MARCH 1988

COMMISSION DECISIONS
3-22-88
3-25-88
3-29-88
3-29-88

Rushton Mining Company
Western Fuels-Utah, Inc.
Emery Mining Corporation
Utah Power & Light Company

PENN 86-44-R
WEST 86-108-R
WEST 86-126-R
WEST 86-131-R

P8.
Pg.
Pg.
Pg.

249
256
276
302

Robert L. Tarvin v. Jim Walter Resources
Emery Mining Corp./Utah Power & Light Co.
Southern Ohio Coal Company
Tennessee Chemical, Inc.
Triple B Corporation
Peabody Coal Company
Jeff McQueen v. Felosi & Felosi Trucking
Green River Coal Company, Inc.
Mellott Trucking & Supply Co., Inc.
Charles Conatser v. Red Flame Coal Co.
Fife Coal Company, Inc.
Sterling Energy, Inc.
Energy Fuels Coal, Inc.
Phelps Dodge Corporation
Eureka Stone Quarry, Inc.

SE
87-90-D
WEST 87-138-R
WEVA 87-166-R
85-63-M
SE
KENT 87-21
WEVA 87-263-R
KENT 87-162-D
KENT 87-167-R
SE
87-123-M
KENT 87-168-D
KENT 87-186
KENT 87-205
WEST 86-122
WEST 87-102-RM
PENN 87-207-M

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

305
339
358
368
389
395
401
402
409
416
471
473
478
481
483

Sec. of Labor for D. Robinette & Joey Hale
v. Bill Branch Coal Co., Inc.

VA
VA

Pg. 489

ADMINISTRATIVE LAW JUDGE DECISIONS
3-03-88
3-09-88
3-14-88
3-15-88
3-15-88
3-16-88
3-21-88
3-24-88
3-24-88
3-29-88
3-29-88
3-29-88
3-29-88
3-30-88
3-30-88
ALJ ORDER
3-10-88

I

87-21-D
87-22-D

MARCH 1988
Review was granted in the following case during the month of March:
Utah Power & Light Company v. Secretary of Labor, MSHA, Docket No.
WEST 87-210-R, 211-R, 224-R. (Judge Morris, January 25, 1988)
No cases were filed in which review was denied.

COMMISSION DECISIONS

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

March 22, 1988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. PENN 86-44-R
PENN 86-92

v.

RUSHTON MINING COMPANY

BEFORE:

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

BY THE COMMISSION:
In this consolidated contest and civil penalty proceeding arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (1982)("Mine Act"), the issues are whether Commission Administrative Law Judge James Broderick erred in finding that Rushton Mining
Company ("Rushton") violated mandatory underground coal mine safety
standard 30 C.F.R. § 75.1434(a)(2) and whether the violation was caused
by Rushton's "unwarrantable failure" to comply with that standard. For
the reasons that follow, we affirm the judge's finding of a violation of
section 75.1434(a)(2), but reverse his finding of unwarrantable failure.
The Rushton Mine is an underground coal mine located in Centre
County, Pennsylvania. On the morning of November 5, 1985, Joe Colton,
an inspector of the Department of Labor's Mine Safety and Health
Administration, conducted an inspection of the mine's wire hoist rope.
The hoist rope is used to lower and raise miners and materials into and
out of the mine. The machinery that powers the hoist rope is located on
the surface in the hoist house. The hoist rope is attached to a 4-foot
diameter drum which lowers the rope into the mine when the drum is
rotated clockwise and raises the rope when the drum is rotated counterclockwise. From the hoist house, the rope travels approximately 150
feet, where it turns around a sheave wheel before running another 150
feet to the entrance of the mine. At the mine portal, the rope is
attached to mine cars that transport men and materials into the mine.
As t~e drum rotates, the mine cars are lowered approximately 650 feet on
a slope that is estimated at 17 degrees. Each fully loaded trip of cars
transporting miners into the mine ("man trip") puts a load of approximately 5 tons on the rope.
·

249

The hoist rope is one inch in diameter, 1100 feet long, and has a
breaking strength of more than SO tons. It is composed of a fiber core
surrounded by six wire strands, with each wire strand consisting of 19
individual wires. The hoist rope in service on November S, 198S, had
been in use since May 11, 198S. Under Rushton's policy of changing the
hoist rope every six months, unless its condition requires earlier
retirement, the rope was due to be replaced later that week.
Before lowering the man trip on November S, Frank Petriskie, a
hoist operator with more than six years of hoisting experience, visually
examined the portion of the rope extending from the hoist house to the
man trip. While a man trip with 34 miners aboard was lowered into the
mine, he examined the remainder of the rope by inspecting it visually
and by draping a rag over the rope as it was reeled so that broken wires
could snag on the rag. Tr. 12 (November 18, 1986), Tr. SS (November 19,
1986). Petriskie found no deficiencies in the rope and recorded the
results of his examination in the hoist examination record book.
Petriskie's notation was countersigned by his supervisor.
Shortly thereafter, Inspector Colton arrived at the mine to
inspect the hoist rope. By then the man trip had reached the bottom of
the slope and the miners had left the mine cars. Colton went to the
hoist house, took a piece of rag, wrapped it around the hoist rope, and
instructed Petriskie to raise the hoist rope at the heist's slowest
speed. As the rope was being reeled in, Colton observed a one-inch long
gouge in one strand of the rope. Colton told Petriskie to stop the
hoist so that the gouge could be examined more thoroughly. Colton
testified that in this area he found at least seven broken wires in one
lay length of one strand of the rope. ll Colton also testified that
about two feet farther down the rope he found another gouge with at
least five broken wires in one lay.
Section 7S.1434(a)(2) requires that a wire rope be removed from
service when the number of broken wires within a rope lay length exceeds
fifteen percent of the total number of wires within any strand. 2/

lf

A lay length is defined as "the distance parallel to the axis of
the rope in which a strand makes one complete turn about the axis of the
rope." Bureau of Mines, U.S. Department of the Interior, A Dictionary
of Mining, Mineral, and Related Terms 629 (1968).

~/

30 C.F.R. § 7S.1434(a)(2) provides in pertinent part:
Unless damage or deterioration is removed by
cutoff, wire ropes shall be removed from service
when any of the, following conditions occurs:
(a) The number of broken wires within a rope lay
length, excluding filler wires, exceeds

*

*

(2) Fifteen percent of the total number of wires

250

Jince three broken wires represented 15.8 percent of the 19 wires in one
strand of the rope and each of the two damaged areas contained at least
three broken wires within a lay length, Colton determined that Rushton
had violated section 75.1434(a)(2) and issued to Rushton an order of
withdrawal pursuant to section 104(d)(l) of the Mine Act. 30 U.S.C.
§ 814(d)(l). }/ The order indicated that the violation was the result
of Rushton's unwarrantable failure, that the violation was of a
significant and substantial nature and was due to Rushton's "moderate
negligence." Exh. G-1.
Rushton promptly abated the violation by replacing the hoist rope.
Subsequently, Rushton initiated a new procedure to examine the rope,
whereby Petriskie examines the rope at the hoist house and another miner
examines the rope at the sheave wheel while the man trip is lowered into
the mine.
At the hearing, Rushton conceded that there were enough broken
wires in the hoist rope to satisfy the retirement criteria of section
within any strand;

*
}/

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

30 u.s.c. §814(d)(l).

251

75.1434(a}(2). However, Rushton argued that in order to prove a
violation the Secretary of Labor also needs to establish that an
operator knew or should have known of the presence of the broken wires.
The administrative law judge rejected this argument and held that the
existence of defects in the rope sufficient to require its retirement
constituted a violation of the standard, regardless of whether Rushton
knew or should have known of the existence of the defects. 9 FMSHRC
613-614 (March 1987)(ALJ).
In further concluding that the violation of section 75.1434(a)(2)
was the result of Rushton's unwarrantable failure, the judge found that
Petriskie was a conscientious employee and that because the defects in
the wire rope were substantial and "clearly visible on careful
examination," Petriskie's failure to detect the broken wires could be
due only to a seriously inadequate method of examination requiring
Petriskie to do too many tasks at one time. The judge stated that this
inadequacy was recognized by Rushton when, after being issued the
withdrawal order, it assigned another miner to help Petriskie perform
the rope examination. The judge held that th~ flawed procedure for
examining the hoist rope represented a serious lack of reasonable care
on Rushton' s part. 9 FMSHRC at 615.
Rushton's petition for discretionary review was granted, and we
heard oral argument. On review Rushton reiterates its argument that the
standard by its terms requires that an operator must know of the
existence of defects before its obligation to retire the rope arises.
Therefore, in Rushton's view, to establish a violation, the Secretary
must prove the existence of the retirement criteria and that the
operator knew that the rope met this criteria and nonetheless failed to
retire it.
We reject this argument. In interpreting section 75.1434 we look
first to its language. Section 75.1434 states that "wire ropes shall be
removed from service when any of the following conditions occurs .... "
(There is no dispute that the conditions set forth in subsection (a)(2)
did in fact occur). "Occur" is defined as to "take place" or to
"happen." Webster's Third New International Dictionary 1561 (1971).
Thus, the standard expressly requires removal from service when any of
the criteria for retirement take place or happen. The standard does not
provide or imply any requirement that the operator must first have
knowledge of the existence of the conditions causing retirement and then
fail to retire it before liability for a violation attaches.
I

Further, section 2(e) of the Mine Act declares that operators with
the assistance of miners have the primary responsibility to prevent the
existence of unsafe conditions in the nation's mines. 30 U.S.C.
§, 801(e).
Finding a requirement of operator knowledge would also run
counter to an operator's general responsibility under section 2(e) to
prevent unsafe conditions in the first instance. Therefore, given the
undisputed fact that the rope met the retirement criteria and was not
removed from service, we affirm the judge's finding of a violation of
section 75.1434(a)(2).
We now turn to the issue of unwarrantable failure.

252

In Emery

Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), appeal dism'd per
stip., No. 88-1019 (D.C. Cir. March 18, 1988), and Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007, 2010 (December 1987), we held that "unwarrantable failure means aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the Act."
This conclusion was based on the ordinary meaning of the term
"unwarrantable failure," the purpose of unwarrantable failure sanctions
within the Mine Act, the Act's legislative history, and judicial
precedent. We stated that whereas negligence is conduct that is
"inadvertent," "thoughtless," or "inattentive," unwarrantable failure is
conduct that is "not justifiable" or is "inexcusable." Only if
unwarrantable failure by a mine operator is construed to mean aggravated
conduct constituting more than ordinary negligence, can unwarrantable
failure sanctions assume their distinct place as intended in the Act's
enforcement scheme. See Emery, 9 FMSHRC at 2001. Applying these
principles to the case at hand, we hold that substantial evidence does
not support the judge's finding that the violation of section
75.1434(a)(2) was the result of Rushton's unwarrantable failure.
The judge's conclusion that Petriskie's failure to detect the
broken wires was due to Rushton's seriously inadequate procedure for
examining the rope is not supported by the record. Inspector Colton
testified that requiring Petriskie to operate the hoist rope and inspect
the rope at the same time established a lack of reasonable care on
Rushton's part. Colton also based his finding of unwarrantable failure
on the fact that he detected the violation shortly after Petriskie had
completed his examination without detecting the condition, and because
management had countersigned Petriskie's notation of his completed
inspection. When Colton inspected the wire rope, however, he used the
same examination procedures as Petriskie, using the rag technique and
visually examining the hoist rope as it was being reeled. Also, there
is no indication in Petriskie 1 s testimony that his duties interfered
with his ability to adequately examine the rope. Indeed, Colton
testified that "it is conceivable for one person to do both," Tr. 27
(November 18, 1986), and this possibility was reiterated by the
Secretary at oral argument before us. Oral Arg. Tr. at 26-27. Colton
further conceded that the rope was difficult to examine and that it was
possible to miss damaged portions of the rope no matter how carefully it
was examined. Tr. 42 (November 18, 1986).
Moreover, Rushton required that the rope be inspected on a daily
basis even though the relevant standard (30 C.F.R. § 75.1433) requires
inspection only once every 14 days. Rushton also retired its rope every
6 months notwithstanding the absence of any of section 75.1434 1 s
criteria r~quiring replacement. In light of the above, we cannot
conclude based on this record that Petriskie 1 s failure to detect the
damaged portions of the rope resulted from aggravated conduct exceeding
ordinary negligence. The judge's finding that Petriskie was a
conscientious employee actually supports a conclusion that at most the
oversight resulted from no more than ordinary negligence. The fact that
Petriskie's examination took place only shortly before Colton discovered
the damage and that Petriskie's report had been countersigned would not

253

convert ordinary negligence into aggravated conduct. ~/
Accordingly, the judge's finding that Rushton violated section
75.1434(a)(2) is affirmed, the judge's conclusion that the violation was
caused by Rushton's unwarrantable failure to comply is reversed, and the
proceeding is remanded for reconsideration of the civil penalty. The
section 104(d)(l) order is modified to a citation issued pursuant to
section 104(a). 30 U.S.C. § 814(a).

Lastowkp,

"-P /7

, '--71

/l

~/~"-VJ

L. Clair Nelson, Commissioner

~/

In view of our disposition of the unwarrantable failure issue, we
need not address Rushton's argument that the judge erred in considering
Rushton's change in its rope examination procedure after issuance of the
withdrawal order.

254

Distribution
R. Henry Moore, Esq.
Buchanan Ingersoll
58th Floor, 600 Grant Street
Pittsburgh, PA 15219
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James A. Broderick
Federal Hine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22043

255

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

March 25, 1988
WESTERN FUELS-UTAH, INC.
Docket No·. WEST 86-108-R

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 86-245

v.

WESTERN FUELS-UTAH, INC.

BEFORE:

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

BY:

Backley, Doyle and Lastowka, Commissioners

In. this proceeding arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"),
Commission Administrative Law Judge Roy J.· Maurer concluded that a
violation of 30 C.F.R. § 75.200 occurred when a miner employed by
Western Fuels-Utah, Inc. ("Western Fuels"), proceeded under unsupported
roof at a Western Fuels mine despite his supervisor's order not to do
so. 9 FMSHRC 320 (February 1987)(ALJ). Western Fuels petition~d the
Commission for review, contending that the judge's decision improperly
subjected it to liability for an employee's violative conduct under
circumstances in which it should not be held responsible. We adhere to
the well-established principle that the Mine Act imposes liability upon
operators, without regard to considerations of fault, for violations of
the Act committed by their employees. Accordingly, we affirm.
The facts are undisputed. On February 28, 1986, at 10:50 a.m., a
fatal accident occurred at Western Fuels' Deserado underground coal mine
in Colorado when an unsupported portion of the mine roof fell on Austin

256

Mullens; a 'ro'of bolting machine operator. On the day of the accident,
Mullens was working with section foreman Carson Julius in the mine 1 s
East Mains installing roof bolts. (Around 10:25 a.m., the foreman had
temporarily relieved Mullens' regular partner, who went to lunch.)
Mullens and Julius were using a double-boom, two-person Norse roof
bolting machine equipped with an automatic temporary roof support device
("ATRS"). In performing the bolting operation, the miners would place a
metal roof mat or "pan" over the ATRS, tram the roof bolter towards the
face, raise the ATRS against the roof, drill roof holes for the roof
bolts, and install a row of bolts in the roof through the roof mat.
Mullens was operating the left-hand boom of the machine installing bolts
on the left side of the machine, and Julius was performing the same
function with the right-hand boom on that side of the machine.
The two miners set one roof mat and moved the machine forward to
install a second. Julius encountered difficulties in drilling the first
bolt hole through the mat adjacent to the right rib. The water flow
used to control drilling dust was cut off when the water line to Julius'
drill became kinked, and his drill stopped. Mullens was able to install
one bolt on the left side of the roof mat. To loosen the taut water
line to Julius' drill, the miners lowered the ATRS and backed up the
roof bolter. When the ATRS was lowered, the right end of the roof mat,
which Julius had not been able to bolt through, fell to the floor.
Thus, the area of roof from which the mat fell was at that time
unsupported.
After straightening out the .. water line, the miners moved the
bolting machine forward again. While standing under supported roof,
Julius attempted to lift the fallen mat with a four-foot rod so that
Mullens could advance the bolting machine and raise the ATRS under the
mat. Julius was unsuccessful and decided to get a longer rod from the
storage area in the middle of the roof bolting machine. Just before
turning away, he warned Mullens not to go under the unsupported roof.
As soon as Julius began walking away, however, Mullens went under
the unsupported roof about seven feet from the last permanent support
and attempted to lif.t the mat manually. Julius, who was near the middle
of the roof bolter at that point, turned and twice shouted at Mullens to
get back. Mullens did not respond and moments later a large piece of
roof fell, killing him.
An inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA") subsequently issued Western Fuels a citation
pursuant to section 104(a) of the Mine Act, 30 D.S.C. § 814(a), charging
the operator with a significant and substantial violation of 30 C.F.R.
§ 75.200 in that Mullens had proceeded under unsupported roof for
reasons other than installation of temporary support. l/

lf

Section 75.200, which restates section 302(a) of the Mine Act,
30 U.S.C. § 862(a), provides in relevant part:
No person shall proceed beyond the last permanent

257

The hearing in this proceeding was conducted before former
Commission Administrative Law Judge John A. Carlson. Western Fuels
contended.below that any violation of section 75.200 was wholly due to
the negligence of Mullens, a rank-and-file miner, and that his negligent
conduct should not subject it to derivative liability for a violation.
Following Judge Carlson's death, Judge Maurer was substituted and,
without objection, rendered his decision upon the existing record.
In his decision, the judge concluded that Mullens had violated
section 75.200 by proceeding under the unsupported roof. 9 FMSHRC at
322. The judge rejected Western Fuels' challenge to the doctrine of
liability without fault under the Mine Act. He stated:
The Commission has consistently and frequently
held that an operator is liable, without regard to
fault, for violations of the Act or its regulations
committed by its employees.
An operator's
negligence has no bearing on the issue of whether a
violation occurred. Rather, it is a factor to be
considered in assessing a civil penalty.
Id. Among other authorities, the judge cited the Commission's decision
in Asarco, Inc.- Northwestern Mining Dept., 8 FMSHRC 1632 (November
1986), pet. for review filed, No. 86-2765 (10th Cir. December 3, 1986),
in which the Commission reaffirmed the Mine Act principle of liability
without fault. The judge thus held that Western Fuels was liable for
the violation of section 75.200, and also affirmed MSHA's significant
and substantial finding. In considering the statutory civil penalty
criteria (30 U.S.C. § 820(i)), the judge found no· negligence on the part
of the operator and assessed a civil penalty of $250. 9 FMSHRC at 32324. With respect to his finding of no negligence, the judge determined
that Mullens had walked out under unsupported roof "contrary to the
direct orders of his supervisor'·' ( 9 FMS~C at 323), Mullens' violation
was not reasonably foreseeable, proper supervision of the employee was
present, and "the operator's training program and its history of
disciplining its employees for violations of the mandatory safety
standard at issue ... [were] adequate." 9 FMSHRC at 324.
There is no dispute in this case that Mullens' actions in
proceeding under unsupported roof violated section 75.200. On review,
Western Fuels challenges only the judge's application of the doctrine of
liability without fault to impose upon it liability for Mullens'
violative conduct. Western Fuels advances two interrelated arguments in
support unless adequate temporary support is
provided or unless such temporary support is not
required under the approved roof control plan and
the absence of such support will not pose a hazard
to the miner.
Western Fuels' approved roof control plan does not permit persons to
proceed beyond the last row of permanent support before temporary
support is installed unless they are engaged in installing temporary
support. Exh. C-1, p. 9 (Item 2.c.).

258

support of its position: (1) When read together, sections 104 and 110 of
the Mine Act do not permit liability to be placed on an operator unless
the operator itself or one of its supervisory agents is actually
responsible for a violation; and (2) the Act contemplates only "a kind
of strict liability" (W.F. Br. 23), limited to situations in which a
violation is attributable to the operator or supervisory agent or, if
resulting from the conduct of a rank-and-file err.~loyee, also stems in
part from the operator's own negligence or fault. Alternatively,
Western Fuels asserts that notwithstanding the doctrine of liability
without fault, the Commission should recognize an exception in the form
of an affirmative defense of unforeseeable employee misconduct. In our
opinion, none of Western Fuels' arguments can be reconciled with the
basic principles of liability without fault.
We addressed in detail the subject of liability without fault in
our Asarco decision. As we noted in Asarco:
The general principle that an operator is liable
for the violations of the Act committed by its
employees has been stated frequently. Sewell Coal
Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982);
Allied Products Co. v. FMSHRC, 666 F.2d 890, 893
(5th Cir. 1982); Southern Ohio Coal Co., 4 FMSHRC
1459, 1462 (August 1982); American Materials Corp.,
4 FMSHRC 415, 419 n. 8 (March 1982); Kerr-McGee
Corp., 3 FMSHRC 2496, 2499 (November 1981); El Paso
Rock Quarries, Inc., 3 FMSHRC 35, 38-39 (January
1981). Cf. Ace Drilling Coal Co., Inc., 2 FMSHRC
790-91 (April 1980), aff'd without opinion, 642 F.2d
440 (3rd Cir. 198l)(construing 1969 Coal Act).
8 FMSHRC at 1634-35. Accord Miller Mining Co. v. FMSHRC, 713 F.2d 487,
491 (9th Cir. 1983). The Mine Act retains the liability without fault
structure of its predecessor, the Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seg. (1976) (amended 1977)("Coal Act"), and the
pertinent Mine Act legislative history shows this retention to have been
a deliberate action by Congress. See Asarco, 8 FMSHRC at 1635-36, and
authorities cited. As we held in Asarco, rather than being "a determinant of liability," the operator's fault or lack thereof "is a factor to
be considered in assessing a civil penalty." 8 FMSHRC at 1636, and
authorities cited. ;/

;!

As recently stated by the United States Court of Appeals for the
District of Columbia Circuit:
The Act does permit consideration of fault in one
context: section llO(i), 30 U.S.C. § 820(i), dire~ts
the Commission (and implicitly the Secretary), in
setting the level of civil penalties for violations
of the Act, to consider, inter alia, "whether the
operator was negligent." The presence of this
consideration here on~y serves to underscore its

259

Citing section 104(a) of the Mine Act, Western Fuels first argues
that an operator may be cited for a violation only when an MSHA
inspector believes that "an operator ••. has violated [the Act], or any
·mandatory health or safety standard •..• " 30 U.S.C. § 814(a) (emphasis
added). Western Fuels contends that operators and miners are each
separately responsible for complying with the Act and that, pu·rsuarit to
the asserted directive of section 104(a), an operator may be cited only
for its own violations. We rejected the identical argument in Asarco.
8 FMSHRC at 1635. While we agree with Western Fuels that section 104(a)
ar.d section llO(a), 30 U.S.C. § 820(a), must be read together, what
emerges from such construction, as we held in Asarco, is the liability
without fault framework of the Act:
Section 104(a) sets forth the duties of mine
inspectors in enforcing the Act. It does not define
the scope of the operator's liability. The
liability of an operator is governed by section
llO(a), 30 U.S.C. § 820(a), which states: "The
operator of a ... mine in which a violation occurs
of a mandatory health or safety standard: .. shall
be assessed a civil penalty .... " (Emphasis added).
The occurrence of the violation is the predicate for
the operator's liability.
Id. Accord Miller Mining, supra, 713 F.2d at 491; Sewell Coal, supra,
686 F.2d at 1071; Allied Products, supra, 666 F.2d at 893. We also
demonstrated in Asarco that the legislative history of section llO(a)
and its predecessor, section 109(a)(l) of the Coal Act, 30 U.S.C.
§ 119(a)(l) (1976)(amended 1977), reflects a clear congressional intent
to establish liability without fault in both Acts. 8 FMSHRC at 1635-36.
Western Fuels next asserts that in the previous liability without
fault decisions of the Commission and courts, operator fault was always
present to some degree. Western Fuels argues that the existing case law
is thus consistent with a rule that strict liability does not obtain in
circumstances where, as here, operator fault is absent. We disagree.
The general doctrine of liability without fault recognized in the
referenced decisions has been drawn with sufficient breadth that, by its
very terms, it applies to situations in which operators are blameless.
The decisions further recognize that the blamelessness of operators in
connection with a violation is considered in evaluating operator
negligence in terms of the appropriate civil penalty assessment. 30
U.S.C. § 820(i); see also n. 2 supra. For example, in Asarco, the
operator was found liable for a violation even though the violation was
attributable to an employee's "unforeseeable and idiosyncratic" conduct
and the operator itself was not negligent in connection with the
violation. 8 FMSHRC at 1634, 1636. Similarly, in Southern Ohio Coal,
supra, it was stressed that an operator is liable for violations
attributable to even the "idiosyncratic and unpredictable" acts of its
absence in the other provisions of the Act.
Int'l U., UMWA v. FMSHRC and Island Creek Coal Co., No. 87-1136, slip
op. at 13 n. 13 (February 23, 198g).

260

rank-and-file employees (4 FMSHRC at 1462), that such rank-and-file
employee negligence is not imputable to the operator for penalty
assessment purposes (4 FMSHRC at 1463-64), and that the operator's
negligence or lack thereof in such instances must be determined by an
examination of the operator's own conduct (4 FMSHRC at 1464-65). The
holdings of these decisions and the courts of appeals' decisions cited
above cover the full range of liability/negligence circumstances,
including those in which the operator is liable for an employee's
violation but is without negligence in the context of civil penalty
assessment. Accord A.H. Smith Stone Co., 5 FMSHRC 13, 15-16 (January
1983).
Alternatively, Western Fuels asks us to approve an unforeseeable
employee misconduct exception to the principle of liability without
fault. Such an exception, however, would vitiate the underlying
principle. Simply stated, the principle of liability without fault
requires a finding of liability even in instances where the violation
resulted from unpreventable employee misconduct. As noted, Asarco
presented precisely such a situation: the operator, although itself
blamele~s, was held liable for a violation resulting from its employee's
unforeseeable and disobedient conduct in failing to comply with
supervisory directions to bar down loose ground. 8 FMSHRC at 1631-34,
1636.
Western Fuels' position in this regard is based upon a defense to
liability recognized under the Occupational Safety and Health Act of
1970; 29 U.S.C. § 651 et seg. (1982)( 11 0SHAct 11 ) . See,~·· Horne
Plumbing & Heating Co. v. OSHRC, 528 F.2d. 564, 567-71 (5th Cir. 1976).
Courts have held that the OSHAct "neither authorizes nor intends" a
strict liability standard (Horne, supra, 528 F.2d at 568), and both this
Commission and the courts have previously emphasized that liability
doctrines drawn from that statute may have no relevance under the Mine
Act's scheme of liability without fault. North American Coal Co.,
3 FMSHRC 848, 850 n.5 (April 1981) (addressing predecessor scheme of
liability without fault under Coal Act); Allied Products, 666 F.2d at
894.
In enacting the Mine Act, Congress formulated a national policy
that mine operators were in the best position to further health and
safety in the mining industry and that liability without fault would
promote the highest degree of. operator care. As a key Senate report
stated:
Thus, while miners are required to comply with
standards insofar as they are applicable to their
own actions and conduct, .•. neither the bill, nor
current law contemplates that citations and
penalties be issued against miners. Operators have
the final responsibilities for affording safe and
healthful workplaces for miners, and therefore, have
'the responsibility for developing and enforcing
through appropriate disciplinary measures, effective
safety programs that could prevent employees from
engaging in unsafe and unhealthful activity.

261

S. Rep. No. 181, 95th Cong.~ 1st. Sess. 18 (1977), reprinted in
Subcommittee on Labor, Senate Committee on Human Resources, 95th Cong.,
2d Sess. Legislative History of the Federal Mine Safety and Health Act
of 1977, at 606 (1978) (emphasis added). Any appeal to change the Mine
Act's principle of liability without fault must be directed not to the
Commission but to Congress. Cf. Council of So. Mtns. v. Martin Co. Coal
Co., 6 FMSHRC 206, 209 (Febru~y 1984), aff'd sub nom. Council of So.
Mtns. v. FMSHRC, 751 F.2d 1418 (D.C. Cir. 1985). ·
For the foregoing reasons, there is no basis for distinguishing
this case from prior decisions posing the same issue. The judge
properly found from the uncontroverted evidence that a violation of
section 75.200 was committed by a Western Fuels employee, and correctly
held that Western Fuels was liable for the violation. In considering
negligence for civil penalty purposes, the judge appropriately examined
Western Fuels' actions in determining that the operator itself was not
negligent in connection with the violation. See Asarco, supra. Thus,
the judge's decision is consistent with controlling legal principles and
is supported by substantial evidence. Accordingly, the judge's decision
is affirmed.

Do le,

262

Corf:.si~

Chairman Ford, dissenting:
One would search in vain for a more compelling set of facts than
those presented here against which to re-examine the issue of strict
operator liability for all violations under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 801 et seq. (1982)(the Mine Act).
Yet the majority, in affirming the judge'"'S<fecision, continues to hold
an absolutist view on the matter in accordance with Secretary of Labor v.
ASARCO, 8 FMSHRC 1632 (November 1986).1/ Here, as in ASARCO, I continue
to hold the view that the Mine Act does not preclude an otherwise blameless mine operator from raising a miner's unforeseeable and idiosyncratic
misconduct as an affirmative defense when contesting the Secretary's
enforcement actions. Accordingly, I respectfully dissent.
My opinion in ASARCO can be briefly summarized as follows:
(1)

The Mine Act within its four corners need not be read to
impose strict liability on mine operators;

(2)

The Mine Act can accommodate a strictly circumscribed
affirmative defense based upon unforeseen, idiosyncratic
misconduct by a non-managerial employee;

(3)

Courts have recognized such an affirmative defense under
the analogous Occupational Safety and Health Act of 1970,
29 U.S. C. 651 ~ seq.;

(4)

Recognition of such a defense best advances the fundamental
purposes of the Mine Act.

The rationales underlying these four propositions should not have to
be fully rehearsed here. However, given the factual circumstances of this
case, the persuasiveness of the legal and policy arguments advanced by
the Petitioner, and the majority's continuing reluctance to address the
adverse policy implications of its decisions both here and in ASARCO, some
expansion of the points in my ASARCO dissent is warranted.
I.

The Strict Liability Doctrine

Section llO(a) continues to be a thin reed on which to rest the
liability without fault theory. If the Mine Act is to have any organic
logic, section llO(a) must be woven into the context provided by sections
104 and 105. The sense and purpose of section llO(a) is to establish
mandatory rather than discretionary civil penalties for violations of
the Mine Act or the mandatory standards promulgated thereto. Section
llO(a) is not reached, however, until the prerequisites of sections 104
(citing of the operator) and 105 (proving a violation) have been satisfied.
Specifically, the entire enforcement scheme does not engage until the
following initial condition is met:
1/
It is encouraging that my colleague in dissent has departed from the
ASARCO majority to the extent of his narrowly drawn exception to the
strict liability doctrine. The factual circumstances of this case, in
my'view, compel no other result.

263

If upon inspection or investigation, the Secretary or
his aut~orized representative believes that an operator of
a coal or other mine ••• has violated this Act, or any
mandatory safety standard ••• he shall ••• issue a citation
to the operator. 30 U.S.C. 814(a). [Emphasis added.] J;/
In short, a violative act of commission or omission by the operator
is necessary before the sanctions of section llO(a) come into play. To
hold that strict liability reposes in section llO(a) so that any and all
violations can be charged against the operator would render section 104(a)
a superfluous nullity. This, despite the fundamental principle that
statutes must be read to give effect to every clause. United States v.
Menasche, 348 U.S. 528, 538, 99 L.Ed. 615, 624 (1955).
The traditional and immutable position with respect to strict operator
liability has been strongly influenced by a single reference in the legislative history of the Federal Coal Mine Health and Safety Act of 1969,
30 U.S.C. 801 et seq. (1970). Indeed the lone reference in question has
assumed an almost talismanic power. It reads:
Since the conference agreement provides for violation
of the standards against the operator without regard
to fault, the conference substitute also provides that
the Secretary shall apply the more appropriate negligence test in determining the amount of the penalty,
recognizing that the operator has a high degree of
care to insure the health and safety of persons in
the mine. 3/
2/
The case most often relied upon for the proposition that the Mine Act
is unconditionally a strict operator liability statute is Allied Products
Co. v. FMSHRC, 666 F.2d 890 (5th Cir., Unit B 1982). With all due respect,
however, I question the premise upon which the 5th Circuit's ultimate
holding is based. Although section 104(a) requires that an MSHA inspector
believe that "an operator ... has violated" the Act or the standards, the
Court paraphrased the section as follows: "any failure to comply with
the regulations shall result in issuance of a citation to the operator."
Id. at 893. The Court's restatement of section 104(a) appears to be
fundamentally at odds with the text itself, but the discrepancy nevertheless explains the Court's arrival at its oft-quoted conclusion: "There
are no exceptions for fault, only harsher penalties for willful violations."
Id.
3/
Senate Subcommittee on Labor, Committee on Labor and Public Welfare,
94th Cong., 1st Sess., Legislative History of the Federal Coal Mine Health
and'Safety Act of 1969, Part I at 1515 (1975). (Leg. Hist., 1969 Act). The
statement is often cited to the "Conference Report" on the 1969 Act, but
it is actually from the "Statement of the Managers on the Part of the House."
It is reliable only as an indicator of what the House conferees thought the
Conference agreement to provide and thought the Senate conferees' positions
to be on the final version of the legislation. There is, in fact, no written
"conference agreement" to which the Commission and the courts can refer to
divine Congressional intent and consensus.

264

A search of the legislative history of the 1969 Act, however, reveals
no basis or antecedent for the above statement. The terms "strict liability",
"vicarious liability" or "liability without regard to fault" were simply not
raised in the various committee reports or the extensive floor debates
throughout the 94th Congress. Indeed, a review of the relevant history
provides evidence of a contrary Congressional view.
For instance, the original vehicle for reform of the 1952 Federal
Coal Mine Safety Act was S.2917, introduced on September 17, 1969, by
Senator Williams of New Jersey. Leg. Hist., 1969 Act, p. 3. The bill
provided discretionary civil penalties for violations of the Act or
the mandatory standa,rds. Id., p. 103. During floor debate oil the bill
Senator Metcalf successfully introduced an amendment to make civil
penalties mandatory. Id., p. 677. Later in the floor debate Senator
Byrd of West Virginia offered a further amendment to the civil penalty
section that, in effect, added as a criterion for assessing civil
penalties "whether the operator was at fault." The colloquy surrounding
the adoption of the Byrd amendment, however, indicates that Senators
Byrd and Metcalf acknowledged circumstances when operators should not
be held liable for the independent acts of rank-and-file miners:
Mr. Byrd of West Virginia: Mr. President, under section
308 [ultimately section 109 of the 1969 Act], an operator of a coal mine shall be penalized for violations
occurring of a mandatory health and safety standard.
I am not opposed to penalties being assessed against
operators where the operators are clearly at fault.
The language in my amendment would merely require
that, before a penalty could be applied, there be
a finding that the operator was indeed at fault.
Senator Williams of New Jersey: Mr. President, we
have thoroughly discussed this amendment with the
Senator from West Virginia. It would require the
Secretary to consider the fault of the operator,
or his lack of fault, in determining the amount of
the penalty. It is acceptable to us .•..
Senator Metcalf: Mr. President, I was the author
of an amendment that required a mandatory penalty
and, of course, I do not want a mandatory penalty
to be placed upon a coal operator who is penalized
for the inadvertent act of a coal employee. I
want only a penalty for the coal operator who is
responsible for his own actions. Many times it is
the inadvertence of an employee which is responsihle
for a violation, and I feel that the Sena.tor from
West Virginia has made a contribution. _!i., pp.
728-729. 4/
4/
Senator Williams' statement, while supporting the majority's view
that lack of operator fault can only mitigate the size of the civil
penalty, mischaracterizes Senator Byrd's intent. Indeed, in the context
of the Byrd/Metcalf exchange it is a non sequitur.

265

Only after passage of S. 2917 (October 2, 1969) was a companion bill,
H.R. 13950, reported to the floor of the House (October 13, 1969). H.R.
13950 required mandatory civil penalties but did not contain Senator
Byrd's language ("whether the operator was at fault") as adopted by the
Senate. Thereafter, the legislative history is silent on the fault issue
until the "Statement of the House Managers" quoted above. 2_/
In sum neither the Mine Act, its predecessor statute, nor the legislative history conclusively establishes strict operator liability without
regard to fault. To the extent that Commission and court precedents hold
otherwise, I respectfully contend they are mistaken. Furthermore, with the
exception of ASARCO, those precedents involved issues that need not have
been resolved by resort to a theory of strict liability.
A careful review of the factual circumstances of prior cases reveals
that the operator was liable for other related violations 6/; the violative
conduct was committed by a managerial employee whose actions as an agent
were directly attributable to the operator 7/; or clear evidence existed
that the operator knew of the non-managerial employee's violation but
acquiesced in it. 8/ In short, liability in these "strict liability"
cases could have been found on the basis of demonstrable operator fault.
5/
It should be noted, however, that on other occasions throughout the
legislative history civil penalties are discussed in terms of being
assessed against "violators" or "operators found in violation" rather
than against operators within whose mines violations occur. See e.g.,
Leg. Hist. 1969 Act at 1108, 1110, and 1594.
-- -6/
Allied Products Co. v. FMSHRC, 666 F.2d 890 (5th Cir., Unit B 1982)
(faulty hydraulic system, lack of roll-over protection and inadequate
berm were the fault of the operator and contributed to the accident
involving an employee who disregarded orders not to use the equipment
at issue); American Materials Corp., 4 FMSHRC 415 (March 1981)(duty to
post or barricade areas over which high voltage lines pass is exclusively
the operator's); Kerr-McGee Corp., 3 FMSHRC 2496 (November 198l)(failure
of operator to distinguish between safety lines and other materials handling
cables contributed to employee's unsafe use of inappropriate equipment).
7/
Sewell Coal Co. v. FMSHRC, 686 F.2d 1066 (4th Cir. 1982)(all employees
involved in the violations were management personnel); Southern Ohio Coal
Co., 4 FMSHRC 1459 (August 1982)(foreman failed to supervise and monitor
complicated pillar recovery procedure); Ace Drilling Coal Co., Inc., 2
FMSHRC 790 (April 1980) aff'd without opinion, 642 F.2d 440 (3rd Cir.
198l)(foreman's negligent and violative acts are attributable to the
mine operator even if the foreman's conduct is arguably unforseeable).
8/
El Paso Rock Quarries, Inc., 3 FMSHRC 35 (January 198l)(not strictly
an employee misconduct case; nevertheless, operator liable for violations
caused by customer's truck drivers since operator allowed trucks without
back-up alarms on the property).

266

Missing from the usual recital of precedents is a Commission case that
indicates a chink in the strict liability wall. In Secretary v. Southwestern
Illinois Coal Corp., 5 FMSHRC 1672 (October 1983), the Commission held that
the precise wording of a safety standard may preclude operator liability if
failure to comply is attributed to an employee's "disobedience or negligence.,;
Id. p. 1675. The standard in question provided inter alia that "Each
employee ••. shall be required to wear ..• safety belts and lines where
there is danger of falling." 30 C.F.R. 77.1710(g). The inspector cited
the operator when he found an employee not wearing a safety belt and line
even though the inspector believed there was a falling hazard. Determining
that "shall be required to wear" did not mean that safety equipment "shall
be worn" a majority of the Commission went on to hold that an operator could
escape liability so long as he demonstrated that he had required the equipment to be worn through "sufficiently specific and diligent enforcement."
Id. at p. 1676.
Two dissenting members took the majority to task for what the dissentets considered a Commission-created exception to the liability without
fault doctrine, particularly since the Secretary had argued for application
of the doctrine to his own regulation. Id. pp. 1679-1684. The Southwestern
Illinois decision is obviously sound but nevertheless inconsistent with the
majority holding here. If, indeed, Congress established an absolute doctrine
of strict operator liability then the doctrine applies equally to the Secretary as rulemaker and the Commission as adjudicator. If the Commission is
constrained here from carving out an affirmative defense based on employee
disobedience, then the Secretary is constrained from promulgating, and the
Commission from interpreting standards so as to accomplish the same thing,
to wit: 30 C.F.R. 77.1710(g).
II.

Affirmative Defense Based on Employee Misconduct

As determined above, in spite of conventional but unexamined "wisdom",
the Mine Act can accommodate an operator's affirmative defense against a
citation based upon unforeseen or idiosyncratic misconduct on the part of
a miner. To assure that such a defense is not seized upon by the operator
as a means of shirking his responsibilities under the Act, there must be
strictly circumscribed criteria by which the defense is to be judged:

the adequacy of the· operator's general safety training
program;
the adequacy of the miner's specific job assignment safety
training;
the adequacy of the level of supervisory control;
the operator's system of discipline and sanctions imposed
.on miners who contravene the operator's safety rules;
the consistency in applying those sanctions; and,
where determinable, the miner's knowledge that he or she
has deliberately and knowingly contravened the operator's
safety requirements.

267

Obviously, operator culpability either with respect to related violations
or acquiescence in the miner's violative conduct would preclude raising the
defense. Furthermore, since the Commission has consistently and correctly
attributed the negligent or violative conduct of managerial employees to the
operator, the affirmative defense would only be appropriate in cases involving
non-managerial employees. See Secretary v. Wilmot Mining Co., 9 FMSHRC 684
(April 1987).
Given these strictures, I do not see the establishment of the
affirmative defense as opening the floodgates to spurious claims by mine
operators that the violations charged were caused solely by unforeseeable
employee misconduct. Secretary's brief p. 24. 9/ I do, however, see a
means by which an otherwise blameless operator with a comprehensive safety
and training program can defend against unwarranted enforcement actions such
as have been taken in this case.
Lastly, as to whether this Commission can judicially fashion an
affirmative defense not specifically provided for in the Mine Act, there
is persuasive precedent. In a firm line of cases beginning with Secretary
on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980)
rev'd on other grounds sub. nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3rd Cir. 1981) and Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (April 1981), the Commission has held that an
operator can affirmatively defend against a prima f acia case of discrimination
under section 105(c) of the Mine Act, 30 U.S.C. 115(c), by proving by a preponderance of the evidence that although the adverse action complained of was
motivated in part by the miner's statutorily protected safety activities, the
operator was also motivated by unprotected activities and that the adverse
action would have been taken in any event for the unprotected activity alone.
2 FMSHRC 27992800. This Commission-fashioned defense is not derived from
section 105(c) nor from the legislative history of that section, but it is a
thoroughly sound means of evaluating discrimination complaints in an equitable
manner consistent with the Mine Act's purposes. Likewise, here, equally sound
policy reasons exist for fashioning an affirmative defense to citations based
on unfor~seeable misconduct by miners, provided, of course, that the defense
is subjected to the strict scrutiny outlined above. I!}_/
III. Unforeseeable Employee Misconduct:

The OSHA Model

Established policy under the Occupational Safety and Health Act of
1970, 29 U.S.C. 651 et seq. (1985 and Supp. 1987)(0SHAct) provides the most
persuasive analogous-Context within which unforeseeable employee misconduct
is recognized as an affirmative defense to Secretarial enforcement actions.
Both the OSHA statute and the Mine Act require literal employer compliance
9/
For instance, careful review of the precedents establishing the strict
liability doctrine (discussed at p. 11, above) indicates that with the
exception of ASARCO, the affirmative defense of unforeseeable or idiosyncratic employee misconduct would not.have been available.
10/ It is puzzling that both the majority and the Secretary appear to
acknowledge the merit of the affirmative defense of employee misconduct
(Footnote continued)

268

with mandatory safety and health standards. _!l/ Both statutes emphasize preinspection rath.er than post-accident compliance as the means for protecting
workers from safety and health hazards. Most significantly, both statutes
impose compliance responsibilities on employees/miners. Compare: 29 U.S.C.
654(b) and 30 U.S.C. 80l(g). As the Secretary points out, miners are not
subject to civil penalties under the Mine Act (except as provided in section
llO(g)). Secretary's brief, p. 20. As the Secretary might also have
indicated, employees are not subject to civil penalties under the OSHAct
either.
Yet, even in the absence of an explicit statutory provision for the
unforeseeable employee misconduct defense, the Occupational Safety and
Health Review Commission and reviewing courts have uniformly adopted the
Fn. 10/ continued
in circumstances such as those presented here while still rejecting it as
unauthorized by the Mine Act. "[I]t would be error to create an unforeseeable employee misconduct defense under the Act even if that defense could/
have a 'salutary impact on the degree of excellence of employer's training _,
programs."' Secretary's brief in ASARCO v. Secretary pet. for review, No.
86-2765 (10th Cir., December 3, 1986) at p. 23. Constrained by what it considers to be unequivocal precedents, the majority opines that Petitioner's
sole recourse is to Congress. Majority slip opinion at p. 7. Under section
113 of the Mine Act, 30 U.S.C. 823, however, this independent Commission is
authorized - indeed expressly encouraged - to decide "substantial" or "novel"
questions of policy. The principal author of the Senate version of the Mine
Act stressed this policy-making role during the confirmation hearings for
initial members of the Commission: "It is our hope that ••• the Commission .••
will develop a uniform and comprehensive interpretation of the law [and] will
provide guidance to the Secretary in enforcing the act and to the mining
industry and miners in appreciating their responsibilities under the law."
Nomination Hearing, Members of the Federal Mine Safety and Health Review Commission, Before the Senate Committee on Human Resources, 95th Cong., 2d Sess.,
August 24, 1978, p. 1.
It seems obvious that, without doing violence to the Mine Act, the
Commission in its policy-making role can and should decide between a
policy of questionable merit (liability without regard to fault) and
one of salutary impact (the affirmative defense based upon proof of a
rigorous safety program).

11/

Indeed, the presence of the "general duty" clause in the OSHAct,

29 U.S.C. 654(a)(l), and the lack of same in the Mine Act suggests an
even stricter standard of accountability for OSHA-governed employers.
By its terms the clause places employers "under a duty to the greatest
extent possible, to provide a workplace free of hazards" even where those
hazards are not addressed by sp~cific mandatory standards. Congress,
however, explicity declined to incorporate a general duty clause in the
Mine Act. Senate Committee on Labor, Committee on Human Resources,
95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977 at 1316-17 (1978).

269

defense on firm policy and legal grounds. The most forceful expression
of the need for and appropriateness of the defense was stated in the Ninth
Circuit's opinion in Brennan v. OSHRC, 511 F.2d 1139, 1145 (1985):
Fundamental fairness would require that one charged
with and penalized for violation be shown to have
caused, or at least to have knowingly acquiesced in,
that violation. Under our legal system, to date at
least, no man is held accountable, or subject to fine,
for the totally independent act of another. l.J_/
In contrast, the Secretary's reliance by analogy on federal food and
drug legislation is misplaced. First of all, such statutes are aimed at
protecting an unsuspecting public from tainted or injurious food and drug
products, whereas the Mine Act is aimed at protecting miners who are presumed to have been trained to recognize and avoid hazards by reason of
the mandatory training requirements of section 115, 30 U.S.C. 825. J.2.I
Secondly, the Secretary's citation to United States v. Park, 421 U.S.
658, 95 S.Ct. 1903 (1975) proves too much. The ultimate issue in Park was
whether a corporate officer of an admittedly guilty corporation could be
held criminally liable for violations of sanitation standards at a food
warehouse. Park had argued that the trial court's jury instructions
erroneously suggested that he could be found criminally liable strictly
by reason of his status as corporate president and even though he did not
personally participate in the violations. The Supreme Court upheld the
instructions on the basis that Park bore a "responsible relationship" to
or had a "responsible share" in the violations. Id. at 672. The Court
was no doubt strongly influenced by evidence that-Park had been previously
advised by letter of similar violations at another warehouse in the same
region. Id. at 661. In any event, the Court acknowledged that evidence of
powerlessness to prevent or correct the violation could be raised defensively
at trial. Id. at 673, citing United States v. Wiesenfeld Warehouse Co.,
376 U.S. 86~91 84 S.Ct. 559 (1964).
Here, the Secretary seeks to hold Western Fuels-Utah liable strictly
by reason of its status as operator even though Western Fuels has amply
demonstrated that it took affirmative measures to conform its conduct to
the level expected by the Supreme Court in Park. Furthermore, the record
here clearly indicates that Petitioner was powerless to prevent the unforeseeable and aberrant conduct of the miner.
12/ Accord: Penn Power and Light Co. v. OSHRC, 737 F.2d 350 (3d Cir.
1984); Daniel Int'l Corp. v. OSHRC, 683 F.2d 361 (11th Cir. 1982);
National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).
13/ It should be emphasized that while the Mine Act mandates comprehensive
miner training by operators, the OSHAct does not require that comparable
training programs be established by employers. Compare: 30 U.S.C. 825 and
29 U.S.C. 670. This distinction further underscores the appropriateness of
the affirmative defense in the Mine Act context provided the operator can
establish full compliance with section 115.

270

IV.

Conclusion

Applying the above principles to the circumstances of this case, I
would vacate the citation at issue. In arriving at his decision within
the constraints of ASARCO the judge below made the following pertinent
findings of fact:
• Western Fuels-Utah had established an adequate safety training
program supplemented by a disciplinary program for employee violations of mandatory standards •
• Mullins, decedent, "violated" standard 75.200 by walking out
under unsupported roof on his own and in disobedience of three
direct orders from his foreman •
• Mullins' conduct was "unforeseeable" and motivated by "some
reason perhaps known only to himself."
The record further indicates that Mullins was an experienced miner,
that he was familiar with the roof control plan and the prohibitions
against going under unsupported roof, and that he participated in a
safety meeting on roof hazards and control three hours before the fatal
accident.
Measured against the criteria set forth above at p. 12; Western
Fuels-Utah has convincingly established an affirmative defense of unforeseeable idiosyncratic misconduct on the part of the miner.
It remains to stress once again the fundamental policy imperative that
justifies the adoption of the affirmative defense. In section 2 of the Act,
Congress clearly acknowledged that health and safety in this nation's mines
could only be achieved through rigorous attention to safety, health and
training programs jointly supported and advanced by operators and miners:
[T]he Committee recognizes that creation and maintenance
of a safe and healthful working environment is not the
task of the operator alone. If the purposes of this
legislation are to be achieved, the effort must be a
joint one, involving the miner and his representative
as well as the operator.
Leg. Hist. 1977 Act at p. 606.
Recognizing that operators are ultimately responsible for maintaining
safe and healthful mine conditions, for establishing and enforcing safe
mining practices, and for ensuring that miners are adequately trained
to recognize and avoid mine hazards, the Mine Act and its purposes can
still accommodate the narrowly drawn affirmative defense of unforeseeable
employee misconduct. In fact, adoption of the defense by this Commission
would provide operators with a powerful incentive to evaluate and improve
overall safety programs and would hasten the day when the fundamental purposes of section 2 are fully realized.

271

I would, therefore, reverse the judge's decision arid vacate the
cita.tion.

272

Commissioner Nelson, dissenting:
While I agree that the Mine Act generally provides for
liability wtth6ut regard to fault, it is my view that this precept should
not be stretched to cover the extraordinary facts of this case -- facts
which clearly establish unpreventable employee misconduct. Accordingly,
I take the position that my colleagues constituting the majority have
erred in failing to recognize and accord proper weight to this narrow
exception to the liability without regard to fault doctrine.
The majority opinion correctly acknowledges that in Asarco
Incorporated
Northwest Mining Department, 8 FMSHRC 1632 (November
1986), this Commission reaffirmed that under the Mine Act a mine operator
may be held liable for a violation even though the operator was not at
fault.
I joined the majority in the Asarco opinion because I believed,
and still do, that Congress enacted a liability without regard to fault
scheme in the Mine Act as an incentive for mine operators to comply with
the'Act's safety and health requirements. My position in this case is
consistent with my position in Asarco as it is only in the present case
that the issue of unpreventable employee misconduct is addressed squarely
by the Commission.
In that reg~rd, the majority misreads Asarco (to the
extent it suggests that in Asarco the Commission rejected the
unpreventable employee misconduct defense) in stating that there "the
operator was found liable for a violation even though the violation was
attributable to an employee's 'unforeseeable and idiosyncratic' conduct
and the operator itself was not negligent in connection with the
violation." Slip op. at 5. While the administrative law judge in Asarco
found the miner's decision to begin drilling the unstable face to be
unforeseeable and idiosyncratic, that finding was treated by the
Commission as collateral background material.
8 FMSHRC at 1634. When
the Commission got down to the business of deciding Asarco, our focus was
upon the liability without regard to fault structure of the Mine Act and
not upon whether there exists a narrow exception to that doctrine -i.e., the unpreventable employee misconduct defense.
See 8 FMSHRC at
1634-36.
In fact, other than one reference to the administrative law
judge's use of "unforeseeable and idiosyncratic" conduct, that term is
notably absent in our Asarco decision. The majority also cites Southern
Ohio Coal Company, 4 FMS~RC at 1462, incorrectly for the proposition that
the Commission "stressed"
that an operator is liable for the
"idiosyncratic and unpredictable" acts of its employees.
Slip op. at
5-6.
Although the Commission rejected the operator's argument in
Southern Ohio that such employee conduct relieves it of liability for
Mine Act violations, the Commission did so noting only "It is
well-settled that under the Mine Act, an operator is liable without fault
for violations of the Act and mandatory standards committed by its
employees."
4 FMSHRC at 1462.
The unpreventable employee misconduct
defense received no substantive treatment by the Commission in Southern
Ohio and, to repeat, is faced squarely for the first time in this case.

273

Generally speaking, by making a mine operator responsible for a
violation, regardless of fault, Congress sought to instill in the mine
operators· a keen awareness not only for identifying hazards already
present in the mine, but also for anticipating hazards which might occur
sometime in the future.
Congress, however, did not place the burden for
mine safety and health upon the operators alone. In section 2(e) of the
Mine Act, Congress provided that "operators ... with the assistance of
miners have the primary responsibility to prevent the existence of
[unsafe and unhealthful] conditions and practices in [the] mines." 30
U.S.C. Sec. 80l(e) (emphasis added).
Nev~rtheless,
despite this safety and health partnership
between the miners and the operators, given the circumstances in Asarco
we noted again that Congress chose to place the ultimate responsibility
for a violation on the mine operator, even if that operator appeared to
be free of negligence.
This assignment of responsibility makes good
sense because it is the operator who controls the daily activities at the
mine and it is the operator who is in the best position to correct
existing hazards and to prevent the occurrence of future hazards. It
does not make good sense, however, and I believe it was not intended by
Congress, to extend the liability without regard to fault doctrine to a
situation where the mine operator operated its mine in the safe and
responsible manner expected by Congress and where
but for an
unpreventable and intentional act by a disobedient employee -- there
would have been no violation.
Such an inflexible extension of the
liability without regard to fault doctrine serves no useful safety and
health purpose. It serves only to punish the safety and health conscious
operator who, no matter how encompassing its precautionary efforts may
have been, could not have prevented the violative event caused by an
employee unforeseeably.

The facts of the present case illustrate this point well.
Here, the administrative law judge found that "the evidence in this
record is undisputed that the decedent, Mullens, walked out under the
unsupported roof on this own, contrary to the direct orders of his
supervisor." 9 FMSHRC at 323 (emphasis added). The judge also found that
Mr. Mullens' actions in proceeding under the unsupported roof were not
foreseeab'le and that Mullens was supervised properly. Id. In addition,
the judge stated, "I have carefully examined the record concerning the
operator's training program and its history of disciplining its employees
for violations of the mandatory standard at issue herein and find both to
be adequate." 9 FMSHRC at 324.
The judge concluded that "it was Mr.
Mullens' own negligence, not that of the operator, which caused his
death." Id.
In sum, it is undisputed that Mullens proceeded under the
unsupported roof immediately after his supervisor ordered him not to do
so.
Mullens' actions were contrary not only to his supervisor's
instructions, but they also were contrary to his general safety training
and company policy as well.

274

Inasmuch as Western Fuels-Utah could not have prevented the
violation that occurred in this case and inasmuch as section 2(e) of the
Mine Act places· a part of the responsibility for safety and health on the
shoulders of the miners, I am convinced that Congress did not intend for
the liability without regard to fault doctrine to apply to this
exceptional situation. Moreover, I find little comfort in the Commission
majority's holding that Western Fuels-Utah's lack of negligence was a
matter to be considered more appropriately at the penalty assessment
stage.
If a mine operator has done all that it reasonably could be
expected to do to ensure the safety and health of its miners, and i f a
violation occurs only as the result of unpreventable employee misconduct,
reducing the amount of the penalty to be levied upon an otherwise
blameless operator does not undo the injustice of the operator's having
been found liable for the violation in the first instance.
Accordingly, for these reasons I respectfully dissent.

Distribution
Linda L. Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Karl F. Anuta, Esq.
2120 13th Street
P.O. Box 1001
Boulder, Colorado 80306
Admininstrative Law Judge Roy Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

275

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

March 29, 1988

EMERY MINING CORPORATION
Docket No. WEST 86-126-R

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

BEFORE:

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

DECISION
I

BY:

Backley and Lastowka, Commissioners !/

This contest proceeding brought by Emery Mining Corporation
("Emery") under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seg. (1982) ("Mine Act" or "Act"), raises issues
involving the extent of the walkaround rights granted miners'

!/

A majority of the Commission joins in resolution of each issue
presented by this case. The Chairman and all Commissioners join in
section II.A. of this decision (affirming the judge's holding that a
nonemployee may accompany an inspector as a miners' representative
during a physical inspection of a mine). Commissioners Backley, Doyle,
Lastowka and Nelson join in section II.B. (affirming the judge's holding
that the failure of a nonemployee miners' representative to file the
identifying information required by 30 C.F.R. Part 40 does not by itself
permit the mine operator to deny that representative entry to its mine);
Chairman Ford files a dissenting opinion as to that issue. Chairman
Ford and Commissioners Backley and Lastowka join in section II.C.
(reversing the judge's holding that the mine operator could not require
the nonemployee miners' representative to sign a waiver of liability as
a condition of entry to its mines); Commissioners Doyle and Nelson file
a dissenting opinion as to that issue.

276

representatives by section 103(f) of the Mine Act. ~/ Commission
Administrative Law Judge John J. Morris held that: (1) under section
103(f) of the Act a nonemployee representative of miners may accompany
an inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA") during a physical inspection of the mine, i.e.,
participate in walkaround; (2) failure of a nonemployee miners'
representative to have filed the identifying information required by 30
C.F.R. Part 40 ("Part 40") does not, by itself, permit the operator to
refuse the representative entry to its mine for purposes of exercising
section 103(f) walkaround rights; 11 and (3) Emery could not require
~/

The term "walkaround" is used for the sake of convenience in
reference to the rights granted miners' representatives under section
103(f) of the Mine Act, which provides:
[1] Subject to regulations issued by the
Secretary, a representative of the operator and a
representative authorized by his miners shall be
given an opportunity to accompany the Secretary or
his authorized representative during the physical
inspection of any coal or other mine made pursuant
to the provisions of subsection (a) of this section,
for the purpose of aiding such inspection and to
participate in pre- or post-inspection conferences
held at the mine. [2] Where there is no authorized
miner representative, the Secretary or his
authorized representative shall consult with a
reasonable number of miners concerning matters of
health and safety in such mine. [3] Such
representative of miners who is also an employee of
the operator shall suffer no loss of pay during the
period of his participation in the inspection made
under this subsection. [4] To the extent that the
Secretary or authorized representative of the
Secretary determines that more than one
representative from each party would further aid the
inspection, he can permit each party to have an
equal number of such additional representatives.
[5] However, only one such representative of miners
who is ari employee of the operator shall be entitled
to suffer no loss of pay during the period of such
participation under the provisions of this
subsection. [6] Compliance with this subsection
shall not be a jurisdictional prerequisite to the
enforcement of any provision of this [Act].
30 U.S.C. § 813(f)(sentence numbers added).

11

30 C.F.R. §§ 40.1-.3 provides in relevant part:
§40.1 Definitions. As used in this Part 40:
(b) "Representative of miners" means: (1) Any
person or organization which represents two or more

277

miners at a coal or other mine for the purposes of
the Act, and (2) "Representatives authorized by the
miners", "miners or their representative",
"authorized miner representative",· and other similar
terms as they appear in the Act.
§40.2 Requirements. (a) A representative of
miners shall file with the Mine Safety and Health
Administration District Manager for the district in
which the mine is located the information required
by §40.3 of this part. Concurrently, a copy of this
inrormation shall be provided to the operator of the
mine by the representative of miners. (b) Miners or
their representative organization may appoint or
designate different persons to represent them under
various sections of the [A]ct relating to
representatives of miners. (c) All information
filed pursuant to this part shall be maintained by
the appropriate Mine Safety and Health
Administration District Off ice and shall be made
available for public inspection.
§ 40.3

Filing procedures.

(a) The following information shall be filed by a
representative of miners with the appropriate
District Manager, with copies to the operators of
the affected mines. This information shall be kept
current:
(1) The name, address, and telephone number of the
representative of miners. If the representative is
an organization, the name, address, and telephone
number of the organization and the title of the
official or position, who is to serve as the
representative and his or her telephone number.
(2) The name and address of the operator of the
mine where the represented miners work and the name,
address, and Mine Safety and Health Administration
identification number, if known; of the mine.
(3) A copy of the document evidencing the
designation of the representative of miners.
(4) A statement that the person or position named
as the representative of miners is the
representative for all purposes of the Act; or if
the representative's authority is limited, a
statement of the limitation.
(5) The names, addresses, and telephone numbers,
of any representative to serve in his absence.
(6) A statement that copies of all information
filed pursuant to this section have been delivered
to the operator of the affected mine, prior to or
concurrently with the filing of this statement.
(7) A statement certifying that all information

that a nonemployee miners' representative sign a waiver of liability as
a precondition to entering mine property. 8 FMSHRC 1192 (August 1986)
(ALJ).
For the reasons explained below, we affirm the judge's conclusion
that walkaround rights under section 103(f) extend to nonemployee
representatives of miners. Adhering to the Commission's decision in
Consolidation Coal Co., 3 FMSHRC 617 (March 1981), we also affirm the
judge's determination that an operator may not refuse a miner's
representative access to a mine for walkaround purposes solely because
the representative has not filed identifying information under Part 40.
However, in reversal of the judge, we hold that an operator may require
a nonemployee representative to sign a nondiscriminatory waiver of
liability required by the operator of all nonemployee visitors to its
mine. !:_/
I.

Facts and Procedural History
The relevant events in this case occurred on April 15, 1986, at
the Deer Creek Mine, an underground coal mine located in Utah. At the
time, the mine was owned by Utah Power and Light Company ("UP&L") but
was managed and operated by Emery. (Effective April 27, 1986, the
operation of Deer Creek and all other UP&L mines managed by Emery
·transferred to UP&L.) The International Union, United Mine Workers of
America ( 11 UMWA 11 ) , represented miners at Deer Creek and at the other UP&L
mines operated by Emery. On April 15, 1986, Emery and the UMWA were
parties to a collective bargaining agreement applicable to the Deer
Creek Mine, the Bituminous Coal Wage Agreement of 1984 ("the Wage
Agreement").
On the morning of April 15, 1986, Vern Boston, an MSHA Inspector,
arrived at the mine to conduct a regular quarterly inspection. 30
U.S.C. § 813(a). At the mine gate the inspector was met by Thomas
filed is true and correct followed by the signature
of the representative of miners.
(b) The representative of miners shall be
responsible for ensuring that the appropriate
District Manager and operator have received all of
the information required by this part and informing
such District Manager and operator of any subsequent
changes in the information.
~/

This case is one of four related matters. The other three cases
are all captioned as Utah Power & Light Company, substituted for Emery
Mining Corp. v. Secretary of Labor, Mine Safety and Health
Administration (MSHA), & UMWA (Docket Nos. WEST 86-131-R; 86-140-R; &
86-141-R). The parties agreed that the ruling in this proceeding would
control the disposition of the remaining three cases. 8 FMSHRC 1210,
1212, 1214 (August 1987)(ALJ). Our consolidated summary opinion in
those three cases, consistent with the present decision, is also issued
this date.

279

Rabbitt, a UMWA International Health and Safety Representative. The
issues before us center around Rabbitt's attempt that day to accompany
Inspector Boston on walkaround as an additional miners'
representative. 21
Rabbitt testified that approximately one week before his visit to
the Deer Creek mine, Frank Fitzek, chairman of the UMWA's local threeperson safety committee at Deer Creek, had asked him on behalf of the
committee to look into allegations concerning "unwarrantable failure"
citations and orders (30 U.S.C. § 814(d)) being issued by MSHA during
its quarterly inspection at Deer Creek. Rabbitt had indicated that he
would visit the mine within a few weeks to assist in the inspection
process. Rabbitt further testified that he telephoned Fitzek on the
evening of April 14 to inform him that he would visit the mine the next
day. (Tr. 87-89, 125-26, 147-48.)
Rabbitt arrived at the Deer Creek mine gate at approximately
7:00 a.m. on April 15. According to Rabbitt, Fitzek appeared and told
Rabbitt that he had informed Mine Manager White that Rabbitt was going
to be at the mine that day but had stated to White that he "didn't know
exactly for what reason ..•. " Tr. 89. Fitzek told Rabbitt that White
was "quite disturbed" at the news of Rabbitt 1 s visit. Id. Fitzek then
left to begin his work at the mine. £/
At approximately 7:45 a.m., Inspector Boston arrived at the mine
gate, where Rabbitt was waiting. The inspector had not met Rabbitt
before but was aware of his position with the UMWA. Mark Larsen, a Deer
Creek employee and the third member of the local safety committee, was
scheduled to accompany Boston that day on walkaround as the miners'

21

Rabbitt's duties during his seven and one-half years employment as
an International Health and Safety Representative consisted chiefly of
investigating mine accidents. Since June 1985 he had been working in
Utah on the investigation of the disaster at Emery's nearby Wilberg
mine. Rabbitt testified that on two occasions, in January and late
February 1986, he had participated with Earl White, mine manager of Deer
Creek, ~nd with other Emery and UMWA representatives, in an underground
investigation at Deer Creek in connection with a proposed petition for
modification of a mandatory standard sought by Emery under section
lOl(c) of the Mine Act. 30 U.S.C. § 81l(c). However, prior to April
15, 1986, he had not participated in walkaround during an inspection at
Deer Creek.
6/
Fitzek did not testify at the hearing. Mine Manager White,
Emery's witness, testified,that on the morning of April 15, Fitzek
informed him of Rabbitt's visit but denied to him that the local safety
committee had "invited" Rabbitt. Tr. 175. Rabbitt testified that
employees are "[q]uite often" reluctant to indicate to management that
they have requested the presence of an International representative.
Tr. 148. Whatever the details surrounding Rabbitt's visit to Deer
Creek, the record makes clear that all three members of the local safety
committee were aware of Rabbitt's visit on April 15 and there is no
indication that they objected to his presence.

280

representative. Rabbitt asked Boston if he could accompany him as an
additional miners• representative. Boston replied that he had no
problem with Rabbitt 1 s participation but would have to check with mine
management concerning an additional management representative. (Under
the fourth sentence of section 103(f) (n.2 supra), the Secretary's
authorized representative may permit each party to have an equal number
of additional representatives.)
Inspector Boston proceeded to the mine 1 s safety office and spoke
with Dixon Peacock, an Emery safety engineer and inspection
representative. Peacock indicated that he had no objection to Rabbitt 1 s
participation in the inspection. Inspector Boston was then joined by
safety committeeman Larsen, who had just been informed by Fitzek of
Rabbitt 1 s presence. Boston and Larsen returned to the gate and asked
Rabbitt to join them. The three men then entered the mine premises
together.
While Boston was changing his clothes, Larsen and Rabbitt met with
Mine Manager White in his office. White questioned Rabbitt 1 s authority
to enter the mine pursuant to the Wage Agreement, asserting that Rabbitt
had failed to provide mine management with the 24-hour advance notice of
a visit required under the Wage Agreement. Zf Rabbitt responded that he
sought access to the mine not under the Wage Agreement, but pursuant to
section 103(f) of the Mine Act. The three then went to the safety
office where, joined by Peacock and Terry Jordan, another Emery safety
engineer, White began reading section 103(f) of the Mine Act.
When Inspector Boston arrived in the room, a discussion ensued
concerning the authority for Rabbitt 1 s presence. Boston stated that
Rabbitt had a right to participate in the inspection under section
103(f) of the Act because he was a UMWA International Representative.
While agreeing that Rabbitt was an International Representative, White
contended that under section 103(f) only a representative of miners who
is also an employee of the operator is entitled to accompany the
inspector. Tr. 32-33, 90-91, 180-82. At that point, and on that basis,
White refused to permit Rabbitt to join in the inspection.
Inspector Boston then began writing a section 104(a) citation, 30
U.S.C. § 814(a), alleging a violation of section 103(f) of the Act.
Boston told White that he would give him ten minutes to reconsider and,
if Emery persisted in its refusal to permit Rabbitt 1 s participation, he
would also issue Emery a section 104(b) order for failure to abate the
cited violation. 30 U.S.C. § 814(b); Tr. 33, 182. White went to
another office and telephoned Dave Lauriski, Emery's director of health
and safety, informing him of his actions and of the issuance of the
citation. Lauriski agreed with White's position but advised permitting
Rabbitt to participate in the inspection rather than risk issuance of a
section 104(b) withdrawal order. Tr. 183. White returned and told
Boston that he would abate the.alleged violation by allowing Rabbitt to
accompany the inspection party, and Boston terminated the citation. Tr.

lf

No issue concerning advance notice under the Wage Agreement is
involved in this proceeding.

281

33, 39-40, 184.
During White's telephone conversation with Lauriski, an additional
subject arose concerning whether Rabbitt had signed Emery's waiver of
liability form, a procedure that Emery required of nonemployee visitors
to all of its mines, including Deer Creek. ~/ Before returning to the
safety office, White telephoned the guard's shack at the mine entrance
and learned that Rabbitt had not signed a waiver. After Boston
terminated the initial citation, White stated that Rabbitt would have to
sign a waiver before proceeding underground. Tr. 33, 39··41, 184-85.
When a waiver form was produced, Rabbitt refused to sign it. Boston
telephoned his supervisor for guidance, and was informed that Rabbitt
could not be required to sign such a form. Following further
discussion, White refused to allow Rabbitt to join the inspection party
unless the form was signed. Boston then added a second alleged
violation of section 103(f) to the original citation. White finally
agreed to Rabbitt's participation and the citation was terminated.
Emery's representatives raised no objection on that day to Rabbitt's
participation based on the UMWA's failure to designate Rabbitt in its
Part 40 filing that identified miners' representatives for the Deer
Creek Mine.
The inspection party, consisting of the inspector, miners'
representatives Larsen and Rabbitt, and Emery representatives Jordan and
Peacock proceeded underground. During the inspection Rabbitt brought to
Inspector Boston's attention a condition that resulted in the issuance
of a citation for an alleged violation of Emery's roof control plan.
Tr. 94.
'

~/

On March 21, 1986, Emery instttuted a waiver of liability policy
requiring all nonemployee visitors to sign a waiver as a condition of
entry to mine property. The Release and Waiver form, which includes a
hazard check list, provides in pertinent part:
The undersigned, in consideration of being allowed
to come upon the
mine property
(insert name of mine), hereby forever releases,
discharges and waives as to Emery Mining Corporation
("Emery"), any and all claims, rights or causes of
action that the undersigned now has or may hereafter
acquire against Emery on account of any damages
sustained or injuries suffered, presently or
hereafter, while present upon or within the mine
property. The undersigned further agrees to hold
Emery harmless on account of any and all liability
which may attach to Emery on account of damages
sustained or injuries suffered by the undersigned
while upon or within the mine property. All
references to Emery shall include its officers
directors, shareholders, employees and agents.
Emery Exh. 3.

282

On April 17, 1986, Emery filed a notice of contest pursuant to
section 105(d) of the Mine Act, 30 U.S.C. § 815(d), challenging the
alleged violation of section 103(f). On April 24, 1986, Judge Morris
granted the UMWA's motion to intervene, and the hearing was held on May
14, 1986.
During the hearing, a copy of the "Miners' Representation
Notification" form submitted for the Deer Creek Mine to the MSHA
District Manager, pursuant to Part 40, was received into evidence.
Emery Exh. 7. Section A of the form lists Frank Fitzek, safety
chairman, as the "Selected Representative of Miners," with his home
address and telephone number. Section D lists thirteen miners with home
addresses and telephone numbers as "Selected Multiple Representatives."
Section E lists the UMWA as the "organization" with which the
"Representative [Fitzek] is Associated." The form is signed by Fitzek,
and a note identifies him as Safety Chairman of UMWA Local No. 1769.
Neither Rabbitt nor any other official or health and safety
representative of the UMWA International was listed on the form. Before
the judge, Emery argued that the UMWA's failure to designate Rabbitt as
a miners' representative on this Part 40 form also supported denial of
access to Rabbitt on April 15, 1986.
Relying on the language of section 103(f) of the Act, its
legislative history, and on the definition of "representative of miners"
contained in 30 C.F.R. 40.1 (n.3 supra), Judge Morris, in his decision,
concluded that nonemployees may be representatives of miners and
participate in walkaround. 8 FMSHRC at 1202-05. He determined that
both the UMWA and Rabbitt met the Secretary's definition of a miners'
representative. 8 FMSHRC at 1205. Noting that Emery knew that Rabbitt
was a UMWA International Representative, he concluded that Rabbitt was
permitted to participate in the April 15 inspection as a matter of
statutory right under section 103(f). Id. Addressing the question of
Rabbitt's refusal to sign Emery's waive~ the judge found that Emery's
legitimate right to condition entry to its mines by nonemployee members
of the general public did not extend to miners' representatives seeking
access pursuant to section 103(f) of the Mine Act. 8 FMSHRC at 1206-07.
Last, citing the Commission's decision in Consolidation Coal Company,
supra, the judge held that the UMWA's failure to designate Rabbitt on
the Part 40 miners' representatives designation form for Deer Creek did
not, by itself, justify Emery's attempt to deny Rabbitt access.
8 FMSHRC at 1208.
We granted Emery's petition for discretionary review and heard
oral argument in this matter. We now affirm in part and reverse in
part.
II.

Disposition of Questions Presented
A.

Nonemployee Representatives of Miners

We first address Emery's contention that the judge erred in
holding that section 103(f) walkaround rights extend to nonemployee

283

representatives of miners. Emery does not dispute that nonemployees may
serve as representatives of miners. E. Br. 12. Rather, Emery argues
that nonemployee representatives may not accompany inspectors during
physical inspections of mines as a matter of statutory right under
section 103(f) of the Act but may participate in such inspections only
through the consent of the operator or private contractual agreement.
The Commission has emphasized repeatedly that the opportunity to
engage in walkaround is a vitally important statutory right granted to
miners and their representatives by the Act. See,~., Secretary on
behalf of Richard Truex v. Consolidation Coal Co., 8 FMSHRC 1293, 1298
(September 1986), and authorities cited. Although, as discussed below,
this right is not unqualified, we find no authority for the broad
participatory restriction based on employee status urged by Emery.
We find the language of section 103(f) dispositive of the question
presented. While the term "miners' representative" is not defined in
the Act, we have no difficulty concluding that Congress granted miners a
broad right to designate representatives of their choosing for walkaround and other Mine Act-related purposes. The first sentence of
section 103(f) (n.2. supra) confers the walkaround right upon miners and
their representatives in unambiguous terms: "Subject to regulations
issued by the Secretary, a representative of the operator and a
representative authorized by his miners shall be given an opportunity to
accompany the Secretary['s] ... authorized representative during the
physical inspection of any ... mine made pursuant to ... section [103(a)
of the Act] ••.. " (Emphasis added.) This sentence not only confers upon
miners the basic right to choose their own representatives for purposes
under the Mine Act including participation in walkaround (Truex, supra,
8 FMSHRC at 1298), but imposes no employee-status limitation as to whom
they may choose.
The third sentence of section 103(f), authorizing the payment of
compensation to some miners' representatives for their walkaround
participation, is also instructive: "Such representative of miners who
is also an employee of the operator shall suffer no loss of pay during
the period of his participation in the inspection .... " (Emphasis
added.) "Also" means "in addition ... as well •.. besides, too"
(Webster's Third New Int'l Dictionary (Unabridged) 62 (1971)), and its
use in this provision evidences congressional awareness that some
miners' representatives may be employees and others may not. The plain
meaning of the third sentence is that only miners' representatives who
are employees of an operator shall be paid compensation for the period
of walkaround. By equally plain implication, this language indicates
that nonemployee representatives of an operator's employees share in the
statutory right to engage in walkaround, but are not entitled to
compensation from the operator. The fifth sentence of section 103(f)
also contains a reference, with similar intent and effect, to "such
representative who is an employee of the operator •... "
Thus, read together, the first and third sentences of section
103(f) convince us that as a matter of statutory right a nonemployee may
be chosen by the miners of a given mine as their representative and that
such a representative may properly be afforded the opportunity to

284

participate in walkaround at that mine -- although without compensation
from the operator. See also Conf. Rep. No. 461, 95th Cong., 1st Sess.
45 (1977), reprinted~ Senate Subcommittee on Labor, Committee on Human
Resources, Legislative History of the Federal Mine Safety and Health Act
of 1977, at 1323 (1978)("Legis. Hist."): "[T]o encourage miner
participation [the conference substitute bill] provide[s] that one such
representative of miners, who is also an employee of the operator, be
paid by the operator for his participation in the inspection •••• "'}_/
Further, the first sentence of section 103(f) states that the
exercise of the walkaround right is "[s]ubject to regulations issued by
the Secretary," and the Secretary's Part 40 regulations are fully
consistent with the conclusion that we reach today. Section 40.1 (n.3
supra) defines "representative of miners" as including "[a]ny person £!:
organization which represents two or more miners at a .•. mine for the
purposes of the Act. ..• " (Emphasis added.) As the Secretary has noted
on review, this definition obviously includes nonemployees:
This definition recognizes that there is no
statutory limitation on the miners' right to choose
their representatives. It is obvious that an
"organization" cannot be an employee of the
operator. This part of· the definition was included
in recognition of miners' frequent practice of
designating either their union, or other specialized
organization as their representatives.
S. Br. 9-10 (footnote omitted.) Congress specifically delegated to the
Secretary the authority to issue implementing regulations under section
103(f) and we find that the Secretary's broad definition of
representative is in accord with the underlying statutory text discussed
above.
Finally, as we have stressed previously, section 103(f) and the
Secretary's Part 40 regulations reserve to miners -- not mine operators
-- the right to select their representatives for purposes under the Act,
including the exercise of the walkaround right. Truex, supra, 8 FMSHRC
at 1298. If adopted, Emery's position would impermissibly abridge that
right of choice.

'}_/
Emery has cited certain other portions of the legislative history
in support of its contrary argument. For example, during Senate debate
over a proposed amendment that would have deleted the compensation
guaranty under section 103(f) for employee miners' representatives,
Senators Javits and Helms used the words "workers," "employees" and
"miners." Legis. Hist. at 812, 1053-56. Their debate, however, was
concerned with the question of compensation for employee miner
representatives. Contrary to Emery's arguments, the use of these words
did not indicate a restrictive construction of "miners' representative,"
but rather related only to the question of whether such representatives
who are employed by an operator should be compensated by that operator
for participating in inspections at the operator's mine.

285

Accordingly, we affirm the judge's decision insofar as it held
that nonemployee representatives are afforded a right under section
103(f) tb accompany inspectors during physical inspections of mines. 10/
B.

Part 40 Filing Requirements

We turn to the question of whether the failure to name Rabbitt as
a miners' representative in the Part 40 filing submitted for the Deer
Creek Mine entitled Emery to deny him entry to the mine for walkaround
purposes. Relying on Consolidation Coal, supra, the judge held that, on
the facts presented, the failure to list Rabbitt did not, by itself,
defeat his walkaround rights. 8 FMSHRC at 1207-08. Emery argues that
Consolidation Coal is factually distinguishable from the present case
and is not controlling. Alternatively, Emery argues that the holding of
Consolidation Coal should be reexamined and declared incorrect as a
matter of law.
In Consolidation Coal the Commission held "that failure of a
person to file as a representative of miners under Part 40 does not per
se entitle an operator to deny that person walkaround participation
under section 103(f)." 3 FMSHRC at 619. Like the present matter, that
case involved an operator's objection to walkaround participation by
UMWA International personnel whose names had not been listed in a Part
40 filing for the mine in question although the UMWA was the undisputed
organizational representative of the miners at the mine. The Commission
noted that "[n]either the statute nor the legislative history indicates
that prior identification of miners' representatives is a prerequisite
to engaging in the section 103(f) walkaround right •••• " 3 FMSHRC at
619. The Commission also observed that the Part 40 filing requirements
were not promulgated merely to identify representatives for walkaround
purposes but to facilitate secretari,al cooperation with representatives
and to further their inclusion in the range of representative functions
contemplated by the Act. 3 FMSHRC at 619 n. 3.
In particular, the Commission emphasized that in promulgating the
Part 40 regulations, the Secretary had noted that: "[M]iners and their
representatives do not lose their statutory rights under section 103(f)
by their failure to file as a representative of miners under this part."
3 FMSHRC 'at 619, quoting 43 Fed. Reg. 29,508 (July 7, 1978) (Secretary's
Part 40 Preamble). The Commission agreed with this position, but as a
safeguard against abuse or fraud expressly recognized that "[i)n a
10/
Emery's reliance on Council of So. Mtns. v. Martin County Coal
Corp., 6 FMSHRC 206 (February 1984), aff'd sub nom. Council of s6. Mtns.
v. FMSHRC, 751 F. 2d 1418 (DrC. Cir 1985), is misplaced. In that
proceeding, the U.S. Court of Appeals for the District of Columbia
Circuit affirmed the Commission's holding that the Mine Act does not
grant nonemployee miners' representatives a general right of access to
mine property for purposes of "monitoring" an operator's miner training
program. However, both the Commission·and Court emphasized that the
case did not involve participation in walkaround by an authorized
miners' representative. 6 FMSHRC at 207; 751 F.2d at 1421 n.21 & 1423.
Here, in contrast, we deal with that clearly conferred statutory right.

286

particular situation, absent filing, an operator may in good faith lack
a reasonable basis for believing that a person is in fact an authorized
representative of miners." 3 FMSHRC at 619. Thus, the Commission held
that there may be "circumstances where an operator can legitimately
refuse walkaround participation to a person who failed to comply with
Part 40's filing requirements." Id.
In light of Emery's arguments, we have carefully reexamined the
reasoning and bases of Consolidation Coal. We find that decision to
represent a sound interpretation of section 103(f) and to accurately
reflect the Secretary's clearly expressed intent in promulgating his
Part 40 regulations. We therefore reaffirm that decision and conclude
that application of its principles to the present case dictates
affirmance of the judge on this question.
Here, as noted above, Rabbit's name was not listed on the
representatives' notification form submitted for the Deer Creek Mine
pursuant to the filing requirements of 30 C.F.R. §§ 40.2 & 40.3 (n.3
supra). However, the UMWA was named on the form as the organization
with which the local employee miners' representatives were affiliated.
The record leaves no doubt that this affiliation and the UMWA's status
as the organization representing miners at the Deer Creek Mine were well
known to Emery. The record is devoid of any prior objection by Emery to
the UMWA 1 s representative status.
There is also no dispute that Rabbitt was a valid International
Representative of the UMWA, and was recognized as such by Deer Creek's
management. No one at the mine on April 15, 1986 -- miners, Emery
management, o;;-Inspector Boston -- doubted Rabbitt 1 s credentials as a
UMWA official. Indeed, the facts show that Rabbitt was well known in
his official capacity by Mine Manager White and had previously visited
the Deer Creek Mine in connection with the proposed modification of the
application of certain mandatory standards.
Part 40 permits both organizations and individuals to serve as
miners' representatives. In light of the evidence developed in this
case, the judge properly determined that the UMWA as an organization and
Rabbitt as an official of that organization were miners 1 representatives
of the Deer Creek miners. That same evidence defeats any assertion that
Emery entertained a good faith doubt on April 15, 1986, as to Rabbitt 1 s
status as a bona fide agent of the organization representing its miners.
As was the case in Consolidation Coal, the operator "was aware of who
[this] perso[n] [was] and why [he was] at its mine." 3 FMSHRC at 619.
Emery's attempts to distinguish Consolidation Coal are
unpersuasive. First, Emery has argued in its brief (E. Br. 31-32) and
at oral argument before us (Tr. Oral Arg 1 t 70-71) that Rabbitt 1 s
presence at Deer Creek on April 15 had not been sought by the local
safety committee. Our reading ·of the record shows that all three
members of the Deer Creek safety committee were aware of Rabbitt 1 s visit
on April 15 and did not object to his presence. See n.6 supra. The
only objection to Rabbitt's presence revealed in the record is that of
Emery. Moreover, the judge found that the local members of that
committee, including Fitzek, "wanted Rabbitt's expertise and

287

assistance." 9 FMSHRC at 1205. Rabbitt's previously described
testimony concerning the safety committee's request that he visit the
Deer Creek mine provides substantial evidence to support the judge's
finding. Second, Emery asserts that the inspection in Consolidation
Coal was conducted pursuant to a miner's request under section 103(g) of
the Mine Act, 30 U.S.C. § 813(g)(l), while the April 15 inspection at
Deer Creek was a regular, quarterly inspection conducted pursuant to
section 103(a) of the Act. This case does not require us to detail the
interrelationship between sections 103(a) and (g). The concise answer
to this argument is that section 103(f), by its express terms, links
walkaround rights to inspections made pursuant to section 103(a).
In further challenging the rationale of Consolidation Coal, Emery
relies on the principle that an agency must comply with its own
regulations, which, in this instance, require the filing of information
identifying miners' representatives. First, we note that here it is a
failure of the miners' representative to file under Part 40 that is at
issue, not a failure of the government to follow its regulations.
Second, it is settled that an agency possesses' broad authority to
delineate, explain, and interpret its regulations. See generally,~.,
Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir.
1986)(Scalia, J.) With respect to the Part 40 regulations, the
Secretary did so in his promulgation of the rules and indicated clearly
that a failure to file under Part 40, by itself, does not vitiate
walkaround rights.
For the above reasons, we agree with the judge that the failure to
specifically name Rabbitt as a miners' representative in the Part 40
filing did not defeat his right to accompany the MSHA inspector.
Nevertheless, we are constrained to observe that this type of issue has
arisen several times before us on review. Thus, we are aware that a
level of uncertainty is pres~nt in the mining community concerning the
purpose of and the need for adherenc~ to the Part 40 filing
requirements. Clarity in the administration and enforcement of the Act
is vital. In promulgating the Part 40 regulations, the Secretary
expressly stated that he would monitor the experience of representation
by organizations in order to address any problems encountered. 43 Fed.
Reg. 29,508 (July 7, 1978). The interests of the mining community and
the cause of cogent enforcement might be well served by instituting
secretarial review of the Part 40 filing requirements with the object of
clarifying the intent, implementation and need for compliance with
filing requirements by miners' representatives.
C.

Waiver of Liability Policy

We next turn to the issue of whether, in view of our conclusion
that a nonemployee may be designated as a miners' representative
authorized to accompany an MSHA inspector during an inspection, Emery
could nonetheless require such nonemployee representative to sign a
waiver of liability as a condition of entry into the mine. The
administrative law judge concluded that Emery's insistence that Rabbitt
sign a waiver before ·entering its mine was an impermissible interference
with the exercise of the miners' walkaround rights under section

103(f) . .!l/

For the reasons that follow, we reverse.

The right given to miners to have a representative accompany an
inspector is an important right. Congress concluded that miner
participation in inspections "will enable miners to understand the
safety and health requirements of the Act and will enhance mine safety
and health awareness." S. Rep. No. 181, 95th Cong., 1st Sess. 28-29
(1977), reprinted in Legis. Hist. 616-617. Nevertheless, the right to
accompany an inspector is not an unqualified right. Certain
qualifications on the exercise of the right are stated in section 103(f)
itself. Section 103(f) begins by providing that the exercise of the
right is 11 [s]ubject to regulations issued by the Secretary." 12/ 30
U.S.C. § 813(f). Also, rather than mandating that a miners'
representative be present during any inspection, the section simply
requires that a representative "be given an opportunity to accompany"
the inspector and it is expressly provided that "compliance with
[section 103(f)] shall not be a jurisdictional prerequisite to the
enforcement of ... this Act. 11 Id. Further, although more than one
miners' representative may accompany the inspector if an inspector
determines that such participation would aid the inspection, only one
miners' representative employed by the operator is entitled to
compensation from the operator for the time spent on the inspection.
Id.; see also Magma Copper Co. v. Secretary of Labor, 645 F.2d 694 (9th
Cir. 1981). Thus, Congress provided miners' representatives a carefully
delineated right that, although important, is far from an absolute,
unconditional right of accompaniment. 13/

.!lf

The judge also addressed whether Emery's waiver of liability
policy violated the laws of the State of Utah. The proper concern in
this proceeding, however, is whether Emery violated the Mine Act. We
express no opinion, therefore, on any question concerning state law.

12/
The Secretary has not promulgated a regulation addressing the
;;lationship between 103(f) rights of nonemployee representatives and
waiver of liability policies. Rather, this theory of violation was
enunciated by the Secretary for the first time in the enforcement
proceeding presently before us.
13/
The Secretary of Labor's Interpretative Bulletin addressing
section 103(f) walkaround rights also recognizes that the exercise of
walkaround rights of miners' representatives is subject to appropriate
qualifications:
Considerable discretion must be vested in inspectors
in dealing with the different situations that can
occur during an inspection. While every reasonable
effort will be made in a given situation to provide
opportunity for full participation in an inspection
by a representative of miners, it must be borne in
mind that the inspection itself always takes
precedence. The inspector's primary duty is to
carry out a thorough, detailed, and orderly
inspection. The inspector cannot allow inordinate
289

In this case the operator asserts that its requirement'that a
waiver of liability be executed was a good faith, reasonable condition
of entry ·applicable to all nonemployee visitors, and that Rabbitt's
refusal to sign the waiver justified Emery's denial of entry into its
mine. In essence, Emery argues that its policy requiring waivers of
liability as a condition of entry into its mine is proper because it
protects a legitimate private property right of the operator without
impermissibly interfering with the exercise of the statutory walkaround
right granted to miners under section 103(f).
The Supreme Court has recognized that in appropriate circumstances
conflicts between statutory rights of employees and private property
rights of employers must be resolved by seeking a proper and balanced
accommodation between the two. See, ~·· Hudgens v. NLRB, 424 U.S.
507, 521-22 (1976). Such accommodation between employees' statutory
rights and employers' property rights "must be obtained with as little
destruction of one as is consistent with the maintenance of the other. 11
NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). In striking
these balances, the Court has approved restrictions upon organizational
activity under the National Labor Relations Act, 29 U.S.C. § 151 et seg.
(1982), carried on by nonemployees on employers' property(~., Babcock
& Wilcox, supra, 351 U.S. at 112-14), and limitations of access to
employers' business records by nonemployee bargaining representatives
(Detroit Edison Co. v. NLRB, 440 U.S. 301, 318-19 (1979)). See also
Marshall v. Barlow's, I~ 436 U.S. 307, 314-17 (1978)(in part applying
the Babcock & Wilcox principles to strike down warrantless inspections
under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et
seg. (1982) ( 11 0SHAct 11 ) ) ; Council of So. Mtns., supra, (nonemployee
miners' representative not entitled to monitor training classes on mine
property.) The Court has emphasized that in fixing "the locus of
accommodation," the difference between activities carried on by
employees and by nonemployees may be, in a given context, "one of
substance." Hudgens, supra, 424 U.S. at 521-22 & n.10. With these
general principles in mind, we turn to a balancing of the competing
interests at issue here.
delays in commencing or conducting an inspection
because of the unavailability of or confusion
surrounding the identification or selection of a
representative of miners. Where necessary in order
to assure a proper inspection, the inspector may
limit the number of representatives of the operator
and miners participating in an inspection. The
inspector can also require individuals asserting
conflicting claims regarding their status as representatives of miners to reconcile their differences
among themselves and to select a representative. If
there is inordinate delay, or if the parties cannot
resolve conflicting claims, the inspector is not
required to resolve the conflict for the miners and
may proceed with the inspection without the presence
of a representative.
43 Fed. Reg. 17546 (1978).

290

Emery's evidence concerning the adoption of its waiver of
liability policy established that following the disaster at Emery's
Wilberg Mine in December 1984 in which 27 miners died, large portions of
Emery's liability insurance coverage were canceled and Emery was unable
to replace the canceled coverage. As a result, Emery decided to attempt
to limit its liability exposure. Accordingly, the challenged policy
requiring nonemployees to sign the waiver of l;ability was implemented.
8 FMSHRC at 1195-96. (State and federal mine inspectors were not asked
to sign the waiver forms. 8 FMSHRC at 1196). The judge rejected
Rabbitt's suggestion that tne waiver policy was adopted to restrict his
activities at Emery's mines. 8 FMSHRC at 1206. Instead, the judge
found the reasons set forth by Emery concerning its adoption of the
policy to be credible. Id. In sum, it is clear from the record that
the policy requiring nonemployee visitors to Emery's mines to execute
liability waivers was adopted in response to Emery's serious
difficulties in obtaining a satisfactory level of liability insurance
coverage and was not targeted at nonemployee miners' representatives in
an at~empt to hinder the exercise of their representational rights.
Thus,' the record demonstrates that Emery's interest in obtaining
liability waivers from nonemployees entering its mines was legitimate
and substantial.
The interests of the miners 'and of their nonemployee
representative in having such representative accompany an MSHA inspector
into Emery's mines without executing a waiver of liability must also be
considered. On a basic level, their interest in being able to do so
appears obvious. Most, if not all, individuals would prefer to
participate in any undertaking or activity without having to sign a
waiver of liability prior to such participation. Such personal desires
alone, however, are insufficient to override legitimate private property
interests of the party requesting a waiver. Of more importance is the
effect that execution of such a waiver would have on the miners' right
to have a nonemployee accompany an MSHA inspector as the miners'
representative during an inspection. On this question, we find that the
record is devoid of convincing evidence supporting the claim of
interference or chilling effect raised by the Secretary and the UMWA.
As the judge found, Rabbitt himself had signed a similar "Visitor
Release" in visits to Emery's mines, including the Deer Creek Mine.
8 FMSHRC at 1189 & n. 9. this release stated that the visitor "will not
hold Emery ..• liable should [he or she] suffer injury or death while
.•. in the mines." Emery Exh. 4. Further, at oral argument, counsel
for the UMWA expressed uncertainty that requiring nonemployee miner
representatives to sign such waivers would actually hinder their entry
into the mines in their capacity as representatives of miners. Tr. Oral
Arg't 65-67. (The same representatives participate in inspections and
investigations under the applicable collective bargaining agreement and
in this capacity are required to sign waivers. Tr. 268; 8 FMSHRC at
1197.) . In sum, no specific evidence of an identifiable impairment of a
nonemployee representative's entry into Emery's mines was presented.
Nor has any other material impairment of rights granted to miners under
section 103(f) been established in connection with the inspection at
issue. Here, Rabbitt was serving as an additional miners'
representative, the miners also being represented on the inspection by

~l

Mark Larsen, an employee of Emery and member'of the UMWA safety
committee at the Deer Creek Mine. Although there is evidence that
during the inspection Rabbitt pointed out a roof control violation to
the inspector, there is no suggestion that the miners would not have·had
effective walkaround representation if Rabbitt had not appeared to
participate in the regular inspection taking place that morning.
Balancing the competing interests at stake here, and based on the
record before us, we conclude that Emery's reqµirement that Rabbitt, a
nonemployee, as part of Emery's general policy' directed at nonemployees
entering its mines, sign a waiver of liability as a condition of entry
did not violate the Mine Act. Rather, we view this condition of entry
as good faith, nondiscriminatory attempt to protect a legitimate and
substantial private property interest. Cf. Hercules, Inc. v. NLRB, 833
F.2d 426, 429 (2d Cir. 1987)(nonemployee~ndustrial hygienist granted
access to plant upon condition that agreement not to divulge trade
secrets was signed). Although the Mine Act grants nonemployees access
to operators• mines when serving as miners• representatives, it does not
address the economic question of who bears the cost of injuries that
they might suffer while they are on the mine site in their
representative capacity. Accordingly, based on the record before us, we
find that the balance of legitimate competing interests tips in favor of
Emery on the question of whether Emery's requirement that a nonemployee
miners' representative sign a waiver of liability as a condition of
entry into its mine violates the Mine Act. The judge's contrary
conclusion is therefore reversed.
III.

Conclusion
We have concluded that Emery's denial of entry to Rabbitt based on
his status as a nonemployee cannot stand. The record shows that this
was the initial objection raised by Emery on April 15, 1986. The
evidence also demonstrates that even had Rabbitt agreed to sign the
waiver, Emery would have interposed its nonemployee objection. Under
these circumstances, we conclude that insofar as Emery denied Rabbitt
access f9r walkaround purposes based on its nonemployee objection, its
conduct violated the Act. The fact that Emery's insistence that Rabbitt
sign the waiver did not violate the Mine Act will be taken into account
in determining the appropriate civil penalty to be assessed, an issue
not presented by this proceeding.

292

Accordingly, for the foregoing reasons, the judge's decision is
affirmed insofar as it held that a nonemployee may serve as a miners'
representative under section 103(f) and that the failure to specifically
name Rabbitt in a Part 40 filing did not defeat his right to accompany
the inspector. We reverse the decision insofar as it found that Emery's
waiver of liability policy violates the Mine Act.

Ladt//~c?~-/
Richard V. Backley, Commissioner

293

Chairman Ford, concurring in part and dissenting in part:
Subject to the caveats discussed below, I agree with my colleagues
in the majority that section 103(f) of the Mine Act, 30 U.S.C. 813(f),
allows for walkaround participation in MSHA inspections by nonemployees.
I further agree that walkaround participation in such circumstances can
be made subject to reasonable nondiscriminatory preconditions such as
signing the liability waiver at issue in this case. I part company
with my colleagues, however, on their holding that walkaround participation by a nonemployee purporting to be a miner representative can
not be made contingent upon his compliance with the filing requirements
of 30 C.F.R. Part 40. Accordingly, I would hold that a mine operator
does not violate the Mine Act by refusing access to a nonemployee who
has not complied with Part 40.
To begin with, walkaround rights are textually and effectually conditioned by the introductory language of section 103(f) itself: "Subject
to regulations issued by the Secretary ••• a representative authorized by
[the] miners shall be given an opportunity to acco~pany the Secretary or
[her] authorized representative during the physical inspection of any coal
or other mine ••. " The "regulations" referred to in section 103(f) are .
obviously those set forth in Part 40. Thus, the "opportunity to accompany",
i.e., the "walkaround right", is contingent upon the miner representative's
compliance with the requirements of Part 40. 1/
The requirements of Part 40 are not burdensome. Briefly stated, the
representative of miners "shall file" with the appropriate MSHA District
Manager the following: (1) his or her name, address and telephone number,
or in the case of an organization such as the UMWA, the "official or
position" who is to serve as representative; (2) the name, address and
identification number of the subject mine; (3) a copy of the document
evidencing the designation of th~ representative; (4) a statement of
those statutory functions the representative is authorized to perform;
(5) names, addresses and telephone numbers of alternate representatives;
(6) a statement that all information filed has been delivered to the
affected mine operator; and (7) a signed certification that the information provided is true and correct. 30 C.F.R. 40.3.
Of particular importance to this case are requirements (1), (3),
(4) and (6). They not only establish the representative's bona fides,

1/
The Secretary is correct in asserting that Part 40 is meant to
identify miner representatives for other purposes in the Act as well.
Inde~d, the authority headnote to Part 40 appears to cite every instance
in the Mine Act where "representative of miners" or a variant thereof
is used. I find it compelling, however, that section 103(f) is the only
instance that directs the Secretary to issue regulations addressing the
activities of miner representatives and the only instance where the term
"authorized miner representative" is used. [Emphasis added].

294

they also put the affected mine operator on notice as to the identity,
authority, and scope of responsibilities of the nonemployee representative when he presents himself at the mine and asserts his right of access ·
for walkaround purposes. In such circumstances, the mine operator is in no
position to question the representative's authority since section 30 C.F.R.
40.4 requires the operator to post the information provided by the representative, pursuant to item (6) above, on the mine bulletin board.
Had Mr. Rabbitt or his employer, the UMWA, complied with Part 40 particularly after having been denied access to another of Emery's mines
on an earlier occasion - Emery's refusal to allow him to participate in
the inspection would have been a violation of section 103(f). On the
basis of the record here, however, Emery cannot be said to have denied
access to an "authorized miner representative" as that term is used in
section 103(f). Indeed, even absent the written filing and operator
notice requirements of Part 40, the evidence that Mr. Rabbitt was specifically designated as a walkaround representative by two or more miners
in the Deer Creek Mine is insufficient at worst, equivocal at best. 2/
It is well-established that an agency is bound by its own
regulations. See e.g., United States v. Nixon, 418 U.S. 683 (1974);
Vitareli v. Seatan--:--359 U.S. 535 (1959); and Accardi v. Shaughnessy,
347 U.S. 260 (1954). Here the Secretary requires certain filings
pursuant to Part 40 that would establish the credentials of a non
employee as an authorized miner representative but then proceeds to
ignore the lack of compliance. To be sure, the Secretary does not
"authorize" miner representatives; the miners do. Her MSHA district
offices, however, are meant to serve as repositories of all information
documenting that individuals who purport to be miner representatives have
indeed been authorized by the miners for purposes of walkaround participation under section 103(f). Had the Secretary insisted on compliance with
Part 40 by both her own representatives and Mr. Rabbitt, the citation at
issue would have had some credibility.
Much has been made of a sentence in the preamble to Part 40 (not,
incidentally, printed in the Code of Federal Regulations) which states,
"[I]t should be noted that miners and their representatives do not lose
their statutory rights under section 103(f) by their failure to file as
a representative of miners under this part." 43 F.R. 29508 (July 7, 1978).
See also Consolidation Coal Co. v. Secretary and UMWA, 3 FMSHRC 617 (1981).
Read together with the mandatorily - styled ·provisions of Part 40, the
Secretary appears to be saying, "This is what you must do in order to be considered an 'authorized miner representative' under section 103(f), but if
2/
I am not persuaded, as my colleagues appear to be, that a lack of
the safety committeemen's objections to Mr. Rabbitt's presence at the
mine somehow translates to authorization for him to have served as the
designated walkaround representative on April 15, 1986. (Majority Slip
Opinion at pp. 5 and 12). Furthermore, only one of those committeemen
was called to tesify.

295

you don't comply you may, nevertheless, be considered an 'authorized miner
representative' under section 103(f)." I find that construction of Part 40
to be illogical and absurd particularly when the walkaround right in section
103(f) was intended by Congress to be "subject to" the very regulations that
appear to be honored more in the breach than in the observance. 3/ The gloss
placed on Part 40 by the Secretary's preamble directly contradicts the regulations themselves and, therefore, the Commission need not give it any weight.
See Udall v. Tallman, 380 U.S. 1 (1965)(an agency's interpretation of an
administrative regulation may not be set aside unless it is plainly erroneous
or inconsistent with the regulation). Furthermore, the Secretary's position
here with respect to the authority of a contemporaneous interpretative statement issued with a regulation is contrary to the Secretary's position taken
in Brock v. Cathedral Bluffs Shale Oil Co., 796 F~2d 533 (D.C. Cir. 1986).
At oral argument it was suggested that the Commission ought to recognize
a presumption that a representative of a collective bargaining agent is also
a representative of the miners for purposes of section 103(f). (Statements
of UMWA Counsel, Oral Argument, July 30, 1987, at pp. 57-61). Such a
presumption, it was argued, would eliminate the need to file under Part 40.
That argument, while appealing to the majority (Slip opinion at p. 12), is
unpersuasive on several counts.
First, Part 40 delineates "representative of miners" to include
"organizations", presumably labor organizations. As such, they too are
subject to the filing requirements of Part 40. Second, absent the
information required by a filing, neither the Secretary nor the operator
is placed on notice as to what statutory functions the collective
bargaining agent's representative is authorized to perform, including the
walkaround function. 30 C.F.R. 40.3(a)(4). Third, and most importantly,
as this Commission has often held, "the Mine Act is not an employment
statute." United Mine Workers of America on behalf of James Rowe et al. v.
Peabody Coal Co., 7 FMSHRC 1357, 1364 (1985) Aff'd 822 F.2d 1134 (D.C. Cir.
1987).
In affirming the Commission's holding in the above case, the D.C.
Circuit explicitly rejected the Secretary's argument that "miner", as
used in the Act, could be expanded to include persons on layoff status
"contractually entitled to employment" by reason of the collective
bargaining agreement's seniority provisions. "We certainly cannot infer
from the Act that Congress intended privately-bargained contracts to
determine who is or is not a miner entitled.to receive the section 115
safety training," Id. at 1148.
3/
As to any loss of statutory rights in this case, I note that Mr. Larsen,
an employee of the Deer Creek mine, a mine safety committeeman, and an
authorized miner representative who filed pursuant to Part 40, was a member
of the inspection party and was not challenged by Emery. Furthermore,
section 103(f) explicitly provides that where there is no authorized representative, the inspector is to consult with a reasonable number of miners
on matters of safety and health as he moves through the mine.

296

Here, likewise~ the statusand authority of a purported "authoriZed'
miner representa.tive" should be estabiished by the labor contract neutral indicia of Part 40 in d~tetmining who is entitled to accompany
MSHA inspectors under section 103(f).
In summary, I join with my colleagues in criticism of the Secretary''s
lackadaisical attitude toward Part 40 compliance~ but fundamental fair-·
ness dictates tha:tthe citation be vacated since Emery cannot be found
to have denied access to an "authorized miner representative"·wheri it
denied access to a nonemployee who did not comply with Part 40. 4/
Mine operators, of course, have the option of granting access to·
anyone they choose including nonemployee "walkarounds" who have not
complied with Part 40. My views address only those situations whe~e
the operator challenges the credentials of, and'denies access to, a·
nonemployee who purports to be an authorized miner representative· for
purposes of section 103(f), but who has not complied with the Setretary'S, filirtg requirements.
Accordingly, I would reverse the judge's decision. ·

4/
It is of little consequence that Emery did not question the lack of
Part 40 compliance on the day Mr. Rabbitt sought access to the mine
(April 15, 1986), since the issue was fully presented to the judge below
as an alternative defense to the citation.

297

Commissioners Doyle and Nelson, concurring in part and dissenting in
part:
We join in the majority's decision to the extent that it affirms
the administrative law judge's conclusions that walkaround rights under
section 103(f) of the Mine Act extend to nonemployee representatives
of miners and that an. operator may not deny such walkaround rights
solely because the representative has not filed identifying information under 30 C.F.R. Part 40. We respectfully dissent, however, from
the majority's decision to the extent that it reverses the judge and
permits an operator to extract a release and waiver of liability from
the nonemployee miners' representative before he is permitted to
exercise his section 103(f) rights.
Congress, in granting to the miners' authorized representative an
opportunity to accompany the inspector for the purpose of aiding the
inspection, placed no conditions or qualifications upon the representative's exercise of this statutory right, other than it being subject to
regulations to be issued by the Secretary of Labor. While it is true,
as the majority states, that the statute does not mandate the presence
of a miners' representative during an inspection nor require the
operator to pay more than one employee representative, the fact
remains that the only condition placed by Congress on the exercise
by the miners' representative of his statutory right to accompany
the inspector is that the right is subject to regulations issued by
the Secretary. 1/
We do not disagree with the majority that, under labor relations
law, there must be a balanced accommodation between the rights granted
to employees under the National Labor Relations Act ("NLRA") and the
legitimate property rights of employers. 2/ "However, these [labor]
cases arise under statutes whose very purpose is the governance of
labor-management relations ••.. The entirely discrete purpose of the
Mine Act •.• prevent[s] us from transferring this reasoning to the

1/
The Commission has decided that those regulations do not operate
to deprive Mr. Rabbitt of his right to accompany the inspector.
2/
The decision in Council of So. Mtns., 751 F. 2d 1418 (D.C. Cir.
l985) cited by the majority in support of this proposition rests not
on a balancing of employers' property rights with employees' statutory
rights but rather on a finding by the court that no statutory right to
monitor training classes existed. 751 F.2d 1422. See also n. 10 of the
majority's decision.
It should be noted also that none of the cited cases go beyond
accommodation of the rights granted.under the NLRA to deal with the
question of liability or indemnification for injuries suffered while
those rights are being exercised.

298

Mine Act." UMWA v. Peabody Coal Co., 7 FMSHRC 1357, 1365, aff'd sub nom.
Brock v. Peabody Coal Co., 822 F. 2d 1134 (D.C.Cir. 1987). Accordingly,
we do not find the labor relations cases, nor the balancing of interests
test, to be dispositive of the issue at hand. 2.1
Rather, we submit that the proper test for determining whether
Emery may impose its waiver of liability policy is whether the imposition
of this requirement upon the miners' representative interferes with his
representational rights, Council of So. Mtns., v. FMSHRC, 751 F.2d
1418, 1420, 1422 and n. 31 (D.C. Cir. 1985), or inhibits the miners
or the representative from exercising those rights granted to them under
the Mine Act.
Section 105(c)(l) of the Mine Act provides, in part, as follows:
No person shall
interfere with the exercise
of the statutory rights of any .•• representative of miners ..• because of the exercise by
such ••. representative of miners ••• of any
statutory right afforded by this Act.
The legislative history of section 105(c)(l) states:
The wording of section 10[5](c) is broader than
the counterpart language in section 110 of the
Coal Act and the Committee intends section
10[5](c) to be construed expansively to
assure that miners will not be inhibited in any
way in exercising any rights afforded by the
legislation. (Emphasis added.)

s. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 624 (1978).
Irrespective of whether Emery's Release and Waiver would be enforceable or would fail for lack of consideration, we believe that the very
act of requiring the nonemployee miners' representative to sign it,
before permitting him to exercise a right that the Commission has
unanimously agreed was granted to him by the Mine Act, interferes with
his statutory rights and is inhibiting· both to him and to the miners
who might otherwise request his assistance. As the procedure advocated
by Emery is contrary to Congress' intent as set forth in the legislative
history of section 105(c)(l), we would affirm the administrative law
3/
The majority also notes that Mr. Rabbitt was an "additional miners'
representative" and that "there is no suggestion that the miners would
not have had effective walkaround representation if Rabbitt had not
appeared to participate ••• " (Emphasis added.) We find the distinction
between one miners' representative and another to be without merit and the
relative effectiveness of the representation to be an inappropriate
consideration.

299

judge's conclusion that the operator may not require the representative
to sign a release and waiver of liability in order to exercise his
section 103(f) rights. !!../

~~
L. Clair Nelson, Commissioner

4/
We intimate no view in this dissent as to the existence or extent
of any liability on Emery's part in the event of injury to Mr. Rabbitt
while underground nor as to the enforceability of the waiver. Those
matters lie beyond the purview of the Mine Act.

300

Distribution
John A. Macleod, Esq.
Ellen B. Moran, Esq.
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

301

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

March 29, 1988

UTAH POWER & LIGHT COMPANY,
Substituted for
EMERY MINING CORPORATION
Docket Nos. WEST 86-131-R
WEST 86-140-R
WEST 86-141-R

v.

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

BEFORE:

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

BY THE COMMISSION:
These proceedings arise under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1982), and pose the same issues
that are presented in Emery Mining Corp., 10 FMSHRC
, Docket No.
WEST 86-126-R (March 1988), issued this date. The parties stipulated
that the decision in each of these three cases would be controlled by
the disposition of Emery. Accordingly, we consolidate these three cases
for purposes of decision.
For the reasons expressed by the Commission in Emery, the
administrative law judge's decisions in these cases are affirmed insofar
as they hold that under section 103(f) of the Mine Act a nonemployee may
accompany an inspector as a miners' representative during a physical
inspection of a mine and that the failure of a nonemployee miners'
representative to file the identifying information required under 30
C.F.R. Part 40 does not by itself permit the mine operator to deny the
miners' representative entry into its mines. Further, the- judge's
decisions are reversed insofar as they hold that under the Mine Act the
mine operator could not require the nonemployee miners' representative
to sign a waiver of liability as a condition of entry into its mines.
For the reasons stated in his separate opinion in Emery,
incorporated herein by reference, Chairman Ford would reverse the judge
as to the Part 40 issue. For the reasons stated in their separate

302

opinion in Emery, also incorporated herein by reference, Commissioners
Doyle and Nelson would affirm the judge on the waiver of liability
issue.
Accordingly, consistent with the stipulations of the parties and
the Commission's decision in Emery, the administrative law judge's
decisions in these three cases are affirmed in part and reversed in
part.

~~!!.~
oyc~ Doy le, CommiSSiOile

Distribution
Joh~ A. Macleod, Esq.
Ellen B. Moran, Esq.
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004

Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

304

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAR 3 1988
ROBERT L. TARVIN,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. SE 87-90-D
MSHA Case No. BARB CD 87-23

JIM WALTER RESOURCES, INC.,
Respondent

No. 5 Mi~e
DECISION

Appearances:

Patrick Nakamura, Esq., Birmingham, Alabama,
for the Complainant~
R. Stanley Morrow and Harold Rice, Esqs.,
Jim Walter Resources, Inc., Birmingham,
Alabama, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a d1scrimination complaint filed
with the Commission on May 21, 1987, by the complainant
Robert L. Tarvin, pursuant to section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
Mr. Tarvin filed his initial complaint with the Secretary of
Labor, Mine Safety and Health Administration (MSHA), and
following an investigation of his complaint, MSHA made a determination that a violation of section 105(c) had not occurred,
and informed Mr. Tarvin of this finding by letter of April 17,
1987. Mr. Tarvin then filed a timely complaint with the
Commission pro se, but subsequently retained counsel to represent him.
. A hearing on the merits of the complaint was held in
Bir.mingham, Alabama, and the parties appeared and participated
fully therein. The parties waived the filing of posthearing
briefs, but were permitted to present oral arguments on the
record in support of their positions. I have considered these
arguments in the course of my adjudication of this matter.
In his complaint, Mr. Tarvin asserted that he was removed
from his job as a shuttle car operator on a coal producing

3os

I

section on February 18, 1987, and replaced by an inside
laborer. He alleges that he was removed from the section
because he had reported to his foreman 2 days earlier that a
ventilation line curtain was 20 feet from the face and had not
been advanced while coal was being cut. Mr. Tarvin also
stated that some 3 weeks earlier, he told his foreman and his
crew that they never checked for methane while mining and did
not use their methane monitors, and that since this was the
case, there was no need for them to bring their methane monitors if they were not going to use them. Mr. Tarvin also
implied that he refused to continue to work because of what he
reasonably believed to be a violation of the Act.
Mr. Tarvin's requested relief includes a request for a
finding that the respondent discriminated against him by
removing him from the section, that he be put back on a coal
producing section, and an order prohibiting the respondent
from further discriminating against him or harassing him for
refusing to do work which he believes to be in violation of
the Act.
The respondent filed a timely answer and denied that it
has discriminated against Mr. Tarvin~ The respondent admitted
that the ventilation curtain in question was not installed as
required by mandatory safety standard 30 C.F.R. § 75.302-1,
and stated that it was reinstalled as soon as it came to the
attention of the foreman. Respondent admitted further that
Mr. Tarvin was moved to another section of the mine, but contended that he was transferred because the area where he was
working was "mined out," and that he was having problems
coordinating his activities with those of the other equipment
operators.
The respondent further asserted that Mr. Tarvin suffered
no loss in pay, or any change in his job classification as a
shuttle car operator, and that no adverse action has been
taken against him. Respondent also stated that the same facts
and issues presented in this case were the subject of a
grievance filed by Mr. Tarvin under the National Bituminous
Coal Wage Agreement of 1984 (Contract), and that the grievance
was dismissed when it was determined that the respondent
followed correct procedure and was justified in transferring
Mr. Tarvin. Respondent concludes that it has not violated
section 105(c) of the Act, and contends that this dispute is a
contractual matter which has been settled under the terms of
the contract.
Issues
The crucial issue in this case is whether or not the
complainant's transfer from a coal producing section to a rock

306

construction section was motivated in any way by his engaging
in any protected safety activity, and whether the transfer was
made in retaliation for that activity. Additional issues
raised by the parties are disposed of in the course of my
adjudication of this case.
Applicable Statutory and Regulatory Provisions
1.

30

The Federal Mine Safety and Health Act of 1977,

u.s.c. § 301 et seq.

2. Sections 105(c)(l), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l), (2) and
( 3) •

3.

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

Stipulations
The parties stipulated to the following (Tr. 17-18):
1. Complainant is a miner and Respondent
is an operator and Complainant's employer as
defined by the Federal Mine Safety and Health
Act of 1977 (Act).
2. The Administrative Law Judge has jurisdiction to hear this case.
3. Complainant, through his representative, and Respondent, are both signatories to
the National Bituminous Coal Wage Agreement of
1984 (Contract) and are bound by the terms and
conditions therein.
4. Article lA, Section (d) of the contract states, inter alia, "· • . the direction
of the working force • • • is vested exclusively in the Employer."
5. Article XXIII of the Contract provides
for settlement of disputes.
6. Complainant has suffered no loss in
pay due to his transfer and is in the same
classification as he was prior to this transfer.
Complainant continues to work on the same
shift.

307

7. Complainant filed a Discrimination
Complaint with the Mine Safety and Health
Administration (MSHA). MSHA found that no
violation 0£ Section 105(c) of the Act existed.
Bench Ruling Denying the Complainant's Motion for a
Continuance
Complainant's counsel telephoned me at my hotel on the
afternoon of the day before the scheduled commencement of the
hearing. He advised me that he had just been retained by
Mr. Tarvin to represent him, and he requested a continuance in
order to prepare his case. I advised counsel that his request
was denied, but that he would be given an opportunity to
re-new his motion on the record after the convening of the
hearing, and that I would consider any further arguments after
an opportunity to hear further as to why he was not retained
by ~r. Tarvin earlier than a day before the hearing.
At the hearing, Mr. Tarvin explained that his late retention of counsel was due to the fact that he had previously
believed that his UMWA Union District 20 off ice would represent him in this matter. Mr. Tarvin confirmed that he contacted the union 3 weeks prior to the hearing, and spoke with
one of its representatives. Union representative Thomas Ed
Wilson, who was present in the courtroom, confirmed that he
had spoken to Mr. Tarvin "about the court case coming up," but
that he had not seen any further correspondence on the matter
from July until the present. Mr. Wilson stated that he was
under the impression that the Department of Labor's Solicitor's Office would represent Mr. Tarvin, and he came to that
conclusion because he had not seen any correspondence between
Mr. Tarvin and the respondent. Mr. Wilson was aware of the
fact that MSHA advised Mr. Tarvin of the fact that it did not
believe that a violation had occurred, and that Mr. Tarvin had
written to the Commission for further relief. From that point
on, Mr. Wilson stated "the next thing I know the case is
coming to trial" (Tr. 6-9).
Mr. Tarvin acknowledged that he was made aware of the
fact that based on MSHA's investigation of his complaint, MSHA
was of the opinion that the respondent did not discriminate
against him and was not in violation of section 105(c) of the
Act, through MSHA's letter of April 17, 1987, informing him of
its decision. When asked whether it was his understanding at
that time that when he filed his complaint with the Commission
he would be proceeding on his own, Mr. Tarvin responded "I
still thought the union lawyer was going to be representing
me" (Tr. ·9). When asked whether he believed that MSHA would

308

be representing him, Mr. Tarvin responded "I really don't
know" (Tr. 10). With regard to his belief that the union
would represent him, Mr. Tarvin stated "Well, I thought they
would have a lawyer here, you know.
If I'd knowed that they
wouldn't, I would have got a lawyer of my own, you know" (Tr.
10).
The parties were reminded of the fact that given the
presence of counsel, the number of witnesses present, a court
reporter, and the time and expense expended in convening the
hearing upon more than timely notice to the parties, it was my
view that Mr. Tarvin had more than ample time to retain
counsel, and the request for a continuance was neither timely
or justified, and it was denied (Tr. 10).
I reviewed and discussed Mr. Tarvin's complaint with the
parties, including the answer and the defense presented by the
respondent.
I pointed out that the facts did not appear to be
complicated, and that the issue presented was rather basic and
simple (Tr. 11-14). Mr. Tarvin's counsel was afforded an
opportunity to review the proposed stipulations tendered by
the respondent (Tr. 16-19), and he was afforded an opportunity
to review the official record with respect to the complaint,
and to speak with Mr. Tarvin and his witnesses, who were present, before the taking of any testimony. Counsel was also
afforded an opportunity to review MSHA's report of investigation, which was made available by the respondent, and he made
a copy of the report for his file (Tr. 82).
In addition to the testimony of Mr. Tarvin, three
witnesses were called to testify on his behalf. I take note
of the fact that in the course of the hearing, Mr. Tarvin's
counsel confirmed that while he has not previously been
involved in discrimination cases, he has some knowledge about
coal mining, and has been involved in two or three coal cases
in the past. He also displayed a keen awareness of the issues
presented in this case, and conducted a most effective direct
examination of his witnesses, and cross-examination of his
adversqry witnesses (Tr. 112-113~ Tr. 240-250). Although the
parties waived the filing of posthearing briefs, they were
afforded a full opportunity to state their positions and to
give supporting arguments on the record (Tr. 239-251), and I
have considered these arguments in the course of my decision
of this case. Under all of these circumstances, I cannot
conclude that Mr. Tarvin has been prejudiced by my denial of
his request for a continuance of the hearing.
"

309

Complainant's Testimony and Evidence
Complainant Robert L. Tarvin testified that he has been
employed by the respondent for 3 years, and is presently a
shuttle car operator. He has never been disciplined for
operating the machine dangerously, nor has he been criticized
in any manner concerning the operation of the machine. He
confirmed that he is a member of a ten-person crew who work
together on a particular section. On the evening of ·
February 16, 1987, his crew was assigned to the No. 1 Section,
and he was assigned to that crew approximately 6-months
earlier (Tr. 19-24).
Mr. Tarvin stated that on the evening of February 16,
1987, while operating a shuttle car at the Number 2 place on
the section, he pulled his car in behind a continuous-mining
machine which had "gassed out." He explained that the miner
automatically shuts down in any area where the methane level
reaches 2 percent or more. The place was being cut, and as he
looked over his 5huttle car, he observed that no ventilation
curtain was installed to course the air around the face. He
was positioned approximately 10 feet behind the miner machine,
and when he observed that the curtain was not up, he backed
his machine completely out of the area, informed the miner
crew that "they needed to get the curtain up," and he left to
suaunon the section foreman, Gary Allinson. After returning
with the foreman, Mr. Allinson looked into the area and
instructed the crew to put up some curtain, and Mr. Tarvin
stated that he informed Mr. Allinson that no curtain had been
up in the 20 foot cut, and that "there was one more shuttle
car left on the clean up" (Tr. 27). Mr. Allinson sent the
miner helper to obtain some curtain, and he returned with the
curtain approximately 8 minutes later and put it up (Tr. 28).
Mr. Tarvin confirmed that although ventilation curtain
had been installed on the previous cut, when the miner machine
proceeded to cut the next 20 feet, the curtain was not
advanced or put up, and when asked why the curtain was not
advanced, he responded "the miner crew was trying to cut--they
was trying to break a record, you know, each one trying to
outdo the other one (Tr. 28).
Mr. Tarvin stated that after the curtain was put up,
since it was the end of the work shift, he loaded out one more
load of coal, finished cleaning up, and prepared to leave to
go home. Before leaving, he informed Mr. Allinson that he
would report the matter to the safety committee. Mr. Tarvin
confirmed that before leaving the mine that evening, he
reported ·the matter to safety committeeman Robert Glasgow.

310

Mr. Glasgow discussed the matter with Mr. Allinson, and "got
on his case" about the curtain being down, and Mr. Allinson
admitted that the curtain was not up. Mr. Tarvin had no
knowledge about any violation being written, nor was he aware
of any formal complaint being filed with MSHA over the accident. He simply reported it to the safety committeeman (Tr.
30).
Mr. Tarvin stated that he reported to work the next evening, February 17, but Mr. Allinson was not at work. The
following evening, February 18, while in the bath house preparing for work, Mr~ Allinson informed him that he was needed on
rock crew foreman Scott's crew, and that he was to go with
Mr. Scott. Mr. Tarvin explained that rock crew work is done
outby the face, and the work includes the construction of overcasts, cribs, loading out rock, and picking up trash, and does
not involve coal production. Although he is still classified
as a shuttle car operator, and is occasionally used in that
capacity on the construction crew to load out rock, Mr. Tarvin
preferred to be back on his coal producing crew doing the job
that he bid for. When asked why, Mr. Tarvin responded "it
just seems like I was taken off because I told them about the
safety. I feel like I was discriminated against. I'd rather
be in a producing section" (Tr. 35-36).
Mr. Tarvin stated that he was aware of other miners who
were transferred to the rock crew for making complaints, and
he believed that he was transferred to punish him for making
complaints. He confirmed that after he was transferred from
the No. 1 Section, he was replaced as a shuttle car operator
on that section by an inside laborer, Tommy "Dukey." As a
result of this, Mr. Tarvin filed a grievance, and the job was
placed for bid. The laborer was removed from the job, and
Mr. Eldon Sides successfully bid on the job, and he presently
occupies it (Tr. 36-41).
Mr. Tarvin confirmed that prior to his transfer to the
rock crew, he had been on Mr. Allinson's crew for approximately 6 months, and that he was originally placed there as a
result of a grievance he filed against another foreman, John
Kuzio. Mr. Tarvin stated that he was taken off Mr. Kuzio's
section after complaining to him that the shuttle car he was
operating had no brakes. Mr. Tarvin stated that he filed a
grievance, as well as a complaint with MSHA, and that the
grievance was arbitrated. However, the case was resolved at
the third stage of the grievance, and he was awarded his job
back, and placed on Mr. Allinson's crew. Mr. Tarvin claimed
that MSHA investigated his complaint, but found no violation,
and the rBspondent's counsel disputed this claim (Tr. 41-43).

311

Mr. Tarvin stated that Mr. Allinson was aware of his complaints while working with Mr. Kuzio, but that he had no prior
trouble with Mr. Allinson until he was transferred to the rock
crew (Tr. 44).
Apart from running over cables "once in awhile"·while
passing another shuttle car, which other operators also do,
Mr. Tarvin denied that anyone had ever told·him that he was
having problems with trailing cables, or that anyone complained about his operation of the shuttle car (Tr. 44-45).
Mr. Tarvin confirmed that he had reminded his crew 2-weeks
prior to his .transfer for the need to check for methane, but
they just "laughed it off," and he filed no complaint. He
also confirmed that prior to his complaint to Mr. Allinson
about the curtain, he had never filed any safety complaints
with the safety committee, or with MSHA or state inspectors
(Tr. 46-49).
Mr. Tarvin confirmed that he lost no status or pay as a
result of his transfer, and is still working the same shift.
Assuming he prevails on his complaint, he simply wishes to be
put back with his prior crew on a coal producing section (Tr.
50) •

On cross-examination, Mr. Tarvin confirmed that while he
did not complain to MSHA about the fact that members of his
crew were not using their methane monitors to check for methane, he did inform Mr. Allinson about the matter, and after
that, the crew used the monitors (Tr. 51-52). Mr. Tarvin conceded that no action was taken against him as a result of his
complaint to Mr. Allinson (·rr. 54).
Although Mr. Tarvin contended that the respondent was
utilizing untrained and unskilled general laborers as shuttle
car operators, he never complained, and he conceded that
before becoming a shuttle car operator, he too was a general
laborer and was trained as a shuttle car operator. Although
he insisted that untrained laborers operate shuttle cars, he
stated "I don't know whether they're test trained or not" (Tr.
6 2) •

Mr. Tarvin confirmed that someone classified as a shuttle
car operator was working on the rock crew before he was transferred, and that after that person bid off that job, a vacancy
resulted. However, he contended that after the vacancy was
posted, it was removed, and the job was not awarded to anyone,
and he denied that he was transferred to fill that vacancy
(Tr. 64-65). He conceded that when he initially bid on a
shuttle ear job, his bid was for that specific job, rather

312

than a bid for any particular place in the mine, because the
places are always moving. He "guessed" that the respondent
had the right to place him in any shuttle car operator's job
in the mine, regardless of the working section, as long as he
continued to operate a shuttle car. He conceded that the
respondent may assign him as a shuttle car operator for "one
night," and that the shifting of personnel and job bidding is
a contract matter. When asked whether it was true that he
does not have to necessarily operate a shuttle car as long as
he is working and being paid in his job classification, he
responded "I don't know that" (Tr. 66).
Mr. Tarvin contended that although ten shuttle car loads
of coal had been loaded OQt during the course of his shift on
the evening of February 16, he first observed that the curtain
was not up when he pulled in behind the gassed out mining
machine. He explained that his position on the shuttle car
placed him on the opposite side of the curtain and he could
not see it (Tr. 76). Mr. Tarvin disputed any suggestion that
the mine bottom was being graded as it was cut, or that the
curtain was installed, but simply down, and he insisted that
the curtain was not put up at all (Tr. 77-79). He conceded
that since the miner was gassed out, his shuttle car could not
have been loaded anyway, and that he did not stop production
or refuse to work. He reaffirmed his belief that he was transferred because he complained to Mr. Allinson about the curtain, and that "I was ran off when I told the safety man about
it" (Tr. 80). Mr. Tarvin admitted that while the committeeman
advised him later in the bath house on February 16, that
Mr. Allinson had admitted to him that the curtain was down, he
could not remember telling the safety committeeman the next
day that he was transferred because of his reporting the fact
that coal was being mined without a curtain (Tr. 81).
In response to further questions, Mr. Tarvin stated that
he did not speak with committeeman Glasgow the day after he
was transferred, could not recall speaking with him after
that, and that he could' have asked why he was no longer with
Mr. Allinson. Mr. Tarvin denied that Mr. Glasgow ever advised
him that he was transferred because he had trouble running
over cable (Tr. 85).
Mr. Tarvin identified a copy of the grievance that he
filed, and while it reflects that it was settled, Mr. Tarvin
stated that he did not agree with the settlement disposition
(exhibit R-3, Tr. 86). Mr. Tarvin's counsel explained that
the union has the authority to settle a grievance which is not
arbitrated, even though the miner does not agree with that
decision -(Tr. 87).

313

Eldon Sides, shuttle car and ram car operator, testified
that subsequent to Mr. Tarvin's transfer from the production
section to the rock construction section, the vacancy created
was put up for bid to replace Mr. Tarvin; and he bid on the
job and got it. However, immediately after Mr. Tarvin's transfer, and before the job was posted for bid, a general inside
laborer was assigned to the section. Mr. Sides stated that
when he got the job, he continued to work on the No. 1. Section
for a month or two until the entire crew was moved to the
No. 4 Section and began mining there.
No other crew replaced
the crew that moved from the No. 1 Section, and it remained an
idle evening shift, with only an electrician and a service
crew there working to prepare the section for the day shift.
Although the day shift worked the section, it remained idle
during the evening (Tr. 97-101).
Mr. Sides confirmed that prior to bidding on the vacancy
created by Mr. Tarvin's transfer, he had bid on a shuttle car
operator's job vacancy on the rock crew created approximately
2 months before Mr. Tarvin's transfer. The vacancy came about
when the rock crew shuttle car operator transferred to another
job. However, the respondent withdrew the job bid, and stated
that it was posted in error, and that there was no vacancy.
As far as he knew, the job was never re-posted for bid, and he
simply waited until he bid on Mr. Tarvin's former job on the
No. 1 production section (Tr. 106).
On cross-examination, although Mr. Sides contended that
MSHA was "involved" in the incident concerning the ventilation
curtain which Mr. Tarvin reported, he had no knowledge whether
a citation was issued or whether any investigation was conducted (Tr. 107). With regar,d to the job biddings he testified about, he could furnish no specific details or dates. He
confirmed that when anyone bids on a job, they bid the specific job, and not the location of the job, and stated that
"you can go anywhere," and "wherever management wants to put
you," including the rock project (Tr. 107-109). Mr. Sides
confirmed that he has never filed any safety complaints (Tr.
120).'
Marteen Nichols, testified that he is employed by the
respondent as a general inside laborer on the rock crew. He
identified the individual who worked on the same rock crew,
and who subsequently transferred from the job filled by
Mr. Tarvin when he was transferred to the crew, as
Ms. Elizabeth Hamner. He explained her duties as follows (Tr.
122-123):

314

A.
She was just basically like anyone else
that was on the rock crew. If it was rock dusting, we all rock dusted. If it was picking up
trash, we picked up trash. If we had rock to
be hauled, we hauled rock, she was just like
everybody else. The rock crew is just a crew
more or less.

Q.

Did she operate a shuttle car?

A.
If there was a shuttle car that needed to
be operated, she would run one -- not a shuttle
car, but a ram car.

Q.

A ram car?

A. Right.
I think the reason she was on the
section was because she didn't run a shuttle
car. She just ran a ram car.

Q.

What's the difference?

A. Well, the ram cars are battery operated.
You've got a little more visibility out of them
and they're a little bit simplier to operate.

Q. Are there any shuttle car used on the rock
crew?
A.
If we go to a section that needs rock work
that has shuttle cars, we use shuttle cars.

Q. Do you use ram cars more often than shuttle
cars?
A. Since they've done away with most of the
ram cars we don't. You know, the section that
we're on now has ram cars, but that's the first
section we've had ram cars for awhile.
Mr. Nichols stated that Ms. Hamner transferred from the
rock crew when she bid on a job on the day shift, and he could
not remember anyone replacing her immediately. Since there
was no other ram car ooerators to ooerate the cars after she
left, either he or oth~r crew membe~s would operate the ram
and shuttle cars as needed. Mr. Nichols confirmed that work
on the rock is such "that you might run a shuttle car one day
and you might go months and you'll never run one for a month"
(Tr. 124).. He confirmed that the rock crew is usually

315

short-handed, and that miners are sometimes borrowed from the
rock section and sent elsewhere to work (Tr. 125).
Mr. Nichols stated that several weeks or a month elapsed after
Ms. Hamner left the rock crew before Mr. Tarvin arrived, and
in the interim, other rock crew members, including laborers,
would operate the shuttle cars. It was not unusual for
laborers to run cars because they use this opportunity to
train on the cars, and then bid for one of those jobs (Tr.
126).
Mr. Nichols could not recall what the rock crew was doing
when Mr. Tarvin was first assigned there, and he confirmed
that when he worked with Mr. Tarvin at another coal company
prior to his present job, Mr. Tarvin never had any problems
with his shuttle car cable. Mr. Nichols stated that he worked
one night with Mr. Tarvin on Mr. ~llinson's production crew
and had no problems coordinating the shuttle cars with
Mr. Tarvin, nor has he heard of any su~h problems (Tr.
128-129).
On cross-examination, Mr. Nichols confirmed that he·could
not recall the dates of Ms. Hamner's departure, and
Mr. Tarvin's arrival on the rock crew, but it was possible
that Ms. Hamner left on February 15, approximately 4 days
prior to Mr. Tarvin's arrival (Tr. 132). Mr. Nichols recalled
that when Ms. Hamner bid on the day shift job, she remained on
the rock crew for awhile before leaving (Tr. 133).
Michael Gaines, ram car/shuttle car operator, testified
that he worked with Mr. Tarvin for 2 or 3 months on the No. 1
production section in F~bruary, 1987. Mr. Gaines could recall
no problems that Mr. Tarvin ev~r had with his car or cable
during the time he worked with him, nor could he recall foreman Allinson or any other member of management complaining
about Mr. Tarvin's operation of his shuttle car (Tr. 137). He
could recall no crew members complaining or receiving complaints about the manner in which Mr. Tarvin operated his
shuttle car, and he confirmed that cable problems occur when
the cars are operating in the same entry and have to pass each
other close together (Tr. 136-137).
On cross-examination, with regard to the ventilation curtain, Mr. Gaines stated that he paid little attention to it,
and after Mr. Tarvin advised him that it was 20 feet back from
the face, Mr. Gaines told him that he would check it on his
next trip. Mr. Gaines stated that when he went back, the curtain "may have been down," and "evidently, it was because when
I went back, they were working on it" (Tr. 141-142). He estimated that a minute or two passed from the time Mr. Tarvin

316

advised him about the curtain, and the time he observed the
curtain being put back up, and he could not recall whether the
bottom was being graded at that time (Tr. 142).
Mr. Tarvin was recalled, and confirmed that when he
advised Mr. Allinson that the curtain was down, approximately
8 minutes transpired before the matter was taken care of, and
work resumed after this was done. When asked about the statement in his complaint that Mr. Allinson removed him from the
section for "refusing to load a shuttle car while the line
curtain was 20 feet outby the working face," Mr. Tarvin confirmed that he never said anything to Mr. Allinson that he
would not work while the curtain was down, but simply went to
find him and informed him that the curtain was down.
Mr. Allinson. Mr. Tarvin stated that "I didn't tell him anything except the curtain needed to be up" (Tr. 150).
Respondent's Testimony and Evidence
Gary Allinson, section foreman, testified that on the
evening of February 16, 1987, he was the foreman on the No. 1
Section, and that at 10:00 p.m., he went into the section
where the continuous-miner was mining and observed Mr. Tarvin
sitting in his almost fully loaded shuttle car. Mr. Tarvin
informed him that the ventilation curtain "was down and it was
too far back." Mr. Allinson then spoke with the miner operator and helper and they installed a curtain. The miner operator informed him that he was grading some bottom and needed
additional clearance which he had forgotten to take earlier.
Mr. Allinson stated that no coal production was lost and that
"I didn't think it is a very substantial complaint." He
denied that he transferred Mr. Tarvin because of the complaint
because "I don't have the right to do that," and he also
denied that he discussed the incident with management, or that
he asked that Mr. Tarvin be transferred or discipline because
of the incident (Tr. 151-153).
On cross-examination, Mr. Allinson stated that Mr. Tarvin
worked for him for less than 6 months, and when asked why he
was transferred, he stated as follows (Tr. 155-157):
A.
I don't know exactly why. I have a good
idea why.
I think it was just because of his
track record, as far as his ability to run the

317

car and the amount of down time we had on him~
He was just not that good of a car operator.

*

*

*

*

*

*

*

THE WITNESS: He would run over his cable. He
had a lot of problems with his cable. He was
slow. Other members of the section, other
union representatives would come to me -- this
was on the crew of nine men, and they had complaints about him. Things that I never seen
Mr. Tarvin do, the union people coming to me
and telling me things that he had done.
Mr. Allinson confirmed that he had never "written up"
Mr. Tarvin, and when asked to document his assertion that
Mr. Tarvin had problems with his shuttle car cables, he
alluded to the daily foreman's production report CP&D report)
(Exhibit R-2). He explained that the reports simply show the
shuttle car "down time," but do not reflect the name of the
shuttle car operator, nor do they provide any details concerning any problems with cables (Tr. 157-158).
Mr. Allinson stated that in some instances, if a shuttle
car operator runs over his cable, this would be grounds for
disciplinary action against the operator. He confirmed that
he has never disciplined Mr. Tarvin in this regard, and confirmed that Mr. Tarvin continue~ to operate a shuttle car for
him after he had cut cables. He could not provide any specific dates or details concerning the cutting of cables by
Mr. Tarvin, and confirmed that in the interest of "team work,"
he is lenient with his crew, and conceded that he ignored
Mr. Tarvin's running over cables (Tr. 160).
Mr. Allinson identified exhibit R-2 as a production
report filled out by foreman James Hilliard, on the evening
shift of February 17, 1987, and it reflects that shuttle car
No. 60 was down four times that day, and that shuttle car
No. 59 had a "cable in two," but he could not state which car
was operated by Mr. Tarvin because "I wasn't there that day"
(Tr. 16l). He believed that Mr. Gaines operated the No. 59
car, and stated that "Mr. Gaines seldom ever cut a cable" (Tr.
162) .
Mr. Allinson stated that Mr. Tarvin "may have" been transferred when the No. 1 Section "mined out," and that "I don't
handle that part of it." He confirmed that he was later told
by mine foreman Frank Blake that Mr. Tarvin was transferred
because the section had "mined out," and that the transfer

318

took place "a couple of days" after the curtain incident. He
explained that the section was "mined out" in that after
advancing at six entries, mining stopped, and the area was
cleaned up and turned in another direction. All ventilation
was being established, four new entries were started, grading
work was taking place, and "we stopped the section going."
However, they were still in section 1, and the crew continued
in that section, Mr. Gaines continued as a shuttle car operator on the section, but Mr. Tarvin was replaced by Wilmer
Smith, who is knowri as "Dukey," a general inside laborer (Tr.
165) .
Mr. Allinson confirmed that while he may have informed
Mr. Tarvin that he would be going with foreman Scott's rock
crew on February 18, he could not recall any conversation with
Mr. Tarvin, and he did not discuss it with Mr. Scott.
Mr. Allinson explained that he has 15 minutes to "line up" his
available crew and has no time to discuss or "bicker" over
over who will work on his crew. He further explained that
Mr. Blake designates the crew members with "no questions
asked," and that at the time of Mr. Tarvin's transfer, he did
not discuss the matter with· Mr. Blake, that "it happens all
the time," and "I can have a different person on my crew every
night" (Tr. 167).
Mr. Allinson confirmed that he has nothing to do with the
job bidding process, and that his duties do not include posting jobs for bid (Tr. 167). He denied that he was ever disciplined over the curtain incident, and stated that he did not
come to work on February 17, the day after that incident,
because he had to take his wife to the hospital (Tr. 168).
Mr. Allinson recalled one occasion prior to Mr. Tarvin's
transfer when he spoke to him about not bringing his shuttle
car up to the continuous miner for loading, and that he told
Mr. Tarvin that "he needed to do better," and that Mr. Tarvin
responded "I am doing better, I'm doing the best I can" (Tr.
175). Mr. Allinson also stated that Mr. Tarvin frequently cut
his car cable, and that it is reported on the production
records. Respondent's counsel produced several copies of the
production reports for January to March, 1987, and reviewed
them. The reports, which were not offered for the record,
alluded to the No. 59 and No. 60 shuttle cars, and Mr. Tarvin
confirmed that he operated the No. 60 car (Tr. 176).
Mr. Allinson stated that Mr. Tarvin ran over and cut the
shuttle car cable "approximately every night or every other
night in the three or four months that he worked for me" (Tr.
178-179). In one instance, or possibly three or four times,
he personally observed Mr. Tarvin cut his cable (Tr. 179, 181).

319

When asked whether or not the cutting of cables by Mr. Tarvin
is reflected on the reports in question, Mr. Allinson
responded "whether it was 59 car or 60 car, I don't know" (Tr.
180). He confirmed that accidents do happen, and that the
cable cutting was probably unintentional (Tr. 181). He also
confirmed that he never "wrote up" or gave Mr. Tarvin a "work
slip" for cutting cable, because he does not make it a
practice to write up the crew (Tr. 182). Mr. Allinson agreed
that one could not conclude that the shuttle car "down time"
as reflected in the reports were attributable to Mr. Tarvin
(Tr. 188).
Mr. Allinson stated that he never discussed Mr. Tarvin's
work performance with Mr. Blake, and he confirmed that since
his transfer, Mr. Tarvin has worked for him as a shuttle car
operator on the Number 8 producing section filling in during
the regular operator's absence, and that this has occurred
three or four times (Tr. 184-185). With regard to
Mr. Tarvin's work performance on these occasions, Mr. Allinson
stated (Tr. 185):

Q. And you say you are still having problems
with him?
A. Oh, worse now than ever.
ever.

Q.

Worse now than

Why worse now than ever.

A. Cables, running over cables, and like I
said, I've tried to reason with Mr. Tarvin.
I've tried to take him as slow as I can and
explain to him what I want him to do, to get
off, walk his roadway, look for rocks, look for
things, and stay off that cable, but it hasn't
worked.

Q. Why don't you just tell Mr. Blake
that -- are you required to take a shuttle car
operator that you feel is incompetent.
A. I've got no choice in the matter. That's
Mr. Blake. Mr. Blake directs the work force
and says who goes where. I have no say so
about that.
Mr. Allinson stated that Mr. Blake knew nothing about the
curtain incident, and did not discuss it with him.
Mr. Allinson confirmed that he did discuss the incident with

320

the safety committeeman the following morning by telephone and
informed him that "we have a problem, let's work it out," but
that by the next day, the matter "had ballooned," and
Mr. Allinson believed that Mr. Tarvin filed a safety grievance
over the curtain being down" (Tr. 190). Mr. Allinson again
denied seeking Mr. Tarvin's transfer, and he believed that the
safety grievance was probably filed after the transfer, but
Mr. Allinson did not know whether it was a safety grievance,
or a grievance connected with his transfer (Tr. 191). ·
Mr. Allinson stated that he tried to work the matter out
"one-on-one" with the safety committeeman, because "there was
not really a big deal about it," and that Mr. Tarvin "wasn't
happy with us doing that" (Tr. 191). Mr. Allinson again
denied that "he had it in for Mr. Tarvin" and had him transferred for complaining or "making life miserable for him" (Tr.
19 2}.
Henry F. Blake, III, evening shift mine foreman, testified that his duties include all decisions concerning the
assignment of miners on his shift, and he confirmed that he
made the decision to transfer Mr. Tarvin from the No. 1 section to the rock project. He explained his reasons for the
transfer as follows CTr. 195-196):

Q. Could you tell us why you made that
decision?
A. Like I said, I have to go around and
observe the different sections. I observed
Mr. Tarvin on many occasions on different sections and his manner of work, and I had also
been told by several different section foremen
that his work wasn't up to par in that he hit
other cables. I observed a lot of down time on
his equipment.
One of the main reasons I moved him to
another project was I had a ram car/shuttle car
operator that had bid from the evening shift to
the day shift, leaving a vacancy. This person
I held for approximately 30 days, which I can
hold a person for 30 days before assigning them
or releasing them to go to their new job or n~w
shift.
In this case, I think her name was Liz
Hamner and she went to the day shift.
Mr. Blake could not recall the date that Ms. Hamner left
the rock project, but confirmed that it would have been on a
Friday, a-nd that Mr. Tarvin would have been transferred the

321

next Monday or Tuesday, and within a week. He confirmed that
Mr. Tarvin's section reached a point where it was temporarily
mined outi and since the section was "turning directions" and
ventilation changes needed to be made, the crew was "broken up
for a couple of days," and Mr. Scott needed a shuttle car operator. Mr. Blake confirmed that under the contract, he has the
authority to move anyone in the mine, and that he moved
Mr. Tarvin to fill a vacancy on the rock prQject. He decided
to select Mr. Tarvin because he was aware through his own
observations and from the maintenance foreman that Mr. Tarvin
was having problems. Since the rock project moves at a slower
pace than the producing section, and there are two cars on
that project for use by one individual in the event one
machine breaks down, he does not have to worry about a machine
being down because someone runs over a cable (Tr. 198).
Mr. Blake stated that he was not aware of the ventilation
curtain incident which occurred on February 16, and that he
first became aware of it the following Wednesday or Thursday,
after Mr. Tarvin was transferred. Since he had no knowledge
about the incident, Mr. Blake denied that it had anything·to
do with Mr. Tarvin's transfer (Tr. 200).
On cross-examination, Mr. Blake confirmed that he meets
with his section foremen at least once a week to discuss the
mining qperations, and possible personnel problems. He confirmed that at some point in time he has discussed with
Mr. Allinson "everybody on his crew and everybody with everybody at one point in time" (Tr. 204). He was certain that he
has discussed shuttle car operations and "down time" with
Mr. Allinson, as well as with his maintenance foreman. He
confirmed that he did no~ advise Mr. Allinson that he was
transferring Mr. Tarvin from his crew, and did not believe
that Mr. Allinson was at work when the crew was moved (Tr.
205). He could not recall specifically discussing with
Mr. Allinson the reasons for Mr. Tarvin's transfer.
Mr. Blake confirmed that he reviews and signs the foremen's production reports, and that based on these reviews and
his own ,observations, he made the personnel decision concerning Mr. Tarvin (Tr. 207). Although he did not consider
Mr. Tarvin to be "a bad guy at all" or that he was "deficient"
or a "bad operator," he stated that "my job is to place the
man where I can get the best production with the least amount
of hassle from everybody concerned" (Tr. 211). Since he has
been in the mine 14 to 15 years, Mr. Blake stated that he was
aware of the section "down time" by the reports and his own
observations, and that he was aware of this when he decided to
move Mr. Tarvin (Tr. 211). With regard to his prior knowledge

322

of the ventilation curtain incident, Mr. Blake stated as
follows (Tr. 216-217):
THE WITNESS: You -- the bottom line is, did I
move Tarvin because of the line curtain?
That's what I hear y'all asking me. No, I did
not. I moved Mr. Tarvin because I felt
like -- and I've stated my reasons. I had no
knowledge of the line curtain_ being back or him
reporting it to anyone. I think Gary or either
Bob Glasgow, who is a safety committeeman, told
me something about it and I cannot be honest in
telling you exactly how long it was, but we're
going to say three or four days later. That's
being as honest as I can be because I can't
pinpoint it. Your Honor, that is as honest as
I can be. I mean, I can't give you a specific
date, but I know it was after the fact of me
moving him. That's being as honest as I know
how to be with all of you.
When asked why he did not transfer Mr. Tarvin earlier if
he were not considered a good shuttle car operator, Mr. Blake
stated that he became mine foreman in January, 1987, and had
no power to transfer anyone prior to that time (Tr. 219). He
reiterated that his opinion of Mr. Tarvin's work is based on
his personal knowledge and observations, and that he recently
observed Mr. Tarvin run over a miner cable 2 weeks ago because
he got too close to the rib with his shuttle car (Tr. 221).
Mr. Blake conceded that one cannot conclude from simply reviewing production reports that Mr. Tarvin was specifically
responsible for the shuttle car down time noted in the reports
(Tr. 221-223). He reiterated that Mr. Allinson had nothing to
do with the transfer of Mr. Tarvin (Tr. 224). Mr. Blake
stated that the only complaint he was aware of by Mr. Tarvin
was a grievance that he filed a year ago because he was transferred by foreman Rick Nichols, but that he was unaware of the
details (Tr. 225).
With regard to the grievance filed by Mr. ~arvin after
his transfer, (exhibit R-3), Mr. Blake confirmed that although
he became aware of it later, he took no part in the grievance
(Tr. 228). He explained his knowledge of the grievance as
follows at (Tr. 226-227):
A.
I'll tell you, the only thing I know, I was
on the rock project later on and Mr. Tarvin
approached me and I dug this note out of some
of my old notes, and he said I would like to

323

speak with you, and I said okay, and he was
running the shuttle car. He said "what am I
doing here?" I said "running the shuttle car."
He said "you mean to you've got a GIL on a coal
running section and I'm up here." I said
"well, what are you doing?" He said "I'm
running a shuttle car." I said, "well, you
know" -- he said "you're not going to put me
back on a section." I said, "no, I don't have
any intentions," to the best of my knowledge.
I wrote it down after I walked away, and his
voice got very high, about three octaves, four
octaves, I don't know. He said "you'll see,
you'll see, you'll see," and that was work for
George Scott running a shuttle car. If he
filed a grievance after that, y'all never
brought me any grievance and I didn't know
about it.
With regard to Mr. Tarvin's assertion that rock project
foreman Scott uses a laborer, rather than Mr. Tarvin, when
there is a need for shuttle car operator, Mr. Blake stated
that he has never seen this done, and that he found it hard to
believe. If he was aware of this, he would instruct the foreman to use Mr. Tarvin on the shuttle car. Mr. Blake stated
that while it was possible for a foreman on the rock project
to use a laborer who knew how to operate a shuttle car instead
of Mr. Tarvin, this should not occur "because he's got a bid
man there to run the car" (Tr. 231).
When asl<:ed who informed Mr. Tarvin of his transfer,
Mr. Blake stated as follows (Tr. 232-233):

Q. Who told Mr. Tarvin that he was being
transferred, do you know?
A.
I think I told Mr. Scott to take him with
him that day. That's usually how -- I don't go
out and tell the rank and file union people
that I'm transferring them here and there. I
go to my foremen and line them up with who I
want them to take.

Q. Would you have notified Mr. Allinson that
Mr. Tarvin was being transferred?
A.

I don't think Gary was there.

324

Q. If he was there would you have notified
him?
A.. I don't know who I told. I told one of the
foremen to take him, or go make the change.
That's how I do it.

Q.

Could it have been Mr. Allinson?

A.
It could have been but I don't remember
whether it was Mr. Allinson or Mr. Scott, but I
transferred him to Mr. Scott.
Mr. Tarvin was recalled by the Court, and when asked
whether he had ever run over a cable with his shuttle car, or
had problems witn the car which may have caused any down time,
as testified to by Mr. Allinson, he responded "maybe once a
month or something like that. Not every other night like he
said 1' (Tr. 234). Mr. Tarvin clarified his prior testimony,
and stated that he did not mean to imply that when there is
shuttle car work to be done on the rock project, that a
laborer is assigned that wor~, rather than him. His complaint
is that when there is a need for a substitute shuttle car
operator on another section, a laborer from the rock crew is
sent to the section, rather than him, and he is used for crib
work (Tr. 234). However, he conceded that on at least two
occasions since he has been on the rock crew, he has in fact
been assigned to Mr. Allinson's production crew as a substi~
tute shuttle car operator (Tr. 235).
Mr. Tarvin stated that in the bathhouse on February 18,
2 days after the curtain incident, Mr. Allinson "told me I
wasn't going with him no more, to go with Mr. Scott" (Tr. 236).
As he finished dressing, Mr. Scott "came in and told me to go
with him" (Tr. 237). Mr. Tarvin confirmed that he did not
speak with Mr. Blake at this time, but did speak with him 2 or
3 weeks later when he came to the section. Mr. Tarvin further
confirmed that he assumed that Mr. Allinson made the decision
to transfer him because "he's the one that came told me I
wasn't going with him 'anymore" (Tr. 237).
Respondent's Arguments
The respondent argues that even assuming that Mr. Tarvin
has made a prima facie case that his transfer came about as a
result of his complaint about the ventilation curtain, the
respondent has completely rebutted this claim, and has shown
that Mr. Blake made the decision to transfer Mr. Tarvin for
legitimate business reasons, and that he was unaware of the

325

curtain incident at the time he made the decision to transfer
Mr. Tarvin. The respondent argues further that the dispute
which gave rise to the discrimination complaint is a contractual matter which was taken to grievance by Mr. Tarvin, and
should not be relitigated in this case (Tr. 239-240).
Complainant's Arguments
The complainant maintains that the purported "business
reasons" justification for his transfer are entirely
pretexual, and that the respondent's assertions concerning his
alleged deficiencies are not documented and have been fabricated. The complainant suggests that although the respondent
could have transferred him at any time, it did not do so until
after he complained about the curtain, and that "it's too much
of a coincidence that it was done two days after" his complaint. Conceding that the respondent took immediate action
to correct the curtain condition, the complainant nonetheless
believes that the coincidence of the transfer after alleged
months of ineptitude with regard to his work, is too much to
believe. Complainant suggests that he was transferred either
as punishment or retaliation, or because Mr. Allinson did not
want him on the section after he complained, and that this was
a violation of the Act (Tr. 240-245). The complainant agreed
that there is no issue of any "work refusal" in this case, and
that when he observed that the curtain down, he immediately
summoned his foreman to take care of the problem (Tr.
246-248).
Findings and Conclusions
In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining miner
bears the burden of production and proof to establish (1) that
he engaged in protected activity and (2) that the adverse
action complained of was motivated in any part by that activity~
Secretary on behalf of Pasula v. Consolidation Coal
Company, 2 FMSHRC 2768 (1980), rev'd on other grounds sub.
nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211
(3d Cir. 1981); Secretary on behalf of Robinette v. United
castle Coal Company, 3 FMSHRC 803 (1981); Secretary on behalf
of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842
(1984); Secretary on oehalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC.2508, 2510-2511 (November 1981), rev'd on other
grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86
(D.C. Cir. 1983).
·rhe operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse

326

action was in no way motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner it
may nevertheless affirmatively defend by proving that it was ·
also motivated by the miner's unprotected activities al'one. ·
The operator bears the burden of proof with regard to the·
affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC
lg35 (1982).
The ultimate burden of persuasion does not shift
from the complainant. Robinette, supra. Se.e .also Boich v.
FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford
Construction Company, No. 83~1566 D.C. Cir. (April 20, 1984)
(specifically-approving the Commission's Fasula-Robinette
test). See also ·NLRB v. Transportation Management
Corporation, 462 U.S. 393, 76 L.ed.2d 667 (1983), where the
Supreme Court approved the NLRB's virtually identical analysis
for discrimination cases arising under the National Labor
Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if
the facts support a reasonable inference of discriminatory
intent. Secretary on behalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2510-11 (November 1981), rev'd on other ground~
sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir.
1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99
(June 1984). As the Eight Circuit analogously stated with
regard to discrimination cases arising under the National Labor
Relations Act in NLRB v. Melrose Processing Co., 351 F.2d 693,
69 8 C 8th Cir. 19 65) :
It would indeed be the unusual case in
which the link between the discharge and the
[protected] activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can
be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the [NLRB] is
free to draw any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the.·
complaining miner by the operator.

327

Mr. Tarvin's Protected Activity
The iecord in this case establishes that Mr. Tarvin had
worked under Mr. Allinson's supervision on the No. 1 producing
section as a shuttle car operator foe approximately 6-months
pcior to his transfer to the rock project on or about
February 18, 19 87. Mr. ·rarvin was not a member of the mine
safety committee, and I find no credible evidence to suggest
that he was a "safety activist," or that he regularly filed
safety complaints. Indeed, Mr. Tarvin confirmed that prior to
his bringing the ventilation curtain matter to the attention
of his forem~n, Gary Allinson, on the evening of February 16,
1987, he had not previously filed any safety complaints with
mine management, the safety committee, or with any state or
Federal mine enforcement agencies. Although Mr. Tarvin stated
that approximately 3-weeks prior to his transfer, he mentioned
to Mr. Allinson and his crew that they were not using their
methane detectors to check for methane in the section,
Mr. Tarvin confirmed that he did not report the matter to
MSHA, and that after he spoke with Mr. Allinson, the crew
began to use their detectors. Further, Mr. Tarvin conceded
that his "complaint" in this regard did not result in any
action being taken against him, and I find no credible
evidentiary basis for concluding that this particular incident
had anything to do with Mr. Tarvin's transfer.
The credible evidence in this case establishes that
Mr. Tarvin did in fact register and communicate a timely
safety complaint to Mr. Allinson, as well as to a member of
the mine safety committee, during the end of the working shift
on the evening of February 18, 1987. Mr. Tarvin's complaint
concerned a ventilation curtain which was not in place, or had
not been advanced, to within 10 f~et of the working face in an
area where coal was being mined, and where Mr. Tarvin was
expected to work while operating his shuttle car. I find no
credible evidence to establish that Mr. Tarvin reoorted the
matter to' any state or Federal inspector, or that~any violation was issued to the respondent as a result of the complaint.
Further, the record establishes that once the matter was
brought to Mr. Allinson's attention, he took immediate action
by instructing members of the work crew who were present to
install or advance the curtain to the required distance from
the face.
Although Mr. Tarvin's original complaint statement
filed with MSHA on February 18, 1987, suggested that
Mr. Tarvin may have refused to work because the ventilation
curtain was not located where it should have been, I find no
credible evidence to support any such conclusion, and in fact,
Mr. Tarvin has conceded that he did not refuse to work because
of the absence of the curtain.

328

I conclude and find that Mr. Tarvin's February 16, 1987,
complaint to Mr. Allinson concerning the ventilation curtain
is protected activity, and that mine management, including
Mr. Allinson, is prohibited from intimidating or harassing
Mr. Tarvin, or otherwise retaliating against him because of
that complaint. Transferring Mr. Tarvin from one mine section
to another, or similar personnel actions taken against him
because of any protected activity on his part is a form of
retaliatory discrimination which is prohibited by the Act,
Baker v. Interior Board of Mine Operations Appeals, 595 F.2d
746 (D.C. Cir. 1978); Secretary ex rel Johnny N. Chacon v.
Phelps Dodge Corporation, 3 FMSHRC 2508 (November 1981), rev'd
on other grounds, sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983).
Respondent's Motivation for Mr. Tarvin's Transfer
The record establishes that Mr. Tarvin has lost no pay or
job classification status as a result of his transfer, and he
is still on the same work shift (Tr. 50). The relief
requested is that he be put back on a producing section (Tr.
50).
In my view, the trust of Mr. Tarvin's complaint lies in
his belief that the respondent is not fully utilizing him as a
shuttle car operator on the rock section, and has assigned him
to do other work, such as rock dusting, building cribs, cleaning up, or installing ventilation curtains. Mr. Tarvin also
complains that when the need arises for the services of a
shuttle car operator elsewhere in the mine, either by temporary detail or assignment, the respondent assigns a laborer or
someone other than Mr. Tarvin to do this work (Tr. 87-90). As
a matter of fact, Mr. Tarvin candidly admitted that this is
the basis for his complaint (Tr. 92-93).
Mr. Tarvin's assertions that he has not been used as a
shuttle car operator in other sections of the mine since his
transfer are not accurate. Mr. Allinson testified that since
his transfer, Mr. Tarvin has worked for him on the No. 8 producing section on three or four occasions during the absence
of the regular shuttle car operator (Tr. 184-185). Mr. Tarvin
admitted that on at least two occasions since his transfer to
the rock crew, he has worked for Mr. Allinson on a production
crew as a substitute shuttle car operator (Tr. 235).
With regard to Mr. Tarvin's work assignments on the rock
crew, one of his own witnesses, Marteen Nichols, testified
that everyone on the rock crew rock dusted and picked up
trash, including Ms. Hamner, who was a shuttle car and ram car
operator (Tr. 122, 127).

329

Mr. Tarvin's transfer from the production sec4ion to the
rock project was the subject of a contract grievance filed by
Mr. Tarvin's union on his behalf (Tr. R-3). Although the
respondent asserted in its answer to the complaint that the
grievance "was denied," the fact is that the grievance was
settled and did not go to arbitration.
Mr. Tarvin stated that he disagreed with the settlement
of his grievance. However, under the terms of the contract,
any settlement of a grievance apparently becomes final, and
there is nothing to show that Mr. Tarvin's grievance was taken
any further. Mr. Tarvin confirmed that he filed no further
grievances.
I take particular note of the fact that the
grievance form executed by Mr. Tarvin contains no suggestions
that his transfer was in any way connected with any safety
complaints on his part. As a matter of fact, Mr. Tarvin's
grievance appears to be based on an issue of job classif ication, and the relief requested by Mr. Tarvin is shown as "I'm
asking to be retained. on my bidded job CR/C operator on
running section)." The respondent's position is stated as
"Every reasonable effort shall be made to keep an employee at
work on the job duties normally and customarily a part of his
regular job."
Mr. Tarvin confirmed that at the time of his transfer to
the rock section, he did not seek out Mr. Blake to discuss the
matter with him, and there is no evidence that Mr. Tarvin
lodged any protest with Mr. Bla~e at that time, or otherwise
suggested to Mr. Blake that his curtain safety complaint to
Mr. Allinson was the reason for his transfer. As a matter of
fact, Mr. Blake's testimony, which I find credible, establishes that he had no knowledge of Mr. Tarvin's complaint when
.he.made the decision to transfer him. Further, the unrebutted
testimony of Mr. Allinson and Mr. Blake, which I also find
credible, establishes that Mr. Blake alone made the decision
to transfer Mr. Tarvin, and that Mr. Allinson took no part in
that decision •
. Mr~ Tarvin confirmed that he filed his grievance about a
week after his transfer to the rock section on February 18,
1987.
I take note of the fact that the grievance form executed by Mr. Tarvin, (exhibit R-3), contains a notation
"2/25/87. F. Blake" on the line designated "Date of Foreman's
Decision." Mr. Blake testified that he had a conversation
with Mr. Tarvin subsequent to his transfer during which
Mr. Tarvin protested the fact that a laborer was being used on
a production section, while he was left on the rock project.

330

Mr. Blake advised Mr. Tarvin at that time that he had no intention of transferring him back to a production section, and
Mr. Tarvin responded "you'll see, you'll see" (Tr. 226-227).
One can reasonably conclude from this that Mr. Tarvin's
grievance was prompted by Mr. Blake's refusal to transfer him
back to a producing section. As a matter of fact, Mr. Tarvin
confirmed that as a result of his grievance, the laborer who
had been assigned to the shuttle car job on the No. 1 Section
after his transfer, was removed from the job. Mr. Sides
subsequently bid on the position and was awarded the job.
Mr. Tarvin did not pursue the matter further and filed no more
grievances (Tr. 39-40).
With regard to Mr. Tarvin's purported poor work performance, his counsel pointed out that this issue was raised for
the first time during the course of the hearing, and that the
respondent never informed Mr. Tarvin of any poor work performance, and had never given him any work deficiency notices.
Couns~l concluded that the alleged poor work record argument
advanced by the respondent has been fabricated as a further
excuse to justify Mr. Tarvin's discriminatory transfer (Tr.
240-241).
With regard to Mr. Tarvin's alleged poor work performance
as a shuttle car operator on the production section, while it
is ·true that the respondent did not specifically detail this
as pa~t of its initial answer and defense to the complaint, I
take note of the fact that in paragraph four of its answer,
the respondent's counsel did state that Mr. Tarvin's transfer
came about in part because "he was having problems coordinating his activities with those of the other equipment operators." Although Mr. Tarvin's purported problems with his
shuttle car did not result in his being officially disciplined
or reprimanded by the respondent, the testimony of
Mr. Allinson and Mr. Blake, which I find credible, do support
the respondent's contention that Mr. Tarvin has experienced
some problems with running over his cable from time-to-time.
As a matter of fact, Mr. Tarvin admitted that he had run over
cables "once in awhile" (Tr. 44), and that he had experienced
problems with his shutt.le car which resulted in "down time"
"maybe once a month," but not to the degree stated by
Mr. Allinson (Tr. 234).
Both Mr. Allinson and Mr. Blake confirmed that they have
personally observed Mr. Tarvin frequently running over shuttle
car cables, and Mr. Allinson's unrebutted testimony is that he
had previously discussed this with Tarvin and informed him
that he needed to do better. Mr. Allinson explained that
while he was concerned with Mr. Tarvin's performance, he did

331

not "write him up" out of concern for continued "team work"
among his crew, his lenient attitude towards his crew, and his
reluctance to discipline them or to make it a practice to hand
out "work slips" for poor performance. Mr. Allinson further
explained that since Mr. Blake has the sole authority to
assign the work and the crews, he has no say in rejecting a
crew member who may be incompetent.
Mr. Blake testified that since he only assumed the evening shift mine foreman's position in January, 1987, he had no
prior authority to transfer Mr. Tarvin earlier. Mr. Blake
confirmed that his personal observations of Mr. Tarvin running
over cables, and the fact that the section had a lot of "down
time" because of shuttle car problems which may or may not
have been attributable specifically to Mr. Tarvin, was only
one part of the reasons for his decision to transfer him.
After careful consideration of the testimony of Mr. Blake
and Mr. Allinson, which I find credible, and Mr. Tarvin's own
admissions, I cannot conclude that the respondent has concocted or fabricated Mr. Tarvin's problems with his shuttle
car as an excuse for his transfer.
Indeed, Mr. Blake's credible testimony is that Mr. Tarvin's problems with his shuttle
car on a producing section were only a part of the reasons for
his decision to transfer Mr. Tarvin, and the fact that the
respondent failed to include this as part of its original
answer and defense in this case is not particularly
significant.
Mr. Tarvin's counsel asserted that the vacancy on the
rock crew had existed for some time prior to the transfer, and
that other qualified miners we~e available to fill the vacancy
just as easily as Mr. Tarvin (Tr. 102-103). Counsel suggested
that the respondent had an ample opportunity to transfer
Mr. Tarvin to the rock crew prior to his ventilation curtain
complaint, and in view of the fact that the respondent has
contended that Mr. Tarvin's work as a shuttle car operator on
a producing section was less than adequate, the respondent
could haye legitimately transferred him for that reason, but
chose not to do so until he complained to his foreman about
the curtain. Under these circumstances, counsel argued that
the timing of Mr. Tarvin's transfer, shortly after his complaint to his foreman, raises an inference that his transfer
was motivated by his complaint, rather than his alleged poor
work performance, and that the respondent's contention that
Mr. Tarvin was transferred to an existing and available
vacancy on the rock crew because a shuttle car ooerator was
required for work on the' rock project is pretexu~l and simply
an excuse for the discriminatory transfer.

332

Mr. Sides testified that the vacancy on the rock crew
created by Ms. Hamner's successful bid on a day shift job,
came about approximately a month or two prior to Mr. Tarvin's
transfer, and that he (Sides) bid on the job. However,
Mr. Sides confirmed that Ms. Hamner's job vacancy on the rock
crew was withdrawn by the respondent on the ground that it was
posted "in error" and that no jobs were available (Tr. 105,
108). Mr. Sides conceded that when such a vacancy is posted
for bid, management may, in its discretion, assign the
successful bidder to any place in the mine, including the rock
crew, and that one simply bids on the position and not for any
particular mine location (Tr. 108). Mr. Sides also confirmed
that the posting of a shuttle car job indicates that there are
more available jobs than car operators, and that "they needed
jobs on the rock crew" (Tr. 110). Mr. Sides confirmed that
after Mr. Tarvin was transferred, he (Sides) successfully bid
on the job vacancy created by the transfer. Mr. Sides confirmed that Mr. Allinson is no longer his foreman, and he also
confirmed that foremen are in fact moved "every now and then"
(Tr. 114).
Marteen Nichols, who worked on the rock crew with
Ms. Hamner, testified that the rock crew is usually
short-handed because personnel are borrowed for other sections
(Tr. 125). He could not recall anyone immediately replacing
Ms. Hamner after she left the rock crew, and he believed that
several weeks, and possibly a month, passed before Mr. Tarvin
arrived to replace her (Tr. 125). He later stated that he was
unsure of the dates that Ms. Hamner left and Mr. Tarvin
arrived, and that "she was gone and then Robert was up there"
(Tr. 133). He also recalled that Ms. Hamner's departure from
the rock crew after she bid on the day shift job was delayed,
but he did not know the reason for this (Tr. 133).
Mr. Blake confirmed that Ms. Hamner's bid on a day shift
job resulted in a vacancy for a shuttle car operator on the
rock project. He stated that rather than transferring
Ms. Hamner immediately, he kept her on the rock crew for
approximately 30 days, and subsequently transferred Mr. Tarvin
to fill the vacancy. Although he could not recall the
specific dates, Mr. Blake stated that following his usual
practice, Ms. Hamner would have transferred to the day shift
on a Friday, and Mr. Tarvin would have been transferred on a
Monday or Tuesday of the following week. Mr. Blake stated
that his decision to transfer Mr. Tarvin, rather than someone
else, was based on his knowledge of the down time on the
producing section, and the fact that Mr. Tarvin had problems
with his shuttle car on the producing section. Mr. Blake

333

further explained that the work on the rock project is at a
slower pace than the work on the producing section, and since
only one shuttle car is used most of the time on the rock
project, there is little chance of the operator running over
cables. Further, since a back-up car is usually available on
the rock project, in the event one car breaks down, the
operator can simply use the other one to continue to "run the
rock" (Tr. 196-198). Mr. Blake also confirmed that since he
only became the evening shift mine foreman in January, 1987,
he lacked the authority to transfer Mr. Tarvin earlier (Tr.
219-220). Since there is only one shuttle car operator on the
rock project, he needed someone to fill the vacancy created by
Ms. Hamner's bid to a day shift job, and he alone made the
decision to fill it by transferring Mr. Tarvin to the position
(Tr. 223).
After careful consideration of all of the testimony, I
conclude and find that Mr. Blake has provided a plausible and
believable explanation as to why Mr. Tarvin was not transferred earlier to the rock project. More to the point, however, is the fact that as the evening shift mine foreman,·
Mr. Blake had the absolute authority and discretion to assign
and transfer his available mine personnel to any section where
he believed they could be best utilized. Absent any credible
evidence that Mr. Blake's personnel action concerning
Mr. Tarvin was in violation of the contract, or that it was
otherwise arbitrary, or the result of any disparate treatment
of Mr. Tarvin, I cannot conclude that Mr. Blake had any
ulterior motive, such as punishment or retaliation in mind
when he made the decision to transfer Mr. Tarvin to the rock
project.
Mr. Tarvin's counsel also questioned the respondent's
assertion that Mr. Tarvin was transferred because the No. 1
Section was "mined out" and that his services were needed on
the rock project. The use of the term "mined out" by the
respondent in its answer to the complaint does convey the
impression that all of available coal on the section had been
taken, and that there was no further need for Mr. Tarvin on
that section. If this were true, it would lend credence to
the respondent's assertion that there was a legitimate'reason
for Mr. Tarvin's transfer. If not, it would raise an· inference that the respondent may have been motivated by reasons
other than the section being mined out.
Mr. Tarvin testified that after his transfer, the crew
remained on the No. 1 Section (Tr. 32). Mr. Tarvin asserted
that after Mr. Sides successfully bid on the vacancy created
by his transfer, Mr. Sides continued to work on the section

334

for a month and a half, until he and the entire crew were
transferred to the No. 4 Section (Tr. 38, 41). Mr. Tarvin did
not know why they were transferred (Tr. 41).
Mr. Sides testified that when he bid on the job created
by Mr. Tarvin's vacancy on the No. 1 Section, the evening
shift was idled and the entire crew was moved and started
mining on the No. 4 Section. He confirmed that different
shifts are idled from time-to-time, and that after the crew
was moved, an electrician and a service crew were left on the
No. 1 Section (Tr. 100-101). This lends credence to the
following explanation by Mr. Blake as to whether or not the
section had been "mined out" (Tr. 197):
A. The section that Robert was working on was
temporarily mined out.
In other words, it had
reached a point it was going to go. Then the
crew was all broken up for a couple of days to
the best of my memory. Some of them stayed,
some of them went here and there, but the section was turning directions. There was ventilation changes to be made, and I needed an
operator for Mr. Scott. He didn't have one.

Q.

A shuttle car operator?

A.

Right.

Shuttle car/ram car.

Q. As long as you go in conformity with the
contract and don't, of course, discriminate
against people because of race, sex, or age, or
something like that, can you move a person
anywhere in the mine you want to?
A.

I certainly can.

Q. Okay. I don't know if I asked you this or
if you answered it, but could you tell us why
you moved Mr. Tarvin to that position?
A. Mainly there was a vacancy. There was a
vacancy created on the rock project.
While it may not be clear precisely when the crew on the
No. 1 producing section was moved, or whether the area had
been "mined out" in the usual sense of that term, when taken
in context, I believe one can conclude from the testimony presented that active mining on the No. 1 producing section evening shift was temporarily discontinued, and that this was not

335

a particularly unusual event since sections are idled from
time-to-time, and miners are transferred and reassigned on any
particular section. Under the circumstances, I cannot conclude that the respondent's use of the term "mined out" was a
deliberate attempt to conjure up an after-the fact reason to
support Mr. Tarvin's transfer. The record in this case
reflects that Mr. Blake had several reasons for his decision
to transfer Mr. Tarvin, and the discontinuance of mining on
the evening shift was not the sole reason for this action.
Although the timing of Mr. Tarvin's transfer, coming
2 days after he complained to Mr. Allinson about the ventilation curtain, raises an inference that the transfer may have
resulted from the complaint, I conclude and find that the
respondent has rebutted this presumption by a clear preponderance of the credible evidence adduced in this case.
Mr. Tarvin confirmed that he assumed that Mr. Allinson
made the decision to transfer him to the rock crew, and he
believed that he did so in retaliation or to punish him for
co~plaining about the ventilation curtain.
However, the
unrebutted testimony of Mr. Allinson and Mr. Blake, which I
find credible, establishes that Mr. Blake alone made the
transfer decision, and that Mr. Allinson was not a party to
that decision. Mr. Blake's credible testimony also establishes that he was not aware of Mr. Tarvin's safety complaint
to Mr. Allinson at the time he made the decision to transfer
him. Although Mr. Tarvin testified that he was aware of other
miners who were transferred for making safety complaints,
there is absolutely no evidence or testimony to support
Mr. Tarvin's claim.
I find no evidence in this case to even suggest that
Mr. Tarvin has ever been harassed, intimidated, or threatened
by mine management because of his work or any work-related
safety complaints. In fact, the only evidence of any safety
complaints by Mr. Tarvin while in the respondent's employ is
the complaint he made about the ventilation curtain on
February 16, 1987. With regard to Mr. Tarvin's chastizing of
his crew for their alleged failure to use their methane monitor, there is no probative or credible evidence to establish
that this particular allegation resulted in any bona fide
safety complaint lodged with mine management. Further, that
particular incident took nlace much earller than Mr. Tarvin's
transfer, and he conceded~that no action wa3 taken against hin
for any such "complaint," and he did not believe that it had
anything to do with his transfer.

336

I find no credible evidence to establish any disparate
treatment of Mr. Tarvin by the respondent.
As stated earlier,
Mr. Tarvin's ~ssertion that he is not used as a shuttle car
operator while assigned to the rock crew has been rebutted by
Mr. Allinson's credible testimony that since his transfer,
Mr. Tarvin has been assigned to work as a shuttle car operator
for Mr. Allinson on a production section, and Mr. Tarvin himself has admitted that this is the case. Further, the record
establishes that Mr. Tarvin is still classified as a shuttle
car operator, with the same pay, and on the same work shift,
which he enjoyed prior to his transfer. As for Mr. Tarvin's
complaint that he is assigned other work on the rock crew, his
own witness and fellow crewman on the rock crew confirmed that
everyone on the crew, including the shuttle car operator, are
assigned other work duties from time-to-time.
I find Mr. Blake's explanation as to the factors which he
considered in making his decision to transfer Mr. Tarvin to be
reaspnable and plausible, and that his decision was motivated
by a legitimate managerial concern to assign mine personnel
where he best believed they could be utilized as effective and
productive members of the available workforce, rather than to
discriminate against Mr. Tarvin for complaining to
Mr. Allinson about a ventilation curtain which had not been
installed or advanced to its proper location. In short, I
conclude and find that any inference of discriminatory intent
by the respondent in connection with Mr. Tarvin's transfer has
been rebutted by the respondent's credible evidence which I
believe establishes that the transfer of Mr. Tarvin constituted a reasonable and plausible management business-related
decision made by Mr. Blake, the evening shift mine foreman,
acting within his clear authority and discretion to manage his
own mine personnel.
In this regard, I take particular note of
the Commission's decision in Bradley v. Belva Coal Company,
4 FMSHRC 982 (June 1982). Citing its Pasula and Chacon
decision, the Commission stated in part as follows at 4 FMSHRC
993:
"* * * Our function is not to pass on the wisdom or fairness of such asserted business justifications, but rather only
to determine whether they are credible and, if so, whether
they would have motivated the particular operator as claimed."
ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all of the credible testimony
and evidence adduced in this case, I conclude and find that
the complainan~ has failed to establish that his transfer on
or about February 18, 1987, was discriminatory, or motivated
by the respondent's intent to retaliate against him, or to

337

punish him, for exercising his statutory right to make a
safety complaint. to his foreman. Accordingly, the complaint
IS DISMISSED, and the complainant's requests for relief ARE
DENIED.

~
~tras

rg
•
Admi istrative Law Judge
Distribution:
Patrick Nakamura, Esq., 2101 City Federal Building,
Birmingham, AL 35203 (Certified Mail)

R. Stanley Morrow, Harold Rice, Esqs., Jim Walter Resources,
Inc., P.O. Box C-79, Birmingham, AL 35283 (Certified Mail)
H. Gerald Reynolds, Esq., Environmental Counsel, Jim Walter
Corporation, P.O. Box 22601, Tampa, FL 22622 (Certified Mail)
/fb

338

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

HAR 9 1988
EMERY MINING CORPORATION
AND/OR UTAH POWER & LIGHT
COMPANY,
Contestants

CONTEST PROCEEDINGS
Docket No. WEST 87-138-R
Citation No. 2844750; 3/24/87

v.

Docket No. WEST 87-139-R
Citation No. 2844751; 3/24/87

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

Docket No. WEST 87-140-R
Citation No. 2844752; 3/24/87
Docket No. WEST 87-141-R
Citation No. 2844753; 3/24/87

and
UNITED MINE WORKERS OF
AMERICA,
Intervenor

Docket No. WEST 87-142-R
Citation No. 2844754; 3/24/87
Docket No. WEST 87-143-R
Citation No. 2844760; 3/24/87
Docket No. WEST 87-148-R
Citation No. 2844801; 3/24/87
Docket No. WEST 87-149-R
Citation No. 2844803; 3/24/87
Docket No. WEST 87-151-R
•Citation No. 2844806; 3/24/87
Docket No. WEST 87-154-R
Citation No. 2844810; 3/24/87
Docket No. WEST 87-162-R
Citation No. 2844825; 3/24/87
(Consolidated)
Wilberg Mine
Mine I.D. 42-00080

ORDER OF DISMISSAL
Before:

Judge Morris

The issues presented here involve the renewed motion of Utah
Power & Light, Mining Division, C"UP&L") for a summary decision in
its favor pursuant to Commission Rule 64, 29 C.F.R. § 2709.64.

339

PROCEDURAL HISTORY
On May 26, 1987, UP&L moved for a summary decision.
In support of its motion, UP&L stated that it is entitled
as a matter of law to a summary decision that it is not liable as
"successor in interest" to Emery Mining Corporation for the
violations alleged in the citations and orders contested in the
captioned proceedings. ~/
UP&L has submitted affidavits in support of its position.
These affidavits establish the following facts:
1. The Utah Power and Light Company C"UP&L"), a public
electric utility, purchased the Deseret, Beehive and Little Dove
Mine in 1971 and the Deer Creek and Wilberg Mine in 1976. Exhibit
A, paragraph 2.
In 1972, UP&L initially contracted with the
American coal Company and later, beginning in June 1979, with Emery
Mining Corporation ("Emery") to operate its mines. Exhibit A,
paragraph 3. The Wilberg Mine Fire occurred on December 19, 1984,
killing 27 miners, including a number of Emery's upper management
personnel.
2. Mine recovery efforts were conducted over an extended
period of time, concurrent with the course of MSHA's investigation.
Representatives of Emery Mining Corporation were closely involved
in those efforts but UP&L personnel were not permitted to participate by MSHA.
Exhibit A, paragraph 9.

l/ The identical issue is raised in other contest proceedings
involving the same parties and pending before the Judge. The
cases are docketed as WEST 87-130-R, WEST 87-131-R, WEST 87-132-R,
WEST 87-133-R, WEST 87-134-R, WEST 87-135-R, WEST 87-136-R,
WEST 87-137-R, WEST 87-144-R, WEST 87-145-R, WEST 87-146-R,
WEST 87-147-R, WEST 87-150-R, WEST 87-152-R, WEST 87-153-R,
WEST 87-155-R, WEST 87-156-R, WEST 87-157-R, WEST 87-158-R,
WEST 87-159-R, WEST 87-160-R, WEST 87-161-R, WEST 87-162-R,
WEST 87-163-R, WEST 87-243-R, WEST 87-244-R, WEST 87-245-R,
WEST 87-246-R, WEST 87-247-R, WEST 87-248-R, WEST 87-249-R.
This issue will also affect.three penalty cases, docketed as
WEST 87-208, WEST 87-209 and WEST 88-25.

340

3. Subsequently, on April 16, 1986, UP&L bought for cash all
of Emery's assets with respect to the operation of all of its
mines, including the Wilberg Mine, and for the first time assumed
operating control of the Wilberg Mine. Exhibit A, paragraph 4.
The owners of Emery Mining Corporation did not receive stock in
UP&L as part of that transaction, nor did UP&L receive stock in
Emery. Exhibit A, paragraph 5. The asset purchase agreement
between UP&L and Emery stated that Emery retained any liability
resulting from the Wilberg Mine Fire, specifically including
"Emery's liability, if any, for MSHA fines assessed to Emery for
events caused by Emery and which occur(ed) prior to the Closing
Date" of April 16, 1986. Exhibit A, paragraph 8; Exhibit B, paragraph 5; Exhibit C.
In addition, Emery reserved sufficient funds
to pay for any future Wilberg liabilities. Exhibit B, paragraph 7.
Although UP&L retained most of Emery's workforce, UP&L's officers
and directors replaced Emery personnel as the top management of the
company while those management personnel wh'o were retained assumed
subordinate positions in the new organization. Exhibit A, paragraph 7. None of Emery's present or former officers or directors
have beco~e UP&L officers or directors since the Asset Purchase
Agreement was executed. Exhibit A, paragraph 6.
4.
On March 24, 1987, as a result of its Wilberg Mine Fire
accident investigation, MSRA issued 34 2/ citations and orders to
"Emery Mining Corp. and its successor-in-interest CUP&L)." Emery
continues to exist, since execution of th~ Asset Purchase Agreement
in April of 1986, as a legally and financially viable company.
Exhibit B, paragraph 7. Emery accepts responsibility for any MSHA
civil penalties which ultimately result from the 34 Wilberg Mine
Fire investigation citations and orders issued on March 24, 1987,
and Emery has sufficient funds avai'lable to pay those civil
penalties.
Exhibit B at paragraphs 6 and 7.
(The foregoing affidavits were attached to UP&L's Motion filed
May 26, 1987).
On June 29, 1987 the Secretary filed his response in opposition to UP&L's motion and his cross motion for summary decision.

~/

In fact, a total of 41 citations and orders were issued by
MSHA. However, seven citations were issued after Exhibit B, the
relevant affidavit, was executed.

341

The Secretary, in his response and cross motion stated the
following facts:
1. UP&L obtained the mining rights to the Wilberg Mine from
the Peabody Coal Company in March 1977. UP&L was officially listed
as lessee of the Mine on September 1, 1977 (Exhibit A, page (3-1),
UP&L Mining Application to the Bureau of Mines, Revised 11/21/83).
UP&L's mining plan for the Wilberg Mine was subsequently submitted
to the Bureau of Mines (Exhibit B, page 8).
2. Emery was under contract with UP&L to operate the Wilberg
Mine from June 1979 to April 16, 1986. During the time Emery was
under contract to operate the Wilberg Mine, UP&L had a resident
engineer present at the mine on a daily basis to make sure that the
mining plan referred to above, was followed (Exhibit B, page
12-14).
3. UP&L purchased and owned the major mining equipment
utilized by Emery at the Wilberg Mine during the June 1979 to
April 16, 1986 period <Exhibit B, page 14).
4. UP&L and Emery mutually agreed on production goals for the
Wilberg Mine during this period (Exhibit B, page 13).
5. Under the Mine Act and implementing regulations, mine
operators are required to submit a number of mine plans to MSHA for
approval. UP&L reviewed Emery's mine plans before they were submitted to MSHA when the plans concerned the mining system in use
at the mines (Exhibit B, pages 11, 12).
6. UP&L prepared and submitted to the Bureau of Land Management extensive mining plans for the Wilberg Mine. These plans were
prepared and submitted without Emery involvement (Exhibit B, pages
8-9).
7. After the Wilberg Mine fire on December 19, 1984 and after
UP&L's purchase of Emery's assets in the operation of the mine,
including Emery's supervisory and labor personnel, UP&L directly
participated in MSHA's investigation of the fire origin area of the
Mine (Exhibit c, Exhibit C-1).
David D. Lauriski, presently UP&L's Safety Director (formerly
Emery's Safety Director) helped plan and direct UP&L employees in
this most crucial aspect of MSHA's investigation. Mr. Lauriski
and/or other UP&L personnel were present or nearby at all times
during the underground investigation (Exhibit C, Exhibit C-1).

342

8. As stated by UP&L (page 3, Statement of Facts to its
Motion for Summary Judgment), UP&L retained most of Emery's work-.
force when it took over complete operation of the Wilberg Mine in
April 1986. Although this transfer did not include all of the same
officers and directors, UP&L did retain Emery mining supervisors
and management personnel including David D. Lauriski, Safety Diector, and John Boylen, Mine Manager, at the Wilberg Mine (Exhibits
C, D and E).
9. After UP&L purchased Emery assets, Emery appears to exist
only as a skeleton corporation. Emery apparently has corporate
officers, secretaries, and legal counsel, but few other employees
(since UP&L retained them), and Emery exists with no other apparent
corporate purpose than the resolution of outstanding claims arising
out of the fire.
There has been no specific evidence presented
concerning Emery's financial situation and its ability to pay any
civil penalties imposed (UP&L Exhibit B).
10. On March 24, 1987, when the mine fire investigation
orders and citations were issued, UP&L owned, operated and fully
controlled the Wilberg Mine. This is indicated by the Legal
Identity Reports filed by Emery and UP&L with MSHA as required by
law (Exhibits D and E). At the time the citations and orders were
issued, UP&L, not Emery, had responsibility for abatement of vio- ·
lations and compliance with mandatory federal mine safety and
health standards at the Wilberg Mine.
11. As indicated by the pleadings in this proceeding, both
UP&L and Emery are represented by the same legal counsel.
(The foregoing facts were attached to the Secretary's motion
and affidavits filed June 29, 1987.)
On July 9, 1987, UP&L filed its reply to the Secretary's
response.
On August 5, 1987, the Judge denied the motions filed by both
parties. The Judge stated the Secretary had raised a genuine issue
of fact "whether UP&L was in control of the Wilberg Mine at the
time of the alleged violations", citing Bituminous Coal Operator's
Association v. Secretary of the Interior ("BCOA">, 547 F.2d 240
(4th Cir. 1977).
On the same date the parties filed pleadings indicating that
Emery Mining Corporation, ("Emery"), had paid the proposed
penalties in each of the cases listed in the caption of this order.
Accordingly, the Judge dismissed said cases as to Emery.
{Order,
August 5, 1987).
On September 21, 1987, UP&L moved the Judge to reconsider his
order of August 5, 1987 denying UP&L's motion for summary decision.

343

On October 13, 1987, the Secretary filed his response to
UP&L's motion for reconsideration.
On October 14, 1987, the Judge denied UP&L's motion to reconsider his order of August 5, 1987. The Judge did not further
explain his prior ruling.
On November 16, 1987, UP&L filed a petition for interlocutory
review with the Commission. After responses by the Secretary and
Intervenor the Commission denied the petition. Utah Power & Light
Co., Mining Division, 9 FMSHRC 2028 (December 1987). In its order
the Commission considered the Secretary's pleadings as "unfocused
and confused providing neither UP&L nor the Commission with a clear
statement of his asserted basis for imposing liability on UP&L."
Further, "(t)he Secretary, as prosecutor, is responsible for
charging violations under the Mine Act, not the Commission." In
addition, the Commission observed that "Ct)o avoid any possibility
of prej~dice to UP&L, a clear articulation of the liability theory
or theories that the Secretary is alleging and intends to pursue in
this important litigation is required," 9 FMSHRC at 2030.
The Commission further indicated "(t)he Secretary must clarify
the theory of liability upon which he intends to proceed." In
addition, "it is incumbent on the judge to fully explain the basis
of his rulings on any such further motions," 9 FMSHRC at ~031.
After the Commission's Order was issued the Secretary did not
move to amend his petition nor did UP&L move for a more definite
statement of the petition.
Accordingly, on January 11, 1988, the Judge directed the
Secretary to clarify his theory of liability against UP&L. The
Judge's Order indicated the Secretary could plead in the alternative. Further, UP&L and UMWA 3/ could reply (Orders, January 11,
1988 and January 15, 1988).
-

3/ The UMWA filed in opposition to UP&L's petition for interlocutory review but has filed no other pleading on the successorship
issue raised by UP&L.

343

On February 1, 1988 the Secretary's statement on UP&L's
liability was filed. The Secretary's theories of UP&L's liability
are twofold. · His initial theory is that UP&L is liable as a coal
mine operator (or co-operator) at the time of the fire; further,
and in the alternative, UP&L is liable as a successor-in-interest
to Emery.
His statement on his theories of liability reads as follows:
The Secretary of Labor (Secretary), by
the undersigned counsel, states the following
in response to the Judge's Order of January
11, 1988, regarding the Secretary's theory of
liability against Utah Power and Light (UP&L).
The Secretary contends that UP&L is liable as
a co-operator with the Emery Mining Corporation ("Emery") or in the alternative, as 'a
successor-in-interest operator to Emery.
The Secretary cited UP&L under the
alternative theory as a successor-in-interest
to Emery since that characterization of UP&L
more graphically described UP&L's status at
the time the citations and orders were issued.
This does not prevent the Secretary from
defending the citations and orders under any
available theory relating to UP&L liability
that can be shown to apply.
Argument
Utah Power and Light Company ( "UP&L")
is liable under the Federal Mine Safety and
Health Act of 1977 (Mine Act) for mandatory
safety violations found during the Mine
Safety and Health Administration ("MSHA")
investigation of the December 19, 1984,
Wilberg Mine fire.
Theories of Liability
I.

UP&L is liable as a coal mine operator at
the time of the fire.
Under Section 3(d) of the Mine Act, 30

u.s.c. § 803(d} an "operator" means any

owner, lessee, o~ other person who operates,
controls, or supervises a coal or other mine.
If more than one entity participates as an
operator in a mining operation, either one or

344

both can be cited for violations that occur
at the mine. See Bituminous Coal Operator's
Asaociation v. Secretary of the Interior, 547
F.2d 240 (4th Cir. 1977); Harman Mining
Corporation v. Federal Mine Safety and Health
Review Commission, 671 F.2d 794 at 797 (4th
Cir. 1981). Further, multiple operations can
be cited regardless of fault. (Footnote>
The footnote in the Secretary's statement reads as follows:
"Congress, when it enacted the
1969 Coal Act, recognized that
the Act:
Provide[d] liability for violation
of the standards against the operator without regard to fault, [and] ••. also provide[d] that the Secretary [would] apply
the more appropriate negligence test, in
determining the amount of penalty, recognizing that the operator has a high degree
of care to insure the health and safety of
persons in the mine."
The facts which will be introduced at the
hearing in this case will show that UP&L was a
co-operator of the Wilberg Mine.
Factual Basis
As indicated in the Secretary's Response to UP&L's Motion for Summary Decision
(Secretary's Response, pages 4-6) on the issue
of UP&L liability, both Emery and UP&L were
involved with coal production monitoring,
planning and development involving the Wilberg
Mine from the beginning of their relationship.
Also:
1. UP&L was the lessee of the Wilberg
Mine from the Bureau of Mines at the time of
the fire (see page 4, Secretary's Response).

345

2. Prior to the fire, UP&L had purchased
the major mining equipment utilized by Emery at
the Wilberg Mine. UP&L owned this equipment at
the time of the fire.
(Secretary's Response,
page 4 >.
3. UP&L and Emery mutually agreed on
production goals for the Wilberg Mine CSecretary' s Response, page 4).
4. UP&L had a resident engineer present
at the mine on a daily basis to make sure that
UP&L's mining plan was followed (Secretary's
Response, page 4).
5. When Emery's mine plans affected the
mining system at the Wilberg Mine U~&L reviewed
the plans before they were submitted to MSHA
for approval (Secretary's Response, page 5).
1

II
In the alternative, UP&L is liable as a
successor-in-interest operator to Emery
•

The Federal Mine Safety and Health Review
Commission has squarely ruled that a successor
mine operator is jointly and severally liable
for correcting the illegal acts of discrimination committed by a predecessor operator.
In
such instances the remedies of back pay, costs
and civil penalties for the Mine Act violations
are included in the aiabili~y of the successorin-interest.
See Secretary of Labor v. Sugartree Corporation, Terco, Inc. and Randall
Lawson, 9 FMSHRC 394 (March 30, 1987), affirmed
by ·6th Circuit, Dec. 8, 1987. Munsey v. Smitty
Baker Coal Company, Inc., 2 FMSHRC 3463 (1980).
This result is necessary because the purposes
of Mine Act liability are both prospective and
remedial. Only UP&L, the current operator, has
the capacity to correct or abate violations
subsequently cited by MSHA and related to the
fire investigation. From the time it became
the mine's sole operator on April 16, 1986,
only UP&L could take remedial and prospective
action designed to prevent such health and
safety violations from recurring. Only UP&L
can comply with Section 109 of the Mine Act
which requires that citations be posted at the
mine in order to encourage present and future
compliance (Secretary's Response, page 17).

346

The Secretary's statement continues:
Further, UP&L substantially meets the
successor-in-interest criteria as highlighted
in EEOC v. Mac Millan Bloedel Containers, Inc.,
503 F.2d 1986 (6th Cir. 1974} and Terco, supra,
which are:
1. Whether the successor company had
notice of the charge against the predecessor;
(2} the ability of the predecessor to provide
relief; (3) whether there was substantial
continuity of business operations; (4} whether
the new employer uses the same plant (mine};
(5) whether the new employer retains the same
or substantially the same work force; (6)
whether the new employer retains the same or
substantially the same supervisory personnel;
(7) whether the same jobs exist under substantially the same working conditions; (8)
whether the same machinery, equipment, and
method of production are used; and (9) whether
the same product is produced.
Id. at 1094,
citing Howard Johnson Co., Inc. v. Detroit
Local Joint Executive Board, Hotel and
Restaurant Employees and Bartenders International Union, AFL-CIO, 417 U.S. 249, 256-258
(1974}.
Factual Basis
The relevant facts supporting UP&L being
liable as a successor are as follows:
1. UP&L had notice of these violations
(See copies of citations and orders issued}.
2. UP&L itself has stated that it
retained most of Emery's Wilberg Mine workforce.
(See Statement of Facts to UP&L's
Motion for Summary Judgment, page 3).
3. Emery's Director of Safety and its
Mine Manager at the mine were retained by UP&L.
(Secretary's Response; page 5 and Exhibits
c, C-1 thereto}.
4. UP&L uses most of the same equipment
Emery used.
(Secretary's Response, page 20}.

347

5. UP&L produces the same product - coal,
and it uses the same method of production.
(See Exhibits D-G to Secretary's Response).
6.

UP&L operates the same mine,

Wilbe~g.

7.
As stated previously, only UP&L can
now provide the remedial and prospective relief
pertaining to the health and safety conditions
and practices cited by MSHA. This goes beyond
the payment of any civil penalties assessed.
(See Secretary's Response pages 4-6 and
attached exhibits).
8. UP&L itself, by other pleadings
before the Department of Labor termed itself
successor-in-interest to Emery (Secretary's
Response, Exhibit F).
9. The Secretary anticipates other
documents and evidence in support of UP&L
liability after discovery is completed.
(Footnote)
The footnote in Secretary's Argument
reads:
Requests for answers to Interrogatories and production of
documents are pending against
Emery and UP&L as of May 13, 1987,
and a second set of Interrogatories
and request for production of documents have been submitted as of
January 29, 1988.
Conclusion:
As stated in the Secretary's Response at
page 13, the Secretary has the authority and
discretion to cite appropriate parties under
the Mine Act in order to achieve the statutory
goals of health and safety enforcement.
Secretary of Labor v. Cathedral Bluffs Shale
Oil, 796 F.2d 533 at 538 CD.C. Cir. 1986).
Citing UP&L as a co-operator or in the alternative as a successor-in-interest accomplishes
this purpose. Under both theories, UP&L has
remedial and prospective health and safety
responsibilities under the Act, and it is
liable for the Wilberg Mine Act violations.

348

On February 12, 1988 UP&L filed its response to the Secretary's statement and renewed its motion for summary decision.
On March 4, 1988 the Judge severed the cases listed in the
caption of this order from the remaining pending cases.
Discussion
I

In support of his position that UP&L was a coal mine operator
at the time of the fire, the Secretary argues that he has discretionary authority to cite an operator, an independent contractor, multiple operators, or even an owner for violations of
.an independent contractor, regardless of fault, citing, among
other cases, Bituminous Coal Operator's Ass'n. C"BCOA") v. Secretary of Interior, and Harman Mining Corporation, supra.
Further, the Secretary argues that his decision to impose
joint and several liability on Emery and UP&L is particularly
appropriate. UP&L is not in the position of a stranger who might
purchase a mining operation without any connection with or knowledge of past events at that mine. At all pertinent times, UP&L
owned the mining rights. Furthermore, Emery and UP&L worked together when Emery operated the mine. The fact that they continue
to have a close business relationship is shown by the fact that
they are represented by the same law firm and counsel.
In addition, the Secretary contends that since it acquired
the Wilberg Mine in 1977, it exercised ultimate control over the
mine's development and production. Emery, which exercised dayto-day operational responsibility at the mine from June 6, 1979 to
April 16, 1986, was always ultimately subservient to UP&L control
of the mine. This situation was directly analogous to the relationship between a production operator and his independent
contractor. The federal courts of appeals have been unanimous
in holding that the Secretary has wide discretion to hold either
or both liable for violations of the Mine Act committed by the
contractor and its employees.
I completely agree that the Secretary has broad discretion in
issuing citations and orders under the Act. But the fact remains:
UP&L was not cited as an operator but as a successor-in-interest.
An enforcement action cannot be sustained absent implementation by
the issuance of a citation or order against UP&L as an operator,
Act§ 104(a),(d).

349

The citations and orders on their face indicate UP&L was
only cited as a successor-in-interest. Further, various statements of the Secretary clearly confirm this view. Specifically,
the Secretary states he cited UP&L under the alternate theory as a
successor-in-interest to Emery since that characterization of UP&L
more graphically described UP&L's status at the time the citations
and orders were issued. ~/ Further, "Emery was properly cited as
the operator and UP&L was properly cited as a successor-ininterest." ~/
It is clear that the requirements of the Act have not been
met. The Secretary did not "issue a citation to the operator"
to initiate a proceedings under§ 104Ca) or§ 104Cd). If the
Secretary seeks to charge UP&L in its own right as an operator
liable for the Wilberg fire violation, a citation or order.must
be issued to UP&L charging it with direct liability for those
violations.
In addition, the Commission and the courts have ruled that
procedural shortcuts are unlawful under the Act. The Commission
invalidated a procedural shortcut in Monterey Coal Co., 7 FMSHRC
1004 (July 1985). In Monterey an order and associated penalties
had been contested by the mine operator to whom the order had been
issued, on the ground that its independent contractor, FrontierKemper, "was the operator responsible for the violation," 7 FMSHRC
at 1004. During the course of the litigation, the Secretary
moved to amend his penalty proposal to join Frontier-Kemper as
an additional respondent. Although the judge granted the motion,
the Commission reversed, holding that:
Before the Secretary may :institute a proceeding
before this Commission se'eking a civil penalty
from an operator for a violation of the Mine Act
or a mandatory standard, the operator must have
been cited for a violation and been given the
opportunity either to contest or to pay the
Secretary's proposed penalty.

****
!/ Secretary's statement on UP&L's liability filed February 1,
1988, Cat l>.
5/ Secretary's response to YP&L motion for reconsideration filed
October 13,
1987, Cat 3-4>.

350

We believe that Congress did not intend
the Secretary to be able to leapfrog over
these procedural steps and begin a civil
penalty proceeding against an operator by
the filing of a proposal for penalty in
the first instance, before the Commission.
7 FMSHRC at 1005, 1006.
The foundational principles set forth in Monterey bar
the Judge from holding UP&L liable for civil penalties assessed
directly against it as a mine operator in the absence of UP&L
being cited as an operator and a civil penalty being proposed
against it directly. UP&L has only been cited, and it is being
subjected to civil penalty liability in these proceedings, for
Emery's alleged violations. Had UP&L been cited as an operator,
the entire course of this litigation would have been different.
Any proposed penalties assessed by MSHA against UP&L as an operator
would most likely have been dramatically lower. This is one of
the reasons why the commission in Monterey would not allow the
Secretary to shortcut the Act's required procedures by commencing
a proceeding against Frontier-Kemper in the midst of an ongoing
proceeding against another operator. As the Commission explained:
our insistence on the need for compliance
with the procedural requirements [of the Act
for initiating such proceedings] also serves
a practical purpose and furthers the enforcement scheme contemplated by Congress in the
Mine Act. Providing a mine operator with the
opportunity to pay a civil penalty before the
institution of litigation promotes judicial
and administrative economy and can assist
more expeditious resolution of enforcement
disputes.
7 FMSHRC at 1007. See also Phil Baker v. U.S. Department of Interior Board of Mine Operations Appeals, 595 F.2d 746 (D.C. Cir.
1978), wherein the Court held that a judge could not find a violation of a mandatory safety standard absent the particular statutory proceedings for bringing that issue to federal attention.
595 F.2d at 750.
The Judge previously denied UP&L's motion and Secretary's
motion. But his prior analysis of the facts was erroneous. The
motions by UP&L and the Secretary for summary decision were denied
because it was the Judge's view that a genuine issue of fact was

351

raised as to whether "UP&L was in control of the Wilberg Mine at
the time of the alleged violations. 11
(Order, August 5, 1987).
While such a fact issue still exists, control by UP&L would be
relevant only if UP&L had been cited and could be held liable as
an operator or co-operator.
In short, I conclude that the Secretary's claims that he could
have cited UP&L as an operator independently liable for the alleged
violations does not empower the Judge to uphold the citations,
orders and Emery-based civil penalties here, or to otherwise assess
civil penalties against UP&L as an operator. The Secretary's post
hoc assertions on UP&L's liability cannot take the place of citations and orders citing UP&L with violations pursuant to the Act.
As the Supreme Court has stated, an agency's action "must •.•
be supported by the findings actually made by the Secretary, not
merely by findings that we believe he might have made. 11 Industrial
Union Dep't., AFL-CIO v. American Petroleum Inst., 448 U.S. 607,
659, 100 S.Ct. 2844. See Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 549, 98 S.Ct. 1197 (1978), ( 11 When there is a
contempor~neous explanation of the agency decision, the vali~ity
of that action must 'stand or fall on the propriety of that finding
"': American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490,
539, 101 S.Ct. 2478 (1981), ("the post hoc rationalizations of
the agency or the parties to this litigation cannot serve as a
sufficient-predicate for agency action").
The Secretary also relies on the fact that, as indicated by
the pleadings in the cases, both UP&L and Emery are represented by
the same legal counsel (Paragraph 11, Secretary's response filed
June 29, 1987).
The fact that UP&L and Emery are represented by the same
law firm has no relevance to the issues of UP&L's liability. The
interests of UP&L and Emery are not adverse particularly since
Emery agrees that it, and not UP&L, bears the liability for any
violations as they are finally adjudicated.
The facts relied on by the Secretary would generally establish, if true, that UP&L was an operator at the Wilberg Mine
at the time the citations were issued. However, since it is clear
UP&L was not cited as an operator, the stated facts are not
relevant.
, Further, the cases relied on by the Secretary are not controlling.
In these cases the owners were, in fact, issued an MSHA
citation.

352

In BCOA the mining company was cited for violations committed
by a construction company.
In Harman Mining the defense failed
but it focused· on the issue that the Secretary had not cited the
independent contractor. In Cyprus Industrial the owner was cited
but was not insulated from liability because an independent contractor committed the violation. The remaining cases relied on
by the Secretary are not inopposite the view expressed herein.
In sum, UP&L was never cited as an operator and for the
reasons expressed herein the Secretary's attempt to impose liability on UP&L as an operator cannot be sustained.
II
In his alternative theory of liability the Secretary relies on
the successorship doctrine and he asserts that UP&L substantially
meets the successor-in-interest criteria.
As a threshold matter it appears the Commission has considered
the issue of successorship liability only in the context of discrimination cases. Sugartree Corp., 9 FMSHRC 394 (1987) and Glen
Munsay v. Smitty Baker Coal Co., 2 FMSHRC 3463 (1980), aff'd in
relevant part rev'd in part on other grounds sub nom. Munsey v.
FMSHRC, 701 F.2d 976 (D.C. Cir. 1983) cert. denied, 464 U.S. 851
(1983).
In the cited cases the Commission has held the successor
corporation liable for the discrimination committed by the predecessor. The Commission followed the discrimination and labor law
precedents and disregarded the general successor liability rule. ~/
The rationale for its ruling in discrimination disputes was explained by the Commission as follows:
In Munsey, this Commission noted that
the statutory protection against discrimination afforded miners is similar to the statutory protection afforded workers under other
labor statutes. The Commission stated:
"In
certain circumstances, the protections of those
other statutes have been construed to include
the liability of bona fide purchasers and other

~/

The general rule is that a corporation which purchases the
assets of a company does not assume the liabilities of the seller.
Certain exceptions exist but they are not involved here. The rule
has been applied frequently by courts in many jurisdictions. See
Bud Antle, Inc. v. Eastern Foods, Inc., 758 F.2d 1451, Cllth Cir.
1985); Mozingo v. Correct Manufacturing Corp., 752 F.2d 168 (5th
Cir. 1985); Travus v. Harris Corp., 565 F.2d 443 {7th Cir. 1977);
R.J. Enstron Corp. v. Interceptor Corp., 555 F.2d 277 {10th Cir.
1977; Cooper v. Utah Light & Railway Co., 35 Utah 570, 102 P. 202
(1909). 6A Fletcher's Cyclopedia on Corporations, § 2953, § 7122.

353

successors for their predecessors' act of discrimination ••• and ••• in appropriate ca~es
the successorship doctrine should also be
applied [by the Commission] •••• " 2 FMSHRC at
3465. Although Munsey was decided under th~
Federal Coal Mine Health Act of 1969, 30 u.s.c.
§ 801 et seq. ( 1976) (amended 1977) ("Coal Act"),
the predecessor to the Mine Act, the discrimination protections afforded miners under the
Mine Act are even greater than those afforded
miners under the Coal Act, and the successorship doctrine clearly applies under the Mine
Act as well.
Sugartree, 9 FMSHRC at 397.
The cases at bar do not in any way involve discrimination.
The citations and orders arise from the dramatics of a mine fire
but all the cases involve disputes as to whether the mine operator
did or did not violate a particular mandatory standard; further,
whether the facts involve the operator's unwarrantable failure
to comply and the appropriate penalty. In short, all the cases
pending before the Judge are contest and penalty cases of alleged
violations of specific safety standards.
In the pending cases there are present none of the considerations which compelled the Commission in Munsey and Sugartree to
adopt the labor/discrimination subject matter exception to the
general rule governing successor liability. Even if remedy is a
consideration, the violations have all been abated and Emery has
paid the penalties involved in the captioned cases. Further, Emery
has the funds available to pay any remaining civil penalties.
The fundamental differences between the present enforcement
disputes and the discrimination cases the Commission addressed in
Sugartree and Munsey are critical since "the resolution of any
question concerning successorship involves 'striking a balance
between the conflicting legitimate interests of the bona fide
successor, the public, and the affected employee.'" Munsey,
2 FMSHRC at 3468, quoting Golden State Bottling Co. v. NLRB, 414
U.S. 168, 181 (1973). A fair balancing of these interests in this
case requires that successor liability not be imposed on UP&L.
Unlike the facts in Sugartree and Munsey, the Wilberg miners have
no compelling interest which would be vindicated by such an action.
The miners who were discriminated against in Munsey and Sugartree
could only obtain reinstatement if the successor corporation were
held liable.
In contrast, any safety violations which may have
existed at the Wilberg Mine before the fire have long since been
abated (and even if still uncorrected, they could be corrected by
UP&L without holding that company liable for Emery's actions).

354

The Secretary also argues that successorship liability should
be imposed because UP&L hired the Emery workforce and certain Emery
personnel; namely, the mine manager and safety director.
The Secretary's position lacks merit. Many cases hold that
in order to establish successorship a common identity of officers,
directors and stockholders is the critical element in determining
whether a purchaser of assets is a successor, not the purchaser's
"mere employment" of the seller's personnel - even its officers.
Bud Antle, Inc. v. Eastern Foods, Inc., supra, 758 F.2d at 1459.
There is no such common identity here.
The Secretary's arguments that UP&L must be a successor
since Emery now lacks the capacity to abate any violations or post
citations are not persuasive. The citations and orders on their
face reveal that all of the alleged violations had been corrected
or abated the date they were issued.
If the Secretary believes
UP&L as an operator has violated a regulation then it is his duty
to cite UP&L.
It will then be UP&L's obligation to comply
with the posting requirement of the Act. But at this time the
Secretary's assertions that UP&L must be held liable as a successor
for remedial reasons are meritless.
The Secretary further contends that some of the violations
were· charged as "unwarrantable" under Section 104(d) of the Act
(Secretary's Response, filed June 29, 1987, page 17). Hence, only
the current operator can assume responsibility for the termination
of the unwarrantable sequence, because that sequence runs with the
mine until a complete inspection of the entire mine discloses no
further "unwarrantable" violations. Jj
The Secretary's premise is flawed.
The nature of the unwarrantable failure sequence precludes automatic application to a
subsequent operator of the mine. The unwarrantable failure
sequence is a special sanction for dealing with a particular
operator who has not responded adequately to the normal, lesser
sanctions imposed under§ 104(a). See Consolidation coal co.,
4 FMSHRC 1791, 1794 (1982) ("graduated scheme of sanctions");
S.Rep. No. 181, 95th Cong., 1st Sess. 31 (1977) reprinted in
Legislative History of the Federal Mine Safety and Health Act of
1977 at 619 (1978). An unwarrantable failure is operator specific:
it means that the violation occurred as a result of the operator's
indifference, willful intent, or serious lack of reasonable care.
Westmoreland Coal Co., 7 FMSHRC 1338, 1342 (1985). Further, it

21

The cases in the caption involving the issue of unwarrantable
failure are WEST 87-149-R, WEST 87-154-R and WEST 87-162-R.

355

has been held that a mine operator cannot be held liable for an
unwarrantable failure order where the cited operator did not know
<nor should have known) of the violation, GEX Colorado Incorporated, 2 FMSHRC 1347, 1350 (1980) (Morris, J).
It is one thing to
hold a party liable for a violation without fault, but quite
another to hold that he unwarrantably failed to comply without
fault.
The Secretary's position, cited without authority, is accordingly rejected.
The Secretary also contends that UP&L represented itself as a
successor-in-interest to Emery in Docket No. 86-MSA-3 involving a
petition for modification (Secretary's Exhibit F).
The evidence relied on merely shows that UP&L voluntarily
assumed Emery's position in ongoing litigation.
It falls far
short of establishing that UP&L is liable for the violations the
Secretary has urged against Emery.
As noted above, the issues presented in this motion appear in
other related pending cases. Unless directed otherwise by a higher
authority the Judge will, in due course, enter the same order as to
UP&L where the issue arises.
In sum, the rationale for imposing the successorship liability
doctrine on UP&L does not exist in an enforcement action involving
violation of a safety or health standard. Accordingly, the facts
and the case law relied on by the Secretary do not support his
position.
Emery has paid the penalties in the cases listed in the
caption of this order and those cases have been dismissed as to
Emery. The Judge further concludes there is no issue of material
facts as to UP&L.
Accordingly, for the reasons stated herein, I enter the
following:.
ORDER
1. The motion of Utah Power & Light for the Judge to reconsider his order denying Contestant UP&L's Motion for summary
decision is granted.
2. The Judge's order, of August 5, 1987 denying said motion is
reconsidered.

356

3.

The order of August 5, 1987 denying the motion is vacated.

4. The renewed motion for summary decision by Contestant Utah
Power & Light is granted.
5.

The contest filed by Utah Power & Light is sustained.

Law Judge

Distribution:
Timothy M. Biddle, Esq., Thomas c. Means, Esq., Susan E. Chetlin,
Esq. and Kevin Darken, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004
(Certified Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified
Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 Fifteenth
Street, N.W., Washington, D.C. 20005
(Certified Mail)
/ot

' 357

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

MAR 141988·

CONTEST PROCEEDING

SOUTHERN OHIO COAL COMPANY,
Contestant

Docket No. WEVA 87-166-R
Order No. 2699493; 4/9/87

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

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 87-306
A. C. No. 46-03805-03806

v.

Martinka No. 1 Mine

SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

W. Henry Lawrence, Esq:, Steptoe.· & Johnson,
Clarksburg, West Virginia, £or Contestant/'
Respondent;
Susan M. Jordan, Esq., Office of the Solicitor,
u.s. Department of Labor, Philadelphia, Pennsylvania, for Respondent/Petitione~~

Before:

Judge Maurer
STATEMENT OF THE CASE

These consolidated cases concern the contest pursuant to
section 105(d) of the Federal Mine Safety and Health Act of
1977 (the "Act"), challenging the legality of a section 104(d) (2
order issued to the contestant at its Martinka No. 1 Mine on
April 9, 1987.
The captioned proceedings have been consolidate<
for hearing and decision because the order contested in the
c.ontest proceeding charges a violation of a mandatory safety
itandard for which the Secretary seeks a penalty in the civil
penalty proceeding.
Pursuant to notice, the cases were heard in Morgantown,
West Virginia, on November 16, 1987. The parties filed posthearing proposed findings of fact, conclusions of law, and
briefs which have been considered by me in the course of making
this decision.

358

Section 104(d) (2) Order No. 2699493, which is the
subject of this proceeding, was issued by an MSHA inspector
on April 9~ 1987. The order alleges a violation of the
mandatory safety standard found at 30 C.F.R. § 75.507-l(a)
and the condition or practice alleged by the inspector to be
a violation of that standard states as follows:
After making a 103(g) (1) inspection of the complaint
alleging the continuous mining machine was trammed
down the No. 2 entry return air course in the 1
north 017 section on the afternoon 4-3-87, it was
revealed that Joe Metz, mechanic found 3 openings
in junction boxes on the continuous mining machine
and reported this to Tom Permo (sic) prior to the
machine being moved down the return, this was heard
by Fred Shingleton who was present in the area at the
time.
Tom Permo (sic) was present during the time
the continuous miner was being tramed.
Tom Permo (sic)
was the foreman in charge of the area at this time.
To terminate this Order all Foremen shall be instructed to see that all electrical equipment taken
into the return air course outby the last open crosscut be in an permissible condition, and a list of
Foremen instructed given to MSHA.
30 C.F.R.
follows:

§

75.507-l(a) provides in pertinent part as

All electric equipment . . . used in return air
outby the last open crosscut in any coal mine
shall be permissible . . . .
STIPULATIONS
The parties stipulated to the following:
1. The Southern Ohio Coal Company owns and operates
the Martinka No. 1 Mine and both are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977.
2.
The presiding Administrative Law Judge has jurisdiction over this proceeding pursuant to section 105 of the Act.
3.
The subject Order No. 2699493, its modification and
termination were properly served by duly authorized representatives of the Secretary upon an agent of the contestant at the
dates, times and places stated therein, and may be admitted into
evidence ror the purpose of establishing their issuance.
4.
The assessment of a civil penalty in this proceeding
will not affect contestant's ability to continue in business.

359

5. The appropriateness of the penalty, if any, to the
size of the contestant's business should be determined based
on the fact that the Martinka No. 1 Mine has an annual production of approximately 2.5 million tons of coal and the
Southern Ohio Coal Company has an annual tonnage of approximately 7.3 million.
6.
There was no intervening clean inspection between
the§ 104(d) (2) order being contested and the previous
§ 104 (d) (1) citation.
ISSUES
The ultimate question presented is whether or not the
cited condition or practice constitutes a violation of 30
C.F.R. § 75.507-l(a).
Included as part and parcel of any
determination of that question is whether or not the violative
act took place in "return air outby the last open crosscut"
as stated in section 75.507-l(a). Additional issues are
whether the cited violation was of such a nature as would
significantly and substantially contribute to the cause and
effect of a coal mine safety hazard and whether the cited
violation was caused by an unwarrantable failure to comply
with the standard in question. Also, an appropriate penalty
must be assessed in the event that a violation is found.
FINDINGS OF FAC'I'
1. MSHA Inspectors Wayne Fetty and Frank Bowers issued
the subject order on April 9, 1987, subsequent to their investigation of a section 103(g) complaint.
The order and the
complaint concern an incident that occurred on the afternoon
shift of April 3, 1987, in the 1 North Section of the mine.
2.
The crew assigned to the 1 North Section on the
afternoon shift of April 3rd consisted of section foreman
Torn Premo, mechanic Joe Metz and general inside laborers Tim
Dotson, Fred Shingleton and Joe Hardesty. Joe Metz actually
worked for maintenance supervisor Bud Boone. His particular
assignment that afternoon was to perform permissibility checks
on a miner, roofbolter, flight pump and two shuttle cars that
were physically located in the 1 North Section, and also to
repair any nonpermissible conditions he found.
The crew's
assignment from Shift Supervisor Fred Rundle was to move the
roofbolter, one of the shuttle cars and the mining machine
from their then existing locations in the section to a fall
area in the No. 2 entry, so that the roof fall could be
cleaned up.
3. An unintentional roof fall had occurred in the No. 2
entry as depicted on Government Exhibits 1 and 2, some weeks
prior to April 3, 1987.

360

4.
No mining occurred in the 1 North Section on April 3,
1987, active mining having ceased two shifts earlier. The face
areas were ieft squared off and "faced-up." Mining eubsequently resumed in the section after the fall area was cleared.
5. Mechanic Metz began his permissibility checks with the
roofbolter.
Metz detected a nonpermissible condition on the
roofbolt-er's lighting system and unplugged it, placed a danger
tag on the plug and placed the plug in a lockbox. Foreman
Premo asked Metz if the lights could be turned out and the
machine moved anyway, but Metz opined that it could not.
Premo
then called Shift Supervisor Rundle, told him the bolter.was
not permissibl·e, and asked if he could move it. Rundle told
Pre.mo not to move the bolter, but rather to move the miner
instead at that time.
6. At the start of the shift, the continuous miner was
located in the No. 6 entry up towards the face.
The crew's
mission then was to move the miner from there to the fall area
in the No. 2 entry.
In the process of doing that, Dotson,
Hardesty, and Shingleton had trammed the miner as far as the
No. 5 entry, marked with an "X" on Government Exhibits 1 and 2,
when they had to stop because of a line curtain fastened across
the entry.
7. At this point in time and space, Metz arrived and informed the crew that he would perform his assigned oermissibility
checks on the miner while the miner was stopped and the crew
was removing the curtain.
In the process of making these checks,
he found three junction boxes on the miner that his five thousandths t.005) of an inch feeler gauge would penetrate. Metz
thereupon told and showed Dot.son, who was operating the miner,
what he had found.
At this point, Premo arrived on the scene
and was told by Metz that there were permissibility violations
on the miner.
There followed an exchange between Premo and
Metz, the substance of which I find to be that Premo felt Metz
was being an obstructionist on the issue of moving the miner
and responded with words to the effect that he had a job to do
and that he was not going to lose his job over something as
minor as these openings.
8.
Following the discussion between Metz and Premo, Premo
ordered the crew to move the miner to the fall area. At that
time, Shingleton expressed his concern to Premo that the crew
would get into trouble for moving the miner in a nonpermissible
condition.
Premo responded to the effect that if anyone got
into trouble it would be him, not them.
I find the sense of
the situation to be that Premo clearly understood that the
miner was in a nonpermissible condition, but he ordered it
moved anyway in order to accomplish his assigned mission.

361

9. Prior to moving the miner, Shingleton took methane
readings with. a methane detector at the faces of the Number 5,
4, and 1 entries and at the fall area and did not detect
methane. Premo had earlier checked all the faces for methane
without detecting any.
10. The miner was then trammed from the No. 5 entry
across the faces and then down the No. 2 entry to the fall
area.
11. The curtain at the intersection of the No. 2 entry
and the face was taken down to allow the miner and later the
shuttle car to enter the No. 2 entry, but it was replaced
after each piece of equipment entered the entry. Nevertheless,
there was some degree of air movement in that entry moving
away from the faces.
12. After the miner was moved to the fall area, Metz
completed his permissibility checks on the miner and corrected
the nonpermissible conditions. He also recorded the violative
conditions in the permissibility book on the surface at the
end of the shift.
13. On April 3, 1987, the 1 North Section had eight (8)
entries. The No. 1 and 2 entries were the returns on the
right side of the section and the No. 6, 7, and 8 entries were
the return airways on the left side of the section. The No. 3,
4, and 5 entries were the intake airways with the No. 3 entry
as the main intake escapeway and the No. 4 and 5 entries as
the belt and track entries, respectively.
DISCUSSION WITH: FURTHER FINDINGS
Reduced to its essentials, the Secretary's position in
this case is that (1) the miner was in a nonpermissible condition and (2) it was used in return air outby the last open
crosscut in the No. 2 entry.
3o·c.F.R. § 18.3l(a) (6) provides that the allowable
limit for the openings in the junction boxes on the continuous miner is .004 of an inch. Metz' unrefuted testimonv on
this point was that there were three such openings in the
junction boxes that were in excess of this limit. Dotson
directly corroborates this testimony at least as to the one
junction box on the operator's side of the miner. Furthermore,
Metz and all the other miners who testified stated that the
permissibility violatioris were discovered while the miner
was stopped at the No. 5 entry before it was moved into the
No. 2 entry, and that Premo was advised of the nonpermissible
conditions found on the miner at that time. More specifically,
Dotson, Shingleton, and Hardesty~ as well as Metz himself, all

362

stated that Metz informed Premo that he had found permissibility violations on the continuous miner and that it should
not be moved in that condition.
In making these credibility findings in favor of the
Secretary, I am aware that Premo testified that no one
reported any impermissible conditions on the miner to him
when the miner was stopped in the No. 5 entry and in fact he
maintains that he first learned of Metz' allegations that
the miner was moved in a nonpermissible condition three days
later on April 6.
The operator points out that on February 16, 1987, Metz
had received a two week suspension for refusal to wear his
safety glasses, and had only returned to work on February 26,
1987, five weeks prior to this incident.
The operator urges
that this suspension angered Metz and provided the motivation
for him to fabricate this violation out of whole cloth. He
could use MSHA to take his revenge against the company.
This
argument might have some appeal if it was only Metz' word
against Premo's, but in this case all the percipient witnesses
to the incident with the exception of Premo tell the same
tale.
To be sure there are minor variations in their testimony, but no more than might be expected.
In fact, I would
be very surprised if four individual witnesses to an incident
related their impressions and recollections of that event in
exactly identical terms.
The argument also overlooks the
difficulty Metz might have in convincing three other miners
who had not been suspended to commit perjury on his behalf.
Metz didl10t even have the luxury of being able to choose
which miners he would have corroborate his complaint. He
was stuck with the crew at hand.
It is simply too far
fetched to believe that a single individual with his own
personal grievance against the company could convince three
out of three witnesses to the incident to go along with a
completely fabricated version of events and stick by it for
the next seven months through various and sundry investigations, interrogations, and hearings.
A more plausible
explanation is that Premo, who was assigned to move three
pieces of equipment that evening, had already failed to move
the first and didn't want to have to call Rundle back again
to report he also couldn't move the second.
There was
testimony at the hearing from Premo's supervisors to the
effect that Premo was overly cautious and indecisive and
that had a question arisen about the miner, he would have
passed it to them.
These characteristics had been adversely
commented upon in his annual job performance reviews, and in
my view, Mr. Premo was attempting to correct this flaw on
the evening of April 3. He made the decision to get the
miner to the fall area in spite of the fact that it was not
in a permissible condition and he knew it was not.

363

Before there could be a violation though, the nonpermissible miner must have been used in return air outby the last
open crosscut.
The term "return air" is not specifically
defined in the Act or regulations.
It is defined, however,
in the Dictionary of Mining, Mineral and Related Terms (1968)
published by the Department of the Interior simply as "Air
traveling in a return." "Return" is then defined by the same
dictionary as "any airway which carries the ventilating air
outby and out of the mine." In my opinion, therefore, since
the No. 2 entry was a designated return airway and the testimony of the miners was that there was a detectable current of
air flowing from the face area down the No. 2 entry toward the
mine exit, this entry would constitute "return air" as that
term is used in the mandatory standard.
I specifically reject the proposition that since there
was no coal actually being mined at the time, there could be
no return air.
Both Windsor Power Coal Co. v. Secretary,
2 FMSHRC 671 (1980), an ALJ decision by Judge Melick; and
Mid-Continent Coal and Coke Co. v. Secretary, 3 FMSHRC 2502
(1981) involved temporary delays or halts in production, similar to the instant situation, that were found not to affect
the ventilation requirements.
In all three cases, including
this one, coal production had recently ceased and other work
was being performed to prepare the section for resumed production.
Lastly, I find as a fact and conclude as a matter of law
that the miner was "used," i.e., trammed into and down the
entry to the fall area, which area was "outby the last open
crosscut." See Government Exhibi t,s No. 1 and 2.
§

I therefore conclude that a violation of 30 C.F.R.
75.507-l(a) has been established.

A "significant and substantial" violation is described
in section 104 (d) (1) of the Act as a violation "of such nature
as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard." A violation is properly designated significant and
substantial "if, based upon the particular facts surrounding
the violation there ex~sts a reasonable likelihood that the
hazard contributed to will result in an injury or illness of
a reasonably serious nature." Cement Division, National Gypsum
Co.,, 3 FMSHRC 822, 825 ( 1981).
In Mathies Coal Co., 6 FMSP.RC 1, 3-4 (1984), the Commission explained its interpretation of the term "siqnificant and
substantial" as follows:
·

364

In order to establish that a violation of a
mandatory safety standard is significant and substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that
the hazard contributed to will result in an event
in which there is an injury." U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language
of section 104 (d) ( 1) , it is the contribution of a
violation to the cause and effect of a hazard that
must be significant and substantial.
U.S. Steel
Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
While it is true that no active coal mining was taking
place and no methane was detected at the time the miner was
being moved, it is also true that the 1 North Section is the
gassiest section in the Martinka No. 1 Mine and has been known
to liberate methane in the explosive range.
Furthermore, I
take administrative notice that methane can be liberated at
any time.
The safety hazard contributed to by the violation was
an explosion.
The nonpermissible miner was a potential
ignition source for any methane that would have been present
in the return entry. Because of the three openings in the
junction boxes, methane could enter those electrical compartments and any spark or electrical arc could become an ignition
source.
Given these facts and circumstances, it was reasonably likely that an ignition or explosion would occur.
In the
event that an ignition or explosion did occur, it was reasonably likely that there would have been at least serious injury, such as smoke inhalation, burns, cuts, and/or lacerations.
I therefore conclude that the violation was "significant
and substantial" and serious.

365

The Secretary further urges that this violation was caused
by the operator's "unwarrantable failure" to comply with the
mandatory standard, and I agree.
In Zeigler Coal Company, 7 IBMA 280 (1977), the Interior
Board of Mine Operations Appeals interpreted the term "unwarrantable failure" as follows:
An inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he determines that the operator has failed to abate the
conditions or practices constituting such violation, conditions or practices the operator knew
or should have known existed or which it failed
to abate because of lack of due diligence, or because of indifference or lack of reasonable care.
The Commission has concurred with this definition to the
extent that an unwarrantable failure to comply may be proven
by a showing that the violative condition or practice was not
corrected or remedied prior to the issuance of a citation or
order, because of indifference, willful intent, or serious
lack of reasonable care.
United States Steel Corp. v.
Secretary of Labor, 6 FMSHRC 1423 at 1437 (1984). And most
recently, in Emery Mining Corp. v. Secretary of Labor, 9 FMSHRC
1997 (1987), the Commission stated the rule that "unwarrantable
failure" means aggravated conduct, constituting more than
ordinary negligence, by a mine operator in relation to a violation of the Act.
In this case, foreman Premo knew of the impermissible
condition of the miner, yet ordered it taken into the No. 2
return entry in violation of the mandatory standard.
This
action demonstrates aggravated conduct that is clearly imputable to the 09erator. Accordingly, I conclude and find that
this violation resulted from gross negligence and this is reflected in the civil penalty assessed by me for this violation.
In assessing a civil penalty in this case, I have also
considered the foregoing findings and conclusions and the requirements of section llO(i) of the Act, including the fact
that the operator is large in size and has a substantial history of violations.
Under these circumstances, I find that a
civil ~enalty of $1,000, as proposed, is appropriate.

366

ORDER
Order No. 2699493 IS AFFIRMED, and Southern Ohio Coal
Company is hereby directed to pay a civil penalty of $1,000
within 30 days of the date of this decision.

&

R
A

/./1/j

Llt/fl/~/
aurer

.

ntJ r~tive Law Judge

Distribution:

w. Henry Lawrence, Esq., Steptoe & Johnson, P. o. Box 2190,
Clarksburg, WV

26302 (Certified Mail)

Susan M. Jordan, Esq., Office of the Solicitor, u. s. De~artment
of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)

yh

367

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

22041

MAR 151988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 85-63-M
A.C. No. 44-00704-5513

v.

Cherokee Mine

TENNESSEE CHEMICAL, INC.,
Respondent
DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN, for
Petitioner;
Ronald G. Ingham, Esq., Clements, Ingham &
Trumpeter, Chattanooga, TN, for Respondent.

Judge Fauver

This civil penalty petition by the Secretary of Labor
charges a violation of a safety standard under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et~
On September 14, 1984, a roof fall at Respondent's copper
mine killed one miner and severely injured another. The men were
at the controls of a drilling machine under unsupported roof,
drilling blasting holes into the face, when a large rock fell
upon them. The Secretary's citation, as amended, charges a
violation of 30 C.F.R. § 57.3-20 (now§ 57.3020), which provides:
Mandatory. Ground support shall be used if the
operating experience of the mine, or any
particular area of the mine, indicates that it is
required. If it is required, support, including
timbering, rock bolting, or other methods shall be
consistent with the nature of the ground and the
mining method used.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:

368

FINDINGS OF FACT
1. At all pertinent tim~s, Responderit operated an
underground copper mine near Copperhill, Tennessee, where it
employed about 200 miners working three 8-hour shifts per day,
seven days a week. Copper and iron sulfide ore was mined using
the sublevel stoping method. The ore was drilled, blasted,
loaded and transported to a skip pocket raise where it was
crushed, loaded into skips and hoisted up a shaft to storage bins
on the mine surface.
·
2. For development work, that is, excavating tunnels for
haulageways and travelways, Respondent grouped miners in six-man·
development crews, who drilled blast holes into the tunnel face
and roof, set charges, blasted the rock, scaled the roof, r_emoved
the rock ("mucking" out the blast area), and repeated this cycle.
They were paid a crew incentive rate based on the number of feet
they advanced the tunnel.
3. The development crews used a Jumbo~type, three-boom,
pneumatic drill. The drilling pattern was a standard burn cut,
drilling 36 2 1/4-inch diameter holes to a depth of 12 feet.
Holes were also drilled and blasted on close centers in the roof
to provide a smooth wall extending about 20 feet from the face.
Split set and hydraulic cement cartridge rock bolts were
installed in the roof on an "as needed" basis. Under the
supervision of a development foreman, each development crew was
to examine and scale the roof in its own work places, and to do
roof bolting depending on the amount of bolting involved.
If a
large area were to be bolted, a separate roof bolting crew would
be brought in.

4. On the day of the accident, September 14, 1984, Steve
Dillard and Joshua waters, development drillers, and Frank
Wright, development loader, made up one-half of a six-man
development crew (on the evening shift) that was tunneling in the
14 North 33 drift, to develop a large truck haulage road 16 x 18
feet. The development foreman for their shift was Cleaston
Morrow. The other half of the crew worked the previous shift
(day shift) on September 14.
5. Dillard, waters and Wright reported to work at 3:00
p.m., and received their work assignments from the development
foreman, Cleaston Morrow. Their assignment was to continue
development in the 14 N 33 drift.

6. Dillard, waters, arid wright, all members of the
development crew, and Hayden Stiles, equipment operator, arrived
at the 14 N 33 drift and found that the heading had to be mucked

369

out (removing blasted rock). The heading had been blasted by the
other half of the development crew at the end of the prior shift.
7. Dillard, Waters, and Stiles started to scale the roof in
the blast area while Wright went to the 18 level to get a loader
to muck out the blasted rock. The regular practice was to have
the development drillers examine and scale the roof after each
blast. When they finished this task, they would tell the loader
the area was ready to be mucked and the loader would move in a
loading machine and remove the blasted rock. After the area was
mucked, the drillers would move in the Jumbo drill, drill the
face and roof, set the charges, set off the blast and the crew
would repeat the above cycle.

8. When Wright returned, Dillard told him they had finished
scaling and the area was ready to be mucked.
Dillard and Waters
left, and Wright and Stiles started mucking. They had most of
the blasted rock removed when a rock fell from the roof in front
of wright's loader, inby the last row of roof bolts. The rock
fall was very near the place where a rock later fell upon Dillard
and waters.
(See Exh. P-22 and Tr. 212.) The rock was about two
feet wide and three to four feet long. The rock fall frightened
Wright because he had been driving back and forth under that spot
and the rock could have fallen on him and killed him. Also, he
was startled and angered by the fall because Dillard had said the
roof had been scaled.

9.

After the rock fell, Wright backed his loader into the N

28 crosscut and waited for Stiles to return in the loader Stiles

was operating. When Stiles returned, Wright told him about the
rock Dall and stood in the dipper of Stiles' loader so he could
reach the roof with a scaling bar. He and Stiles then scaled
down "quite a bit" of loose roof. When Wright and Stiles were
through scaling, they finished mucking out the blasted rock and
Wright went to the office/lunchroom. There he saw Dillard,
Waters, and the foreman, Cleaston Morrow. Wright confronted and
criticized Dillard because Dillard had said the roof had been
scaled but a rock had fallen near his loader and Wright found a
lot of loose roof. He warned Dillard that some roof had "blowed
up"l/
(Exh. P-21, p. 10) and that the roof still needed to be
checked (Id.~ Tr. 172, 174).

1/ "Blowing" is an adverse roof condition that signals danger of
apotential roof fall.
"Blowing" may include popping noises,
cracking or the falling of small pieces ("fines" or "scales").
Exh. P-21 p. 11.

370

10. Cleaston Morrow, the development foreman, was the
supervisor of Dillard, Waters, Wright, and Stiles and was
responsible for examining the roof conditions in the 14 N 33
drift to ensure that proper roof testing and roof control
practices were being followed. Morrow did not go to the 14 N 33
drift after hearing Wright's warning about the roof and had not
examined the face area before then on September 14. He did not
instruct Dillard and Waters to check the roof, to install roof
support, or to delay drilling in order to have additional bolting
done by the pinning crew. Morrow knew that when Dillard and
Waters left the lunchroom they were going to the face area where
they would be drilling the face and roof while working under
unsupported roof.
11. Dillard and Waters returned to the drift, did some
scaling of the tunnel floor, but not the roof, moved in the Jumbo
drill, and started drilling holes into the tunnel face •. While
they were at the operating controls, under unsupported roof, and
drilling the face, a rock fell on them, killing Dillard and
permanently disabling Waters. The rock was about six feet eight
inches lon9, four feet ten inches wide and four to five inchesthick.
12. The rock that killed Dillard and injured Waters fell
from unsupported roof seven and one-half feet inby the last row
of roof bolts. The heading where they were working had just
been blasted near the end of the prior shi~t on September 14.
13. Shortly before the fatality on September 14, the 14 N
33 drift had been down for eight shifts because of adverse roof
conditions. In that period, 198 roof bolts were installed up to
the edge of a "smooth wall." 1 A "smooth wall" is a lip or brow
that is intentionally left in the roof after an explosion. This
is illustr~ted in Exh. R-2. The roof bolting work was completed
on September 13. The roof bolter, Mark Richards, testified that
when he was ·installing the roof bolts he backed up and installed
an extra row of roof bolts at one place because he heard popping
noises in the roof and saw small bits of rock, which he called
"fines," falling from the roof. His supervisor, Laddie Hicks,
later criticized him for using an extra row of roof bolts.
Richards told Hicks about the dangerous roof conditions he had
encountered.
14. On September 13, Mark Richards completed the roof
bolting referred to above. He roof bolted around a small bore
hole 14 N 33 drift and bolted the drift roof inby from there up
to the smooth wall lip or brow left by the last blast of the face.
That smooth wall was later shot down in the blast on September 14.
Gary Williams, general mine foreman, had ordered the area around
the small bore hole roof bolted because of dangerous roof

371

conditions he observed in the area.
the place where Dillard was killed.

This was within 15 feet of

15. Wright, Richards and Thomas Mason, the development
driller on the day shift who had "taken the heading" on the
afternoon of the 14th, all testified at the hearing about bad
roof conditions they had experienced in the 14 N 33 drift before
the roof fall that killed Dillard.
16. Dr. Ross Hammett, a mining engineer consultant to
Respondent, had advised the Respondent in a written report in
July, 1984, that the requirement for roof support should be
determined by continuing to observe "local geological
conditions."
17. Anthony Edey, Respondent's manager of mining and
milling at the time, and Dr. Hammett both testified that noise in
the roof, fretting or the falling of small rocks from the roof,
larger rocks falling from the roof, and the necessity for
installing roof bolts in a particular area all make up a part of
a mine's operating experience.
Prior Fatality
18. On January 27, 1984, Ted B. Ledford, a development
driller, had been doing the same kind of work as that done by
Dillard and Waters on September 14, 1984. When he was operating
a Jumbo drill in a different drift, also under an unsupported
roof and also drilling blasting holes into the face, a large rock
fell from the roof and killed him.
19. Following an investigation of the Ledford fatality,
MSHA made the following recommendations to Respondent:
1.

Supervisors should review with each miner
the proper ground control procedures.

2.

Overhead protection should be provided on all
mobile equipment where feasible.

3.

A continued surveillance of day-to-day ground
conditions is required by both supervisors and
miners to avoid ground fall injuries. Scaling of
the back [roof] and ribs must be a continual process in
order to prevent rock fall accidents.

20. The MSHA accident investigation team in the Ledford
case found the following "Cause of Accident":

372

The cause of the accident was the failure of
management and employees to detect loose ground.
Contributing causes may have been that vibrations
from the drilling operation may have affected the
ground conditions above the area by loosening unstable
ground.

21. After the Ledford fatality, Respondent continued its
practice of not installing canopies on the Jumbo drills. If
Respondent had installed a canopy over the operating controls
compartment of the Jumbo drill operated by Dillard and Waters, in
all reasonable probability the canopy would have protected them
from injury from the rock fall on September 14.
22. If Respondent had extended its rows of roof bolts to
support the roof above the Jumbo drill, in all reasonable
probability the rock would not have fallen upon Dillard and
Waters on September 14, 1984.
The MSHA Investigation of the Dillard/Waters Accident
23. When the MSHA accident investigators and their
supervisor inspected the Dillard/Waters accident scene, they
observed unbolted loose rocks in the roof near the area where the
rock had fallen on Dillard and waters and elsewhere in the roof.
They determined from their investigation and observation that the
loose rocks were problably there and visible before the rock fall
In their accident investigation report, they found the following
"Cause of Accident":
The cause of the accident was the failure of
management and employees to scale down and/or
adequately support loose ground. Contributing
causes may have been the f a1lure of management
and employees to detect loose ground and that
vibrations from the drilling operation may have
affected the ground conditions above the drill area
by loosening unstable ground.
25. The MSHA i.1vestigation report made the following
recommendations to Respondent:

1.

Supervisors should review with each miner the
proper ground control procedures and practices.

2.

Overhead protection (canopies) should be provided
on all mobile equipment, where feasible.

3.

A continued surveillance of day-to-day ground
conditions is required by both supervisors and

373

•

miners to avoid ground fall fatalities and
injuries. Scaling of the back and ribs must be
a continual process throughout the mining cycle
in order to prevent rock fall accidents.
4.

Where it is necessary for ground support, the
bolting plan should include rock bolting up to and
as near the face as possible to keep the drill crew
at a minimum of exposure.
DISCUSSION WITH FURTHER FINDINGS

Title 30 C.F.R. § 57.3-20 states:
Mandatory. Ground support shall be used if the
operating experience of the mine, or any
particular area of the mine, indicates that it
i$ required.
If it is required, support, including
timbering, rock bolting, or other methods shall be
consistent with the nature of the ground and the
mining methods used.
This regulation has not been frequently interpreted by the
Commission or its judges. In White Pine Copper Division, Copper
Range Company, 5 FMSHRC 825 (1983), the Commission expressed the
following quidelines:
• • • (I]n view of the fact that section 57.3-20
is intended to protect miners against roof falls,
we conclude that a mine's "operating experience"
broadly encompasses all relevant facts tending
to show the condition of the mine roof in question
and whether, in light of the roof condition, roof
support is necessary.

* * *
While we do not in this case define the term "operating
experience," we conplude that the operating experience of a
mine requires the use of roof support if, in a given
situation, the mining conditions are such that roof support
is necessary. This determination takes into account the
operating history of the mine (i.e., its past mining
practice), geological conditions, scientific test or
monitoring data and any other relevant facts tending to show
the condition of the mine roof in question and whether in
light of those factors roof support is required in order to
protect the miners from a potential roof fall.
(5 FMSHRC
836·, 838.]

374

The Commission also considered the common usage of the term
"experience" in interpreting the standard (at Fn. 23):
• • • [W]e turn to the dictionary for the common usage
of that term. There, the key word "experience" is
defined:
2:
direct observation of or participation in events:
an encountering, undergoing, or living through things in
general as they take place in the course of time ••• 4:
knowledge, skill, or practice derived from direct
observation or participation in events: practical
wisdom resulting from what one has encountered,
undergone, or lived through ••• Sa: the sum total of the
conscious events that make up an individual life ••• 6:
something personally encountered, undergone, or lived
through ••••
Webster's Third New International Dictionary
(Unabridged 1971) (Emphasis the Commission's).
In Amax Chemical Company, 8 FMSHRC 1146 (1986), the
Commission interpreted§ 57.3-20's companion section,
§ 57.3-22.2/ The Commission stated:
Unlike the regulatory schem~ that obtains
with respect to underground coal mines,
approved roof control plans are not required
in underground metal-nonmetal mining operations.
Rather, '[g]round support shall be used if the
operating experience of the:mine, or any particular
area of the mine, indicates;that it is required.'
2/ This mandatory ground control safety standard, which applies
to metal-nonmetal underground mines, provides:
Miners shall examine and test the back, face, and rib
of their working places at the beginning of each shift and
frequently thereafter. Supervisors shall examine the ground
conditions during daily visits to insur~ that proper testing
and ground control practices are being followed. Loose
ground shall be taken down or adequately supported before
any other work is done. Ground conditions along haulageways
and travelways shall be examined periodically and s·caled or
supported as necessa~y.
30 C.F.R. § 57.3-22 (1984). In 1985, this provision was
renumbered as 30 C.F.R. § 57.3022 but its wording was not
changed.

375

The Commission also considered the common usage of the term
"experience" .in interpreting the standard (at Fn. 23):
• • • (W]e turn to the dictionary for the common usage
of that term. There, the key word "experience" is
defined:
2: direct observation of or participation in events:
an encountering, undergoing, or living through things in
general as they take place in the course of time •.• 4:
knowledge, skill, or practice derived from direct
observation or participation in events: practical
wisdom resulting from what one has encountered,
undergone, or lived through ••• Sa: the sum total of the
conscious events that make up an individual life ••• 6:
something personally encountered, undergone, or lived
through ••••
Webster's Third New International Dictionary
(Unabridged 1971) (Emphasis the Commission's).
In Amax Chemical Company, 8 FMSHRC
(Slip. Op.,
August 27, 1986), the Commission interpreted§ 57.3-20's
companion section, § 57.3-22.2/ The Commission stated:
Unlike the regulatory scheme that obtains
with respect to underground coal mines,
approved roof control plans are not required
in underground metal-nonmetal mining operations.
Rather, "[g]round support shall be used if the
operating experience of the mine, or any particular
area of the mine, indicates that it is required."
2/ This mandatory ground control safety standard, which applies
to metal-nonmetal underground mines, provides:
Miners shall examine and test the back, face, and rib
of their working places at the beginning of each shift and
frequently thereafter. Supervisors shall examine the ground
conditions during daily visits to insure that proper testing
and ground control practices are being followed. Loose
ground shall be taken down or adequately supported before
any other work is done. Ground conditions along haulageways
and travelways shall be examined periodically and-scaled or
supported as necessary.
30 C.F.R. § 57.3-22 (1984). In 1985, this provision was
renumbered-as 30 C.F.R. § 57.3022 but its wording was not
changed.

376

(30 C.F.R. § 57.3020 (1985) (formerly numbered as 30
C.F.R. S 57.3-20 (1984)). See generally, White Pine
Copper Range Co., 5 FMSHRC 825, 835-37 (May, 1983).
(Of course, the standard involved in the present case
also imposes the continuing duty to examine ground
conditions in such mines and to take down or adequately
support any loose ground.)

* * *
we hold that in evaluating ground conditions and the
adequacy of support under this standard [§ 57.3-22],
all relevant factors and circumstances must be taken
into account.

* * *
Visible fractures, sloughed material, '"popping" and
"snapping" sounds in the ground, the presence, if any,
of roof support, and the operating experience of the
mine, or any of its particular areas, are also relevant
factors to be considered. Cf. White Pine, supra, 5
FMSHRC at 833-37.
use of the term "indicates" in§ 57.3-20 denotes something
less than a requireillent of certainty before roof support is
required to protect miners against roof falls. This
interpretation is consistent with the Commission's interpretation
of§ 57.3-22 in the Amax case, where it stated (in Fn. 5):
We reject any suggestion that the ground control
measures required by the standard apply only when
ground is in immediate danger of falling.
It is also consistent with the Commission's statement in White
Pine that the purpose of § 57.3-20 is "to protect the miners from
apotential roof fall" CS FMSHRC 838, emphasis added).
I construe § 57.3-20 as meaning that "operating experience"
sufficient to indicate the need for roof support does not have to
be at the point of an immediate danger of a roof falling, but
includes danger of a potential roof fall.
The "operating experience" of Respondent's mine included,
besides those conditions described in the Findings of Fact,
above, the conditions and incidents described by personnel who
worked in the 14 N 33 drift on a daily basis. The import of the
testimony of the miners and MSHA witnesses, which I credit, is

377

that the 14 N 33 drift had a bad roof, it was dangerous, and it
needed roof support where Dillard and Waters were working.
Frank Clay Wright
As stated above, wright was the development loader on the
same shift with Dillard and Waters. His testimony about roof
problems in the 14 N 33 drift on the night Dillard was killed has
been partially recounted above.
Wright testified that the roof in the 14 N 33 drift was bad
and that, after the drift was driven through the N 28 crosscut
the roof conditions became worse (Tr. 185-186) and loose ground
conditions were "all over. On the ribs, back [roof] everything"
c•rr. 203-204).
Mark Richards
A portion of Richards' testimony has also been recounted
above. As noted, on September 13 he installed an extra row of
roof bolts because of popping noises in the roof and because the
roof was dropping "fines."
He corroborated Gary Williams' statements about the bad roof
around the bore hole, within 15 feet of the place where Dillard
and Waters were struck by the roof fall.
Richards testified that he bolted the roof up to the smooth
wall on· September 13. The smooth wall was shot down on the
afternoon of the 14th of September, exposing the area from which
the rock fell that killed Dillard.
Richards, like Wright, described the roof conditions in the
14 N 33 drift as being "bad":
Q.

Had you observed the roof conditions along the
33 drift?

A.

It's bad.

Q.

When you say day one what?

A.

Well, I'm talking about from where they broke
it off all the way up.

It's bad from day one.

(Tr. p. 319).
Richards testified that he believed the whole drift needed
pinning (Tr. 7324), that he told his supervisor, Laddie Hicks,
that there was a roof area in the 14 N 33 drift that still needed

378

pinning and thereafter, to his knowledge, that roof area was not
pinned (Tr. 324-326).
Richards regarded the 14 N 33 roof as dangerous and
testified that he would not have wanted to work anywhere in the
14 N 33 drift unless it was pinned (Tr. 344).
Thomas J. Mason
Mason was the day shift development driller who shot the
heading in the 14 N 33 drift shortly before Dillard, Waters, and
wright began their shift on September 14. He had worked in that
drift from the time it was begun. Referring to the roof, he
testified that in his 16 years in development work:

A.

I've never seen one no worser. I've never seen
one that bad. I mean as far as the roof and top
and all.

Q.

Okay.

A.

If we're talking about going in
the drift
where Mr. Dillard got killed at.
It was
rough on us all the way. I'm saying it was
ground we had -- we had ground all the way there.

You're referring then to 14 N 33?

(Tr. 281).
Mason described a number of adverse ground conditions he
experienced in the 14 N 33 drift before the Dillard fatality:
The roof was bad "all the way" (Tr. 273, 277); about 30 feet from
the N 28 crosscut in the 14 N 33 drift, a rib caved in, "just
gave way" (Tr. 275), and almost struck his drill buddy (Tr. 274);
later, between N 28 and the face where Dillard and Waters were
struck by a roof fall, a rib "jumped out" on Mason and his drill
buddy (Tr. 277); after the tunnel advanced beyond the bore hole,
a large rock fell from the roof and hit his Jumbo drill and broke
a jack (Tr. 278-279); after that roof fall, his foreman,
Glenn Morrow, helped the miners move the rock from his drill
(another incident of a foreman's knowledge of adverse roof
conditions in the 14 N 33 drift) (Tr. 299-300).
Mason worked in the 14 N 33 drift from the time it was
opened until after the Dillard fatality. He saw many falls of
roof or rib and in each case the fallen rocks had been
unsupported. He never saw a roof fall where the roof was
supported by roof bolts.

379

MSHA'S Accident Investigation
Frank Holiday and Eugene Mouser, MSHA inspectors, inspected
the accident scene on the morning following the fatality. They
interviewed mine officials and employees and inspected the 14 N
33 drift. On the 15th they decided to issue a citation, which
was put into written form on Monday, September 17, 1984. On that
date, the inspectors' supervisor, M. P. Turner, visited the mine
and the 14 N 33 drift. Turner was accompanied by his supervisor·,
Fred Juopperi. 3/
MSHA's findings are, in part, set out in its investigation
report dated October 12, 1984, and entitled "Report of Fatal
Fall-Of-Ground Accident," which was admitted into evidence as
Exh. P-4. The report concluded that:
The cause of the accident was the failure of
management and employees to scale down and/or
~dequately support loose ground.
Contributing
causes may have been the failure of management
and employees to detect loose ground and that
vibrations from the drilling operation may have
affected the ground conditions above the dri11 area
by loosening unstable ground.
(Exh~

P-4, p. 4).

Inspector Mouser issued Citation 2247782 charging a
violation of 57.3-22 (quoted in Fn. 2, supra). The citation was
modified by Turner on Aagust 18, 1986, to cite
§ 57.3-20
instead of§ 57.3-22 (Exh. P-3). In the body of the citation
(which was not modified) Inspector Mouser identified the
condition or practice as follows:
One miner was fatally injured and one seriously
injured as a result of a rock fall. The men were
operating a drill Jumbo under unsupported back in
the 14 N 33 drift. The men were approximately
7 1/2 feet beyond the last supported roof.
3/

In the transcript Juopperi's name is misspelled "Dupress."

380

At the hearing Turner and Holiway were called by the
Secretary to testify. Respondent called Mouser.
Turner, who has a mining engineer's degree and 30 years
experience in the mining field, testified that he believed the
areas of loose roof he observed on the 17th of September (loose
rocks in the roof near the accident site and in other areas of
the roof (Tr. 118)) were not caused by the fall of the rock that
struck Dillard and Waters but existed before the fall (Tr. 94-96,
118, and 142). I credit his testimony on this point.
Holiway testified that he decided to issue the citation {in
consultation with Mouser) because of loose rocks which he
observed in the roof on September 15 (Tr. pp. 362-363) -- "a
man ••• was killed and a man seriously injured, and there were
still loose rocks hanging in the drift ••• {Tr. 362)."
Mouser fundamentally agreed with Turner and Holiway. At one
point in the questioning by counsel for the Respondent, he
testified as follows:
Q.

You couldn't say that the ground fall was a
surprise?

A.

Because they knew there was some loose rock there.

Q.

You're, again, referring to the Frank Wright
comment?

A.

Right.

* * •
Q.

If I were to tell you, Mr. Mouser, that
Frank Wright was talking about a piece of
rock that was pinned, rock bolted, would
that changed entirely your opinion of whether
or not a citation should have issued?

A.

I don't think so, from the evidence I saw
when we went in the drift, because there was
loose ground, and a rock fell and killed a
miner.

Q.

Yeah. But that loose ground could have
occurred as a result of stress that
occurred after Mr. Wright left the area;
could it not?

381

A.

That's a possibility; but I don't believe
it did.

Q.

On what basis do you draw the conclusion that
it did not?

A.

Well, from the condition the ground was in
when we saw it, when we went in there.

(Tr. 4141-415.)
Respondent contends that, at the time of the fatality, roof
control at the Cherokee Mine was founded upon a "layered system"
of three levels of responsibility to monitor and control the
roof: the miners, the front line supervisors, and upper
management.
I find that a preponderance of the credible evidence shows
that the system failed at all three levels and, as a consequence,
roof that should have been supported was not. The result was an
accident that killed one miner and permanently disabled another.
Miners' Level
Respondent contends that the roof in the 14 N 33 drift was
adequately examined and scaled by the miners who began work there
at 3:00 p.m. on September 14, 1984, and that the roof fall was a
"surprise" for which Respondent is not accountable under the Act.
The development crew on that shift consisted of Steve
Dillard and Joshua Waters, development drillers, and Frank
Wright, development loader. It was assisted on that particular
evening by Hayden Stiles, who was normally a truck driver. They
were all under the supervision of the development foreman,
Cleaston Morrow.
Respondent contends that Dillard and Waters scaled the drift
before and after Wright and Stiles mucked it out. I find,
however, as Waters testified, that he and Dillard had scaled only
about 30 feet back from the face (Tr. 563, 568) and they did not
scale the roof further after Wright and Stiles were through
mucking (Tr. 566). Based upon the measurements made by
Respondent after the fatality, and adopted by the MSHA
investigation team , the distance of scaling stated by Waters may
have missed the area where the rock fell that killed Dillard and
injured Waters.
Inspector Mouser testifed that it was 37 feet
from the last row of bolts to the face and that Dillard and
Waters were struck approximately seven and one-half feet inby the
last row of roof bolts CTr •. 439). The rock that fell was six
feet and eight inches long, four feet and ten inches wide CExh.

'382

P-4). Given the measured distances involved and the fact that
Waters could only estimate the distance he and Dillard scaled, I
find that waters and ~illard may well have missed loose roof in
the part of the roof that fell.
I credit the testimony of the
MSHA witnesses who observed loose, unbolted rocks in the roof
near the area where the rock had fallen and elsewhere and their
opinions as experts that the loose rocks were probably there and
visible before the rock fall.
The roof area that the third member of the crew, Frank
Wright, expected to have been scaled by Dillard and Waters was
very different from the area they actually covered. Wright
testified about his anger when he was nearly struck by a rock
fall after Dillard told him the area was ready to be mucked.
After being assured by Dillard--whom he met on the way into the
drift--that they (Dillard and waters) had finished scaling, a
rock approximately 2 x 3 feet fell in front of Wright's loader
(Tr. 167). When this happened Wright stopped mucking and, with
the assistance of Hayden Stiles, pulled down what Wright
described as "quite a bit" of loose rock from the roof (Tr~ 170).
After Wright completed this additional scaling and finished
mucking out the area, he confronted Dillard in the lunchroom and
complained to him about his (Dillard's) failure to scale the area
where he (Wright) had been mucking (Tr. 171-172).
The testimony of Waters and of Wright shows that there was a
breakdown in communication among the development crew about what
areas of the roof were to be scaled. When Wright asked Dillard
whether the area was ready to be mucked, he (Wright) assumed that
the scaling had included--at a minimum--the area back to N 28 in
the 14 N 33 drift but Dillard and Waters apparently viewed the
area necessary to be scaled as only from the face extending back
as far as their estimate of where the Jumbo drill would be when
it was moved in for drilling. This represents a substantial
disparity as to the roof areas to be scaled.
Further evidence of a communication breakdown at the miner
level is the fact that, after Wright told Dillard about adverse
roof conditions in the drift and warned him that the roof still
needed to be checked, Dillard did not pass this information on to
Waters (Tr. 571) and Dillard and Waters did not enlarge the area
where they scaled the roof (Tr. 563, 566).
. Visibility and audibility in the 14 N 33 drift were poor,
because of dust and machinery noises. These conditions made it
difficult to conduct proper examinations of the roof and to
listen for sounds that could help one to keep a careful check on
the roof. ·Also, the roof was 18 feet high. Wright, Waters,
Dillard and Stiles could not be reasonably sure that they had not

383

missed some areas of the roof that were loose or making slight
noises that would give signs of danger. Indeed, Dillard and.
waters missed "quite a bit" of loose roof and after they said the
roof was scaled there was a rock fall that nearly hit Wright.
After that, Wright scaled the roof but acknowledged that, "maybe
I missed a piece of [loose] ground. I don't know." (Tr. 241.) It
is likely that Wright did miss some loose roof because after he
scaled the roof there was a fatal roof fall and when the MSHA
investigation team examined the scene they observed loose
unbolted rocks in the roof near the rock fall and elsewhere.
Based upon their years of experience they believed that the loose
rocks were probably there and visible before the roof fall.
I
credit the testimony and expert opinions of the MSHA witnesses on
these points.
Front Line Supervisor Level
When Wright returned to the lunchroom after he completed
scaling and mucking, he complained to Dillard about his
(Dillard's> failure to scale the roof adequately and warned
Dillard about the roof conditions in the area where Dillard and
Waters would be working (Tr. 172). Cleaston Morrow, the
development foreman, was responsible for the 14 N 33 drift and
the safety of the miners working on his shift. As a supervisor,
he had mandatory safety duties under 30 C.F.R. § 3-22, which
provides, inter alia, that "Supervisors shall examine the ground
conditions during daily visits to insure that proper testing and
ground control practices are being followed. * * * Ground
conditions along haulageways and travelways shall be examined
periodically and scal~d or supported as necessary." Morrow's
deposition was admitted into evidence as Exh. P-21. He testified
that he heara wright say to Dillard that, "there had been some
ground that had blowed up down there on the face ••• to watch the
ground, make sure they check it good (Exh. P-21, p. 10.)."
Morrow defined ground "blowing" to include popping or cracking
and little pieces of "scale" falling (Exh. P-21, p. 11).
Although Morrow heard Wright tell Dillard that there were adverse
roof conditions in 14 N 33, he did not go there to examine the
unsupported roof and had not gone to the face area on that shift
before then. He knew that when Dillard and waters left the
lunchroom they would be drilling into the face and roof while
working under UP.supported roof.
When Gary Williams, the general mine foreman, was
interviewed by Eugene Mouser, an MSHA investigator, on September
15, 1984--the day following the fatality--Williams stated that
adverse roof conditions had been reported to Morrow by the
development crew (Tr. 420-421). Gary Williams' deposition was
admitted into evidence as Exh. P-20. He testified that it was

384

Cleaston Morrow's responsibility as the crew foreman to inspect
the face area (Id. p. 75).
Mark Richards, a roof bolter, testified that the last row of
roof bolts was at a point which he measured to be seven and
one-half feet outby the place where the rock fell upon Dillard
and waters on September 14 (Tr. p. 309). He described adverse
roof conditions that had caused him to install an extra row of
bolts in the area between the bore hole and the place where the
rock fell that killed Dillard (Tr. 315):
I did feel the ground, it popped real loud
overhead, you know, and that's what we call in
the mines taking weight.
I backed the jimbo up
from under it and put another row of pins in.
And it was
I was setting there in the driver's
seat when it did pop, and I backed up and I put
another row of pins in for my own satisfaction. I
didn't want to get hurt and I didn't want nobody
else to get hurt.
Richards testified that he was criticized by his supervisor,
Laddie Hicks, for installing an extra row of bolts. Richards
informed Hicks that he had put the extra bolts in the roof
because he had heard the roof pop and because of the fall of some
"fines" from the roof (Tr-. 318-319, 330-332). Laddie Hicks was
the superivsor of stoping and rock bolting. He was made aware of
adverse roof conditions by Mark Richards but seemed to be more
concerned with the extra cost of the roof bolts than with the
conditions that gave rise to their installation. Hicks was not
called as a witness to dispute or rebut the testimony of Mark
Richards.
Thus, two front line supervisors, Laddie Hicks on September
13, and Cleaston Morrow on September 14, were told of adverse
roof conditions near the area where Dillard and waters would be
working. Yet neither of these supervisors took any action to
inspect and provide roof support above the place where Dillard
and Waters would be operating a drill drilling blasting holes
into the face and roof.
Upper Management Level
Gary Williams, the general mine foreman, testified that he
had ordered roof bolting of an area around the bore hole within
40-45 feet of the face where Dillard and Waters were later struck
by a rock fall in the 14 N 33 drift (Exh. P-20 p. 39). He
ordered the roof bolting because of adverse roof conditions he
personally observed. That means that the bad roof he observed

385

was within 15 feet of the Dillard/Waters accident si~e, because
the rock fell about 30 feet from the face.
He testified that "I
didn't like the looks of it. I didn't like what I was afraid it
might turn into •••• (Exh. P-20, p. 56)." He also testified that
underneath the bore hole he could see "some cracks in the
separation of the rock" and that "when you see a bore hole
flaking with little small flakes, you know that your' re getting
-- a little something is trying to squeeze there."
(Id., pp.
56-57.) Despite these conditions, he did not order roof support
for the area where Dillard and Waters would be operating the
Jumbo drill.
Respondent contracted with Dr. Ross D. Hammett of Golden
Associates, a mining consulting firm, for, among other things,
advice on "the need for support and the stability of development
excavations."
(Exh. P-26 p. 14.) Dr. Hammett testified that in
May, 1984, he visited the mine and in July, 1984, filed a written
report with Respondent, the narrative portion of which was
admitted as Exh. P-27. At page 10 of the report, entitled "Local
Stability of Development Openings," he stated:
With the high stress levels evident at deep depths
in the mine and the increased stress concentrations
from adjacent mining, more detailed consideration
will need to be given in the future to the support
of development openings in the mine.

* * *
It is difficult to recommend optimum support designs
based on observations from one or two underground
inspections but the following are general guidelines
which will assist in developing a support strategy:
(1) Development openings (including drilling drives
and drilling chambers) should be of minimum practical
size.
(Under some circumstances, narrow openings may
attact [sic] higher stresses than wide openings and so
rninimirn [sic] size openings will not prevent stress
fracturing. However, stress fracturing is much easier
to control and provide adequate support than
instabilities associated with wide openings).
(2) It is not felt that routine systematic bolting of
openings of 16 ft to 18 ft span or less is presently
required, it may ultimately be necessary to adopt this
approach. Decisions on the areas to be sup~orted will
depend primarily on local geological conditions. It is
recommended that spans greater than 16 ft to 18 ft be
systematically bolted with bolts at least 6 ft long for

386

narrower spans, and up to at least 8 ft for wider spans.
It is not recommended that spans be designed for more
than 25 ft.
[Emphasis added.]
The 14 N 33 tunnel did not exceed the dimensions at which
Dr. Hammett recommended systematic roof bolting, but it was at
this limit and after his report there were numerous incidents of
adverse roof conditions in that tunnel before the fatality on
September 14. After the fatality, another development miner was
injured by a rock fall and management finally acknowledged that
"we could not reasonably predict where further rock falls would
take place" (Exh. P-25, p. 43); it therefore adopted a policy of
systematic roof bolting up to the face in development drifts.
This policy was implemented by a new safety rule:
"No person
shall enter an active development heading until ground support
has been installed up to the face" (Exh. R-4).
I find that, before the September 14 fatality, Respondent's
operating experience indicated the need for this kind of safety
rule or some other adequate method of roof support above the
drillers in the 14 N 33 drift. At least as early as the Ledford
fatality in January, 1984, Respondent was put on notice that
operation of the Jumbo drill in a development drift, drilling
blasting holes into the face or roof while being under
unsupported roof, presented a serious hazard of a potential roof
fall. MSHA warned Respondent that "the drilling operation may
have affected the ground conditions above the [drilling machine]
area by loosening unstable ground."
(The MSHA investigation team
repeated this same warning in its report on the Dillard/Waters
roof fall. This expert opinion was corroborated by the firsthand
experience of Frank Wright, who worked in the 14 N 33 tunnel from
the beginning and testified that the vibrations of the drill
would cause "anything loose" in the roof to fall (Tr. 217).)
After the warning in the Ledford case, in another development
drift Cl4 N 33) where the same kind of drilling and blasting was
being done, there were numerous incidents of adverse roof
conditions, including popping noises, cracking, loose rocks,
falling rocks and falling "fines" or "scales," before the
September 14 fatality, to show a clear danger of a potential roof
fall presented by drilling the face or roof while being under
unsupported roof. Despite this clear evidence of risk to the
development drillers, Respondent assigned Dillard and Waters to
drill blasting holes into the face and roof while being under
unsupported roof.
I find that Responde~t violated 30 C.F.R. § 57-3-20 by
failing to provide roof support at the place where the rock fell
on Dillard and Waters on September 14, 1984. In light of the
abundant operating experience showing the need for roof support
in this area before the fatality, I find that Respondent's

387

failure to provide roof support to protect Dillard and Waters
from a potential roof fall constituted gross negligence.
The degree of gravity of the violation was very high,
because of the risk of death and severe, permanently disabling
injuries involved in a roof fall.
Respondent is a medium to large sized operator. Considering
all of the criteria for civil penalties in § llO(i) of the Act, I
find that a penalty of $7,500 is appropriate for this violation.
CONCLUSIONS OF LAW
1.

The Commision has jurisdiction in this proceeding.

2. Respondent violated 30 C.F.R. § 57.3-20 (now§ 57.3020)
as charged in Citation 2247782 as amended.
ORDER
WHEREFORE rr IS ORDERED that Respondent shall pay the above
penalty of $7,500 within 30 days of this Decision.

ttl~~ 1... ~ .,.-,..,
}

4

•

"""'

William Fauver
Administrative Law Judge

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Ronald G. Ingham, Esq., Clements, Ingham & Trumpeter, Volunteer
State Life Building, 10th Floor, Chattanooga, TN 37402 (Certified
Mail)
kg

388

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

MAR 151988
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 87-21
A.C. No. 15-05407-03501 M75

v.

Docket No. KENT 87-23
A.C. No. 15-08382-03501 M75

TRIPLE B CORPORATION,
Respondent

No. 1 Surface Mine
DECISION

Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN, for
Petitioner;
Gary A. Branham, President, Triple B Corporation,
Prestonsburg, KY, for Respondent.

Judge Fauver

These consolidated proceedings were brought by the Secretary
of Labor for civil penalties for alleged violations of safety
standards under the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et~
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following:
FINDINGS OF FACT
1. At all pertinent times, Respondent was an independent
contractor at the Southside Surface No. 1 Mine in Pilgrim, Martin
County, Kentucky, and at the No. 1 Surface Mine in Lovely, Martin
County, Kentucky, both of those coal mines being subject to the
Act.
KENT 87-21
2.
Respondent was an independent contractor engaged by
Daniels Construction Company, Lovely, Kentucky, to construct a
portion of roadway that led into an underground coal mine area of
the No. 1 Surface Mine.

389

bitation 2783877
3. MSHA Inspector Andrew Reed issued Citation 2783877 to
Respondent, charging a violation of 30 C.F.~. § 77.1605(k),
because it had failed to provide a berm or guard to the outer
bank of the roadway, which was elevated 20 to 50 feet above the
adjacent terrain and had a grade of about eight percent.
4. About six months before the·· issuance of the above
citation, Inspector Reed had issued a citation to Daniels
Construction Company for a violation of the same standard on this
roadway within one-quarter mile of the area for which th~
citation was issued to Respondent.
5. On A~ril 29, 1~85, MSHA Inspector R.C. Hatter had issued
a citation to Respondent for a violation of § 77.1605(k) at No. 1
Surface Mine.
KENT 87-23
6. Respondent was engaged as an independent contractor
doing reclamation work for Martin County Coal Corporation at the
latter's Southside Surface Mine No. 1 in Martin County, Kentucky.
7. The reclamation work by Respondent included the use of
bulldozers, trucks, arid other equipment for grading, sloping,
seeding, and mulching areas of Martin County Coal Corporation's
strip mines that were required by federal and state law to be
reclaimed.
'
8. Respond~nt used the overburden
(i.e. rocks and dirt)
that had· been removed by Martin County Coal Corporation during
its mining cycle to carry out grading, ~loping, ~nd backfilling
work in reclaiming the surface of the mine.

9. Martin County Coal Corporation was actively strip mining
coal at the mine site where the Respondent was doing reclamation
work.
Citation 2784979
10. A D65E Komatsu bulldozer used in reclamation work, as
described above, was not equipped with a fire extinguisher.
Citation 2784980
11. Another D65E Komatsu bulldozer used in reclamation work
was not equipped with a fire extinguisher.

390

Citation 277626
12. The D65E Komatsu bulldozer for which Inspector Reed
issued Citation 2784980 for the lack of a fire extinguisher also
did not have a reverse alarm.
Citation 2776262
13. A hydroseeding truck used by Respondent for reclamation
work at Martin County Coal Corporation's mine site was used to
spray water, mulch, grass seed, and fertilizer to promote the
grown of vegetation in the areas being reclaimed.
14. The hydroseeding truck did not have operative
headlights, tail lights, brake lights, or turn signals. In
addition, it was missing a muffler and heat shield around the
exhaust pipe on the passenger's side. The rear steps used to
mount the back of the truck and the right side hand hold were
also missing.
Citation 2776263
15. The above hydroseeding truck did not have a fire
extinguisher.
16.
alarm.

Citation 2776264
The above hydroseeding truck did not have a reverse
DISCUSSION WITH FURTHER FINDINGS
KENT 87-21

In this case Respondent filed the following answer to the
petition for civil penalties:
We contest the above violation for the following
reasons. We were hired as a contractor to construct
a length of road for Daniels Construction Company,
Lovely, Kentucky. It was our understanding that
the road was to be used for employee travel to
their assigned work areas. We were employed on a
hourly basis and worked at their direction. The
work was in a construct phase with no through traffic
permitted. We feel the violation is in error
against our company and should be dismissed.

391

Respondent offered no proof at the hearing to rebut the
Government's evidence of the violation charged, nor did it offer
any proof that the road construction was not covered by the Act.
The Act and regulations allow the Secretary to cite an
independent contractor for violation of a safety standard under
the Act. Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533
(D.C. Cir. 1986).
The allegations of Citation 2783877 as to a the violation,
negligence and gravity were proved by a preponderance of the
credible evidence.
KENT 87-23
In this case, Respondent filed the following answer:
We contest the above violations for the
following reasons. We were contracted for
reclamation work at the above mine. There
was no active mining at the locations.
Therefore, we were not subject to MSHA
jurisdiction, therefore, these violations
are in error.
The following definitions are relevant to this case (30

u.s.c. § 802):

(d) "operator" means any owner, lessee, or
other person who operates, controls, or
supervises a coal or other mine or any independent
contractor performing services or construction at
such mine;
(h)(l) "coal or other mine" means CA) 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 facilities.
In making

392

a determination of what constitutes mineral milling
for purposes of this chapter, 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 subchapters II, III, and IV,. of
of this chapte~ "coal mines" means an aiea of land and all
structures, faciliites, machinery, tools, equipment, shafts,
slopes, tunnels, excavations, and oth~r properti, 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 th.e
earth by any means or method, and the work of prepar in·g the
coal so extracted, and includes custom coal preparation
facilities;
·
[Emphasis Added.]
Respondent meets the definition of an operator under the
above definitions.
It wa~ performing services at Martin County
Coal Corporation's mine to reclaim land conditions that
"resulted from" coal mining. Respondent provided a significant
and continuing service to Martin County Coal Corporation which
was required by its (Martin County's) need to comply .wi.th federal
and state laws regarding reclamation.
·
Respondent's employees were using bulldozers and large
trucks identical to or similar to those used in day-to-day strip
mining operations. The services supplied ~y Respondent qould n6t
be considered incidental or tenuous but were an important part of
Martin County's mining operation and, therefore, constituted
activities covered by the Act.
Civil Penalties
The allegations of the following citations as to the
violations, negligence, and gravity were proved by a
preponderance of the credible evidence. Considering all the
criteria for a civil penalty in § llOCi> of the Act, I find that
the following civil penalties are appropriate:
Citation

Civil Penalty

2783877
277646"1
2776262

$98

68
39

393

2784979
2784980
2776263
2776264

39
39
39
68
$390
CONCLUSIONS OF LAW

1.

The Commission has jurisdiction in these proceedings.

2. Respondent violated the mine safety standards as charged
in the above citations.
ORDER
WHEREFORE IT IS ORDERED that Respondent pay the above civil
penalties in the total amount of $390 within 30 days of this
Decision.

~~.,,~
William Fauver
Administrative Law Judge
Distribution:
Carole M. Fernandez, Esq., Office of the Solicitor, U.S.
Department of Labor, 28 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Gary A. Branham, President, Triple B Corportion, P.O. Box 428,
Prestonsburg, KY 41653 (Certified Mail)
kg

394

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

MAR 161988
PEABODY COAL COMPANY,
Contestant

v.

CONTEST PROCEEDING
Docket NO. WEVA 87-263-R
Order No. 2956024; 5/29/87

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

Robin Hood No. 9 Mine
Mine ID 46-02143
CIVIL PENALTY PROCEEDING
Docket No. WEVA 88-26
A.C. No. 46-02143-03567

v.
Robin Hood No. 9 Mine
PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Thomas Clark, Esq., Charleston, West Virginia for
Peabody Coal Company;
Ronald E. Gurka, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Secretary of Labor.

Judge Melick

These consolidated cas~s are before me under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §
801 et. seq., the "Act," to challenge Withdrawal Order No.
2956024 issued by the Secretary of Labor under section 104(d)(2)
of the Act and for review of civil penalties proposed by the
Secretary for the violation alleged therein.~/

~/

Section 104(d)(2) of the Act provides as follows:

"[I]f .a withdrawal order with respect to any area in a coal
or other mine has been issued pursuant to paragraph Cl), a
withdrawal order shall promptly be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection-the existence in such mine of violations similar to
those that resulted in the issuance of the withdrawal order under
paragraph Cl) until such time as an inspection of such mine
discloses no similar violations. Following an inspection of such
mine which discloses no similar violations, the provisions of
paragraph Cl> shall again be applicable to that mine."
395

Order No. 2956024, as amended at hearing, alleges a
"significant and substantial" violation of the regulatory
standard at 30 C.F.R. § 75.303(a) and charges as follows:
[a] preshift examination was not made in 1 right
section and air used to ventilate 1 right section faces
and air passing by openings at mouth 1 right section
was used to ventilat~ ~he active working faces in 1
North section and continuous miner was loading coal in
No. 5 face 1 North. Chemical smoke was used to check
air movement.
There is no dispute in this case that preshift examinations
were not being conducted in accordance with the regulatory
standard at 30 C.F.R. § 75.303(a) in the 1 Right area when the
order was written on May 29, 1987. That standard provides in
relevant part as follows:
Within 3 hours immediately preceding the beginning of
any shift, and before any miner in such shift enters
the active workings of a coal mine, certified persons
designated by the operator of the mine shall examine
such workings and any other underground area of the
mine designated by the Secretary or his authorized
representative. Each such examiner shall examine every
working section in such workings and shall make tests
in each such working section for accumulations of
methane with means approved by the Secretary for
detecting methane, and shall make tests for oxygen
deficiency with a permissible flame safety lamp or
other means approved by the Secretary; examine seals
and doors to determine whether they are functioning
properly; examine and test the roof, race, and rib
conditions in such working section; examine active
roadways, travelways, a~d belt conveyors on which men
are carried, approaches to abandoned areas, and
accessible falls in such section for hazards; test by
means of an anemometer or other device approved by the
Secretary to determine whether the air in each split is
traveling in its proper course and in normal volume and
velocity; and examine for such other hazards and
violations of the mandatory health or safety standards,
as an authorized representative of the Secretary may
from time t0 time require •••.

,396

The term "active workings" is defined as "any place in a
coal mine where miners are normally required to work or travel".
30 C.F.R. § 75.2 Cg)(4}.
In her "Final Argument 11 set forth in a post hearing brief,
the Secretary argues that the 1 Right area at issue was
"considered to be an integral part of the 1 North working
section" and since the 1 North area was admittedly within the
"active workings" of the subject mine on May 29, 1987, then the 1
Right area must also be within the "active workings" and likewise
subject to the preshif t examination requirements of section
75.303(a).2/ Peabody Coal Company (Peabody) disagrees and
maintains that the 1 Right area was then in a separate and
distinct area of "idle workings" and was therefore subject only
to the weekly inspections required by the standard at 30 C.F.R §
75.305.
It is not disputed that Peabody began producing coal in the
area designated as "l Right" at the Robin Hood No. 9 Mine in
April of 1987. Production continued in this area until May 21,
1987, when the mining equipment was moved from that area into the
adjacent 1 North area. Weekly examinations for hazardous
conditions were then scheduled to be performed in the 1 Right
area and pursuant to that schedule a weekly examination was in
fact performed on May 26, 1987. Coal production in the 1 Right
area did not resume until September 1987.
On May 29, 1987, an inspector for the Federal Mine Safety
and Health Administration CMSHA}, Clinton Lewis, arrived at the
No. 9 Mine to investigate an unrelated matter. Lewis observed
that coal was then being produced in the 1 North area but not in
the 1 Right area. Moreover he found no mining equipment in the 1
Right area and found that no miners were working in the 1 Right
area and no miners were scheduled to work in the 1 Right area.
In fact Lewis concluded that the 1 Right area had been
"abandoned".' Based on this undisputed evidence it is clear that
on May 29, 1987, the 1 Right Section was not "active workings" as
defined in the regulations. See Vesta Mining Co. v. Secretary of
Labor, 6 FMSHRC 1547 (Judge Fauver, 1984) and Secretary of Labor
and UMWA v. Jones and Laughlin Steel Corp. and Vesta Mining Co.,
8 FMSHRC 1058 (1986).
~/The Secratary had maintained until the date of hearing
that the 1 Right area was an "abandoned area" and had argued at
hearing, alternatively, that the 1 Right area was a "worked-out
area of active workings". The Secretary also produced evidence
at hearing that the 1 Right area was an abandoned area and not
"active workings". These contentions have apparently now been
completely abandoned.

397

The Secretary nevertheless argues that a notation on a
ventilation map current for May 1, 1987, and an entry on the
record of a weekly examination of the "l North Panel" on May 26,
1987, show that Peabody itself considered the 1 Right area to be
"active workings". While the determination of whether an area is
"active workings" as defined in 30 C.F.R. § 75.2Cg)(4) depends on
the underlying facts, the Secretary's evidence is in any event
irrelevant to the date at issue, i.e. May 29, 1987. Indeed
Peabody does not dispute that the 1 Right area was an "active
working" until May 21, 1987. The Secretary's argument is
accordingly devoid of merit.
Finally, the Secretary argues that whether or not the 1 Right
area was within the "active workings" of the mine, it was
nevertheless subject to preshift examinations under the
provisions of 30 C.F.R. § 75.303-1. She argues that since a
split of air which passes through the 1 Right area was used to
ventilate the working places of the 1 North section (admittedly
active workings) a preshift exam of the 1 Right area should have
been made in order to determine whether the air in each split" is
traveling in its proper course, normal volume and velocity" under
.
3
30 C.F.R. § 75.303-1._/
The short answer to this argument is that no violation of
the regulatory standard at 30 C.F.R. § 75.303-1 has been charged
in this case.
Indeed this allegation was made for the first time
well after the conclusion of hearings and in the Secretary's
post-hearing brief. Section 104(a) of the Act requires that
"each citation shall describe with particularity the nature of
the violation, including a reference to the provision of the Act,
standard, rule, regulation oc order alleged to have been
violated." Section 104Cd)(2) of the Act· may be regarded in pari
materia with Section 104(a) and orders issued under Section
104Cd)(2) would therefore be expected to conform to the same
notice requirements. In this case tha operator was charged
(after amendment on the date of hearing) only under the general
provisions of 30 C.F.R. § 303(a). To now charge posthearing that
section 75.303-1 was violated denies the operator an opportunity
to properly defend and denies the trial judge an opportunity to
make appropriate inquiry. See Secretary v. B.B.& W Coal Co., 1
FMSHRC 1479 Cl979) affirming the decision of Judge Michels
reported at 1 MSHC 2238.

ll 30 C.F.R. § 75.303-1 provides as follows:
To determine whether the air in each split is traveling
in its proper course and in normal volume and velocity,
the mine examiner shall use an anemometer or other
device approved by the Secretary to measure the
velocity and determine the volume of air at the
following locations:
(a) The last open crosscut of each pair or set of developing
entries;
Cb> The last open crosscut of each pair or set of rooms,
Cc) The intake end of each pillar line.
398

Notice of the specific regulation charged is particularly
important in this case where the cited regulatory language is
ambiguous and subject to several interpretations and the mine
operator has been denied the opportunity to present expert
testimony on relevant industry experience and practices and on
the "reasonably prudent person" test relating specifically to
section 75.303-1. See Alabama By-Products, 4 FMSHRC 2128, 2129
(1982). Here for example Peabody argues in its response brief
that the Secretary's proposed interpretation, of section 75.303-1
"would require mine operators to preshift each split of air which
is used to ventilate a working place and would require mine
operators to examine intake airways that may be thousands of feet
long between the working places and the ventilation fan, even
though such airways or splits of air are never traveled by miners
other than certified persons who do this only for the purpose of
conaucting weekly examinations or performing functions that are
otherwise required by law. 11
In any event based on the limited record before me I find
that the Secretary has miscontrued her regulations. The specific
inspection requirements under section 75.303-1 must reasonably be
limited to areas in which a preshift examination is required by
the first sentence of section 75.303(a), i.e. to the "active
workings". Otherwise the mine operator would indeed be required
to preshif t intake airways from the working places all the way to
the ventilation fan even though such airways are not in "active
workings" and may never be traveled by miners except those
conducting weekly examinations. There is an insufficient record
to warrant the sweeping construction the Secretary here urges.
Finally, even assuming arguendo, that section 75.303.1 was
violated, it would have been a violation of improperly performing
a pre-shift examination of the 1 North section. Peabody is here
charged with failing to perform a pre-shift exam of the 1 Right
section. Thus not only has the Secretary failed to cite the
specific regulation alleged to have been violated, as required by
the Act and due process standards, she has also failed to state
in the order the factual allegations necessary to constitute a
violation of the regulation she failed to cite. For this
additional reason the Secretary's charge is deficient.
Under the circumstances Oraer No. 2956024 must be vacated.

399

ORDER
Order No. 2956024 is vacated. Civil Penalty Proceeding
Docket No. WEVA 88-26 is dismissed and Contest Proceeding Docket
No. WEVA 87-263-R is granted.

~~\I

-bary · elick
Admiri strative Law Judge

(703\

56-626~

Distribution:
Thomas L. Clark, Esq., 800 Laidley Tower, P.O. Box 1233,
Charleston, WV 25324 (Certified Mail)
Ronald E. Gurka, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson bo .1levard, Room 516, Arlington, VA 22203
(Certified Mail)
1

npt

400

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

MAR 211988
JEFF MCQUEEN,

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 87-162-D

v.
BARB CD 87-26
FELOSI & FELOSI TRUCKING,
Respondent

Belmon No~ 10 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

I have reviewed the settlement agreement of the parties and
find that it is consistent with the purposes of § 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
~ Accordingly the joint motion to dismiss the proceeding~
based upon the settlement is GRANTED and this proceeding is
DISMISSED.

w~-:r~~v~
William Fauver
Administrative Law Judge
Distribution:
Mr. Jeff McQueen, P.O. Box 104, Bledsoe, KY 40810 (Certified
Mail)
Tony Oppegard, Esq., Appalachian Research and Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified Mail)
kg

401

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

MAR 241988
GREEN RIVER COAL COMPANY,
INC.,
Contestant

CONTEST PROCEEDING
Docket No. KENT 87-167-R
Citation No. 2835650; 4/28/87

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

No. 9 Mine

.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 87-227
A. C. No. 15-13469-03612

v.
No. 9 Mine
GREEN RIVER COAL COMPANY,
INC.
Respondent
DECISION
Appearances:

Flem Gordon, Esq., Gordon, Gordon, and Taylor,
Owensboro, Kentucky for Green River Coal Company,
Inc.;
Mary Sue Ray, Esq., Office of the Solicitor, U. s.
Department of Labor, Nashville, Tennessee for the
Secretary of Labor.

Before: Judge Melick
These consolidated cases are before me under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c § 801
et. seg., the "Act," to challenge five citations issued by the
Secretary of Labor against the Green River Coal Company, Inc.
(Green River) and for review of civil penalties proposed by the
Secretary for the violations alleged therein.
Citation No. 2835668 aileges a "significant and substantial"
violation of the regulatory standard at 30 C.F.R. § 75.302Cb) and
charges that "[a] violation was observed on the No. 7 unit
section ID 007 in that the space between the line brattice and
rib in the No. 1 entry was not large enough to permit the flow of
a sufficient volume and velocity of air to keep the working face

402

clear of flammable, explosive, and noxious gases, dust and
explosive fumes."
The cited standard requires that "the space between the line
brattice or other approved device and the rib shall be large
enough to permit the flow of a sufficient volume and. velocity of
air to keep the working face clear of flammable, explosive, and
noxious gases, dust and explosives fumes.
Citation No. 2835669 alleges a "significant and substantial"
violation of the regulatory standard at 30 C.F.R § 75.301 and
charges that "the air current reaching the face of the No. 1
entry on the No. 7 unit ID 007 was not sufficient to dilute,
render harmless, gases and dust, and smoke and explosive fumes."
The cited standard provides in relevant part that "all
active workings shall be ventilated by a current of air
containing not less than 19.5 volume per centum of oxygen, not
more than 0.5 volume per centum of carbon dioxide, and no harmful
quantities of other noxious or poisonous gases; and the volume
and velocity of the current of air shall be sufficient to dilute,
render harmless, and to carry away, flammable, explosive, noxious
and harmful gases and dust and smoke and explosive fumes." The
standard also requires that "the minimum quantity of air in any
coal mine reaching each working face shall be 3,000 cubic feet a
minute."
The essential facts supporting the cited violations are not
in dispute. Ronald Oglesby, an inspector for the Federal Mine
Safety and Health Administration (MSHA), reported to the Green
River No. 9 mine on April 7, 1987, at about 7:15 a.rn. to
investigate an alleged ignition and mine fire. After
interviewing emplbyees outside the mine Oglesby proceeded
underground to the scene of the accident. Arriving on the No. 7
Unit at the No. 1 Entry Oglesby observed "slack coal" piled to
within 18 inches of the mine roof in the space between the
brattice and rib.
He also found that the right tire of the
cutting machine in the No. 1 Entry was pushed into the line
curtain thereby further restricting the flow of air. (See
Secretary's Exhibit No. 2).
Oglesby then recreated conditions as they reportedly existed
at the time of the accident by removing an extension to the
brattice curtain. Under these conditions Oglesby was un~ble to
detect any movement of air upon testing with a calibrated
anemometer.
Even with the added curtain replaced Oglesby
detected only 1,260 cubic feet of air per minute CC.F.M.) 4 feet
inby the end of the line curtain. Near the right tire of the
cutting machine where the curtain was pushed over he still found
only 1,600 C.F.M. Once the slack coal had been removed and the

403

curtain again extended Oglesby found legally sufficient air
ventilating the face of the No. 1 Entry i.e. at least 3000 C.F.M.
Within this frameworK of undisputed evidence both violations are
clearly proven as charged.
Inspector Oglesby also considered the violations to be quite
serious and "significant and substantial".
Based on his
interviews with Dwayne Oldham, the unit cutter operator, and
Kathy Lambert, the shot fireman, Oglesby opined that the mine
fire on the No. 7 unit earlier that day had been caused by a
methane ignition further igniting hydraulic oil leaking from the
cutting machine. Oldham reportedly told Oglesby that a sudden
flash came over the cutting machine as he was beginning to cut.
Kathy Lambert had also seen an orange flame on the back side of
the curtain. The fire was located below the cutter bar at a
location Oldham could not see from the operator's compartment.
The fire had been extinguished with no injuries or property
damage.
Green River Safety Director Grover Fischbeck was "hesitant
to believe" that there had been a methane ignition, favoring the
view that the hydraulic oil had been ignited directly by sparks
from the cutting bar striking rock. However, regardless of the
source of the fire it would be reasonably likely to expect, in
the absence of adequate ventilation in a working section of a
mine having an undisputed history of methane ignitions and recent
overall methane liberation of 1.9 million cubic feet in 24 hours,
that methane ignitions would occur.
Indeed it is undisputed that
the cutter machine had earlier on the shift twice "gassed-out"
because of excess methane i.e. the methane detector on the
equipment automatically shut the machine down because of high
levels of methane. Under the circumstances it is reasonably
likely that a methane ignition would occur with resulting serious
burn injuries and fatalities. The violations were accordingly
serious and "significant and substantial". Secretary v. Mathies
Coal Company, 6 FMSHRC 1 (1984).
I also find that the violations were the result of operator
negligence. There is no dispute that face boss Robert Sandidge
was on the unit at the time of the accident. Sandidge also
testified that there was adequate ventilation at the No. 1 Face
at the time of his preshift examination (which commenced at 5:50
a.m. on April 7) and that he found only .4 percent methane 30
minutes before the cutting machine entered the No. 1 Entry.
However the fact th~t the cutting machine had twice before the
accident "gassed-out" because of excess methane should have
placed Sandidge on notice of a methane problem requiring
extraordinary care in maintaining adequate ventilation. Moreover
the mine operator was already under a higher duty of care because
of the history of methane ignitions at this mine and because of

' 404

the overall high liberation of methane. The recent history of
similar violations in this mine for inadequate ventilation and
the failure to maintain adequate brattice curtains constitute
patterns that may also be considered in finding operator
negligence in this case.
Citation No. 2837677 alleges a "significant and substantial"
violation of the operator's ventilation system, methane and dust
control plan under the standard at 30 C.F.R. § 75.316. More
particularly Green River is charged with failing to have "the
back-up curtain between No. 6 and 7 entry ••• in place." It is
not disputed that there was indeed no back-up curtain in position
between the No. 6 and 7 entries as alleged and that such a
curtain was required by the operator's ventilation plan
(Secretary's Exhibit No. 6 page 4). The violation is accordingly
proven as charged~ It is also undisputed that the absence of
this back-up curtain would have reduced the ventilation on the
working sections. Considering the history of methane liberation,
ignitions, and recent violations of ventilation requirements it
is apparent that this violation also was serious and "significant
and substantial". Mathies Coal Company, Supra.
In evaluating operator negligence I have given considerable
weight to the credible testimony of Face Boss Robert Sandidge
that the backup curtain was in position at the time of his
preshift examination at 5:50 that morning.
In addition I accept
the testimony of Safety Director David Harper that a check
curtain of the proper size was lying on the ground in an open
position below where it should have been hung.
I nevertheless
find that the operator was negligent because a high degree of
care was required in this section. There was a history of high
methane concentrations and the methane detector on the cutter
machine had already 11 gassed-out 11 the machine twice before on same
shift. Under the circumstances management was on notice that
methane levels were aproaching dangerous concentrations and it
therefore should have been on particular notice to maintain its
check curtains to maintain adequate ventilation.
Citation No. 2837678 also charges a violation of the
ventilation plan under the standard ~t 30 C.F.R. § 75.316 in that
"a permanent stopping had not been constructed in the third open
crosscut from the face in the stopping line. 11
It is not disputed that a permanent stopping had not been
constructed in the third open crosscut from the face in the
stopping line. Green River maintains however that a oermanent
stopping was not required and that in any event the b~ck-up
curtain being used was adequate. Whether there was a violation
in this instance depends on the applicable definition of "open
crosscut". According to Inspector Newlin the definition of "open

405

crosscut" that had been uniformly applied to Green River on prior
occasions included a crosscut where air could pass through or a
crosscut that ·was clean and travelable (i.e. supported).
According to Safety Director David Harper the cited area was not
an "open crosscut" because it had not been completely bolted and
cleaned.
I find that the definition adopted by Green River is the
more persuasive. It meets the "reasonably prudent person"
standard. Alabama By-Products, 4 F.MSHRC 212 8 (19 82); United
States Steel Corp., 5 FMSHRC3 (1983). Inspector Newlin
acknowledged that.his definition was not accepted by some other
inspectors and it is undisputed that MSHA approved a modification
to the ventilation plan shortly after this citation which allowed
a check curtain to be used in the cited crosscut instead of a
permanent stopping. MSHA thus, in effect, acknowledged that
there was no hazard in Green River's prior practice of utilizing
a check curtain instead of a permanent stopping in the third open
crosscut from the face. Under these circumstances it cannot be
said that a reasonably prudent person, familiar with the facts,
would have recognized a hazard in the practice here followed by
Green River. Accordingly there was no violation and the citation
must be vacated.
Citation No. 2835650, issued under section 104(d)(l) of the
Act, alleges a violation of the standard at 30 C.F.R. § 75.301
and charges as follows:~/
The quantity of air reaching the end of the line
curtain in the No. 2 Entry on 7 Unit was 1,320 cfm
CH 4.7. The loader was loading coal in this entry.
~/

Section 104(d)(l) reads in 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 do not cause imminent danger, such violation is of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or
safety standards, he shall include such findi~g in any citation .
given to the operator under this Act.

406

As previously noted, the standard at 30 C.F.R: § 75.301
provides that "the minimum quantity of air in any coal mine
reaching each working face shall be 3,000 cubic feet a minute."
It is undisputed that there was only 1,320 C.F.M •. of air at the
end of the line curtain in the No. 2 Entry on the No; 7 Unit.
Indeed, Green River now admits the violation, does not deny that
it was "significant and substantial" and challenges only the
"unwarrantable failure" findings.
The Secretary maintains that the violation was due to the
"unwarrantable failure" of the operator to comply with the
standard because "of the history of ventilation problems at this
mine, and the apparent lack of concern by the operator while
[Inspector Newlin] was on the unit". Newlin had found several
other violations for inadequate ventilation shortly before
discovering the instant violation (see Secretary's Exhibits Nos.
9 and 10). Indeed Newlin observed that 15 to 20 minutes had
elapsed while the operator abated a prior citation (No. 2835649)
and before he had moved on to discover the instant violation.
During this time miners were continuing to load coal.
Newlin
also observed that it took only six minutes to improve the
ventilation and to abate the instant violation.
It was apparently Newlin's position that Green River should
have, upon the issuance of Citation No. 2835649 for deficient
ventilation in the No. 1 Entry, not only abated that violation
but also stopped all mining activity on the unit and checked the
No. 2 Entry for sufficient ventilation. Newlin acknowledges
however that after observing the abatement of the violation in
the No. 1 Entry and as he proceeded to the No. 2 Entry he in fact
did see two or three miners working to improve the ventilation
affecting the No. 2 Entry even before he cited inadequate
ventilation in the No. 2 Entry.
In light of this evidence that
Green River had commenced abatement even before the violation was
cited I cannot find that the violation was the result of
inexcusable aggravated conduct constituting more than ordinary
negligence. Emery Mining Company v. Secretary 9 FMSHRC 1997,
(1987). The violation was thererore not the result of
"unwarrantable failure" and the 104Cd)(l} citation must be
modified to a citation under Section 104(a) of the Act. In light
of the recent history of ventilation violations on this unit and
the presence of high levels of methane I do find however that
Green River was negligent. Under these circumstances it was
under a heightened duty of care to maintain proper ventilation.
In determining appropriate civil penalties in this case I
have also considered that the operator is of moderate size, has a
moderate history of violations and abated the violative
conditions ·cited herein as prescribed by the Secretary.

407

ORDER
Green River Coal Company, Inc. is directed to pay the
following civil penalties within 30 days of the date of this
decision: Citation No. 2835668 - $600, Citation No. 2835669 $750, Citation No. 2837677 - $600, Citation No. 2837678 (vacated), Citation No. 2835650 - $400. Contest Proceeding
Docket No. KENT 87-167-R is granted to the extent that Citation
No. 2835650 is modified to a citation under section 104(a) of thP.
Act.

aw Judge
Distribution:
Mary Sue Ray, Esq., Office of ~he Solicitor, U. S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Flem Gordon, Esq., Gordon, Gordon, & Taylor, P. O. Box 390,
Owensboro, KY 42302-0390 (Certified Mail)
npt

408

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

MAR 241988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.

.

CIVIL PENALTY PROCEEDING

.:

Docket No. SE 87-123-M
A. C. No. 31-01799-05501
Lee Mine

MELLOTT TRUCKING AND SUPPLY,
COMPANY, INC.,
Respondent
DECISION
Appearances:

s. Welsch, Esq., Office of the Solicitor,
u. S. Department of Labor, Atlanta, Georgia for

Ken

Petitioner;
Calvin A. Mellott, Carrboro, North Carolina for
Respondent.
Before: Judge Melick
This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to section
105Cd) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. §801 et. seq., the,"Act,",charging Mellott Trucking
and Supply Company, Inc., (Mellott) with two violations of
regulatory standards.
Preliminary Issues:
Respondent raises several preliminary issues that could
be dispositive of these proceedings. He first claims that
the area of land owned by he and his wife, from which sand
was being removed and on which it was being processed, was
not a "mine" within the meaning of the Act since it was
merely a land reclamation project adjunct to his alleged
primary business of farming.
Section 3(h)(l) of the Act reads in part as follows:
"coal or other mine" means CA) an area of land from
which minerals are extracted in nonliquid form
... CB) private ways and roads appurtenant to such
area, and CC> lands excavations, underground
passageways, shafts, slopes, tunnels and workings,

409

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 to be used in, the milling of such
minerals, or the work of preparing coal or other
minerals
There is no dispute that on the date these citations
were issued Mellott was extracting minerals (sand) in
non-liquid form from the cited area. Moreover Mellott's
power screen and stacker are within the scope of scructures
"used in, or to be used in, the milling of such minerals, or
the work of preparing ••• minerals". Under the circumstances
it is clear that Respondent was operating a "mine" within the
meaning of the Act. It is immateLial that land may have also
been reclaimed as a result of the mining activity.
Respondent next contends that he was not engaged in
interstate commerce and therefore this Commission is without
jurisdiction over his activities. Section 4 of the Act
provides that "each coal or other 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."
"commerce" is defined in Section 3(b) of the Act as follows:
"trade, traffic, commerce, transportation or communication
among the several States, or between a place in a State and
any place outside thereof, or within the District of
Columbia, or a possession of th¢ United States, or between
points in the same State but through a point outside
thereof."
The evidence in this case is that Mellott was using
machinery and equipment in its mining business that was
manufactured outside of its home state of North Carolina. It
.is undisputed that its front-end loader was made in Illinois,
and the power screen in Kentucky. use of equipment that has
moved in interstate commerce affects commerce. See United
States v. Dye Construction Co., 510 F.2d 78(10th Cir. 1975).
In addition, although the evidence shows that the sand
extracted, processed and sold by the Mellott facility was
used only intrastate, it may reasonably be inferred that such
use of the mine product would necessarily impact upon the
interstate market. See Fry v. United States, 421 U.S. 542,
547 (1975). Under the circumstances it is clear that the
operation~ and products of Mellott affect commerce and.that
its operation is therefore under the coverage of the Act.

410

Mellott next maintains. that the warrantless inspection
of its operation by employees of the Federal Mine Safety and
Health Administration CMSHA) on April 16, 1987, which led to
the citations at bar was in violation of the provisions
against unreasonable searches and seizures under the Fourth
Amendment to the United States Constitution. In Donovan v.
Dewey, 452 U.S. 594 (1981), the Suprene Court held however
that warrantless inspections of mines authorized by section
103(a) of the Act do not violate the Fourth Amendment. The
court found that an exception to the warrant requirement was
permissible in these cases because there is a substantial
Federal interest in improving mine safety and health and
because the certainty and regularity of inspection programs
under the Act provide a constitutionally adequate substitute
for a warrant. Mellott's contention herein is accordingly
contrary to the prevailing law.
Finally, Mellott maintains that it was denied its
constitutional right under the Seventh Amendment to the
United States Constitution to a trial by jury. In Atlas
Roofing Co. Inc. v. OSHRC, 430 U.S. 442 (1977), the Supreme
Court held that under the Seventh Amendment jury trials are
required only in suits at common law and that the Seventh
Amendment did not purport to require a jury trial where none
was required before. Within this legal framework it is clear
that these statutorily created proceedings do not require a
trial by jury. It is noted that this civil penalty
proceeding is similar to the penalty proceeding at issue in
the Atlas case before the Occupational Safety and Health
Review Commission.
The Merits:
The general issues before me on the merits are whether
Mellott violated the cited regulatory standards as alleged,
and, if so, whether the violations were of such a nature as
could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard, i.e. whether
the violations were "significant and substantial." If
violations are found, it will also be necessary to determine
the appropriate civil penalty to be assessed in accordance
with section llO(i) of the Act.
Citation 2859882 alleges a violation of the standard at
30 C.F.R. § 31-01799 and charges as follows:
The automatic reverse signal alarm was not
operating on the Cat 950 B loader working in the

411

pit area.
rear.

There was an obstructed view to the

The cited standard provides as follows:
Heavy duty mobile equipment shall be provided with
audible warning devices. When the operator of such
equipment has an obstructed view to the rear, the
equipment shall have either an automatic reverse
signal ala-rm which is audible above the surrounding
noise level or an observer to signal when it is
safe to back up.
The testimony of MSHA Inspector Thel Hill in support of
this violation is largely undisputed. According to Hill the
only worker at the mine site on April 16, 1987, a Mr. Bruell,
represented himself to be the foreman.
Bruell was operating
the Catapillar Model 950B front-end loader removing sand from
the pit area and transporting it to the processing equipment.
Hill observed the front-end loader in action and saw that the
backup alarm was not functioning.
Bruell conceded that the
backup alarm had not been operating for several days. There
was no observer to signal when it was safe for the equipment
to back up. Hill found that the engine on the equipment
obstructed the view to the rear for some 2 to 3 feet on level
ground so that persons as tall as 5 foot 6 inches could not
be seen in that obstructed area. The exhaust arrangement
(muffler) also interfered with rear vision.
Hill felt that the violation was not "significant and
substantial" because of only limited exposure to danger.
There were no other employees on ,site and he concluded that
the truck drivers remained in their trucks while being
loaded.
Calv.in Mellott, Respondent's president, did not dispute
that the back-up alarm was not functioning and that there was
at least a partially obstructed view to the rear of the
loader. Mellott maintained however that it was Bruell's
responsibility to bring such problems to his attention and
that back up alarms were in stock. Mellott suggested that
Bruell may have been sabotaging his operations because -Bruell
later purportedly worked for a competitor. The credible
evidence does not however support this contention.
Within this framework of evidence it is clear that the
violation is proven as charged. I accept Inspector Hill's
testimony however that the violation was not serious because
of the limited exposure to the hazard I must accept that
finding.
I conclude that the violation was caused by

412

operator negligence since the condition was known to have
existed for several days. Moreover, proper inspection of the
equipment on a daily basis should have led to discovery of
the violative condition.
Citation No. 2859883 alleges a "significant and
substantial" violation of the standard at 30 C.F.R. §
56.14001 and charges that "the tail pulley on the sand
stacker was not guarded."
The cited standard provides that "[g]ears; sprockets;
chains; drive, head, tail, and takeup pulleys; flywheels;
couplings; shafts; sawblades; fan inlets; and similar exposed
moving mac.hine parts which may be contacted by persons, and
which may cause injury to persons, shall be guarded.
Inspector Hill observed that the sand stacker conveyed
materials from the screen to the stockpile and that its
height could be adjusted. At the time of the alleged
violation a 4 to 4 1/2 foot build-up of spillage was found at
the tail pulley. Thus the pulley would be located at
arm level to an individual passing nearby. The pulley was
not guarded and there was nothing to prevent a person from
contacting it. The pulley was in operation at this time and
Hill believed that fatal injuries were likely. In reaching
this conclusion Hill observed that Bruell admitted that he
greased the tail pulley while it was in motion (because it
would be easier to grease) and acknowledged that he passed
nearby the pulley several times a day as he was performing
the duties of both plant operator and loader operator.
Calvin Mellott admitted that the tail pulley was not
protected but disagreed that there was any danger of contact.
I find the testimony of Inspector Hill to be more credible in
this regard.
Indeed Bruell admitted that he greased the tail
pulley while it was moving and that he passed in close
proximity to the pulley during his workshift. It is
therefore reasonable to inf er that there was a reasonable
likelihood of contact and injury and that such injuries would
be serious or fatal. Accordingly I find that the violation
is proven as charged and was "significant and substantial"
and serious. See Secretary v. Thompson Brothers Coal
Company, Inc. 6 FMSHRC 2094, (1984); Secretary v. Mathies
Coal Company, 6 FMSHRC 1 (1984).
I also find that the violation was the result of
operator negligence. It is apparent that company president
Calvin Mellott knew the tail pulley was not guarded and he
should have known of Bruell's practice of greasing that tail
pulley while it was in motion.

413

In assessing civil penalties in this case I have also
considered that the operator is small in size and has no
reported history of violations. I have also considered that
the violations were abated promptly. Under the circumstances
I find that the following civil penalties are appropriatei
Citation No. 2859882 - $20i Citation No. 2859883 - $68.
ORDER
Mellott Trucking and Supply Company, Inc., is hereby
directed to pay civil penalties of $88 within 30 days of the
date of this decision.

Law Judge
Distribution:
Ken s. Welsch, Esq., Office of the Solicitor, u. s.
Department of Labor, Room 339, 1371 Peachtree Street, N.E.,
Atlanta, GA 30367 (Certified Mail)
C. A. Mellott, President, Mellott Trucking & Supply Company,
Inc., P. o. Drawer 336, Carrboro, NC 27510 (Certified Mail)
npt

414

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

MAR 24 \988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 87-123-M
A. C. No. 31-01799-05501

v.
Lee Mine
MELLOTT TRUCKING AND SUPPLY,
COMPANY, INC. ,
Respondent
ORDER CLOSING RECORD
At hearing in this case held January 5, 1988, the
Respondent was given the opportunity to file a brief within
three weeks after the Petitioner filed her brief. Petitioner
filed her brief on February 26, 1988, and, accordingly,
Respondent's brief was due on or before March 18, 1988.
Respondent has not filed a brief as of this date and
accordingly the record of these proceed1 gs is closed.

ary M
\
.Admini' trative Law Judge
(703)/ 56-62 61\
Distribution:

i

Ken S. Welsch, Esq., Office of the Solicitor, u. S.
Department of Labor, Room 339, 1371 Peachtree Street, N.E.,
Atlanta, GA 30367 (Certified Mail)

c. A. Mellott, President, Mellott Trucking & Supply Company,
Inc., P. O. Drawer 336, Carrboro, NC
npt

415

27510 (Certified Mail)

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

MAR 291988
CHARLES CONATSER,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. KENT 87-168-D
MSHA Case No. PIKE CD 87-04

RED FLAME COAL COMPANY, INC.,
Respondent

No. 2 Surface

DECISION
Appearances:

Tony Oppegard, Esq., Appalachian Research &
Defense Fund of Kentucky, Inc., Hazard,
Kentucky, for the Complainant;
Ronald G. Polly, Esq., Polly, Craft, Asher &
Smallwood, Whitesburg, Kentucky, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
by the Complainant, Charles Conatser, against the respondent
Red Flame Coal Company pursuant to section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c).
The complainant filed his initial complaint with the Mine
Safety and Health Administration CMSHA), on January 26, 1987.
After completion of an investigation of the complaint, MSHA
advised the complainant by letter dated May 22, 1987, that the
information received during the investigation did not establish any violation of section 105(c) of the Act. Thereafter,
on June 8, 1987, the complainant filed a prose complaint with
the Commission, but subsequently retained counsel to represent
him.
The complainant, who was employed by the respondent as an
endloader operator at its No. 2 Surface Mine, alleged that he
was discharged by mine foreman Zachary Mullins on January 26,
1987, after refusing the foreman's order to drive a rock truck.
The complainant asserted that his refusal to drive the truck
was based on the fact that there was 11 to 12 inches of snow
on the ground; that he did not know how to operate the truck;

416

and that his prior experience driving such a truck was limited
to "a few days" during the summer months when he operated a
truck on level ground under dry weather conditions. The
complainant asserted further that his lack of truck driving
experience, coupled with the prevailing adverse weather conditions, presented a possible safety hazard. The complainant
has alleged that his discharge because of his refusal to drive
the truck was in violation of section 105(c)(l) of the Act.
The complainant subsequently amended his complaint to
include an allegation of an additional violation of the Act.
In this regard, the complaint alleged that the respondent's
refusal to reinstate him after it had received a copy of his
complaint and had been informed of the safety reasons for his
work refusal during a meeting with him on February 27, 1987,
further violated section 105(c)(l) of the Act.
In its answer to the complaint, the respondent admitted
that the complainant refused the request of his foreman to
operate the rock truck in question. However, the respondent
asserted that the respondent quit his job; that his actions in
refusing the foreman's request were not justified; that the
equipment, prevailing conditions, and request by the foreman
for the work were reasonably safe; and that the complainant
had had previous experience in the operation of a rock truck
under similar circumstances.
Issues Presented
(1)

Whether the complainant was fired or quit his job.

(2) Whether the complainant was engaged in protected
activity on January 26, 1987, when he refused his foreman's
request to operate the rock truck in question, and whether his
work refusal was reasonable and justified in the
circumstances.
(3) Whether the complainant communicated his alleged
safety concerns and reasons for refusing to drive the truck to
the respondent.
(4) Whether the respondent's subsequent refusal to
reinstate the complainant was discriminatory and in violation
of the Act.
Additional issues raised by the parties are idGntified
and disposed of in the course of this decision.

417

Applicable Statutory and Regulatory Provisions
1.

30

The Federal Mine Safety and Health Act of 1977,

u.s.c. § 301 et seq.

2. Sections 105Cc)(l), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l), (2) and
(3) •
3.

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

Procedural Rulings
The following rulings were made by me in the adjudication
of this matter:
1. The complainant's motion to amend his
complaint was granted (Tr. 6, 44).
2. Respondent's motions for summary
decision in its favor on the basis of the
complainant's prehearing deposition was denied
(Tr. 154).
3. Respondent's motion for a summary
decision in its favor at the close of the complainant's case at the hearing was denied (Tr.
269).
4. Complainant's request for the admission of certain training records, exhibit C-5,
was granted (Tr. 264-265)~
5. Respondent's motion to quash the complainant's prehearing request to take the depositions of several of its witnesses was granted.
However, the complainant's counsel was afforded
the opportunity to interview these individuals
before the taking of any testimony at the
hearing (Tr. 10-11, 34).
6. Complainant's request for the introduction of a written statement executed by MSHA
Inspector Avon Pratt during the course of
MSHA's investigation of the complaint was
denied, and the statement (exhibit C-4) was
rejected (Tr. 528)J

418

7. Complainant's request to take the
depositions of two witnesses posthearing was
granted, and the respondent's objections were
denied (Tr. 528). However, the respondent was
granted an opportunity to take and file any
posthearing rebuttal depositions (Tr. 533).
8. The parties were subsequently afforded
an opportunity to take and file additional
posthearing depositions.
Complainant's Testimony and Evidence
Complainant Charles Conatser testified that he worked at
Red Flame Coal Company from June, 1986, until his last day of
work on January 26, 1987. Prior to that time, he worked at
No. 8 Ltd. of Virginia from 1978 until August, 1985, and again
from January to June, 1986. During his employment with No. 8
Ltd. he was a coal and rock endloader operator. He also
operated a rock truck "a few times," but was never assigned as
a permanent rock truck driver. When he operated a truck "it
was always fair weather conditions, dry roads, hills, just in
places where the foreman knew I could handle the truck." His
foreman at that time was Bill Meade, and he would assign him
to drive a rock truck when he was short-handed. Mr. Conatser
stated that he was never given any task training in the operation of a rock truck, and would never drive in bad weather,
and that "my whole desire is to be a loader operator" (Tr.
55-62).
Mr. Conatser stated that during his second term of employment with No. 8 Ltd., he was employed as a utility man loading
drill holes, and that "I remember two times that I was on a
rock truck" (Tr. 63). He also began operating a rock loader
again. He recalled one occasion when Mr. Meade assigned him
to fill in for another driver on a Saturday, and he drove an
85-ton 777 rock truck that day hauling rock from the pit to
the dump on level ground. On another occasion, Mr. Meade
assigned him to haul some stockpile coal in a 50-ton 773-A
rock truck along "fairly level ground" to the parking lot, and
there were no steep hills (Tr. 63-68). During this period of
time at No. 8 Ltd., he received no training or task training
in the operation of a rock truck (Tr. 70).
Mr. Conatser stated that during the year prior to his
discharge, he drove a rock truck two times. Prior to that
time he drove one "five other times," and in his entire career
"in heavy equipment," he has only driven a rock truck "maybe
seven times" (Tr. 68-69). He was never trained in any way to

419

drive a rock truck while at Red Flame. His job was a rock and
coal endloader operator. He also operated a sweeper or farm
tractor a few times sweeping up coal dust, and has also operated a dozer pushing dirt over a hill at the dump, but he does
not.consider himself to be a qualified dozer operator. He
also operated a road grader during 1978-1985 grading roads out
of the pit, but does not consider himself to be a qualified
grader operator (Tr. 72).
Mr. Conatser stated that upon his arrival at work on the
morning of January 26, 1987, he observed dozers "over the hill
working on the road." His foreman Zack Mullins informed him
that his loader was down, and assigned him to assist the
mechanic to help start and prepare some equipment.
Mr. Mullins called later on the CB radio and instructed the
mechanic to start up a WABCO 85-ton rock truck, and when he
arrived at the truck he motioned him (Conatser) to the truck
and informed him that he wanted him to drive the truck.
Mr. Conatser explained what transpired next at (Tr. 75-77):

* * * I told him I couldn't drive a rock truck.
And, he said that he had two or three other
people that was learning how to drive a rock
truck and if they could do it you could do it
too, and if you didn't want to do it you could
ge~ your stuff and take your ass to the house.
Q.

What did you say after he said that?

A.
I was just in shock. I didn't know what to
say. I just stood there for a few minutes
looking at him and then tur,ned around and, as I
was getting ready to walk off, I told him you
are making me go to the house. And, I went
over to get in my jeep and remembered my safety
toes that was in the endloader I used to run.
I asked him if he would get my shoes for me and
he said he never had time, that I could get
them on my way out. So, I left.

Q. Okay.
truck?

Why did you refuse to drive the rock

A. Because it was unsafe for me to drive the
rock truck.
I hadn't been trained to operate

420

on any kind of hills or any kind of slick conditions and I wasn't qualified to drive it.

*

*

*

*

*

*

*

THE WITNESS: Because I hadn't been trained to
drive the truck and I am afraid to drive a
truck in any kind of slick conditions. I
thought it was going to be hazardous to my
health. I thought I might have a chance to
kill myself. So, I never went.
Mr. Conatser stated that there was 10 to 12 inches of
snow, and that the roadway where he was expected to drive the
truck was up and down hills from the pit to the hollow dump, a
distance of approximately 200 yards, three-fourths of which
was on a steep grade. While employed at Red Flame, he has
observed rock trucks on that particular hill, and when it is
raining or snowing, trucks will slide down the hill, and
during the times he did drive a rock truck at No. 8 Ltd., he
never drove one down a hill as steep as the one at Red Flame.
He also observed trucks sliding down hills at No. 8 Ltd., and
he generally was afraid of rock trucks because they cannot be
controlled when they are going to stop and he does not know
what to do to control one in a slide, and does not believe
that he has the ability to control a truck in a slide (Tr.
78-79).
Mr. Conatser stated that he believed Mr. Mullins wanted
him to drive the 85-ton WABCO because he had previously
instructed him to start it up and it was the only truck in the
parking lot. Even if Mr. Mullins had asked him to drive a 777
Caterpillar truck, he would still not drive it because "I
haven't got the experience to drive one.
I am afraid of them
and I just don't think I could handle one on a hill. If I
w~nt into a slide, I honestly don't think I can" (Tr. 81).
Mr. Conatser stated that after he left the mine on
January 26, he went straight home, which was 3 miles away, and
that it took him no longer than 5 minutes to get there. He
was crying, and when he arrived home he told his mother and
father that "they fired me for not driving a rock truck, that
I wasn't qualified to drive a rock truck I thought" (Tr. 82).
His father than called his brother who advised him to go to
MSHA to file a report. He then went to MSHA and filed his
discrimination complaint.
Mr. Conatser stated that prior to his father telling him
that his uncle was of the opinion that the Federal mine safety

421

laws gives surface miners the right to refuse to do something
if they think it is unsafe, he was unaware of this, and that
he was also unaware of it at the time he told Mr. Mullins that
he would not drive the truck. Mr. Conatser stated "I just
thought I was fired and that was going to be the end of it"
(Tr. 84}.
Mr. Conatser stated that after his discharge, he called
Wesley Burke, the president of No. 8 Ltd., the parent company
that owns Red Flame, and asked to speak with him about getting
his job back. Mr. Burke invited him to come in and speak with
him on February 27, a Friday, and he then met with Mr. Burke
and superintendent Cruce Davis on that day (Tr. 86).
Mr. Conatser stated that during the meeting, he told Mr. Burke
and Mr. Davis that "I was afraid to drive a rock truck and
that I didn't think I was qualified to drive a rock truck and
that I feared for my life." Mr. Burke then advised him that
"he would get back to me" (Tr. 87). He heard nothing further
from Mr. Burke, and called him a week later, and Mr. Burke
informed him that he would not be rehired. Mr. Conatser asked
Mr. Burke if he "wanted to make any other kind of settlement"
and that Mr. Burke informed him that he had no authority to do
this (Tr. 88).
Mr. Conatser confirmed that MSHA investigator South
suggested that "it wouldn't hurt to go back and ask for my job
back, and so I did" (Tr. 88). Mr. Conatser also confirmed
that since his discharge, he has not had any coal mining
employment, but has. looked for work, and he explained his
attempts to find work. He did receive $50 a week for taking
care of his girlfriend's house, and limited unemployment
benefits (Tr. 53, 88-90).
On cross-examination, Mr. Conatser confirmed that he quit
his first job at No. 8 Ltd., after a dispute with Mr. Meade,
and he left because he was mad at Mr. Meade (Tr. 94).
Mr. Conatser could not recall the dates that he drove the rock
truck while at No. 8 Ltd., during 1978 to 1985. It could have
been five times, but he could not recall, and he reiterated
that he has driven a rock truck for a total of seven times
during his 12 years of employment as a surface miner (Tr. 96).
He would never get into a truck in any kind of "slick weather"
and he is afraid of the truck. He stated that he agreed to
drive a rock truck "because I was asked to and I knew the
conditions I would be running in," but that he would prefer to
drive a loader because "that's what I chose to do" (Tr. 97).
Mr. Conatser testified as to a prior statement he made to
the Kentucky Department of Employment Services in connection

422

with his unemployment claim in which he states that "I had
probably one months experience in 12 years driving a rock
truck" (Tr. 101, Exhibit R-1). He acknowledged signing the
statement, but claimed that he never read it before signing
it, and stated that he told the interviewer that he had
"possibly a month but it is probably less" experierice as a
truck driver (Tr. 102).
Mr. Conatser confirmed that when he drove a rock truck at
No. 8 Ltd., from January to June, 1986, he drove one truck for
an 8-hour shift in March, 1986, and a second one for half a
day in April, 1986 (Tr. 106). He confirmed that on
January 26, 1987, he wanted to operate the loader (Tr. 107).
He confirmed that when it snowed and rained at the No. 8 Ltd.
site, graders or dozers were used on the haulroads, and the
trucks were operated over the roads after they were scraped
(Tr. 109). He confirmed that Mr. Mullins and Mr. Davis always
had the roads scraped, and he had no reason to believe that
they; did not comply with safety regulations (Tr. 109-110).
Mr. Conatser stated that while there was 11 to 12 inches
of snow on the ground on the day of his discharge, it had just
quit snowing and the haul roads were being graded, but "after
you grade the snow off, you ~till got all that mud" (Tr. 111).
He drove to work that day in his four-wheel drive vehicle and
the roads were "sloppy" and he had no problem getting to work
(Tr. 111). He also drove up the mountain, which is a steep
grade, and parked his vehicle on the parking lot (Tr. 112).
He confirmed that he knew how to operate the brakes on the
rock truck, but denied that he knew what gear to put it in
while "driving off the mountain," and he then proceeded to
explain how to "gear down" the truck (Tr. 113-114).
Mr. Conatser stated that prior to January 26, 1987, he
never told Mr. Mullins or Mr. Davis that he did not know how
to drive a rock truck because they never asked him and he had
no reason to tell them. He stated that he told Mr. Meade that
he was not a qualified rock truck driver, and that Mr. Meade
"knows what I can do in a rock truck and what I can 1 t, 11 and
that "he never put me in any place that I thought was unsafe
for me to operate it" (Tr. 114). He also stated that
Mr. Meade always put him in places where he was not afraid to
drive the truck "just hauling around the top of the hill and
mainly in level areas" (Tr. 115).
With regard to his conversation with Mullins on
January 26, 1987, Mr. Conatser stated as follows at (Tr.
116-119):

423

A.
I told him I couldn't drive the rock truck
and he said he had two or three other people
that were training to learn how to drive a rock
truck and that if they could do it that you
could do it too, either dri~e the rock truck or
get your ass to the house. Then, when I turned
around and left, when I was walking toward my
jeep, I turned around and said that you are
forcing me to go to the house or you are making
me to go to the house.

*

*

*

*

*

*

*

Q. You never said anything to Zack about the
weather or the steepness of the grade?
A.

No.

Q. You never said anything to Zack about it
being unsafe?
A.

No.

Q. Did you use the words I don't know how to
drive a truck?
A.

No.

Q. Did you request any task training with Zack
Mullins that morning?
A.

No.

Q. Did you mention anything to him about
putting somebody in the truck with you while
you were driving there about anything that you
might not feel comfortable about?
A.

No.

Mr. Conatser denied that he refused to drive the truck
because other drivers were available, or that he was upset
because Mr. Mullins would not assign someone else to drive.
He insisted that the only reason he left was because he could
not drive the truck, and he assumed that Mr. Mullins kn~w that
he did not know how to drive (Tr. 119).
'

With regard to his prior statement in connection with his
unemployment claim, Mr. Conatser stated as follows (Tr. 121):

424

Q. Does that statement say, and I quote,
"There was a rock tru~k driver operating ·
another endloader and I felt he could have
driven the truck and the foreman could have let
me operate the endloader as that was my regular
job."; does it say that?
A. Yes, but this was two weeks after it
happened. By that time, I had had time to
think about it and I thought there was a
possibility that somebody else could have drove
the truck.

Q.

Did you make that statement at that time?

A.

This statement right here.

Q.

Yes.

A.

Yes, sir.

Mr. Conatser confirmed that he never said anything to
Mr. Mullins about assigning any of the available truck drivers
who were operating loaders to drive the rock truck in question. He also confirmed that he and the mechani~ were
discussing the truck assignment as he observed Mr. Mullins
approaching, and he suspected that Mr. Mullins would select
him to drive the truck, and that he mentioned this to the
mechanic. Mr. Conatser stated that "the only thing I was
thinking about when he said that was whether I could drive the
truck, and I come to the conclusion that I couldn't drive it"
and that it never crossed his mind to suggest any alternative
to Mr. Mullins. In response to·a hypothetical question as to
whether he would have refused to drive the truck if
Mr. Mullins had asked him to do so during the summertime,
Mr. Conatser responded "If it was on a hill, I would have
refused because I couldn't--well, unless he would have trained
me" ( Tr • 12 4 } •
Mr. Conatser confirmed that his refusal of January 26,
1987, was the only time he had refused to do anything, and
that this was the first time that Mr. Mullins ever asked him
to drive a truck (Tr. 125-126). In response to questions
concerning his knowledge of a rock truck, Mr. Conatser stated
as follows (Tr. 125-126):
JUDGE KOUTRAS: Now, on the trucks you operated
previously, you knew where to put the ignition

425

key, know where the brakes are, know whe£e the
gear systems are, know where the headlights
are, and all the other equipment, right?
THE WITNESS:
JUDGE KOUTRAS:
truck.

Right.
So, you know how to operate a

THE WITNESS: I know how to operate a truck on
level ground.
JUDGE KOUTRAS: Well, let's leave the level
ground out of it for a moment.
THE WITNESS:
JUDGE KOUTRAS:
rock truck?
THE WITNESS:
truck.

Okay.
'

Do you know how to operate a
I know how to operate a rock

JUDGE KOUTRAS: So, when you told Mr. Mullins
on the day of- January the 25th that you didn't
know· how to operate a rock truck, what did you
have in mind when you told him that?
THE WITNESS: That I couldn't operate a rock
truck in any kind of conditions like that.
JUDGE KOUTRAS:
did you?
THE WITNESS:
common.
JUDGE KOUTRAS:
THE WITNESS:

But you didn't tell him that,
I just figured it would be
You figured that he would
I figured he would know.

JUDGE KOUTRAS:
that.

You assumed that he would know

THE WITNESS:
that.

Yes, I assumed that he would know

Mr. Conatser denied that he ever offered to operate a
rock truck in the presence of Tommy Dotson while employed at

426

Red Flame. He also denied that he had already made his mind
up not to drive the truck before being asked by Mr. Mullins
and while speaking with the mechanic CTr. 128}. He stated
that his offer of settlement made to Mr. Burke was his own
idea {Tr. 132-133}. He also stated that he did not know
whether he offered any explanation as to his prior statement
in connection with his unemployment claim at the time of his
October 20, 1987 deposition, and respondent's counsel confirmed that he did not {Tr. 136}. Mr. Conatser also confirmed
that since his deposition, he has seen the statement in his
counsel's office when they discussed it, but the explanations
that he was riow offering are his own {Tr. 134, 137-138}.
Mr. Conatser confirmed his prior statement of February 2,
1987, to MSHA Investigator South during his investigation of
his complaint (Exhibit C-3, pg. 6-60}, during which he stated
"I did not have an opportunity to tell Mullins that I feared
for my safety that day but that was what I was thinking and
what I was implying as well as my lack oi experience at operating a rock truck." Mr. Conatser confirmed that Mr. South
asked him whether he had communicated a safety complaint {Tr.
139}. He also confirmed that Mr. South asked him whether he
had said anything to Mr. Mullins about being afraid or scared,
and that he informed Mr. South that he never said anything to
Mr. Mullins, but that "I told him that in my mind at that time
was my fear for my life driving that truck" {Tr. 140-142}.
Mr. Conatser stated that he had spoken to Mr. Mullins on
many occasions, and although he indicated that Mr. Mullins
"wasn't waiting around for no long-term explanations. He was
ready to go," on the morning of January 26, Mr. Conatser
confirmed that Mr. Mullins did not prevent him from saying
anything {Tr. 143}.
In response to further questions, Mr. Conatser confirmed
that his unemployment claim statement previously ref erred to
was not in his handwriting, and that it was reduced to writing
by the person who interviewed him {Tr. 146}, and that his
statement with regard to the availability of other drivers was
in response to a question put to him by the interviewer {Tr.
146-147}. With regard to his prior statement that he had no
opportunity to explain to Mr. Mullins about his safety concerns, Mr. Conatser stated that everything happened so fast
and that he was shocked and did not know what to say. He also
stated that Mr. Mullins did not ask him for any reasons as to
why he could not drive the truck, and said nothing about ever
observing him drive a truck or that he was qualified to drive
one (Tr. 149). Mr. Conatser confirmed that the statement he

gave to Mr. South and signed was in Mr. South's handwriting
(Tr. 153).
Elmer Conatser, father of the complainant, testified that
he is a retired underground mine foreman, and that on the day
his son lost his job he came home crying and upset and stated
that "they told me to drive a rock truck and I told them that
I couldn't and then he told them that he was afraid to under
them conditions, and he said the foreman fired him and told
him to get his things and go home" (Tr. 158). Mr. Conatser
stated that he telephoned his brother, a retired Bureau of
Mines employee, and his brother advised him to "get an investigator over there as quick as possible and not willy around
with it" (Tr. 160).
Mr. Conatser stated that his son told him that although
he drove a rock truck one or two times on level, rather than
steep ground, he was not experienced, and said that he never
drove one "under no conditions like that" (Tr. 160).
On cross-examination, Mr. Conatser stated that he told
his son to go to the MSHA off ice, but that he did not go with
him. He stated that his son told him that he had informed his
foreman that "he was inexperienced on the rock truck, and the
bad weather, that he had never drove under them conditions,
and he was afraid." His son did not tell him that he had
informed the foreman that the grade was too steep, or that it
was too slick, and "the only thing he said was that the snow
and weather was so bad that he was afraid to drive it," and
that he had so informed his foreman (Tr. 166-168).
Mr. Conatser stated that his son talked to his uncle
later and that "all that I heard them talk about was the conditions." He had no knowledge that his brother had spoken with
anyone at MSHA, and simply advised his son to go and talk to
the MSHA people (Tr. 170).
Cyrus Boggs, rock truck driver, Red Flame Coal Company,
testified that he worked with Mr. Conatser at Red Flame from
October, 1986, until the end of January, 1987, and at the
No. 8 Ltd. strip site for approximately 3 years before that
time. He never observed Mr. Conatser drive a rock truck at
Red Flame, and Mr. Conatser operated a rock and coal loader
during this time. He recalled that Mr. Conatser drove a rock
truck at No. 8 Ltd., 3 years ago while stockpiling coal, but
he could not state how many times he drove a truck, nor could
he recall any details (Tr. 171-176, 180). Mr. Boggs did not
consider Mr. Conatser to be a truck driver, and stated that
his job was mostly a coal loader (Tr. 181).

428

Mr. Boggs confirmed that he drove a rock truck on
Mr. Conatser's last day of work on January 26, 1987, and he
recalled that there was snow and that he drove on the same
hill road that Mr. Conatser would have driven down that day
had he driven a rock truck. Mr. Boggs described the road as
"wet and slick," and he confirmed that the road was being
scraped. He drove down the road after it was scraped, and
while he could not remember its condition after it was
scraped, he recalled that it was wet. He could not remember
whether he slipped on it, and stated that it was not unusual
for a truck to slide on a wet road (Tr. 183).
Mr. Boggs was of the opinion that while the road in question is berrned, an inexperienced driver would not know how to
handle a truck that went into a slide. If he had never driven
a rock truck before and someone asked him to drive down the
hill bn the day in question, he would not have done it because
"that~s a big piece of equipment and you don't know how it is
going to act." He explained that once a truck starts to slide
"I don't know if you would know to pull the retarder and give
it fuel or hold the brakes anq give it fuel and keep the
wheels from sliding" (Tr. 186). He confirmed that his
father-in-law, who is an experienced driver, flipped a truck
backwards once, and he has heard of trucks tipping over while
going down hills (Tr. 187). He did not believe that any snow
was on the roadway in question after it was scraped (Tr. 188).
On cross-examination, Mr. Boggs stated that at the time
he observed Mr. Conatser drive a truck 3 years ago, he
·appeared to be able to handle it, and in his opinion, one had
to drive a truck for 6 or 7 months to be considered "experienced." Mr. Boggs learned to drive a rock truck in 3 hours
after someone showed him how, and he believed that one should
know how to handle it in a couple of weeks, and that "if the
weather conditions come up in those few weeks, I guess he
would have to learn" (Tr. 192). Based on his observation of
Mr. Conatser driving a rock truck, he had no reason to believe
that he could not drive it under different weather conditions
(Tr. 193).
.
Mr. Boggs confirmed that during his employment under the
supervision of Mr. Davis and Mr. Mullins, they always reacted
favorably to any of his requests for rocking or scraping the
roads, and he could recall no problems in this regard (Tr.
194). He confirmed that the extent of his training as a rock
truck driver consisted of 3 hours, and that he had never
driven one before this time. He also confirmed that while
there is a difference in driving a truck on level ground and

429

going up and down hills, he believed that an inexperienced
driver "would just take a few loads to get used to driving on
a wet hill" (Tr. 195).
When asked whether anyone who can drive a pick-up can
also drive an 85-ton rock truck, Mr. Boggs replied "they are
more or less the same except for the size and just the judging" (Tr. 197). He stated that he would not want anyone who
had not driven such a truck to start driving up and down hills
by themselves if they did not know how. He stated that he
would want to drive with that person first to show him a few
things, and would want to "haul a few loads with him" (Tr.
198). If his foreman asks him, he would accompany anyone who
was asked to drive a truck on a hill even if that person had
never driven a truck before (Tr. 199-201). He later clarified
his answer and stated that he would go with such a person as
long as he were able to show him how to drive, and in
Mr. Conatser's case, he would have ridden with him on the day
in question because he had seen him operate a truck in the
past (Tr. 206).
Mr. Boggs confirmed that although it had snowed, the
roads were scraped and had no snow on them, but that the
trucks driving up and down would force the water out of the
ground, and the roads would not be dusty (Tr. 207). He
believed that "a little bit of training" is necessary to drive
on a hill, and he would have trusted anyone to drive down the
hill on the day in question as long as he was seated next to
them to be prepared to control the truck (Tr. 208-209).
Mr. Boggs stated that the Red Flame haulroads are approximately 40 feet wide, enough for trucks to pass, and that the
average speed of the trucks, filled and empty, is 10 miles an
hour. He was not aware of any haul truck accidents or fatalities at Red Flame or No. 8 Ltd. (Tr. 212). When asked for an
opinion as to whether or not Mr. Conatser could have driven a
rock truck down the hill in question because he had driven one
in the past on level ground, Mr. Boggs responded "I guess he
could hav~ tried" (Tr. 222). He stated that if he were the
foreman, he would not want anyone to operate any equipment if
they were afraid of it (Tr. 223).
Russell Akers, coal and rock loader, No. 8 Ltd., testified that he worked with Mr. Conatser at Red Flame Coal
Company for 6 months until the spring of 1987, when he moved
back to his present job. On January 26, 1987, he was working
as a rock truck driv~r at Red Flame, and he has 3-1/2 years of
experience driving 50 and 85 ton trucks. Ee never observed

430

Mr. Conatser drive a rock truck while working at Red Flame or
at No. 8 Ltd. (Tr. 224-249).
Mr. Akers stated that he could not remember the weather
conditions on January 26, 1987, but did recall that the haulroad was "pretty slick" and that Mr. Mullins instructed the
men not to go down the hill until it was cleared and dried up.
Mr. Akers was not sure whether he actually drove a truck that
day, but confirmed that no one drove up and down the hill in
question until the roadway was cleared up. If he were an
inexperienced driver, he would be afraid to drive down the
hill if it were wet because driving down a "slick little slope
would be sort of scary like" (Tr. 232). He has observed
trucks slide down wet hills, and he has slid but has been able
to control the truck (Tr. 233). He has never heard
Mr. Conatser offer to "trade out" with any truck driver (Tr.
234).
On cross-examination, Mr. Akers stated that one should
know how to drive a rock truck after "one or two trips." He
confirmed that on January 26, 1987, the hill was dried up
before any trucks were allowed to go down, and that Mr. Davis
and Mr. Mullins never refused any of his safety requests.
Mr. Mullins instructed him not to go down the hill until it
was cleared, and has never attempted to put him in any danger
(Tr. 235). Mr. Akers was of the opinion that 7 days was long
enough for one to learn to drive a rock truck, and that in
30 days, "you ought to be good at it" CTr. 236).
Mr. Akers stated further that once the snow is scraped
from the roadway, it should remain dry the rest of the day,
and he estimated that scraping 3 inches deep would render the
roadway dry (Tr. 237). He also estimated that it took 15 or
20 minutes to scrape the snow off the hill on January 26, and
that the roadway was about 500 to 600 feet long, bermed, and
trucks could pass on it. The roadway was not slick after it
was scraped (Tr. 240).
Lloyd Day, Jr., dozer operator, No. 8 Ltd., testified
that he worked at the Red Flame site for approximately
10 months starting in the spring of 1986. He was working at
Red Flame on January 26, 1987, and there was snow on the
ground. He recalled that the hill haulroad from the pit to
the hollow field was "pretty rough" before he and Jerry
Sturgill scraped the snow off with a dozer and a grader. He
observed trucks driving up and down the hill and "imagined"
that he saw some of them sliding down the hill because "they
slide anyway, whether it i~ wet or dry" (Tr. 245). The roadway was slick until it dried off, but it was still "a little

431

wet and slick after you get the snow off," because it would
have to be cut 6 to 8 inches deep to get it dry, and it was
still wet after the snow was scraped off {Tr. 246).
Mr. Day stated that he never observed Mr. Conatser drive
a rock truck while at the Red Flame site, but did observe him
drive one "a couple of times" while at No. 8 Ltd. {Tr. 247).
The day that he observed him, he was working alone loading and
hauling coal in the fall, under dry conditions. He has never
heard Mr. Conatser offer to "trade out onto a rock truck."
Mr. Day did not consider Mr. Conatser to be an experienced
rock truck driver because "the only thing that I have ever
known Chuck Conatser done was run an endloader" {Tr. 250).
Although Mr. Day stated that he could drive a rock truck, he
did not consider himself to be an experienced truck driver.
If his foreman had asked him to drive a rock truck on
January 26, he would have done so "because he asked me to,"
and that he may or may not have had problems with the truck.
He confirmed that he has "filled in" as a rock truck driver at
Red Flame {Tr. 248-252).
On cross-examination, Mr. Day stated that when the road
was scraped on January 26, "we went down beyond the snow," but
he could not recall how deep they penetrated the roadway
surface. Once the roadway was cut, the trucks started hauling, and the more they hauled the roadway conditions improved.
In his opinion, the roadway was cut sufficiently enough for
the trucks to operate safely {Tr. 257). He could not recall
the number of hours Mr. Conatser drove a truck on the two
occasions he observed him at No. 8 Ltd. (Tr. 258). Mr. Akers
confirmed that he has driven a rock truck on the job up and
down hills, but cornpared•to other drivers who do this every
day, he did not consider himself to be an experienced rock
truck driver (Tr. 259). He confirmed that he received no
training when he began driving a rock truck, but that he had
driven coal trucks and tractor trailers prior to that, and
that is why he could simply get into a rock truck and drive it
(Tr. 260).
Wesley Burke, testified by deposition that he serves as
the president of the No. 8 Ltd. of Virginia and the Red Flame
Coal Company mines, both of which are incorporated under the
laws of Virginia, and authorized to mine in the State of
Kentucky. He confirmed that both companies conduct strip mining operations, and that No. 8 Ltd. owns the Coaland Corporation, which in turn owns the Red Flame Coal Company (Tr. 1-5).
Mr. Burke confirmed that when Mr. Conatser was discharged
on January 26, 1987, he (Burke) was president of Red Flame.

432

He also confirmed that the training of miners is under the
authority of mine superintendent Cruce Davis, and he believed
that the designated health-safety official is foreman Zack
Mullins (Tr. 15-16).
Mr. Burke stated that he learned of Mr. Conatser's discharge late in the morning on the day of his discharge, and
that Mr. Davis informed him that Mr. Conatser had been discharged or quit his job for refusing to operate a rock truck
(hauler). Mr. Burke stated that Mr. Davis told him that
Mr. Mullins had informed him that he (Mullins) gave
Mr. Conatser the option of driving the truck or going home,
and that Mr. Conatser had chosen to go home (Tr. 17-18).
Mr. Burke confirmed that later that same day, he discussed the
matter with Mr. Davis and Mr. Mullins, and he explained what
transpired as follows (Tr. 19-21):

Q. Okay, and tei1 me what was said at that
conversation?
A. Again, exact words I can't remember, I just
remember the situation. Chuck was gone and we
were trying to find out the details why, and
Zack was the foreman on the job and had been
involved in it so we went and talked to him.
And, basically, he told us that they'd had some
trouble getting the men lined out, they didn't
have enough men to do what he wanted to do, so
he had to change plans. And that he'd asked
Chuck to run the hauler, and Chuck had refused.
He'd told Chuck to either run the hauler or go
home, and he said that Chuck got his dinner
bucket and his shoes and went home.

Q. Did Zack say which rock truck - that's what
you're referring to as a hauler, right?
A.

Right.

*

*

*

*

*

*

*

Q. Did you ask Mr. Mullins which truck he had
instructed Conatser to operate?
A.
I can't remember. All I know is it was a
discussion over a hauler, and I might have
asked him and I might not have.
I don't know.

433

Q.

was there any discussion with Zack Mullins
about the condition of the hill that
Mr. Conatser would have had to drive down had
he driven the rock truck?
A. No. The only thing that, along those lines
that I can remember, is I asked him if there
was any certain reason why Chuck wouldn't have
wanted to have run it, and he said no, none
that I know of.

Q.

You asked Zack Mullins if he knew of any
certain reason why Chuck wouldn't have wanted
to drive the rock truck, and he said no?

A.

Uh-huh.

Mr. Burke stated.that the weather was cold, and he could
not recall whether there was a foot of snow on the ground, and
that when he arrived at the mine "if there was a foot of snow
it had melted when I got there" (Tr. 21). He could not remember whether he asked Mr. Mullins whether or not Mr. Conatser
was qualified to drive a truck, and he assumed that Mr. Davis
had discussed this with Mr. Mullins before he arrived at the
mine. Mr. Burke could not recall Mr. Mullins telling him that
Mr. Conatser informed him that he could not drive the truck,
and "The way it was posed to me was that Zack had given Chuck
the option to either run the truck or go home. That's the way
I understood it" (Tr. 23).
Mr. Burke confirmed that he received a copy of
Mr. Conatser's complaint in the mail, and vaguely remembered
Mr. Conatser's claim that he was not qualified or experienced
enough to drive the rock truck on the day in question.
Mr. Burke stated that he did not at that time check any
company training records to see if Mr. Conatser had the training to qualify him as a rock truck driver, but that he did ask
Mr. Davis about it, and Mr. Davis informed him that
Mr. Conatser could drive the truck. Mr. Burke stated that he
had no personal knowledge as to whether Mr. Conatser was qualified to drive the truck, and stated that "the way I envision
it is if somebody can run one piece of heavy equipment they
can run another" (Tr. 24). He explained that the fact that a
person can operate one piece of equipment does not qualify him
automatically to operate another one if they were not trained,
and that "given proper training and opportunity, I would think
a person would be able to pick it up" {Tr. 25).

434

Mr. Burke confirmed that after Mr. Conatser's discharge,
Mr. Conatser telephoned him at his office, and that "the main
topic of the conversation was Chuck getting his job back, or
reaching some type of settlement" (Tr~ 25). Mr. Burke confirmed that he later met with Mr. Conatser and Mr. Davis in
his office, and he explained what transpired as follows (Tr.
26-28) :
A. Well, again Chuck came in and wanted to get
his job back or get some kind of settlement.
He said he had some payments that he needed to
make and he was out of a job.

Q.

Okay, what else was said?

A. Well, I can't remember exactly. I remember
Cruce asking him why he refused to run the
hauler.

Q.

What did Chuck say?

A.
I don't remember his explanation. It was
something to the fact tbat he didn't think that
he could do it, and Cruce being the superintendent, and in more charge of the situation, I
felt like that that was wrong, that he could,
in fact, do it.

Q. Do you remember Chuck telling you and Cruce
that he didn't feel it was safe to operate the
truck because he hadn't been trained, or he
wasn't qualified?
A.
I remember generally there was some discussion about that, but exactly what was said I
can't tell you.

Q. At this point, when you met with Chuck and
with Cruce to talk about the situation, you
knew that Chuck ~as saying it would have been
unsafe for him to drive the truck on the day in
question?
A.
I'm saying that I assumed that he felt like
he had a reason for doing that, yeah.

Q.

But I'm talking about a safety reason for
refusing to drive the truck.

435

A. Safety reasons, no I wouldn't say safety.
I'm assuming - I was assuming when he came in
that he had a legitimate reason for doing that.
And that's what the discussion was to be about,
and that's why Cruce was there. And like I
said, Cruce is much more in tune with the situation than I am, and he and Chuck just didn't
see eye to eye on it.
Respondent's Testimony and Evidence
Shawn Sturgill, dozer operator, confirmed that he went to
work at the Red Flame Strip operation in June, 1986, with
Mr. Conatser, and that prior to that time worked at the No. 8
Ltd. Strip operation from 1982 or 1983 until going to Red
Flame. Mr. Sturgill confirmed that he operated a 773-B 50-ton
rock truck at Red Flame and at No. 8 Ltd., and that he first
learned to drive the truck at No. 8 when his father rode
around with him one Saturday during the summer, and when he
later drove around one or two times with another driver until
he learned to drive the truck. He did not know whether the
respondent ever filed a training certificate on his behalf
confirming that he had received task training in the operation
of a rock truck.
Mr. Sturgill confirmed that while at the No. 8 Ltd. operation, he observed Mr. Conatser driving a rock truck "maybe
10 times," but he could not recall whether he did so during
the winter, and that it may have been late summer or early
fall, but he was not sure.
Mr. Sturgill confirmed th~t he was out of town on the day
Mr. Conatser was discharged. Mr. Sturgill also confirmed that
he has dr 1iven the rock truck down the haul road at Red Flame,
and that the road has a curve in it whi~h requires the braking
of the truck. He described the length of the road as less
than a football field, and confirmed that it was bermed. He
also confirmed that any snow on the road would be scraped off,
and that foreman Mullins and superintendent Davis never hesitated· in' responding to any requests to remove any snow on the
road.
Mr. Sturgill confirmed that when he observed Mr. Conatser
driving the rock truck at No. 8 Ltd., he would pass him on the
roadway or see him at the pit area, and he observed nothing
unusual about his operation of the truck. Mr. Sturgill was of
the opinion that there were no differences in operating a rock
truck at Red Flame or No'. 8 Ltd. "if you have driven one long
enough" (Tr. 269-281).

436

On cross-examination, Mr. Sturgill stated that he never
observed Mr. Conatser drive a rock truck at Red Flame during
the period he was there from June, 1986 until the day
Mr. Conatser was fired. He also confirmed that he worked with
Mr. Conatser for 4 to 5 years at No. 8 Ltd., and observed him
driving a rock truck there "maybe 10 times." He denied that
he ever told Mr. Conatser that he had not seen him drive a
rock truck for 5 years. He confirmed that when he observed
Mr. Conatser driving the truck, it was always on level ground
at the No. 8 Ltd. site.
Mr. Sturgill stated that his training on the rock truck
consisted of driving once with his father, and five or six
trips consisting of an hour and a half with a mechanic who
showed him how to operate the truck.
Mr. Sturgill stated that a slick roadway would make a
difference to an inexperienced truck driver, and in his
opinion it would not be safe for such a driver to drive a
truck down a slick hill. He would not want an inexperienced
driver to be "the first one down tne hill."
When asked for his opinion as to whether a truck driver
with 7 days of experience driving a rock truck would be considered inexperienced, Mr. Sturgill stated that it would depend
on the individual, and that each person is different. However, he would consider anyone with a month of driving experience to be an experienced driver.
Mr. Sturgill confirmed that he has observed trucks sliding on the haulroad in question at Red Flame, and that he has
himself done this when encountering small patches of ice, when
the road was watered down, or when it rained. However, he was
able to control the truck, and if the snow was scraped off the
road, it was "o.k." {Tr. 281-294).
Mr. Sturgill confirmed that he has observed trucks sliding down hills, and that he too has slid down a hill. He
believed that if an inexperienced driver slid down a hill, it
might present problems for him {Tr. 297). Sliding would occur
when its raining and the road is wet, but he can control a
slide. He would not expect any sliding if the road was
scraped {Tr. 298).
Robert Yeary, rock truck operator, confirmed that he has
worked for the respondent for a year and a half, and has operated a rock truck for 7 to 8 months. He stated that he first
learned h-0w to drive the t~uck after informing his foreman

' 437

that he wanted to learn. He accompanied another rock truck
driver on four or five trips during the fall season, and considered himself to be trained. He could not recall that the
respondent ever filled out any papers certifying that he was
trained as a rock truck driver.
Mr. Yeary confirmed that at the time Mr. Conatser was
fired in January, 1987, he (Yeary) was working as a parts
runner and did not work at the Red Flame operation "on the
hill." Mr. Yeary stated that he has driven a rock truck on
the Red Flame haulroad in question and had no particular
problem doing so when it rained and the road was slick. He
confirmed that when it snowed, the snow was always trammed off
the roadway down to the mud or dirt.
In his opinion, if someone had previously driven a rock truck, it would be 11 0.k. 11 for
him to drive on the roadway in question. Mr. Yearly confirmed
that he never observed Mr. Conatser drive a rock truck at anytime prior to his discharge {Tr. 298-30~).
On cross-examination, Mr. Yeary confirmed that his initial rock truck training consisted of four to five trips with
another driver for a total of 40 to 45 minutes, and he was
shown how to operate the brakes and retarder before driving
the truck himself. This training was on level ground during
normal production time, and before Mr. Conatser's discharge.
Mr·. Yeary was of the opinion that there are differences
in operating a rock truck down a hill under wet road conditions, and on level, dry ground. One has to be more cautious
going down hill. When asked whether he considered 45 minutes
to be sufficient training to operate a rock truck, Mr. Yeary
stated that he could not 1 say, a~d he pointed out that he had
volunteered to learn how to drive the truck and that the
respondent did not suggest that he do so.
Mr. Yeary confirmed that he has observed trucks sliding
down the Red Flame haul road, and that this would occur if one
were driving on the wet road or applied the brakes. He never
observed a truck flip over. Mr. Yeary could not state whether
it was safe for an inexperienced driver to drive down the
roadway· when it was wet, but he believed that such a driver
would need to take several trips down the road in ord~r "to be
shown the ropes."
Mr. Yeary was of the opinion that a driver with 7 days
experience at driving a rock truck should be able to drive
down the Red Flame haul road after 11 to 12 inches of snow had
been scraped from the roadway. The same was true in the case

438

of a driver with 10 to 30 days of driving experience (Tr.
304-312).
Roy Porter confirmed that he has worked for the respondent for 3 years. He started work at the No. 8 Ltd. strip
mine operation, and for the last year has worked at the Red
Flame strip. His duties included shooting coal, operating a
drill, and operating a rock truck.
Mr. Porter stated that he learned how to drive a rock
truck after Cyrus Boggs showed him how to operate the brakes
and controls, and after "a few trips down the hill."
Mr. Porter believed that learning how to operate a rock truck
was a simple matter, and that most of his fellow workers could
readily learn how to drive one.
Mr. Porter confirmed that he has worked with Mr. Conatser
at the No. 8 and Red rlame operations and that he never
observed him driving a rock truck. Mr. Porter stated that he
was familiar with the haulage road at the Red Flame operation
where Mr. Conatser was expected to drive the rock truck, and
he confirmed that it was always kept in good shape, and that
mine foreman Zack Mullins and mine superintendent Cruce Davis
always kept the road scraped of snow and otherwise addressed
and took care of any safety concerns of the men.
Mr. Porter was of the opinion that with 7 days of experience at driving a rock truck, Mr. Conatser should be experienced enough to drive it down the haul road in question, while
others may not. Mr. Porter stated that none of the other men
who worked at Red Flame and who drove a rock truck ever took
as long as 7 days to learn how to drive the truck (Tr.
313-323).
On cross-examination, Mr. Porter stated that as far as he
personally was concerned, there was no difference in driving a
rock truck down a hill or on level ground, and that this would
pose no problem for him. He confirmed that when he first
learned to drive a rock truck, he did it on the rainy haulroad
in question, and although the truck slid, it did not bother
him. He confirmed that he has observed rock trucks sliding on
the roadway in question while going downhill, and ·he believed
that this was normal.
Mr. Porter confirmed that he received his rock truck driving training before Mr. Conatser was fired, and that when he
was first trained by Mr. Boggs, he had never previously driven
any trucks other than a powder truck, and that his initial
training was over the wet haul road (Tr. 323).

439

Robert Terry Boggs, stated that he has been employed by
No. 8 Ltd. since 1980, and-has only visited the Red Flame job·
site on two occasions, but has never worked there. Mr. Boggs
stated that he is a rock truck driver, and that he has operated a dozer, loader, and grader. Mr. Boggs stated that he
learned how to drive a rock truck by "getting in it and driving it." He had someone ride with him one day to show him how
to drive the truck, and this was during snow and icy weather.
He stated that when he fiist learned to drive the truck, he
was asked to drive it to fill in for a regular driver who was
off, or if his own equipment was down. He has since driven a
rock truck on a iegular basis for at least 5 years.
Mr. Boggs stated that he worked with Mr. Conatser at the
No. 8 Ltd. job site for approximately 5 to 6 years, and
observed him driving a rock truck 2 to 4 years ago hauling
coal from the pit up _and down a hill. He also observed him
driving a smaller rock truck on another occasion back and
forth over a haul road for a distance of one-half a mile
one-way, and that on both occasions the weather conditions
were dry. He also observed him on another occasion hauling
from under a back hoe, and indicated that Mr. Conatser had
filled in on other days for the regular 777 rock truck driver.
Mr. Boggs could not state the number of times he observed
Mr. Conatser driving a rock truck, and indicated that on some
days he may have hauled one truck load, and on others, four
truck loads. The weather conditions wera always dry, and
Mr. Conatser's travels would take him to the pit.
Mr. Boggs stated that when he observed Mr. Conatser driving he appeared to be "O.K.," but that he was afraid to back
up the truck close to the dumping area, and would dump his
load 10 to 15 feet from the dump area. Mr. Boggs stated that
he never observed anything which would lead him to believe
that Mr. Conatser was not qualified to drive a rock truck.
Mr. Boggs believed that he last saw Mr. Conatser drive a
rock truck in June, 1986. When asked whether driving a truck
7 days would qualify one to drive a rock truck, Mr. Boggs
replied that "it would depend on the individual," and that he
would have to ride with the person to observe him driving
before he could conclude that he was a qualified driver. However, based on his observations of Mr. Conatser while he was
driving rock trucks, Mr. Boggs believed that he was a qualified driver.
Mr. Boggs stated that he would have no problem driving a
rock truck in snow, ice, or mud, and he confirmed that snow

440

was always scraped from the haul roads. He also confirmed
that he has accompanied new drivers while training and showing
them the operator's controls and otherwise instructing them in
the operation of the truck.
Mr. Boggs confirmed that Mr. Mullins has always responded
to any of his safety concerns and always assigns people to
clear the haul roads of any rocks or snow. Mr. Boggs also
confirmed that he has never known Mr. Mullins or superintendent Davis to ever ask anyone to do anything which was unsafe
{Tr. 334-359}.
On cross-examination, Mr. Boggs confirmed that he never
observed the haul road at the Red Flame job site. He stated
that wet roads are more hazardous than dry ones, and that he
has observed experienced truck drivers slide on hills.
Although he has heard of rock trucks turning over, he has
never seen one.
'

Mr. Boggs stated that before learning to drive a rock
truck, he had 5 years of prior experience driving coal trucks,
including driving in snow conditions. He also indicated that
even though snow may be scraped off a haul road, it may still
be wet because of freezing and thawing.
Mr. Boggs confirmed chat some of his fellow miners have
expressed a desire not to drive rock trucks because they find
it boring, or would rather operate their own equipment. He
has never known of anyone refusing to drive a truck because of
any safety reasons. He also confirmed that he did not speak
with Mr. Conatser about his refusal to operate the rock truck
in question, and that he observed Mr. Conatser operate up and
down the pit area at No. 8 Ltd. on two occasions {Tr.
359-375}.
Tommy Roger Dotson, confirmed that he is employed by
No. 8 Ltd., as a loader operator, but is assigned to work at
the Red Flame job site. He has been so employed since July,
1986, and he worked with Mr. Conatser until his discharge in
January, 1987. Mr. Dotson confirmed that he can operate a
rock truck, and that he learned to drive it by observing other
operators, and familiarizing himself with it by riding and
taking four or five loads. He learned how to drive on his
first day on the truck.
Mr. Dotson stated that he observed Mr. Conatser operate a
rock truck at Red Flame only once when he got into a 50-ton
truck on the parking lot and backed it up for some 30 to
40 feet •. He stopped the truck and reparked it after a foreman

441

indicated that the truck was not needed and would not be used.
Mr. Dotson confirmed that he was at work with Mr. Conatser on
the day of his discharge and that he was working on a scraper
to clear the haul road of snow (Tr. 376-381).
On cross-examination, Mr. Dotson confirmed that he worked
with Mr. Conatser on a regular basis, and with the exception
of the one instance when he observed him backing up his truck,
he has never observed him driving a rock truck. At the time
Mr. Conatser backed up the truck, Mr. Dotson believed that
Mr. Conatser was going to load and haul coal from a pile near
the parking lot to a storage pit at the other end, a distance
of no more than 100 feet over fairly level ground (Tr.
381-383).
Zachary J. Mullins, testified that he was the foreman at
Red Flame from April, 1985 to July, 1987, and that he is
currently working at the No. 8 Ltd. site. He confirmed that
Mr. Conatser worked for him at Red Flame from July 14, 1985 to
Janury 26, 1987, and that he would also be assigned to the
No. 8 Ltd. site to load coal. He stated that Mr. Conatser
operated the loader while at Red Flame, but that on one
occasion, he observed him driving a rock truck "coming off
down in the hollow field," during the summer, but did not know
how many trips he made. He assumed that Mr. Conatser had
"switched off" that day with another operator, but he was not
sure. Since Mr. Conatser did not seek his permission to
switch with the truck driver, and since he observed him in the
truck, he assumed that he could drive it, and he observed
nothing that would indicate otherwise (Tr. 383-397, 409).
Mr. Mullins confirmed that there was 10-12 inches of snow
on the ground on January 26, 1987, but that the clearing of
the haulroads began before anyone arrived for work. His usual
practice was to clear the roads before any trucks used them.
Mr. Mullins stated that he assigned one of the truck drivers
to operate a drill that day, and since Mr. Conatser's loader
was down for repairs, he asked Mr. Conatser to drive the rock
truck a~d "he said no. So, I told him he could drive the
hauler or go to the house" (Tr. 398). Mr. Mullins stated that
Mr. Conatser gave him no explanation for refusing to drive the
truck, and simply asked him to retrieve his hard-toed shoes
from the loader, and "I told him he could get his hard-toes on
his way out" (Tr. 399).
Mr. Mullins stated that Mr. Conatser did not state that
he could not drive the rock truck, and simply told him "no"

442

twice. Mr. Mullins explained that "to me, he was just refusing to drive the hauler, period, I felt like that he felt like
that he just considered himself to be nothing but a loader
operator" (Tr. 399). Mr. Conatser made no requests other than
to retrieve his shoes, and had he asked for someone to accompany him in the truck, or informed him that he was incapable
of driving it, Mr. Mullins would have assigned someone to go
with him, or he would have personally gone with him to show
him how (Tr. 400). Mr. Mullins did not ask Mr. Conatser for
his reasons for refusing to drive the truck because he
believed it was incumbent on Mr. Conatser to voice any doubts
to him (Tr. 402).
Mr. Mullins stated that he was satisfied that Mr. Conatser
was qualified to drive the rock truck, and that this conclusion
on his part was based on the fact that he had previously
observed him drive a rock truck one time down to the hollow
fill, and the fact that he had a "general reputation" of being
capable of driving a rock truck (Tr. 409). He also vaguely
recalled one other occasion at Red Flame where Mr. Conatser
backed up a rock truck for 15 feet.
In view of the fact that
Mr. Conatser took it upon himself to drive the truck,
Mr. Mullins assumed he could drive it. Mr. Mullins confirmed
that when Mr. Conatser refused to drive the truck he said
nothing to him about the weather conditions, or that driving
the truck would be unsafe, and he made no statements that he
was not qualified to drive the truck (Tr. 412). Mr. Mullins
stated "if he felt like it was unsafe that he would have told
me that it was unsafe instead of telling me to get his
hard-toes" (Tr. 414). He explained further as follows at (Tr.
415-417):
At that point I had never told him he was fired.
At that point I felt like that he knowed he was
going to go to the house one way or the other,
whether it would be quitting or me firing him,
and was the reason that he asked me to get his
shoes.
JUDGE KOUTRAS: When he told you twice no, no,
and you told him to get on to the house, that
meant he was fired, didn't it?
THE WITNESS: When he told me no, I said, well,
you can drive the hauler or go to the house.
JUDGE KOUTRAS:

You gave him a choice?

443

THE WITNESS: Yes. I said Larry and all them
other boys, I said they drove them and there is
no reason you can't. And, he said no again.

*

*

*

*

*

*

*

JUDGE KOUTRAS: Well, if you tell a fellow to
go on to the house, what does that mean in
normal modern talk? That means a man is fired,
right?
THE WITNESS:

Well, it --

JUDGE KOUTRAS: You gave him a choice. You
claim you gave him a choice, to either operate
the truck or go on to the house, right? So, he
opted to go on to the house.
THE WITNESS:
are fired.

No, it don 1 t necessarily mean you

JUDGE KOUTRAS: What does that mean, take the
day off, go home, and then come back tomorrow?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
fired.

At times that's what you do.
How about this time?
This time I meant that he was

Mr. Mullins explained his procedure for teaching someone
to drive a rock truck as follows (Tr. 420-421):
A.

You show them everything about one. You
them the hazards of it. You show them how
to keep it maintained as far as engine, you
know, and the lubricant system of it. That's
the first thing you show them before they climb
in it. Basically there is two seats in a
hauler. It is the only piece of equipment on
the job that two can ride. The driver will
more than likely sit in the passenger seat and
show whoever is learning everything about it
and ride with him.
t~ll

Q.

How long does it normally take?

444

A.
Probably one or two trips and it will give
you the basic idea about driving one. You
learn something every day. I would say it
would basically be the person.

Q.

would seven days be enough?

A.

Yes.

on cross-examination, Mr. Mullins confirmed that he discharged Mr. Conatser on January 26, 1987, and that the only
basis that he had to conclude that he was qualified to drive
the rock truck in question was his observation the one time he
drove it down the hollow fill at Red Flame, and the "talk"
among the miners that Mr. Conatser drove a truck at No. 8 Ltd.
before he came to work at Red Flame. Mr. Mullins confirmed
that Mr. Conatser had not previously informed him that he
could drive a rock truck {Tr. 423-424). Mr. Mullins stated
the one time that he saw Mr. Conatser drive at Red Flame was
when he drove a 50-ton 773 rock truck, and that he "thought"
and "assumed" that Mr. Conatser had traded off with Maynard
Harris {Tr. 428-429).
Mr. Mullins confirmed that when he discharged
Mr. Conatser, he did not ask him whether he was qualified to
drive the truck, nor did he offer to train him because "he
give me no reason to." He insisted that Mr. Conatser simply
told him "no" when he asked him to drive the truck, and "if he
had told me he can't drive a rock truck, I would ask him why"
{Tr. 429). He did not recall Mr. Conatser stating "I can't
drive the truck" {Tr. 423). Mr. Conatser did not tell him
that he should only have to operate·the loader, and at no time
did he tell him that he was only a loader operator {Tr. 433).
Mr. Mullins confirmed that he never gave Mr. Conatser any
task training in driving a rock truck at Red Flame, and that
when he worked at No. 8 Ltd., Mr. Mullins assumed that
Mr. Conatser had received such training (Tr. 432). He also
confirmed that Mr. Conatser had never previously refused to
operate any equipment or stated that he was only going to
operate an endloader (Tr. 434).
Mr. Mullins stated that on the day of the discharge no
coal was hauled "because the coal trucks couldn't get to it,"
and that no haulage at all was done "in the hollow field," and
that "we hauled to the level." He could not recall "if we had
made it to the pit with them or not" (Tr. 437). He confirmed
that he did not check his training records to determine

445

whether Mr. Conatser was qualified to drive a rock truck
because "I had seen him driving a hauler" C~r. 439).
Mr. Mullins stated that if Mr. Conatser had told him anything but "no,"·or given him a reason for not driving the
truck, or felt that it was endangering his life or safety, he
would not have required him to drive the truck (Tr. 442).
Mr. Mullins confirmed that he did not ask Mr. Harris whether
or not Mr. Conatser had switched out with him, nor did he
actually observe Mr. Conatser backup a rock truck (Tr. 443).
Mr. Mullins stated that after the discharge, neither
Mr. Davis or anyone else from management asked him whether or
not Mr. Conatser was qualified to drive a rock truck.
Mr. Davis and Mr. Burke never asked him to check the training
records to determine whether or not Mr. Conatser had been
trained to operate the truck. Mr. Mullins could not recall
whether Mr. Burke ever asked him about the condition of the
hill on the day of the discharge (Tr. 449-450). He confirmed
that the decision not to rehire Mr. Conatser was made "because
basically we all three felt like he was qualified to do it and
he just flat out refused to do it," and "we thought he was
qualified" {Tr. 451, 453). Mr. Mullins also confirmed that
when he met with Mr. Burke and Mr. Davis, he knew that
Mr. Conatser had filed a discrimination complaint and that
another reason for not reinstating him was because he surmised
that Mr. Conatser did not have a case, and the respondent did
{Tr. 454).
Mr. Mullins stated that when the decision was made not to
rehire Mr. Conatser, no one checked the respondent's training
records to determine whether he had been trained to drive a
rock truck because "if someone gets on something or other and
drives it, you assume that they know what they are doing,
especially when they have been on a job for 12 years or whatever" (Tr. 455). He also stated that "I assumed he had enough
ambition to go down the hill" {Tr. 456). Mr. Mullins confirmed that he never previously fired anyone for refusing to
do a job that he knew he was qualified to do (Tr. 457).
Cruce Davis, Superintendent, No. 8 Ltd. and Red Flame,
testified that he has observed Mr. Conatser driving a rock
truck on three different occasions at the No. 8 Ltd. site
during March, 1986, and he described what Mr. Conatser did as
follows (Tr. 474):
He took the endloader, as he said the other
day, around the hill to a pit of coal that we
needed to stockpile. He loaded it himself.
If

446

I am not mistaken, that was sometime during
March. To the best of my knowledge, it was
good weather, dry. The terrain, there
was -- well, it wasn't completely level. The
road around the bench had a dip in it and you
go down a little hill and up another hill.
There was a curve in it and he went up a pretty
steep grade on the bench and loaded the truck
and then came back off and dumped it in the
stockpile.
Mr. Davis stated that Mr. Conatser hauled coal for
3 days, but he was not sure whether he did it for full days.
He hauled along a road grade of approximately 150 feet long,
and it was "quite a bit steeper than the road over at Red
Flame." Based on his observations of Mr. Conatser driving the
rock truck on these occasions, Mr. Davis had no reason to
believe that Mr. Conatser had any problems driving the truck,
and he was of the opinion that he was qualified to drive it
(Tr.:475). Mr. Davis confirmed that he first learned of
Mr. Conatser's claim that he was not qualified to drive a rock
truck after he was discharged, and he did not believe him (Tr.
477).
Mr. Davis stated that when he spoke with Mr. Mullins on
the morning when Mr. Conatser was discharged, Mr. Mullins
informed him that he had asked Mr. Conatser to drive the rock
truck and "he told him no, that he couldn't" (Tr. 479).
Mr. Davis was of the opinion that Mr. Conatser's refusal to
drive the truck was based on the fact "that he just didn't
want to drive the truck that day" and that "I feel like he
looked at himself as being a loader man, strictly a loader man.
He didn't want to do anything else but run a loader."
Mr. Davis stated further that "he felt like Zack should have
taken some of the other truck drivers that had been driving
trucks from time to time and put them on the truck and let him
run the loader" (Tr. 480).
Mr. Davis confirmed that he and Mr. Burke met with
Mr. Conatser after he was discharged, and the decision not to
rehire Mr. Conatser was based on the fact that he refused to
do something he was qualified to do, and that "we don't tolerate that" (Tr. 481). Mr. Davis also stated that Mr. Conatser
had a "terrible work record" and missed a lot of work, but he
confirmed that this had nothing to do with his discharge.
Mr. Davis was of the opinion that Mr. Mullins acted reasonably
in discharging Mr. Conatser, and while he had never observed
~r. Conatser drive a rock truck at Red Flame he believed that

447

"if you can drive a hauler on one job you can drive it on
another job" (Tr. 484).
Mr. Davis stated that there was no unusually steep hills
at the Red Flame site, and that the hill where Mr. Conatser
was expected to drive the truck had a grade of approximately
ll-to-12 percent, and while it did snow, he did not believe
that this was unusual inclement weather for the wintertime
(Tr. 487). Mr. Davis stated that had Mr. Conatser informed
Mr. Mullins that he was afraid to drive the truck, Mr. Mullins
would either have assigned someone to show him how, or would
have assigned Mr. Conatser to a loader and put someone else in
the truck. Mr. Davis did not believe that Mr. Mullins would
ever endanger anyone in a piece of equipment, and if he did,
he would fire Mr. Mullins (Tr. 488).
On cross-examination, Mr. Davis stated that while he did
not know exactly how many hours Mr. Conatser operated the
truck on the 3 days that he observed him at the No. 8 Ltd.
site, he did observe him coming and going 12 to 20 times during those 3 days while driving the 50-ton 773 rock truck.
Mr. Davis confirmed that he had previously stated in his
pretrial deposition that he "thought" that Mr. Conatser had
operated a rock truck at Red Flame after swapping out with
Maynard Harris, but that he did not actually know that for a
fact, and never observed him driving a truck. He also confirmed that he never asked Mr. Harris whether he and
Mr. Conatser had "swapped out" (Tr. 490-494).
Mr. Davis confirmed that Mr. Mullins told him that
Mr. Conatser stated "no, I can't" when he asked him to drive
the truck. He also confirmed that while he has been the
superintendent at Red Flame and No. 8 Ltd., Mr. Conatser has
received no rock truck driving task training, and that
Mr. Conatser never told him that he would not operate any
equipment other than an endloader. Mr. Davis stated that if
anyone told him "I can't drive a rock truck," this would mean
"that I would train him" (Tr. 497-501).
Complainant's Rebuttal
Maynard Harris, loader operator, Red Flame Coal Company,
confirmed that he has been so employed since May, 1986, and
that he worked with Mr. Conatser from that time until his discharge in January, 1987. He stated that he never observed
Mr. Conatser operating a rock truck. Mr. Harris also· confirmed that while he is a loader operator, he has driven a
rock truck, and he denied that he has ever "traded out" with

Mr. Conatser so that he could drive his rock truck. He confirmed that he knows of no one else who has "traded out" with
Mr. Conats~r (Tr. 507-511).
Mr. Conatser testified that his previous rock truck driving experience has always been on level ground, and that he
has never been trained on a rock truck, and knew nothing about
the retarder or what gear to put the truck in while going down
hills (Tr. 513-517, 521). He denied that he ever backed up a
rock truck while working at Red Flame (Tr. 519). Although he
knew how to operate the rock truck foot brakes, steering
wheel, and lights, he was "always scared" of the truck, but
was not afraid to drive one on level ground because "it's just
there ain't no danger of anything happening to you there" (Tr.
520). He denied that he ever operated a truck on a hill (Tr.
522).
Mr. Conatser admitted that he never said anything to
Mr. Mullins about his safety concerns at the time of his
refusal to drive the truck because "I was just in shock" and
"never thought to" and "I didn't know I had to." He also
admitted that before Mr. Mullins asked him to drive the truck,
he discussed with the mechanic the probability that
Mr. Mullins would ask him to do so, and that he would have to
drive it down the haulroad (Tr. 522-525). Mr. Conatser confirmed that he learned that telling Mr. Mullins about his fear
of driving the rock truck was critical to his case after he
talked with MSHA Inspector South, and that "he said that you
had to tell them that you were in fear for your life" (Tr.
525). When asked whether he was aware of the fact that he was
supposed to bring any safety concerns to the attention of his
supervisors, Mr. Conatser responded "I guess so" (Tr. 527).
Complainant's Posthearing Depositions
Bill Meade, self-employed long-distance trucker, testified that he worked for No. 8 Ltd. from 1975 through
September, 1986, as a mechanic foreman, and that from the
Spring of 1983 until he quit in September, 1986, he was the
foreman of the No. 8 Ltd. strip mining site. He confirmed
that Mr. Conatser worked for him at the No. 8 Ltd. site for 6
to 7 years, and that he was his supervisor during that time.
Mr. Conatser's job was an endloder operator, and he loaded
some rock, but mostly coal. Mr. Meade stated that
Mr. Conatser was one of his best endloader operators, and that
he would hire him if he were in business.
Mr. Meade stated that he was an experienced rock truck
driver, and has driven trucks on level and steep ground, and

449

in wet and dry conditions. He considers a rock truck to be
the most dangerous piece of equipment on a strip job, and
depending on the conditions under which it is operated, and if
one is not trained in all of its controls, "it is very dangerous because it can get away from you at the bat of an eye"
(Tr. 11). Mr. Meade described the controls of different
models of rock trucks used at the No. 8 Ltd. site, including
the braking systems, and the skills required to operate the
trucks on hills, steep ground, and under wet conditions. He
indicated that the vehicle manual that comes with the
Model 777 or 773 rock truck states "do not operate this
machine on steep ground during wet or slick conditions" (Tr.
12-18).
Mr. Meade confirmed that he has observed rock trucks sliding down hills in wet conditions, and that this is a common
occurrence. He also confirmed that while he was employed at
the No. 8 Ltd. site, he was aware of rpck truck accidents. He
stated that Cyrus Boggs, an experienced driver, put an 85-ton
777 truck into a ditch while driving down a slick road, and
bent the fenders. Mr. Boggs also had another problem coming
up a slick hill, but it did not damage the truck. Jerry
Sturgill wrecked a 773-B truck, and it had to be pulled out
with a dozer. ,Robert Yeary, an inexperienced driver, damaged
a 777 truck engine when the truck got away from him on a steep
hill, and Roy Porter, who was also inexperienced, recently
damaged a 777 truck at Red Flame's operation when he backed it
into the pit and damaged the bumper. Shawn Sturgill, an
inexperienced driver, bent the drive shaft on a 773-B truck
when it got away from him at the No. 8 Ltd. site and went into
the hollow fill. Mr. Boggs was also involved in two or three
incidents with a 3311 Terex, 85-ton truck, and a 40 ton 3307
Terex truck on slick ground CTr. 19-27). Mr. Meade described
some of the problems that a rock truck driver could encounter
driving down hills in wet conditions (Tr. 27-30).
Mr. Meade confirmed that Mr. Conatser operated a 773-A
rock truck at the No. 8 Ltd. strip site, and during the
6 years he was there he drove it five to six times in level
areas during the spring of 1986. He did not drive the truck
into the hollow fill. On one day, Mr. Conatser filled in for
another driver, and he operated a 777 model while hauling rock
over a flat and level area 300 to 500 feet wide, and over a
distance of a few hundred yards. He hauled rock in and out of
a level pit area (Tr. 30-35).
Mr. Meade was of the opinion that Mr. Conatser was not
qualified to drive a rock truck up and down hills in wet conditions because he had no experience at all and was not capable

450

of hauling in any steep or dangerous territory (Tr. 39).
Mr. Meade was not aware that Mr. Conatser ever drove a truck
while stockpiling coal over 3 consecutive days, and the
longest time that he ever drove a truck was for 8 hours when
he filled in for the driver previously mentioned. Mr. Meade
believed that Mr. Conatser probably drove a truck for a total
of 3 full days during all of the time he was employed at the
No. 8 Ltd. site (Tr. 40).
Mr. Meade believed that Mr. Conatser went to work at the
Red Flame site in June, 1986, and he stated that the steepness
of the hollow fill hill at Red Flame did not compare with the
pits at No. 8 Ltd. where Mr. Conatser drove a truck. The hill
at Red Flame was 18 degrees in some places, and the areas at
No. 8 Ltd. were level, and at no time while he was there were
the roads as steep as at Red Flame (Tr. 43).
Mr. Meade confirmed that when he was foreman at the No. 8
Ltd. site, it was his practice to use alternative level dumping sites and to never go down hills when it snowed or rained
(Tr. 45). He stated that roads which are scraped after a
12-inch snow in 25-30 degree weather would be muddy after
scraping, and that the snow would be melting all day and the
roads would not freeze unless the temperature was "in the
teens." He was of the opinion that the road would have to be
cut 3 to 4 inches deep to reach dry ground, but that melting
snow on the roads would prevent them from staying dry (Tr.
47).
Mr. Meade was of the opinion that anyone who had driven a
rock truck only on level ground would have to be task trained
if he were assigned to drive the truck up and down hills
because "it's a complete different operation" (Tr. 48). He
confirmed that while he was foreman at No. 8 Ltd., if anyone
told him that they did not want to operate a piece of equipment, he would assign someone else in their place. If anyone
told him that they were afraid, or could not operate the equipment, he would find someone else because he did not believe in
assigning anyone work which they did not norffially do on a
daily basis because they would endanger themselves and others
(Tr. 48-50).
In his opinion, Mr. Conatser was a qualified
endloader operator, and although he has seen him operate a
dozer, he did not believe he was a qualified dozer operator
(Tr. 51).
On cross-examination, Mr. Meade confirmed that as a supervisor and foreman, he has trained employees to operate a rock
truck, and he explained how this was done. He also confirmed
that he trained Mr. Conatser to drive a rock truck on level

451

ground during the spring of 1986, and this consisted of riding
with him "a trip or two" (Tr. 55). Mr. Meade also confirmed
that since Mr. Conatser was not hired as a rock truck driver,
his training was limited to operating the truck on level
ground, and he was not aware of any other training received by
Mr. Conatser at No. 8 Ltd. prior to 1986 (Tr. 56). ·
Mr. Meade stated that during the time Mr. Conatser worked
for him at No. 8 Ltd. from 1978 to 1985, he had no knowledge
that he ever operated a rock truck, and he never assigned him
to drive a truck. He also was unaware of Mr. Conatser ever
offering to "swap out" with a rock truck driver, and he indicated that this was against company policy because it was
dangerous and expensive (Tr. 60). In those instances where he
assigned someone to work in someone's place during their
absence, he always made sure that the replacement was certified or trained to do the work (Tr. 61).
Mr. Meade stated that Mr. Conatser was trained every year
that he worked at No. 8 Ltd., but that his training was
limited to his job as an endloader operator. He also stated
that the miners were not trained to operate every piece of
equipment, and switching jobs was not practiced, unless he
personally selected someone to replace another and was assured
that he was trained to do a particular job (Tr. 63-64). He
never permitted any of his truck drivers to go up and down
hills when it was wet or slick, and if it was snowing and
25 degrees or above (Tr. 71). Mr. Meade confirmed that while
he was foreman at No. 8 Ltd., task training was only given to
those men who were moved from one piece of equipment to
another, and that initial training was given to those men
hired to drive rock trucks (Tr. 77).
Mr. Meade confirmed that he observed Mr. Conatser drive a
rock truck five to seven times during the 6-month period from
January to June, 1986 (Tr. 72). Mr. Conatser's total hours of
driving a rock truck would have amounted to 1 day for the two
or three times he drove, and 6-1/2 hours when he replaced a
driver, and 2 to 3 hours on the other occasions that he drove
(Tr. 74-75). He estimated that Mr. Conatser's total rock
truck driving experience was approximately 3 working days (Tr.
95), and he explained further as follows (Tr. 100):
Q. When you worked at the #8 strip site, did
Chuck Conatser have a reputation as being a
rock truck driver or a hauler operator?
A. Chuck Conatser was a loader man. That's
all that Chuck - everybody that knows Chuck

452

Conatser knows that he's a loader man. And, I
mean, it's a known fact that's all he does.
Chuck started out as a loader man, and that's
all he ever wanted to be. And to me that's the
only reputation he had with me, was he was my
loader man.

Q.

Okay.

A. As a matter of fact, he resented everytime
I would try to get him haul that stuff because
he told me that he was afraid.

Q. The times that you assigned him to operate
the hauler he didn't like it?
A. Yeah, he didn't really like it, no. But,
you know, he would go along if it was in a safe
condition.
Mr. Conatser denied that he had ever offered to swap out
with Mr. Maynard Harris so that he could drive Mr. Harris'
truck while Mr. Harris operated his loader. With regard to
Mr. Meade's testimony that he operated a rock truck five to
seven times at No. 8 Ltd. during the spring of 1986,
Mr. Conatser stated that he only operated a rock truck on two
occasions as he testified to at the hearing in this case.
Respondent's Posthearing Depositions
Cruce Davis testified as to certain task training certificates which he located for various equipment, and he was
unable to locate any other certificates covering the period
prior to his employment at No. 8 Ltd. in February, 1986.
Approximately 24 to 28 equipment operators were employed at
the No. 8 Ltd, site, and while he believed that no one would
be allowed to operate equipment unless they were trained, he
did not believe that any training certificates were filled out
for these employees •. In his opinion, the dozer would be the
most dangerous piece of equipment to operate since it would be
pushing materials over the hill at high elevations. The
Caterpillar 777 rock trucks do not have right and left steering brakes because they were disconnected or not there when he
came to the site, and the retarders would only be used when
the trucks are driven on hills or under wet conditions.
Mr. Davis stated that the dozers and graders make the
hills safe to operate on during wet or slick conditions, and
sometimes the trucks are placed elsewhere to operate under

453

such conditions. On January 26, 1987, the roads were made
safe for the trucks after they were scraped, and the trucks
have enough braking power to operate on the hills. He had no
knowledge that Cyrus Boggs, Jerry Sturgill, Robert Yeary, Roy
Porter, Shawn Sturgill, or Terry Boggs ever wrecked a rock
truck, and if they did, he would be aware of it. Although he
has observed rock truck wheels sliding, he never saw them go
"in the wrong direction," but given the right conditions such
as an "awful slick" road, this was possible. Although there
were no hollow fills at the No. 8 Ltd. site when he worked
there during the spring of 1986, there were some "small hills"
at a 9 to 10 percent grade coming out of the pit. He was not
aware that Red Flame was in "any trouble" due to the steepness
of the hill going to the hollow fill. He was unaware of any
truck collisions at the sites.
Mr. Davis stated that while anyone can operate a rock
truck on level ground, this is not true on hills, and one "has
to be used to it." He would not put just anyone on a rock
truck on level ground, and just "turn him loose," but that if
one "gets used to the truck controls" on level ground, after
15 to 20 minutes, he should be able to drive the truck downhill. Task training is given to those who are newly hired,
those who have never operated a piece of equipment before, and
those who go from one piece of equipment to another. He knows
of no one who has operated a rock truck on level ground being
task trained to operate a truck on hills. He was aware of
some employees refusing to operate a dozer after being asked,
and after stating that they were unable to operate it. However, those who were known to be able to operate equipment
have never refused, and if anyone expressed any fear in operating equipment, they would not be assigned to do so.
Mr. Mead~ threatened him over some differences between them,
and he has also threatened to shut the Red Flame job down
several times. These threats were made over the C.B. radio,
and Mr. Davis recognized Mr. Meade's voice. Mr. Davis conceded that rock trucks could have wrecked at the No. 8 Ltd.
site before he worked there and that he may not have heard
about i't.
Cyrus Boggs--denied ever wrecking a rock truck, but
recalled that he may have slid on the wrong side of the road
and "put one into a ditch on the level," but not on a hill.
One can slide backwards on slick road going uphill until the
road is scraped, and he regularly operated rock trucks at
No. 8 Ltd. up and down hills when it was raining, wet, or snowing, and "you would have to try."

454

Shawn Sturgill denied that he ever wrecked a rock truck
at No. 8 Ltd. or Red Flame, but did get stuck in the mud and
fill one time, but did not damage the truck and was in no
danger. He has operated trucks at No. 8 Ltd. or Red Flame
when the roads were wet or when it snowed, but the roads were
scraped or cut.
Terry Boggs denied that he had ever wrecked a rock truck
or been hurt in one. He has had mechanical and transmission
problems. The roads are scraped or rock is dispersed on the
road in order to dry them out. He has operated trucks on
hills when they are wet, and in the rain or snow, but the
roads are always "fixed" before going up hills. On one occasion, he rolled backwards on a hill about 50 feet into "a
little valley" when the truck "kicked out of gear" after he
experienced transmission problems, and the truck gears have
"kicked out" many times. He knew of one driver at No. 8 Ltd.
who mired his truck into the spoil while turning and dumping,
and he had to be pulled out with a dozer. Shawn Sturgill also
got stuck in the mud with a truck while backing out of a dump.
Roy Porter denied that he ever wrecked a rock truck at
No. 8 Ltd. or at Red Flame, but did recall that a wheel fell
over once while he was turning on top of a shot. Dozers are
used to drag the roads, and he has driven trucks in snow and
rain. He has a total of 3 weeks of experience at driving a
rock truck, and stated that "I can drive it." He is sometimes
used to drive a truck when substituting for someone who is
sick.
Robert Yeary confirmed that on one occasion while driving
down the hollow fill road at Red Flame, a wheel fell off his
rock truck and the front-end was damaged and parts had to be
replaced. The incident was unexplained, and he was driving at
normal speed in dry weather, and he was not hurt. He is
unaware of any truck accidents while working at Red Flame. He
has a year of truck driving experience, and drove one on one
night shift at No. 8 Ltd., but Mr. Meade never observed him
driving.
Maynard Harris testified that during July, 1986, at Red
Flame, he was operating an old rock truck which was not air
conditioned, and Mr. Conatser was operating an air conditioned
loader. Mr. Conatser called him over the radio and offered to
swap jobs with him. Mr. Harris was operating the truck "out
of the pit down into the hollow fill," and the road was steep.
The first hill would have been as steep as it was on
January 26, 1987, and had the swap occurred, Mr. Conatser
would have driven on that road. However, they did not swap.

455

Findings and Conclusions
In this case, Mr. Conatser's employment with the respondent terminated on the morning of January 26, 1987, after he
refused his foreman's (Mullins) request to operate a rock
truck. Although the respondent initially took the position
that Mr. Conatser quit his job, it subsequently abandoned this
position and it is clear from the testimony of Cruce Davis,
and Zachary Mullins' own admissions that he discharged
Mr. Conatser for refusing his request to drive the rock truck.
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish Cl) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary of Labor ex rel. Fasula v. Consolidation Coal
Company, 2 FMSHRC 2768 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Company v. Marshall, 663 F.2d 1211
C3d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Company, 3 FMSHRC 803 (April 1981); Secretary on
behalf of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842
(August 1984); Secretary on behalf of Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508, 2510-2511 (November 1981), rev'd on other
grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86
(D.C. Cir. 1983).
The operator may rebut a prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no way mo~ivated ~y protected activity.
If an
operator cannot rebut the prima facie case in this manner, it
may nevertheless affirmatively defend by proving that it was
also motivated by the miner's unprotected activities alone.
Fasula, supra; Robinette, supra. See also Eastern Assoc. Coal
Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v.
Stafford construction Co., 732 F.2d 954, 958-59 (D.C. Cir.
1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)
(specifically approving the Commission's Fasula-Robinette test).
Cf. NLRB v. Transportation Management Corporation, 462 U.S.
393, 397-413 (1983) (approving nearly identical test under
National Labor Relations Act.
Complainant's Termination
It seems clear to me from the record in this case that the
complainant was discharged from his job by foreman Mullins on
January 26, 1987, for refusing the request by Mr. Mullins that
he drive a rock truck, and Mr. Mullins admitted that this was

456

the case. Consequently, the respondent's initial assertion
that Mr. Conatser quit his job is rejected, and I conclude and
find that he was in fact discharged.
Complainant's Work Refusal
A miner has the right under section 105Cc) of the Act to
refuse to work if he has a good faith, reasonable belief that
his continued work involves a hazardous condition. Pasula,
supra, 2 FMSHRC at 2789-96; Robinette, supra, 3 FMSHRC at
807-12; Secretary v. Metric Constructors, Inc., 6 FMSHRC 226,
229-30 (February 1984), aff'd sub nom. Brock v. Metric
Constructors Inc., 766 F.2d 46~472-73 Cllth Cir. 1985).
However, where reasonably possible, a miner refusing work
ordinarily must communicate or attempt to communicate to some
representative of the operator his belief that a hazardous
conditions exists. Simpson v. Kenta Energy, Inc. & Roy Dan
Jackson, 8 FMSHRC 1034, 1038-40 (July 1986); Secretary on
behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126,
133-135 (February 1982); Dillard Smith v. Reco, Inc., 9 FMSHRC
992 (June 1987); Miller v. Consolidation Coal Company, 687 F.2d
194, 195-97 (7th Cir. 1982) (approving Dunmire & Estle communication requirement); Sammons v. Mine Services Co., 6 FMSHRC
1391 (June 1984).
Mr. Conatser asserts that his refusal to drive the rock
truck in question was based on his fear for his safety pecause
he had not previously driven a rock truck on hills or in wet
conditions, and he did not feel that he was qualified to drive
the truck on the Red Flame haul road to its hollow fill.
Mr. Conatser further asserts that due to his extremely limited
experieP.ce driving rock trucks, which was confined to level
terrain in dry conditions, his safety concerns on January 26,
1987, were clearly reasonable, and that his refusal to drive
the truck was made in good faith.
The hollow fill road over which Mr. Conatser was expected
to drive was described as "steep" by several witnesses. The
evidence establishes that the roadway was approximately 40 feet
wide, 100 to 600 feet long, and that trucks could pass each
other on the roadway. The average truck speed was estimated at
10 miles per hour, and while there were incidents of mechanical
break-downs and trucks being bogged down, there is no probative
evidence of any truck collision accidents or injuries. The
roadway was bermed, and the truck that Mr. Conatser was asked
to drive was in good operating condition.
The evidence establishes that the respondent generally
made it a practice to scrape and clear the roadways when it

457

snowed, "rocked" them to prevent sliding under wet and rainy
conditions, and watered them down under dry conditions to keep
the dust down~ The evidence also establishes that foreman
Mullins and superintendent Davis consistently addressed the
safety concerns of drivers with respect to road conditions, and
took appropriate action to insure that the roads were safe
before permitting any trucks to operate over the roads.
Drivers were instructed not to operate their equipment until
the roads were made safe.
With regard to the road conditions on the morning of
January 26, 1987, while it had snowed and there was
10-12 inches of snow on the ground, the evidence establishes
that the hollow fill road in question was bermed and cleared of
snow before any trucks were permitted to operate. However,
truck driver Cyrus Boggs, who drove a truck on the hill that
day, testified that the road was wet after it was scraped, and
that it was not unusual for a truck.to slide on a wet road
surface. Dozer operator Lloyd Day, who worked on the road on
the day in question, described the road as "pretty rough"
before it was scraped, and he confirmed that it was still wet
after the snow was scrapped off. Although he believed that the
road was safe after it was scraped, he also believed that
trucks will slide on a hill regardless of whether the conditions are wet or dry. Truck driver Robert Boggs testified that
once snow is removed from a roadway, the roadway is still wet
and that "it ain't no more than water in the road" (Tr. 353).
Former mine foreman Meade testified that in 25 to 30 degree
weather, once snow is removed from a roadway, the roadway
remains "wet and muddy" and that "it's gonna lay there and melt
and run all day long" (Deposition pgs. 45-47).
Roy Porter confirmed that he had previously driven a rock
truck over the roadway in question under rainy and wet conditions, and that the truck would slide. Shawn Sturgill testified that he has observed rock trucks sliding on the roadway,
and that while operating trucks on that very same roadway, he
has experienced a slide while encountering small patches of ice
under wet conditions. Foreman Mullins confirmed that he has
observed trucks sliding on the roadway in question when the
road was slick, and he agreed that a sliding truck indicates
that its not braking properly. Rock truck driver Robert Yeary
confirmed that he has observed trucks sliding on the road in
question and that this would occur when the road was wet or
when the driver applied the brakes. Mr. Conatser testified
that prior to his discharge, he ooserved rock trucks operating
on the hill road on a daily basis, and that when it snowed or
rained, or when the road froze and thawed, it was impossible to
take a trip without sliding.

458

Although one can conclude that the roadway in question was
made reasonably safe after.the snow was removed, and some
drivers experienced no difficulty in driving on the roadway, I
conclude and find from the credible testimony of the aforementioned witnesses that the roadway was wet, and probably muddy,
after the snow was removed, and that given these conditions, it
presented a possible sliding and slipping hazards for the
trucks which were scheduled to operate on the morning of
January 26, 1987. As a matter of fact, foreman Mullins stated
that the roadway was not used at all that day because "the coal
trucks couldn't get to it" and "we hauled to the level" (Tr.
43 7) .
With regard to Mr. Conatser's ability to drive a rock
truck, a distinction must be made as to whether he is totally
incapable of driving a truck, or whether, as he contends, he
lacks the necessary experience and training to drive it under
inclement weather conditions on a steep inclined road. On the
basis of the evidence presented in this case, I conclude and
find that Mr. Conatser can basically operate and drive a rock
truck, and his denials to the contrary are rejected. The evidence establishes that prioi to his discharge, Mr. Conatser
drove a rock truck at the No. 8 Ltd. site, and he admitted that
he knows how to operate a rock truck, on level ground, but
denied that he knew how to "gear it down" on a hill (Tr.
113-114; 125-126).
With regard to Mr. Conatser's actual rock truck driving
experience, his former supervisor at No. 8 Ltd., Bill Meade,
testified that during the 6 or 7 years that Mr. Conatser was
employed at that site, when the occasion arose for Mr. Conatser
to drive a rock truck, he always drove it on level ground in an
environment that posed no hazard to him. Cyrus Boggs confirmed
that while he observed Mr. Conatser drive a truck while stockpiling coal at the No. 8 Ltd. site 3 years ago, he had no
recollection of the particular details, and he did not consider
Mr. Conatser to be a truck driver.
Shawn Sturgill testified
that when he observed Mr. Conatser driving a rock truck at
No. 8 Ltd., he always drove it on level ground, and Mr. Sturgill
was not certain as to the weather conditions. Tommy Dotson
testified that the only time he observed Mr. Conatser in a rock
truck was one time when he backed it up on the level Red Flame
parking lot for a distance of 30 to 40 feet.
Robert T. Boggs
confirmed that when he observed Mr. Conatser driving a truck at
the No. 8 Ltd. site 2 to 4 years ago, he was hauling coal from
the pit up and down hills, but under dry road conditions.
Superintendent Davis confirmed that he never observed
Mr. Conatser drive a rock truck at Red Flame, and while he

459

observed him driving a truck on three occasions while at the
No. 8 Ltd. site during March, 1986, the weather was clear and
dry, and the road was not completely level, and included na
dipy" "a little hill," and a "steep grade on the bench."
Mr. Mullins' testimony that he had previously observed
Mr. Conatser driving a rock truck on the Red Flame hill in
question during the summer of 1986 prior to his discharge is
rejected as less than credible. I have carefully reviewed
Mr. Mullins' testimony in this regard, and find that his purported observation of Mr. Conatser was based on his assumption
that Mr. Conatser had swapped out with rock truck driver
Maynard Harris. During the hearing, Mr. Harris denied under
oath that he had ever swapped out with Mr. Conatser, and he
said nothing about any offer by Mr. Conatser to drive his truck.
Later, during his posthearing deposition, Mr. Harris stated
that Mr. Conatser offered to swap out with him, but given the
lack of time, the swap never occurred. Weighed against the
credible testimony of all of the other witnesses who testified
that they never observed Mr. Conatser drive a rock truck at Red
Flame, and were unaware of any offers on his part to swap out
with other equipment operators, I simply do not believe
Mr. Harris' testimony concerning the purported offer by
Mr. Conatser. As for Mr. Mullins, I take note of the fact that
in his pretrial deposition, he made a statement that
Mr. Conatser had switched out with Mr. Harris and drove the
rock truck for one day, making three or four trips down the
hill in question (Pgs. 34-35). However, at the hearing,
Mr. Mullins completely contradicted himself and testified that
he only "thought" and "assumed" that Mr. Conatser had switched
with Mr. Harris (Tr. 428-429).
Wh~le it is true that several witnesses were of the
opinion that Mr. Conatser's prior driving experienced qualified
him to drive a rock truck, some of these same witnesses
expressed reservations over an inexperienced driver operating a
rock truck on a hill under wet road conditions. Drivers Cyrus
Boggs and Shawn Sturgill testified that an inexperienced driver
would ·not know how to handle a truck in a slide and would have
problems, and Mr. Sturgill believed that it was unsafe for such
a driver to operate a truck on a slick hill. Mr. Conatser's
former foreman at No. 8 Ltd., Bill Meade, opined that
Mr. Conatser was not qualified to operate a rock truck on a
hill on wet roads because of his total lack of experience in
driving under such conditions. Mr. Meade stated that driving
on hills "is a completely different operation" from driving on
the level, and that a driver whose experience was limited to
driving on level ground would need to be task trained to drive
on hills.

460

Drivers Robert Yeary, _Cyrus Boggs, and Russell Akers confirmed that there were differences in driving on hills and on
the level, and Mr. Akers confirmed that if he were an inexperienced driver, he would be afraid to drive on a wet hill road
because it would be "scary." Superintendent Davis agreed that
while anyone could drive a rock truck on level ground, this
would not be true on hills, and that a driver would have to get
used to driving on hills if he had not done so in the past.
Cyrus Boggs believed that some training was required in order
to learn how to drive a rock truck on a hill. Robert T. Boggs
opined that wet roads are more hazardous than dry ones, and
that he has observed experienced drivers sliding on hills.
The evidence in this case clearly establishes that
Mr. Conatser's principal job with the respondent was that of an
endloader operator, and except for the possibility that he may
have on one occasion backed up a rock truck for a very short
distance on the parking lot, there is no credible evidence that
he otherwise drove a rock truck during the 7 or 8 months that
he worked at the Red Flame site. Mr. Conatser's principal job
at the No. 8 Ltd. site during his 7 years of employment was
other than that of a truck driver, and the credible evidence
establishes that at best, Mr. Conatser drove a rock truck for
at least 3 consecutive days at the No. 8 Ltd. site, with three
or four additional sporadic days of driving at that location.
The evidence also establishes that Mr. Conatser's rather
limited truck driving experience was confined to driving on
level ground under clear and dry weather conditions, and that
he has had no experience at driving on wet or steep roadways,
and never received any truck driving training during his entire
employment tenure with Red Flame and No. 8 Ltd., except for
riding with Mr. Meade for one or two trips.
Given all of the aforementioned circumstances, including
the fact that Mr. Conatser was an inexperienced rock truck
driver, had never driven a rock truck on a wet hill or roadway,
had never been trained to operate a truck under those conditions, and the potentially hazardous nature of the wet roadway
over which Mr. Conatser was expected to drive at the time he
was requested to drive the rock truck in question, I conclude
and find that his refusal to drive the truck was reasonable.
The respondent has suggested that Mr. Conatser's refusal
to drive the rock truck was based on his desire to operate only
an endloader, and his belief that foreman Mullins should have
assigned other available drivers to drive the truck in question.
In support of this conclusion, respondent relies on a statement
given by Mr. Conatser to the State unemployment office in which

461

he indicated that another available driver should have been
assigned to drive the rock truck in question.
Apart from the statement relied on by the respondent, the
record is devoid of any other evidence that Mr. Conatser has
ever taken the position that Mr. Mullins should have assigned
someone else to drive the truck. Mr. Conatser made no such
assertion in his initial complaint to MSHA, and the respondent
has conceded that Mr. Conatser had never previously declined to
operate any equipment other than his loader when asked to do so.
Further, at the time of his work refusal, Mr. Conatser said
nothing which would have lead Mr. Mullins to believe that his
refusal was based on his desire to operate only an endloader,
or that Mr. Mullins should have selected someone else for this
job. The same is true at the time Mr. Conatser met with
Mr. Burke and Mr. Davis after his discharge.
Indeed, during
his entire working career at No. 8 Ltd. and Red Flame, a period
in excess of 8 years,. Mr. Conatser had never taken the position
that he "was only an endloader operator" and would not operate
any other equipment. The record here establishes that
Mr. Conatser has operated a dozer, a scraper, and a rock truck,
in addition to his usual job as an endloader, and there is no
evidence to show that he did so other than willingly.
Although Mr. Conatser's statement to the state unemployment off ice raises an inference that his refusal to drive the
truck was made for reasons other than his safety concerns, and
is therefore "tainted," I cannot conclude that this isolated
statement, made after the work refusal, is sufficiently
probative, standing alone, to support a conclusion that
Mr. Conatser's work refusal on January 26, 1987, was made in
bad faith.
Accordingly, respondent's argument in this regard
is rejected.
Complainant's Safety Communication to the Respondent
The crucial and difficult determinative issue in this case
is whether or not the complainant communicated his safety concerns to the respondent prior to or reasonably soon after his
work refusal, and if not, whether unusual circumstances excused
his failure to do so.
In Secretary/Dunmire and Estle v.
Northern Coal Company, supra, at 4 FMSHRC 133, the Commission
formulated the rule as follows:
Where reasonably possible, a miner refusing to work should ordinarily communicate, or
at least attempt to communicate, to some representative of the operator his belief in the
safety or health hazard at issue.
'Reasonably

462

possibility' may be lacking where, for example,
a representative of the operator is not present, or exigent circumstances require swift
reaction. We also have used the word, 'ordinarily' in our formulation to indicate that
even where such communication is reasonably
possible, unusual circumstances--such as
futility--may excuse a failure to communicate.
If possible, the communication should ordinarily be made before the work refusal, but,
depending on circumstances, may also be made
reasonably soon after the refusal.
In Secretary of Labor ex rel. Paul Sedgmer et al., v.
Consolidation Coal Company, 8 FMSHRC 303 (March 1986), the
Commission affirmed a Judge's decision dismissing a discrimination complaint brought by several equipment operators who were
suspended for refusing to operate heavy mobile equipment at
speeds which they considered to be unsafe. With regard to the
failure of the miners to communicate their safety concerns to
mine management, the Commission stated as follows at 8 FMSHRC
309:
"* * * While such communications are not only expected,
in ordinary course, in work refusal situations, their absence
also lends weight to the conclusion that the disagreement here
as to the operating speed did not have a sound basis in safety
concerns."
In Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982), the
Court affirmed the dismissal of a discrimination complaint
filed by a section foreman who was discharged after refusing
to start up a longwall miner on the grounds that he was incapable of operating it; that he was unfamiliar with the control
panel; and that in order to start the machine, it would have
been necessary to short out its methane detector. Although
the foreman felt that this would be in violation of safety
laws, he did not immediately communicate his safety concerns
to mine management, but waited until later in his work shift
to do so, and only after the mine manager telephoned him. The
Court noted as follows at 687 F.2d 196:
The specific requirement of promptly reporting
the hazard to the employer which the Commission
has read into the Act is not only a natural
corollary to the general requirement that the
work stoppage be reasonable but also a device
well suited to promoting the Act's fundamental
objective of promoting mine safety and health.
It gives the worker an incentive to bring a
safety hazard to his employer's attention, for

463

by doing so he gains the protection of the Act
against retaliation (provided that his belief
that there is a hazard is reasonable}. The
requirement also serves an evidentiary purpose:
it helps the Commission distinguish between
genuine and spurious invocations of the Act's
protections. The worker who does not promptly
report an alleged hazard to his employer is
less likely to be sincere in his belief that
there is a hazard than the worker who
does. * * *
In Simpson v. Kenta Energy, Inc., supra, Judge Broderick
upheld the discrimination complaint of a miner who left his
job out of concern over the lack of a foreman on the job and
the failure to conduct preshift and onshift examinations.
With regard to the safety communication issue, although Judge
Broderick found that the miner had not communicated these
safety concerns to his foreman (Jackson}, he nonetheless concluded that the communication was not necessary because the
foreman was deemed to have known about these conditions and
the communication would have been futile.
Judge Broderick
stated "I do not consider that it is necessary in order to
invoke the protection of Section 105(c}, that it be shown that
the operator was specifically aware of the reason for a
miner's work refusal, if the operator was aware of the hazardous conditions which prompted the refusal • • " 6 FMSHRC at
1462.
The Commission reversed, and while it agreed that Simpson
had valid and reasonable safety concerns in leaving his job,
it found that Simpson had not communicated his safety concerns
to his foreman, thus negating the foreman's opportunity to
address them.
In this regard, the Commission stated as
follows at 8 FMSHRC 1040: "Even assuming, as the Judge did,
that Jackson was aware of the absence of a foreman and the
failure to conduct the required pre-shift and on-shift examinations, we cannot presume that Jackson would have taken no
action had Simpson communicated his concerns to Jackson."
(Emphasis added.}
Although the Court of Appeals for the D.C. Circuit
reversed and remanded the Simpson case to the Commission for
further consideration of the issue of whether Simpson should
be excused from meeting the communication requirement because
notice would have been futile, it nonetheless accepted the
Commission's application of the communication requirement set
forth in the Northern Coal and Miller cases, supra. Simpson

464

v. FMSHRC, Court of Appeals, D.C. Circuit, Case No. 86-1441,
Slip opinion pgs. 12-13, d~cided March 18, 1988.
In Dillard Smith v. Reco, Inc., supra, an employee of a
battery servicing company who had received no underground mine
training was discharged when he refused to carry out a work
assignment at an underground mine. The employee was asked to
go on a service call by his supervisor, and after ascertaining
that the call was at an underground mine, the employee told
his supervisor that "he was not going." The employee left the
premises and neither he or his supervisor said anything
further. Later that same day, the discharged employee
returned to the off ice to inquire about his pay check, and he
informed a secretary to advise the president of the company
that he had left because he did not want to go underground
because his training had expired. Judge Broderick found that
the employee's refusal to go underground because of his lack
of training was justified and reasonable and therefore protected activity under the Act. However, he dismissed the
discrimination complaint on the ground that the discharged
employee had failed to communicate his lack of training as
grounds for refusing to go underground. 8 FMSHRC 1597. In
affirming Judge Broderick's decision, the Commission stated as
follows at 9 FMSHRC 995-996:

*

*

*

*

*

*

*

Among other salutary purposes, the communication requirement is intended to avoid situations in which the operator at the time of a
refusal is forced to divine the miner's motivations for refusing work.

*

*

*

*

*

*

*

Dillard was asked several times at the hearing
why he had not communicated his asserted training concern, but provided no answer other than
that Williams had failed to ask him his reasons
for refusing his work assignment. The responsibility for the communication of a belief in a
hazard that underlies a work refusal rests with
the miner.

*

*

*

*

*

*

*

Thus, Dillard failed to make the necessary
communication of a belief in a hazard and,
accordingly, his work refusal was not protected

465

under the Mine Act. Because Dillard's work
refusal was not protected, his termination by
Reco because of that refusal did not violate
the Act.

*

*

*

*

*

*

*

To the extent that the judge held that
Dillard had engaged in a protected work refusal
apart from his failure of communication, the
judge erred. Proper communication of a perceived hazard is an integral component of a
protected work refusal in the first instance
rather than a wholly separate requirement.
(Emphasis added.)
Mr. Conatser's father testified that his son told him
that he had informed Mr. Mullins that he lacked the experience
to drive a rock truck, and was afraid to drive it because he
had never driven one under "bad snow and weather." However,
complainant Conatser contradicted this testimony when he subsequently testified under oath at the hearing that the only
statement he made to Mr. Mullins at the time of his work
refusal was "I couldn't drive a rock truck." Mr. Conatser
admitted that he said nothing to Mr. Mullins about the
weather, or the steepness of the road in question; did not use
the words "I don't know how to drive a truck;" requested no
task training; mentioned nothing about putting someone else in
the truck with him; and said nothing about his inability to
operate the truck under the then prevailing conditions.
Indeed, the record clearly establishes that at no time during
his conv~rsation with Mr. Mullins, did Mr. Conatser say anything about any safety concerns.
·
The critical part of the conversation which took place
between Mr. Conatser and Mr. Mullins at the time of the work
refusal is in dispute. There were no witnesses to the conversation •. Mr. Mullins claimed that Mr. Conatser simply stated
"no, no" when he asked him to drive the rock truck, and
Mr. Conatser denies this and asserts that he informed
Mr. Mullins that "I can't drive a rock truck." Superintendent
Davis, who arrived at the scene shortly after Mr. Conatser
left the mine, testified consistently by deposition and at the
hearing that Mr. Mullins told him that Mr. Conatser had told
him that he could not drive a rock truck.
I find Mr. Davis to
be a credible and believable witnesses, and his testimony
supports Mr. Conatser's version of the conversation in question. Accordingly, while I conclude and find that
Mr. Conatser informed Mr. Mullins that he could not drive a

466

rock truck at the time of his work refusal, I also find that
he did not elaborate further or explain to Mr. Mullins the
reasons for his purported inability to drive the truck.
Complainant's suggestion that the words "I can't drive a
rock truck" were clearly sufficient to put Mr. Mullins on
notice that he was raising a safety concern is rejected. When
asked to explain why he refused to operate the rock truck in
question, Mr. Conatser gave several reasons beyond a simple "I
can't." He explained that his refusal to drive was based on
his belief that Cl) he was not qualified to drive, (2) he had
never been trained to drive on hills or under wet or slick
conditions; (3) he thought it would be hazardous to his
health; and (4) he thought that there was a chance that he
would kill himself. He further explained that he had reservations about driving the rock truck on the hill in question
because he had observed trucks sliding on the hill in the
past, he was generally afraid of the trucks because of his
asserted lack of ability to control them in a slide, and while
he drove trucks in the past at the No. 8 Ltd. site, he never
drove one down a hill as steep as the one at Red Flame. Yet,
none of these reasons or safety concerns were communicated to
Mr. Mullins at the time of the work refusal, and I decline to
read them into Mr. Conatser's brief statement to Mr. Mullins.
Complainant contends that foreman Mullins clearly understood the plain meaning of his words "I can't drive a rock
truck," but failed to address his safety concerns. Conceding
that he did not advise Mr. Mullins that it would be unsafe for
him to drive the truck because of his lack of training, complainant nonetheless maintains that his statement to
Mr. Mullins was sufficiently clear to put him on notice that
he was raising a safety concern, and that the testimony of
Mr. Mullins and Mr. Davis clearly establishes that Mr. Mullins
understood that the complainant was making a safety complaint.
In this regard, complainant points to the testimony of
Mr. Mullins that the phrase "I can't drive a rock truck"
connotes lack of ability or knowledge, and Mr. Davis' testimony that in the event someone told him he couldn't drive a
truck this would mean "that I would train him." Complainant
concludes that this testimony of Mr. Mullins and Mr. Davis
clearly establishes that a safety issue is raised when a miner
says "I can't drive a rock truck."
Complainant's argument is rejected. As stated earlier,
Mr. Conatser's claim that he could not drive a truck was not
true. His claim is that he lacked the experience to drive a
truck on a hill under wet ~oad conditions, and it is clear
from the record that this safety concern on his part was in no

467

way communicated to Mr. Mullins at the time of the work
refusal. Although Mr. Conatser subsequently stated in a
February 2, 1987, statement to MSHA (exhibit C-3), that at the
time he refused to operate the truck he "was thinking" and
"implying" that he feared for his safety because of his lack
of rock truck driving experience, I find these statements to
be self-serving, and I have given them no weight. It seems
obvious to me that when this statement was given to MS.HA,
Mr. Conatser had the benefit of advice from his uncle, as well
as the MSHA investigator who interviewed him, and he would
naturally attempt to put his case in the most favorable light
to support his claim of discrimination. As a matter of fact,
Mr. Conatser admitted that he learned that communicating any
safety concerns to management was a critical element of his
case when he spoke with the MSHA inspector to whom he made his
complaint after his discharge. When asked during the hearing
whether he was aware of the fact that he had to bring safety
concerns to the attention of his supervisors, Mr. Conatser
responded "I guess so."
Foreman Mullins testified that had Mr. Conatser told him
that he feared for his life or safety, or given him a reason
for not driving the rock truck, he would not have required him
to do so. Superintendent Davis testified that Mr. Mullins
would not endanger anyone's life, and if he did, he would fire
him. The miners who testified in this case corroborated the
fact that Mr. Davis and Mr. Mullins were concerned for their
safety and always addressed their concerns over the road conditions. Mr. Davis further confirmed that had Mr. Conatser
informed Mr. Mullins that he was afraid to drive the truck,
Mr. Mullins would have assigned someone to go with him, or
assigned another driver. Former foreman Meade also confirmed
that if anyone expressed fear or •reluctance in operating a
piece of equipment, he would either assign them to other work,
or not require them to operate the equipment. In view of this
testimony, which I find credible, it would appear to me that
management at Red Flame and No. 8 Ltd. took appropriate action
to address communicated safety concerns. However, in
Mr. Conatser's case, since he did not communicate his safety
concerns to his foreman at the time of his work refusal, the
foreman had no opportunity to address them and take corrective
action.
Mr. Conatser claimed that he was "in shock" and had no
opportunity to communicate to Mr. Mullins the reasons for his
refusal to operate the trucK.
I find this difficult to
believe. Having observed Mr. Conatser during his testimony,
and having review his testimony during his depositions, he
does not .impress me as a timid individual who would back away

468

from a confrontation with a supervisor. Mr. Conatser
impressed me as a rather combative individual who is quick to.
take a position and not back off. I note that Mr. Conatser's
work refusal on January 26, 1987, was not the first time that
he has experienced a job separation situation or encounter
with a supervisor. The record reflects that he was discharged
from a mining job in 1978, after being accused of "doing too
much talking and not enough working" (Tr. 92). He also walked
off his job at No. 8 Ltd. at one time after he and Mr. Meade
engaged in a confrontation over his work and Mr. Conatser got
mad and left his job (Tr. 93).
The evidence establishes that after Mr. Conatser refused
to drive the truck, he engaged Mr. Mullins in further conversation and accused him of "forcing me to go to the house."
Mr. Conatser also had the presence of mind to request permission to retrieve his safety shoes from the loader machine
before leaving. Further, Mr. Conatser confirmed that prior to
his work refusal, he had surmised from previous conversation
with Mr. Mullins over the CB radio, and with the mechanic who
was present, that Mr. Mullins would more than likely assign
him to drive the rock truck (Tr. 523-524). Mr. Conatser conceded that Mr. Mullins did not prevent him from speaking, and
that he had spoken to Mullins on many occasions in the past.
Given all of these circumstances, I conclude that Mr. Conatser
had an ample opportunity to communicate his safety concerns to
Mr. Mullins, and I find no mitigating reasons or extenuating
circumstances to excuse Mr. Conatser's failure to do so.
In view of the foregoing, I conclude and find that
Mr. Conatser failed to make the necessary communication of a
belief of a safety hazard with respect to his refusal to drive
the rock truck in question. Accordingly, his work refusal was
not protected under the Act. Since his work refusal was not
protected, I further conclude and find that Mr. Conatser's
discharge by the respondent because of that work refusal did
not violate the Act.
Refusal to Rehire
During the course of the hearing, complainant's counsel
suggested that the failure by the respondent to reinstate
Mr. Conatser after he met with Mr. Burke and Mr. Davis subsequent to his discharge constituted a second violation of section 105(c) of the Act. However, counsel makes no mention of
this issue in his posthearing brief, and no further arguments
have been forthcoming by the complainant in this regard. I
find no probative credible basis for concluding that the

469

respondent's failure to reinstate Mr. Conatser after his discharge was in violation of the Act. Accordingly, the complainant's claim to the contrary is rejected.
ORDER
In view of the foregoing findings and conclusions, and
after careful consideration of all of the credible evidence
and testimony adduced in this case, I conclude and find that
the complainant has failed to establish a violation of section
105(c) of the Act. Accordingly, the complaint IS DISMISSED,
and the complainant's claims for relief ARE DENIED.

~~

orge • Koutras
dministrative Law Judge
Distribution:

Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified
Mail)
Ronald G. Polly, Esq., Polly, Craft, Asher & Smallwood,
104-B North Webb Avenue, Whitesburg, KY 41858 (Certified Mail)
/fb

470

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

March 29, 1988

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 87-186
A. C. No. 15-02218-03519

v.

No. 1 Mine

FIFE COAL COMPANY,
INCQRPORATED,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The parties have filed a motion to approve settlements of
the five violations involved in this case. The total of the
originally proposed penalties were $960. The total of the
recommended settlements are $720.
The parti~s motion discusses the violations in lights of the
six criteria set forth in section llO(i) of the Federal Mine
Safety and Health Act of 1977. The citations were issued for
violations of 30 C.F.R. § 75.1710 because canopies were not
installed on five pieces of equipment. The parties represent
that a reduction from the original assessments is warranted
because due to the nature of the seam (rolling floor and roof)
the coal height varied from 40 to 60 inches. Canopies are
required by regulation i.n 60-inch coal, but, are not required in
40-inch coal. Therefore, compliance with the regulation would
have been difficult given the nature of the seam. Furthermore,
the operator, who is now out of business, is small and is having
serious financial problems. I accept the parties representations
and approve the recommended settlements.
For the foregoing reasons, the motion to approve settlement
is GRANTED and the operator is ORDERED TO PAY $720 in installments according to the following schedule: One hundred and
forty-f~ur dollars within 30 days of this decision; one hundred
and forty-four dollars within 60 days of this decision; one

471

hundred and forty-four dollars within 90 days of this decision;
one hundred and forty-four dollars within 120 days of this
decision; and finally, $144 within 150 days of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Michael F. Johnson, Esq., Fife Coal Company, Incorporated, Post
Office Drawer 721, Pikeville, KY 41501 (Certified Mail)
I gl

472

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

MAR 291988
SECRETARY OF LABOR
MINE SAFETY AND HEAL'rH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 87-205
A. C. No. 15-14587-03528
Sterling No. 5 Mine

STERLING ENERGY, INCORPORATED,
Respondent
DECISION
Appearances:

Anne T. Knauff, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Petitioner;
Kenneth R. Krushenski, Esq., Rogers, Hurst &
Krushenski, LaFollette, Tennessee for Respondent.

Before:

Judge Weisberger

Statement of the Case
The Secretary (Petitioner) filed, on August 14, 1987, a
petition for assessment of civil penalty for an alleged violation
by Respondent of 30 C.F.R. § 75.319 on November 3, 1986. Pursuant to notice the case was heard in Knoxville, Tennessee, on
October 20, 1987. J. Preston Payne, Sr. testified for Petitioner
and Ralph Ball testified for Respondent.
Petitioner filed its Post Trial Memorandum on March 2, 1988,
and the Respondent filed its Hearing Brief and Proposed Findings
of Fact and Conclusions on February 1, 1988.
Issues
The issues are whether the Respondent violated 30 C.F.R.
§ 75.319, and if so, whether that violation was of such a nature

as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard, and whether the
alleged violation was the result of the Respondent's unwarrantable failure.
If section 75.319, supra, has been violated, it
will be necessary to determine the appropriate civil penalty to
be assessed in accordance with section llO(i) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et.~., (the
"Act").

473

Citation
Order No~ 2801008, issued on November 3, 1986, alleges a
significant and substantial violation in that:
Two 101 Jeffery continuous miners, 2-506 Bridge
carriers and a shuttle car were being used on the same
split of air, one miner and two bridge carriers were
being used on the 001 section and one miner and shuttle
car were being used three crosscuts from the face on
the return side.
Regulations
30 C.F.R. § 75.319 provides as follows:
Each mechanized mining section shall be ventilated with
a separate split of intake air directed by overcasts,
undercasts, or the equivalent, except an extension of
time, not in excess of 9 months, may be permitted by
the Secretary, under such conditions as he may prescribe, whenever he determines that this subsection
cannot be complied with on March 30, 1970.
30 C.F.R. § 75.319-1 provides as follows:
The term "mechanized mining section" means an area of a
mine in which coal is mined with one set of production
equipment, characterized in a conventional mining
section by a single loading machine, or in a continuous
mining section by a single continuous mining machine,
and which is comprised of a number of contiguous
working places. Specialized mining sections, such as
longwall mining sections, which utilize equipment other
than specified in this section, may, if approved by the
Coal Mine Safety District Manager, be ventilated by a
single split of air.
Findings of Fact and Conclusions of Law
I

On November 3, 1986, the 001 section of Respondent's
Sterling No. 5 Mine was ventilated with only one split of air.
One intake air entry ventilated the face and air from the face
was vented outby in a return air entry. The face area, which was
stipulated to be a working section, contained one continuous
miner, two bridge carriers, two roof bolters, and one scoop.
In
an area located three crosscuts outby the face there was located
a continuous miner, a roof bolter, and a shuttle car. It was
stipulated at the hearing that there was no power source on this

474

equipment and no power was hooked up to this equipment. However,
in an area three entries to the right of this equipment and in
the second crosscut outby the face there was located a power
center, and it was stipulated at the hearing that the AC outlet
was energized.
I find, based on the uncontradicted testimony of
J. Preston Payne, Sr., a MSHA Inspector, that a power cable was
in place and it would have taken approximately 15 minutes for one
worker to get power to the equipment. located in the area three
crosscuts outby the face.
Payne testified, in essence, that when he inspected the 001
section on November 3, 1986, he issued an order citing a violation
of 30 C.F.R. § 75.319. Section 75.319, supra, provides that each
"mechanized mining section" shall be ventilated with separate split
of intake air. Section 75.319-1, supra, provides that "The term
'mechanized mining section' means an area of a mine in which coal
is mined with one set of production equipment • • •
." This
section further provides that the set of production equipment in a
continuous mining section is characterized by "· • • a single
continuous mining machine and which is comprised of a number of
contiguous working places."
I find that the evidence clearly establishes that the 001
section, on the date in question, was ventilated with only one
split of intake air, but had one set of production equipment at
the face area and another separate set of production equipment in
an area three crosscut outby the face.
It is Respondent's position, in essence, that section 75.319, supra, is violated only if
there are two sets of mechanized mining section actively
operating and engaged in the mining of coal at the same time off
the same split of intake air. In this connection, Respondent
relies upon the testimony of 'its President, Ralph Ball, who
indicated that the equipment located in the area three crosscut
outby the face was "parked up" (Tr. 45, 64), and that coal from
that area had been removed before the 001 section was moved in.
He further indicated, in essence, that the equipment located
three crosscuts outby the face was never run the same time that
the equipment at the face was run.
In this connection, Payne had
indicated that when he made his inspection on November 3, the
equipment located in the area three crosscuts outby the face was
not working.
I find the interpretation of section 75.319, supra, and
75.319-1, supra, urged by the Respondent to be unduly restrictive.
The a~ea three crosscuts outby the face contained a set of production equipment and some coal had already been removed from that
area. Accordingly, I find that area to be denominated a mechanized mining section. In reaching this conclusion, I note that
although the equipment there was not energized, there was a cable
present, which could have been hooked up to the nearby power
center thus energizing the equipment.

475

II
The order in question alleges that the violation of section
75.319, supra, herein was "significant and substantial." However,
Petitioner has failed to adduce proof on this issue.
I therefore
find that Petitioner has failed in its burden and that the violation herein can not be considered to be significant and substantial.
III
Payne testified that in his opinion the violation herein was
caused by Respondent's unwarrantable failure, in that the equipment in the area three crosscuts outby the face could have been
used any time and that management knew its location.
In order to
sustain Petitioner's position I must find that the violation
herein resulted from Respondent's aggravated conduct which constitutes more than ordinary negligence (Emery Mining Corporation,
9 FMSHRC 1997, (December 1987)). Ball testified that, in essence,
it was his understanding that to be in violation of section 75.319,
supra, coal must be produced in two different areas in the same
split of air, and that it is not a violation to have two sets of
equipment as long as they are not being operated at the same time.
I find the testimony of Ball credible in this regard and evidencing
no bad faith on his part. Accordingly, I conclude that the
violation herein was not the result of any aggravated conduct on
the part of Respondent, as it resulted from his good faith interpretation of the controlling regulation. Hence, I conclude that
the violation was not caused by Respondent's unwarrantable failure.
IV
In assessing a violation herein, I note the history of
Respondent's violations as stipulated to at the hearing by the
Parties. Further, inasmuch as the evidence fails to establish
that the two mining sections, one at the face and the other three
crosscuts out by the face, were ever engaged in active mining of
coal at the same time, I conclude that the gravity of the violation herein was low. Further, inasmuch as the violation herein
was as a result of Respondent's interpretation of the controlling
regulation, and there was no evidence that this interpretation
was made in bad faith, I conclude that negligence herein was low.
Accordingly, taking these factors into account, as well as the
other factors in section llO(i) of the Federal Mine Safety and
Health Act of 1977, I conclude that a civil penalty herein of $50
is reasonable.

476

ORDER
It is ORDERED that Order No. 2801008 be modified to a Section
104(a) citation.
It is further ORDERED that Respondent pay the sum of $50,
within 30 days of this decision, as a civil penalty for the
violation found herein.

Avram Weisberger
Administrative Law Judge
Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, u. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Kenneth R. Krushenski, Esq., Rogers, Hurst & Krushenski, 210 West
Central Avenue, P. O. Box 1391, LaFollette, TN 37766 (Certified
Mail)
Mr. Ralph Ball, President, Sterling Energy, Incorporated, P. O.
Box 1528, LaFollette, 'rN 37766 (Certified Mail)
dcp

477

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

MAR 291988
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-122
A.C. 05-03455-03545

v.

Southfield Mine

ENERGY FUELS COAL, INC.,
Respondent
DECISION
Appearances:

James H. Barkley, Esq. and Susan Bissegger, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Petitioner;
Phillip D. Barber, Esq., Welborn, Dufford, Brown
and Tooley, Denver, Colorado,
for Respondent.

Before:

Judge Cetti
Statement of the Case

This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., (Mine
Act). The Secretary of Labor on behalf of the Mine Safety and
Health Administration, charges the operator of the Southfield
Mine with two violations of 30 C.F.R. § 75.701 mandatory mine
safety grounding standard.
This proceeding was initiated by the Secretary with the
filing of a proposal for assessment of civil penalties. The
operator filed a timely appeal contesting the existence of each
of the alleged violations and the amount of the proposed civil
penalties. Hearings were held on these issues on July 8 and 9,
1987 at Denver, Colorado before Administrative Law Judge Michael
A. Lasher, Jr., who later.entered an Order of Recusation.
This matter was reset for a hearing before me on March 22,
1988 at Denver, Colorado. Prior to that date the parties
filed a joint motion pursuant to Commission Rule 30, 29 C.F.R.
§ 2700.30, seeking approval of a settlement of the case.

478

Under the joint motion submitted by the parties, Responden~
agrees to use metal grounding straps on all metal couplings, including but riot limited to couplings between trailing cables and
power centers, and trailing cables and the equipment to which the
cables supply power. The two Citations, Nos. 2830956 and
2830957, as issued, charged the Respondent with two significant
and substantial violations of the grounding standard, § 75.701.
The Secretary agr~es to amend Citation No. 283-0956 and Citation
No. 2830957 to reflect that such Citations are non-significant
and substantial. The Secretary states that this amendment is
based on the fact that even though Respondent failed to have the
required grounding straps, the system used by Respondent provided
some limited grounding.
In return, Respondent withdraws its
contest to the Citations as amended and withdraws its contest to
the Secretary's proposed penalties of $68.00 for each of the
violations cited.
In support of the proposed settlement disposition of this
case, the parties further agree and stipulate that in the 24
months prior to the inspection, Respondent was inspected a total
of 12 days and has received 0 assessed violations; the coal mine
in question produces 313,099 tons of coal per year and employs
approximately 95 employees. Payment of the proposed penalties
will not impair the Respondent's ability to continue in business.
Conclusion
After careful review and consideration of the pleadings
and the evidence presented at the July 8 and 9, 1987 hearings,
I conclude and find that the proposed settlement disposition
is reasonable, appropriate, and in the public interest.
Accordingly, the motion of the parties to amend Citation No.
2830956 and Citation No. 2830957 and to permit Respondent to
withdraw its contest to the Citations as amended, is granted,
and the Settlement is approved.
ORDER
Respondent is ordered to pay civil penalties in the
settlement amount totaling $136.00 in satisfaction of Citation
No. 2830956 and Citation No. 2830957 within 40 days of the date
of this Decision and Order and, upon receipt of payment by the
Petitioner, this proceeding is dismissed.

~~

st F. Cetti
inistrative Law Judge

479

Distribution:
James H. Barkley, Esq. and Susan Bissegger, Esq., Offi~e of the
Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961
Stout Street, Denver, CO 80294 (Certified Mail)
Phillip D. Barber, Esq., Welborn, Dufford, Brown & Tooley, 1700
Broadway, Suite 1100, Denver, CO 80290-1199
(Certified Mail)

/ot

480

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

March 30, 1988

CONTEST PROCEEDING

PHELPS DODGE CORPORATION,
Contestant

Docket No. WEST 87-102-RM
Citation No. 2674914; 1/21/87

v.

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

Morenci Mine & Mill

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

CIVIL PENALTY PROCEEDING

Mine ID 02-00024

Docket No. WEST 88-51-M
A. C. No. 02-00024-05519

v.

Phelps Dodge Morenci Inc.

PHELPS DODGE CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

These proceedings are a petition for the assessment of a
civil penalty for the one violation involved and the related
notice of contest pr~ceeding.
On February 8, 1988, the parties submitted a motion for
settlement. The originally assessed amount was $6,000 and the
proposed settlement was for $3,000. On March 8, 1988, a lengthy
telephone conference call was held with both parties and the
Administrative Law Judge during which the case was discussed in
detail. Thereafter, the parties again conferred and on March 18,
1988 the parties submitted a new motion for settlement with a proposed settlement of $4,500. I have concluded the second motion
may be approved.
On January 21, 1987, MSHA conducted an investigation of a
·fatal mining accident that took place on the surface of the
Morenci Mine and Mill on January 16, 1987. The investigation
concluded that a haulage truck dumped too close to the edge of a
bank that had been undercut by a steam shovel. The bank col481

lapsed under the weight and the truck overturned down a 50 foot
bank. The driver was fatally injured. The subject citation
arose from this incident.
The parties motion discusses the violation in light of the
six statutory criteria set forth in section llO(i) of the Federal
Mine Safety and Health Act of 1977. The citation was issued for
a violation of 30 C.F.R. § 56.9055 because loads were not dumped
back from the edge of the bank when evidence suggests that the
ground may fail to support the weight of the vehicle. The
parties represent that a reduction from the original assessment
is warranted because negligence was less than originally assessed
in that the condition which contributed to the accident had
existed for a very short period of time. Additionally, the
operator was not wearing a seat belt at the time of the accident,
even though the operator instructed its employees to wear them at
all times. It appears that the operator did all it could with
respect to insuring the wearing of seat belts by its employees.
I accept the foregoing and representations and approve the
recommended settlement which I believe is sufficient to comport
with the purposes of the statute.
·
Accordingly, the joint motion to approve s~ttlement is
GRANTED and the operator is ORDERED TO PAY $4,500 within 30 days
of the date of this decision.
Based tipon the foregoing, the contest proceeding is hereby
DISMISSED.

,
Paul Merlin
Chief Administrative Law Judge
Distribution:
Stephen W. Pogson, Esq., G. Starr Rounds, Esq., Linda H. Miles,
Esq., Evans, Kitchel & Jenckes, P.C., 2600 North Central Avenue,
Phoenix, AZ· 85004 (Certified Mail)
Marshall P. Salzman, Esq., Office of the Solicitor, U. S. Department of Labor, 71 Stevenson Street, P. 0. Box 3495, San
Francisco, CA 94119-3495 (Certified Mail)
Lawrence Beeman, Director, Office of Assessments, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Handcarried)
/gl

482

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

MAR 301988
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 87-207-M
A. C. NO. 36-04243-05504

v.
Pocono Quarry & Plant
EUREKA STONE QUARRY, INC.,
Respondent
DECISION:
Appearances:

Evert H. VanWijk, Esq., Office of the Solicitor,
Department of Labor, Philadelphia, Pennsylvania,
for the Secretary;
John T. Kalita, Jr., Esq., Eureka Stone Quarry,
Chalfont, Pennsylvania, for the Respondent.

Before:

Judge Weisberger

On October 8, 1987, the Secretary (Petitioner} filed a
Petition for Assessment of Civil Penalty for an alleged violation
by the Respondent of 30 C.F.R. § 56.15005. Respondent filed its
Answer on November 23, 1987. Pursuant to notice, the case was
scheduled for hearing on December 17, 1987. On December 9., 1987,
Respondent requested an adjournment, in essence, alleging that he
had been unable to contact a respective witness as Respondent was
"in its winter shutdown." Respondent indicated that the Petitioner
did not have any objections to the request for an adjournment. The
case was adjourned, and subsequently rescheduled and heard in
Philadelphia, Pennsylvania, on January 19, 1988. Robert Carter
testified for the Petitioner, and James Cliff and Barry D. Lutz
testified for the Respondent.
Petitioner submitted a Prehearing Statement and Respondent
submitted a Pretrial Statement along with Proposed Findings of
Fact and Conclusions of Law. Subsequent to the hearing, Respondent
and Petitioner filed Proposed Findings of Facts and Memorandum of
Law on February 24 and February 29, 1988, respectively.
Stipulations
At the hearing, the Parties submitted the following stipulations:

483

1. The Pocono Quarry & Plant Mine is owned and
operated by Stone Quarry, Incorporated.
2. The Pocono Quarry & Plant'~ine is subject to the
provisions of the Federal Mine Safety and Health Act of
1977 •.
3. The Administrative Law Judge has jurisdiction over
this proceeding.
4. In the 2 year period before May 29, 1987, the
Pocono Quarry & Plant Mine had zero paid violations of
the standards contested in this case. The size of the
operator is that the Pocono Quarry & Plant Mine employs
approximately 120 employees. The annual production of
Eureka Stone Quarry is 304,903 tons; the annual production of the Pocono Quarry & Plant Mine is approximately
57,562 tons.
5.

The Respondent operates nine mines.

6. The authenticity of the exhibits offered at the
hearing is stipulated, but no stipulation is made as to
the facts asserted in such exhibits.
7. The subject Citation and Termination were properly
served by a duly authorized represen~ative of the
Secretary of Labor upon agents of Eureka Stone Quarry
as to dates, times, and places stated therein, and may
be admitted into evidence for the purpose of establishing their issuance but not for the truthfulness or
relevancy of any statements asserted therein.
8.

The condition was abated within the required time.

9. The imposition of a proposed penalty by the
Administrative Law Judge will not affect Respondent's
ability to continue in business. However, Respondent
does not stipulate to the appropriateness of the imposition of any penalty.
Issues
The issues are whether the Respondent violated 30 C.F.R.
§ 56.15005, and if so, whether the violation was of such a nature

as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard. If section 56.15005
has been violated, it will be necessary to determine the appro-

484

priate civil penalty to be assessed in accordance with section
llO(i) of the Federal Mine Safety and Health Act of 1977.
Regulations
30 C.F.R. § 56.15005 provides as follows: " Safety belts and
lines shall be worn when persons work where there is danger of
falling; • • •
"
Findings of Fact and Conclusions of Law

I.
Robert Carter, an inspector for the Mine Safety and Health
Administration, issued, on May 29, 1987, Citation No. 2851906
alleging a violation of 30 C.F.R. § 56.15005 which requires the
wearing of safety belts if a person is working "· o • where there
is danger of falling." In evaluating whether the following facts
establish a "danger of falling," I applied the test of " • • •
whether an informed, reasonably prudent person would recognize a
danger of falling warranting the wearing of safety belts and
lines." Secretary v. Great Western Electric Co., 5 FMSHRC 840,
842 (May 1983).
Carter testified that, on May 29, 1987, he observed
Respondent's driller, Barry D. Lutz, shoveling dirt on top of the
highwall at Respondent's Pocono Quarry at a distance of approximately 3 to 4 feet from the face. Lutz was not wearing either a
safety belt or a line at the time.
Carter testified, in essence, that there was a danger of
Lutz falling inasmuch as he could trip on "numerous" backbreaks
or cracks in the ground that were spread throughout the strata of
the highwall. Carter described these cracks as being
approximately 6 to 8 inches wide and up to approximately 1 foot
deep. In addition, according to Carter, if Lutz, working 3 to 4
feet of the highwall, would have fallen off the highwall by
losing his balance, he might have been fatally injured, as the
distance from the top of the highwall to the top of the muck pile
below was approximately 30 to 40 feet.
In contrast, James Cliff, Respondent's manager in charge of.
drilling and blasting, testified that, on the date in question,
there were no cracks on the highwall except those backbreaks
within a foot of the face. He also testified that the distance
from the highwall edge to the top of the muck pile was 15 feet at
most. He also.testified that when he observed Lutz, on May 29,
the latter was 5 or 6 feet away from the edge of the highwall.
He stated that he was of the opinion that, on May 29, Lutz was
not in any danger of falling. On cross examination Cliff indi-

485

cated that, on the date in question, there were cracks in the
ground, but not big enough for a foot to get stuck in and they
were all "filled in." (Tr. 58).
Barry D. Lutz indicated he did not perceive himself in danger
of falling on May 29, 1987, and that he felt comfortable being 4 to
5 feet from the edge. He was asked whether there were cracks
approximately 6 to 8 inches wide and he indicated that there were
not any in the area where he was working. He indicated, however,
that on May 29, he came within a couple of feet of the edge.
In reconciling the conflict between Carter and Respondent's
witnesses, with regard to the condition of the highwall, I have
given more weight to the version testified to by carter based
upon my observation of his demeanor. Further, I note that of the
three witnesses, Lutz would have the most knowledge of the actual
conditions at his work site.
In this connection, Lutz testified
that on May 29, he was within a couple of feet of the face at the
closest, and his testimony did not negate the existence of any
cracks. Also, Lutz's testimony did not contradict the opinion of
Carter with regard to the distance from the top of the highwall
to the muck pile. Accordingly~ I find that Lutz, in working
within a couple of feet of the face on a highwall surface with
cracks on it, was in danger of falling.
II.
In essence, Respondent's witnesses indicated, that in the
normal course of the drilling operation, a driller wearing a belt
would need a cable of approximately 25 feet to enable him to
perform all his tasks. It was further their testimony that
working attached to such a length of cable would be hazardous as
there would be a possibility of it getting tangled in the feet of
the driller causing the latter to fall. They indicated that
there was also a danger of the cable getting caught in the controls of the drill. It was the opinion of Lutz that the use of a
belt line could prevent him from getting away from any burst of
the high pressure lines. Lutz and Cliff also indicated that such
a cable length of 25 feet would not prevent the hazard of an
injury, as the distance from the top edge of the highwall to the
top of the muck pile is only approximately 15 feet.
Further,
they indicated that they have never seen a driller on a highwall
use a safety belt.
I find that Respondent has not established either that the
wearing of a safety belt is not feasible or that it would present
a greater hazard. In this connection, I note the distinct hazards
of not wearing a safety belt in proximity to the edge of the highwall as delineated in the testimony of Carter as discussed above,
infra. Further, I find, as agreed to by Cliff on cross-examina-

486

tion, (Tr. 60-61), that the hazards of a driller working with a 25
foot belt line can be obviated by having a smaller length belt line
that could be unsnapped when the driller has to move around the
drill away from the face. Also, I find that the evidence is
insufficient to conclude that tethering a belt line to the drill
would create a greater hazard than working in close proximity to
the edge without such a belt.
In essence, Respondent's witnesses, Cliff and Lutz, offered
their opinion that Lutz was not in any danger of falling, when he
was observed by Carter working without a safety belt.
In addition, Cliff had testified that the cracks in the ground, were not
big enough for a foot to get in and they were all filled in.
Lutz testified that there were not any 6 to 8 inch cracks in the
area that he was working. However, as discussed above, infra, I
have found, based upon the testimony of Carter, that, indeed, the
surface of the highwall near the edge did contain cracks.
In
this connection even Cliff indicated that there were backbreaks
within 1 foot of the face.
I thus find that due to the nature of
the surface 0£ the highwall that there was a danger of Lutz
falling.
Due to the proximity of Lutz to the edge of the highwall in the normal mining operation, I conclude that by not
wearing a saf~ty belt there was a reasonable likelihood of Lutz
tripping and falling over the edge. I find, based upon observations as to the d~neanor of Carter, that the distance from the
top of the highwall to the muck pile was approximately 40 feet.
Based on all the above, I conclude that Lutz, being without
a belt, in the condition observed by Carter, was in danger of
falling and this danger would be recognized by an informed reasonably prudent person (See, Great Western Co., supra). As such, I
find Respondent herein violated section 56.15005, supra.
In addition, as an~lyzed above, I conclude that the violation herein, of
Lutz not having a safety belt, contributed to a measure of danger
to safety with a reasonable likelihood that the hazard contributed to will result in a injury of a reasonably serious nature,
and as such the violation must be considered to be significant
and substantial.
(See, Mathies Coal Company, 6 FMSHRC 1 (January
1984)).
'
III.
For the reasons discussed above, infra, I conclude that the
gravity of the violation herein to be moderately serious. Further, the evidence establishes that Lutz was not provided· with a
safety belt, and I conclude, based on the testimony of Carter,
that Respondent should have known that working without a safety
belt, under the condition testified to by Carter, would have
subjected Lutz to a danger of falling.
Accordingly, I find that
Respondent, in violating section 56.15005, supra, was negligent

487

to a moderate degree. I also have considered the other factors
of section llOCi) of the Federal Mine Safety and Health Act of
1977, as stipulated to by the Parties. Based on all of the
above, I conclude that a fine of $126 is proper.
ORDER
It is ORDERED that the Respondent pay the sum of $126,
within 30 days of this Decision, as a Civil Penalty for the
violation found herein.

cc_~.
Avram Weisberger
Administrative Law Judge
Distribution:
Evert H. vanWijk, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
John T. Kalita, Jr., Esq., General Counsel, Eureka Stone Quarry,
Inc., Pickertown & Lower State Roads, P. O. Box 296, Chalfont, PA
18914 (Certified Mail)
dcp

,488

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

.March 10, 1988
DISCRIMINATION PROCEEDING

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

v.
BILL BRANCH COAL COMPANY,
INC.,
Respondent

.

Docket No. VA 87-21-D

.

Mine No. 8

.•.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JOEY F. HALE,
Complainant

NORT CD 87-5

DISCRIMINATION PROCEEDING
Docket No. VA 87-22-D
NORT CD 87-7

v.
Mine No. 8
BILL BRANCH COAL COMPANY,
INC.,
Respondent
ORDER
On February 24, 1988, Respondent, in a telephone call to the
undersigned, made a request to compel Petitioner to produce names
of certain witnesses pursuant to a written interrogatory. In
response to this request, on February 24, 1988, a telephone
conference call was arranged by the undersigned with attorneys
for both Parties. In this conference call the undersigned
requested that the Parties file by March 4, 1988, a memorandum
setting forth their position on the issues raised by Respondent's
request. Memorandum were filed on March 7, 1988.
It appears from Respondent's Memorandum that its request at
this point is for Petitioner to respond to the following
interrogatory:
"Please state the names, addresses and t~lephone
numbers of all witnesses interviewed by agents,
servants or employees of the government who were not
employees of the respondent, Bill Branch Coal
Corporation, at the time of their interview with said
agents, sub-agents, employees, etc."

489

Specifically, Respondent has indicated that it seeks "to
discern the identity of those individuals whom the Respondent now
claim 'over heard' certain statements or 'observed' certain
conduct which the Claimants now maintain subsequently cause the
Respondent to act in a way which would violate the Act." It
appears to be the Respondent's position that th~se individuals
cannot be classified as informers as they have not" • • •
furnished information to a government otficial relating to or
assisting in the government's investigation of a possible
violation of law, including a possible violation of the Mine Act."
(Secretary on behalf of George Roy Logan v. Bright Coal Company,
Inc. 6 FMSHRC 2520, 2525 (Nov. 1984)). I find, however, that an
individual is an informer if he provides information which is
corroborative or supportive of the Complainant's cause of action
and thus is in assistance of the government's investigation of a
possible violation of section 105 of the Federal Mine Safety and
Health Act of 1977.
(See, Logan, supra.) As set forth by the
Commission in Logan, supra at 2526, the Respondent herein has the
burden of proving the necessary facts " • • • to show that the
information is essential to a fair determination • • • .
" In
this connection, I note that in its Memorandum the Respondent has
merely alleged in general that its need to discover these
witnesses is essential to a fair determination, but has not set
forth any facts to establish its position. I therefore conclude
that the Respondent has not met its burden of establishing its
specific need for divulgence of names of informer witnesses to
the point that would outweigh the privilege granted in 29 C.F.R.
§ 2700.59.
Therefore, it is ORDERED that, within 7 days of this Order,
Petitioner serve upon the Respondent the names, addresses, and
telephone numbers of all its witnesses who are not miners.
It is further ORDERED that Petitioner, shall within 7 days
of this Order, file with the undersigned a statement containing
the names of all witnesses who are informers, and a statement
setting forth any facts Petitioner relies upon to establish the
informers' privilege for each of the witnesses alleged to be
informers. I shall then determine in a subsequent order those
witnesses, if any, who are not informers and whose names are to
be divulged to the Respondent.

£_~

Avram Weisberger
Administrative Law Judge
(703) 756-6210

490