam is at least 5 feet,
"the travelway in such escapeway should be maintained at a width of at least
6 feet." Escapeways that do not meet the criteria may be approved provided
"the operator can satisfy the District Manager that such escapeways and facilities will enable miners to escape quickly to the surface in the event of an
emergency."
In approving Respondent's original escapeway plan, the District Manager
applied the criteria in section 75.1704-1, including the criterion of a 6-foot
wiath. The District Manager rejected the alternative plan, principally on the
grounds of the narrow width in the belt entry and the 30-inch door leading
from the original escapeway into the belt entry. I conclude that his decision
conforms to the criteria in section 75.1704-1 of the regulations.
Because the alternative route was rejected, on grounds consistent with
the regulation guidelines, the original escapeway had to be maintained in
compliance with section 75.1704. However, it was not in compliance on
September 7 because of the water accumulation, which I find was excessive and
rendered the escapeway unsuitable under the requirements of section 75.1704.
Even if it were found that the alternative escapeway should be considered
despite the District Manager's decision, I conclude that the alternative
escapeway did not meet the requirements of section 75.1704; the grounds for
this conclusion include the narrow beltway width (a range of only 3-1/2 to
5 feet), the overcasts and beltheads, and the 30-inch door.

2271

I conclude that Respondent's negligence was minimal, considering
Respondent's discussion with the inspector on August 22 and the facts that:
Respondent believed in good faith that the alternative route was safe and
was pending approval by the District Manager; it adequately marked the
alternative route with a lifeline and reflective markers; and it notified
its employees of the changes in the escape route.
CONCLUSIONS OF LAW
1. The undersigned judge has jurisdiction over the parties and subject
matter of these proceedings.

2. Respondent violated 30 C.F.R. § 75.1704 on September 7, 1979, by
failing to maintain the return escapeway in safe condition at its Beckley
Mine, as alleged in Citation No. 646219.
3. Based upon the statutory criteria for civil penalties, Respondent
is assessed a penalty of $25 for this violation.
ORDER
WHEREFORE IT IS ORDERED that:
1. The above-mentioned citation is AFFIRMED and the notice of contest
is DISMISSED.
2. Respondent shall pay the Secretary of Labor the above-assessed
civil penalty, in the amount of $25, within 30 days from the date of this
decision.

WILLIAM FAUVER, JUDGE
Distribution:
John H. O'Donnell, Esq., Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Harold S. Albertson, Esq., Counsel for Beckley Coal Mining Company,
P.O. Box 1989, Charleston, WV 25327 (Certified Mail)

*U.S. GOVERNMEJ!T PRINTING OFFICE:

2272

1981--341-638/4361