November 1981
Commission Decisions
11-03-81
11-04-31
11-05-81
11-06·-81
11-06-81
11-06-81
11-06-81
11-12-81
11-13-81
11-24·-81

Kaiser Steel Corp,
Missouri Gravel Co.
Crescent Coal Co.
Knox County Stone Co., Inc.
Jim Walter Resources, Inc./Cowan & Co.
Cowan & Company, Inc.
Kerr-McGee Corp.
Mid-Continent Coal and Coke Co.
MSHA ex rel Johnny N. Chacon
Lone Star Industries, Inc.

DENV 75-163-P
LAKE 80-83-M
PIKE 77-71
DENV 79-359-PM
BARB 77-266-P
HOPE 76-210-P
CENT 79-156-M
DENV 76-83-P
WEST 79-349-DM
VA 80-67-M

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

2463
2470
2475
2478
2488
2493
2496
2502
2508
2526

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

2537
2540
2553
2554
2576
2578
2593
2597
2600
2603
2608
2614
2620
2625
2630
2637
2639
2643
2648
2663
2666
2670
2681
2709
2710
2721
2746

_Administrative La~ Judge Decisions
11-02-81
11-03-81
11-03-81
11-04-81
11-04-81
11-04-81
11-09-81
11-10-81
11-12-81
11-13-81
11-13-81
11-16-81
11-17-81
11-17-81
ll·-17-81
11-17-81
11-20-81
11-24-81
11-24-81
11-24-81
11-27-,81
11-2 7-81
11-27-81
11-27-81
11--30-81
11-30-81
11-30-81

San Miguel County
DENV 79-569-PM
United States Stee1 Corp.
PENN 81-111
Harman Mining Co.
VA 81-83
Basic Refractories
LAKE 79-32-M
Inverness Mining Co.
LAKE 81-45-M
Sewell Coal Co.
WEVA 79-31
Beckley Coal Mining Co.
WEVA 81-436-R
Kennedy Brothers Action Sand & Gravel
YORK 81-46-M
Beraldo Grijalva v. Oracle Ridge Mining
WEST 81-255-DM
William C. McClain v. Westmont Coal Co. Inc.PENN 81-162-D
Richard A. Douglas & Sons
YORK 81-23-M
Mathies Coal Co.
PENN 81-213-R
Frank Ornelas v. Phelps Dodge Corp.
CENT 80-249-DM
Southwestern Illinois Coal Corp.
LAKE 81-68
Rosalie Edwards v. AAron Mining, Inc.
WEST 80-441-DM
Consolidation Coal Co.
WEVA 81-341-R
A. Ferrante & Sons, Inc.
YORK 81-27-DM
Charles Harvey v. Howard Quarries
CENT 81-9-DM
SOL et al v. Emery Mining Corp.
WEST 80-489-D(A)&(B)
Bull Run Mining Co., Inc.
WEVA 81-550
Western Steel Corp. (ref. FMC Corp.)
WEST 81-132~RM
Peabody Coal Co. v. MSHA & UMWA
KENT 81-92-R
Carroll D. Tenney v, Eastern Associated Coal WEVA 80-279-D
Fancy Mining Co.
WEVA 80-730
Mulzer Crushed Stone Co,
LAKE 80-375-M
Old Dominion Power Co.
VA 81-40-R
UMWA ex rel Gary L. Shreve v. Consolidation WEVA 81-378-D

Commission Decisions

NOVEMBER
The following cases were Directed for Review during the month of November:
Secretary of Labor on behalf of S. Smith, T. Smith and P.Anderson v. Stafford
Construction Company, WEST 80-155-DM, etc. (Judge Morris, September 24, 1981).
Howard Mullins and UMWA v. Pocahontas Fuel Company, HOPE 75-680, IBMA 75-39,
IBMA 75-40 (Judge Moore, October 5, 1981).
Secretary of Labor on behalf of Milton Bailey v. Arkansas-Carbona Company, and
Michael W. Walker, CENT 81-13-D (Judge Laurenson, October 7, 1981).
Secretary of Labor v. Cleveland Cliffs Iron Company, LAKE 80-129-M (Judge Cook,
October 8, 1981).
Secretary of Labor v. Eastover Mining Company, KENT 80-141 (Judge Fauver,
Petition for Interlocutory Review of November 3, 1981 Order).
Secretary of Labor on behalf of Clarence Ball v. B & B Mining Company, Inc.,
Laurel Mountain Mining Company, Robert Esseks, Jada Blankenship, VA 80-128-D
(Judge Laurenson, October 19, 1981)
Maben Energy Corporation v. Secretary of Labor, MSHA,WEVA 79-447-R, etc. (Judge
Melick, October 21, 1981).
Secretary of Labor, MSHA on behalf of Bruce Edward Pratt v. River Hurricane
Coal Company, Inc., KENT 81-88-D (Judge Kennedy, October 19, 1981).
~~iew _was

Denied in the following cases during the month of November:

Secretary of Labor, MSHA v. Brown Brothers Sand Company, SE 81-24-·M (Judge
Koutras, September 28, 1981).
Secretary of Labor, MSHA v. Beckley Coal Mining Company, WEVA 79-465-R, etc.
(Judge Fauver, September 30, 1981).
Secretary of Labor, MSHA v. Southern Ohio Coal Company, LAKE 80-142 (Judge
Lasher, October 13, 1981).

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20000

November 3, 1981

MINING ENFORCEMENT AND
SAFETY ADMINISTRATION
(MESA),
Petitioner

Docket No. DENV 75-163·-P

v.
KAISER STEEL CORPORATION,
Respondent
DECISION
This appeal was pending before the Interior Department Board of
Mine Operations Appeals as of March 8, 1978.
Accordingly, it is before
the Commission for disposition. Section 301, Federal Mine Safety and
Health Amendments Act of 1977, 30 U.S. C. § 961.
Kaiser Steel Corporation (Kaiser) has appealed from a decision
assessing a civil penalty of $6,000.00 against it for a violation of
30 CFR § 75.509.1/ We have reviewed the record, briefs, and the proceedings below, and affirm the judge's decision. The contentions advanced
on this appeal were presented below, and in our view properly disposed
of by the judge.
This case was initiated under the Coal Mine Health and Safety Act
of 1969 (30 U.S.C. 801 et seq. (1976)(amended 1977)[the 1969 Act])
following the death of miner Gary J. Nichols, fatally injured on
February 27, 1973 while changing shearing wheel bits on the shearing
machine in Kaiser's Sunnyside No. 1 Mine. When the shearing machine
unexpectedly started up, the victim was crushed under the shearing wheel
before the power could be shut off and the wheel stopped.
On appeal Kaiser directs us to three main issues, the first of
which is whether this regulation can be properly applied to a bit changing operation.

_!/Section 75.509 provides: All power circuits and electric equipment
shall be deenergized before work is done on such circuits and equipment
except when necessary for trouble shooting or testing.

2463

81-11-3

Kaiser maintains that 75.509, a statutory standard, !:_/ is solely
designed to prevent electrical hazards to miners working on electrically
powered equipment, but was not intended to regulate mechanical maintenance
such as bit changing. It notes that 30 CFR 75.510 and 75.511 are also
taken verbatim from section 305(f) of the 1969 Act,l_/ and that this series
of statutorily derived regulations are directed toward the performance of
electrical work, not the mechanical procedure of bit changing. We agree
with the analysis of the judge below, however, and find that these regulations are not so restricted.

2/Section 305(f) provides: All power circuits and electric equipment shall
be deenergized before work is done on such circuits and equipment, except
when necessary for trouble shooting or testing. In addition, energized
trolley wires may be repaired only by a person trained to perform electrical
work and to maintain electrical equipment and the operator of such
mine shall require that such person wear approved and tested insulated
shoes and wireman's gloves. No electrical work shall be performed on
low-, medium-, or high-voltage distribution circuits or equipment,
except by a qualified person. Disconnecting devices shall be locked out
and suitably tagged by the persons who performed such work, except that,
in cases where locking out is not possible, such devices shall be opened
and suitably tagged by such persons. Locks or tags shall be removed only
by the persons who installed them or, if such persons are unavailable,
by persons authorized by the operator or his agent.
]_/30 CFR 75.510 and 30 CFR 75.511 provide:
30 CFR 75.510 - Energized trolley wires may be repaired only by a
person trained to perform electrical work and to maintain electrical
equipment and the operator of a mine shall require that such person wear
approved and tested insulated shoes and wireman's gloves.
30 CFR 75.511 - No electrical work shall be performed on low-, medium-,
or high-voltage distribution circuits or equipment, except by a qualified
person or by a person trained to perform electrical work and to maintain
electrical equipment under the direct supervision of a qualified person.
Disconnecting devices shall be locked out and suitably tagged by the
persons who perform such work, except that, in cases where locking out
is not possible, such devices shall be opened and suitably tagged by such
persons. Locks or tags shall be removed only by the persons who installed
them, or, if such persons are unavailable, by persons authorized by the
operator or his agent.

2464

Kaiser points to the adoption four days before this accident of a
new regulation (30 CFR 75.1725) which better covers the function of bit
changing.4/ In August 1973, six months after this fatal accident,
Petitioner's Manual 5/ was changed to reflect adoption of this new
regulation, and that-bit changing was now under 75.1725, not 75.509.
Accordingly, Kaiser avers that the only connection between 75.509 and
bit changing is a result of the strained interpretation in MESA's
(September 1972) Safety Inspection Manual.&_/
However, the relevant Manual language under both 75.1725 and 75.509
is identical. Further, Kaiser concedes that "this standard (75.1725) by
itself, still does not expressly regulate this procedure." As Kaiser-correctly--notes the Manual is in any event not to be given the force of
law, since not promulgated as if it were a regulation under the Act.
We have no quarrel with this contention, although the implication that
MESA is bound by the Manual, even though the operator is not, is not
persuasive, especially since no reliance on the Manual is claimed by the
operator. See Kaiser Steel, 3 IBMA 489 (498) (1974). However, neither
30 CFR 75.509 nor 30 CFR 75.1725 make reference to bit changing, and no
reason appears from the language of either why one is to be pref erred to
the other in the regulating of this mining function. See also Bell Coal
Coal Company, Inc., 5 IBMA 155 (1975), and the judge's discussion
thereof below at pages 7 and 8.
Parsing the language of Section 305 of the Act lends further support
to this statutory regulation's applicability in this case. Indeed,
Section 305 (which is headed "Electrical - General") regulates (e.g.)
"handheld electric drills, blower and exhaust fans, electric pumps, and
other low horsepower electric face equipment." This would appear intended
to enumerate more inclusively the electric equipment to be regulated by
this section of the Act, rather than to restrict its application to only
more conventionally 'electrical' equipment, as urged by Kaiser.

!!_/30 CFR 75.1725(c) and 75.1725(d) provide:

75.1725(c) - Repairs or maintenance shall not be performed on machinery
until the power is off and the machinery is blocked against motion, except
where machinery motion is necessary to make adjustments.
75.1725(d) - Machinery shall not be lubricated manually while in
motion unless equipped with extended fittings or cups.
5/United States Department of the Interior, Bureau of Mines, Coal Mine
Safety Inspection Manual for Underground Mines.
6/The Manual provided: Opening a circuit breaker which is installed on
the machine and which opens all power conductors entering the machine
shall be accepted as compliance with this section for lubrication or
changing bits. {Exhibit P-7].

2465

To hold that this machine, powered by both a 950 volt operating
circuit and a 120 volt control circuit, is not electric equipment, would
permit maintenance to be performed on this shearing machine--and undoubtedly
a great many other electrically powered mining machines--without requiring
that these be deenergized, despite all parties' agreement that maintaining
power to the machine here involved during bit changing would be unsafe.z/
For, as was noted below:
"As pointed out by MESA, section 75.509 by its
terms refers to "electric equipment" as well as
"power circuits". It does not unduly strain the
regulatory language to classify a shearing machine
powered by a 950-volt trailing cable as a piece of
electrical equipment."
As the judge, and for similar reasons, we have little, if any,
difficulty applying 30 CFR 75.509 to this bit changing operation.
It is also asserted that "shall be deenergized" in 30 C.F.R. 75.509
is ambiguous since the standard fails to define deenergize, and the
circumstances under which equipment is to be deenergized. We reject
this argument; on this record it is clear that deenergize was understood
by the miners, including two of Kaiser's own employee-witnesses. And see
the judge's decision, pages 9-12.
Kaiser next contends that even if 30 CFR 75.509 is found to be
applicable, a question exists as whether there was sufficient evidence
presented to establish a violation of the standard.
The analysis of the judge below in our view simply and correctly
summarizes the record. The evidence adduced at the hearing showed that
turning off the power disconnect switch on the machine was (at that
time) considered sufficient compliance with the standard. However,
Kaiser suggests that the accident could have resulted from the operator
"jogging" or "goosing" the wheel by turning on the power disconnect
switch, rather than the power disconnect switch being on during the (entire)
course of the bit changing operation.

7/As to the disagreement as to how deenergization is to be accomplished,
more specifically the point at which the power is to be disconnected,
see infra, page 5.

2466

The parties agree that there was power going to the shearing machine
wheel at the time of the accident, the machine was in gear, and that rotation of that wheel killed miner Nichols while he was engaged in changing
bits on the machine. Whether or not one agrees with Kaiser's view of
the manner in which or place where this machine is to be deenergized,_§_/
it is indisputable that power was coming to the machine, more precisely
to the shearing wheel, at the time the miner was killed. We therefore
hold that the judge below correctly found that there was sufficient
evidence that the machine was not deenergized within the meaning of the
regulation, and that the standard was accordingly violated.
As the judge found:
"The evidence demonstrat(ls (1) that there was an
established procedure known to the operator for
ensuring that the shearing machine not start up
during the bit changing procedure, and (2) that
the accident under consideration here would not
have occurred unless the procedure was violated,"
There is substantial record evidence in support of that finding.
Nor was any testimony adduced which indicated that the machine itself
was in any way defective; indeed, the post-accident investigation found
no defects, either electrical or mechanical.
Finally~ we find that the judge's decision was based on reliable,
probative and substantial evidence, contrary to the contention of Appellant.

Kaiser has asserted that two out-of-court statements, admitted into
evidence at the hearing but thereafter rejected by the judge as a basis
for any findings, actually played a key role in leading the judge below
to his decision. Scrutiny of that decision reveals no support for
this contention.
Appellant also raises objection to the Petitioner's accident
investigation report prepared by the inspectors who largely conducted
the post-accident investigation. It is sufficient to note that this
report (Exhibit P-3) was received into evidence without objection by
Kaiser, and provides ample support for the decision rendered.

8/If the power had been disconnected externally, by disconnecting the cable
at the headgate outside the machine, obviously there would have been no
power to either the 120 volt control or 950 volt circuits. However, the
nature of the occurrence in this instance make it clear that there was
power coming both through the control circuit on the machine--even if
arguably in conformity with procedure approved by both MESA and Kaiser-and to the 950 volt circuit (which is activated only by and after the control
circuit is energized). Whether this was inadvertent or not, without this
power the wheel would not have rotated, and the miner would not have died.
Nor, we note parenthetically, was any testimony presented as to why the
shearing machine was not moved clear of the mine face, roof or walls
before bit changing was begun.

2467

In summary, we find that 30 CFR 75.509 is applicable to these facts,
that there was an established procedure, known to the operator, for insuring that the shearing machine not start-up during the bit changing
procedure, and that the accident under consideration here could not have
occurred unless that procedure was violated. Kaiser's own witnesses
testified to the effect that the power was on and the clutch engaged at
the time of the accident and death of miner Nichols.
We further find that the judge, having determined that a violation
of this mandatory statutory standard occurred, complied with section
109(a) of the Act in analyzing the factors required to be considered in
determining the amount which he assessed as a penalty.
The decision of the administrative law judge is affirmed.

2468

Distribution
Michael T, Heenan, Esq.
Smith, Heenan, Althen & Zanoli
1800 M Street, N.W.
Washington, D.C. 20036
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
David B. Reeves, Esq.
Kaiser Steel Corporation
P.O. Box 217
Fontana, California 92335

2469

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

November 4, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. LAKE 80-83-M

MISSOURI GRAVEL COMPANY
DECISION
This civil penalty proceeding arises under section 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 ~~·
(Supp. III 1979). The administrative law judge, in a summary decision,
concluded that the "undisputed" facts of record did not establish
violations of 30 CFR §56.14-1 as alleged by the Secretary of Labor. 1./
For the reasons set forth below, we find the judge erred.
Five citations, each of which alleged a failure to guard a tail or
drive pulley, were issued to Missouri Gravel. After the Secretary filed
a penalty proposal for the violations, Missouri Gravel answered, denying
that the conditions for which the citations were issued violated the
standard. The administrative law judge issued a pretrial order, that
among other things, required Missouri Gravel to submit a specific
statement as to why it contested each alleged violation. Missouri
Gravel responded asserting that the pulleys were in compliance with the
standard in that two were guarded by reason of their location, three
were guarded by various barriers (e.g., chain, pipe or angle iron), and
that access to the pulleys was restricted in varying degrees. Moreover,
it argued that no employee would normally be exposed to the pulleys
except, in some instances, for maintenance work at which time the
pulleys would not be operating.
The judge issued an order reciting Missouri Gravel's defenses and
ordering the Secretary to provide a detailed factual statement as to his
agreement or disagreement. The Secretary responded with respect to each
citation. In general he asserted that the pulleys were not guarded by
their location or by the barriers because, in each instance, employees
traveled or worked in the vicinity of the pulleys and could be caught
and injured in them, although the allegations concerning the details of
employee exposure and the likelihood of injury varied with respect to
each citation.

1./

30 C.F.R. §56.14-l·provides:
Mandatory. Gears; sprockets; chains; drive, head, tail,and
takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets;
and similar exposed moving machine parts which may be contacted by
persons, and which may cause injury to persons, shall be guarded.

2470

81-11-4

A document styled "Tentative Decision" was then issued by the judge
in which he·stated that, based upon "an independent evaluation and de
novo review of the parties' prehearing submissions", he found "no genuine
dispute as to any of the material facts." He further found that none of
the charged violations presented "any reasonably recognizable hazard of
injury to any normally prudent employee exercising reasonable care in
the performance of assigned duties." He ordered the parties to show
cause why the "tentative decision" should not be adopted as a final
decision. In response, the Secretary asserted that the cited conditions
constituted violations of section 56.14-1 because the equipment was
unguarded and miners were exposed to unguarded moving parts. The
Secretary further stated that the frequency of the exposure relates
to the gravity of the violation for penalty purposes, rather than to the
question of whether a violation exists.
On July 8, 1980, the judge issued a final decision "adopting and
confirming" his "tentative decision". The judge stated that the Secretary had "failed to contest my tentative finding that there was no
genuine dispute as to any of the facts material to the five failure to
guard violations.ii Therefore, he concluded, an evidentiary hearing was
not necessary and summary decision should be entered. The judge stated
"the undisputed facts show each of the locations cited is so inaccessible,
it is highly improbable that in the course of his work duties any
normally prudent employee is likely to come into contact with these
moving machine parts." He then dismissed the Secretary's proposal for a
penalty.
Summary decision is an extraordinary procedure. If used improperly
it denies litigants their right to be heard. Under our rules, a party
must move for summary decision ];_/ and it may be entered only when there
is no genuine issue as to any material fact and when the party in whose
favor it is entered is entitled to it as a matter of law. 29 C. F. R.
§2700.64(a), (b). The judge found no genuine dispute as to any material
fact. We disagree. The standard requires guarding of moving machine
parts "which may be contacted by persons, and which may cause injury to
persons." As the following recitation of the parties' pretrial submissions makes clear, a genuine dispute as to the potential for contact
and injury exists,
Citation No. 362881 alleged the oversized belt conveyor tail pulley
was not guarded on its west side. Missouri Gravel asserted the pulley
was guarded by its very location in that the pinch point was located at
the bottom of the pulley and was accessible only by crawling on hands
and knees. It stated that this had to be done only for maintenance
purposes at which time the conveyor would not be operating. It asserted
no worker was generally stationed in the area and that the pulley was
not in a regularly traveled way.
The Secretary disagreed with Missouri
Gravel's assertion that the pulley was not in a regularly traveled way.
Moreover, the Secretary asserted the pulley was not guarded by reason of
its location because it had "points with exposed ends which could be
reached by persons close to the tail pulley by only moving their feet
and touching the points." The Secretary also stated the pulley could
"catch the clothes of persons standing close to it." He alleged that
the operator of the equipment, with the help of labor personnel, cleaned

2:_!

Here neither party moved for summary decision. The judge invoked
the procedure on his own. While there is some authority in the federal
courts that the analogous federal rule of civil procedure permits summary decision without a specific motion, we believe that in our proceedings,
except in the most exceptional circumstances, it should not occur. See 6
Moore's Federal Practice §56.12 (2d ed. 1976)(Supp. 1980-81): As this
case illustrates, it can all too easily lead to an ar~itrary and erroneous
decision.

2471

the equipment and "regularly walked and stood sufficiently close to the
pinch point to be subject to injuries." The Secretary listed several
other functions which caused the operator of the equipment and other
labor personnel to stand "regularly close to the pinch point," and he
asserted the functions are "usually performed while the equipment is in
operation."
Citation No. 362882 alleged that a self cleaning tail pulley on a
log washer belt conveyor was not guarded. Missouri Gravel stated the
pulley was guarded by its very location in that it was not located on a
regular travelway. It asserted the pulley was not in an area where
workmen would be stationed during normal operations and that the pulley
was several feet above the ground. The Secretary did not agree that the
pulley was properly guarded by reason of its very location. He also
disagreed it was not on or near a normal travelway. He asserted that
the operator of the equipment and labor personnel were required to
regularly move under and regularly stand under the pulley to oil it, to
put antifreeze on it, to check its alignment and to work under it with
shovels. These persons, he asserted, "could be injured by moving their
hands or heads close to the pulley."
Citation No. 362887 alleged the ballast conveyor drive pulley was
not guarded. Missouri Gravel asserted that a chain barrier, which was
located approximately 2 feet from the pulley, and a warning sign properly
guarded the pulley. It stated that the only time a person would be in
the area would be far maintenance purposes and that the conveyor would
not then be operating. The Secretary responded that a person could be
caught in the pulley by reaching a hand over the chain barrier or by
walking under or over the chain. He stated that "[t]he operator of the
equipment, labor personnel working with him and maintenance personnel
regularly moved or stood close to the pinch point.'' He asserted these
personnel could go sufficiently close to the pulley to be injured for
several reasons and that when they did go that close "the conveyor
usually was in operation."
Citation No. 362889 alleged that a dewatering screen drive pulley
was not guarded. Missouri Gravel asserted the pulley was "adequately
guarded" by a pipe barrier which had to be turned or lifted to reach the
pulley area. It also asserted that only maintenance personnel would go
into that area for maintenance purposes or to check the oil gauge and at
those times the conveyor drive would not be operating. The Secretary
asserted the pipe was not a guard because "it could be removed by anybody walking in the area." He also asserted that the operator of the
equipment, labor personnel working with the operator and maintenance
personnel "were in the area and walked close to the pinch point for
several reasons."
Citation No. 367379 alleged the drive pulley for the main incline
belt was not guarded and that a start switch for the belt was 1-1/2 feet
from the bottom of the pulley. Missouri Gravel asserted the pulley was
guarded by an angle iron barrier and that the pinch point of the pulley
was 3 feet 9 inches from the barrier. It also asserted the pulley was

2472

"not located in a normal travel way area and that the only reason for
access to the area would be for maintenance of the pulley, at which time
the conveyor would not be operating." The Secretary asserted the opera~
tor of the equipment, labor personnel working with the operator or
maintenance personnel "walked or stood close to the pinch point." He
also stated that "a person could [be] caught in the pinch point by
leaning over the barrier to shut off the power."
In light of the above, we conclude that the record establishes
unresolved disputes concerning whether persons may contact these moving
machine parts and be injured thereby. We find these disputes to be
material. In entering summary decision for Missouri Gravel, the judge
was trying issues of fact through the summary decision procedure. This
he cannot do. Accordingly, summary decision was improperly entered. ]_/
We reverse and remand for further proceedings consistent with this
opinion.

Nease, Commissioner

]_/
In view of our determination that the judge erred in finding there
were no material facts in dispute, at this time we do not reach the
issue of whether, as a matter of law, the judge properly interpreted
and applied the standard.

2473

Distribution
Michael McCord, Esq.
Debra Feuer, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
James A. Burstein, Esq.
Chadwell. Kayser, Ruggles, McGee & Hastings, Ltd.
8500 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
Administrative Law Judge Joseph Kennedy
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2474

AND

EAL TH REVIEW COMMISSION

1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

November 5, 1981

VICTOR McCOY,
Comp lain ant
Docket No. PIKE 77·-71

v.
CRESCENT COAL COMPANY,
Respondent
ORDER

On May 10, 1977, Victor McCoy filed a complaint of discrimination
against Crescent Coal Company under section llO(b) of the Federal Coal
Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et.~·· (1976 and
Supp. I 1977) alleging he was discharged by Crescent on April 22, 1977
for refusing to ride an unsafe belt line into Crescent's mine. On
September 28, 1981, the judge issued his decision finding that McCoy was
discharged on April 22, 1977 in violation of section llO(b) of the Coal
Mine Health and Safety Act of 1969; ordered respondent to pay back pay
and attorney fees; ordered the parties to advise him in writing by
October 15, 1981, whether they had agreed on the amounts of back pay
and attorney fees; suggested that further proceedings may be necessary
if the parties could not reach an agreement and retained jurisdiction
for the purpose of determining the proper award.
Crescent filed its petition for discretionary review on October 28 1
1981 raising questions of law and fact relating to the judge's decision.
On November 3, 1981 complainant filed a motion to dismiss Crescent's
petition as being premature.
In Gerald D. Boone v. Rebel Coal Company, 3 FMSHRC 1900 (Aug. 6, 1981)
and !~ouncil of Southern Mountains, Inc:,. v. Jiartj,n County Coal ~orporation,
2 FMSHRC 3216 (Nov. 12, 1980) the Commission considered situations
analogous to the instant and concluded that failure to resolve monetary
awards did not constitute a final disposition by the judge to initiate
the running of the statutory review periods under section 113 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et. se_.9...
(Supp. II 1978). In those cases the petitions for review weredismissed
as premature. The reasoning and decisions in those cases are applicable
to this proceeding.

81-11-5

2475

Accordingly, complainant's motion to dismiss is granted and the
petition for discretionary review filed by Crescent Coal Company is
dismissed as premature. The parties may file petitions for discretionary
review in accordance with section 113 of the Federal Mine Safety and
Health Act of 1977 and Commission Rule 70 (29 C.F.R.2700.70) once the
judge has made his final disposition of this proceeding.

2476

Distribution
David C. Stratton, Esq.
Stratton, May & Hays, PSC
P.O. Drawer 851
Pikeville, Kentucky 41501
Stephen Sanders, Esq.
Appalachian Research & Defense Fund of KY
P.O. Box 152
Prestonsburg, Kentucky 41653
Chief Administrative Law Judge
James A. Broderick
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

247?

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

November 6, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. DENV 79-359-PM

v.
KNOX COUNTY STONE COMPANY, INC.
DECISION
This penalty case arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. §801 ~~· (Supp. III 1979). The question
before us is whether the judge abused his discretion by disapproving the
parties' proposed penalty settlement and summarily assessing a $500
penalty. For the reasons that follow, we vacate the judge's decision
and approve the parties' settlement. Due to information disclosed
during this review, we also find it necessary to address the subject of
ex parte communications between judges and parties.
On October 12, 1978, an MSHA inspector issued Knox County Stone
Company a citation for an alleged violation of 30 CFR §56.11-2, l/
when he observed a catwalk railing torn loose from its foundations.
On February 22, 1979, the Secretary petitioned for assessment of a
$40 civil penalty for the alleged catwalk violation. On March 23, 1979, Knox
County answered the petition, admitting the violation, contesting the
amount of penalty assessed, and requesting a hearing.
On April 24, 1979, the judge issued to the parties a notice of
hearing and pretrial order requiring in two phased responses extensive
information relevant to the six penalty criteria specified in section
110(1) of the Mine Act. By June 11, when the last response was filed,
the parties had significantly narrowed the issues. The only major
point in dispute between the parties was the appropriate penalty weight
to be assigned for operator size. On June 13, 1979, the judge noticed
the hearing for June 29, 1979, in Arlington, Virginia.
On June 26, 1979, Knox County filed a Motion to Dismiss Proceeding
and to Approve Settlement. The motion stated that $36, rather than the
originally proposed $40, would be the appropriate penalty amount, based
on an agreed reduction of penalty points for operator size. Also on
June 26th, the parties jointly moved for a continuance pending disposition of the dismissal motion and, in the event a hearing was required,
for transfer of the hearing site to Kansas City, Missouri. On June 27,

1./

Section 56.11-2 provides:
Mandatory. Crossovers, elevated walkways, elevated ramps,
and stairways shall be of substantial construction provided with
handrails, and maintained in good condition. Where necessary,toeboards shall be provided.

2478

81-11-7

1979, the judge denied the transfer request and continued the hearing.
The Secretary subsequently filed a response concurring in Knox County's
dismissal motion, including reduction of penalty points for operator
size. On July 23, 1979, without having held a hearing, the judge issued
his Decision and Order on Motions to Approve Settlement,
The judge disapproved the settlement proposal "because on the basis
of an independent evaluation and d~ novo review of the circumstances the
presiding judge is not persuaded that the penalty proposed will deter
future violations and insure voluntary compliance.'' Finding
that there were no genuine issues of material fact, the judge concluded
that "due process [did] not require an evidentiary hearing to resolve
[the] dispute."
In effect, the judge treated Knox County's settlement approval motion as a summary judgment motion.
On the basis of the parties' pleadings, the pretrial submissions,
and the inspector's violation "statement," the judge made the following
findings relevant to the six penalty criteria: the violation was admitted;
there was no past history of violations; regarding Knox County's size,
its annual sales volume was approximately $1,000,000; the judge accepted
Knox County's concession that a "low degree of negligence" was involved
in the violation; "it [was] not claimed" that the assessment of any
penalty found warranted would impair Knox County's ability to continue
in business; regarding gravity, the violation was "serious" because
according to the "undisputed findings" in the inspector's violation
"statement," a fall from the catwalk, while "improbable, 11 would
"probably result" in disabling injury i f it did occur; and i t was
conceded by the Secretary that compliance was "rapid." Based on
these findings, the judge concluded that $500 was the penalty "appropriate
to the size of the respondent and,,, best calculated to deter future
violations and insure voluntary compliance,"
Knox County's Petition for Discretionary Review ("PDR") raises two
major issues: (1) whether the judge properly rejected the proposed
penalty settlement, and (2) whether his sunnnary assessment of the $.500
penalty was proper. The Secretary filed a brief in support of the PDR.
Because the judge's summary assessment of the $.500 penalty was predicated
on his rejection of the proposed $36 penalty, we first consider whether
he properly rejected the settlement.
We initially summarize the general principles relevant to this
issue. Section llO(k) of the Mine Act ]j directs the Commission and
its judges to protect the public interest by ensuring that all settlements of contested penalties are consistent with the Mine Act's
objectives, Co-op Mining Co,, 2 FMSHRC 3475, 3475-76 (1980).
The
judges' front line oversight of the settlement process is an adjudicative
function that necessarily involves wide discretion. While the scope of
this discretion may elude detailed description, it is not unlimited and
at least some of its outer boundaries are clear.

J::j

In relevant part, section llO(k) provides:
No proposal penalty which has been contested before the
Commission ... shall be compromised, mitigated, or settled
except with the approval of the Commission.

2479

The text of section llO(k) requires us to reject the notion lurking
in Knox County's brief that Commission judges are bound to endorse all
proposed settlements of contested penalties. Co-op Mining Co., supra.
However, settlements are not in disfavor under the Mine Act, and a judge
is not free to reject them arbitrarily. Our standards for decision and
review in settlement cases are consistent with these "outer boundaries."
Commission Rule 30(c), 29 CFR §2700.30(c)(amended 1980), provides
that the judge's order "approving a proposed settlement shall set forth
the reasons for approval and shall be fully supported by the record.'' 11
Similarly, in Davis Coal Co., 2 FMSHRC 619 (1980), the Commission affirmed
several settlement approvals where the judges "considered the reasons
for the proposed settlements and weighed the [statutory penalty]
criteria .... " !:±._/ Although neither Rule 30(c) nor Davis Coal directly
addresses the roles of the judge and the Commission where proposed
settlements are rejected, the decisional and review standards relevant
to settlement approval apply equally to these cases. Rejections, as
well as approvals, should be based on principled reasons. Therefore, we
held that if a judge's settlement approval or rejection is "fully
supported" by the record before him, is consistent with the statutory
penalty criteria, and is not otherwise improper, it will not be disturbed. In reviewing such cases, abuses of discretion or plain errors
are not immune from reversal. Co-op Mining Co., 2 FMSHRC at 3475-76
(rev'g a judge's approval of a penalty settlement where the record
disclosed no underlying violation); Cf. Mettiki Coal Corp., (No.
YORK 80-140, October 16, 1981) (rev'g-judge's rejection of Secretary's
dismissal motion premised on full payment of proposed penalty).
In light of the foregoing general principles, we turn to the propriety of the judge's rejection of the proposed pen~lty settlement. The
judge's rejection of the settlement turned on his determination that the
proposed penalty would not "deter future violations and insure voluntary
compliance." The judge did not explain the reasons for this conclusion
in any detail. He indicated, however, that a fall from the catwalk,
"while improbable," would probably result in a disabling injury, and
commented that his substituted $500 penalty.was "appropriate to the
size" of Knox County--thereby implying that a $36 penalty was not.

]j

Rule 30(c) was revised in 1980 to delete the requirement, which was
in effect when this.case was decided, that the judge "consider" and
"discuss" the six statutory penalty criteria in orders approving settlements. As the Federal Register commentary accompanying the amendment
makes clear, the only purpose of the revision was "enhance[ment]" of the
"flexibility of the judges to approve the settlements ...• " 45 Fed. Reg.
!1L1, 301-302 (1980).
The amended rule permits judges to issue simpler and
briefer settlement decisions, free from the burden of separately discussing each of th.e penalty criteria. The amendment does not sanction
settlement decisions inconsistent with the statutory penalty criteria.
!:±._/ In the analogous context of reviewing a judge's penalty assessments
in a contested case, we refused to disturb penalty assessments "based on
the evidence in the record and [on] correct consideration of the statutory
criteria .... " Shamrock Coal Co., 1 FMSHRC 469 (1979).

2480

We conclude that the judge's rejection of the settlement is not
"fully supported" by the record and is inconsistent with the penalty
criteria. As a threshold matter, the proposed $36 penalty is not
offensive in principle. When the Mine Act was enacted, there was a
justified congressional concern over the general pattern of low penalties
under the 1969 Coal Act. S. Rep. No. 95-181, 95th Cong., 1st Sess. <U-5
(1977), reprinted in Subcommittee on Labor, Comm. on Human Resources,
Legislative History of the Federal Mine Safety and Health Act of 1977,
at 629-33 (1978). However, this concern was not a prospective condemnation of low penalties or minor compromises in every case that might
arise under the new statute. Relatively minor or technical violations
of the Mine Act can, and with some frequency, do occur. As the Commission recently stated: "If it is found in a given case that a low penalty
is warranted, a low penalty may, of course, be assessed." Tazco, Inc.,
3 FMSHRC 1985, 1989 (1981). The record and penalty criteria support the
penalty agreed to by the parties.
As the judge recognized, the pleadings and pretrial submissions
show that Knox County had no history of violations and engaged in rapid
compliance once cited. The inspector's violation "statement," on which
the judge based his gravity findings, indicated that the risk of fall
from the catwalk was "improbable." While we do not dispute the judge's
findings concerning the other criteria, we think that a $36 penalty is
reasonable and appropriate for a rapidly corrected first violation
posing only improbable risk of harm. Similarly, we do not view the $4
difference between the originally proposed penalty and the one agreed to
in settlement as the kind of excessive compromise criticized by Congress.
The judge's conclusion that $36 was insufficient for deterrence purposes
is not, as noted, above, explained in detail. In short, we think that
rejection of this proposed settlement unnecessarily impugns the settle-·
ment process and represents zealous, ra~her than wise, enforcement of
the Mine Act.
Accordingly, we reverse the judge's rejection of the proposed
penalty in the settlement motion. Ordinarily, we would remand a case in
this posture for further proceedings. However, because this case involves
a small penalty sum and has been on the Commission's docket for some
time, and because we believe that the $36 penalty proposed penalty is
appropriate, we hereby approve the parties' settlement motion. Cf.
Consolo v. FMC, 383 U.S. 607, 621 (1965) (approving disposition at the
appellate level, rather than the ordinary course at remand, where a case
has been pending for sometime and the relevant legal principles are "not
hard to apply").
While the preceding disposition dictates reversal of the judge's
summarily assessed $500 penalty, we also note that the judge's treatment
of Knox County's settlement motion was a form of sua sponte summary j udg·ment, an extraordinary procedure not authorized by our rules. In ~issoulJ:_
Gravel Coal Co. (No. LAKE 80-83-M, November 4, 1981) we disapproved of
sua sponte summary judgment in general, and we reject the judge's use of
it here as well. As we recently observed, "if a judge disagrees with a
stipulated penalty amount in a settlement, he is free to reject the
settlement and direct the matter for hearing." Tazco Inc., 3 FMSHRC at

2481

1898. Accordingly, we also vacate the judge's summary assessment of the
$500 penalty. 5/
In sum, for the foregoing reasons, we vacate the judge's rejection
of the parties' settlement motion and his summary assessment of a $500
penalty, and approve the parties' motion for a $36 penalty in settlement
of the case. §_/ As we noted at the outset, this case also requires us
to discuss ex parte communications. Although the following discussion
is necessitated by information disclosed during review, we emphasize
that it is extrinsic to the matters on review.
In support of contentions that the judge was biased and had prejudged the case (issues not necessary to resolve at this point (see n.
6)), Knox County alleged in its PDR that on June 20 and July 3, 1979,
its principal counsel had telephone conversations with the judge regarding the case. That counsel's affidavit concerning the conversations was
attached to the petition. The alleged conversations occurred prior to
the judge's decision--the first after the judge's notice of hearing and
last pre-trial submission but prior to the motion to approve settlement,
and the second after the settlement motion. Knox County stated that the
conversations were "initiated" by the judge or "persons in his office."
On September 6, shortly after the Commission directed this case for
review, the judge filed his own affidavit with the Commission. The
judge stated that he had read Knox County's counsel's affidavit, and
acknowledged that he had spoken with him on June 20. The affidavits
contained partly conflicting accounts of the substance of the conversations.

2_/
Of course, where settlement is rejected and the case is directed
for hearing, if the parties believe that the facts are not in dispute,
they can move the judge for summary judgment (Commission Rule 64,
29 CFR §2700.64) and present argument on the appropriate penalty
size.
§_/
Our disposition of the case remedies Knox County's other
complaints regarding the judge's decision and renders discussion of
them unnecessary.

2482

Apart from the two affidavits, no record of these conversations was
placed on the public record of the proceedings.
These affidavits concur on one point: the attorney and the judge
appear to have discussed the case off the public record and without the
presence of the Secretary, the other party to the proceeding. We will not
direct a separate disciplinary proceeding to determine whether these
apparent facts make out a prohibited ex parte communication.
The
parties have at least brought the matter to our attention, the conversations occurred over two years ago, and we have not previously addressed
the subject of ex parte communications. However, because the subject of
ex parte communications has arisen and because we believe that the
prohibitions against ex parte communications are vital to the integrity
of the Commission's processes, we take this occasion to provide future
guidance for Commission judges and those who practice before the
Commission.
Our procedural rules have always prohibited ex parte communications,
although there have been permutations in language and organization as
rule revisions have occurred.
Rule 82, the present rule on ex parte
communications, provides:
(a) Generally.
There shall be no ex parte
communication with respect to the merits of any
case not concluded, between the Commission,
including any member, Judge, officer, or agent
of the Commission who is employed in the
decisional process, and any of the parties or
intervenors, representatives, or other interested
persons.
(b) Procedure in case of violation.
(1) In the event an ex parte communication
in violation of this section occurs, the
Commission or the Judge may make such orders
or take such action as fairness requires.
Upon notice and hearing, the Commission may
take disciplinary action against any person
who knowingly and willfully makes or causes
to be made a prohibited ex parte communication.
(2) All ex parte communications in violation of
this section shall be placed on the public record
of the proceeding.
(c) Inquiries.
Any inquiries concerning filing
requirements, the status of cases before the Commissioners,
or docket information shall be directed to the Office of
the Executive Director of the Commission ....

2483

Moreover, apart from our own rules, section 557(d) of the APA also
prohibits ex parte communications. As part of the Government in the
Sunshine Act, Congress amended section 557 in 1976 to add a new subsection (d) set forth in the accompanying note. ]_/ Section 557(d)
7/

§557(d) provides in relevant part:

(1) In any agency proceeding which is subject to subsection (a) of this
section, except to the extent required for the disposition of ex parte matters
as authorized by law (A) no interested person outside the agency shall make or
knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other
employee who is or may reasonably be expected to be
involved in the decisional process of the proceeding, an
ex parte communication relevant to the merits of the proceeding;
(B) no member of the body composing the agency, administrative
law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of the
proceeding, shall make or knowingly cause to be made to an
interested person outside the agency an ex parte communication
relevant to the merits of the proceeding;
(C) a member of the body comprising the agency, administrative
law judge, or other employee who is or may reasonably be
expected to be involved in the decisional process of such
proceeding who receives, or who makes or knowingly causes
to be made, a communication prohibited by this subsection
shall place on the public record of the proceeding:
(i) all such written communications;
(ii) memoranda statin~ the substance of all such oral
communications;
and
(iii) all written responses, and memoranda stating the
substance of all oral responses, to the materials
described in clauses (i) and (ii) of this subparagraph;
(D) upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this subsection,
the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the
interests of justice and the policy of the underlying statutes,
require the party to show cause why his claim or interest in
the proceeding should not be dismissed, denied, disregarded,
or otherwise adversely affected on account of such violation;
and
(E) the prohibitions of this subsection shall apply beginning
at such time as the agency may designate, but in no case shall
they begin to apply later than the time at which a proceeding
is noticed for hearing unless the person responsible for the
communication has knowledge that it will be noticed, in which
case the prohibitions shall apply beginning at the time of his
acquisition of such knowledge.

2484

applies to the Commission's adjudicative proceedings; including penalty
proceedings conducted pursuant to section lOS.(d) of the Mine Act.

As a comparison of Rule 82 and section 557(d) shows, both rules prohibit
ex parte communication between a judge and a party regarding the merits of a
pending case and also require that ex parte communications be placed on the
public record. Our rules do not expressly define "ex parte communication."
However, section 551(14), APA, defines the term as follows:
"[E]x parte communication" means an oral or written communication
not on the public record with respect to which reasonable prior
notice to all parties is not given, but it shall not include
requests for status reports on any matter or proceeding . . •
At the very least, we think "merits of a case" embraces discussion of a case's
issues and how those issues should or will be resolved. !:}_/
The rules against ex parte communications serve important goals essential
to the integrity and fairness of Commission proceedings. As Congress explained
in enacting section 557(d):
The purpose of the provisions in the bill
prohibiting ex parte communications is to insure
that agency decisions required to be made on a
public record are not influenced by private,
off-the-record communications from those
personally interested in the outcome.

*

*

*

In order to ensure both fairness and soundness
to adjudication • • . . , the . . . [APA] require[s]
a hearing and decision on the record. Such hearings
give all parties an opportunity to participate and
to rebut each other's presentations. Such proceedings
cannot be fair or soundly decided, however, when
persons outside the agency are allowed to communicate
with the decision-maker in private and and others are
denied the opportunity to respond.
1976 U.S. Code Legis. Hist. 2184, 2227. See also Raz Inland Navigation Co., Inc.
v. ICC, 625 F.2d 258, 260 (9th Cir. 1980). The implications of the purposes
mentioned by Congress are obvious: improper ex parte contacts may deny a
party "his due process right to a disinterested and impartial tribunal."
Rinehart v. Brewer, 561 F.2d, 132 (8th Cir. 1977). Diminishing public
confidence in the affected tribunal is the likely and unacceptable result.
These considerations are mirrored by the canons of judicial and professional conduct. Canon 3A(4), Code of Judicial Conduct, provides in
relevant part:

'§j

Congress intended the phrase "merits of the proceeding," in sections
551(14) and 557(d) to be broadly construed. See H. Rep. No. 94-880, Parts
I & II, 94th Cong., 2d. Sess. 20 (Part I), 20 (Part II) (1976), reprinted
in 1976[3] U.S. Code Cong. & Ad. News 2202, 2229 ["1976 U.S. Code Legis.
Hist."].

2485

A judge should accord to every person who is legally
interested in a proceeding, or his lawyer, full right
to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte
or other communications concerning a pending or
impending proceeding.
Violation of this canon may so taint a proceeding as to mandate reversal.
See Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th
Cir. 1980); Kennedy v. Great Atlantic & Pacific Tea Co., 551 F.2d 593,
596-99 (5th Cir. 1977). 11 Similarly, Disciplinary Rule 7-llO(b) under
Canon 7, Code of Professional. Responsibility, prohibits a lawyer from
engaging in ex parte communications with a judge during an adversary
proceeding.
The gravity of a violation by an attorney is underscored
by sections 556(e) and 557(d)(l)(D), APA, which permit agencies to
remedy a violation by means as extreme as dismissal.
We recognize that innocent or de minimis ex parte communications can,
and do, occur. When ex parte communications occur, however, they shall
be placed on the public record in accordance with appropriate procedure.
In short, although as discussed above, it is not necessary to direct
a disciplinary hearing in this case, we expect that the rules on ex parte
communications will be respected in both letter and spirit and that judges
and lawyers will avoid even the appearance of impropriety in these matters.

A. E. Lawso ,

ornrnissioner

~.wW~\~M~~

Marian Pearlman Nease, Commissioner

11

We note that a judge may not indirectly engage in such communications
through .contacts by his clerks or other employees with outside
parties. Price Brothers, supra, 629 F.2d at 447; Kennedy, supra, 551
F.2d at 596.

2486

Distribution
Stephen A. Gorman, Esq,
Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd.
8500 Sears Tower
Chicago, Illinois 60606
Michael McCord, Esq.
Office of the Solicitor
U.S, Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Joseph Kennedy
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2487

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

November 6, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. BARB 77-266-P
BARB 76X465-P

v.
JIM WALTER RESOURCES, INC.
and
COWIN AND COMPANY, INC.
DECISION
The issue presented in these cases is whether 30 CFR §77.1903(b) is
a mandatory safety standard.
Section 77.1903(b) provides:
The American National Standards Institute, "Specifications For
The Use of Wire Ropes For Mines," M 11.1-1960, or the latest
revision thereof, shall be used as a guide in the use, selection
and maintenance of wire ropes used for hoisting.
For the reasons that follow, we hold that this standard imposes no
mandatory duty on an operator.
The events leading to the issuance of notices of violation of
§77.1903(b) occurred on June 9, 1975. Cowin and Company, an independent
contractor, was sinking a production shaft at Jim Walter Resources'
Brookwood No. 4 Mine. One of the tugger ropes that operated a "clamshell" used in excavation broke. More than 1026 feet of wire rope fell
to the shaft bottom, striking and killing a Cowin employee.
After a hearing an administrative law judge determined that the
notices of violation lacked the required specificity and deprived the
respondents of reasonable notice as to the violation charged. The judge
vacated the notices of violation and dismissed the petitions for assessment of a penalty.
We reversed his decision because the operators had
not demonstrated prejudice from the lack of specificity. In remanding
for further proceedings, we also instructed the judge to address the
threshold question of whether §77.1903(b) is a mandatory standard for
which a civil penalty must be assessed if it is violated.
1 FMSHRC
1827, 1830 (1979).
On remand the judge held that whether or not §77.1903(b) is mandatory depends upon which ANSI standards are alleged not to have been used
as a guide. 2 FMSHRC 1890 (1980). In the judge's view, if the underlying ANSI standards are mandatory, then §77.1903(b) is mandatory and a

81-11-8

2488

penalty must be assessed for a violation thereof. The judge also held
that if the underlying standards are advisory, as he concluded those
referred to by the Secretary in these cases were, then §77.1903(b) is
advisory and no penalties could be assessed. Accordingly, he vacated
the notices of violation and dismissed the petitions for assessment of
a penalty.
On review of this decision, the Secretary argues that §77.1903(b)
is a mandatory standard that at a minimum requires consultation with the
specified ANSI standards. The purpose of this requirement, he asserts,
"is to ensure a process 11 by which an operator, having consulted a leading national authority on the subject, will make an informed choice
regarding selection and use of wire ropes. The Secretary urges that in
the present cases the Commission need not decide whether §77.1903(b)
requires that individual ANSI sections be followed. Rather, he submits
that the Commission should hold that the operators here did not comply
with even the minimum requirements of §77.1903(b) by not consulting the
ANSI standards. The Secretary admits that "reasonable persons may
differ as to whether a given ANSI standard is mandatory or advisory". 1./
He believes, however, that this fact supports his position, rather than
detracts from it. In sum, the Secretary claims that the judge's interpretation of §T7.1903(b) renders the words "shall be used as a guide"
"utterly superfluous."
Jim Walter and Cowin argue that §77.1903(b) is advisory because it
incorporates advisory industry standards. The operators rely on an
introductory paragraph of the ANSI standards at issue which states:
"The existence of [an ANSI] standard does not in any respect preclude
anyone, whether he has approved the standard or not, from manufacturing,
marketing, purchasing, or using products, processes, or procedures not
conforming to the standard." The operators also argue "the frequent
We agr~e with the Secretary that reasonable people can differ on
whether a particular ANSI section is mandatory or advisory. The following 1960 ANSI standards, which were in effect at the time these notices
were issued, and to which the Secretary referred in these cases, illustrate
this problem:
ANSI Standard 6.3.1.l states:
It is essential that the tread diameters of sheaves and drums be
liberal. The recommended diameters should be at least as large as
those listed in Table 36, Column 1. It is inadvisable to operate
with minimum diameters below those in Column 2. On large mine
hoist installations using 6 x 19 rope, the head sheaves are sometimes set as high as 90 times the rope diameter.
ANSI standard 5.2.1 states in part:
Wire rope should be handled so that it is neither twisted nor
untwisted. Care must be exercised in handling to avoid "kinking"
of the wire rope .•.
The difficulty of determining whether an ANSI section is mandatory or
advisory has been alleviated somewhat by the 1980 revision of ANSI
Standards For Wire Rope for Mine_§_, ANSI M 11.1-1980. The new ANSI
standards generally use either "should" or "shall" and section 1.5
provides:
Mandatory and Advisory Rules. In this standard, the word "shall"
is to be understood as denoting a mandatory requirement; the word
"should" is advisory in nature and is to be understood as denoting
a recommendation.

1:./

2489

use of terms such as 'should be', 'recommended', and 'advisable' throughout these [ANSI] sections" show that they are not mandatory. They
further assert that mere incorporation of the "advisory" standards into
§77.1903(b) can not change them from advisory to mandatory and that if
the ANSI standards were intended to be mandatory, a substantive modification has occurred without resort to proper rulemaking procedures.
They note that §77.1903(b) is unusual in containing the phrase "use[] as
a guide" and argue that this shows an intent to maintain the ANSI standards
as advisory. ]:/ Finally, Jim Walter and Cowin reject the Secretary's
argument that the standard at least imposes a mandatory duty to consult
the ANSI standards. They assert this requirement would be meaningless
and unenforceable. For example, they note that two operators who employ
identical wire rope practices would be subject to different enforcement
treatment depending on whether they had "consulted" ANSI before implementing their practices.
We hold that §77.1903(b) imposes no mandatory duty and, therefore,
cannot be the basis for assessment of a civil penalty. The standard
provides that ANSI standards "shall be used as a guide in the use,
selection and maintenance of wire ropes used for hoisting." The phrase
"shall be used as a guide" is, at best, ambiguous. It contains mandatory language, i.e., "shall be used", but the requirement imposed is use
of ANSI standar~"as a guide". We believe that in common usage a
"guide" is something less than a mandatory requirement to be followed. ].../
Although safety and health standards are to be construed liberally, any
resultant interpretation must be reasonable in order to be upheld.
~anna Mining Co., 3 FMSHRC 2045, 2048 (1981).
In light of the ambiguous
language of §77.1903(b) and the ambiguous nature of many of the underlying ANSI standards, we find the Secretary's attempt to derive an
enforceable mandatory duty from the standard to be unreasonable. !±_/
The fault with the standard lies in its wording. It does not
adequately inform an operator of a duty that must be met. This fault
can easily be remedied by the Secretary through rulemaking and we urge
him to do so. !!_/ This case emphasizes the need for mandatory standards
for wire ropes.
2/
Other regulations incorporate industry developed standards and
require compliance with those standards rather than their "use as a
guide." See,~. 30 CFR §§75.518-1; 77.506; 77.516, (National
Electric Code); 30 CFR §§75.1101-7(a), 75.1103-2(b), 75.1107-3(b)
(National Fire Code).
3/
Webster's Third New International Dictionary (1971), provides that
~"guide" is: "c. something (as a guidebook, signpost, or instruction
manual) that provides a person with guiding information."
!±_/
We agree with the Secretary that an operator's consultation with
recognized authorities on safe work practices is desirable. Without a
corresponding duty to implement suggested work practices after consultation, however, any desired safety return seems extremely tenuous
when measured against the practicalities of enforcement.
2/ We note that the Secretary may have already begun this process. On
April 28, 1981, he announced his intention to revise the current wire
rope standards and to include specific requirements for the installation,
use, inspection, maintenance, and removal of wire ropes. 46 Fed. Reg.
2389 (1981). We also note that the Secretary has solved similar problems
with other standards through rulemaking. For example, 30 CFR §§55.1920, 56.19-20, and 57.19-20 formerly provided that the ANSI specifications
at issue in this case "should be used as a guide." In a general revision,
these standards were revoked and many other provisions were expressly
made mandatory. 44 Fed. Reg. 48490 (1979).

2490

Accordingly, we affirm the judge's decision dismissing the petitions
for assessment of penalties insofar as it is consistent with this opinion.

Marian Pearlman Nease, Conunissioner

2491

Distribution
Michael McCord, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
William H. Howe, Esq.
Loomis, Owen, Fellman & Coleman
2020 K Street, N.W.
Washington, D.C. 20006
Robert W. Pollard, Esq.
Office of the Corporate Counsel
Jim Walter Resources, Inc.
P.O~ Box C-79
Birmingham, Alabama 35283
Administrative Law Judge George Koutras
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2492

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

November 6, 1981
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. HOPE 76-210-P
HOPE 76-211-P
HOPE 76-212-P
HOPE 76-213-P

v.
COWIN AND COMPANY, INC,
DECISION

This case was initiated under the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S. C. §801 ~ ~· (1976) (amended 1977)("the
Coal Act"), We directed for review the question: Whether 30 CFR
§77.1903(b) is a mandatory s~fety standard. 1_/ For the reasons
expressed in our decision in Jim Walter Resources and Cowin and Company,
FMSHRC
(BARB 77-266-P, etc., November 6, 1981), we hold that it
is not.
We also reject the Secretary of Labor's claim that this question
is not properly before us in this case. The Secretary asserts that
Cowin did not challenge the mandatory nature of §77.1903(b) in its
petition for review of the administrative law judge's first decision
in this matter. Therefore, the Secretary argues that the issue of the
validity of §77.1903(b) became final forty days after the judge issued
his first decision and can not now be addressed. 30 U.S.C. §823(d).
The Secretary also asserts that, in examining the issue, the Commission
would exceed the scope of the remand from the Fourth Circuit. Cowin
and Co. v. FMSHRC, 612 F.2d 838 (4th Cir. 1979).
We do not believe the Fourth Circuit foreclosed consideration of
whether §77.1903(b) is mandatory. In its decision, the Court stated,
"[W]e think the administrative record should be reopened, to avoid any
possible prejudice, for the submission of additional relevant evidence
and arguments before Cowin's civil liability is determined and penalties
can be assessed .... " 612 F.2d at 841. Because the Court's direction
to remand allowed the administrative law judge to hear additional arguments, we find that Cowin properly raised the issue of the mandatory
nature of the standard before the judge. In view of this, and because
Cowin's petition for discretionary review presented the question of
whether the standard is mandatory, that issue is properly before us on review.
1/

Section 77.1903(b) provides:
The American. National Standards Institute, "Specifications For
The Use of Wire Ropes For Mines," M 11.1-1960, or the latest revision thereof, shall be used as a guide in the use, selection and
maintenance of wire ropes used for hoisting.

81-11-9

2493

Furthermore, in light of our decision in Jim Walter Resources, it would
be manifestly unjust to refuse to reach the issue. To do so would mean
that Cowin would be assessed penalties totalling $16,000 for violating a
standard that we have found imposes no mandatory duty.
Accordingly, the decision of the administrative law judge is
reversed and the petitions for assessment of penalties are dismissed.

c:

2494

/

Distribution
William H. Howe, Esq.
Loomis, Owen, Fellman, & Coleman
2020 K Street, N.W.
Washington, D.C. 20006
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Joseph Kennedy
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2495

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

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

November 6, 1981

Docket No. CENT 79-156-M

v.
KERR-McGEE CORPORATION

DECISION
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §801 ~· ~· (Supp. III 1979).
The
administrative law judge concluded that Kerr-McGee Corporation had
violated 30 CFR §57.15-5, a mandatory safety standard, and assessed a
penalty. l./ The major issue before us is whether the judge erred in his
interpretation of section 57.15-5, which provides in relevant part:
Safety belts and lines shall be worn when men work where there is
danger of falling ...•
For the reasons that follow, we affirm the judge's decision.
The citation was issued following an investigation of a fatal fall
accident at Kerr-McGee's uranium mine near Gallup, New Mexico. The
accident occurred in a partially completed vertical shaft that was 1,471
feet deep and 14 feet in diameter. Kerr-McGee intended to use the shaft
for hoisting muck and supplies. In the floor of the shaft was a borehole approximately 3 feet in diameter and extending 54 feet below the
shaft floor to a slusher passageway underneath. The borehole's opening
in the floor was blocked by a plug. When miners working in the shaft
needed to remove the muck that typically accumulated on the shaft floor,
they raised the plug and swept the muck down the borehole. The plug was
raised and lowered by attaching it to the sinking bucket used to transport
the men and materials.
On the day of the accident, two miners were installing wire mesh on
the shaft ribs near the bottom of the shaft. At one point, they needed
to sweep out some muck on the shaft floor. The lead miner climbed into
the bucket in order to hoist the borehole plug. He tossed a 20-foot
long cable to the other miner, the victim. The victim fastened one end
of the cable to the mesh on the shaft ribs, and attached the other end
of the cable to the D-ring of his safety belt. He intended to use the

l/

The judge's decision is reported at 2 FMSHRC 3190 (1980).

81-11-11

2496

cable as a safety line while he stood on the floor of the shaft and
swept the muck down the borehole. J:/
While the victim was standing on the floor next to the rib, the
plug was raised approximately two feet. Because the borehole was
located off-center in the shaft floor, the plug swung when it was
raised, causing the lead miner to lose sight of the victim. Subsequently, the lead miner peered over the side of the bucket and
observed the victim's safety line hanging in the borehole. Neither the
wire mesh nor the cable had broken, but the D-ring of the victim's
safety belt had torn loose and remained attached to the end of the
cable. The cable extended 9.5 feet into the borehole. The victim's
body was recovered in the slusher passageway 54 feet beneath the shaft
floor.
The judge found that the operator had supplied the victim with a
safety belt and line, but upheld the citation because the victim had not
used the equipment in a manner that would have prevented the 9.5-foot
fall down the b'orehole. 2 FMSHRC at 3191-92. The judge indicated that
the proper way to use a long safety line is to tie it off to a shorter
length. Id. at 3192. In essence, the judge concluded that section
57.15-5 requires that safety belts and lines be used in a safe manner.
Kerr-McGee argues on review that the standard literally requires operators only to supply miners with safety belts and lines. It apparently
concedes, however, that the belts and lines supplied must be defectfree. Reply br. 5. Kerr-McGee contends that it complied with the
standard's mandate by supplying the victim with a defect-free belt and
line. We do not agree.
We first construe the general meaning of section 57.15-5. As
contrasted with more <let.ailed regulations, it is the kind made simple
and brief in order to be broadly adaptable to myriad circumstances. From
an operator's standpoint, one benefit of this flexible regulatory
approach is that it affords considerable leeway in adapting safety
requirements to the variable and unique conditions encountered in
different mines. Although a literal reading of the standard might
suggest that compliance is achieved whenever a miner wears any kind of
line in any manner, such an interpretation is inconsistent with the
purposes of the Part 57 regulations and this standard in particular.
30 CFR §57.1 describes the purpose of the Part 57 regulations as
"the protection of life, the promotion of health and safety, and the
prevention of accidents •••• " Consistent with that general aim, the
specific purpose of section 57.15-5 is the prevention of dangerous
falls. Dangerous falls will not be prevented if defective belts and
lines are worn or if even good equipment is used in an unsafe manner.
For example, common sense suggests that a well constructed 15-foot

J:/

Kerr-McGee constructed this cable as well as the other cables and
safety lines used at its mine. The standard length for cables that
Kerr-McGee identified as "safety lines" was 10 to 15 feet. The cable
involved here, however, was 20 feet in length and had been used to tie
down bundles of wire mesh and transport equipment up and down the
shaft. Kerr-McGee's cables were all made of the same material, were the
same color, and were not specifically labeled to distinguish the safety
lines.

2497

safety line is not going to supply adequate protection for a miner
working above a 10-foot dropoff, Therefore, we hold that the "shall be
worn" language of the standard necessarily means worn safely and properly.
There is no dispute that the victim was wearing an approved safety
belt and a 20-foot cable he intended to use as a safety line. Therefore,
the primary question is the manner in which he used the equipment. We
begin our analysis by examining whether, given the language of the
standard, there was a "danger of falling'·'.
When the victim tied off the cable on the ribs of the shaft, he was
working on the shaft floor which was covered with muck. He was preparing
to sweep muck down the borehole in the shaft floor. Once the blocking
plug was hoisted from the borehole, he would be working in proximity to
the open borehole. Under these circumstances, we find that the "danger
of falling" he faced was slipping or otherwise losing his balance in the
muck and falling down the open 54-foot long borehole. This danger is
underscored by the facts that the borehole was kept plugged, obviously
in part to prevent falls down the hole, and that the victim tied himself
off just prior to the raising of the plug.
Since the miner's actual accident does not ipso facto prove a
violation, our focus regarding safe use is on the adequacy of what the
miner did when faced with this danger of falling. The victim tied himself off in a manner that permitted a possible 9.5 foot fall into the
borehole. The uncontroverted evidence in this cas~ establishes that
long falls subject the person involved, the safety line and belt, and
all attachment or anchorage points to great stress, and that a 9.5-foot
fall was too long to be considered safe. 2 FMSHRC at 3191-2; Tr. 26,
31, 34-6, 61, 95-5, 103. For example, this evidence specifically showed
that the victim's safety belt had been designed and laboratory tested to
withstand three successive drops of a 250-pound rigid weight free falling
a distance of 6 feet. 2 FMSHRC at 3192; Tr. 34-6. When the miner tied
himself off in a manner that permitted a possible 9.5 foot fall into
the borehole, he created a situation in which such a fall would produce
a stress vi~tually meeting, if not exceeding, the performance standards
of the safety belt. 11 We therefore agree with the judge that the
equipment was not used safely because the line was not shortened
sufficiently by tying off to prevent a hazardously long fall. !!_/

11

Kerr-McGee presented mathematical calculations that since the
victim weighed 155 pounds, the belt should have been able to withstand
a free fall of 9. 68 feet. 2 FMSHRC at 3192. As the judge pointed out,
following this mathematical approach to its logical conclusion, the
victim's tying off in such a manner that a 9.5 fall was possible would
leave him a theoretical safety margin of .18 of a foot,_!_.~., 2.16
inches, under laboratory conditions. Id. Assuming the accuracy of
these calculations, we observe, however, that the calculations overlook
the additional stress created by the weight of his clothing, equipment,
and, indeed, the safety line itself. We further note that mines are
not laboratories and miners are not experimental "rigid weights." A
.18-foot theoretical "safety margin" is probably non-existent under conditions of actual use, where the hazards of mine work militate against
subjecting such equipment to its absolute laboratory limits.
!!_/
We note that Kerr-McGee's general mine foreman at the mine where
the accident occurred testified that the failure to shorten the cable
(Footnote continued)

2498

Kerr-McGee argues that even if the miner used the equipment unsafely,
it was not responsible for his actions and therefore should not be held
liable for any violation. However, the Mine Act, like the 1969 Coal
Act, provides for the imposition of liability without regard to fault.
El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-9 (1981). Therefore, the
judge correctly pointed out that fault is properly a matter for the
penalty assessment stage of proceedings under the Mine Act. Cf. Nacco
Mining Co., 3 FMSHRC 848, 849-51 (1981), and authorities cited(holding,
in a 1969 Coal Act case, that a foreman's aberrant conduct, while imputable to operator for liability purposes, may be considered in weighing
the operator's "negligence").
In any event, Kerr-McGee is not entirely blameless with regard to
the miner's unsafe use of the equipment. The cables used by Kerr-McGee
for hoisting materials or tying down bundles of mesh were identical in
appearance to the cables used as safety lines, differing only in their
length. Thus, it is not surprising that, as happened here, a hoisting
cable exceeding the 10 to 15 foot designated length for safety lines
was used as a safety line. 'i/

fn. !±._/ continue
was unsafe use:
Q.
Mr. Eroh, is it your opinion that the fashion in which [the
victim] used the 20-foot cable sling was improper?
A.
Yes.
Q.
So if he would have doubled it and made it 10 feet long that,
in your opinion, would be proper?
A.
For that particular cable.
Tr. 121 (recross-examination by the Secretary).
:;Jj
We further note that the judge's statement regarding the tying off
of long lines is not necessarily a panacea. The standards of the
American National Standards Institute indicate that a knot in a rope
reduces the rope's strength by 50%. Tr. 34. Repeated tying off of long
lines may also result in structural damage to the lines.

2499

For the foregoing reasons, we affirm the decision of the judge. !!__/

Marian Pearlman Nease, Connnissioner

!!_/
Kerr-McGee raises substantial evidence objections on the liability
issue that are beside the point given our analysis. Kerr-McGee argues
that the Secretary failed to establish the causes of the miner's fall
and of the failure of the belt. It contends that the central conclusions
relating to the fall are mere speculations since no one actually witnessed
the accident. Kerr-McGee hypothesizes that the broken attachment ring
on the belt could have been caused by impact against sharp rocks in the
borehole or shaft. The innnediate causes of the fall and belt failure do
not go to the essence of the violation--that the line was not sufficiently
and safely tied off to prevent a dangerous fall into the borehole.
Thus, the judge's and our decisions mean that a violation occurred once
the line was improperly tied off, regardless of whether the miner actually
proceeded to fall into the borehole.

2500

Distribution
Carolyn G. Hill, Esq.
Kerr-McGee Center
P.O. Box 25861
Oklahoma City, Oklahoma

73125

George W. Kozeliski
Glascock, McKim and Head
P.O. Box 1059
Gallup, New Mexico 87301
Michael McCord, Esq.
Linda Leasure, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Jon Boltz
FMSHRC
333 West Colfax Ave.
Denver, Colorado 80204

2501

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

November 12, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

Docket Nos. DENV 76-83-P
DENV 76-84-P
DENV 76X99-P
DENV 76Xl00-P

MID-CONTINENT COAL AND COKE COMPANY,
Respondent

IBMA 77-14

DECISION
This penalty proceeding arises under section 109 of the Federal Coal
Mine Health and Safety Act of 1969, 30 U.S.C. § 801-960 (1976)(amended)
1977) (the Act). After an evidentiary hearing and decision by an administrative law judge, Mid-Continent Coal and Coke Company appealed the
judge's finding of a violation with respect to one order and five notices
issued by the Mining Enforcement and Safety Administration (MESA).l/
For the reasons stated below, we vacate Notice No. 5-105 (2-RLM) and affirm
the judge's decision as to the remaining order and notices._~/

l/Order No. 5-073-C (1-RLM) dated April 8, 1975
- Notice No. 5-083 (1-RLM) dated April 24, 1975
Notice No. 5-085 (3-RLM) dated April 24, 1975
Notice No. 5-105 (2-RLM) dated June 5, 1975
Notice No. 5-214 (7-LBL) dated October 2, 1975
Notice No. 5-219 (4-LBL) dated October 3, 1975
2/0n March 8, 1978, this case was pending on appeal before the Secretary
of Interior's Board of Mine Operations Appeals under the 1969 Act. This
appeal is before the Commission for disposition under section 301 of
the Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C. § 961
(Supp. III 1979). MESA's enforcement responsibilities were transferred to
the Department of Labor's Mine Safety and Health Administration (MSHA),
and MSHA is substituted as the petitioner in this appeal.

2502

81-11-14

Order No. 5-073-C (1-RLM), April 8,

197~

This order alleged a violation of 30 CFR 75.308 in that the quantity
of air reaching the working face of No. 1 entry was inadequate to maintain
the methane below 1.0 percent.3/ Mid-Continent does not dispute the readings taken by MESA showing 1 or more percent of methane at the working face
but state they check the face for methane after each cutting and, if
methane in excess of one percent is found, they cut the power, wing the
curtain to increase the air to clear the methane and recheck the face.
While this is continued throughout the working day, Mid-Continent acknowledges
this procedure to be only a temporary solution.
The record clearly shows that the changes or adjustments made by
Mid-Continent do not maintain the methane content at the level required
by the regulation. According, we affirm the judge in finding a violation
as alleged.
Notice No. 5-083 (1-RLM), April 24, 1975
This notice asserts a violation of 30 CFR 75.308 )j because a
continuous miner was not deenergized immediately when the methane monitor
on the continuous miner indicated more than 1 percent methane.

]/30 CFR 75.308 provides: Methane accumulations in face areas. "If at
any time the air at any working place, when tested at a point not less
than 12 inches from the roof, face, or rib, contain 1.0 volume per
centum or more of methane, changes or adjustments shall be made at once
in the ventilation in such mine so that such air shall contain less
than 1.0 volume per centum of methane. While such changes or adjustments
are underway and until they have been achieved, power to electric face
equipment located in such place shall be cut off, no other work shall be
permitted in such place, and due precautions shall be carried out under
the direction of the operator or his agent so as not to endanger other
areas of the mine. If at any time such air contains 1.5 volume per
centum or more of methane, all persons, except those referred to in
section 104(d) of the Act, shall be withdrawn from the area of the mine
endangered thereby to a safe area, and all electric power shall be cut
off from the endangered area of the mine, until the air in such working
place shall contain less than 1. 0 volume per centum of methane.
[Emphasis
supplied].
30 CFR 75.308-1 provides: "The "changes or adjustments" which shall be
made in the ventilation means increasing the quantity or improving the
distribution of air in the affected working place to the extent sufficient
to reduce and maintain the methane content less than 1.0 volume per centum
when operations are resumed." [Emphasis supplied].

250~3

The facts are undisputed. Approaching the face of a crosscut, both
the inspector and respondent's superintendent observed a continuous miner
backing away from the face with the amber light on its methane monitor
glowing. The glowing light indicated the presence of over 1 percent
methane. The superintendent proceeded to the face and took two methane
readings before ordering the continuous miner deenergized.
We interpret 30 CFR 75.308 and its statutory authority, section
303(h)(2) of the Act, to require electric face equipment in a working
place be deenergized immediately when 1 percent or more of methane is
detected in such working place. After such methane accumulation had
been detected by the methane monitor here, to continue an ignition
source while rechecking the monitor's reading was a violation of the
regulation alleged. The judge is affirmed.
Notice No. 5-085 (3 RLM), April 24, 1975
This notice was issued alleging a violation of 30 CFR 75.316 !±_/
because of insufficient ventilation at a working face. The air movement
was not sufficient to measure by using an anemometer. Respondent admitted
that the quantity of air was not sufficient to permit mining operations,
and that their ventilation plan required 15,000 cubic feet per minute,
but only when coal was being cut, mined or loaded. Respondent argued
that, at the time the notice was issued, a break-through had just been made,
the continuous miner had been backed out preparatory to cleaning up the
crosscut and reestablishing ventilation at which time there was no cutting,
mining or loading coal to be in violation of their ventilation plan and
30 CFR 75.316.
The parties do not dispute that the requirements of a duly adopted
ventilation plan are generally enforceable under the Act. Ziegler Coal
Company, 4 IBMA 30, aff'd 536 F.2d 398, 409 (D.C. Cir.)(April 22, 1976).
Here, the area cited was a working face, the continuous miner had just
backed away from the face to allow the crosscut to be cleaned up and
ventilation reestablished for further cutting in the production of coal.
A temporary halt in cutting, mining or loading to permit other mining
activities in preparation for further mining and production does not
interrupt the ventilation requirements of 30 CFR 75.316. To hold otherwise
would allow unsafe conditions, as in this instance, to escape sanction
unless the operator were caught in the act of cutting, mining or loading.
The judge's finding of violation is affirmed.

!±_/30 CFR 75.316 provides: "A ventilation system and methane and dust
control plan and revisions thereof suitable to the conditions and the
mining system of the coal mine and approved by the Secretary shall be
adopted by the operator and set out in printed form on or before June 28,
1970. The plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or
improved equipment as the Secretary may require, the quantity and velocity
of air reaching each working face, and such other information as the
Secretary may require. Such plan shall be reviewed by the operator and
the Secretary at least every 6 months."

2504

Notice No. 5-105 (2-RLM), June 5, 1975
This notice alleged a violation of 30 CFR 70.201 !l) in that respondent
did not collect an accurate respirable dust sample from one of its employees.
The respirable dust pump was not operating properly as it had no flow rate.
Mid-Continent argued that the pump was properly maintained, that it was
operating properly when issued to the employee and that any mechanical
malfunction, not attributed to its negligence, does not constitute a
violation.
We vacate this notice. See our decision in V and R Coal Company,
3 FMSHRC - - - - • (Nov. 14, 1981).
Notice No. 5-214 (7-LBL), October 2, 1975
This notice was issued alleging a violation of 30 CFR 77.401(3)(c) &._/
when the inspector observed a worker in the shop operating a grinding
wheel without wearing a face shield or goggles. The worker was wearing
ordinary eye glasses with safety lenses which did not cover or protect
the peripheral area of the eyes. Goggles were readily accessible to the
worker and the foreman was present in the shop but made no attempt to
warn or caution the worker concerning the use of goggles. Mid-Continent
contended thatthere was no violation because the worker was wearing
eye glasses with safety lenses and the worker's failure to wear the goggles
provided was negligence of the worker and not a violation of the regulation
by Mid-Continent.
We agree with the judge that ordinary eye glasses with safety lenses
do not provide as much protection for the peripheral area of the eyes as
would face shields or goggles required by the regulation. Further, the
foreman was present hut made no attempt to cause the worker to wear his
goggles.l_/ The judge's finding of a violation under these facts is affirmed.

5/30 CFR 70.201 provides: ''Each operator of a coal mine shall, as prescribed
In this Part 70, take accurate samples of the amount of respirable dust in
the mine atmosphere to which each miner in the active workings of such mine
is exposed."
6/30 CFR 77.401(3)(c) provides: "Face shields or goggles, in good condition
shall be worn when operating a grinding wheel."
l_/Mid-Continent's argument relying on North American Coal Corp., 3 IBMA 93
(1974) is rejected. See United States Steel Corp., 1 FMSHRC 1306, 1307 at
n3 (Sept. 17, 1979).

250f)

Notice No. 5-219 (4-LBL), October 3, 1975
The inspector issued a notice of violation of 30 CFR 77.1710(a) !}_/
when he observed a worker in the shop using a cutting torch to cut holes
in a 55 gallon drum without wearing protective goggles or a face shield.
Protective goggles were hanging on one of the acetylene tanks connected
to the torch. The worker's foreman was just a few feet away when the
violation occurred but made no attempt to warn or cause the worker to
use goggles.
Mid-Continent contended that there was no violation because the worker
was wearing eye glasses with safety lenses and failure to wear the readily
available safety goggles was negligence of the worker and not a violation
of the regulation by Mid-Continent.
For the same reasons accepted and stated in the notice immediately
above, we find that ordinary eye glasses with safety lenses do not meet
the requirement of face-shields or goggles of 30 CFR 77.1710(a). Further,
the defense relying on North American Coal Corp., supra, is rejected for
the reason stated in United States Steel Corp., supra, 1 FMSHRC at 1307,
n3. The judge is affirmed.
Accordingly, Notice No. 5-105 (2-RLM) June 5, 1975 is vacated. The
decision of the administrative law judge in each remaining order and
notice on appeal in these proceedings is affirmed.

\\Q'-w_uqQo\ru !\loJu2

Marian Pearlman Nease, Commissioner

!}_/30 CFR 77 .1710 (a) provides: "Protective clothing or equipment and
face-shields or goggles shall be worn when welding, cutting, or working
with molten metal or when other hazards to the eyes exists."

2506

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

81601

Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

2507

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

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

November 13, 1981

on behalf of JOHNNY N. CHACON,
Docket No. WEST 79-349-DM

v.
PHELPS DODGE CORPORATION
DECISION

This case involves section lOS(c)(l) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §801 ~ ~· (Supp. III 1979), and raises
questions concerning the burdens.of proof in discrimination cases
previously enunciated in Fasula v. Consolidation Coal Co., 2 FMSHRC 2786
(1980), rev'd on other grounds, No. 80-2600 (3d Cir. Oct. 30, 1981), and
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (1981). '};_/ For the
reasons that follow, we hold that the judge erred in finding a violation
and reverse his decision. 2/
I.

The Secretary filed a discrimination complaint on behalf of Johnny
Chacon on August 20, 1979, and a hearing was held on April 16, 1980. At
the time of the hearing, Chacon had been employed as a locomotive operator at Phelps Dodge's Morenci Branch open pit copper mine for approximately 10 years. Chacon became a union safety committeeman in 1977, and
vice-chairman of the union in January 1979. His duties as vice-chairman
included handling grievances. Chacon customarily presented safety
complaints of union members to management and apparently was the first
union representative to take complaints to MSHA. Chacon testified that
he drafted a letter complaining of a problem with signals that was
signed by the local union chairman and sent to MSHA in December 1978.
In addition, on January 31, 1979, Chacon delivered to Phelps Dodge's
management a grievance signed by him and approximately 71 other union
members complaining of unsafe and improper maintenance of cabooses.
Chacon participated in safety grievance meetings concerning this complaint on February 7-8, 1979. Chacon sent a letter concerning the
cabooses to MSHA on about February 21, 1979, after the allegedly
retaliatory acts in this case.

1_/

The Court of Appeals did not discuss the underlying discrimination
analysis and burdens of proof that we formulated in our Fasula decision,
but rather, on evidentiary grounds, held that the miner had been dis-·
charged for engaging in unprotected activity. Because the Court neither
approved nor disapproved our Fasula analytical tests, its decision does
not affect our application of these tests in the present case.
]:_/
The judge's decision is reported at 2 FMSHRC 1271 (1980).

2508

81-11-15

On February 5, 1979, Chacon derailed a train on a bench track l/
and the next day received a written warning over the incident for
"excessive speed" under a "slow order." The normal maximum speed for
trains on bench track at the mine is 15 m.p.h.; a "slow order" is a
notice written on a chalk board indicating that conditions require
slower speeds. No maximum speed was set in the slow orders involved in
this case. The February 6th warning, which was placed in Chacon's
employment file, stated that any repetition would subject Chacon to a
"more severe penalty. 11 Six days later, on February 12th, Chacon again
derailed a train and was suspended from work without pay for three days
for "excessive speed on slow order track .... " Chacon filed grievances
with respect to both the warning and the suspension; management rejected
his complaints.
The judge found that Phelps Dodge illegally retaliated against
Chacon for protected activity by placing the written warning in his
employment file and then suspending him for three days without pay. The
judge ordered Phelps Dodge to expunge the warning and any references to
the suspension from Chacon's file and to pay him three days' wages with
interest. The judge also assessed a civil penalty of $2,500.
II.

We first analyze whether the judge properly found that the Secretary
made out a prima facie case of a violation of section 105(c)(l).
4/ In
Pasula, we held that a prima facie case is established:
... if a preponderance of the evidence proves (1) that
[the miner] engaged in a protected activity, and (2) that
the adverse action was motivated in any part by the protected activity.
2 FMSHRC at 2799.

}j
A bench is a ledge, or step, in the bank of an open pit mine. Along
the Morenci pit benches, Phelps Dodge uses temporary, moveable track
panel referred to as "bench track."
!:±./
The judge issued his decision before we decided Pasula. Adapting a
discrimination test for the 1977 Mine Act from the D.C. Circuit's
description in Phillips v. IBMOA, 500 F.2d 772, 779 (1974), cert.
Eenied, 420 U.S. 938, of a prima facie case under the 1969 Coal Act, the
judge described the elements of proof that he believed the Secretary or
miner must meet: The miner has engaged in protected activity; adverse
action has occurred; and the adverse action "was motivated in at least
significant part 11 by the protected activity. 2 FMSHRC at 1281. This
formulation differs from our test in Pasula in that we determined that a
prima facie case requires only a showing that the adverse action was
motivated "in any part" by protected activity. Although this is an
important distinction, the judge found that the Secretary had satisfied
a stricter standard. Accordingly, the showing required by Pasula was,
in effect, satisfied as well in the judge's mind. The judge also
countenanced the presentation of an affirmative defense. He stated that
the operator may present legitimate reasons, or "justification," for the
punitive action alleged to be retali.atory. Id. at 1283-84. This comports
generally with the defense available to operators pursuant to our decisions
in Pasula and Robinette, 2 FMSHRC at 2799-2800; 3 FMSHRC at 818 n. 20. In
sum, because the judge applied an analysis that is a functional analogue
of our Pasula test, we believed that a remand for application of the
latter test would be pointless.

2509

The first element of a prima facie case is a showing that protected
activity occurred. The judge found that Chacon "as a representative of
miners--not just [as] a miner-- ... filed and made complaints under the
Act, including complaints notifying the operator of alleged dangers and
safety and health problems and ... ,as a union representative on behalf
of other miners, made such reports both to the mine operator and the
government agency charged with enforcing the Act." 2 FMSHRC at 1280.
That Chacon was a safety committeeman and presented safety complaints to
management is not disputed. Substantial evidence also supports the
finding that he played an important role in making safety complaints to
MSHA. There is no question that the complaints to MSHA were protected
activity. Furthermore, Chacon's safety complaints to management were
also protected activity. In relevant part, section 105(c)(l) broadly
protects the "fil[ing] or ma[king] [of] a complaint under or related
to [the] Act, including a complaint notifying the operator •.. of an
alleged danger or safety or health violation" (emphasis added). Thus,
we conclude that the first element was established.
The second element of a prima facie case is a showing that adverse
action was motivated in any part by protected activity. Direct evidence
of motivation is rarely encountered; more typically, the only available
evidence is indirect. As the Eighth Circuit, for example, has analogously
stated with regard to discrimination cases arising under the National
Labor Relations Act:
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.
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir. 1965).
In the present case, the judge found discrimination on the basis of
the following circumstantial indicia of discriminatory intent: knowledge
of protected activities; hostility towards protected activity; coincidence
in time between the protected activity and the adverse actions; and
disparate treatment of Chacon. We examine each of these indicia below.
The operator's knowledge of the miner's protected activity is
probably the single most important aspect of a circumstantial case.
Because subjective factors are involved, the operator's knowledge--like
the overall question of motivation itself--can be proved by circumstantial evidence and reasonable inferences. Cf. NLRB v. Long Island
Airport Limousine Serv., 468 F.2d 292, 295 (2d-Cir-:-i9"72). We agree
with the judge that there is substantial direct and indirect evidence of
Phelps Dodge's knowledge of Chacon's protected activity.

2510

As the judge found (2 FMSHRC at 1279, 1280), Chacon customarily
presented safety complaints to management as the union safety committeeman and, on January 31, 1979 (shortly before his warning and suspension),
delivered to Phelps Dodge a safety grievance signed by him and 71 other
miners. This protected activity obviously supplied knowledge of his
leading role in this area and Phelps Dodge does not contend otherwise.
We also agree with the judge that Phelps Dodge knew of Chacon's
complaints to MSHA. As the judge found, superintendent Olson revealed
his awareness of Chacon's activity at a grievance meeting in December
1978, shortly after safety complaints were sent to MSHA. 2 FMSHRC at
1279. At the beginning of that safety grievance meeting, which was
attended by Chacon and another representative of the union, Olson
angrily objected to the sending of safety complaints to MSHA. Tr. 5859, 173. Although Olson denied knowing who contacted MSHA, he expressed
his disapproval to Chacon and it is reasonable to infer from Olson's
testimony that his comments were directed toward Chacon. Tr. 168-169.
Hostility towards protected activity--sometimes referred to as
"animus"--is another circumstantial factor pointing to discriminatory
motivation. Cf. NLR~ v. Superior Sales, Inc., 366 F.2d 229, 233 (8th
Cir. 1966). The more such animus is specifically directed towards the
alleged discriminate:e' s protected activity, the more probative weight it
carries. We agree with the judge (2 FMSHRC at 1277, 1279, 1280) that
Olson's angry remarks to Chacon about the MSHA complaints, discussed
above, display a specific hostility towards Chacon' s protected activity.
The judge also properly relied on coincidental timing as another
indication of illegal motive. Cf. NLRB v. Long Island Airport Limousine
Service, C22J?_., Lf68 F. 2d at 29 5-296. Chacon received the warning on
February 6th, within one and one-half montl1s after MSHA was contacted.
The suspension on February 12th occurred only four days after Chacon
participated in safety grievance meetings resulting from a complaint
signed by 72 employees.
We hold that the substantial evidence of protected activity,
knowledge, specific hostility, and coincidental timing present here make
out a prima facie case that the adverse actions against Chacon were
motivated, at least in part, by discriminatory reasons. The most persuasive
aspect of this evidence is Chacon's leading role in the protected
activity; as the judge found (2 FMSHRC at 1279), "Chacon had created a
change in the force with which safety complaints were being handled by
the local union." The warning and susp.ension occurred after the "change
in force." Adverse action under circumstances of suspicious timing
taken against the employee who is the leading figure in protected
activity casts doubt on the legality of the employer's motive since such
conduct is the classic method of undermining protected activity. Cf.
NLRB v. _Fremont Mfg. Co., Inc., 558 F.2d 889, 891 (8th Cir. 1977). This
is not to say that the preceding factors will always make out a prima
facie case, but here we find them present in a combination adequate to
support a reasonable inference of partially unlawful motivation.

2511

In addition to the evidence discussed above, in finding a prima
facie case the judge relied heavily upon what he regarded as Phelps
Dodge's "disparate treatment" of Chacon. 2 FMSHRC at 1273-76, 1282.
While, in general, disparate or inconsistent treatment is an indirect
factor often indicative of discrimination (Cf. NLRB v. Melrose
Processing Co., 351 F.2d at 698), we find that there is not substantial
evidence of disparate treatment on this record.
The judge's disparate treatment finding rests on data concerning
the frequency of derailments and of resulting discipline at Phelps
Dodge. This data, provided in answers to interrogatories, shows that
derailments were common occurrences: 1,082 derailments occurred in
1977; 1,164 in 1978; and 77 in the month of September 1979. In 1977, no
warnings were given to engineers for derailments as a result of excessive
speeds. In 1978, four warnings were given to engineers for excessive
speed; three of the warnings do not indicate either speed prior to, or
the extent of damage from, the derailment. In the first 9 months of
1979, Phelps Dodge's records show three warnings for excessive speed
issued after Chacon's. Two warnings specified speeds of 15 and 20
m.p.h., respectively, and indicated damage "to track and locomotive" and
"tore up 7 or 8 panels"; the third warning did not show speed or damage.
The judge also noted that during 1976, 1977, 1978, and 1979 only one
employee other than Chacon was suspended for operating at excessive
speeds, and the speed and damage were not recorded. In that 4-year
period, 6 locomotive engineers, including Chacon (seen. 7 below), were
suspended for reasons other than excessive speed, but relating to operation. On the basis of the foregoing evidence, the judge concluded that
Chacon was subjected to "disparate treatment."
Typical forms of disparate treatment are encountered where employees
guilty of the same, or more serious, offenses than the alleged discriminatee
escape the disciplinary fate which befalls the latter. The Secretary
did not show either that other engineers similarly caused excessive
speed derailments resulting in damage--Chacon's alleged misconduct--but
escaped discipline, or that other engineers guilty of other equally or
more grave offenses received less or no discipline. The fact that many
derailments occurred does not by itself prove that they were caused by
excessive speed or operational misconduct. We cannot accept the judge's
implicit assumption (2 FMSHRC at 1282) based on the mere volume of
derailments that significant numbers involving excessive speed or other
operator error and serious damage occurred. On the contrary, the judge
found elsewhere in his decision that:
Derailments are common occurrences at the Morenci Mine ..••
Locomotive engineers experience a derailment at the rate of
approximately one per month. Derailments can occur at slow
speed as well as high speed because of defects in the rails,
the track generally, or the equipment. (Emphasis added).
2 FMSHRC at 1273-1274.
We emphasize that Phelps Dodge admitted at trial (Tr. 102-103, 185187) that mere derailments with resultant damage, unless caused by
operator error, would not ordinarily result in discipline. The raw data
provided does not show how many derailments resulted from excessive
speed or related factors; hence, from all that appears in the record,

2512

derailments caused by operator error may well have been relatively rare
occurrences. On the other hand, the record does show that in 1978 and
the first nine months of 1979, seven other engineers received excessive
speed warnings; between 1976 and 1979, one other engineer was suspended
for an excessive speed derailment, and five were suspended for operational infractions, such as running red lights. There is no evidence
that engineers who had excessive speed derailments causing serious
damage, or who were involved in similar incidents, escaped discipline.

_5/
In the foregoing context, Chacon 1 s discipline is not facially
anomalous. Hence, we cannot conclude that the data shows or supports
the inference that Chacon's treatment was inconsistent with company
practice. On the contrary, we think that the data does show that
Chacon's discipline was facially consistent with company practice, a
conclusion which pertains to the adequacy of Phelps Dodge's affirmative
defense. Given the rawness of the data, we do not find this derailment
evidence particularly persuasive for either party's case. §_/ As discussed above, however, we conclude that the Secretary demonstrated a
prima facie case of a violation without the data and without a showing
of disparate treatment. ]_/

2_/
After Phelps Dodge presented its defense, the Secretary offered the
testimony of Michael Cranford in rebuttal. Cranford described two
derailments, one before and one after the incidents in this case, that
resulted in a great deal of damage, but no discipline to the engineers.
No evidence was presented concerning either operational misconduct or
the speed at which the locomotives were traveling. We do not think this
evidence suffices to show disparate treatment.
q/
The rawness of the data was underscored by the Phelps Dodge witness
who gathered it. Richard Boland, the director of personnel services,
testified, for example, that he obtained the information on the number
of persons disciplined from grievance records. He stated that others
may have been disciplined, but the data he supplied in answers to
interrogatories would not show this if the engineers involved did not
file grievances. Tr. 189-191. He cited "sheer volume" as the reason
why additional records were not examined. Tr. 190. The Secretary did
not seek additional information or records either prior to the hearing,
or when Boland testified, or at the conclusion of the hearing. Thus,
the available data on "comparative" discipline is at least incomplete,
and probably somewhat "skewed" in the Secretary's favor.
]__/
We also disagree with the judge's.,somewhat confusing discussion of
burdens of proof regarding the numerical data presented.
(2 FMSHRC at
1282). The judge appears to suggest that the burden of proof was Phelps
Dodge's. On the contrary, the Secretary raised the possibility of disparate treatment in his prima facie case and, accordingly, he had to
shoulder the burden of showing it.
We also do not agree with the judge regarding two other inferences
that he drew. The judge found that a supervisor's reference to Chacon
as "your boy" on February 12th indicated "displeasure on the part of
management with Chacon" and was evidence of discriminatory motive. 2
FMSHRC at 1281-1282. The description of the "your boy" incident came
from superintendent Olson. He stated that shortly after the derailment,
he encountered shift foreman Pounds who said, "Your boy done it again."
(footnote continued)

2513

III.

As we stated in Pasula, Phelps Dodge may defend against the Secretary's
prima f acie case "by proving by a preponderance of all the evidence
that, although part of [its] motive was unlawful, (1) [it] was also
motivated by the miner's unprotected activities, and (2) that [it] would
have taken adverse action against the miner in any event for the unprotected activities alone." 2 FMSHRC at 2799-2800; see Robinette, 3 FMSHRC
at 818 n. 20. Phelps Dodge points to two factors in its defense.
First, Phelps Dodge asserts that its discipline of Chacon is consistent with company policy. As already discussed with regard to
disparate treatment, there is evidence that other engineers were warned
over excessive speeding incidents and others were suspended for serious
operational misconduct.
We also note that Chacon's discipline was not
inconsistent with his past employment record. As detailed in the
accompanying note, Chacon had some history of discipline both before and
after he became a union safety committeeman. ~/ Hence, we cannot conclude that it was an unprecedented disciplining of a miner with an
otherwise unblemished employment record.
Second, Phelps Dodge points to the seriousness of Chacon's two
virtually consecutive derailments which it alleges were caused by
excessive speed. A shift foreman indicated that damage and speed are
considered when imposing discipline. Tr. 166. Track panels cost $1,500
each. 2 FMSHRC at 1274; Tr. 104, 185. Chacon, himself, testified that
three to four "rails" (which the witnesses apparently treated as synonymous with "panels" in their testimony) were torn up in the first
derailment, and three or four more during re-railing. Tr. 66-67.
Chacon testified that three or four rails were also "turned up" in the
February 12th derailment. Tr. 75, 83. The shift foreman stated the
fn. 7/ cont.
Tr. 171, 177. Olson stated that he knew to whom Pounds referred because
he had heard of the derailment on a mine radio in his office. Tr. 171.
Pounds testified that he did not remember the conversation. Tr. 165.
Both men indicated that anyone who did something wrong on the job might
be referred to as "Olson's boy". Tr. 164, 177. In view of this testimony, we do not believe that the comment reasonably supports an inference of discriminatory hostility toward Chacon.
The judge also inferred that a disciplinary warning for excessive
speed delivered to another engineer shortly after the initial warning to
Chacon was "actual evidence of bad faith" and "smacks of action taken to
bolster the disciplinary action taken against Chacon." 2 FMSHRC at
1282-1283. As Phelps Dodge points out;- there was no evidence presented
regarding that incident. Accordingly, this finding is speculative and
we reject it.
a/
Chacon received a warning in December 1971, involving operation of
his train; a warning on June 18, 1972, involving a failure to control
his train and the derailing of a caboose; a disciplinary 3-day lay-off
on September 26, 1973, for running a light; a 7-day disciplinary lay-off
on December 22, 1973, involving an operating violation; a warning on
October 14, 1975, for failing to control his train which resulted in a
collision; a warning on March 14, 1977, for being AWOL; a warning on
August 28, 1977, for not wearing a safety hat; a 3-day suspension on
December 27, 1977, for AWOL; a warning on July 30, 1978, for an operating violation; a warning on January 8, 1979, for reading on the job; and
another warning on January 8, 1979, for not wearing a safety hat and
glasses.

2514

damage in the second incident was "terrible" and approximately twelve
panels were "completely demolished." Tr. 155. Another company wjtness
described the track as "demolished", but did not indicate a number of
rails or panels damaged. Tr. 108. In our opinion, the preponderance of
the evidence shows severe damage. In short, there is no real dispute
that Chacon's derailments caused several thousand dollars worth of
damage, although no evidence was introduced concerning the total cost of
his accidents or how it compared to damage caused in other accidents.
The more crucial question, however, is whether Chacon was traveling
at. "excessive" speeds under the slow orders and, therefore, was at fault
when the incidents occurred. As we noted above, derailments with
resultant damage are frequent occurrences and, unless operator misconduct. were involved in some way, discipline would not ordinarily be
imposed. Phelps Dodge bases its allegations of misconduct, i.e.,
"excessive" speed, on both the damage at the time of derailment and
speed tapes taken from Chacon's locomotives just after derailment.
Several company witnesses testified that they could determine from
damage alone whether an engineer's speed was excessive. Tr. 103, 138,
155. Assistant shift foreman Lines testified that on February 5, the
track was "pretty well tore up" (Tr. 135) and that he believed Chacon
had been travelling too fast. Tr. 136, 138. General mine foreman
Brooks stated that he believed Chacon's speed on February 12 was greater
than 11 or 12 m.p.h. "because the track was completely demolished." Tr.
108. Two witnesses testified that speeds above 10 m.p.h. are excessive
under a slow order. Tr. 122-23, 162. A third stated that 5-10 m.p.h.
is the proper speed under a slow order. Tr. 144. Phelps Dodge also
uses a device to record on tape the locomotives' speedometer readings.
The "speed tapes" are customarily checked after derailments and the
supervisor initials the tape at the point where derailment occurred. 2
FMSHRC 1274; Tr. 135, 155. Copies of Chacon's speed tapes were introduced at the hearing and a company witness testified that they showed
speeds of 16 m.p.h. on February 5, and 15 m.p.h. on February 12 just
before the respective derailments. Tr. 121; Exh. R-4. Phelps Dodge's
supervisory personnel consistently indicated at the hearing that they
rely on these speed tape records and damage-based estimates of speed.
Although Chacon testified that no one had ever specifically told
him what a slow order meant, Phelps Dodge's supervisors also consistently testified that the meaning of slow order is well known by their
engineers. Tr. 127, 138, 153-54. In partial agreement with the judge,
we conclude that the speed tapes and da~age-based estimates are probably
only roughly accurate. Nonetheless, as we explain below, we do not
agree with the judge's rejection of this evidence. In our opinion, the
judge improperly substituted his business judgment for that of Phelps
Dodge by his virtual exoneration of Chacon's conduct in the two derailment incidents and by his consequent rejection of Phelps Dodge's entire
defense as pretextual.
The judge rejected Phelps Dodge's claim that Chacon's speed was
excessive. He found that because the locomotive speedometers regularly
"bounce" or fluctuate between 5-15 m.p.h., the speedometers and speed
tapes were "unreliable as ... precise indicator[s] of speed," and that
the operating engineer is generally the best judge of a locomotive's
speed and of what a "safe and proper speed is." 2 FMSHRC at 1273. He

2515

treated Chacon's speed tapes as unreliable and credited Chacon's own
subjective estimates that he was travelling between 5-10 m.p.h. just
before the first derailment, and about 10 m.p.h. before the second. Id.
at 1277-78. The judge found that derailment damage is "not particularly
probative of ••• speed [because] other factors could [contribute to the
damage done]--including the weather, the conditions, the wetness, the
rain, and the like." Id. Finally, the judge criticized Phelps Dodge
for what he regarded as its faulty system of posting slow orders,
investigating derailments, and imposing discipline over any derailments:
••• If the Respondent wishes a forum or tribunal or
a court to recognize that there is some maximum speed
involved in the "slow order," then it should print or
publish such a maximum speed. It should teach its engineers what it is. It should spell it out on the call
board. It would then have the proof that it can come in
and say, "Look this is what it is," but to come into a
hearing and express an opinion, and there were different
opinions even among Respondent's witnesses apparently
as to what it meant, would seem to give it complete
latitute to say anything it would want in a tribunal.
If it wants to set a maximum, it should do it either
by printing it or at least when a "slow order" is
put up to specify what the maximum speed is. The
reliability of the speed recorder would still be a
problem from the standpoint of proof. So the affirmative defense that Respondent raised, in my opinion, was
not established by probative evidence that I can recognize.
Id. at 1283.
We hold that the judge exceeded appropriate limits in examining
Phelps Dodge's business practices. Of course, Commission judges must
often analyze the merits of an operator's alleged business justification
for the challenged adverse action. In appropriate cases, they may
conclude that the justification is so weak, so implausible, or so out of
line with normal practice that it was a mere pretext seized upon to
cloak discriminatory motive. But such inquiries must be restrained.
The Commission and its judges have neither the statutory charter
nor the specialized expertise to sit as a super grievance or arbitration
board meting out industrial equity. ff· Youngstown Mines Corp., 1
FMSHRC 990, 994 (1979). Once it appears that a proffered business
justification is not plainly incredible or implausible, a finding of
pretext is inappropriate. We and our judges should not substitute for
the operator's business judgment our views on "good" business practice
or on whether a particular adverse action was "just" or "wise." Cf.
NLRB v. Eastern Smelting & Refining Corp., 598 F.2d 666, 671 (1st Cir.
1979. The proper focus, pursuant to Fasula, is on whether a credible
justification figured into motivation and, if it did, whether it would
have led to the adverse action apart from the miner's protected activities.
If a proffered justification survives pretext analysis and meets the
first part of the Fasula affirmative defense test, then a limited
examination of its substantiality becomes appropriate. The question,
however, is not whether such a justification comports with a judge's

2516

or our sense of fairness or enlightened business practice. Rather, the
narrow statutory question is whether the reason was enough to have
legitimately moved that operator to have disciplined the miner. Cf.
R-W Service System Inc., 243 NLRB 1202, 1203-04 (1979)(articulating an
analogous standard).
Contrary to the judge, we conclude that Phelps Dodge successfully
defended by showing that it did have legitimate reason to regard Chacon's
first derailment as a misstep warranting a warning, regardless of the
ultimate truth of Chacon's and management's conflicting views on whether
he was speeding. Such warnings had been issued before; there was
credible reason, pursuant to Phelps Dodge's normal business practice, to
infer excessive speed; and the damage caused was apparently serious.
Once Chacon was warned over this first incident, the second derailment,
within one week and causing apparently severe damage, represented the
very occurrence warned against. With the second incident, there again
was evidence of possible speeding, and, again, suspension was facially
consistent with other discipline for operator misconduct. The fact that
the first warning notified Chacon of the possibility of more severe
discipline goes far, in our judgment, to show that Chacon would have
been suspended if he had a second speeding derailment--much less one
virtually on the heels of the first and causing severe damage. Most
importantly, we believe that Phelps Dodge demonstrated that, in the
exercise of its business and personnel judgment, it relies on speed
tapes and supervisory opinions on damage and speed in determining
whether to assess discipline. Even if this is "unjust" because the
speed tapes and supervisor's evaluations are not always completely
reliable, we cannot conclude that such reliance is, in effect,
"impermissible" under the Mine Act. Thus, we conclude that Phelps Dodge
established a legitimate statutory defense that it would have disciplined
Chacon in any event for the unprotected activities alone.
Treating the
Secretary's allegations of disparate treatment as an attempt to refute
this defense, we conclude, for the reasons already discussed, that the
refutation fails. In short, we conclude that substantial evidence does
not support the judge's rejection of Phelps Dodge's defense.

IV.
In sum, we agree with the judge that the Secretary proved a prima
facie case of a violation by showing protected activity and circumstantial evidence from which a reasona~le inference of at least
partially illegal motive could properly be drawn. We also hold, in
contrast with the judge, that Phelps Dodge successfully defended against
the prima facie case.

2517

Accordingly, the decision is reversed, the complaint dismissed, and
the penalty assessed against Phelps Dodge vacated.

2518

Commissioner Lawson dissenting;
The judge below found and the majority herein have affirmed that a
prima facie case has been established of a violation of section 105(c)(l)
by Phelps Dodge. I concur, and the evidence in support of that determina-·
tion is indeed substantial, well-documented, and undisputed. This case
therefore stands in fortunate contrast to other discrimination claims,
which have required for determination the weighing of the credibility of
frequently sharply diverging testimony by parties with totally contradictory versions of the facts. As the majority states:
We hold that the substantial evidence of protected activity,
knowledge, specific hostility, and coincidental timing present here make out a prima facie case that the adverse actions
were motivated at least in part, by discriminatory reasons.
Slip op. 4.
Inexplicably, the majority then holds that Respondent ••• "prov[ed]
by a preponderance of all the evidence that, although part of [its]
motive was unlawful, (1) [it] was also motivated by the miner's unprotected activities and, (2) that [it] would have taken adverse action
against the miner in any event for the unprotected activities alone.",
in claimed reliance on Pasula and Robinette, supra. Slip op. 2.
As to motive,l/ the unchallenged finding of the judge below is that
"the primary management figure engaged in the decision to issue the written
warning on February 6 and the three-day suspension on February 12, 1979,
was Mr. Joseph Roche, General Mine Foreman." ..• "it is clear that the
decision to suspend Chacon was made by Mr. Roche." 2 FMSHRC at 1279-80.
Roche was not called as a witness in these proceedings, and his mental
state or motivation, which is critical under the majority's rationale, is
therefore not of record. Nor does any reason appear why this clearly vital
witness, at the time of the hearing still an employee of Phelps Dodge, was
not produced by the operator at the trial, whose burden it was to establish
a permissible motive for the suspension meted out. The majority has therefore
gone outside the record to speculate as to Roche's motive or motives, despite
the lack of any evidence thereof.
As to whether Appellant would have taken adverse action against the
miner for the unprotected activities 'alone, a review of the factual
findings of the judge appears to be appropriate:
During the years 1976, 1977, 1978, and 1979, only one
of Respondent's employees, aside from Johnny Chacon, was
suspended from employment without pay for operating a
locomotive at an excessive speed causing a derailment.
Respondent's records indicate that one M. F. Naccarati
was suspended for 3 days for violating the Code and
that there was no record of the speed or damage.
2 FMSHRC at 1276
l/Motive is defined as "something within a person (as need, idea, organic
state, or emotion) that incites him to action ••. Webster's Third New Int'l
Dictionary (Unabridged).

2519

It appears that Chacon was the first, or from Respondent's
standpoint, the second employee ever suspended for an excessive speed derailment. I find that the statistical evidence
which I previously specified indicates that Chacon was treated
in a disparate manner. The general burden of establishing by
a preponderance of the evidence a case of discrimination is on
the Applicant. However, the burden of proof is on Respondent
as proponent of the rule that it urges in this case, that is
that Chacon was warned and suspended for operating a locomotive
at excessive speeds causing derailment. Thus, Respondent's argument that the Government has failed to show that there were other
derailments where excessive damage was done and where the locomotive engineer was not punished in retaliation for safety reporting activities in my judgment has no merit if the Government has
established otherwise a prima facie case. I would conclude that
the burden would shift to Respondent to show that there were
excessive speed derailments andthat the locomotive engineer did
receive a suspension. The Government has shown that such was
not the case clearly. The records furnished by Respondent in
answering the interrogatories show no such suspension other than
the Naccarati incident which is not sufficiently documented, in
my judgment, to count. So, I conclude on the basis of the
statistical information that the Government has established that
Chacon was treated disparately.
2 FMSHRC at 1282 (Emphasis added)
The majority avers that the Secretary raised the possibility of
disparate treatment in his prima facie case and accordingly, he had to
shoulder the burden of proving it. Slip op. 6. Pasula, however, upon
which the majority claims to rely, establishes no such test. Nor is
disparity the central issue, despite the majority's focus. The determination to be made is whether this miner was discriminated against.
All agree that he was. A showing that the discipline imposed was not
disparate is perhaps some indication that the operator was merciful,
not just, but does not without more negate a finding of discrimination.
Since Respondent (Appellant) has contended that there were other excessive
speed derailments, and the engineer[s] there involved were disciplined,
the burden of going forward with or presenting facts showing this to be
the case is properly--as the judge below held--that of Appellant.
The majority would require the Secretary to shoulder the burden of
proving a negative, that is, that other derailments claimed to be due
to excessive speed resulted in less or no discipline. Although the best,
indeed the only quantifiable, evidence presented does just that, the
information the majority demands is here, and will always be, in the
control of the operator, not the Secretary, and any explanation, exculpatory evidence or justification for the clearly facially disparate discipline
imposed on Chacon should have been offered by the operator. It was not,
and what the majority terms the operator's "affirmative defense" consequently fails. Slip op. 6.

2520

That evidence, and the record herein, reflects a railroad compared
to which the fabled Penn Central appears to be a model of operational
efficiency. In 1977, 1,082 derailments took place; in 1978, 1,164; and
in 1979 (up until September), 786 (for an annual rate of 1,148). Of
these extra-rail excursions, no warnings were given to Phelps-Dodge's
engineers for any which took place in 1977, four warnings were given to
engineers for "excessive" speed in 1978, 2/ in 1979 no warning for
excessive speed was given for any derailment prior to the one here
involved.1/
In summary, of 3,032 derailments recorded prior to Mr. Chacon's, in
only seven instances were engineers warned for "excessive" speed, and
only Chacon was penalized by imposition of a suspension for the claimed
violation of this operator's so-called slow order. And, as is undisputed,
mere derailments, even with resulting damage, would not ordinarily
result in discipline, unless caused by the engineer's error. Nevertheless,
it is asserted that "There is no evidence that engineers who had excessive
speed derailments causing serious damage, or who were involved in similar
incidents, escaped discipline." Slip op. 6. This begs the question of
the nature of the discipline imposed, which is so clearly disparate as
to need no embellishment.
In summary, the evidence established over 3,000 derailments with
only one suspension for excessive speed, that of Chacon in this case. It
is difficult to envision a stronger case of disparate or discriminatory
treatment. In short, the discipline here imposed was clearly not facially
consistent, it was rather facially inconsistent.
Moreover, no documentary evidence was presented, nor, it is undisputed,
does such exist, defining either a "slc;iw order", nor what is "excessive
speed". There has never been any posting or written expression or
publication by this operator defining these terms. The sole operator
attempt to inform its engineers concerning regulating locomotive speed
reflected in this record was the chalking of "slow order in effect" on
the mine blackboard in this case, despite the--again unchallenged--f act
that, as the judge below found, "slow orders" do sometimes specify
maximum speeds. 2 FMSHRC at 1274.
Indeed, this so-called "slow order" hardly rises to the dignity of
an admonition, much less an "order". An employer of this size and
sophistication would not appear to lack the capacity to credibly define
a slow order, and what constitutes a 'violation thereof. Nowhere in this
record is there any evidence that Chacon had been advised on the day in
question as to what, indeed, was a slow order, or what was a permissible
speed for the train he was operating.

±_/Three of these indicate neither the speed prior to, nor the extent of
the damage caused, by the derailment.

1/0£ these 1979 warnings issued after the instant derailment, two specified
speeds of 15-20 m.p.h., respectively, and indicated damage "to tracks and
locomotives" and "tore up seven or eight panels": the third showed neither
speed nor damage.

2521

Nevertheless, despite the absence of any written or published
definition of "slow order", if there existed even an unwritten understanding thereof, the majority's rationale for finding a violation of
that order would be supportable. But, as the judge below also found:
Under the Code of Safe Practice for Railroad Train
Operations applicable to the Morenci Mine, Exhibit
R-2, unless a so-called "slow order" is posted on
a call board, located for purposes of this proceeding
in a lineup shack, the maximum permissible speed on
good track which is to be observed by locomotive
engineers is 15 miles per hour for "bench tracks."
I note that the Code also provides that "track conditions may dictate speeds slower than those listed
above," which also is evidence that in the final
analysis the subjective judgment of the locomotive
engineer must determine what a safe and proper
speed is •••.
There is no written instruction or provision in operators'
manuals or in courses taught by either the Government or
the operator or elsewhere or otherwise which express what a
maximum speed is under a "slow order" ...•
Turning now to the incidents which resulted in the issuance
of the warning and the suspension I find that on February 5,
1979, Chacon was operating his locomotive on the bench proceeding towards the dump when his train was derailed. Chacon
was in the caboose which contained no speedometer. Chacon had
not been told by management either in writing or orally what
the maximum permissible speed was that he should do. There
was, however, a "slow order" in effect and (I find) that
Chacon was going no more than 10 miles per hour. I make
this finding on the basis of the following reasons: Various
witnesses for the Respondent have indicated that they can
tell or should be able to tell how fast a locomotive is going
within 2 or 3 miles per hour; that is, a locomotive engineer
should be able to make such a judgment. On the other hand,
Mr. Starr testified that he could estimate his speed above
5 to 7 miles per hour and that it is difficult at speeds above
5 miles per hour to determine exact speed. Mr. Chacon testified
that he was going between 5 ,_and 10 miles per hour and that he
could tell he was not going 15 miles an hour based upon his
experience. I conclude that Mr. Chacon, being the operator
of the locomotive at the time, is in the best position to
determine his speed .•..

2 FMSHRC at 1273, 1274, 1277
The majority's sua sponte adoption of the operator's defense that the
extent of the damage incurred, despite the establishment of a prima facie
case of discrimination, somehow rebuts the finding of a violation despite
the operator's own disclaimer that it would not impose discipline on that
basis, is also unsupported by the record. As-the judge found:

2522

I further find for similar reasons that gauging damage·-~
and surveying damage done·--is not particularly probative of the
speed that a train is traveling in a given instance. There
is testimony in this record with respect to factors which
could change that-·-including the weather, the conditions,
the wetness, the rain, and the like. The opinions given,
likewise, are suspect for the reason that gauging speed on
the basis of damage is not particularly susceptible to persua~
sive proof by the rendering of a mere general opinion. There
was really little corroboration beyond the expression of such
general opinions in this case. Certainly, these were not
sufficient evidence to overwhelm the testimony of the person
in the best position to gauge the speed, which in this case
is the operator himself. I also find no reason to discredit
the testimony of Mr. Chacon on this subject and on other sub··
jects contained in his testimony. The occurrence of derailments
is very frequent and can occur from many, many causes. To
attribute the derailments to excessive speed in this instance
would require a higher quality of proof than that presented by
Respondent. 2 FMSHRC at 1277~78.
The majority's opinion, ~hich concedes the fallibility of speed tapes
(Slip op. 10) fails to define what constitutes a proper speed under a "slow
order." Since the necessary predicate for the violation of a rule is
obviously the existence thereof, and the undisputed record is as set forth
I fail to perceive how Chacon can be legitimately disciplined for violating
such. The operator's rule claimed to have been violated lacks both specificity
and definition, so as to qualify as a restraint of whose existence an
employee could have fair notice.
Again, the judge 1 s opinion details the infirmity of the actual measure·ment of the speed:
I find that the needle of the speedometer fluctuates or "bounces"
regularly between 5 and 15 miles per hour based upon the testimony
of the locomotive operators who operate the same who testified in
this hearing. I find that the speedometer and the speed recorder
which records the speeds shown on the speedometer are unreliable
as a precise indicator of the speed of the locomotive based upon
the credible evidence in this proceeding. All witnesses who
testified on the subject conceded that to some extent there was
or there could be a variance between the speed shown on the speedometer and the actual speed being traveled.if
2 FMSHRC at 1273
The tape mechanism, in my judgment, is not sufficiently credible
based upon the testimony in this hearing for me to rely on it.
Were the speed-recording tape reliable, I would consider it to
be the best evidence and to have overwhelmed the opinions and
subjective judgment of the individuals. The testimony in this
case with respect to speed has been all over the lot. I do not
find it sufficiently accurate from the standpoint of Respondent
to credit it.
2 FMSHRC at 1277
4/In addition, following the February 12th derailment, repairs were made
to the speedometer of that locomotive. 2 FMSHRC at 1279.

2523

The majority, however, would hold that the judge has somehow exceeded
"appropriate limits in examining Phelps Dodge's business practices."
That excursion to me bears no relationship to the issues before us on
this appeal. Much more to the point is the existence of employer hostility
or animus toward an employee, necessarily strong evidence in determining
discriminatory motivation. Here the majority agrees with the judge that
the operator displayed a "specific hostility toward Chacon's protected
activity."
Slip op. 4.
This affirmation of the judge's findings of "obvious animosity" (2
FMSHRC 1284) was not disturbed by the majority. The logic of the majority's
opinion would compel a holding that the "substantial evidence of protected
activity, knowledge, specific hostility, and coincidental timing present
here •••• ", found to make out "a prima facie case that the adverse actions
against Chacon were motivated, at least in part, by discriminatory
reasons,", (Slip op. 4) are to be readily discarded if the discipline
imposed can be in some way found not to be disparate.
Henceforth, it would appear that the Secretary must examine all
disciplinary actions taken by the operator and submit these to the
judge who must then evaluate such for disparity of discipline. It would
be impossible for a single miner to prove disparate treatment, if no basis
for comparison is available. For the majority to have concluded that the
suspension here was proper, it must have determined that only Chacon's
derailment, of over 3,000 enumerated, resulted from improper train operation. That is manifestly impossible on this record. Animus is to me still
the touchstone in determining motivation, and its existence here is unchallenged. The majority's approach would appear, however, to border on indeed
requiring impermissible examination of an operator's '~usiness practices."
In short, an operator is now apparently granted broad license to
discipline an employee, motive notwithstanding. The moral of the story
would appear to be that penalizing more than one miner is permissible
under the Act, even discriminatorily, but a similar exercise of discipline against only one miner would apparently be impermissible. This
makes no sense as a matter of law or logic.
I therefore dissent.

A. E. Lawson, Commissioner

2524

Distribution
Ann S, Rosenthal, Esq,
Michael McCord, Esq,
Office of the Solicitor
U,S. Department of Labor
4015 Wilson Blvd,
Arlington, Virginia 22203
Stephen W. Pogson, Esq.
Evans, Kitchel & Jenckes, P.C.
363 North First Avenue
Phoenix, Arizona 85003
Administrative Law Judge Michael Lasher
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2525

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

November 24, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. VA 80~67-M

v.
LONE STAR INDUSTRIES, INC.
DECISION
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. §801 ~~· (Supp. III 1979). The
administrative law judge concluded that Lone Star Industries, Inc.,
violated 30 CFR §56.9-41, a mandatory safety standard, and assessed a
$6,000 penalty. ];/ The major issue before us is whether the judge erred
in his interpretation and application of section 56.9-41, which provides:
Only authorized persons shall be permitted to ride on trains
or locomotives and they shall ride in a safe position.
On the narrow grounds indicated below, we affirm the judge's decision. ];_/
I.

The essential facts are undisputed. The citation was issued following the investigation of a fatal train accident on August 10, 1979, at
Lone Star's Jack Plant, a stone milling facility located near Petersburg,
Virginia. The injury was suffered by a brakeman engaged in "dropping"
railroad cars.
1/

The judge's decision is reported at 2 FMSHRC 3440 (1980).
Chairman Collyer assumed office after this case had been considered
at a Commission decisional meeting and took no part in the decision
of the case. A new Commissioner possesses legal authority to participate in pending cases, but such participation is discretionary and is
not required for the Commission to take official action. The other
Commissioners reached agreement on the disposition of the case prior to
Chairman Collyer's assumption of office, and participation by Chairman
Collyer would therefore not affect the outcome and would delay issuance
of the decision. Accordingly, in the interest of efficient decisionmaking, Cha.irman Collyer elects not to participate in this case.
Former Commissioner Nease participated in considering this case and
voted to affirm the judge's decision, but resigned from the Commission
before the decision was ready for signature.

ii

2526

81-11-22

"Car dropping" is the movement of railroad cars down grades for
various loading and haulage tasks. At the Jack Plant, railroad hopper
cars are loaded by Lone Star employees from bins and then moved down a
.6% railroad grade to a storage yard.
At the yard, the loaded cars are
either parked or coupled with other parked cars prior to being pulled
away by a locomotive.
To start the cars down the grade, a dump truck or.
a bulldozer with rubber tires gives the cars a push.
A brakeman, or
near dropper," rides on the cars and, by operating a manual brake, is
responsible for controlling car speed, stopping the cars, and coupling
safely.
The brake and brake platfonn are located on one end of a car.
The
brakeman applies or releases the brake by turning a wheel while standing
on the brake platform.
No facility exists at the Jack Plant to position
the cars so that the brake platform end of each car uniformly faces in
one direction. As a result, the brake platform may be on the front of
one car and on the rear of the adjacent car.
Prior to the accident,
Jack Plant brakemen frequently rode in the front of the lead car.
Before the C'ars to be dropped are pushed, the brakeman is supposed to
make sure that the coupling device (called the "drawhead") on the lead
car is open so that the dropped cars can couple properly with parked
cars in the storage yard.
Once the pushing vehicle starts the cars moving, the driver of that
vehicle drives along a road that parallels the track and affords an
unobstructed view of one side of the tracks.
The brakeman observes the
tracks in order to adjust the speed of the cars if he notices an
obstruction or is notified of one by the driver of the pushing vehicle.
When the moving cars reach the storage area, the lead car couples with
any parked cars.
On the day of the accident, a broken water pump prevented the
loading of cars at the normal bin loading area.
Four coupled hopper
cars, only two of which had been loaded, were parked in the bin area
when the pump broke. All four were pushed back up the track by a bull-dozer to a stockpile loading ramp, an alternate loading site.
The car
against which the bulldozer was pushing was the one that would be the
lead car when the cars were dropped to the storage yard.
James Mays,
the bulldozer operator, testified that the lead car's drawhead wi::ls in
the open position when he began pushing the four cars to the alternate
loading site.
2 FMSHRC at 3!+L1l; Tr. 160. Mays also testified that the
bulldozer's blade was pushing directly against this drawhead, and his
testimony reflects that the initial impact of that operation may well
have closed the drawhead, an occurrence that had happened before "over
the years of pushing rail cars." Tr. 161·-163.
Once the two emply cars in the group of four had been loaded,
brakeman James Brown stationed himself on the front brake platform of
the lead car in the group to begin the drop.
Brown signaled Mays to
start pushing the four cars back down the grade.
Apparently, neither
Brown nor Mays checked to detennine whether the front drawhead was open.
The four loaded cars weighed about 338 tons,
After the initial push,
Mays drove the bulldozer alongside and past the four dropping cars to
the site where the cars were to couple with thirteen parked cars.
He
observed the fatal accident that followed.

2527

Just prior to coupling between the dropped and parked cars, Mays
noticed that the drawhead on Brown's car, which was to couple wit.h the
open drawhead on the rear of the thirteenth parked car, was closed. The
closed drawhead bypassed the open drawhead, causing the front car of the
moving four cars to collide with the rear of the parked car. The force
of the impact was of such magnitude that the thirteen parked cars were
driven forward some 13 feet, the four dropped cars rebounded approximately
eight feet, the wheels of the lead dropped car derailed, and the brake
wheel on the lead car made an imprint on the rear of the parked car.
When the front of the lead car hit the parked car, Brown was crushed
between the two cars.
Prior to the accident, the Jack Plant had a policy requiring car
droppers to wear safety belts while riding cars, but did not have any
other written safety rules pertaining to car dropping. The record does
not show that the plant had ever established a policy regarding a safe
speed for car dropping. '}_/ After Brown's death and the resultant citation, the Jack Plant adopted written car dropping safety rules prohibiting
front end riding, riding whiie only one car is being dropped, and the
dropping of more than three loaded cars at any time. 2 FMSHRC at 3445,
3446; Res. Exh. I.
The judge concluded that the front brake platform of the lead
dropped car was an unsafe position for the brakeman to have occupied
under the circumstances and, therefore, his riding in that position
violated section 56.9-41. 2 FMSHRC at 3447-52. The judge found that if
a possibility of front end collision exists during car dropping, riding
the front brake platform may present the potentially fatal hazard of
being crushed between the colliding cars. Id. at 3445, 3450. In determining that Brown rode in an unsafe position while car dropping, the
judge focused on three factors.
First, the judge found that there was a history at the Jack Plant
of miscoupling collisions caused by closed drawheads. 2 FMSHRC at 3443,
3449-50. He observed that cars being dropped at the plant "don't always
couple" with parked cars and "car droppers had been careless about
making certain that the drawheads were open at the time the cars were
started on their journey to the loaded car storage area." Id. at 3450.
Second, the judge noted that, although dropping cars had the right of
way, Lone Star itself "emphasized the fact that trucks make 1,200 trips
per day across the railroad tracks used for dropping cars." Id. The
judge reasoned:

]_/
The Jack Plant's sole rule regarding car dropping--requiring the
wearing of safety belts--was one of 42 basic safety rules in effect in
Lone Star's Chesapeake Division. In contrast, at the time of Brown's
death, Lone Star's separate South Atlantic Division, which did not
include the Jack Plant, had several written rules addressing safe
position and manner of operation during car dropping. One such rule
provided, "[u]nless absolutely necessary, never ride leading car down
grade end [;] [ r] ide between the cars or the trailing end." Another
provided that "[a]ny time three or more cars are dropped down the track
there should be two people braking the cars." 2 FMSHRC at 3444; Sec'y
Exh. 4.

2528

If [a vehicle] does get on the tracks and the car dropper
should be unsuccessful in stopping the cars being dropped at a time
when [he] is riding on the front car, [he] runs the risk of being
crushed against [the] vehicle which may stop on the tracks.
Id. Third, the judge found that groups of loaded cars being dropped are
extremely heavy and difficult to stop, thus increasing the risk of
collision:
The empty weight of each [hopper] car is 70 tons and its
loaded weight is about 84-1/2 tons . . • . After [groups of loaded]
cars ... start their journey, they can be stopped or slowed down
only by application of a single manual brake on one of the •..
cars . . . . The operator of the Jack Plant has been dropping cars
for 20 years and knows how much they weigh and how hard they are to
slow down or stop even when they are moving at a low rate of speed.
Id. at 3449.
The judge concluded that the uncontroverted facts of the accident
illustrated the dangerous interplay of these risks. He found that
because Brown was dropping four loaded cars "with 338 tons of weight
riding behind him," he would clearly find it difficult to stop or slow
down the cars and risked a heavy impact crash if a collision danger
arose from any source. 2 FMSHRC at 3449. In the judge's view, a forseeable collision risk was present: not untypically, the lead drawhead
was closed; the dropped cars attained significant momentum; upon contact
with the parked cars, the closed drawhead caused miscoupling; and the
combined weights of the thirteen parked cars and 4 moving cars generated
a huge force of impact which exposed the front-riding Brown to the
hazard of crushing. Id. at 3441-43, 3449-50.
II.
This case presents two major liability issues: first, what is the
proper interpretation of section 56.9-41, and second, applying this
construction to the facts, did a violation occur? At the outset, we
emphasize the following bounds to our decision.
We reject the broad language--essentially in the form of dicta--in
the judge's decision suggesting that front end riding while car dropping
is per se unsafe. Such a sweeping proscription is not supported by the
limited record in this case and necessarily involves safety and industrial
ramifications best addressed in the formal rulemaking context.
Further, we agree with Lone Star that the test of whether this
standard was violated cannot be made to turn on whether a fatal car
dropping accident occurred. While an accident may sometimes shed light
on an unsafe practice, it does not, by its mere occurrence alone, prove
a violation of any given standard. Plainly, the reasons for an accident
may have nothing to do with the substance of the standard allegedly
violated. Therefore, our analysis largely ignores Brown's death; our

2529

inquiry is only whether he was riding in an unsafe position when he
started his August 10 car dropping journey. We turn to the meaning of
section 56.9-41.
The cited standard, section 56.9-41--like the identical regulations
applicable to metal and non-metallic mines, 30 CFR §§55.9-41 and 57.941--applies to train riding in general, a subject which includes car
dropping in particular. Unlike the surface coal regulation that addresses
car dropping specifically, !!._/ section 56.9-41 focuses on only one aspect
of safe train riding: safe position. Section 56.9-41 is the kind of
standard made simple and brief in order to be broadly adaptable to
myriad circumstances. The relevant variables affecting safe position
are numerous, may differ from plant to plant, and may change from day to
day in any particular operation. Accordingly, a broad and flexible
standard is not misplaced in theory.
We therefore agree with the Secretary and Lone Star that section
56.9-41, as written, requires a "situational" approach to determining
safe position. To quote Lone Star:
The mandatory standard, 30 CFR 56.9-41, does not, by its
terms, prohibit or mandate riding a given rail car in a particular
position, or on any particular rail car of a group of rail cars.
Rather, in order to comply with the standard, an operator must
determine what position is "safe". We submit, therefore, that the
standard contemplates that what may be a safe position will vary
depending on the context in which it is applied.
Br. 6. See also Secretary's Br. at 6. This interpretation renders the
standard similar to the familiar and well established driving rule that
a vehicle must always be operated at a speed safe for the conditions of
the road at any given time. Speed and position are different concerns,
but in both instances safety is measured in terms of the variable surrounding circumstances.
Although we conclude that section 56.9-41, as written, lends itself
to reasonable construction and application under the circumstances of
th:U> case, we also conclude that the Secretary can and should provide
more specific guidance than he has on the subject of safe car dropping.
We urge the Secretary at least to publish in the Federal Register interpretive guidelines identifying and discussing variables relevant to safe
position during car dropping and the common dangers to be avoided during
dropping. Moreover, as section 77.1607(v) shows (n. 4 below), safe
30 CFR §§77.1607(v)-(aa) apply to car dropping. Section 77.1607(v)
is most relevant to the present case and provides:
Railroad cars shall be kept under control at all times by the
car dropper. Cars shall be dropped at a safe rate and in a manner
that will insure that the car dropper maintains a safe position
while working and traveling around the cars.
This regulation identifies four aspects of safe car dropping: keeping
the cars under control; dropping at a safe rate of speed; dropping in a
safe manner; and maintaining safe position.

!±_/

2530

position is not the only safety concern during car dropping.
Keeping
the cars under control and dropping at a safe rate of speed, to name two
obvious factors, are equally important. We therefore also urge the
Secretary either to rewrite the "9-41 series" or adopt supplemental
regulations in order to identify the other major aspects of safe car
dropping in addition to safe position.
Turning to the specific issues in this case, our interpretation
distills the liability problem into a question of whether, under the
circumstances present at the Jack Plant on August 10, was the lead front
brake platform an unsafe position for Brown to have occupied? 5/
III.

We first consider whether it can ever be said that the front end
brake platform is an unsafe position for car droppers.
As we have
already suggested, car dropping does not lend itself to per se safety
rules: what is safe at one time or place may be unsafe at another.
However, we affirm the judge insofar as he held that front end riding
m~ be unsafe.
The common sense of this view is obvious: given the
enormous weights of loaded railroad cars, a serious collision is likely
to be fatal to a dropper riding in the exposed front position. Moreover, Lone Star has presented no argument inconsistent with this approach,
This principle, however, has reasonable limits.
For example, where the
collision danger is remote, such riding may be safe.
In short, under
this approach, the safety of front end riding appropriately depends on
the relevant variables.
The essence of the judge's decision is a determination that on
August 10 the front brake platform was an unsafe position for Brown
because of the unique configuration of human and technological variables
affecting safe riding position at the Jack Plant. The judge expressly
focused on three conditions affecting safe position, and his decision
implies a fourth.
First, he found that at the ,Tack Plant there was a history of carelessness in keeping drawheads open during dropping, and that as a result
miscouplings and "bouncing-back" collisions were fairly common occurrences.
The facts of this case appear to illustrate this carelessness. As noted
above, the lead drawhead may well have been closed by the pushing vehicle
during the initial push back up the track to the alternate loading site,
a not unconunon occurrence when a drawhead was directly pushed.
Despite
that possibility, it appears that prior to the drop, no one checked
to see whether, in fact, the drawhead had been closed during the initial
push.
Lone Star does not deny this history of carelessness and, indeed,
concedes that the "vagaries of employee conduct" may be taken into
account in determining whether riding in a given position is safe.
Br. lL We agree with Lone Star that human performance factors are as
relevant to safety analysis as technological ones. On this point, we
believe the judge was correct insofar as he found that this "human
factor" created at least some risk of front end collision through miscoupling.

'2/

----

-

There is no dispute in this case that Brown was an "authorized
person" within the meaning of section 56. 9-41 (2 FMSHRC at 344 7) and
that normal brake platforms are safe positions in general.

2531

Second, the judge found that there were many vehicular crossings
of the dropping tracks--as many as 1,200 per day. Lone Star did not
deny this fact, but rather emphasized it before the judge (2 FMSHRC
at 3450) in support of its argument, analyzed below, that front end
riding is safer because it affords the best view of the tracks ahead
of the cars. We also agree with the judge that this heavy traffic
created another risk of front end collision. The presence of this
risk is borne out by the uncontradicted testimony of Mays (who frequently was a dropper) that cars being dropped had "occasionally
come in contact with vehicles crossing the tracks.'' Tr. 168.
Third, the judge found that the railroad cars were heavy and difficult
to stop, and that Brown was riding with a huge load behind him--676,000
pounds of moving weight. We do not interpret this finding as meaning
that Lone Star's cars were extraordinarily difficult to stop, and,
indeed, there is no evidence to that effect in the record. We think the
judge's decision merely means that given the factor of reaction time and
the physical laws of momentum and inertia, some time and distance must
be expended before these massive weights can be brought to a halt. We
do not believe that this factor alone can support the judge's conclusion.
Rather, we view it as a subsidiary consideration adding to the risk
largely created by the other factors.
Fourth, implied in the judge's findings is the additional consideration that, so far as the record discloses, Lone Star had no formal
or written policy regarding safe speed for dropping.
Considering all of the above factors together, we think that the
judge's conclusion that section 56.9-41 was violated is reasonable and
consistent with the evidence. While dropping a heavy group of cars,
Brown faced a risk of high impact collision either from a miscoupling
accident or an unsafe vehicular crossing. In this view of the case,
Lone Star's 20-year history of apparently fatality-free front end riding
was fortunate. The risks had been there for some time, and on August
10, luck ran out because a number of the worst hazards coincided.
Further, we agree with the judge (2 FMSHRC at 3450, 3452) that these
risks were not obscure or unique to Brown's drop. As we have already
noted, there had already been miscoupling and vehicular crossing collisions.
Hence, this is not a case where, from all that appeared, front end
riding was relatively safe and was judged unsafe after the fact merely
because something unexpectedly went wrong on one drop. In short, we
conclude that safe position depends on the circumstances and that the
circumstances present in this case at the Jack Plant rendered front end
riding unsafe.
Lone Star's several objections to the judge's finding of liability
lack sufficient weight to require reversal. Lone Star argues that the
judge improperly ignored uncontroverted evidence of the following variables
affecting safe riding position at the Jack Plant: the grade of the
tracks was virtually level; the tracks were straight and in good condition;
the brakemen were experienced; the brakes were of good quality; the
twenty-year history of car-dropping at the Jack Plant did not indicate a
risk of the accident of the type involved in this case; training programs
at the Jack Plant were more stringent than federal requirements; and the

2532

droppers wore safety belts. Lone Star concludes that "these factors
supported the practice of car droppers riding the front of the lead rail
car." Br. 8. We agree with Lone Star that these are relevant variables
generally affecting safe position and we think that the judge's decision,
both expressly and implicitly, recognized their presence at the Jack
Plant. However, the crux of the case is the additional presence of the
factors discussed above, l·~·· coupling problems, extensive vehicular
crossings, the time and distance required to stop heavy moving cars, and
the absence of a formal policy regarding safe dropping speed.
Before the judge, Lone Star also contended that front end riding
affords droppers probably the best view of the tracks ahead of the cars
and that, therefore, even if some collision risks are present, they are
best avoided by positioning the dropper where he can see them best and
take preventive action. 2 FMSHRC at 3450. The judge rejected this
argument by pointing to the difficulty of stopping the cars. Id. We
do not entirely agree either with the judge or with Lone Star.
We agree with Lone Star insofar as it suggests that front end
riding may sometimes be safe'because of the enhanced view it affords,
and our decision so recognizes. Nevertheless, if due to other variables, there is an unusual risk of front end collision and some compensating means of providing safe viewing, it is only prudent to avoid
the risk by stationing the dropper elsewhere. The fatal flaw in Lone
Star's argument is its failure to argue away the risk of front end
collision generated by the miscoupling problems and heavy crossing
traffic at the Jack Plant. As the judge found (2 FMSHRC at 3446, 3450),
a dropper riding in the rear can view one side of the tracks while the
pusher vehicle driver views the other. While this procedure is somewhat
cumbersome, the judge found that Lone Star's adoption of it after the
accident had proved feasible and safe. Id. at 3446. Lone Star does
not argue otherwise.
Lone Star also argues that the "real" cause of Brown's accident was
his negligence in failing to ensure that the coupling was open and in
dropping the cars at an excessive speed. We do not doubt that Brown's
actions contributed to the risks present on August 10. However, there
was a history of miscoupling problems and resultant collisions at the
Jack Plant, and the record does not show that Lone Star had established
any formal policies regarding safe dropping speed. These latter factors
were general risks present when Brown started his drop. In our view,
his handling of the cars did not suddenly or anomalously create new
risks or disclose unsuspected safety variables. Rather, his handling of
the cars merely illustrated the existence and consequences of the risks
already present. ~/
~/

At the hearing, Lone Star partially relied on an internal legal
memorandum prepared by the Secretary's Solicitor's Office for MSHA
(2 FMSHRC at 3445, 3451; Res. Exh. A), and attached a copy of the memo
to its petition for review. The memo discusses the surface coal regulation on car dropping (30 CFR §77.1607(v)(see n. 4 above)), and includes
the opinion that the "flexibility of the standard allows MSHA to exercise
judgment in determining what is a 'safe' position for car droppers."
Res. Exh. A, p. 1. The memo expresses the view that, depending on
particular circumstances, front end riding may be unsafe (id.), and
footnote 6 cont'd

2533

In sum, we think Lone Star fails to rebut the judge's finding that
Brown was riding in an unsafe position given the circumstances at the
Jack Plant. Therefore, the judge's liability finding, narrowly construed, is affirmed.
Finally, the judge assessed a $6,000 penalty largely on the basis
of the degree of Lone Star's negligence and the gravity of the violation.
2 FMSHRC at 3453-54. The judge focused on what he regarded as Lone
Star's negligent failure to promulgate written safety rules pertaining
to safe car dropping. Id. The judge also noted Lone Star's good faith
compliance and its "safety-minded" record in other respects. Id. at
3453. On review, Lone Star raises only a narrow penalty issue: the
propriety of the judge's finding that it was negligent in not having
written rules on car dropping.
We agree with the judge that Lone Star's failure to control more
effectively such underlying variables as safe drawhead opening, coupling
procedure, and vehicular crossing of the tracks, is evidence of negligence, although we do not believe such control necessarily had to be
effected through written rules. The judge's penalty assessment is based
on the evidence and reflects correct consideration of the penalty
criteria set forth in section 110 of the Mine Act. The penalty is
appropriate under the circumstances of the case and will not be disturbed. See Shamrock Coal Co., 1 FMSHRC 469 (1979).
For the foregoing reasons, we affirm the judge's decision.

fn. 6 cont'd
recommends that i f MSHA determines that front end riding is per se
unsafe, or wishes to find it unsafe "on the basis of individual circumstances,"
it should first apprise industry of this viewpoint to "allow an opportunity
for compliance." Id. at 2. The judge concluded that his decision was
entirely consistent with the memo's opinion that front end riding may be
unsafe, "depending on the circumstances involved in a given situation."
2 FMSHRC at 3451. We do not think that the memo injects any major
liability issue into this case on review. Lone Star now chiefly cites
it for the proposition that section 56.9-41 requires a situational
analysis to determine whether any particular riding position in unsafe-an interpretation with which we agree, as discussed above. We also think
that although the Secretary should provide further guidance on safe car
dropping in the future, the situational risks at the Jack Plant were
highly forseeable and Lone Star should have prohibited front end riding
until they were removed.

2534

Distribution
William I. Althen, Esq.
Michael T. Heenan, Esq.
Smith, Heenan, Althen & Zanoli
1110 Vermont Ave., N.W.
Suite 420
Washington, D.C. 20005
Ann Rosenthal, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Richard Steffey
FMSHRC
5203 Leesburg Pike. 10th Floor
Falls Church, Virginia 22041

2535

Administrative Law Judge Decisions

2536

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

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

)
)
)
)
)
)
)
)
)
)

MOV 2

CIVIL PENALTY PROCEEDING
DOCKET NO. DENV 79-569-PM
A/C No. 05-03169-05002 V
MINE: San Miguel County
Screening Plant

Appearances:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Petitioner
John Horn, Esq.
County Attorney
San Miguel County
P.O. Box 482
Telluride, Colorado

81435
For the Respondent.

Before: Judge Virgil E. Vail
DECISION
STATEMENT OF THE CASE
The above captioned civil penalty proceeding was brought pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a) [hereinafter referred to as "the Act"].
Pursuant to notice, a hearing was held on March 10, 1981 at Grand
Junction, Colorado.
STIPULATIONS
At the commencement of the hearing, the parties offered the fol lowing
stipulations:

2537

1. Respondent admits the viol1tion as alleged in Citation no.
1
325901. I
2. Respondent admits that it is the operator of the mine located at
Sliprock, Colorado, the location where Citation no. 325901 was issued.
3.

The Administrative Law Judge has jurisdiction of this case.

ISSUE
The only issue left to be determined was what penalty should be
assessed for the violation of mandatory safety standard § 56.14-1.
PENALTY ASSESSMENT
The parties presented testimony relating to the six criteria as set
forth in 30 U.S.C. § 815 for determining the appropriate amount of the
penalty.
The evidence showed that Rosendo Trujillo, a federal mine inspector,
issued Citation no. 325901.on June 29, 1978. He cited the respondent for
failing to have the pinch point on a drive chain guarded. (Tr. 6). The
drive chain was approximately three feet long and a half to two feet from
the ground. (Tr. 6 and 9). Mr. Trujillo issued the citation based on his
belief that an employee could get caught and pulled into the chain, thereby
losing an arm or leg.
I

Respondent presented the testimony of their road foreman, Clifford
Geisinger, who had accompanied Mr. Trujillo during the inspection. Mr.
Geisinger testified that it r,.rould be difficult for anyone to get caught in
the pinch point. He based his belief on the fact that the bin protrudes
out at an angle above the chain. Because of this, a person would have to
crouch or bend over to get close to the chain. (Tr. 10). He stated that in
the eighteen years that he had worked with the machine there had never been
an injury and the pinch point had never been guarded. (Tr. 10).
The respondent has no prior history of any violations. Also, I find
that respondent's negligence was only slight. However, the fact that there
had been no prior injuries and that the guard would be inconvenient, since
it has to be removed periodically for cleaning purposes, are not mitigating
circumstances.
Respondent did not demonstrate good faith in abating the citation.
Mr. Geisinger told the inspector he would not put a screen on until he had
orders to do so. The same day the citation was issued, Mr. Geisinger spoke
with the Commissioners and was told to keep running the machine without the
guard. (Tr. 11).

1/ Citation 325901 provided, in part that, "The chain drive powering the
pan feeder by the tail pulley was not guarded ... "

2538

The penalty proposed by MSHA was $1,000.00. At the hearing, counsel
for the petitioner stated that he thought this was in error. Counsel
stated that he felt that the $1,000.00 penalty was meant to apply to
Citation no. 325052, which was issued for failure to abate. Citation no,
325052 was not the subject of the hearing.
Based on the testimony of the witnesses and counsels' comments I
approved a penalty in the amount of $100.00.
If the respondent has not already done so, the $100.00 should be paid
within forty days from the date of this decision.

01~~~~-

Virgi~~ Vail

Administrative Law Judge
Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
John Horn, Esq.
County Attorney
San Miguel County
P.O. Box 482
Telluride, Colorado

81435

253B

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

IOV 3 \00\
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. PENN 81-111
A.O. No. 36-03425-03069

v.

Maple Creek No. 2
UNITED STATES STEEL CORPORATION,
Respondent
DECISION
Appearances:

David T. Bush, Attorney, Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the petitioner;
Louise Q. Symons, Esquire, Pittsburgh, Pennsylvania,
for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalties
filed by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), charging
the respondent with two alleged violations issued pursuant to the Act and the
implementing mandatory safety and health standards. Respondent filed a timely
answer in the proceeding and a hearing was held on September 24, 1981, in
Pittsburgh, Pennsylvania, and the parties appeared and participated therein.
The parties waived the filing of posthearing proposed findings and conclusions, but were afforded the opportunity to make arguments on the record and
those have been considered by me in the course of this decision.
Issues
The principal issues presented in this proceeding are (1) whether respondent has violated the provisions of the Act and implementing regulations as
alleged in the proposal for assessment of civil penalties filed in this proceeding, and, if so, (2) the appropriate civil penalties that should be
assessed against th~ respondent for the alleged violations based upon the
criteria set forth in section llO(i) of the Act. Additional issues raised by
the parties are identified and disposed of in the course of this decision.

2540

In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty
to the size of the business of the operator, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

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

4.

30 C.F.R. § 75.1403 provides as follows:

Other safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards
with respect to transportation of men and materials shall
be provided.
Section 75.1403-1 provides:
(a) Sections 75.1403-2 through 75.1403-11 set out the
criteria by which an authorized representative of the Secretary will be guided in requiring other safeguards on a mineby-mine basis under § 75.1403. Other safeguards may be
required.
(b) The authorized representative of the Secretary
shall in writing advise the operator of a specific safeguard which is required pursuant to § 75.1403 and shall
fix a time in which the operator shall provide and thereafter maintain such safeguard. If the safeguard is not
provided within the time fixed and if it is not maintained
thereafter, a notice shall be issued to the operator pursuant to section 104 of the Act.
(c) Nothing in the sections in the § 75.1403 series
in this Subpart 0 precludes the issuance of a withdrawal
order because of imminent danger.
Stipulations
The parties stipulated to the following:
1.

The respondent owns and operates the subject coal mine.

2541

2. The inspector who issued the citations in this case was acting in his
official capacity as a designated authorized representative of the Secretary
of Labor.
3. Respondent is subject to the Act, and I have jurisdiction to hear
and decide the case.
4. The citations which were issued in this case were properly served on
an agent of the respondent, and copies of the citations issued may be admitted
in evidence.
S. The penalty assessments in this case will not adversely affect the
respondent's ability to remain in business.
6. Annual mine production at the subject mine for the year in question
was 965,508 tons, and respondent's overall mine production for the same period
of time was 15,849,000 tons.
7. The conditions cited in the citations were timely abated by the
respondent in good faith.
8. A computer printout showing the previous history of violations for
the subject mine was admitted without objection (Exh. G-3).
DISCUSSION
In this case, Safeguard Notice No. 1 CBC was issued on July 26, 1973,
pursuant to section 75.1403, and it provides in pertinent part as follows
(Exh. G-2):
The No. 18 haulage locomotive was being operated in the
5 Flat haulage track in 5 Flat 50 room section and was not
equipped with a lifting jack and bar. All track locomotives
operated in this mine shall be equipped with a suitable
lifting jack and bar.
Section 104(a) Citation No. 845403, December 9, 1980, cites a violation
of 30 C.F.R. § 75.1403, and the condition or practice cited is described as
follows:
The No. 8 locomotive being operated by Tim Jansante in
the 8 flat room section I-D 011 was not provided with a suitable lifting jack. The No. 8, 13-ton locomotive is used to
pull coal from this section. Foreman in charge Ron Franczky.
Notice to provide safeguard 1 CBC 7/26/73.
Safeguard Notice No. 1 RCM was issued on April 26, 1974, pursuant to section 75.1403, and it provides in pertinent part as follows (Exh. G-5):
The sanding devices installed on no. 7 self-propelled
mantrip car were in-operative and three (3) sanding devices

2542

were (empty) not provided with sand. All haulage equipment
equipped with sanding devices shall be maintained operative,
and provided with sand.
Section 104(a) Citation No. 845404, December 9, 1980, cites a violation
of of 30 C.F.R. § 75.1403, and the condition or practice cited is described
as follows:
Two of the four sanding devices provided on the No. 8
18 ton locomotive being operated in the 8 Flat 5 rm. 011
were inoperative. This locomotive was being operated by
Tim Jansante and is used to pull coal from this section.
Foreman in charge Ron Franczky. Notice to provide safeguard 1 R.C.M. 4/26/74.
Petitioner's Testimony and Evidence
,
MSHA inspector Francis E. Wehr testified as to his background and experience and he confirmed that he inspected the mine in question on December 9,
1980. He also confirmed the fact that he issued a citation pursuant to section 75.1403, after finding that the No. 8 locomotive was not equipped with
a suitable lifting jack, and that it was required to have such a jack in
light of a previous safeguard notice issued at the mine. The previous safeguard was issued on July 23, 1973, and it required that all mine locomotives
be provided with such jacks. The locomotive which he cited did not have such
a jack when he observed it (Tr. 10-16).
Mr. Wehr testified that the purpose of the safety jack was to assist in
placing a locomotive back on the track in the event of a derailment. When he
inquired of the locomotive operator as to why the jack was missing, the
operator replied that he did not know and he commenced looking for one. The
operator eventually found a jack lying against the coal rib some 50 feet from
where the locomotive was parked (Tr. 16-19).
Hr. Wehr confirmed that he also issued a second citation after finding
that two of the four locomotive sanding devices were inoperative, and that
this condition also constituted a violation of section 75.1403 because a
previous safeguard notice had been issued requiring such devices to be maintained in proper working order. He determined that the sanding devices in
question were inoperative by asking the locomotive operator to activate them,
and when he did, two of the four would not disperse sand on the track.
Mr. \-Jehr also indicated that he also activated the sanding device levers, but
that no sand would disperse on the tracks. Abatement was achieved by making
an adjustment to the levers, and upon testing the levers after the adjustment
was made, sand was dispersed on the tracks and he terminated the citation
(Tr. 19-26).
Mr. Wehr testified that when he spoke with Locomotive Operator Jansante
and asked him whether he had a jack, Mr. Jansante indicated that he had no
knowledge as to whether he did or not. Since Mr. Jansante had no knowledge

254:1

as to whether he had a jack on the locomotive, Mr. Wehr believed it was
reasonable to infer that he probably would have operated the locomotive without the jack (Tr. 48-49). A jack was subsequently found within 5 minutes or
so, and it was located some 50 feet from the locomotive (Tr. 49). As for the
sanding citation, he conceded that the sanders in question were filled with
sand, and that he issued the citation because no sand was dispersed when the
levers were initially activated (Tr. 50).
On cross-examination, Inspector Wehr testified that he first came upon
the locomotive underground at approximately 10 a.m., and that he had first
proceeded to the face area before returning to the area where the locomotive
was parked. He could not recall passing the locomotive on his initial way to
the face. The locomotive operator was in the area, but he could not recall
going to the dinner hole to summon him, and he could not recall whether
road work was going on or whether the track rails in front of the locomotive
were jacked up. He also stated that he made no particular effort to determine
whether the locomotive had been used the day of the inspection, but believed
that it had been moved to facilitate coal loading. He did not ask the operator whether it had been moved, and he could recall no road work going on
between the location of the locomotive and the coal-loading point. Although
Mr. Wehr stated that he was aware that company policy required a locomotive
operator to check the sanders and the presence of a jack before moving a
locomotive, he did not ask the operator whether this had been done. He
conceded that company policy dictated that this be done before a locomotive
is moved (Tr. 26-29).
Mr. Wehr stated that at the time he viewed the locomotive, coal production had started at the face area, and he did not believe it unusual to find
one or two people still in the dinner hole. In his view, if a jack is taken
off a locomotive for the purpose of lifting track directly in front of the
locomotive, or in close proximity thereto, then a violation would not occur.
However, he indicated that he would have to investigate all of the circumstances to ascertain whether the jack was in fact removed from the locomotive
for that purpose, or whether the locomotive had no jack in the first instance
(Tr. 29-31). He confirmed that he made no investigation to determine whether
the locomotive had been moved without a jack being on it, nor could he determine whether the locomotive would have been moved without a jack being placed
on it. The jack which was ultimately placed on the locomotive to abate the
citation was located inby the area where the locomotive was parked and he
did not believe that the person who found it knew precisely where to look
for it (Tr. 30-33).
With regard to the inoperative sanders, Mr. Wehr stated that he initially
activated the sanding levers in question, and while the levers traveled to
their full position, no sand was deposited on the tracks below. He left the
area after informing the locomotive operator that he was under a citation,
and he was later called back and informed that an adjustment had been made
to the levers and they were in fact operable (Tr.36-39).
Mr. Wehr stated that normal coal production begins at approximately 8 a.m.
when the shift begins, but he made no notes as to when coal was actually loaded.

2544

He observed the locomotive at 10 a.m., and if in fact production and loading
began at 8 a.m., that would have been sufficient time for the locomotive operator to have made his preshift locomotive inspection (Tr. 51). Mr. Wehr also
indicated that there was nothing to indicate that Mr. Jansante was aware
that the sanders in question were inoperative and he said nothing to indicate
that this was the case (Tr. 51-52). Mr. Wehr stated that once the operator
was told that a citation was being issued, no one knew where to look for the
jack, and he had to point out the location where he observed the jack against
the rib (Tr. 64).
Inspector Wehr referred to notes which he had made at the time the citations were issued, and he stated that his notes reflect that at 9:10 a.m., he
was at the face area where he issued another citation for a roof-bolting violation. That citation was abated at 9:40 am., and at 10:20 a.m., he observed
the locomotive and detected the defective sanders (Tr. 105-106). He stated
that he issued the citations because coal production had started, people were
on the section, cars were being loaded, and he assumed that the pre-operational
equipment checks had been made. He believed that there were three or four
mine cars present for loading coal, and that possibly two or three were loaded,
but he was not sure (Tr. 110).
Although Mr. Wehr indicated that he made no notes as to whether coal
production had started and that he personally observed no coal being loaded,
he did recall one mine car being loaded (Tr. 53). He conceded that the locomotive which he cited was located outby the loading point, and that he saw
no locomotive being moved (Tr. 53-54).
In response to bench questions, Mr. Wehr indicated that the locomotive
in question did have a jack bar, and that the jack which was missing was
retrieved within 5 minutes and placed back on the locomotive (Tr. 55). He
also confirmed that each mine section has two lifting jacks present for use
in jacking up shuttle cawrs, changing flat tires, etc. (Tr. 56). He believed
that the jack which was found was not the same one which may have been on the
locomotive because the one which was eventually placed on the locomotive was
first observed by him lying against the rib. Since it had rock dust on it,
he believed that it had been there for a while. He also indicated that he had
seen the jack propped against the coal rib before he issued the citation and
that is why he stopped to check the locomotive in the first place (Tr. 5758).
Respondent's Testimony and Evidence
Timothy G. Jansante, currently employed by the Post Office Department,
testified that he previously worked for the respondent as a locomotive
motorman. He testified that on December 9, 1980, he was in the "dinner hole"
having a snack before the start of his work shift when the inspector appeared
at approximately 9 a.m., and inquired as to who would be operating the No. 8
locomotive. He acknowledged to the inspector that he was the operator and
when the inspector asked ~hether he had a jack, he replied that he did not
know and he did so because he had not started his shift, nor had he hauled

254~5

any coal with the locomotive. Mr. Jansante indicated that as far as he knew,
the shift in.nediately prior to his was a down shift, and that the locomotive
was used prior to the down shift to haul coal. He also indicated that prior
to operating the locomotive his normal routine is to check for the jack, and
inspect the sanders, brakes, and lights: If any defects are detected, he
would take care of minor problems, and major problems are reported to the
dispatcher (Tr. 77-81).
Mr. Jansante stated that since he had not checked the locomotive, he had
no idea where the jack was located. As for the sanders, he indicated that
although the lever worked most of the time, "once in a while" it would stick.
On the day in question, after the inspector observed that it would not work,
he (Jansante) climed up into the locomotive and started kicking the lever, and
he indicated that "that's how I got it free and the sanders started to work"
(Tr. 81). He obtained a jack about a block or so from where the locomotive
was parked and he did so after the section foreman advised him where it was
located. The foreman also advised him that road work was going on during the
previous shift and he (Jansante) believed the jack was used to facilitate the
blocking of track. When asked whether any road work was going on during the
shift, he replied "there was no road work going on," and that "they don't
do any road work when they are loading coal" (Tr. 82-83).
Mr. Jansante stated that from his experience with previous locomotive
derails, placing it back on the track with a jack was difficult, and he
denied that he would have moved the locomotive had he discovered that the
jack was missing or that the sanders were inoperative. He did not believe
that the inspector was present when he finally got the sanders to operate,
and he did not discuss the inoperative sanders with the inspector and "just
did what he asked me to do" (Tr. 84). He also testified that coal was being
loaded at the time, but that he had not hauled any with the locomotive (Tr.
85).
.
On cross-examination, Mr. Jansante confirmed that until the inspector
pointed out to him that the jack was missing from its usual place on the
locomotive, he was unaware that it was missing. He also confirmed that
the locomotive could have been operated along the track from where it was
parked, but that he was the only authorized operator assigned to operate it
on the shift in question. He believed that the inspector advised the section foreman as to where the jack which was retrieved was located and that
the section foreman in turn advised him where it could be found. As for
the defective sander lever, he acknowledged that the same condition may have
existed "a couple of times" during the previous 2 years. He also confirmed
that once the lever was "forced" by kicking it, it operated properly. He
stated that given the opportunity, he would have checked his locomotive
before operating it, but that he had no opportunity to check it before the
inspector got to it and issued the citations (Tr. 83-88). He also indicated
that if the locomotive had been inspected on the prior shift and found to be
defective, the condition would have been noted, but that was not the case as
far as he knew since no one informed him that the sanders were inoperative
or that the jack was missing. He acknowledged that someone had to drive the

2546

locomotive to the ramp where it ws parked when the inspector observed it (Tr.
89 ).

Fact of Violations
--·----The citations issued in this case concern alleged violations of the
safety standards dealing with transportation of men and materials promulgated
pursuant to sections 101 and 314(b) of the Act. Section 314(b), which is
codified at 30 C.F.R. § 75.1403, authorizes an inspector to issue safeguard
notices, which in his judgment will adequately minimize hazards connected with
the transportation of men and materials in a particular mine. The regulatory
criteria under which a mine inspector is required to be guided in issuing safeguard notices for a particular mine are those set forth at sections 75.1403-2
through 75.1403-11.
It seems clear that the purpose of issuing safeguard notices is to initially bring to the attention of a mine operator conditions or practices in
the mine which require attention in order to minimize or eliminate hazards
with respect to the transportation of men and mateials in the mine. Safeguards are issued on a mine-by-mine basis, and once issued, they become
mandatory for the particular mine in which they are issued. Pursuant to
section 75.1403-l(b), once a safeguard notice is issued, the mine operator
is required to provide the safeguard within the time fixed by the inspector.
The operator is also required to thereafter maintain the safeguard, and if
he does not, a citation may issue pursuant to section 104 of the Act.
In my view, the use of safeguard notices is a rather unusual practice.
Absent any specific mandatory safety standard to guide a mine operator, the
inspector has discretion under section 75.1403 to require a mine operator to
comply with a safeguard which the .inspector believes will minimize a perceived
hazard connected with transportation of men and materials. In short, the
inspector is authorized to issue safeguards which in effect become mandatory
standards for the particular mine, and the operator has no opportunity to
challenge the inspector's initial judgment or to provide any comments or
suggestions regarding a particular safeguard. The only opportunity for an
operator to challenge the inspector's judgment is during a hearing after a
noncompliance citation is issued. In these circumstances, I believe that
safeguard notices should be strictly construed, and the inspector must follow
the criteria stated in section 75.1403-1. In this regard, I take note of
prior decisions by Judge Michels in MSHA v. Jim Walter Resources, Inc.,
BARB 78-652-P, 1 FMSHKC 1317 (September 4, 1979). vacating a citation after
finding that an operator was not in violation of the specific terms of a
previously issued safeguard notice, and Judge Broderick in MESA v. Jones
& L~ughJin Steel Corporation, PITT 77-31-P (March 24, 1979)~ where he
vacated a citation issued for a violation of section 75.1403, after finding
that the operator had not failed to comply with a previously issued safeguard notice requiring the operator to provide safe riding facilities for
persons riding on a locomotive. Additional reported cases dealing with

2547

violations of the safeguard notice provisions of section 75.1403 are as
follows:
In MSHA v. Sewell Coal Company, WEVA 79-293, 1 FMSHRC 96 (January 24,
1980), Judge Bernstein affirmed a citation for a violation of section
75.1403-6(b)(3), after finding that a track-mounted, self-propelled personnel
carrier had only two of its four sanding devices in operational working order.
The facts reflected that at the time of the citation, the vehicle was about
tQ carry seven men into the mine over some narrow and steep terrain.
In MSHA v. Clinchfield Coal Company, NORT 78-325-P, 1 FMSHRC 25
(January--r4; 1980), Judge Steffey affirmed a citation for a violation of
section 75.1403-10, after finding that the last mine car out of a trip of
17 cars being pulled out of the mine by a locomotive failed to have a light
or reflector installed on it as required by section 75.1403-lO(a).
In MSHA v. Eastern Associated Coal Corporation, MORG 75-393, IB11A 76-55,
1 FMSHRC 1473 (October 23, 1979), the Conunission affirmed a violation of section 75.1403, concerning an inoperable parking brake on a track-mounted,
self-propelled personnel carrier (a jitney).
In Consolidation Coal Company v. MSHA, WEVA 79-171-R, 1 FMSHRC 1638
(October 19, 1979), Judge Broderick vacated a withdrawal order after finding
that the period of time fixed for abatement of a violation of section 75.1403
was unreasonable. However, he found that a safeguard notice issued pursuant
to section 75.1403, requiring the operator to maintain haulage tracks in a
safe workmanlike manner, taken in conjunction with the citation which was
issued by the inspector, constituted a violation of the cited standard.
Petitioner's Arguments
MSHA's arguments in support of the citations issued in this case include
an admission by counsel that the safety standard is ambiguous. Even so,
counsel argues that it is deliberately ambiguous so as to enable an inspector
to exercise some discretion requiring safeguards on a mine-by-mine basis.
Further, counsel argues that the mine in question has a history of haulage
accidents and haulage violations and that is the reason why the safeguards
for the mine were issued in 1973 and 1974 (Tr. 114).
Turning to the facts of the case, MSHA argues that the safeguard notices
require the respondent to at all times maintain a jack on the locomotive and
to insure that the sanding devices are operational. Since the inspector noted
the violations approximately 2-1/2 hours into the shift, counsel asserts that
it is not unreasonable to require the locomotive operator to make his preoperational check prior to the beginning of production, particularly where it is
possible for anyone to climb aboard and drive the locomotive away. Failure to
conduct a preshift inspection of the locomotive would expose that person and
possibly others in the event sand was needed for traction, or the locomotive
derailed and the operator attempted to right it by lifting it manually (Tr.
115-118). Since the locomotive was not provided with a jack, and two of its

2548

sanders were inoperative at the time the inspector observed the locomotive,
MSHA maintains that it has established the violations in question. And,
since the respondent was on previous notice as to the requirements provided
by the safeguards, MSHA believes that the respondent was negligent.
Respondent's Arguments
Respondent's defense is based on an assertion that at the time the
inspector examined the locomotive it was not in operation but simply parked
on the track. In these circumstances, respondent asserts that the locomotive
operator had not had an opportunity to examine his locomotive prior to putting
it in operation and that had he been given that opportunity, he would have
discovered that the jack was missing and provided one. Respondent maintains
further that company policy requires the locomotive operator to inspect it
before placing it in operation and that by issuing the citation before giving
the operator an opportunity to complete his inspection, the inspector acted
arbitrarily (Tr. 122-125).
In the instant case, it is clear from the evidence presented that the
parked locomotive in question was provided with a jack-lifting bar, but that
the jack was missing at the time the inspector observed it. As for the cited
sanding devices, it is also clear that the sanders were filled with sand, but
that the lever stuck at the precise moment the inspector asked the operator to
activate it and found that no sand was dispersed. A jack which the inspector
had observed against the rib while on his way to the locomotive was retrieved
within minutes and placed on the locomotive to abate the citation, and after
giving the sanding lever a kick with his foot, sand was dispersed and the
inspector abated the second citation.
As I observed during the course of the hearing in this case, counsel for
both sides indulged in a great deal of speculation in presenting their respective cases. Respondent argued that the missing jack probably was taken off
the locomotive to perform some maintenance work on the roadway during the
prior shift. However, no credible testimony was forthcoming to support this
conclusion. As a matter of fact, respondent's sole witness testified that he
saw no road work being performed while he was present. The inspector did not
believe that the jack which was provided to abate the citation was the same
one taken from the locomotive because it had rock dust on it. I simply do not
believe he knew whether it was the same one or not.
MSHA's conclusions that the safeguards were initially issued in 1973 and
1974 because of mine-haulage accidents and noncompliance with other haulage
safety standards is unsupported by any credible evidence. While there are a
number of citations for section 75.1403 listed in the computer printout
detailing the prior history for the mine in question (Exh. G-3), absent any
details as to the specific circumstances connected with those citations, I
simply cannot accept an unsupported argument that they all involve haulage
locomotives.
Since no one bothered to look at the preshift books for December 9, 1980,
the parties conceded that there is no information available as to whether any

2549

entries may have been made for the locomotive in question (Tr. 119). Although
the inspector made notes of the times when he made his observations concerning
the missing jack and inoperative sander, he did not check the preshift records,
nor did he make any notes as to whether coal was actually being loaded, whether
the locomotive was energized, whether cars were coupled to it, etc. It seems
to me that these factors are critical to any determination as to whether there
is a reasonable inference that the locomotive operator was about to move the
locomotive without conducting his usual operational inspection at the time
the inspector appeared on the scene. Since the citation issued nearly a year
ago, the inspector could not specifically recall any of the critical details
connected with the issuance of the citations.
According to the inspector's interpretation of section 75.1725, all of
the required equipment checks should be made during the normal work shift, but
he conceded that the locomotive operator could wait until coal loading was
completed before checking and moving the locomotive (Tr. 111). In addition,
he agreed that the safeguard notices speak in terms of operating equipment,
and that his citations also use the word "operating." He further explained
the rationale for issuing the citations as follows (Tr. 111-113):
JUDGE KOUTRAS: * * * Let me ask you this. Assuming
that the locomotive operator told you, look, I don't have a
jack and the sander levers aren't working but, let me see
what the problem is and if I can get the jack on there and
get the sanding levers operating before they finish loading
those mine cars, what would be your reaction to that?
THE WITNESS: I'd have a good reaction. Because to me,
the individual is aware that there is said violations of law,
and he's trying to take the corrective measures to fix them
before he even makes an attempt to move it. And, he's notified me through communication that that's what he's going to
do.
JUDGE KOUTRAS: But, the story I'm getting now, from the
operator in this case, is that you didn't give the locomotive
operator an opportunity to pre-check his thing, before you
dropped the citations on him?
THE WITNESS: The man ought to--like you said to ask
exactly--but, the--if the individual, at that time, had said,
hey, look, I haven't even made my pre-op check yet and I
don't know what's there or what's not there--i t would have
made a difference, yes.
JUDGE KOUTRAS:
THE WITNESS:

But, that wasn't communicated?
It wasn't communicated, no sir.

After careful consideration of all of the testimony and evidence adduced
in this case, including the arguments advanced by the parties in support of

2550

their respective positions, I conclude that the respondent has the better part
of the argument. While it is true that the petitioner has established that the
jack was missing from the locomotive and that the sanding lever was inoperative when the inspector first viewed the parked locomotive, I cannot conclude
from the facts presented in this case that the petitioner has established that
the locomotive in question was being operated or was about to be operated
before the inspector arrived on the scene. As a matter of fact, the inspector
himself conceded that the locomotive operator could wait until the mine cars
were loaded before conducting his inspection and moving the locomotive. In
this case, I simply cannot conclude that petitioner has established through
any credible testimony or evidence that the mine cars were loaded and waiting
to be pulled away by the locomotive at the time the inspector walked past the
parked locomotive.
I believe that the locomotive operator in this case should have been
given a reasonable opportunity to inspect his locomotive, and absent any evidence that he is required to conduct such an inspection at the start of the
shift, the fact that the inspector observed the conditions 2 hours into a production shift is not critical in my view. I reject the notion that a locomotive operator has to inspect a parked locomotive as soon as he arrives on
the shift to insure that some unauthorized person driving it away has access
to a jack and a workable sanding device. If MSHA believes that this is a
problem, then I suggest it consider amending the safeguard notices issued at
this mine to make it absolutely clear that locomotive operators are required
to inspect their equipment at the start of any shift, rather than waiting
until such time as all of the mine cars are loaded and ready for haulage out
of the mine.
I note that the criteria for self-propelled personnel carriers found in
section 75.1403-6(b)(l) and (3), specifically require a suitable lifting jack
and bar as well as well-maintained sanding devices. Although the April 26,
1974, safeguard notice was specifically directed to self-propelled mantrip
cars, it also included all haulage equipment equipped with sanding devices,
and I assume that this also covers locomotives, but the record is not clear
on this point. It would seem to me that MSHA should promulgate similar
criteria for locomotives used underground. Since operational sanding devices
and lifting jacks appear to be desirable items common to all locomotives, it
seems more logical to me to promulgate specific criteria covering this situation rather than to rely on safeguard notices which quite frankly leave much
to the imagination and intermingle mantrip vehicles with locomotives used to
pull loaded mine cars.
ORDER
In view of the foregoing findings and conclusions, IT IS ORDERED that the
two citations issued in this case be VACATED.

Judge

2551.

Distribution:
David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor,
14480-Gateway Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant Street,
Pittsburgh, PA 15230 (Certified Mail)

2552

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

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

Civil Penalty Proceeding
Docket No. VA 81-83
A.O. No. 44-03614-03026V
Harman 5-B Mine

HARMAN MINING COMPANY,
Respondent
DECISION AND ORDER
For the reasons set forth in the motion to approve settlement,
the parties request approval of vacation and withdrawal of the four
canopy violations and payment in full of the penalties assessed for the
alleged deficiency in rock dust and excessive accumulation of combustibles.
Based on an independent evaluation and de novo review of the
circumstances and justifications offered, I find the disposition proposed
is in accord with the purposes and policy of the Act.
Accordingly, it is ORDERED that the motion to approve vacation
and settlement be, and hereby is, GRANTED. It is FURTHER ORDERED that
the operator pay the penalty agreed upon, $1500, on or before Friday,
November 20, 1981 and that subject to payme
the captioned matter be
DISMISSED.

Joseph B. Kennedy
Administrative Law
Distribution:
Edward Fitch, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 1110 Vermont
Ave., NW, Washington, DC 20005 (Certified Mail)

2553

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

Civil Penalty Proceeding

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

Docket No. LAKE 79-32-M
A/O No. 33-00013-05004

v.

Basic Refractories Quarry
and Plant

BASIC REFRACTORIES,
Respondent

DECISION
Appearances:

Linda Leasure, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Petitioner,
Jack A. Klein, Esq., Doehrel & Klein, Columbus,
Ohio, for the Respondent.

Before:

Judge Cook

I.

Procedural Background

On June 26, 1979, the Secretary of Labor (Petitioner) filed a petition
for assessment of civil penalty in the above-captioned case pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (Supp. III 1979) (1977 Mine Act).
The petition charged Basic
Refractories (Respondent) with 13 violations of various provisions of the
Code of Federal Regulations, as set forth in citations issued pursuant to
section 104(a) of the 1977 Mine Act. The Respondent, acting through its
safety director, filed an answer on July 12, 1979.
On November 5, 1979, the Respondent, through counsel, moved to amend
its answer. The motion was granted on November 27, 1979, and the amended
answer was filed on December 14, 1979.
Also, on November 5, 1979, the Respondent moved to extend the time
period for discovery by interrogatory. The motion was granted on November 27,
1979.
On or about January 14, 1980, the Petitioner requested advice from its
Arlington, Virginia, office as to whether the Interagency Agreement between

2554

the Mine Safety and Health Administration (MSHA) and the Occupational Safety
and Health Administration (OSHA), se~ 44 Fed. _!leg. 22827 (April 17, 1979),
and an August 3, 1979, interpretive memorandum issued by the Administrator
for Metal and Nonmetal Mine Safety and Health, transferred jurisdiction over
all aspects of the Respondent's operation, other than the quarry, to OSHA.
As a result of this inquiry, the Petitioner filed a motion and supporting
memorandum on March 20, 1980, requesting the vacation and dismissal of
Citation Nos. 368863, 368877, 368885, 368886, 368888, and 368889. A determination granting the motion is contained herein.
On May 19, 1980, the Petitioner filed a motion and supporting memorandum
requesting approval of settlement which encompasses Citation Nos. 368848,
368851, and 368854. A determination approving the settlement is contained
herein.
On May 21, 1980, a notice of hearing was issued scheduling the remaining
matters for hearing on the merits on August 7, 1980, in Bowling Green, Ohio.
Subsequent thereto, counsel for the Respondent contacted the undersigned
Administrative Law Judge to request a telephone conference for the purpose
of requesting a continuance. The requested conference was held on July 29,
1980, with the undersigned Administrative Law Judge and representatives of
both parties participating. Counsel for the Petitioner raised no objection
to the continuance. Accordingly, an oral determination was made granting the
requested continuance subject to the condition that the Respondent file a
written motion formally setting forth the reasons for the request. The
motion was filed on August 11, 1980, and an order was issued on August 20,
1980, continuing the hearing to November 14, 1980, in Bowling Green, Ohio.
The hearing was held as scheduled with representatives of both parties
present and participating. The Respondent filed a trial brief, and made a
motion to dismiss the proceeding at the close of the Petitioner's case-inchief. A ruling on the motion is set forth herein.
Following the presentation of the evidence, a schedule was set for the
filing of posthearing briefs and proposed findings of fact and conclusions
of law. However, the schedule was later revised due to difficulties experienced by counsel. The Respondent filed a posthearing brief and proposed
findings of fact and conclusions of law on April 27, 1981. The Petitioner
filed a posthearing memorandum on May 4, 1981. Neither party filed a reply
brief.
II.

Violations Charge~
Citation No.

Date

30 C.F.R. Standard

368841
368846
368847
368848
368849

11/28/78
11/29/79
11/2 9/78
11/29/78
11/2 9/78

56 .14-1
56.11-1
56.14-1
56.14-1
56 .14 ·-1

2555

368851
368854
368863
368877
368885
368886
368888
368889
III.

11/29/78
11/2 9/78
11/30/78
11/30/78
12/06/78
12/06/78
12/06/78
12/06/78

56.14-1
56.14-1
56.14-1
56.11-2
56.14-1
56.14-1
56.14-1
56 .14-1

Witnesses and Exhibits
A.

Witnesses

The Petitioner called Federal mine inspector Michael Pappas as a witness.
The Respondent called Mr. Antony Dantuono, the mill foreman; and
Mr. Raymond Ouellette, a mechanical engineer employed by the Respondent,
as witnesses.
Both the Petitioner and the Respondent called Mr. Arthur Jibilian, the
Respondent's safety director, as a witness.
B.

Exhibits

1.

The Petitioner introduced the following exhibits in evidence:

M-1 is a three-page document containing copies of Citation No.
368841, November 28, 1978, 30 C.F.R. § 56114-1, the termination thereof,
and the inspector's statement pertaining thereto.
M-2 is a three-page document containing copies of Citation No.
368846, November 29, 1978, 30 C.F.R. § 56.11-1; the termination thereof;
and the inspector's statement pertaining thereto.
M-3 is a three-page document containing copies of Citation No.
368847, November 29, 1978, 30 C.F.R. § 56.14-1, the termination thereof;
and the inspector's statement pertaining thereto.
M-4 is a three-page document containing copies of Citation No.
368849, November 29, 1978, 30 C.F.R. § 56.14-1; the termination thereof;
and the inspector's statement pertaining thereto.
2.

The Respondent introduced the following exhibits in evidence:

0-1, 0-2, and 0-3 are photographs pertaining to Citation No.
368841, November 28, 1978, 30 C.F.R. § 56.14-1.
0-4, 0-5, and 0-6 are photographs pertaining to Citation No.
368847, November 29, 1978, 30 C.F.R. § 56.14-1.

2556

0-7, 0-8, and 0-9 are photographs pertaining to Citation No.
368849, November 29, 1978, 30 C.F.R. § 56.14-1.
0-10 contains three schematic drawings pertaining to Citation
No. 368841, November 28, 1978, 30 C.F.R. § 56.14-1.
0-11 contains three schematic drawings pertaining to Citation
No. 368847, November 29, 1978, 30 C.F.R. § 56.14-1.
0-12 contains three schematic drawings pertaining to Citation
No. 368849, November 29, 1978, 30 C.F.R. § 56.14-1.
IV.

Issues
Two basic issues are involved in this civil penalty proceeding:

(1) did

a violation of the subject mandatory safety standards occur, and (2) what

amount should be assessed as a penalty if a violation is found to have
occurred? In determining the amount of civil penalty that should be assessed
for a violation, the law requires that six factors be considered: (1) history
of previous violations; (2) appropriateness of the penalty to the size of the
operator's business; (3) whether the operator was negligent; (4) effect of the
penalty on the operator's ability to continue in business; (5) gravity of the
violation; and (6) the operator's good faith in attempting rapid abatement of
the violation.

v.

Opinion and Findings of Fact
A.

Stipulations

1. The Basic Refractories Quarry is a "mine" within the meaning of the
1977 Mine Act (Tr. 4-5).
2.
Jurisdiction rests in the Federal Mine Safety and Health Review
Commission with respect to Citation Nos. 368841, 368846, 368847, and 368849
(Tr. 4-5).
3. Jurisdiction rests in the Federal Mine Safety and Health Review
Commission with respect to the citations encompassed by the May 19, 1980,
settlement motion (Tr. 4-5).

4. The citations encompassed by the March 20, 1980, motion to
dismiss are within the jurisdiction of the Occupational Safety and Health
Administration (Tr. 4-5).

5. The size of the Basic Refractories Quarry was rated at approximately
358,329 production man-hours in 1978 (Tr. 4-5).
6. As of November 28 and 29, 1978, the Basic Refractories Quarry had
no history of previous violations under the 1977 Mine Act. This was the
first inspection of the facility conducted pursuant to the 1977 Mine Act
(Tr. 5).

255'(

B.

Respondent's Motion to Dismiss

The Respondent moved to dismiss the proceeding 1/ as relates to Citation
Nos. 368841, 368846, 368847, and 368849 at the close-of the Petitioner's casein-chief on the grounds that the Petitioner had failed to establish a prima
facie case as relates to the four violations charged. The motion was taken
under advisement to be ruled upon at the time of the writing of the decision
based solely upon the evidence contained in the record when the motion was
made (Tr. 87-90).
Neither the Rules of Procedure of the Federal Mine Safety and Health
Review Commission, nor the Administrative Procedure Act, nor the 1977 Mine
Act set forth express standards governing the disposition of motions to
dismiss at the close of an opposing party's case-in-chief. It is therefore
appropriate to consult the Federal Rules of Civil Procedure for guidance.
29 C.F.R. § 2700.l(b) (1980).
Rule 4l(b) of the Federal "Rules of Civil Procedure provides, in part,
as follows:
After the plaintiff, in an action tried by the court without
a jury, has completed the presentation of his evidence, the
defendant, without waiving his right to offer evidence in the
event the motion is not granted, may move for a dismissal on
the ground that upon the facts and the law the plaintiff has
shown no right to relief. The court as trier of the facts
may then determine them and render judgment against the
plaintiff or may decline to render any judgment until the
close of all the evidence.
In ruling upon a Rule 4l(b) motion to dismiss, the trial court is empowered
to weigh the evidence, consider the law, and find for the defendant at the close
of the plaintiff's case-in-chief. 5 J. MOORE, FEDEHAL PRACTICE, ~ 41.13[4] at
pp. 41-189 - 41-192 (1980). The trial court may grant the defendant's motion
when the plaintiff fails to present sufficient evidence during its case-inchief to satisfy its burden of proof. See Brennan v. Sine, 495 F.2d 875
(10th Cir. 1974), Woods v. North Americ~Rockwell Cor~tion, 480 F.2d 644
(10th Cir. 1973); Pittston-Luzerne Corporation v. United States, 176 F. Supp.
641 (M.D. Pa. 1959).
1/ The Respondent used inaccurate terminology when it moved for what it
termed a "directed verdict" at the close of the Petitioner's case-in-chief.
Proceedings before Administrative Law Judges of the Federal Mine Safety and
Health Review Commission are tried without juries. The Administrative Law
Judge is the trier of fact. Therefore, the Respondent's motion has been
treated as a motion to dismiss at the close of the Petitioner's case-inchief for failure to sustain its burden of proof. See James v. Du Breuil,
500 F.2d 155, 156 n. 2 (5th Cir. 1974), Martin v. E. I. du Pont De Nemours
& Company, Inc., 281 F.2d 801, 802 n. 1 (3rd Cir. 1960); 5 J. MOORE, FEDERAL
PRACTICE, ~ 41.13[1] at P• 41-177 (1980).

2558

Citation No. 368846 charges the Respondent with a violation of mandatory
safety standard 30 C.F.R. § 56.11-1 in that H failed to provide and maintain
a safe means of access to a designated working place at the Basic Refractorj_es
Quarry and Plant. The evidence contained in the record when the motion to
dismiss was made, insofar as material to the determination as to whether a
violation occurred, consisted of a copy of the citation, testimony provided
by Federal mine inspector Michael Pappas, and testimony provided by Mr. Arthur
Jibilian, the Respondent's safety director. Such evidence, particularly
Mr. Jibilian 1 s testimony, is considered sufficient to support the conclusion
that the Petitioner satisified its burden of proof during its case-in-chief.
Accordingly, the motion to dismiss will be denied as relates to Citation No.
368846.
Citation Nos. 368841, 36884 7, and 3688!+9 charge the Respondent with
three violations of mandatory safety standard 30 C.F .R. § 56 .14-1 in that
three specified tail pulleys were unguarded. The cited mandatory safety
standard provides, in part, that tail pulleys which may be contacted by
persons, and which may cause injury to persons, shall be guarded. 11
The evidence contained in the _record when the motion to dismiss was
made, insofar as material to the determination as to whether the violations
occurred, consisted of copies of the three citations, testimony provided by
Inspector Pappas, and testimony provided by Mr. Jibilian. In each instance,
both the inspector 1 s testimony and the statements appearing on the face of
the citation maintained that no guards whatsoever were provided on the
three tail pulleys (Exhs. M-1, M-2, M-3; Tr. 11, 14-16, 49, 52, 55). The
inspector's testimony indicates that the three citations were issued because
of the exposure to pinch points presented by the unguarded tail pulleys (Tr.
12 ' 15 ' 16 ' 5 2).
As relates to Citation No. 368841, 3/ Mr. Jibilian testified that the
cited tail pulley was located in the No.-37 plant. He further testified
that the tail pulley was guarded and that, as a result of the guard, no
one could be harmed (Tr. 64-65, 73-7 !+).
2/

Mandatory safety standard 30-- C. F. R. § 56 .14-1 provides as follows:
''Gears; sprockets, chains, drive, head, tail and takeup pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and which may cause injury
to persons, shall be guarded."
3/ Federal mine inspector Michael Pappas issued Citation No. 368841 during
the course of his November 28, 1978, inspection of the Respondent's Basic
Refractories Quarry and Plant (Tr. 11). The citation alleges a violation of
mandatory safety standard 30 C.F .R. § 56 .14-1 in that "[a] guard was not provided on the tail pulley of the stock out belt under the filter" (Exh. M-1,
p. 1).

255~)

As relates to Citation No. 368847, !±_/Mr. Jibilian testified that the
cited tail pulley was located in a tunnel in Building 36. Walls abutted both
the end and the west side of the tail pulley preventing access from those
directions (Tr. 70). A walkway along the east side of the conveyor belt
was the sole means of access to the tail pulley (Tr. 70). According to
Mr. Jibilian, a guard measuring approximately 3 feet in length and 1 foot
in width was present on the east side of the tail pulley. The pinch point
was located at the bottom of the belt and was "fairly" inaccessible (Tr. 75).
As relates to Citation No. 368849, 5/ Mr. Jibilian testified that the
cited tail pulley was located in the mill (Tr. 71-72). A walkway was located
along the north side of the conveyor (Tr. 72). According to Mr. Jibilian,
the tail pulley was guarded. One side of the tail pulley was against the
wall and a guard was present on the other side. The pinch point was located
at the bottom of the tail pulley and was covered by the guard (Tr. 76) •
. In view of the foregoing, it must be concluded that the evidence adduced
during the Petitioner's case-in-chief contains patent contradictions as to
whether guards were present on the three cited tail pulleys. It must be
further concluded that such contradictions preclude a finding that the
Petitioner sustained its burden of proof during its case-in-chief. The
inspector's testimony throughout the Petitioner's case-in-chief clearly
indicated that his present recollection on this point had dimmed with the
passage of time, whereas Mr. Jibilian's recollection was intact.
Mr. Jibilian is considered the more credible witness on the issue as to
whether guards were present.
It should be noted, however, that at one point the inspector gave testi.,..
mony to the effect that in November of 1978 it was his practice to cite all
guarding violations, including those for inadequate guarding as opposed to a
total absence of guards, by using the descriptive term "no guards" (Tr. 7980). This testimony, in view of the other evidence adduced during the
Petitioner's case-in-chief, is considered insufficient to support a determination that any guards present may have been inadequate. The comment was
not made until after Mr. Jibilian testified that guards were present. Additionally, Inspector Pappas was initially quite evasive when cross-examined
as to the implications of this statement as relates to the three subject
guarding citations. But he ultimately reasserted his position that no
guards were present (Tr. 80-81).

4/ Federal Mine inspector Michael Pappas issued Citation No. 368847 during
the course of his November 29, 1978, inspection of the Respondent's Basic
Refractories Quarry and Plant (Tr. 14-15). The citation alleges a violation
of mandatory safety standard 30 C.F.R. § 56.14-1 in that "[a] guard was not
provided on the tail pulley of No. 7 conveyor belt" (Exh. M-3, p. 1).
5/ Federal mine inspector Michael Pappas issued Citation No. 368849 during
the course of his November 29, 1978, inspection of the Respondent's Basic
Refractories Quarry and Plant (Tr. 16). The citation alleges a violation
of mandatory safety standard 30 C .F .R. § 56 .14-1 in that "[a] guard was not
provided on the tail pulley of the No. 5 recrush belt" (Exh. M-4, p. 1).

2560

In view of the foregoing, the Respondent's motion to dismiss at the
close of the Petitioner's case-in-chief will be granted as relates to
Citation Nos. 368841, 368847, and 368849.
Even assuming for purposes of argument that the Petitioner successfully
established inadequate guarding during its case-in-chief, the evidence adduced
by the Respondent during its case-in-chief was more than adequate to successfully rebut it. The evidence on the record taken as a whole will not support
findings that the guards present on the three cited tail pulleys were insufficient to prevent contact with the pinch points.
The pinch point was located at the bottom of the tail pulley in each of
the three instances cited by Inspector Pappas (Tr. 143-144). None of the
three conveyors can operate in such a fashion that the pinch points would be
located at the top of the pulley (Tr. 143-144, 147). All modifications made
to abate the citations were requested by Inspector Pappas (Tr • 144-145).

As relates to Citation No. 368841, adjusting the belt was the only work
that could be performed at the tail pulley with the belt in operation. No
maintenance would have been performed near the pinch point unless the machine
was turned off and the guards were removed (Tr. 158-159, 165). In order to
achieve contact with the pinch point with the existing guards in place, an
individual would have been required to lie on the floor and reach up under
the guard through a point where the height between the floor and the bottom
of the guard ranged from 4-7/8 inches to 7-1/4 inches (Exh. 0-2, Tr. 113, 179;
Exh. 0-10). He would have been required to reach beyond his elbow in order
to achieve contact with the pinch point (Tr. 113; Exh. 0-2). An individual
in the normal course of his work would never asswne such a position and reach
up into the pinch point (Tr. 158-159).
The tail pulley was guarded on November 29, 1978, by the conveyor frame,
expanded metal mesh guards, and sheet metal (Exh. 0-1, Tr. 93-94, 112; Nos. 1
2, and 3 on Exh. 0-10, Tr. 202-205; see also Tr. 207-209). In order to abate
the citation, the Respondent supplemented the existing guards by installing a
guard across the end of the tail pulley, by installing a guard across the top
of the tail pulley, and by installing guarding which covered only rollers
along the conveyor belt (compare Exh. 0-1 with Exhs. 0-2 and 0-3, Tr. 103,
106-107, 119, 147-148; Nos. 4, 5, and 6 on Exh. 0-10, Tr.~2-205). However,
none of the actions taken to abate the citation diminished any hazard of contact with the tail pulley pinch point (Tr. 118-119).
As relates to Citation No. 368847, the cited tail pulley was in a relatively isolated area where people did not travel during the course of a day's
work (Tr. 145). In fact, employees would not pass the tail pulley because
the end practically abutted the wall (Tr. 71). It appears that employees
visited the area once a week to perform cleanup activities, and that such
activities were usually performed with a hose. An oiler was scheduled to
visit the area once every 1 or 2 weeks to administer lubrication. He used
an extension fitting to perform this task. It appears that the lubrication

2561.

point was approximately 2 feet from the tail pulley (Tr. 70-71). Additionally, it appears that belt tension adjustments were made at the tail pulley
(Tr. 181).
The best available evidence in the record indicates that an individual
would have been required to either lie prone on the floor or assume
an extremely low kneeling position with his trunk virtually parallel to the
floor in order to reach up underneath the guard and above the belt in an
attempt to achieve contact with the pinch point. It should be noted that
such action would have been necessary to obtain exposure to the pinch point
even after the citation was abated (see Exhs. 0-4, 0-5, Tr. 121-122, 124,
131, 229). There would have been no reason for a person to attempt such a
feat during the normal course of his work. A man working around the tail
pulley would not fall or kneel and subsequently stretch his arm up underneath the frame and into the pinch point.
The pinch point was guarded on November 29, 1978, by a guard installed
on the east side of the tail pulley. Elements of the conveyor framework
provided additional guarding (Tr. 122, 126, 131-132, 183-184, 187, 209-210,
217-219, Exhs. 0-4, (}-5, 0-11). To abate the citation, the Respondent
installed guards across the top and the end of the tail pulley. The
existing guard along the east side of the tail pulley was replaced with a
somewhat larger one (Exhs. 0-4, 0-5, 0-6, 0-11; Tr. 209-210). The new
guard installed on the east side of the tail pulley extended approximately
as far downward as the old one. The best available evidence in the record
indicates that the guarding installed to abate the citation allowed the same
access to the pinch point as existed prior to November 29, 1978 (Tr. 124,
126, 131, 209-210).
As relates to Citation No. 368849, the crusher operator would, on occasion, use the walkway on the north side to merely walk past the tail pulley
(Tr. 72-73, 146). No maintenance would have been performed near the pinch
point while the belt was in operation (Tr. 165). A large nut passed through
the frame at the end of the tail pulley and was used to adjust belt tension
(Tr. 165-166, 192, 195, 196, 199). It was not possible for a maintenance
man adjusting the belt tension to achieve contact with the pinch point (Tr.
165-166). In order to achieve contact with the pinch point, an employee
would have been required to lie on the floor and place his hand through an
extremely small opening at the bottom of the frame and reach upward (compare
Exh. 0-7 with Exh. 0-9). An employee, in the normal course of his duties
around the tail pulley, would never have performed such a feat (Tr. 157).
Nor does it appear that an individual would have fallen down, placed his
arm under the frame and reached upward (Tr. 157).
In order to abate the citation, the Respondent installed a guard across
the top of the tail pulley and across the end of the tail pulley. The latter
guard did not cover all of the tail pulley. Rather, it extended only approximately one-fifth of the distance from the top of the conveyor frame to the
floor (Exh. 0-12, Tr. 222-224; compare Exh. 0-7 with Exh. 0-8). The guard
along the north side of the tail pulley was replaced with a smaller guard.

It should be noted that the replacement did not extend as far downward as
did the previous guard (compare Exh. 0-7 with Exh. 0--8). The guarding
installed to abate the cTtation did not afford better protection as relates
to the pinch point than the guard present when the citation was issued.
The foregoing evidence rebuts any suggestion that the guarding present
when the citations were issued was inadequate to afford protection from
the pinch points. It must be presumed that the Hine Safety and Health
Administration, acting through Inspector Pappas, considered the guards
present when the citations were terminated adequate to afford the requisite
protection from the tail pulley pinch points (Exhs. M-1, p. 2, M-3, p. 2;
M~4, p. 2; Tr. 52).
However, it is clear that the guards installed to
abate the citations afforded no better protection as relates to the pinch
points than did those present when the citations were issued.
It appears that Inspector PapJ?as, in issuing the citations, was motivated in part by his apparent: belief that pinch points were present at the
top of the tail pulleys (see Tr. 50). Such belief would account for his
recommendation that guardSJ)e installed across the tops and ends of the
tail pulleys. This belief was clearly erroneous because none of the three
conveyors can operate in such a fashion that pinch points would be formed
at the top of the pulleys (Tr. 143-144, 147).
The inspector also gave testimony which indicated that guards were
required across the ends and tops of the tail pulleys because it was "possible"
that an individual could fall onto the top of the moving belt at a tail pulley
and be transported to either a discharge chute or a crusher (Tr. 53). The
inspector further indicated that the height of the tail pulleys prompted this
concern (Tr. 78). It is significant to note, however, that the Petitioner has
not argued this theory in its posthearing memorandum. Rather, the Petitioner
styles the inspector's testimony as standing for the proposition that an
employee falling on the moving belt could sustain bruises and lacerations.
The Petit~oner's characterization is erroneous because the inspector never
testified to that effect. In fact, a person falling on a stationary object
could sustain bruises or lacerations. .There is no indication that falling
atop the moving belt could have produced such injuries as a result of cont.acting moving machine parts. The inspector's testimony, when viewed as a
whole, indicates that the three citations were issued solely because of the
perceived exposure to pinch points.
Additionally, as noted above, one of the guards installed to abate
Citation No. 368841, i.e., one of the guards recommended by Inspector Pappas,
covered only some rollers along the conveyor belt. It is clear, however, that
the Respondent was not charged with a violation of mandatory safety standard
30 C.F.R. § 56.11-1 insofar as belt rollers were concerned. The citation does
not mention belt rollers, and the inspector never mentioned exposed rollers
during his testimony. Furthermore, the testimony of Mr. Jibilian reinforces
the conclusion that the Respondent was not cited for exposed rollers (Tr. 151152). It is also significant to note that the Petitioner does not argue in

256~1

its posthearing memorandum that the exposed belt rollers form a basis for the
charge of violation. In fact, exposed belt rollers are never mentioned in the
posthearing memorandum.
In view of the foregoing, it would have to be concluded that the evidence
on the record as a whole is insufficient to prove the occurrence of the violations charged in Citation Nos. 368841, 368847, and 368849.
C.

Citation No. 368846, November 29, 1978, 30 C.F.R. § 57.11-1

1.

Occurrence of Violation

Citation No. 368846 was issued by Federal mine inspector Michael Pappas
during the course of his November 29, 1978, inspection at the Respondent's
Basic Refractories Quarry and Plant (Tr. 10, 13). The citation alleges a
violation of mandatory safety standard 30 C.F.R. § 56.11-1 in that "[a]
safe means of access was not provided to the east walkway at the Symons
screens" (Exh. M-2). The cited mandatory safety standard requires that
"[s]afe means of access shall be provided and maintained to all working
places." The term "working place," as used in Part 56 of Title 30 of the
Code of Federal Regulations, means "any place in or about a mine where work
is being performed." 30 C.F.R. § 56.2.
The cited area was apparently located at the east end of the fourth floor
in Building 36, also known as the mill or stone plant (Tr. 57). The building
was undergoing renovation by an independent contractor when the citation
was issued (Tr. 67). In fact, the independent contractor's employees were
performing renovation work in the cited area when the citation was issued (Tr.
13, 67).
The nature of the construction being performed on the east walkway was
the replacement of the beams and the floor plates (Tr. 155). It appears
that a substantial amount of material was located on the east walkway when
the citation was issued. This material consisted of old pieces of beams,
oxygen-acetylene tanks, hoses, and other tools needed by the independent
contractor's employees in the course of removing the old, deteriorated beams
and in the course of installing the new beams (Tr. 67).
The citation alleges that safe means of access was not provided and maintained for the Respondent's employees who would perform work on the Symons
screens. For the reasons set forth below, I find that the violation has been
established by a preponderance of the evidence.
Mr. Arthur Jibilian, the Respondent's safety director, maintained at
one point in his testimony that no employee requiring access to the screens
would use the east walkway because any adjustments or other work would
have been performed from the floor below (Tr. 69). However, he maintained
at a later point in his testimony that employees occasionally work on the
east end of the Symons screen, and that the east walkway is the sole means
of access to the east end of the Symons screen (Tr. 74).

2564

Mr. Antony Dantuono, the Respondent's mill foreman, testified that he
considered the east walkway unnecessary for access to any work area because
the adjustments to the Symons screen can be made from the floor below (Tr.
156, 160-161). In this regard, he testified, in effect, that he and the
group leader were the only ones who performed the adjustments, that the
two men usually performed the task together as a team, and that he always
made the adjustments from the floor below (Tr. 160-161). However, he
could not affirmatively testify that the group leader does not make the
adjustments from the east walkway (Tr. 161).
Mr. Dantuono's testimony is not considered persuasive insofar as it
maintains that no violation of mandatory safety standard 30 C.F.R. § 56.11-1
occurred. Mr. Dantuono affirmatively testified that the east walkway is used
to adjust the different machines in the Symons screen (Tr. 156), and that "we
go back on this walkway*** to adjust a 54 sand cone" (Tr. 160).
In view of the foregoing, I find that the east walkway, at the time
of the inspection, was maintained and used as a means of access for the
Respondent's employees who periodically performed work on the Symons
screens, or made periodic adjustments to the Symons screens. The fact
that no work was being performed at the time of the inspection (Tr. 74-75),
or that the east walkway was not a general traffic area (Tr. 68), do not
constitute affirmative defenses.
The fact that all work or adjustments could have been performed from
the floor below is not an affirmative defense to the charge of violation on
the facts presented herein. The Commission has expressly rejected the view
that the standard's mandate is met when one safe means of access to a working
place exists. The standard imposes an affirmative obligation on the operator
to make each means of access to a working place safe unless, for example,
there is no reasonable possibility that a miner would use the route as a
means of reaching or leaving a workplace. The Hanna Mining Company, 3 FMSHRC
2045, 2 BNA MSHC 1433, 1981 CCH OSHD par. 25,672 (1981).
As noted previously, the cited east walkway was part of an active construction site on November 29, 1978, and a substantial amount of material
was present in the form of debris and tools. In fact, Mr. Dantuono testified that it was customary for the independent contractor's employees to
allow the debris to remain until the job was completed (Tr. 155-156). It
can therefore be inferred that the Respondent's employees who used the east
walkway for access to the Symons screens were exposed to a tripping or
stumbling hazard. Accordingly, it is found that the Respondent failed to
provide and maintain safe means of access to the Symons screens for its
employees.
The fact that the violative condition may have been caused by the
activities of an independent contractor is not an affirmative defense. The
Commission has held that a mine operator can be held responsible without
fault for violations of the 1977 Mine Act or the mandatory health and safety

standards committed by independent contractors performing work on mine property. When the subject citation was issued, the Petitioner was pursuing a
valid interim policy of citing mine operators for violations committed by
independent contractors. Old Ben Coal Company, 1 FMSHRC 140, 1 BNA MSHC
2177, 1979 CCH OSHD par. 23,969 (1979), aff'd., No. 79-2367 (D.C. Cir.,
filed December 9, 1980).
In view of the foregoing, I conclude that a violation of mandatory safety
standard 30 C.F.R. § 56.11-1 has been established by a preponderance of the
evidence.
2.

Gravity of the Violation

The record does not establish that individuals exposed to the tripping
or sttllllbling hazard faced potentially serious injuries.
The record contains no reliable, probative, and substantial evidence as
to the probability of the occurrence of the event against which the cited
standard is directed, nor as to how severe the injury resulting from or contemplated by the occurrence of the event could reasonably be expected to be.
In this regard, it is significant to note that the statements recorded under
the "gravity" heading on the inspector's statement (Exh. M-2, p. 3), are
those of Mr. William Acuna, a Federal mine inspector-trainee who accompanied
Inspector Pappas during the inspection (Tr. 18, 41), and are not the recorded
observations of Inspector Pappas. Additionally, Mr. Acuna's observations were
not recorded contemporaneously with the transaction or occurrence observed by
him. Rather, he recorded his observations on the inspector's statement in
December of 1978 or January of 1979 (Tr. 60).
Either Mr. Dantuono or the group leader would have been affected if the
event against which the cited standard is directed had occurred.
In view of the foregoing, I find that the violation was nonserious.
3.

Negligence of the Operator

The evidence presented clearly shows that the Respondent demonstrated
negligence in connection with its failure to provide and maintain a safe
means of access to the Symons screens.
As noted previously, Building 36 was undergoing renovation by an independent contractor when the citation was issued. In fact, the independent
contractor's employees were performing renovation work in the cited area when
the citation was issued. A substantial amount of material was present on the
walkway, consisting of old pieces of beams, oxygen-acetylene tanks, hoses,
and other tools needed by the independent contractor's employees in the
course of their work. It can be inf erred from the testimony of Mr. Dantuono,
the mill foreman, that the condition had existed for a substantial period of
time (see Tr. 155-156). The condition was sufficiently extensive and had
existe"Cifor such a substantial period of time that the Respondent knew or

2566

should have known that the east walkway was not a safe means of access to
the Symons screens.
Yet the Respondent maintained and used the east walkway as a means of
access to the Symons screens, in spite of its actual or constructive knowledge
as to the unsafe condition. The mere fact that adjustments or other work
could be performed on the s~reens from the floor below does not absolve the
Respondent from negligence. It should be noted that Mr. Jibilian maintained
at one point in his testimony that employees occasionally work on the east
end of the Symons screens and that the east walkway is the sole means of
access to such area (Tr. 74). !:_/
Under the circumstances, the Respondent was under an affirmative obligation to undertake effective measures designed to prevent its employees from
using the east walkway as a means of access to the Symons screens while the
unsafe condition existed. Clearly, this obligation was not met.
In view of the foregoing, it is found that the Respondent demonstrated
a high degree of ordinary negligence in connection with the violation.
4.

Good Faith in Attempting to Achieve Rapid Compliance

The violation was abated within the time specified for abatement (Exh.
M-2, p. 3; Tr. 41). Accordingly, it is found that the Respondent demonstrated good faith in attempting to achieve rapid compliance.
D.

Size of the Operator's Business

The parties stipulated that the size of the Basic Refractories Quarry
was rated at 358,329 production man-hours in 1978 (Tr. 4-5).
E.

Hist

of Previous Violations

The parties stipulated that as of November 28 and 29, 1978, the Basic
Refractories Quarry had no history of previous violations under the 1977 Mine
Act (Tr. 5).
F.

Effect of a Civil Penalty on the Operator's Ability to Continue
in Business

No evidence was presented establishing that the assessment of a civil
penalty in this case will adversely affect the Respondent's ability to remain
6/ Whether or not the east walkway is the sole means of access to the east
end of the Symons screens is not the controlling consideration. The controlling consideration is that the Respondent maintained and used the east
walkway as a means of access to the Symons screens with actual or constructive knowledge that such means of access was unsafe.

2567

in business. In Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 CCH
OSHD par. 15,380 (1972), the Commission's predecessor, the Interior Board of
Mine Operations Appeals, held that evidence relating to whether a penalty will
affect the ability Qf the operator to remain in business is within the operator's control, and therefore there is a presumption that the operator will
not be so affected. I find, therefore, that a civil penalty otherwise properly assessed in this proceeding will not impair the Respondent's ability to
continue in business.
VI.

Petitioner's March 20, 1980, Motion to Dismiss

On or around January 14, 1980, the Petitioner requested advice from its
Arlington, Virginia, office as to whether the MSHA/OSHA Interagency Agreement,
see 44 Fed. Reg. 22827 (April 17, 1979), and an August 3, 1979, interpretive
memorandum issued by the Administrator for Metal and Nonmetal Mine Safety and
Health, transferred all aspects of the Respondent's operation, other than the
quarry, to OSHA. As a result bf this inquiry, the Petitioner filed a motion
and supporting memorandum on March 20, 1980, praying for the vacation and
dismissal of the following citations:
Citation No.

Date

30 C.F.R. Standard

368863
368877
368885
368886
368888
368889

11/30/78
11/30/ 78
12/06/78
12/06/78
12/06/78
12/06/78

56.14-1
56.11-2
56.14-1
56.14-1
56.14-1
56.14-1

The memorandum in support of the motion to dismiss states, in part, as
follows:
Petitioner has filed proposals for assessment of penalty
alleging violation of regulations promulgated pursuant to the
Federal Mine Safety and Health Act of 1977. In the course
of its enforcement activities, the Mine Safety and Health
Administration entered into an interagency jurisdictional
agreement with the Occupational Safety and Health
Administration. Interpretation and application of this
agreement has proved difficult especially with respect to
refractories located on mine property. A reinterpretation
of the application of the agreement to the Respondent's
Quarry and Plant necessitates dismissal and vacation of the
following citations: 368863, 368877, 368885, 368886, 368888,
368889. Dismissal is consistent with the attached memorandum.
Attached thereto is a copy of a February 28, 1980, memorandum from
Donald R. Tindal, Counsel for General Legal Advice, Mine Safety and Health,
to Associate Regional Solicitor William S. Kloepfer, concerning the proceedings in Secretary of Labor v. Basic Refractories, Docket Nos. VINC 79-199-PM,

2568

LAKE 79-32-M, LAKE 79-40--M, LAKE 79-140·-M, and LAKE 79-203-M.
states, in part, as follows:

This memorandum

Your memorandum of January 14, 1980, addressed to Roy Bernard,
Deputy Administrator, Metal and Nonmetal Mine Safety and
Health, concerning the above-captioned matter was referred to
this office for reply. You request advice as to whether the
MSHA/OSHA Interagency Agreement (33 FR 22827, April 17, 1979)
and an interpretative memorandum of August 3, 1979, issued
by the Administrator, Metal and Nonmetal Mine Safety and
Health, [l_/] transfer jurisdiction over all aspects of Basic
Refractories, other than the quarry, to OSHA.
The MSHA/OSHA agreement provides that OSHA will have jurisdiction over "refractory plants. 11 Agreement, ~[ B. 6. b. In
the appendix to the agreement, it is accordingly stated that
MSHA authority ends and OSHA authority begins with respect to
refractory plants "after arrival of raw materials at the plant
stockpile." The August 3, 1979, memorandum to the District
Managers from Thomas J. Shepich, Administrator for Metal and
Nonmetal Mine Safety and Health, elaborating on the agreement, states that an operation which is a free-standing mill
engaging in milling and milling-related operations only, and
which in the past has been inspected solely by MESA or MSHA
remains subject to MSHA jurisdiction. On the other hand,
refractory plants, i.e., operations involving milling and the
manufacturing of bricks, clay pipe or other forms of finished
refractories where there is a joint MSHA/OSHA presence, are
now subject to OSHA jurisdiction.
7/ The August 3, 1979, memorandum from Thomas J. Shepich, Administrator
for Metal and Nonmetal Mine Safety and Health, for MSHA district managers
concerning MSHA jurisdiction over refractory mills states, in part, as
follows:
"As you know, the MSHA/OSHA Interagency Agreement provides that OSHA
shall have jurisdiction over 'brick, clay pipe and refractory plants' (Section B.6.b.). The effect of this clause is to grant to OSHA jurisdiction
over plants which include a manufacturing process resulting in a product
such as bricks, clay pipe, insulators or other finished forms of refractories. In these operations, both milling and manufacturing occur and
there has been a joint MSHA/OSHA presence at one physical establishment.
"Section 3(h)(l) of the Mine Act states that 1 [i]n making a determination of what constitutes mineral milling for purposes of this Act, the
Secretary shall give due consideration to the convenience of administration
resulting from the delegation to one Assistant Secretary of all authority
with respect to the health and safety of miners employed at one physical
establishment.' It was this type of dual jurisdiction that the provision
was designed to correct. Therefore, in operations involving milling and
the manufacturing of bricks, clay pipe or finished refractories, where there

2569

As is reflected in the MSHA/OSHA agreement and Mr. Shepich's
memorandum, the purpose of making the jurisdictional determination concerning refractory plants (and other types of
operations covered by the agreement) is to eliminate dual
jurisdiction "at one physical establishment," by making a
"convenience of administration" determination as provided
at section 3(h)(l) of the Mine Act (30 u.s.c. 802(h)(l)).
Hence, where both milling and manufacturing take place at
one identifiable establishment, OSHA is to assume jurisdiction. However, where a reasonable physical or practical
separation can be made between associated establishments,
for example, between a mine and a mill which has traditionally been inspected by MSHA, and an associated facility
such as a refractory manufacturing plant, which has been
inspected, or subject to inspection, by MSHA and OSHA, no
"convenience of administration" determination need be made
under section 3(h)(l) for the former facility, since at that
establishment, there is no dual jurisdiction.
As we understand it, the Basic Refractories operation involved
here includes a refractory manufacturing operation, which in
turn includes both milling and manufacturing, and a quarry
which is clearly a "mine" under MSHA jurisdiction. According
to the flow chart provided as an attachment to your January 14
memorandum, the stone from the quarry is transported first to
a crushing plant (plant 35) and then to a sizing plant (plant
36) and an AG stone plant (plant 37), prior to entering the
storage silos. Some of the stone from plant 36 goes to the
AG stone plant or directly to railroad cars and does not enter
the storage silos. The use to which this stone is put is not
indicated, but it apparently does not enter the refractory
manufacturing operation. Stone is then transported as needed
from the storage silos to various kilns and other plants
(plants 51, 53, 54), where it is prepared for use as the raw
material in the refractory plants (plants 60, 61, 72). The
products of the refractory plants are then shipped by truck
and rail to the users of the products.
fn. 6 (continued)
is a joint MSHA/OSHA presence, jurisdiction has been delegated to OSHA under
the Interagency Agreement.
"The provision quoted above should not be applied to milling operations
where there is no manufacturing process and OSHA presence. Therefore, a
'refractory plant,' which is a free-standing mill engaged in milling and
milling-related operations only and which has been inspected in the past
solely by MESA or MSHA, remains subject to MSHA jurisdiction and has not
been transferred to OSHA's jurisdiction."
A copy of the August 3, 1979, memorandum was attached to a request for
admissions filed by the Respondent on January 2, 1980.

2570

Under the terms of the Mine Act and the MSHA/OSHA agreement,
it is clear that the quarry should remain under MSHA juris-·
diction. It is also clear that the shaped refractory and
special refractory plants are engaged in manufacturing of
"finished refractories" and are, therefore, under OSHA
jurisdiction. The question to be determined under the
"convenience of administration" provision of section
3(h)(l) and the MSHA/OSHA agreement is whether all or part
of the remainder of the Basic Refractories facility can
reasonably be regarded as an integral part of the refractories manufacturing plants and therefore, as part of a
single "physical establishment" under OSHA jurisdiction;
or whether some reasonable physical separation can be made
in order to preserve MSHA jurisdiction over all or part of
the remainder of the facilities.
Based on an examination of the flow chart attached to your
memorandum and disctis':'ions with MSHA personnel, it is our
view that the point in the procP.ss at Basic Refractories
where the stone enters the storage silos is the point at
which MSHA and OSHA jurisdiction separates, It is at this
point where the raw material (stone) can be said to "arrive
at the plant stockpile, 11 per the MSHA/OSHA agreement. Agreement Appendix A. The operations taking place before the
arrival of the stone at the storage silo, i.e., quarrying,
crushing (plant 35), sizing (plant 36) and the AG stone plant
operation (plant 37) are classical mining and milling operations, and could very well take place even if the facility
were solely a quarry and not associated with a refractory
plant. Thus, drawing the line for purposes of jurisdiction
at the storage silos is consistent with the MSHA/OSHA agreement and is reasonable from the standpoint of a traditional
view of mining and milling operations.
Accordingly, any MSHA citations or orders against Basic
Refractories for violations relating to the quarry, the
crushing plant (plant 35), the sizing plant (plant 36),
or the AG stone plant (plant 37) should remain under MSHA
jurisdiction.
The other outstanding citations should be vacated. Although
these citations were validly issued, since they arose prior
to the execution of the MSHA/OSHA agreement, and could legally
support the imposition of a penalty if they are established,
our position is that because jurisdiction has been transferred to OSHA, no useful purpose would be served by continuing to process the case to its conclusion.
In view of the foregoing, the Petitioner's March 20, 1980, motion to
dismiss will be granted.

7J

VII.

Petitioner's May 19, 1980, Motion Requesting Approval of Settlement

On May 19, 1980, the Petitioner filed a motion requesting approval of
settlement and dismissal of the proceeding, and also filed a memorandum in
support thereof, encompassing three of the citations at issue in this case.
Information as to the six statutory criteria contained in section 110 of
the Act has been submitted. This information has provided a full disclosure
of the nature of the settlement and the basis for the original determination.
Thus, the parties have complied with the intent of the law that settlement be
a matter of public record.
The proposed settlement is identified as follows:
Citation No.

Date

368848 ~
368851
368854

11/2 9/78
11/29/78
11/2 9/78

30 C.F.R.
Standard
56.14-1
56.14-1
56 .14-1
Totals:

Assessment

Settlement

$ 84
66
66
$216

$ 84
66
66
$216

The Petitioner advances the following reasons in support of the proposed
settlement:
The Respondent has agreed to pay the full amounts of
the penalties proposed by the Office of Assessments for the
[three] citations listed above. In support of the settlement, the Petitioner attaches the results of initial review,
the proposed assessment, copies of the citations, terminations, and inspectors' statements compiled in documentation
of the citations at issue.
The size of Respondent's Quarry and Plant is 358,329 man
hours per year. The size of the operator is 911588 man hours
per year. The operator employs 230 surface miners and no
underground miners. The mine accrued a total of 48 assessed
violations and 21 paid violations during the period
November 31, 1976, through November 30, 1978. [_§_/]
The reasons given above by counsel for the Petitioner for the proposed
settlement have been reviewed in conjunction with the information submitted
8/ The violations charged in these three citations allegedly occurred on
November 29, 1978. As noted in Part V (E), supra, the parties stipulated
at the hearing that as of November 28 and 29, 1978, the Basic Refractories
Quarry had no history of previous violations under the 1977 Mine Act (Tr. 5).
In view of the stipulation, it must be concluded that the Respondent has
no history of previous violations cognizable in connection with these
three citations.

2572

as to the six statutory criteria contained in section 110 of the Act. After
according this information due consideratj_on, it has been found to support the
proposed settlement. It therefore appears that a disposition approving the
settlement w:lll adequately protect the public interest.
VIII.

Conclusions of Law

1. The Administrative Law Judge has jurisdiction over the subject matter
of, and the parties to, this proceeding.
2. Basic Refractories and .its Basic Refractories Quarry and Plant were
subject to the provisions of the 1977 Mine Act at all times relevant to the
issuance of the citations involved in this proceeding •

.3. Federal mine inspector Michael Pappas was a duly authorized representative of the Secretary of Labor at all times relevant to this proceeding.
4.

The Respondent's motion to dismiss at the close of the Petitioner's
will be granted in part and denied in part for the reasons set
forth previously in this decision.

case-in~chief

5. The Petitioner failed to prove the violations charged in Citation
Nos • .368841, .368847, and .368849.
6. The violation charged in Citation No • .368846 is found to have
occurred as alleged.
7. All of the conclusions of law set forth in Part V, ~~pr~, are
reaffirmed and incorporated herein.
IX.

.J:>r2_p2se~.

Findings of Fae t and Conclusions of Law

The Respondent filed a trial brief during the hearing on November 14,
1980. The Respondent filed a posthearing brief and proposed findings of
fact and conclusions of law on April 27 • 1981. The Petitioner filed a posthearing memorandum on May L}, 1981. Such submissions, insofar as they can be
considered to have contained proposed findings of fact and conclusions of law
have been considered fully, and except to the extent that such findings and
conclusions have been expressly or impliedly affirmed in this decision, they
are rejected on the grounds that they are, in whole or in part, contrary to
the facts and law or because they are immaterial to the decision in this case.
X.

Penalties Assessed

Upon consideration of the entire record in this case and the foregoing
findings of fact and conclusions of law, I find that the assessment of penalties is warranted as follows:

Citation No.

Date

30 C.F.R. Standard

368846
368848
368851
368854

11/2 9/78
11/29/78
11/2 9/78
11/29/78

56 .11-1
56.14-1
56.14-1
56.14-1

Penalty

$125
84 (settlement)
66 (settlement)
66 (settlement)
Total: $341

ORDER
Accordingly, IT IS ORDERED that the Respondent's motion to dismiss at the
close of the Petitioner's case-in-chief be, and hereby is, DENIED as relates
to Citation No. 368846.
IT IS FURTHER ORDERED that the Respondent's motion to dismiss at the
close of the Petitioner's case-in-chief be, and hereby is, GRANTED as
relates to Citation Nos. 368841, 368847, and 368849; that such citations
be, and hereby are, VACATED; and that the petition for assessment of civil
penalty be, and hereby is, DISMISSED as relates to such citations. In the
alternative, vacation and dismissal IS ORDERED as relates to such citations
because the Petitioner failed to prove the violations charged by a preponderance of the evidence on the record as a whole.
IT IS FURTHER ORDERED that the settlement outlined in the Petitioner's
May 19, 1980, motion requesting approval of settlement be, and hereby is,
APPROVED.
IT IS FURTHER ORDERED that the Petitioner's March 20, 1980, motion to
dismiss be, and hereby is, GRANTED; that Citation Nos. 368863, 368877,
368885, 368886, 368888, and 368889 be, and hereby are, VACATED; and that
the petition for assessment of civil penalty be, and hereby is, DISMISSED
as relates to such citations.
IT IS FURTHER ORDERED that the Respondent pay civil penalties totaling
$341, as set forth in Part X, supra, within 30 days of the date of this
decision.

~,

/John
Administrative Law Judge

2574

Distribution:
Linda Leasure, Esq•, Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Jack A. Klein, Esq., Doehrel & Klein, 1662 Doone Road, Columbus, OH
43221 (Certified Mail)
Arthur Jibilian, Safety Director, Basic Refractories, Fostoria, OH
44830 (Certified Mail)
United Auto Workers' Local 1680, 2300 Ashland Avenue, Toledo, OH 43620
(Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health,
U.S. Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

2575

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

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

v.

IOV 4

Civil Penalty Proceeding
Docket No. LAKE 81-45-M
A.O. No. ll-00791-05009I
Minerva Mine No. 1

INVERNESS MINING COMPANY,
Respondent
DECISION AND ORDER
The parties move for approval of a settlement of a non-fatal
roof fall accident case alleging a violation of 30 C.F.R. 57.3-22.
This requires that miners examine and test the back, face, and rib
of their working places at the beginning of each shift and frequently
thereafter and that loose shale be taken down or adequately supported
before any other work is done.
The accident investigation established that at the beginning
and throughout the shift the miners and their supervisor were at all
times aware of the fact that there was questionable shale at the
back of the drift, but that due to the pressure to catch up with
production the miners and their supervisor decided to take a chance
that it could be worked without testing. That this was in accord with
the policy of top management was established by the angry reaction
of the plant manager, John Kerns, and the superintendent, Bill Hobbs,
to the inspector's decision to issue the citation. It is just this
"take a chance" attitude toward safety that leads to so many fatal and
disabling accidents. Every neophyte in the mines knows the rule that
every time a miner enters a new work area he should make a visual and
vibration test before starting work. Here experienced miners were
encouraged to ignore sound safety practices because the top management of a
new operation was pushing for production.
Top management's attitude alone justified the penalty of $2500
originally proposed. Because of the effort made to muddy the waters,
MSHA proposed a settlement of $1,000 or 40% of the amount initially
proposed. The trial judge rejected this and suggested $1500. This
proposal was accepted by counsel for the operator on October 31, 1981.

2576

Based on an independent evaluation and de nova review of the
circumstances, I reluctantly conclude that payment of the reduced
penalty can be justified only on the ground that this is a new operation
and this was the first violation of the standard cited. Nevertheless,
it is my opinion that this operation bears close scrutiny and that unless
top management's attitude changes serious violations will continue to
occur. I will expect that the next time around the Solicitor will
recognize that miners who are induced to contradict their contemporaneous
statements are still reliable witnesses of what actually transpired and
that little weight is to be accorded self~serving afterthought statements
elicited under pressure from the operator.
Accordingly, it is ORDERED that the motion to approve settlement,
as amended, be, and hereby is, GRANTED. It is FURTHER ORDERED that
the operator pay the penalty agreed upon, $1500, on or before Friday,
November 27, 1981, and that subject to payment the captioned matter be
DISMISSED.

Kennedy
Administrative Law Judge
Distribution:
Gordon E. Maag, Esq., Walker and Williams, 4343 W. Main St., Belleville,
IL 62223 (Certified Mail)
Steven E. Walanka, Esq., U.S. Department of Labor, Office of the Solicitor,
230 S. Dearborn St., 8th Floor, Chicago, IL 60604 (Certiifed Mail)

2577

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

Civil Penalty Proceeding

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

Docket No. WEVA 79-31
A.O. No. 46-01478-03014

v.

Sewell U.G. No. 1 Mine

SEWELL COAL COMPANY,
Respondent
DECISION AND ORDER
Pursuant to the order of remand, the trial judge issued an order
to show cause which afforded the parties an opportunity to be heard on
the issue of the availability of the defense of "diminution of safety"
or "greater hazard" in an enforcement proceeding. As the Commission's
decision pointed out, in this case, unlike Penn Allegh Coal Company,
3 FMSHRC 1392 (1981), the operator (1) filed a petition for waiver
of the canopy requirement prior to issuance of the notice of violation,
(2) the petition was granted before the enforcement proceeding was
adjudicated, and (3) at the time the first motion to approve settlement
was submitted notice of the finality of the waiver of the canopy requirement
for the equipment in question had been published in the Federal Register.
It had, therefore, the force and effect of law.
Despite this, counsel for the Secretary contends that because
the operator has waived its rights by twice agreeing to pay a token
penalty, the trial judge and the Commission must ignore the importance
of the issue raised by the remand. Counsel also asks that the Commission
ignore the fact that the operator, in response to the show cause order,
has withdrawn its settlement proposal and now prays the matter be dismissed.
The citation to P & P Coal Co., 6 IBMA 86 (1976), is inapposite.
This is not, as counsel suggests, a default proceeding in which the
trial judge has, on his own motion, raised an affirmative defense never
established in the record. It is rather a case for application of the
Commission's rule that the trial judge has "inherent authority to question
whether, as a matter of law, a case before him presents a cause of action."
Olga Coal Co., 2 FMSHRC 2769 (1980). This, in turn, depends on whether,
as a matter of law, the defense of "diminution of safety" is available
to the operator in this case. Indeed, the case was remanded for the
express purpose of permitting the trial judge to make this determination.

2578

My conclusion is that the defense is available and has been established.
Therefore, MSHA's motion to approve settlement must be denied and the
matter dismissed.
MSHA's arguments against such a disposition are without merit.
Contrary to the Secretary's contention, I have not attempted to overrule
the Administrator's decision with respect to the Galis 300 roof bolter.
I have merely concluded that evidence in this record, which was not before
the Administrator, .!/ established that, independent of the Administrator's
decision, sufficient practical technology did not exist on the date of
the alleged violation to warrant imposition of an obligat:ion to install
canopies in either a 48 inch or 50 inch mining height.
In regard to the Joy l6SC shuttle car, the claim by MSHA that the
Administrator's decision was not predicated on a finding that use of
canopies on the shuttle cars diminished the safety of the miners is
clearly erroneous. As the operator's response points out, at no time
did the operator propose an alternate method of compliance, Instead
what was sought was a total waiver of the requirement on the ground that
compliance was technologically impossible without diminishing the safety
of the miners. 30 U.S.C. § 86l(c) (1970); § 8ll(c) (1977). MSHA's
afterthought argument is a thinly disguised effort to evade the estoppel
imposed by the Administrator's decision on maintenance of the enforcement
proceeding.
Nor does the fact that the operator installed a canopy in a 43 inch
clearance establish that its use did not diminish the safety of the miners.
One of the great failings of the canopy program is MSHA's callous indifference
to whether or not the requirement for installation of canopies is compatible
with the safety of the miners who must use them. The canopy standard has
been repeatedly criticized by both miners and operators for creating in
medium and low coal more hazardous conditions than it cures, It is
this type of irresponsible enforcement that leads both miners and coal
operators to contend that MSHA's canopy standard is an arbitrary and
dangerous exercise of regulatory power.
Finally, I find counsel's attempt to redact or to expunge unilaterally
and ex parte the record of the representations made by the parties in support
of their original motion as feckless and irresponsible at best and
reprehensible at worst. Those representations and stipulations were
highly material to the initial disposition made of this matter. Furthermore,
they were relied upon and quoted from at length by the Commission. As
the attached affidavit by my clerk shows, at no.time did she tell Mr. Kramer
to file a new motion for settlement that would "supersede and replace Mr. Street's
previously filed motion. 11
Such as, the parties representation as to the experimental nature of
canopy technology in January 1976; the injuries to miners performing tramming
operations with canopies; and the fact that the notice was modified a
month after its issuance to show the minimum mining height on the section at
the time of. the alleged violation was 5 inches less than stated.

2579

Consequently, for the reasons set forth in this decision and in my
show cause order of September 30, 1981, as appended hereto and incorporated
herein, I conclude the defense of diminution of safety or greater hazard
is a bar to this enforcement proceeding. Accordingly, it is ORDERED
that the pending motion to approve settlement be, and hereby is DENIED
and the captioned matter DISMISSED with prejudice.

Administrative Law Judge
Distribution:
Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Fletcher A. Cooke, Esq., Sewell Coal Company, Lebanon, VA 24266 (Certified
Mail)

2580

ATTACHMENT TO DECISION AND ORDER DATED November 4, 1981

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SEP 3 0 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. WEVA 79-31
A.O. No. 46-01478-03014

v.

Sewell U.G. No. 1 Mine

SEWELL COAL COMPANY,
Respondent
ORDER TO SHOW CAUSE
Upon remand from the Commission, 3 FMSHRC 1402 (1981), of my
decision of September 20, 1979, 1 FMSHRC 1379 (1979), the parties once
again move for approval of a settlement based upon the assessment of
a token penalty of $50.00 for the two violations of the canopy standard
alleged. I share the parties obvious desire to see an end to this
administrative whirlwind. Nevertheless, because the Commission saw fit
to remand the matter and because of the importance of finding a proper
balance between an enforcement and a modification proceeding, I undertake
with the greatest reluctance to once again set forth the reasons for my
disagreement with the Secretary's and the Commission's assertion that
becquse compliance is claimed to be technologically possible diminution
of the safety of the miners is irrelevant to enforcement of the canopy
requirement or, if it is not, the affirmative defense of diminution of
safety was not, in fact, made out.
My earlier decision found that with respect to (1) the two pieces
of face equipment in question, a Galis 300 roof bolter and a Joy 16 SC
shuttle car, and (2) the coalbed or mining heights involved (50 inches
and 43 inches respectively), compliance with the canopy requirement set
forth in the "improved" mandatory safety standard, 30 C.F.R. 75.1710l(a), was "impossible without diminishing the safety of the miners". 1
FMSHRC 1380. In addition, I held that the Secretary's failure to comply
with the mandatory safety standard set forth in section 318(i) of the
Mine Safety Law, 30 U.S.C. § 878(i), };./ rendered. the improved standard
1/ This provision requires that the mechanical and electrical
components of face equipment be. "designed and constructed in accordance
with the specifications" of the Secretary. The Commission held this
requirement is met by a performance specification that relates only to
the tensile strength of the canopy and not to its suitability for safe use
under widely varying mining conditions. Despite the plain language of
the Congressional directive, the Commission held the Secretary could
short circuit his responsibility for designing and constructing safe
canopies by delegating it to the coal operators and enforcing a requirement
for canopies without regard for whether or not "technological compliance"
diminishes the safety of the miners.

2581

"null, void and unenforceable". My decision further held the improved
standard was unenforceable as applied to the specific undisputed facts
of this case because it violated section 10l(a)(9)'s, formerly section
lOl(b)'s, (30 U.S.C. § 8ll(a)(9)) prohibition against issuance or
enforcement of any improved standard that "reduces the protection"
afforded the miners by a Congressionally enacted standard, namely
section 318(i). It is part of the conventional wisdom that the best test
of whether a mining practice or device is safe is to observe the conditions
under which it must operate. By that test the requirement for canopies
in mining heights in medium and low coal (less than 60 inches) has
been shown to be technologically infeasible which, whether the Commission
believes it or not, translates into the creation of serious new hazards
and the aggravation of old hazards. ];../
In regard to the technological infeasibility of canopies, I take
official notice of the following from a Report to the Congress of the
United States by the Comptroller General entitled "Low Productivity In
American Coal Mining: Causes and Cures", Rpt. No. EMD 81-17, issued
March 3, 1981:
Technically infeasible requirements
Coal operators complain that some MSHA regulations require
technology which is exotic or unavailable. Since MSHA
enforces these regulations, the resulting inspections,
violations, withdrawal orders, machine modifications, and
paperwork reduce productivity. The two regulations that mine
managers cite most frequently are requirements for cabs and
canopies and mine illumination.
Cabs and canopies are steel roof and sides which protect
mining machine operators from collapse of roof, face, or rib.
On January 1, 1973, protective cabs and canopies became mandatory
on all mobile face equipment used in mines 72 inches and
above in height. By 1978, coal mines of all seam heights had
to comply with this regulation. Mines with 60 inch or higher
seams have generally not had problems in fitting cabs and canopies
to their machines. However, 45 percent of production and 41
percent of mines have seams under 60 inches. Low coal and narrow
2/ I held the Secretary's failure to comply with section 318(i) in
promulgating the improved standard violated section 10l(a)(9) because it
compels mine operators to experiment with the lives and safety of miners
required to operate oversized face equipment under canopies in coalbed
heights that create an imminent danger of death or disabling injury from
roof falls for all miners and of decapitation and dismemberment of
equipment operators. The Commtssion held the bitter experience developed
in the records of the modification cases was no basis for concluding
that application of the improved standard "at all times and under all
circumstances" diminishes the safety of the miners and therefore it must
be conclusively presumed that the improved standard both as applied and
generally is valid and does not "reduce the protection" of the miners.

2582

There is also available for consideration a carefully crafted
decision by Judge Steffey in which he found, after a full evidentiary
hearing, that (1) canopies are not required where the coal height is
less than 42 inches and (2) that the undisputed facts of record in his
proceeding showed that as recently as March 10, 1980 practical technology
did not exist to permit the installation of canopies in mining heights
of 43 to 50 inches. Wrigh.t Coal Company, Inc., 3 FMSHRC 496 (1981).
Because Judge Steffey's finding of technological impossibility was never
challenged by either MSHA or the Commission it became by operation of
law a final decision of the Commission.
A careful reading of the Comptroller General's report, supra, also
leads me to conclude that up to 80 percent of the research, development
and experimentation with canopy designs has been accomplished without
any input on the part of the Secretary. The report further supports the
view that this shifting of the burden has been counterproductive
not only in terms of productivity but also of safety. As the report
notes, "injury prevention benefits of cabs and canopies require further
study." Attempts on the part of this judge to obtain such data has been
very frustrating. In response to a subpoena for such data, counsel for
the Secretary advised on April 7, 1981, that "there are no formal reports
or studies reflecting the number of lives saved or injuries avoided by
the use of cabs or canopies." Ltr. to Trial Judge from Stephen P.
Kramer, Esq., Attorney for the Secretary. This admission leads me
to regard MSHA's claims as to the efficacy of the canopy requirement
with great skepticism.
The Commission in reversing my decision concluded inter alia, that
in the absence of an evidentiary hearing or stipulation of facts the
trial judge's finding that application of the canopy requirement would
compromise the safety of the miners was impermissible. This is incorrect.
What the Commission seems to have overlooked was that my decision was
based solely on (1) the undisputed facts set forth in a final decision
by the Secretary on a petition for modification or waiver of the canopy
requirement with respect to the mine and equipment in question, Sewell
Coal Co., No. M. 76-131,(April 27, 1971); 44 F.R. 4L1838 (August 17,
1979), and (2) the facts agreed upon, stipulated to and submitted by the
parties in support of their joint motion for settlement. 11
3/ In Co-op Mining, 2 FMSHRC 3475 (1980), the Commission held that
where-stipulated facts establish that no violation occurred, a motion
for settlement should be denied. And in Olga Coal Co., 2 FMSHRC 2769
(1980), the Commission held that the trial judge has "the inherent
authority to question whether, as a matter of law, a case before him
presents a cause of action."

2583

work spaces leave little room to attach these devices. One
coal mine official told us that in the last 4 years, his mine
experimented with 88 different canopy designs. He also said
that the work required to install and test these canopies had
substantially reduced productivity.
Other problems with using cabs and canopies in low coal are that
they impair the machine operator's vision, restrict movement, and
cramp and tire the operator. Thus, some mine managers have had
to deal with worker resistance to the cabs and canopies, further
hindering productivity.
Recognizing problems with installing cabs and canopies in low
coal, MSHA suspended requirements for coal mines with 42-inch
seams or less. Further, coal operators have received substantial
Federal assistance in complying with cab and canopy regulation.
MSHA has provided some technical assistance to mines to help them
retrofit machines. For example, during 1973, the first year cabs
and canopies were required, the Roof Control Group of MSHA's
Pittsburgh Technical Support Center analyzed about 60 cab or canopy
designs and 120 redesigns for coal mine operators and equipment
manufacturers. The Bureau of Mines has also assisted operators and
manufacturers to comply with cab and canopy regulations. The
Bureau estimates that 20 percent of the total canopy designs now
being used have come from this research.
While requiring cabs and canopies in low coal may have disrupted
mining operations, it may also have reduced fatalities and
disabilities due to roof collapse. However, an examination of
available data suggests that the injury prevention benefits of
cabs and canopies require further study. Id. at 61.
This report, from what appears to be a reliably objective source
to the Congress of the United States, casts serious doubt on the Commission's
finding that "sufficient practical technology" exists to support the
conclusion that operators encounter no difficulty in retrofitting face
equipment "in mining heights above 30 inches". 3 FMSHRC 1410. The
record clearly shows that the requirement has been suspended at least in
regard to mining heights below 42 inches for lack of practical technology.
See also, the Secretary's Annual Report to Congress for FY 1978, at 1112.
Serious conflict also exists within MSHA over the existence of
practical technology for medium and low coal mines. A January 1981
Report of the United States Regulatory Council states that "while local
MSHA officials have agreed that canopied equipment in coal seams under
50 inches is 'impractical' MSH.;\. officials in Washington require continued
experimentation" in seam heights below 50 inches. Cooperation and
Conflict: Regulating Coal Production, Report of the U.S. Regulatory
Council, January 1981, at 47.

25811

The Commission found that the parties' stipulation was that (1) the
use of a canopy on the roof bolter "had caused injuries to miners" and
(2) "that technology to abate the violation (in the 50 inch coalbed or
mining height) was in an e-xperimental stage" at the time the citation
was written on January 15, 1976. 3 FMSHRC 1413-14. The Commission
found this fell short of an express judicial admission that compliance
would diminish the safety of the miners and that an implied admission
was negated by a finding by the Secretary (never cited or relied upon by
the parties in their motion to approve settlement) that on and after
October 1972 "sufficient _Eractical technology" existed to warrant imposition
of a general duty on coal operators to utilize such "practical technology"
to design, fabricate and retrofit canopies on all face equipment used in
coalbed or mining heights in excess of 30 inches. 3 FMSHRC 1410-13;
Compare, Eastover Mini~ Co~, 3 FMSHRC 1155 (1981), ~· granted, June 1981.
The Commission's reliance on the Secretary's finding that "an
appropriate level of practical cab and canopy technology existed" on the
date of the violation was, I respectfully submit, irrelevant to the
question of whether a violation, in fact, occurred with respect to the
specific roof bolter at issue. As the Commission concedes, the "improved"
standard imposes only a duty to apply "existing practical technology".
This obviously does not embrace "experimental" technology for, as the
Commission held, "There is • • • no affirmative duty for research and
development placed upon an operator in the cab and canopy standard."!::_/
Id. at 1412. For these reasons, I believed the admission that the use of
"e°xperimental" technology had "caused injuries to mi_ners" warranted the
finding that compliance on the date of the alleged violation was technologically
impossible under the existing state of the art of canopy design without
diminishing the safety of the mi_ners. This conclusion was furthered
by "the fact that, because the Secretary recognized the "difficulties"
occasioned by the "experimental stage" of the canopy design art, the
time for compliance was repeatedly extended to permit a decision on
the operator's petition for modification or waiver which was filed
before the citation issued.
Despite my reservations pertaining to the broad issues decided by
the Couunission, the case is now before me to decide another separate
issue of major significance, the effect of a successful petition for
modification on a pending enforcement proceeding. Because the Commission
could find no ''clear discussion of the interrelationship between the
4/ This, I understand, means an operator cannot be requi_red to
experiment with his own designs. Experimental technology is speculative,
emerging or unproved technology. Practical technology is that which the empirical
evidence shows to be proven safe for use in the mine environment.

2585

factual issues in the enforcement proceeding (this proceeding) and those
at issue in the modification case", Sewell Coal Company, No. M. 76-131,
decided April 27, 1979, supra, it remanded the matter to afford the
parties, and presumably the trial judge, an opportunity to address the
issue of this interrelationship ''in the context of the facts of this
case", 3 FMSHRC 1413-15, and "for further proceedings consistent with
this opinion", and with the Commission's recent decision in a companion
canopy case, Penn Allegh Coal Co., 3 FMSHRC 1392 (1981).
In Penn Allegh, the Commission found that "the defense of diminution
of safety" could not regardless of its merit, be raised in an enforcement
proceeding unless the operator could show that the "enforcement proceeding
was brought by the Secretary after the operator had filed a modification
petition and before that petition had been finally resolved." 3 FMSHRC
1399, footnote 10. z_/
A comparison of the factual matters in the enforcement and modification
proceedings establishes a firm basis for application of the principles
of res judicata and collateral estoppel against the Secretary in the
instant enforcement proceeding. Thus, the record that is before me and
that was before the Commission shows:
I

Effective January 1, 1975, canopies were required whenever
the coalbed height, height of the coal seam or mining height
exceeded 48 inches. 30 C.F.R. 75.1710l(a)(4). The first
notice or citation issued under the Coal Act on January 15,
1976. It charged that the failure to install a canopy on a
Galis 300 roof bolter in the 012 section, which at the time
had a minimum mining height of 50 inches, constituted a
violation of the improved standard. One day prior to issuance
of the notice, i.e., on January 14, 1976; the operator filed
a petition seeking modification or waiver of the requirement.
Sewell Coal Co., supra, at 1. Thereafter, MSHA conducted an
investigation of the operator's petition in April and October
1976 and in December 1978 filed and served a report of its
findings and recommendations. Id.
5/ This exclusionary rule was first fashioned by OSHRC in October
1976 almost a year after the violations in question in this case allegedly
occurred. A review of the record shows the Commission raised the issue
sua sponte and that it was never raised or briefed by the parties.
While two courts of appeals have endorsed the rule, three courts of
appeals have appended qualifications to its application. Thus, in
General Electric Co. v. Secretary, 576 F.2d 558 (3d. Cir. 1978), which
the Commission cites, the Court held that the rule does not empower the
Secretary to promulgate a standard that "increases the danger to employees",
and that upon a showing in an enforcement proceeding that compliance
(footnote 5 continued on next page)

2586

When the parties failed to respond to the investigatory report,
the Administrator for Coal Mine Health and Safety, MSHA, issued
a proposed decision and order on April 27, 1979. Thirty days
thereafter, no appeal having been noted, the proposed decision
became final. 30 C.F.R. 44.16.
With respect to the 012 Section, the Administrator's decision
found that "the mined height was 38 to 48 inches", the "roof
was laminated shale supported by roof bolts", the "floor was
uneven, steep, sideling and wet", and that the Galis roof
bolting machine, with a frame height of 34 inches, was equipped
with a canopy. Id. at 5. The Administrator further found that
"for the Galis 300 roof bolting machine, there would be inadequate
clearance to require the installation of a canopy except where
the minimum mining height exceeds 48 inches." Id. at 9.
Based on these findings, which were undisputed, the Administrator
concluded that the installation of a canopy on the Galis roof
bolter would diminish the safety of the miners wherever the minimum
mining height did not exceed 48 inches.
The Administrator's decision was published in the Federal Register
on August 17, 1979. 30 C.F.R. 44.5. · The parties' motion to
approve settlement was filed on August 24, 1979,
Taking official notice of the Administrator's decision and more
particularly his findings with respect to the undulations in seam height
on the section in question, coupling this with the parties' representation
as to the experimental nature of the technology, the hazards actually
experienced, and MSHA's vascillation over whether the seam height was 55
inches, 50 inches, or 30 to 48 inches, and applying the accumulated
expertise gained in hearing and deciding the difficult questions that
(footnote 5 continued)
will in all likelihood diminish rather than enhance the safety of workers
enforcement must be stayed pending a determination of a petition for
modification or waiver, 576 F.2d 561-562; Holtze Construction v,
Marshall, 627 F.2d 149, 152 (8th Cir. 1980). In Holtze the court
refused to pass on the propriety of the exclusionary rule because it was
"not entrenched at the time" the matter was before the trial judge. To
hold otherwise the court noted would require that the operator be
afforded an opportunity to show that "the rules were changed to its
prejudice in mid-course." 627 F.2d at 152, n. 2; Irwin Steel Erectors,
Inc. v. OSHRC, 574 F.2d 222, 223-224 (5th Cir. 1978). In light of
section 10l(a)(9) of the Mine Safety Law the application of the exclusionary
rule, developed under OSHA, to. the Mine Act is questionable. However,
if the exclusionary rule is to be applied to the defense of greater
hazard under the Mine Act, the Secretary should also recognize that the
granting of the modification mooted the charges and requires vacation of
the citations. OSHRC did this in a case where the petition was filed
after issuance of the citation. See, Star Textile and Research, Inc.,
1974-75 OSHD, CCH ~[ 19,442.

2587

attend the application of the science of anthropometrics to safe canopy
design, I concluded that it was more probable than not that on January 15,
1976 it was technologically impossible to install a canopy that would
not diminish the safety of the miners whether or not it was physically
possible to fit a canopy on the roof bolter.
This, as I have indicated, was wholly without regard to whether the
improved standard was valid or invalid. In fact, it was premised on the
assumption that the improved standard was valid but that the diminution
in safety made out on the record of the modification proceeding and in
the parties' stipulations established a defense of "greater hazard". It
is my tentative conclusion, therefore, that the defense of diminution of
sa·fety or greater hazard is available to the operator with respect to
this enforcement proceeding and this violation.
II

The second citation involved in this enforcement case issued
on April 26, 1978 under the ttine Act. It charged that the
failure to install a canopy on a Joy 16SC shuttle car on
the 014 section of the Sewell No. 1 Mine in a mining height
of 43 inches constituted a violation of the improved standard.
Effective January 1, 1977, canopies were required wherever
the coalbed height, coal seam height ·or mining height exceeded
36 inches. 30 C.F.R. 75.1710-l(a)(5)(i). As noted, this section
of the mine and piece of equipment was covered by the
petition for modification or waiver filed some two and onehalf years earlier, i.e., on January 14, 1976. Sewell
Coal Co., supra, at 6. Thereafter, MSHA conducted an investigation
and in April and October 1976 and in December 1978 filed and
served a report of its findings and recommendations. Id.
When the parties failed to respond to the investigatory report,
the Administrator for Coal Mine Health and Safety, MSHA, issued
a proposed decision and order on April 27, 1979, thirty days
thereafter, no appeal having been noted, the proposed decision
became final. 30 C.F.R. 44.16.
With respect to the 014 Section, the Administrator's decision
found that "the roof was shale supported with roof bolts and
posts", the "floor was uneven, wet and steep with sideling
places", the "mined height was 53 to 108 inches". The frame
height of the shuttle car was 32 inches. It was not equipped
with a canopy. The Administrator further found that "there is a
minimum vertical clearance, between the frame of the equipment and
the bottom of the roof supports, in excess of 18 inches for
each piece of equipment on the section. I find this to be
sufficient clearance for properly installed canopies without causing
a diminution of safety to the operators of this equipment or to
other miners." Id. at 10.

2588

Based on these findings, which were undisputed, the Administrator
concluded that the installation of a canopy on the shuttle car
would not diminish the safety of the miners except where the
minimum mining height does not exceed 48 inches. Id. at 13-14,
Conclusions 3, 5. Accordingly, the Administrator ordered that
the petition be denied, except where the mining height did not
exceed 48 inches. Id. at 14, Order, Para. 3.
The Administrator's decision was published in the Federal
Register on August 17, 1979. 30 C.F.R. 44.5. The parties motion
to approve settlement was filed August 24, 1979.
The motion to approve settlement did not advise that the
Administrator had granted a petition for modification on the
piece of equipment involved but did stipulate that "no cab
or canopy was commercially available for Respondent's use on a
shuttle car working in Lf3°-inch high coal".
Based on the Administrator's uncontested findings and the stipulation
of the parties, I concluded it was more probable than not that installation
of a canopy on the shuttle car in question would have diminished the
safety of the miners whether or not it was physically impossible to fit
a canopy on the equipment.
This, as I have indicated, was wholly without regard to whether the
improved standard was valid or invalid. In fact, it was premised on the
assumption that the improved standard was valid but that the diminution
in safety made out on the record of the modification proceeding and in
the parties' stipulations established a defense of "greater hazard". It
is ·my tentative conclusion, therefore, that the defense of diminution of
safety or greater hazard is available to the operator with respect to
this enforcement proceeding and this violation. §j
6
In a statement of enforcement policy dated June 29, 1981 (copy
attached), MSHA has said that if a citation issues after a petition
is filed the operator may petition for a stay under 30 C.F.R. 44.16. This
permits an operator to file for a stay at any time prior to issuance
of a final departmental decision on the petition. Where the citation
issues before a petition is filed, the period of time for abatement
may be extended until a decision has been rendered (1) where it is
alleged in good faith that application of such standard will result in
a diminution of safety to the miners, and (2)' where, due to a particular
circumstance, to force compliance with the standard would be unreasonable
or impose an undue hardship upon the operator and adequate temporary
measures have been taken to eliminate any hazards to miners.

2589

The parties are entitled under the order of remand to an opportunity
prior to any further order of dismissal "to present arguments addressing"
the issue of the availability of the defense of diminution of safety in
this case.
Accordingly, it is ORDERED that on or before Friday, October 16,
1981, the parties show cause why their pend· g motion to approve settlement
should not be denied and the captioned ma
dismissed.

Distribution:
Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Fletcher A. Cooke, Esq., Sewell Coal Comp~ny, Lebanon, VA 24266 (Certified
Mail)

2590

U.S. Department of labor

JUN 2 9

U~81

MSPA Policy Mennrandum No.

SUBJECT:

l;EALTH REVIEW GDMM!SSJON

81-22 C

Enforcement Policy When Coal Mine Operators Petition for
M::dification Under Section lOl(c) of the Act

Questions have been raised recently by district m:.magers and enforcement personnel
concerning MSHA's enforcement :policy regarding mandatory safety standards 'When
coal mine operators are in the process of petitioning for m:xlification of a safety
standard under Section lOl(c) of the Act.
Operators will be required to cc:mply with all mandatory safety standards even
though the operator filed a request for m::xlification under 30 CFR 44.10. Accord~
ingly, a citation should be issued to the mine operator 'Whe..ri not in ccmpliance
with any safety standard even though a decision on the petition is pending before
the Mninistrator.
There are, hovJever, two circumstances under 'Which the period of t.irre for abatement
may be extemed until a decision has been rendered. 'Those conditions are: (1)
where it is alleged in good faith that application of such standard will result
in a d.i:cinution of safety to the miners. For example, the safety standard for
whic.11 m::x:lification is sought was filed tmder 30 CFR 75.305 alleging that certain
return air ccurses in the mine are unsafe for travel due to adverse roof cond.i~
tions ; .and, ( 2) where, due to a particular circumstance 1 to force ccmpliance with
the standard would be unreasonable or .inp)se an undue hardship on the operator,
and adeg:uate terrq;:orary measures have been taken to eliminate any hazards to miners.
For exaITrple, where an operator cannot ccmply with the provisions of 30 CJ:""'R 75,1105
' since no return air course ( s) is located within the .irrrrediate area of permanent
pUITrps, and the operator prq;oses as an alternative method to install such p.mrps
in a fireprCDf structure wi t."1 ad.di tional safeguards. In those instances where a
citation has been issued and the abatanent time extended, the citation should be
terr..inated if a favorable decision is rendered by the.Administrator.
It should be noted that nothing precludes an operator fran seeking interim relief
frcrr. enforcement of any mandatory safety standard according to 30 CFR 44.16, prior
·~g 'ssued a citation.

eph A. Larronica
Acting Administrator
for O::Bl Mine Safety and Heal th

Inquiries:

Joseph A. Wocxls, (703) 235-9745

Distribution:

Principal Officials, Headquarters
District Managers, Coal
All Cbal Mine Cperators

2591

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

State of Virginia, County of Fairfax, to wit:
I, Judith K. O'Rear, being first duly sworn, depose and say as
follows:
Based on my independent memory and the contemporaneous notes I
keep on all telephone conversations these are the true facts surrounding
the Motion to Approve Settlement in the Sewell Co. case, WEVA 79-31.
On August 12, 1981, I received a phone call from Mr. Fletcher Cooke,
counsel for Sewell Coal Co. I had previously left a message for him to
call me. I asked him whether the Sewell Coal case remanded by the
Commission was going to be appealed by the company. He replied in the
negative and informed me that he and the counsel for the Government
were engaging in settlement discussions. He promised to inform me of
the results of these discussions by August 14. On August 14, Mr. Cooke
and Mr. Gresham told me that they had not yet spoken to company officials
regarding a possible settlement, but that a tentative settlement had
been reached with the Government, and they would advise the company to
consider it. They were to advise me Monday, August 17 of the Company's
position. On August 17, Mr. Gresham called to inform me that the parties
were attempting to settle the case at $25.00 per violation. He told me
that Mr. Kramer was handling the case for the Government and that Mr. Kramer
was preparing a motion to approve settlement.
On August 17, 1981, after talking to Mr. Gresham, I called Mr. Kramer
for the first time. I asked Mr. Kramer if there were any developments
in the Sewell case. He replied that he was going to resubmit a motion
to approve settlement. He also mentioned an amount which agreed with that
which counsel for the operator had previously supplied. I asked him when
demotion would be submitted and he replied that the motion would be "out
in the next couple of days." I specifically deny that I asked Hr. Kramer
to file a motion superceding and replacing Mr. Street's motion, or suggested
that he negotiate and prepare a motion for settlement of any kind. Insofar
as Mr. Kramer's statement in paragraph 4 of the Government's response to the
Order to Show Cause implies that I made such statements, he is either
mistaken or misrepresenting the facts.

!Judith K. O'Rear

Subscribed and sworn befor~ me.this date 30, Ocotber, 1981
').

State of Virginia
Fairfax County

McGeachy, Notary
Commission Expires 2, 6, 1981

2592

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

BECKLEY COAL MINING COMPANY,
Contestant/Applicant

v.

Contest of Citation
Docket No. WEVA 81-436-R

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

Citation No. 876304
Respondent
Application for Review
Docket No. WEVA 81-500-R
Order No. 887689
Beckley Mine
DECISION

Appearances:

Harold S. Albertson, Jr., Esq., Hall, Albertson & Jones,
Charleston, West Virginia, for Contestant-Applicant,
Catherine M. Oliver, Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Respondent.

Before:

Judge Melick

These consolidated cases are before me upon the notice of contest and
application for review filed by the Beckley Coal Mining Company (Beckley)
under sections 105(d) and 107(e), respectively, of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 ~seq., the "Act," challenging
the validity of citations and an order of withdrawal issued pursuant to
sections 104(a) and 107(a), respectively, of the Act. Hearings were held
in Charleston, West Virginia, commencing August 18, 1981.
Docket No. WEVA 81-500-R
In this case, the Secretary moved at hearing to amend Order of Withdrawal No. 887689 to additionally incorporate therein a citation under
section 104(a) of the Act. After hearings were held in the companion case
(WEVA 81-436-R), Beckley moved to withdraw its application for review and
contest of the combined withdrawal order and citation and provided adequate
reasons therefore. That request was granted and accordingly the case captioned Docket No. WEVA 81-500-R was dismissed.

259:1

Docket No. WEVA 81-436-R
The issue in this case is whether a violation of the mandatory standard at 30 C.F.R. § 75.329 existed as alleged in Citation No. 876304. The
citation reads as follows:
The bleeder system for the 1 panel off Chestnut Mains
Section (029) was not adequate to reduce the methane concentration to below 2 per centum. Methane in excess of 2 per
centtml was present in the No. 37 crosscut as detected with
a permissible G-70 methane detector located at a point not
less than 12 inches from the roof, face or ribs.
In relevant part, the cited standard provides as follows:

* * * [a]ll areas from which pillars have been wholly or
partially extracted and abandoned areas * * * shall be
ventil?ted by bleeder entries or by bleeder systems or
equivalent means * * *· When ventilation of such areas
is required, such ventilation shall be maintained so as
continuously to dilute, render harmless, and carry away
methane and other explosive gases within such areas and
to protect the active workings of the mine from the
hazards of such methane and other explosive gases.
30 C.F.R. § 75.329.
There is no dispute that the subject panel was an area from which
pillars had been wholly or partially extracted and had been abandoned as
a gob area. In determining whether a violation has occurred, the specific
issue then is whether ventilation of the cited area was being maintained
so as "continuously to dilute, render harmless, and carry away methane and
other explosive gases" in that area and "to protect the active workings of
the mine from the hazards of such methane and other explosive gases."
The results of the methane readings taken in the bleeder system for the
subject panel by MSHA ventilation specialist Kenneth Ayers on June 25, 1981,
are not contested. In four bottle samples taken by Ayers in the No. 37 crosscut 52 feet inby the left rib, the methane content was 2.71, 2.67, 2.74, and
2.73 percent. Readings showing more than 3 percent methane were also obtained
by Ayers with his handheld methane detector in the same locations. All other
areas of the bleeder system tested by Ayers, including the No. 38 and No. 39
crosscuts, showed methane concentrations of less than 2 percent. Ayers conceded that none of the methane levels actually found in the bleeder system
were dangerous per se and that a concentration of 5 percent would be. necessary before an explosive condition existed. He also recognized that concentrations of methane higher than found in the crosscuts would be expected to
exist in the gob area.

2594

Ayers testified at one point that he was unable to detect any perceptible
movement of air in the No. 37 crosscut where he found the highest concentrations of methane. He later testified, however, that the air movement was
"minimal" and opined that "an anemometer would not have turned" in that
crosscut. Regardless of his reasons, it is clear that he did not in fact
conduct any smoke tube or anemometer tests to confirm air movement or the
absence thereof. Within this framework, Inspector Ayers concluded that if
the condition was left unabated, an accumulation of methane was "very possible"
in the cited area and that it was not likely that the condition would have
corrected itself.
Eugene Brown, Beckley's safety inspector, accompanied Ayers on his inspection. He disagreed with Ayers' evaluation of the air movement in the No. 37
crosscut. Brown testified that he actually felt the movement of air in the
crosscut but was unable at that time to perform any smoke tube or anemometer
tests because the equipment was not readily available. The next day, however,
after removing a line curtain to reconstruct the scene in the No. 37 crosscut
as it had existed when the citation was issued, Ronald Scaggs, Beckley's
director of safety and training, and Brown conducted a smoke tube test. The
released smoke moved out of the crosscut and into the bleeder. They also
extended a probe with a methane detector into the same general area close to
the gob in which Ayers had the day before found 3 percent methane. They
obtained similar readings and some even in excess of 3 percent. Near the
mouth of the No. 37 crosscut on the other hand, they found only low-level
readings of around 1 percent methane. They concluded based on all the evidence that the relatively high methane concentrations in excess of 3 percent
near the gob area were in fact being diluted into the bleeder system on
June 26 in the same manner in which they were being diluted on June 25 when
the citation was issued.
Whether there was a violation of the cited standard here depends on the
adequacy of the ventilation system, not, as charged in the citation, solely
upon the levels of methane found in any particular crosscut. The level of
methane in the cited crosscut is only one of many factors to consider in
determining whether a violation existed. The test set forth in the standard
is whether the ventilation system is being "maintained so as continuously to
dilute, render harmless, and carry away" the methane that both parties recognize is going to emanate from the gob area. It is therefore essential to know
in this case whether such ventilation was being maintained in that part of
Beckley's bleeder system here cited,!·~·· the No. 37 crosscut. In this
regard, the clear preponderance of the evidence does not support the alleged
violation. Essentially the only evidence produced to suggest the inadequacy
of the ventilation system here in effect was the one-time series of methane
readings showing a non-explosive 2- to 3-percent concentration and the opinion of Inspector Ayers that there was "no perceptible" movement of air out
of the cited crosscut, However, since Ayers himself later conceded that
there was some air movement (though minimal) out of the crosscut, since he
failed to support his earlier conclusion of "no perceptible" air movement
with a smoke tube test o·r anemometer reading, and since Safety Inspector
Brown testified that there was indeed movement of air out of the crosscut

at that time, I find it more credible that there was indeed movement of air
(and methane) out of the No. 37 crosscut when the citation was issued. I
also find credible the tests performed by Brown and Scaggs on the following
day under conditions substantially similar to those when the citation was
issued from which it may be inferred that methane from the gob area was
indeed being diluted, rendered harmless, and carried away at that time as
well as when the citation was issued. Accordingly, I find that there has
been no violation of the standard as cited.
ORDER
Docket No. WEVA 81-436-R
Citation No. 876304 is VACATED and the contest is GRANTED.
Docket No. WEVA 81-500-R
The application for review and contest are DISMISSED.

Distribution:
Harold S. Albertson, Jr., Esq., Hall, 1
Charleston, WV 25327 (Certified Mail)
Catherine M. Oliver, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900 15th Street,
NW., Washington, DC 20005 (Certified Mail)

2596

FEDERAL MINE SAFETY AND HIEALTH 11u:v1EW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

Civil Penalty Proceeding
Docket No. YORK 81-46-M
A/O No. 19-00724-05005

v.
Acton Plant
KENNEDY BROTHERS ACTON
SAND & GRAVEL,
Respondent
DECISION
Appearances:

David A. Snyder, Esq., Office of the Solicitor,
U.S. Department of Labor, Boston, MA for Petitioner,
MSHA;
John O. Mirick, Esq., Mirick, O'Connell, DeMallie
& Lougee, Worcester, MA for Respondent, Kennedy
Brothers Acton Sand & Gravel.

Before:

Judge Merlin

This case is a petition for the assessment of civil penalties filed
by the government against Kennedy Brothers Acton Sand & Gravel. A
hearing was held on October 13, 1981.
At the hearing, the parties agreed to the following stipulations:
(1)

The operator is small in size (Tr. 6).

(2)

The operator's history of previous violations is small

(Tr. 6).
(3) The imposition of penalties will not affect the operator's
ability to continue in business (Tr. 6-7).
(4)

The alleged violations were abated in good faith (Tr. 9-10).

(5) The conditions or practices specified in the citations
issued by the inspector existed as described by the inspector (Tr.
14-15).
Because the parties have entered into stipulations concerning the
existence of the violations, the operator's size, the operator's history
of previous violations, the operator's ability to continue in business

2597

despite the imposition of penalties, and the operator's good faith
abatement of the violations, I only need to consider the degree of the
operator's negligence and the level of gravity of the violation in order
to determine an appropriate penalty for each citation.
Citation No. 216841
This citation was issued when the inspector observed an inadequate
guard on a tail pulley, a violation of 30 C.F.R. 56.14-3. I found that
gravity was moderate; and that negligence was ordinary. Accordingly, I
assessed a penalty of $50, which I felt was consistent with other
penalties I have assessed in this situation (Tr. 16).
Citatio'h No. 216842
This citation was issued when the inspector observed an inadequate
guard at the tail pulley for the number belt conveyor, a violation of
30 C.F.R. 56.14-3. I found that gravity was moderate; and that negligence
was ordinary. Accordingly, I assessed a penalty of $50, which I felt
was consistent with other penalties I have assessed in this situation
(Tr. 18).
Citation No. 216843
This citation was issued when the inspector observed that there was
no stop device or guard rail along the lower section of the No. 1 belt
idlers, a violation of 30 C.F.R. 56.9-7. I found that gravity was
moderate; and that negligence was ordinary. Accordingly, I assessed a
penalty of $90 (Tr. 20).
Citation No. 216844
This citation was issued when the inspector observed an inadequate
guard on a V-belt for the primary crusher. At the hearing, both parties
agreed to amend the citation from section 56.14-3 to section 56.14-1
(Tr. 20). I found that gravity was moderate; and that negligence was
ordinary. Accordingly, I assessed a penalty of $50, which I felt was
consistent with other penalties I have assessed in this situation
(Tr. 20) •
Citation No. 216845
This citation was issued when the inspector observed that no guard
was provided over the head pulley for the return conveyor, a violation
of 30 C.F.R. 56.14-1. I found that gravity was moderate; and that
negligence was ordinary. Accordingly, I assessed a penalty of $114,
which was the amount recommended by the parties (Tr. 22).

2598

Citation No. 216846
This citation was issued when the inspector observed that no guard
was provided over the takeup rolls on the No. 3 sand c~nveyor, a violation of 30 C.F.R. 56.14-1. I found that gravity was moderate; and that
negligence was ordinary. Accordingly, I assessed a penalty of $114,
which was the amount recommended by the parties (Tr. 23).
Citation No. 216847
This citation was issued when the inspector observed an inadequate
guard on the balance wheel on the left shaker screen. At the hearing,
both parties agreed to amend the citation from section 56.14-3 to
section 56.14-1 (Tr. 23). I found the level of gravity was low because
in the opinion of the inspector an injury due to this violation would
result in lost work days or restricted duty rather than the permanent
disabling injury that would result from any of these other violations.
I further found negligence was ordinary. Accordingly, I assessed a
penalty of $45 (Tr. 25).
Citation No. 216848
This citation was issued when the inspector observed that safe
access was not provided to the head pulley bearings on the outer side of
the No. 4 stacker conveyor belt, a violation of 30 C.F.R. 56.11-1. I
found that gravity was moderate; and that negligence was ordinary.
Accordingly, I assessed a penalty of $120 (Tr. 27-28).
Citation No. 216849
This citation was issued when the inspector observed that no guard
was provided over the return idlers on the No. 3 conveyor belt, a violation of 30 C.F.R. 56.14-1. I found that gravity was moderate; and that
negligence was ordinary. Accordingly, I assessed a penalty of $114,
which was the amount recommended by the parties (Tr. 28).
ORDER
The operator is ORDERED to pay $747 within 30 days from the date of
this decision.

Assistant Chief
Distribution:
David A. Snyder, Esq., Office of the Solicitor, U.S. Department of
Labor, John F. Kennedy Federal Bldg., Government Center, Boston,
MA 02203 (Certified Mail)
John 0. Mirick, Esq., Mirick, O'Connell, DeMallie & Lougee,
1700 Mechanics Bank Tower, Worcester Center, Worcester, MA
01608 (Certified Mail)

2599

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

BERALDO GRIJALVA,
Complainant,
v.
ORACLE RIDGE MINING PARTNERS,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

NOV 12 1981

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE
DOCKET NO. WEST 81-255-DM
MSHA CASE NO. MD 78-58

DECISION AND ORDER
Appearances:
Beraldo Grijalva
P.O. Box 374
Marana, Arizona 85238
Pro Se
Stephen Pogson, Esq.
363 North First Avenue
Phoenix, Arizona 85003
For the Respondent
Before: Judge Virgil E. Vail
STATEMENT OF THE CASE
Pursuant to a notice of hearing dated August 31, 1981, a hearing in
the above-entitled proceeding was held in Tucson, Arizona, on October 6,
1981.
At the hearing, the complainant, appearing with his son, stated that
he had contacted an attorney several weeks prior to the hearing and had
expected the attorney would represent him, however the attorney was not
present.
Further inquiry revealed that the complainant had contacted an
attorney and given him the various documents related to this matter to
review. These documents included the Notice of Hearing which set forth
the date and time of the hearing. The attorney was to contact the
complainant but failed to do so. During a recess of the hearing,
complainant learned that the attorney was attending another hearing and
would not be available for this matter. The complainant was advised that
he could proceed on his own, but he stated that he did not wish to proceed
and wished to drop the case. (Tr. 11) .

2600

The respondent's attorney arg11ed that the complainant had been given
adequate notice of the date, time and place of the hearing and that the
attorney was also aware of the hearing. Counsel for respondent stated that
he was prepared to proceed at that time.
FINDINGS OF FACT
Having considered all of the circumstances involved, I make the
following findings:
1. That the complainant had sufficient notice of the date, time and
place of this hearing,
2. That the complainant contacted an attorney on one occasion but
failed to re-contact him prior to the hearing and therefore made
insufficient effort to determine if the attorney would represent him or
attend the hearing.
3. That no not ice of appearance was made by an attorney in this
matter on behalf of the complainant.
4. That the complainant was afforded an opportunity to proceed on his
own in this matter, but stated he wanted to drop the case.
5. That the respondent's attorney was in attendance and was prepared
to call witnessess and present evidence.
6. That considerable time and expense was incurred in setting and
attending this hearing and it would be a hardship on the respondent to
continue the matter to a later date.
ORDER
I hereby accept the complainant's statement that he wished to drop the
matter and not proceed further as a motion to dismiss.
Accordingly, it is ORDERED that complainant's motion be GRANTED and
the case DISMISSED WITH PREJUDICE.

/,,

'-;:?'//
(
_V,_..-:::',f 7.,C'jA.,,,

_

.r:~· {/ d . /

Virgil E.JVail
Administrative Law Judge

2601

L (

Distribution:
Beraldo Grijalva
P.O. Box 374
Marana, Arizona 85238
Stephen Pogson, Esq.
363 North First Avenue
Phoenix, Arizona 85003

2602

INE SAFETY AND H

FEDERAL

MISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

WILLIAM C. McCLAIN,
Complainant

Complaint of Discharge,
Discrimination or Interference

v.
Docket No. PENN 81-162·-D
WESTMONT COAL COMPANY, INC.,
Respondent

PITT CD 81-9

DECISION
Appearances:

James T. Davis, Esq., Davis & Davis, Uniontown,
Pennsylvania, for Complainant;
Robert A. Kelly, Esq., Cauley, Birsic & Conflenti,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Melick

This case is before me upon a complaint filed under section 105(c)(3)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.,
the "Act" alleging that William C. McClain was suspended by WestmontCoal
Company, Inc. (Westmont) in violation of section lOS(c)(l) of the Act. 1/
An evidentiary hearing was held on McClain's complaint in Pittsburgh, Pennsylvania, commencing September 8, 1981.
1/

Section lOS(c) (1)- of the Act provides as follows:
"No person shall discharge or in any manner discriminate against or
caused to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representative
of miners or applicant for employment in any coal or any mine subject to this
Act because such miner, representative of miners or applicant for employment
has filed or made a complaint under or related to this Act, including a
complaint notifying the operator or the operator's agent, or the representative of the miners at the coal or other mine of an alleged danger or safety
or health violation in a coal or other mine, or because such miner, representative of miners or applicant for employment is the subject of medical
evaluation and potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners or applicant for
employment has instituted or caused to be instituted any proceeding under or
related to this Act or has testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners
or applicant for employment on behalf of himself or others of any statutory
right afforded by this Act."

2soa

Mr. McClain can establish a prima facie violation of this section of the
Act if he proves by a preponderance of the evidence that he has engaged in an
activity protected by that section and that the disciplinary action against
him was motivated in any part by that protected activity. Secretary of Labor
ex rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980),
rev'd. on other grounds, Consolidation Coal Company v. Secretary of Labor,
No. 80-2600 (3d Cir., October 30, 1981). He alleges as protected activity
his participation in the union safety committee and, in particular, his filing in this capacity of six safety complaints against Westmont. Westmont
does not dispute that these activities are protected within the scope of
section lOS(c)(l), but contends that the disciplinary action taken against
McClain was not motivated in any part by those activities. ll Westmont
maintains that this disciplinary action was solely the result of McClain's
misconduct on January 6, 1981, in shooting a deer on neighboring property,
out of season, during the period of his work shift, and while using a
company pickup truck. For the reasons that follow, I find that McClain
has failed to sustain his burden of proving that the disciplinary action
taken by Westmont was motivated in any part by his protected activities.
Since there is no dispute that McClain engaged in protected activities,
the essential question to be decided is whether McClain has sustained his
burden of proving that the disciplinary action taken against him was motivated in any part by those activities. Pasula, supra. As evidence of
vindictiveness (and presumably motivation to unlawfully discipline him),
McClain first points out that he issued three safety complaints on unionfurnished forms to Westmont on September 9 and 10, 1980. McClain alleges
that Andrew Hynick, then mine superintendent, declined to sign for the complaints and refused to accept a copy. There is no allegation that Hynick
was obliged in any way to perform these acts and Hynick testified that he
was fully aware of the substance of the complaints and had the cited problems corrected. According to Hynick, he declined to sign the written
complaints because McClain had failed to follow customary procedures to
approach him first with an oral complaint.

As further purported evidence of unlawful motivation, McClain contends
that beginning in October 1980, and continuing the next 2 months, on "numerous" occasions he requested that Mr. Hynick arrange to have a "40-hour
safety course" presented. McClain alleges that his persistence in seeking
to have that course presented irritated Hynick to such an extent that it
resulted in his discharge on February 24, 1981. Hynick testified, on the
other hand, that he recalled being approached about the course only once
and presumably, therefore, did not find it particularly irksome. The safety
training was in fact presented in due course during the week of January 19,
1981.
-z;--MZClain was discharged by Westmont by letter dated February 1981. That
action was modified, however, at arbitration proceedings and McClain was
ordered reinstated but suspended without pay from February 27, 1981, to
March 2 7, 1981, for his unlawful deer hunting activities described, infra.
It is that suspension that is at issue herein.

2604

McClain next contends that following an inspection by mine safety committee members on February 2, 1981, he, as a member of that committee,
reported a nlUTlber of safety violations to the company, including what the
committee deemed to be an imminent danger regarding abandoned auger holes.
McClain testified t:ha t: the company was accordingly required to take immediate corrective action requiring the temporary transfer of equipment: and men
from production work
He also mentions a complaint that the mine safety
committee filed with the company as a result of a purported explosion near
working employees on February 7, 1981. McClain presumes that these too were
sources of ill will toward him.
While each of these four incidents cited by the Complainant as protected
activities could theoretically provide a basis for an unlawful motive, there
is insufficient evidence to show any causal connection between the incidents
and the disciplinary action.
I find the first two incidents cited to be
particularly trivial and hardly of a nature likely to give rise to the serious discriminatory response alleged.
The possibility of a causal relation is
made even more remote by the lapse of time--nearly 6 months between the first
incident and McClain's initial discharge. Although the latter two incidents
cited are of a more serious nature, no explanation is given as to why other
members of the mine safety committee and the chainnan of that committee did
not suffer discrimination. It appears that they were equally responsible
(the chairman even more so) for the safety complaints but there is no evidence that any one of these miners was singled out for any discriminatory
treatment.
Indeed, the only factor distinguishing McClain from these other
committeemen is his admitted unlawful deer hunting.
In short, I find that
the Complainant has simply failed in his burden of proving that the operator
was motivated in its discipline of him by any of the protected activities.
As other evidence of vindictiveness, McClain cites the testimony of
former co~worker Roland Sterbetzel.
Sterbetzel testified that in September
1980, he overheard a conversation between Superintendent Hynick and an
employee named Roll.
From what he was able to overhear, he concluded that
Hynick wanted to have Roll engage McClain in a fight in order to "get rid
of him because of his union activities." According to Sterbetzel, Roll disliked McClain and had apparently complained about him in the past in efforts
to get McClain fired.
Roll did not appear at the hearing.
Hynick testified
that what actually happened was that Roll approached him and offered to get
into a fight with McClain so that McClain could be fired.
Hynick testified
that he paid no attention to Roll' s offer and walked away without responding.
There is no evidence that Roll ever did engage McClain in a fight and no
evidence that McClain's "union activities" related to any activity protected
by the Act.
I find in any event that Hynick's version of the conversation
to be the more credible and reliable.
On the one hand, Sterbetzel had merely
"overheard" the conversation or part thereof and accordingly it is not
unlikely that he obtained an inaccurate understanding of it.
On the other
hand, the reliability of Hynick' s testimony is assured by the fact that he
was a direct participant i.n the conversation. The failure of the Complainant to support his v~rsion of the conversation by calling the other direct
participant as his witness must also be considered.

2605

Even if it could be argued that Westmont was motivated in part by
Complainant's protected activities, there is ample evidence from which it
may be concluded that it would have disciplined him in any event for his
unprotected activities alone. Fasula, supra. Westmont asserts herein that
its action was solely the result of McClain's willful misconduct in violating
Pennsylvania law and company policy in shooting a deer out-of-season on neighboring property and while using a company vehicle to aid in the accomplishment
of this act during the period of his regular working shift. As a result of
such misconduct, McClain subjected Westmont to potential civil and criminal
liability and created a potentially damaging source of ill will with adjacent
property owners and State officials. Moreover, if Westmont permitted such
employee misconduct without appropriate sanctions, it could seriously erode
its ability to meet legitimate management responsibilities.
At the time of the incident, McClain had been employed by Westmont at
its coal strip mining operation for almost 3 years. He had been working as
a bulldozer operator but on January 6, 1981, he was working the 5 a.m. to
12 noon shift as an oiler for the dragline. Shortly before 9 that morning,
he drove a company truck to the fuel depot about one-half mile from the dragline. At the depot, he unloaded several barrels, picked up some rags and
parts as well as his lunch bucket and a loaded rifle from his car. He claims
that he intended to show the rifle to another employee who was interested in
purchasing a gun. While returning to the drag line, he spotted a deer crossing
the road. He claims that he was on the haulage road about 20 yards from the
public township road when he actually shot the deer. He dragged the deer
to the truck and transported it to the dragline where he removed it, gutted
it and returned to work. He claims that only 20 to 25 minutes had elapsed
from the time he shot the deer until he completed gutting it. He further
alleges that he did not eat his lunch during that shift and considered that
period as his lunch tline.
After his shift, at around 12:25 p.m., a Pennsylvania State game warden
questioned him. McClain admitted shooting the deer and turned the still
loaded gun over to the warden. He had hidden it on the dragline during the
remainder of his shift, McClain subsequently paid $200 in fines for violations of State game laws and lost his hunting license for 3 years.
Only one deer was shot that day in the vicinity of the haulage/township
road and the credible evidence presented at the hearing shows that that deer
had been shot on the private property of Joan Waldron, who lived adjacent
to the Westmont Mine. Another neighbor, Allen Wiltrout, described the spot
where the deer had been shot, dragged out, and loaded onto a truck. Since
the deer had apparently been shot out-of-season he had his daughter call the
game warden. Wiltrout later accompanied two of the wardens as they pursued
their investigation. They discovered the company pickup truck at the dragline and found blood and hair from the deer still in the truck. According
to Wiltrout, the Westmont property line was clearly marked in that area by
a fence line that separated the township road from the company haulage road.
On January 7, 1981, the day after the deer was shot, John Aloe, Westmont's
president, received a phone call from Joan Waldron. According to Aloe, she

260f;

was frantic, speaking in a high-pitch crackling voice. She was obviously
upset. Ms. Waldron reported that a Westmont employee had been poaching on
her property and wanted to have that employee transferred. Aloe thereupon
began an investigation to find the responsible employee. After much effort,
Superintendent Hynick finally succeeded in obtaining McClain's name from state
officials. As a result, on February 19, 1981, McClain was issued a notice of
disciplinary action.
Within this framework of evidence, I conclude that Westmont was indeed
justified in taking disciplinary action against McClain and that it acted on
the basis of his unprotected activities alone. McClain himself has conceded
that he showed bad judgment. While he also produced evidence that previous
mine management had permitted the carrying of guns onto Westmont property for
the purpose of deer hunting on the property during hunting season, he produced
no evidence to suggest that Westmont had ever permitted the use of company
vehicles to further any deer hunting, the secreting of loaded weapons on
company equipment, shooting deer during the employee's shift, hunting on
neighboring property, or hunting out of season.
Under all the circumstances, I find that McClain has failed to sustain
his burden of proof under section 105(c)(l) of the Act. Fasula, supra. The
complaint herein is therefore DENIED and the case ISMISSE--

Distribution:
James T. Davis, Esq., Davis & Davis, 99 East Main Street, Uniontown,
PA 15401 (Certified Mail)
Robert A. Kelly, Esq., Cauley, Birsic & Conflenti, 1212 Manor Building,
564 Forbes Avenue, Pittsburgh, PA 15219 (Certified Mail)

260'7

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

ttO\f i '3 \~\

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
0

Docket No. YORK 81-23-M
A/O No. 17-00493-05001 EJ6

Petitioner
v.

Beckler Pit & Mill
RICHARD A. DOUGLASS & SONS,
Respondent
DECISION
Appearances:

David L. Baskin, Esq., Office of the Solicitor, U.S. Department
of Labor, Boston, Massachusetts, for the Petitioner;
David W. Austin, Esq., Rumford, Maine, for the Respondent.

Before:

Judge Cook

I.

Procedural Background

On January 16, 1981, the Mine Safety and Health Administration
(Petitioner) filed a proposal for assessment of civil penalties in the abovecaptioned proceeding pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979) (1977 Mine
Act). The proposal alleges 11 violationS-o"f"Provisions of the Code of Federal
Regulations. On February 4, 1981, an answer was filed by Richard A. Douglass
& Sons (Respondent). A hearing was held on September 24, 1981, in Augusta,
Maine, with representatives of both parties present and participating.
II.

Proposed Settlement

During the course of the hearing, both parties proposed a settlement.
The amount of the original proposed assessment is identified as follows:
Citation No.

Date

30 C.F.R.
Standard

Assessment

00200203
00200204
00200205
00200206

07/01/80
07/01/80
07/01/80
07/01/80

56.14-1
56.14-1
56.14-3
56.14-1

$ 52
52
44
44

2608

00200207
00200208
00200209
00200210
00200211
00200212
00200213

07/01/80
07/01/80
07/01/80
07/01/80
07/01/80
07/01/80
07/01/80

56.14-1
56.9-7
56.9-7
56.14-1
56.14-1
56.14-1
56.14-1
Total proposed assessment:

52
34
34
52
34
34
34
$466

The proposed settlement is identified as follows:
Vacate Order Nos. 00200204 - $52
00200207
52
00200210
52
Amount proposed to be paid in settlement

$300.

In support of the proposed settlement, the parties stated as follows at
the hearing:
JUDGE COOK: What is the status now? There have been
many stages, apparently, that this settlement discussion has
been going through, but what is your present status?
MR. BASKIN: Well, counsel for the Respondent contacted
me--I believe it was the day before yesterday--your Honor,
and said that his client was willing to settle the case for
a lower amount of money, and we reached an agreement between
ourselves of $300, and the original penalty assessment is
$466. We would like to submit our $300 settlement for the
Court's consideration. It is certainly the Secretary's
belief that settlement at this lower amount is consistent
with the purposes of the Act and there is every reason why
it ought to be approved. I can get more specific, if the
Court desires, your Honor.
JUDGE COOK: Well, now, could you specify particularly
as to each of these charges what particular amount you had
agreed upon.
MR. BASKIN: We haven't agreed on specific amounts,
your Honor. What I would like to do, your Honor, is point
out something to you, if I could. I think this is one of
the justifications for settlement, although Mr. Douglass-the fact that Mr. Douglass is a small operator and doesn't
have a great deal of cash flow is also a definite factor in
this case.

2609

I would like to point out to the Court that we have
Citations in this case whose numbers are all 2000, 002,
0020, and then they go three, four, five, six, seven, eight,
nine, ten, eleven, twelve, and thirteen, so I am going to
just refer to the last two digit numbers for convenience,
your Honor.
JUDGE COOK:

Yes.

MR. BASKIN: We have Citations No. 4 and 11, your Honor,
that both pertain to an area on the one and a half inch film
conveyor. Now, 4 and 11, 4 pertains to the unguarded tail
pulley, and 11 pertains to unguarded return idlers, and in
the way the small crushing unit works, these areas are very
close together, from 2 to 4 feet. It is what you would say,
it is in the same place. There was lack of guarding in the
same place, but two unguarded pinchpoints.
The point is that we have an area that is pretty much
the same. The same thing is true with Citations 7 and 12,
your Honor; they have one unguarded tail pulley on a conveyor
under a screen, a crushing screen, and you have the same
unguarded idlers in that area. Again, it is very close
together.
With Citations 10 and 13, your Honor, you have an
unguarded tail pulley on a return conveyor. You have an
unguarded return idler on the same return conveyor.
I would like to make the Court aware of an MSHA memorandum that was dated October 3, 1979, and it is from Thomas
Shepard [sic], who [was) then the Administrator for metal and
nonmetal mine safety and health; the subject was Citations
and orders citing multiple violations.
The third paragraph of that he says that where there is
multiple violations, the same standard we are talking about,
here 29 CFR [56.14-1), standards which were observed in violation involving the same piece of equipment or the same area
of the mine should, and I emphasize the should and it is a
discretionary thing, but we are willing to put it into effect
in this case, should be treated as one violation and one citation should be issued.
What I am saying here is that we got six citations that
could easily be treated as three citations. We would be very
happy to amend the Complaint that way.
Now, I want to point out to the Court, for instance,
that for Citation 4, we have a $52 assessment. Citation 11

2610

we have $34. For Citation 7, we have $52. assessment, and
for Citation 12, $34. For Citation 10, $52. For Citation 2,
$52. For Citation 13, $34. In each case we would combine
the Cit at ions, we would modify :i.t, and wipe out the $52
citation. So we wipe out the 3 $52 citations with a reduc~
tion in the penalty of $156 do"t-m to $310. Then quite
frankly, to round it off, take into consideration
Mr. Douglass not to great financial strength, we simply want
to cut down the other $10 to the $300, which his counsel has
agreed to pay. We think that the reasons for modifying the
citations are, one, that we have the discretion to do it;
secondly, the man is just not super wealthy, like Peabody
Coal Co. So, I would appreciate it if the Court would consider the agreement in that context. I would like to state
that we have agreed, counsel and I have agreed, that he pay
in installments. There is a $300 penalty to be paid in $100
every month for three months. This company shouldn't have to
pay $300 in one month. I don't know, but it would put a dent
in his personal finances. There is no reason to make it all
at once.
JUDGE COOK:

Now, Mr. Austin, what is your position on

this?
MR. AUSTIN: Thank you. My position is the same as my
colleagues. It is something that we have agreed to after
discussing it, and we were in hopes of reaching an agreement
and presentation to the Court, and I would concur with what
he recommends.
JUDGE COOK: Very well. Now, before we conclude it
then, Mr. Baskin, how did you want to handle the matter
that you suggested of making some motion concerning three
of the charges? How did you want to handle that?
MR. BASKIN: Well, to put it in perspective, I would
move, your Honor, that Citation No. 4 be vacated and that
Citation No. 11 be modified to refer to lack of guarding
not only at the return idler, but at the tail pulley on the
one and a half in conveyor belt. With respect to Citation
Nos. 7 and 12, I would move for vacating on Citation No. 7
and modification of Citation No. 12 to state there was lack
of guarding not only at the return idler but also at the
tail pulley on the conveyor belt under the washing screen.
With respect to Citations No. 10 and 13, we would move that
Citation No. 10 be vacated and that Citation No. 13 be
modified to ref er to lack of guarding not only at the
return idler but at the tail pulley on the return conveyor.

2611

In each case, the penalties attached to the vacated
citation would be wiped out, cancelled, if you will, and
the $34 penalty for the remaining citations be retained.
JUDGE COOK: Very well, now, what is you position as to
that motion, Mr. Austin?
MR. AUSTIN:

I would also concur in that, your Honor.

JUDGE COOK:

Very well.

MR. BASKIN:

Thank you, your Honor, I appreciate that.

Then I will grant that motion.

JUDGE COOK: And I will approve the settlement then at
the $300 figure as agreed to by both parties.
MR. BASKIN: Do you want anything in writing, your Honor,
or just on the record?
JUDGE COOK: This is adequate. If you did want to do
anything else in writing, that is your privilege but is is on
the record here, and the transcript, of course, will be the
basis upon which I will later issue a decision approving the
settlement, and, of course, the motion to vacate those
citations.
MR. BASKIN: Thank you. Will your order include,
please, and order the Respondent to pay the penalty in $100
installments over three months for a total of $300. Send it
to the Mine Safety & Health Administration, Attn. [Madison
McCulloch] Director of the Office of Assessments, MSHA,
4015 [Wilson) Blvd., Arlington, VA [22203.) That should be
paid on November, December and January first, if your Honor,
please.
JUDGE COOK:
in mine.

Very well.

I will also include that order

(Tr. 3-8).
The reasons given above by counsel for the Petitioner for the proposed
settlement have been reviewed in conjunction with the information submitted
as to the statutory criteria contained in section 110 of the Act. After
according this information due consideration, it has been found to support
the proposed settlement. It therefore appears that a disposition approving
the settlement will adequately protect the public interest.
ORDER
Accordingly, IT IS ORDERED that the proposed settlement, as outlined
above, be, and hereby is, APPROVED.

2612

IT IS FURTHER ORDERED that Respondent, within 30 days of the date of
this decision, pay one-third of the agreed-upon penalty of $300 assessed in
this proceeding, and that it thereafter pay one-third of such penalty within
60 days of the date of this decision and the remaining one-third of such
penalty within 90 days of the date of this decision. Such payment is to be
forwarded to Madison McCulloch, Director of the Office of Assessments, Mine
Safety and Health Administration, 4015 Wilson Boulevard, Arlington, Virginia
22203.

/

.,John F.

~~Administrative Law Judge
Distribution:
David L. Baskin, Esq., Office of the Solicitor, U.S. Department of Labor,
John F. Kennedy Federal Building, Boston, MA 02203 (Certified Mail)
David W. Austin, Esq., 104 Congress Street, Rumford, ME 04276 (Certified
Mail)
Administrator for Metal and Nonmetal Mine Safety and Health,
U.S. Department of Labor
Administrator for Coal Mine Safety and Health, UoS. Department of Labor,
Standard Distribution

2613

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

MATHIES COAL COMPANY,

Contest of Citation
Contestant
Docket No. PENN 81-213-R
Citation No. 1050312; 7/10/81

v.

SECRETARY OF LABOR,
Respondent

Mathies Mine

DECISION
Appearances:

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

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This proceeding was commenced by Mathies Coal Company (hereinafter
Mathies) on July 21, 1981, by the filing of a notice of contest of Citation
No. 1050312 issued by the Secretary of Labor, Mine Safety and Health
Administration (hereinafter MSHA) pursuant to section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815 (hereinafter "the Act").
Also on July 21, 1981, Mathies filed an application for temporary relief
from the above citation and a motion for expedited hearing on the notice of
contest. On August 4, 1981, I issued an order granting the motion for
expedited hearing and denying the application for temporary relief.
A hearing was held on the above matter in Pittsburgh, Pennsylvania on
August 27, 1981. Francis E. Wehr, Sr., and Joseph Garcia testified on behalf
of MSHA. William Porter and George Kostelnik testified on behalf of Mathies.
At the hearing, Mathies renewed its motion for interim relief requesting that
the Secretary of Labor be prevented from enforcing the escapeway regulations
pending the outcome of this decision. Noting that to prevent enforcement of
the safety regulation would possibly affect the health and safety of the
miners, I found that Mathies had not satisfied its burden under Rule 46,
29 C.F.R. § 2700.46. I further found that Mathies was using this application
as a means to avoid the process of seeking and obtaining a bypass variance.
I, therefore, denied Mathies' application for temporary relief.

2614

ISSUE
Whether Mathies violated 30 C.F.R. § 75.1704-2(a).
APPLICABLE LAW
30 C.F.R. § 75.1704-2(a) provides as follows:
In mines and working sections opened on and after
January 1, 1974, all travelable passageways designated as
escapeways in accordance with § 75.1704 shall be located to
follow, as <letermined by an authorized representative of the
Secretary, the safest direct practical route to the nearest
mine opening suitable for the safe evacuation of miners.
Escapeways from working sections may be located through
existing entries, rooms, or crosscuts.
STIPULATIONS
The parties stipulated as follows:
1.

Mathies Coal Company is the owner and operator of the subject mine.

2.

The operator and the mine are subject to the 1977 Act.

3. The Administrative Law Judge has jurisdiction over the parties and
the subject matter of this controversy.
4. The inspector who issued this citation was a duly authorized
representative of the Secretary of Labor.
5. A copy of the citation is authentic and was properly served upon
the operator.
FINDINGS OF FACT
I find that the preponderance of the evidence of record establishes the
following facts:
1. On July 10, 1981, MSHA inspector Francis E. Wehr issued Citation
No. 1050312 for a violation of 30 C.F.R. § 75.1704-2(a) in that the Linden
intake escapeway was bypassed while the I.inden Portal elevator was inoperable
due to electrical problems. The citation alleged that instead of withdrawing
its miners from the affected area, the operator redesignated the intake
escapeway to the Kerr intake shaft which was not the nearest mine opening
suitable for the safe evacuation of miners.
2. Linden Portal was opened in September 1980, after the effective date
of section 75.1704-2(a)·.

261[)

3. Prior to the development of the Linden Portal, the approved escapeway plan for the working sections 21 Face, 25 Face, West Mains and 1 South
off West Mains, provided that the intake escapeway go to Thomas Portal while
the return escapeway be routed to Kerr Fan.
4. After Linden Portal went into operation, the approved escapeway
plan provided that the intake escapeway go to Linden Portal and the return
escapeway go to Kerr Fan.
5. The safest direct practical route from the above working sections
is to Linden Portal which is the nearest mine opening suitable for the safe
evacuation of miners.
6. On July 9, 1981, the Linden Portal was shut down due to electrical
problems with its elevator.
7. On July 9, 1981, while the Linden Portal was closed, the miners
were not withdrawn from the affected area. The workers were directed to
alternative escapeways which were not approved as being the nearest mine
opening suitable for the safe evacuation of miners.
8. Mathies did not receive permission from the MSHA District Manager
to bypass the Linden Portal when it became inoperable.
DISCUSSION
Mathies' primary contention in challenging the validity of this citation
centers upon its assertion that section 75.1704-2(a) does not apply to Linden
Portal. Linden Portal, one of seven escapeways at Mathies Mine, was opened
in September, 1980. The safety and health standard at issue was promulgated
October 31, 1973. See 38 Fed. Reg. 30000. Mathies determined that the safety
standard does not apply to Linden Portal because of the policy statements
contained in the MSHA underground manual. The manual states in pertinent
part:
The term "mine opening suitable for the safe evacuation
of miners" as used here indicated that some mine openings
developed prior to the effective date of this regulation may
or may not be suitable for safe evacuation of miners. For
example, an old mine shaft may not be safe for travel because
of badly deteriorated shaft lining, timbers, etc., even
though it is still suitable for mine ventilation purposes, or
a mine shaft developed and equipped with a ventilating fan
prior to the effective date of this regulation may or may not
be suitable for the safe evacuation of miners, if necessary
alterations would adversely affect the mine ventilation in
the event of an emergency. Ex. G-2.

2616

Since the manual shows a concern for "some mine openings developed prior to
the effective date of this regulation,'' Mathies concludes that Linden Portal,
which was developed after the effective date of the regulation, is not
subject to the provisions of the regulation.
The plain language of section 75.1704-2(a) refutes this interpretation
of the regulation. The regulation directs that the authorized representative
of the Secretary determine the safest, most direct, and most practical route
to the nearest mine opening suitable for the safe evacuation of miners. As
Linden Portal is the newest and closest escapeway to the working sections in
issue, it had been properly designated as the intake escapeway. The fact
that the policy manual explains the use of the words "mine openings suitable
for the safe evacuation of miners" as resulting from the fact that some old
mine openings were not safe for travel because of deteriorated shaft linings
and inadequate ventilation, is not a reason to exclude new and safe escapeways from the coverage of the regulation. The regulation is concerned with
providing safe escapeways and the obvious intent is to insure that the safest
and most direct routes are taken.
Furthermore, it is well established that the MSHA Inspection Manual is
not binding on our interpretation of the Act or its regulations. In
Secretary of Labor v. King Knob Coal Company, 3 FMSHRC 1417, 1420 (1981),
the Commission discussed the legal status of the Manual and stated "that the
Manual's 'instructions are not officially promulgated and do not prescribe
rules of law binding upon [this Commission].' Old Ren Coal Company, 2 FMSHRC
2806, 2809 (1980)." The Commission noted that "cases may arise where the
Manual or a similar MSHA document reflects a genuine interpretation or
general statement of policy whose soundness commends deference and therefore
results in our according it legal effect." Ibid. However, the case at hand
does not require reference to the policy statements of the MSHA Manual. It
has already been determined that the stated policy does not exclude Linden
Portal from the regulation's coverage and, therefore, the express language
of the regulation is not in conflict with either the Manual or its policy.
Accordingly, section 75.1704-2(a) is applicable to the Linden Portal.
The evidence indicates that the elevator at Linden Portal became
inoperable on July 9, 1981, and that management redesignated the escapeway
routes rather than withdraw the miners from the affected working sections.
While the testimony conflicts as to whether both the intake and return
escapeways were to Kerr shaft or whether the intake escapeway was redesignat ed to Thomas while the return escapeway remained at Kerr, this is not
relevant to a finding of a violation of section 75.1704-2(a). No allegation
of a violation of 75.1704 has been made; and therefore, whether the redesignated escapeway plan involved either two mine openings or only one need not
be resolved.
Mathies argues that once Linden Portal became unuseable due to the
elevator malfunction, it was unsuitable for the safe evacuation of miners.
Therefore, by not using Linden Portal, Mathies contends that it complied with
section 75.1704-2(a) by redesignating the escapeways to those mine openings

2617

which did provide for a safe evacuation of miners. Mathies' position would
allow the operator to bypass its approved escapeway plan whenever it became
impossible to comply. This interpretation of the regulation calls for one to
ignore the words "as determined by an authorized representative of the
Secretary." The regulation requires that escapeways be approved and does not
provide an exception granting the operator discretionary authority to modify
that plan whenever it becomes inconvenient to follow it.
Mathies contends that the suitability of an escapeway plan requires
£lexibility allowing it to be determined based upon the existing facts at the
time the escapeway designation or redesignation is made. It argues that a
"suitable" mine opening is bypassed as part of every operator's escapeway
plan because MSHA requires there to be both an intake and return air escapeway. Therefore, even though the intake escapeway is closer, it is not
suitable for the return escapeway. This argument relies on a distorted construction of the regulation and the word "suitability." Section 75.1704-2(a)
is, after all, a subpart of secfion 75.1704. "Suitability," therefore, takes
into consideration the fact that section 75.1704 requires two escapeways and
incorporates that requirement into the standard which the authorized representative of the Secretary must apply. The word "suitability" implies no
right to bypass the approved escapeway without authorization.
The fundamental question becomes whether Mathies received permission
to bypass the Linden Portal on July 9, 1981. The evidence supports a finding
that MSHA policy required that any bypass be granted in writing by the
District Manager (Ex. G-3). At no time, has Mathies contended that it
received a written bypass from the District Manager. On these facts alone,
MSHA could sustain a violation of 75.1704-2(a).
Mathies maintains that it received permission to bypass the Linden
Portal from Coal Mine Inspection Supervisor Earl Rudolph and Coal Mine
Electrical Inspector Stanley Karpetta. This is premised upon the apparent
authority of Mr. Rudolph and Mr. Karpetta to bind MSHA on this matter.
Testimony and evidence refutes this claim of any reliance upon the above
inspectors' authority to grant a bypass.
William Porter's letter of February 11, 1981, to Supervisor Rudolph,
asking him to confirm their conversation about escape procedures does not
indicate that any alternative escape plan was approved. (Ex. 0-1). The last
sentence states, "I would like to ask for your opinion of this procedure and
if there are any differences, additions or deletions please advise." This is
a request for comment and shows that there had been no resolution of the
escapeway redesignation plan. Indeed, Mr. Porter admitted that he received
no written response to this letter (Tr. p. 115). Mr. Porter's testimony
indicates that Mathies knew it had no authority to bypass Linden Portal.
Mr. Porter stated:
On March 11th, Al Shade, whose name has been mentioned
previously in the hearing here, was -- who is a coal mine
Inspector, he wasn't on temporary assignment at that time,

2618

he was a coal mine Inspector; and he came to the Linden Portal
and, yes, in a conversation prior to the commencement of his
inspection that day, he informed us that if we had an elevator
which was dovm, that
Citation would- be. i:vritten and a time
would be given us to withdraw the-people, or in h:i.s wo~ds, other things would happen, and that was all that was said.

a

And, of course, that obv:i.ously telegraphed to m~~!~
what I proposed was unacceptable somewhere along the line,
and I involved Mr. Par:i.s:i. and other gentlemen again in the
problem as to what to do when the elevat:i.on [sic] at Linden
was down. (Tr. p. 115). [Emphas:i.s added.] - The only conclusion that can be made from these statements is that Math:i.es
knew that it had received ne:i.ther written nor oral permission to bypass
Linden Portal in the event the elevator broke down. It is not contested that
Mathies did in fact bypass Linden Portal on July 9, 1981. Accordingly, its
failure to exhaust its administrative remedy in obtaining a written bypass
from the District Manager justifies a finding that the citation was properly
issued.
CONCLUSIONS OF LAW
1. The Administrative Law Judge has jurisdiction over the parties and
subject matter of this proceeding.
2.

Mathies and its Mathies Mine are subject to the Act.

3. Citation No. 1050312 issued on July 10, 1981, charging a violation
of mandatory safety standard 30 C.F.R. ~ 75.1701+"-2(a) is affirmed.
ORDER
WHEREFORE IT IS ORDERED that Mathies contest of Citation No. 1050312 is
DENIED and Citation No. 1050312 is approved.

Distribution Certified Mail:
Jerry F. Palmer, Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241
James Kilcoyne, Esq., Office of the Solicitor, U.S. Department of Labor,
3535 Market Street, Room 14480 Gateway Building, Philadelphia, PA 19104

2619

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

IOV 17

)

)
)

FRANK ORNELAS,

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE

)

Complainant,

)
v.

)

PHELPS DODGE CORPORATION,

)

)
)

DOCKET NO. CENT 80-249-DM
MSHA CASE NO. MD 80-14
MINE: Tyrone Mine & Mill

)
)

Respondent.
~~~~~~~~~~~~~~~~~~~~

DECISION
Appearances:
Mr. Frank Ornelas
P.O. Box 7958
Bayard, New Mexico

88073
Pro Se

Stephen W. Pogson, Esq.
James Speer, Esq.
Evans, Kitchel & Jenckes, P.C.
363 North First Avenue
Phoenix, Arizona 85003
For the Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE CASE
On March 10, 1980, the Complainant filed a complaint of discrimination, pro se, pursuant to section lOS(c) of the Federal Mine Safety and
Health Act of 1977 (hereinafter "the Act") . 1 / Complainant alleged that
his employment with Respondent was terminated following an investigation of
an accident involving two trucks of the Respondent, one of which Complainant was driving. The accident occurred September 6, 1979. Complainant alleges that Respondent had been previously warned by its truck drivers
that the procedure under which haul trucks dump ore into the ore crusher

1/

Section 105(c) reads in pertinent part as follows:

"No person shall discharge ... any miner ... because such miner ... has
made a complaint under or relating to this Act, including a complaint
notifying the operator ... of an alleged danger or safety or health
violation in a ... mine . . . . "

2620

was dangerous. The haul truck acci,1ent occurred while Complainant was
attempting to back his truck into one of the two crusher dump pockets, in
order to dump the ore.
Respondent's answer denies that Complainant was discharged because he
engaged in any protected activity and affirmatively alleges that
Complainant was discharged because of an unsafe driving record and careless operation of the truck on September 6, 1979, resulting in damage to
the truck and danger to other persons.

FINDINGS OF FACT
1. Prior to his discharge on September 8, 1979, Complain,qnt had been
a truck driver for Respondent for approximately nine and one-half years.

2.
to drive
open pit
port the

Complainant's duties as a truck driver on September 6, 1979, were
Respondent's 170-ton haul truck to a power shovel in Respondent's
copper mine and, after the truck was loaded with ore, to transore to the primary crusher where it is dumped.

3. Two bays or entrances are provided in the building where ore from
the truck is dumped into the primary crusher. These two bays are 25 .4 feet
in width and the width of the 170-ton truck is 22.3 feet. TI1e two bays are
separated by a pillar at the entrance.
4. The truck drivers are instructed that when they drive to the
primary crusher to unload ore they should turn the truck directly in front
of the bay they intend to use and then back the truck straight into the
bay. The bed of the truck is then elevated and the ore slides into the
"dump pocket."
5. On September 6, 1979, after Complainant's truck was loaded with
ore, he drove it to the primary crusher. From the outside of the building
and looking straight into two bays, the one on the left, or south bay, had
a truck in it unloading its load of ore. Complainant began backing up his
truck in order to enter the right, or north, bay.
6. Complainant's truck was not directly aligned with the north bay,
but was partially in line with the south bay. While the bed of
Complainant's truck was backing toward the truck in the south bay, the
driver of that truck quickly existed the right side of the driver's cab
before the bed of Complainant's truck struck the left front of the truck in
the south bay.
7. Complainant then drove his truck forward and backed up again. On
this occasion, the bed of Complainant's truck again struck the truck in the
south bay and damaged the hand rail on the left hand side of that truck.
Complainant's truck continued backing into the north bay until it was into
position to dump ore.

2621

8. Complainant did not know that his truck had struck the truck in
the south bay until after Complainant's truck was in final position to dump
the ore. The driver of the damaged truck shouted at Complainant, informing
him of the accident.

9. The damage to the truck in the south bay was approximately $17,000
and installation costs for a new cab were from $3,000 to $4,000.
10. On March 13, 1979, approximately 5 months before the accident, a
written safety suggestion by a truck driver for the Respondent was
submitted to the supervisor. The suggestion was that the haul truck in the
south bay should finish dumping its load of ore and drive out before the
next truck enters the north bay, so that the truck in the south bay will
not be "run over" by a truck backing into the north bay. This suggestion
was supported by other truck drivers, but was rejected by management on May
9, 1979.
11. Immediately following the accident on September 6, 1979, the shift
foreman gave Complainant a written notice of possible disciplinary action
or suspension.
12. On September 8, 1979, Complainant was given a written "not ice of
discharge." The stated reason for the discharge was for careless operation
of the truck Complainant was driving, resulting in extensive damage to the
other truck, and for endangering the driver of the other truck.
ISSUE
The threshold questions to be answered are (1) whether or not
Complainant engaged in any protected activity and, if so, (2) whether his
discharge was motivated in any part by that protected activity. If these
questions cannot be answered favorably for the Complainant, then Respondent
did not violate section lOS(c) of the Act when it fired him.
DISCUSSION
The test to be used in deciding this case is set forth in Secretary of
Labor on behalf of David Pasula v. Consolidation Coal Company 2 FMSHRC 2786
(October 14, 1980). The guidelines are as follows:
"We hold that the complainant has established a prima facie
case of a violation of section lOS(c)(l) if a preponderance
of the evidence proves (1) that he engaged in a protected activity,
and (2) that the adverse action was motivated in any part
by the protected activity.

2622

Employee activity which is prot,~cted by the Act 1s set forth
section 10.5(c)(l), and includes:

in

",,. a comp la int notifying the operator or the operator 9 s
agent .•. of an alleged danger or safety or health violation
in a coal or. other. mine, ... or. because of the exercise by
such miner ... on behalf of himself or others of any statutory
right afforded by this Act.''
Complainant testified that he had made complaints at safety meetings
at some time prior to the date of the accident in regard to the manner in
which the trucks dumped ore at the primary crusher. His testimony was that
he had told his foreman that it was dange~ous dumping "two t\ucks at a
time.'' Another driver had made a written safety suggestion to Respondent
on March 13, 1979, suggesting that the truck in the south bay finish
dumping its load of ore before another truck pulled into the north bay.
This suggestion had been rejected by Respondent on May 9, 1979,
approximately four months before the accident occurred. Had the suggestion
been followed there would have been no truck unloading or in the south bay
when Complainant attempted to back his truck into the north bay. Thus, the
accident could have been prevented had the suggestion been followed.
When Complainant made his complaint, notifying his foreman at the
safety meetings of the alleged danger in the ore dumping procedure at the
primary crusher, he was engaged in protected activity. However, there is
no evidence that the termination of Complainant's employment was motivated
in any part by that protected activity.
Respondent presented evidence that, in addition to the accident of
September 6, 1979, Complainant had an accident on January 31, 1979, while
operating a truck. He had failed to look into his rear view mirror and had
backed into another truck near the primary crusher. On another occasion,
while operating a truck loaded wi_th ore, Complainant accidently backed the
truck through a berm. The berm was in place in order to protect personnel
and equipment from falling approximately 100 to 1.50 feet do~1ward into a
dump or canyon, After backing through the berm the truck came to rest with
the rear wheels hanging over the edge of the dump and the front whee ls up
off the ground. The bottom of the truck was resting on its fuel tanks.
Respondent argued that Complainant's employment was terminated for these
reasons.
Complainant stated at the hearing that he felt he had been
discriminated against in that he was fired for a truck accident even though
other drivers had the same type of accidents and they were not fired.
Assuming Complainant's contention is true, there was, however, no evidence
produced at the hearing to show that Complainant's termination of
employment by the Respondent was motivated in any part by Complainant's
protected activity of making a safety complaint or suggestion in regard to
the manner and order in which trucks dump their ore at the primary crusher.
I conclude that Complainant's employment was terminated because Respondent
had some doubts about Complainant's ability to safely operate a haul truck
and that Complainant was not fired because he had made safety complaints or
had engaged in protected activity.

Thus, Complainant has failed in his hurden proof to show that his
termination of employment was motivated in any part by his having engaged
in protected activity.
CONCLUSION OF LAW
1. The undersigned Judge has jurisdiction over the persons and
subject matter of these proceedings.

2. Complainant has failed to prove by a preponderance of the evidence
that Respondent violated section lOS(c) of the Act when it discharged
Complainant on September 8, 1979.
ORDER

The complaint is dismissed.

Distribution:
Frank Ornelas
P.O. Box 7958
Bayard, New Mexico

88073

Stephen W. Pogson, Esq.
James Speer, Esq.
Evans, Kitchel & Jenckes, P.C.
363 North First Avenue
Phoenix, Arizona 85003

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

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

22041

Civil Penalty Proceeding
Docket No. LAKE 81-68
A/O No. 11-00609-03024
Captain Strip Mine

SOUTHWESTERN ILLINOIS COAL CORP.,
Respondent
DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Brent L. Motchan, Esq., Southwestern Illinois Coal Corp.,
St. Louis, Missouri, for Respondent.

Before:

Judge Charles C. Moore, Jr.

This civil penalty suit against Respondent alleges that it committed
two violations of the safety standards promulgated pursuant to the
Federal Mine Safety and Health Act of 1977.
Citation No. 1005247 was issued on September 16, 1980, and alleges
that Respondent violated 30 C.F.R. § 77.1607 in that a stop cord was not
operating properly along a portion of the unguarded conveyor belt. The
evidence establishes that the emergency stop cord was inoperable. The
issue is whether the conveyor belt was unguarded since only unguarded
conveyor belts are required to have emergency stop cords. It was the
inspector's opinion that the conveyor was unguarded because there were
exposed pinch points along the conveyor belt.
I do not agree with the inspector's opinion that an emergency stop
cord is a substitute for a guard around pinch points. Pinch points must
be guarded whether or not a stop cord is present. 30 C.F.R. § 77.400,
like sections 75.1722(a), 55.14-1, 56.14-1 and 57.14-1, states: "Gears;
sprockets; chains; drive, head, tail, and takeup pulleys; flywheels;
couplings; shafts; sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and which may cause
injury to perso'ns shall be guarded."

262[)

I first had occasion to interpret the above guarding standard in
Dravo Lime Company v. Mining Enforcement and Safety Administration, 2
FMSHRC 771. 1/ In that case an operable stop cord extended the entire
length of the conveyor belt except that the belt was "skirted" or
shielded with plate metal and rubber belting at the point where it
dumped limestone onto another belt. The following statement appears at
pages 772 and 773 of that decision.
For dust control purposes the entire dumping area is shielded
with plate metal with rubber belting attached to the sides of
the shielding. This rubber belting attached to the plate metal
rubs against the belt itself forming a dust shield. MESA
does not contend that all idler rollers should be shielded,
because if a miner caught his hand between the roller and the
belt in an unskirted area, the belt could give way and his
hand could be withdrawn. In the skirted area however,
there is only five-eighths of an inch between the side of
the metal skirt and the belt so that if a miner's hand got
caught between the roller and the belt, the belt could only
raise up five-eighths of an inch before being stopped by
the metal skirt. It is MESA's contention that this
constitutes a "pinch point" which in turn gives rise to
the requirement of guards to prevent any part of a miner's
body from being caught in such a "pinch point." In this
instance, a pinch point is something like a clothes wringer.

*

*

*

*

*

*

*

Drive pulleys, head pulleys, tail pulleys and takeup
pulleys all contain "pinch points" (Tr. 55-56, MESA Exhibit
R-6, pages 2 and 3). That was undoubtedly the reasons why
these particular pulleys were specifically included in the
standard. Idler pulleys however, do not contain "pinch
points" as a rule, because the belt has leeway to move away
from the idler pulley in the absence of a skirted area such
as the one involved in the instant case. It is the "wringer
effect" which can cause a serious injury. It is my opinion,
that the combination of a skirted belt with the catwalk and
ladder next to it causes the idler pulleys to become "similar
exposed moving machine parts which may be contacted by
persons, and which may cause injury >'< >'~ >'<."
The existence of a stop cord beside the belt which will
stop the drive and result in the belt stopping after a movement of approximately 22 feet may diminish the extent of a
potential injury but would not prevent the injury unless
pulled five seconds before contact with the "pinch point."

l/ Dravo was brought under the old Federal Metal and Nonmetal Mine Safety
Act and was decided October 28, 1977. It appears in the March 1980 volume
of FMSHRC decisions as an attachment in Secretary of Labor, Mine Safety
and Health Administration v. American Sand & Gravel Co., 2 FMSHRC 763
(Mar. 31, 1980).

2626

In summary, all pinch points must be guarded, 2/ and the portions
of a belt which do not contain pinch points must either be guarded or be
equipped with an emergency stop cord. A stop cord might help the miner
who fell on the belt but it certainly would not prevent him from getting
caught in a pinch point.
MSHA Exhibit No. 3 is a guide to mechanical equipment guarding. On
page 14, there is a drawing (figure 11) and the following words: "In
this drawing, a railing is installed along the conveyor in lieu of a
stop cord. This may be considered as a guarded conveyor. The railing is
placed away from and slightly above the belt to prevent contact with the
moving belt." The guardrail in figure 11 appears to be parallel to, and
a few inches away from,the edge of the belt. The drawing is not sufficiently clear to determine whether it is also slightly above the belt.
The man in the drawing has his left hand on a handrail and his right
hand on the so-called guardrail. Respondent's Exhibit No. 2 is a photograph of Respondent's conveyor belt showing a miner in a position similar
to the miner in figure 11. The miner in the photograph is pointing his
left hand at a lower handrail installed next to the belt and his right
hand at a metal railing that had been installed above the belt to keep
coal from falling off the belt. Respondent contends that this upper
rail is also a guardrail eliminating the necessity of an emergency stop
cord.
The inspector stated on cross-examination that the guard in Exhibit
No. 2 appeared to be slightly away from and slightly above the belt.
While that description is similar to the language in the guide, the

];j The inspector did not agree as shown by the following at Tr. 51:
JUDGE MOORE: But before you do, I want to make
some -- get something clear with the witness. Now you've
said this before. I want you to think about it now.
Section 77-400(a) • . . is the one that says gears, sprockets,
chains, etc., shall be guarded. Now, is it your testimony
that you're taught that they do not have to be guarded
if there's a stop cord?
THE WITNESS:
JUDGE MOORE:
policy?

That -- that is MSHA policy, sir.
Well, now -- who told you it was MSHA

THE WITNESS: Well, again, that comes from my supervisor and -- and -JUDGE MOORE:

Did they tell you that at Beckley?

THE WITNESS: -- what I've received in training. Yes,
sir. Yes, sir. That conveyors, per se, the length of them,
if they're provided with an emergency stop cord --

262'?

conveyor belts are entirely different. In the photograph, Respondent's
Exhibit No. 2, the railing that is supposed to be a guardrail is away
from the belt only to the extent that it is above the belt. It is not
installed in a position similar enough to the rail in figure 11 to
prevent a miner from coming into contact with the belt or the rollers.
In fact, the railing itself might create a pinch point which would
require separate guarding if the distance between the upper edge of the
roller and the lower edge of the railing is sufficiently small. This
appears to be the case in Respondent's Exhibit No. 2, but there is
insufficient evidence in the record for me to make a finding to that
effect.
The regulation requires in any case, that a belt either be guarded
or equipped with an operable emergency stop cord. Respondent's belt had
neither and a violation is accordingly established. If there were pinch
points of the type discussed in Dravo, supra, the hazard would be high.
Since I cannot find that type of pinch point based on the evidence in
this case, I find a moder~tely low degree of gravity. It is unlikely
that a miner would be seriously injured if his hand went between the
roller and the belt. As to negligence, if Respondent relied solely on
the guardrail depicted in Respondent's Exhibit No. 2 to guard this belt
I would find negligence. In this case, however, Respondent only relied
on the guard as a defense after it was established that the stop cord
had malfunctioned. I find a low degree of negligence and assess a penalty
of $100.
Citation No. 1005253 alleges a violation of 30 C.F.R. § 77.409 in
that a caterpillar dozer was operating "without being equipped with a
warning device which could be sounded by the operator prior to starting
operation." There was a warning horn on the vehicle but it did not
work. There was also, however, a backup alarm which could be sounded
prior to starting and it was operable. The regulations do not require
separate backup alarms and prestarting alarms.
MSHA Exhibit No. 6 is a memorandum dated June 24, 1977, from
District Manager of District 8 to the Subdistrict Manager in St. Clairsville,
Ohio, concerning § 77.409. Nothing in the memorandum prohibits the use
of a backup alarm as a prestarting alarm. Furthermore, in a letter from
the Subdistrict Manager to Respondent dated September 19, 1977, the
Subdistrict Manager specifically states that "activating the backup
alarm on tractors to warn persons that the machine is about to start
operations could be accepted as compliance with Section 77.409(a),
providing the intent as expressed in the District Manager's memorandum
of June 24, 1977, is met."
The Government argues that Respondent is attempting to estop MSHA
from enforcing the regulation by relying on these exhibits. Government
Exhibit 7 does not estop the Government from enforcing a regulation; it
merely shows that the subdistrict manager had an opinion, consistent
with the regulations, that a backup alarm which is sounded continuously
when the machine is backing and a startup alarm which is only sounded

2628

once during a "cycle of events" (See Gov't. Ex. 6) can be the same horn
and have the same sound. MSHA Exhibit 6, in discussing section 77.409(a)
states that alarms should be sounded:
"L
2.

Before the equipment is started.
Before the equipment is operated in reverse."

If the statements in MSHA Exhibits 6 and 7 were contrary to the
regulations and Respondent relied on them, a question of estoppel might
arise. But as these exhibits do not contradict the standard it makes no
difference whether Respondent relied on them. It's the idea that backup
alarms and prestarting alarms must have a different sound that seems to
have come out of thin air.
On this tractor the backup alarm horn was facing toward the rear,
but the evidence established that it can be heard from both the front
and the back of the machine. I find that no violation was approved and
accordingly, vacate the citation.
ORDER
Respondent is therefore ordered to pay to MSHA, within 30 days, a
civil penalty of $100.

e

Charles C. Moore, Jr.
Administrative Law Judge
Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail)
Brent L. Motchan, Esq., Southwestern Illinois Coal Corp., 500 North
Broadway, Suite 1800, St. Louis, MO 63102 (Certified Mail)

262B

FEDERAL MINE SAFETY AND HEAL TH REVIF.W COMMISSION
333 W. COLFAX AVEtlUE. SUITE 400
DENVER, COL0f1ADO 80204

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

ROSALIE EDWARDS,
Complainant,

v.
AARON MINING, INC.,
Respondent.

COMPLAINT OF DISCHARGE,
DISCRIMINATION, OR INTERFERENCE
DOCKET NO. WEST 80-441-DM
MD 80-112

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

Appearances:
Rosalie Edwards, Pro Se
Starr Route
Boewawe, Nevada 89821
Bruce T. Beesley, Esq.
Woodburn, Wedge, Blakey and Jeppson
One East First Street
Reno, Nevada 89505
For the Respondent
Before: Judge John J. Morris
DECISION
STATEMENT OF THE CASE
Complainant Rosalie Edwards brings this action on her own hehalf
alleging she was discriminated against by her employer, Aaron Mining, Inc.,
(Aaron), in violation of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 !:.!:._seq.

§

The statutory prov1s1on, Section lOS(c)(l) of the Act, now codified at
30 U.S.C. 815(c)(l), provides as follows:
§ lOS(c)(l) No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the statutory rights of any
miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or made
a complaint under or related to this Act including a complaint
notifying the operator or the operator's agent, or the representative of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other mine, or

2630

because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to
section 101 or because such miner, representative of
miners or applicant for employment has instituted or caused
to be instituted any proceeding under or related to this
Act or has testified or is about to testify in any such
proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right afforded
by this Act.
After notice to the parties a hearing on the merits was held in Reno,
Nevada, on April 28, 1981. Respondent filed a post trial brief.
ISSUES
The issues are whether respondent discriminated against complainant in
failing to furnish toilet facilities. A further issue is whether complainant voluntarily quit her employment or was discharged.
For the reasons hereafter stated I sustain the claim of discrimination
and enter an award in favor of complainant.
APPLICABLE CASE LAW
The Commission has ruled that to establish a prima facie case for a
violation of § lOS(c)(l) of the Act a complainant must show by a
preponderance of the evidence that (1) he engaged in a protected activity
and (2) that the adverse action was motivated in any part by the protected
activity. The employer may affirmatively° defend, however, by proving by a
preponderance of all the evidence that, although part of his motive was
unlawful, (1) he was also motivated by the miner's unprotected activities,
and (2) that he would have taken adverse action against the miner in any
event for the unprotected activities alone, David Pasula v. Consolidation
Coal Company 2 FMSHRC 2786 (1980). Reversed on other grounds, United
States Court of Appeals, Third Circuit, Docket No. 80-260, (October 1981).
Further, in order to support a valid refusal to work the miner's perception
of the hazard must be reasonable, Robinette v. United Castle Coal Company 3
FMSHRC 803, (1981).
FINDINGS OF FACT
The facts are essentially uncontroverted.
1. Complainant Mrs. Rosalie Edwards was employed by Aaron from
January 21, 1980 to March 15, 1980 (Tr. 7 - 10).
2.
9, 10).

Mrs. Edwards worked at the company mrne assaying gold samples (Tr.

2631

3. There were no toilet facilities in the work area. The closest
outhouse, where the sanitary conditions were "appalling", was 3/4 of a mile
away. It could only be reached over a haul pack road with limited
visibility (Tr . 1 7 , 41 ) .

4. In addition to working as an AA Assayor (atomic absorption with
cyanide) Mrs. Edwards' duties also included writing up daily safety reports to the company. Under "remarks" Mrs. Edwards indicated the need for
a facility. There was no reply from the company except her supervisor said
they would put in a restroom "soon" (Tr. 18, 19).
S. After four weeks on the job Mrs. Edwards began having bladder
problems for which she took off a week (Tr. 19).
6. Mrs. Edwards terminated her job on March 15, 1980. At that time
she was working 48 hours per week and earning $1,500.00 per month (Tr. 33,
34).

7. When she quit Mrs. Edwards told her supervisor she would return
when they had restroom facilities (Tr. 34, 37, 46, SO).
8. Mrs. Edwards could not find any employment until October, 1980
(Tr. 34).
9. On October 23, 1980, Mrs. Edwards learned that Aaron was no longer
affiliated with the property and she was hired by its successor, the
Miller-Kappas Company (Tr. 20).
10. Mrs. Edwards expenses for the hearing include $21.36 for lodging,
$15.00 for meals, and 600 miles (roundtrip) to drive to and return home
from the hearing site (Tr. 35).
DISCUSSION
30 C.F.R. 56.20-8, a mandatory regulation promulgated by the
Secretary, provides as follows:
56.20-8 Mandatory. Toilet facilities shall be provided
at locations that are compatible with the mine operations
and that are readily accessible to mine personnel. The
facilities shall be kept clean and sanitary. Separate
toilet facilities shall be provided for each sex except
where toilet rooms will be occupied by no more than one
person at a time and can be locked from the inside.
The credible facts establish that Aaron failed to comply with the
regulation in several respects. First, the facilities were, even by
Aaron's evidence, a half mile from Mrs, Edwards' laboratory. In addition
the toilet could only be reache<l over a haul pack road which had restricted
visibility. The facility accordingly was not "readily accessible" to Mrs.
Edwards. In addition the toilet was neither clean nor sanitary. Mrs.
Edwards undisputed testimony indicates the sanitary conditions in the outhouse were "appalling."

2632

Mrs. Edwards duties, 1n addition to assaying gold included the filing
of daily written safety reports. On such reports under "remarks" Mrs.
Edwards continually pointed out the need for toilet facilities. When she
quit Mrs. Edwards also indicated she would return when the company h.1d
such facilities. Aaron failed to provide the facilities.
The law is clear that a miner may not be fired for refusing to work
under conditions that she reasonably believes are unsafe or unhealthy.
Phillips v. Interior Board 500 F 2d 772 (D.C. Cir., 1974), Pasula, supra.
In this unusual factual situation Mrs. Edwards alternatives were severely
limited. First, she could complain to the company but she had done that.
Aaron already had received written and oral complaints for about 7 weeks.
Second, she could use the toilet facilities at her home, a 20 mile round
trip. In fact, with Aaron's knowledge she did this on a number of
occasions (Tr. 19, 36). During her employment she developed a bladder
infection. An infection of this nature would support her belief that an
unhealthy condition existed. A ten mile journey is not "ready accessibility." A third alternative would be the use of the outhouse which I find
from the facts was 3/4 of a mile from the laboratory. That was hardly
"readily accessible." A fourth alternative was to quit. She did. The
first three alternatives are unreasonable and in law they are no alterative
at: all. Cf McCoy v. Crescell't: Coal Company PIKE 77-71. In any event even a
pal at: ab l ealternatives would not excuse c-ompl iance with a mandatory
standard.
I, accordingly, conclude that Mrs. Edwards was engaged in a protected
activity in filing daily written safety reports complaining about the lack
of toilet facilities. Further, Mrs. Edwards was constructively discharged
while engaging in that activity. McCoy v. Crescent Coal Company, supra.
Portions of the evidence in this case should be discussed. Mrs.
Edwards testified she applied in October for employment with Miller Kappas
Company, the successor to Aaron (Tr. 20) After being hired by Miller
Kappas Mrs. Edwards was told to drop her discrimination case or be
terminated. These directives came through Pat Daugherty, a Miller Kappas
supervisor. This double heresay directive is attributed to Andrew
Robertson, the President of Aaron. I do not find this evidence relevant
nor credible. The record here fails to disclose any connection between
Robertson and Miller Kappas Company. Further, any issues raised in
connection with her discharge by Miller Kappas Company are the subject of
another discrimination claim made by Mrs. Edwards. Apparently the
Solicitor of Labor had taken no action on that matter at the time of the
instant hearing.
AARON'S CONTENTIONS
Aaron contends that Mrs. Edwards case fails for a number of reasons.
Aaron cites the case law that to sustain a violation a complainant must
show notification, discriminatory action, and motivation of discriminatory
action by the employer. Aaron relies on Munsey v. Morton 507 F. 2d 1202
(D.C. Cir., 1974) and Baker v. U.S. Department of Interior Bd. 595 F. 2d
746 (D.C. Cir., 1978).

2633

Specifically, /\:iron sCJys that 'lrc;. Edw.irrJs voluntarily left her
employment and that Aaron did not discriminate ag:1inst her.
For the reasons previo11sly stated I find that Mrs, Edwards was
constructively discharged by Aaron. Further, she was discriminated ag:iinst
in that Aaron failed to provide toilet facilities, a condition ~1ich Aaron
choose to ignore for seven weeks. The fact that Mrs. Edwards was permitted
and encouraged by Aaron to use the restroom facilities at her home, a 20
mile round trip, does not eliminate the discrimination. In addition,
Aaron's offer of a salary increase to Mrs. Edwards as an inducement to stay
cannot avoid the discrimination,
The cases relied on by Aaron are not inopposite the views expressed
here.
In Munsey, supra. the Court of Appeals for the District of Columbia
construed the 1969 Coal Act. Neither the facts nor the law set forth in
Munsey support Aaron. T11e same result pertains in Baker, supra. where the
Court of Appeals for the District of Columbia construed the notice
provisions of the 1969 Coal Act,
Aaron's post trial brief dttacks the double hearsay evidence from Mrs.
Edwards of statements by Pat Daugherty, a Miller Kappas supervisor,
referring to statements he made ahout directives he received from Andrew
Robertson, President of Aaron. For the reasons previously stated I do
find that evidence credible. Likewise, l disregard the post trial
affidavit filed by Andrew Robertson regarding that matter. The consideration of such an affidavit after the testimony was concluded would be to
deny Mrs. Edwards her right of cross examination.
BACK PAY, COSTS, AND EXPENSES
Section lOS(c)(3) of the Act, now 30 U.S.C. 815(c), authorizes an
award for back pay, interest, as well as all costs and expenses.
Mrs. Edwards seeks to recover her back wages from the date of her
discharge on March 15, 1980 (Letter dated September 11, 1980). At the
time of her dischdrge she was earning $1 ,500.00 per month. She could not
find employment until she was hired by Miller Kappas Company on October 23,
1980. Accordingly, her back pay is for seven months and one week (March
15, 1980 to October 23, lq80) at $1,500.00 per month. Back pay i~
therefore $10,875.00 ($1,500 x 7) + ($375 x 1). Respondent as the employer
is responsible for withholding all statutory deductions, including federal
and state taxes. Further, Aaron is to pay interest on said back pay at the
rate of 12 1/2% per annum. 1 /

1/ Interest rate used hy Tnternnl Rcven11e Service for underpayments and
overpayments of tax, Rev Ruling 79-366. Cf Florida Steel Corporation, 231
N.L.R.B. No. 117, 1977-78, CCH, N.L.R.B. Para 18,484; Bradley v. Belva Coal
Company WEVA 80·"708-D (April 1981).

Mrs. Edwards is further entitled to recover her incidental expenses
for meals, lodging, and mileage. The meals and lodging cost were $36.36.
I calculate her mileage expense at 18 1/2¢ per mile which was the amount
authorized by the United States Government for the use of a privately owned
vehicle on government business. Complainant's mileage expense is therefore
$111.00 (600 x 18 1/2¢).
CIVIL PENALTIES
In this case the Secretary of Labor did not represent complainant.
However, the Act provides that any violation of the discrimination section
shall "be subject to the provisions of section 108 and llO(a).vv [30 U.S.C.
§ 818, 820].
The statute authorizes the imposition of a penalty in an
amount not to exceed $10,000.00. [30 U.S.C. § 820(a)].
Considering the pertinent statutes and in view of the facts as stated
above, I deem a penalty of $1,000.00 to be an appropriate civil penalty in
this case.
Based on the foregoing findings of fact and conclusions of law I enter
the following:

ORDER
1.

Complainant's claim of discrimination is sustained,

2. Respondent is ordered to pay the sum of $10,875.00 less deductions
to complainant as back pay. Respondent is further ordered to pay interest
on said back pay at the rate of 12 1/2% per annum.
3. Respondent is ordered to pay the sum of $147.36 to complainant for
incidental expenses as follows:
Meals
Lodging
Mileage

$ 15 '00
21. 36
111. 00
$1L+7.36

4. A civil penalty of $1,000.00 is assessed against respondent for
violating Section 105(c) of the Act. Said amount is payable 40 days after
the decision of the Commission becomes a final order. Said civil penalty
shall be paid in accordance with Section llO(j) of the Act [30 U.S.C.
820(j)],

JJJL.L~ <;/ ~~

/John J. Morr/Erl

LAdministrativ~ Law Judge

263fi

Distribution:
Rosalie Edwards
Starr Route
Beowawe, Nevada

89821

Bruce T. Beesley, Esq.
Woodburn, Wedge, Blakey and Jeppson
One East First Street
Reno, Nevada 89505

263fl

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

CONSOLIDATION COAL COMPANY,
Contestant

22041

Contest of Order
Docket No: WEVA 81-341-R
Order No: 854357; 3/16/81

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

Pursglove No. 15

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

Civil Penalty Proceeding
Docket No: WEVA 81-441
A.O. No: 46-01454-03090 V
Pursglove No. 15

v.

CONSOLIDATION COAL COMPANY,
Respondent
DECISION AND ORDER
The parties move for approval of a settlement of a violation that
created a serious hazard of death or disabling injury in the event of
a fire on the beltway in question. It was clearly an unwarrantable
failure violation and in view of respondent's history of prior violations
of the standard in question and its overall incidence of injury rate the
violation merits a more severe penalty than the reduced($400 from $750)
penalty proposed for settlement.
On the other hand, the Commission has admonished its trial judges
to adopt a "wise" rather than a "zealous" attitude toward enforcement
of the Mine Safety Law. This translates as a "soft" rather than a
"toughn policy of enforcement.

Respondent, of course, is tough, very tough. Knowing respondent as
well as I do and knowing what this record reflects as to its attitude
toward compliance, I think the settlement proposed is too low. The
assessment off ice also thought it too low and I have little doubt MSHA
would think it too low. But the Solicitor who speaks for the Secretary,
rather than MSHA, thinks the penalty proposed is appropriate because the
violation was more or less a run-of-the-mine type of violation. Furthermore, knowing the Commission as I do, I think the Commission, after
consulting with the Solicitor, would not think it too low, That is
what is known in some circles as "wise" enforcement. Thus, whether the
penalty will deter future violations and ensure voluntary compliance
seems almost immaterial.

2637

For these reasons, I reluctantly conclude the motion to approve
settlement should be approved. I hope I am wrong and that the
Commission will review this decision on its own motion and delineate
a more "zealous" enforcement policy. If it does not I will be sadder but
indeed wiser.
Accordingly, it is ORDERED that the motion to approve settlement be,
and hereby is, APPROVED. It is FURTHER ORDERED that the operator pay
the settlement agreed upon, $400, on or before, Tuesday, December 1, 1~81
and that subject to payment the captioned matter be DISMISSED.

Distribution:
H. Juanita M. Littlejohn, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Catherine M. Oliver, Esq., U.S. Department of Labor, Office of
the Solicitor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Harrison B. Combs, Jr., Esq., United Mine Workers of America,
900 15th Street, N.W., Washington, D.C. 20005 (Certified Mail)

2638

!FEDER.Al MINE SAFETY A.ND HEAilTH !REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV so 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JAMES W. FURMAN,
Complainant

Complaint of Discrimination
Docket No. YORK 81-27-DM

v.
A. FERRANTE & SONS, INC.,
Respondent
DECISION AND ORDER
As the result of the trial judge's review of the parties' prehearing
submissions and what transpired at the prehearing/settlement conference of
September 16, 1981, the trial judge exercised "his inherent authority to
question whether as a matter of law" l/ this case presented a valid cause
of action. The circumstance giving rise to this query was the fact that
the prehearing submissions showed the alleged report of a health hazard
did not occur until after complainant's alleged voluntary quit.2/ Since
there was no genuine dispute about the excuse complainant gave for refusing
to perform his assigned work tasks before he voluntarily quit his place
of employment, the trial judge suggested the controlling question of law
be det2rmined on a motion for summary judgment. To this end, the parties
were directed to take depositions of complainant and other material witnesses
and advise the Court as to whether a summary procedure or a trial-type hearing
would be necessary to resolve the matter. While the Commission views such
judicial activism with alarm l_/ the parties thought that in this case it made
l;--Secretary v. Olga Coal Co., 2 FMSHRC 2769 (1980); 1 MSHC 2537.
]:_/ There was no claim that respondent's refusal to reinstate or rehire
complainant was retaliatory. See, Munsey v. Morton, 1 MSHC 1220 (D.C.
Cir. 1974); Munsei v. Morton, 1 MSHC 1709 (D.C. Cir. 1978).

1/

In Secretary v. Missouri Gravel Company_, 3 FMSHRC ~-' No. LAKE 80-83-M,
decided November 4, 1981, the Commission held that "Summary decision is
an extraordinary procedure" to be reserved for the "most exceptional of
circumstances". And in Secreta_rr v. Knox County Stone G_ompany, 3 FMSHRC
DENV 75-359-M, decided November 6, 1981, the Conunission deplored the trial
(footnote 3 continued on page 2)

2639

a lot of sense. So much sense in fact that after they took complainant's
deposition on October 8, 1981, they advised the trial judge of their desire
to join in an appropriate motion to dismiss the complaint with prejudice.
When the Secretary's client, the complainant, did not agree, he was
advised of his right to file a complaint .E.EQ_ se or through his own counsel. !!_/
(footnote 3 continued)
judge's use of a "form of sua sponte summary judgment" that avoided an
evidentiary hearing in a case involving a violation which the Commission
characterized as "relatively minor or technical" and for which it accepted
a $36.00 penalty in lieu of my assessment of $500.00. More disturbing
was the Commission's effort to inhibit suggestions by its trial judges
for procedural shortcuts in de minimus cases. In a discussion which it
characterized as wholly "extrinsic to the matter under review" it undertook
a polemic on ex parte communications that seems designed to wallof f any
meaningful procedural discussions between the trial judge and counsel.
The tenuous nexus with the case under review was a record which clearly
showed that after both parties had submitted motions to dismiss or to
approve settlement the trial judge told them he could not approve the
settlement proposed, $36.00, but would proceed to treat the motions to
dismiss as cross motions for summary decision for the purpose of determining
the amount of the penalty warranted. Such a proposal is one of the
recognized exceptions authorized by law to the general prohibition against
ex parte communications that relate to the merits of a case. This was because
the communication in question did not relate to the merits of any issue
pending but only to the procedure best adapted to an expeditious and
inexpensive disposition of the pending motions. What the Commission
seemed to overlook is that the United States Court of Appeals for the
Second Circuit has held it is not inappropriate for a trial judge to treat
sua sponte any motion to dismiss as a motion for summary judgment where
it is clear that the case does not present an issue of material fact and
the parties are afforded an opportunity to present materials in opposition
to the motion. Corporacion de Mercadeo Agricola v. Mellon Bank International,
608 F.2d 43, 48 (2d Cir. 1979); Flli Moretti Cerali v. Continental Grain Co.,
563 F.2d 563, 563 (2d Cir. 1977).
Whether viewed as a profound misunderstanding of what occurred or
more simply as a suggestio falsi, suppressio veri, it is to be hoped that
Knox County does not presage a further mischievous intrusion into the authority
of the trial judges to regulate the course of penalty proceedings and
to provide an expeditious and inexpensive remedy.
!:±_/ See, Secretary's L~tter of Determination, filed October 30, 1981. When
the Secretary acting on behalf of an alleged discriminatee decides the
evidence will not support a finding of violation and that the case should
be dismissed, it is not clear whether the complainant has a cause of
action under section 105(c)(3) of the Act that survives such a dismissal.

2640

The trial judge agreed to consider the proposed motion provided
complainant's deposition was furnished for the record. This was done and
I have now carefully reviewed Mr. Furman's deposition. It clearly
establishes complainant's propensity for confusing fact with fantasy,
a practice which is sometimes known as confabulation. This circumstance
certainly warranted a reevaluation of the merits of the complaint, because
it seriously impugns Mr. Furman's credibility.
My independent evaluation of the matter leads me to conclude that
the complaint was improvidently filed, as a matter of law, and that
the Secretary's principal witness has, as a matter of fact, fatally flawed
his ability to give a credible account of the circumstances of the alleged
discrimination.
Counsel for the Secretary in this matter is to be commended for the
professionalism demonstrated in recognizing early on the lack of merit
in his case. ~_/
Accordingly, it is ORDERED that
is, GRANTED and the captioned matter

motion to dismiss be, and hereby
ISSED WITH PREJUDICE.

Judge

!j_/ All too often, I have had the sad experience of watching the Secretary's
counsel forge ahead with a case obviously sinking under him because he
fears the reaction from his own bureauracy of admitting an error in
bringing the case. Unfortunately, disapproval of procedural devices designed
to surface such fatal deficiencies may encourage an "after all its only
taxpayer's money we are spending" attitude on the part of less courageous
counsel.

2641

Distribution:
Jithender Rao, Esq., U.S. Department of Labor, Office of the Solicitor,
1515 Broadway, New York, NY 10036 (Certified Mail)
John J. McAleese, Esq., Cunniff, Bray & McAleese, 1 Bala Cynwyd Plaza,
Bala Cynwyd, PA 19004 (Certified Mail)
James W. Furman, 8 Walker Ave., Morristown, NJ 07860 (Certified Mail)

2642

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

80204

MDV 24
CHARLES HARVEY,
Complainant,
v.

HOWARD QUARRIES,
Respondent.

)
)
)
)
)
)
)
)
)
)

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE
DOCKET NO. CENT 81-9-DM
MSHA CASE NO. MD 80-151

Appearances:
Charles Harvey, Slater, Missouri
appearing pro se, on behalf of Complainant
E. J. Holland, Jr., Esq.
James T. Price, Esq,
Kansas City, Missouri
appearing on behalf of Respondent
Before: Judge John J. Morris
DEC I SI.ON
STATEMENT OF THE CASE
Complainant Charles Harvey brings this action on his own behalf
alleging he was discriminated against by his employer, Howard Quarries,
Inc,, in violation of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 ~seq.

§

The statutory provision, Section 105(c)(l) of the Act, now codified at
30 U.S.C. 815(c)(l), provides as follows:
§ 105(c)(l) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights o~ any miner, representative
of miners or applicant for employment in any coal or other mine
subject to this Act because such miner, representative of miners
or applicant for employment has filed or made a complaint under
or related to this Act including a complaint notifying the operator
or the operator's agent, or the representative of the miners at
the coal or other mine of an alleged danger or safety or health
violation in a coal or other mine, or because such miner re-

presentative of miners or applicant for employment is the
subject of medical evaluations and potential transfer under
a standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment
has instituted or caused to be instituted any proceeding
under or related to this Act or has testified or is about
to testify in any such proceeding, or because of the exercise
by such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory
right afforded by this Act.
After notice to the parties a hearing on the merits commenced in
Sedalia, Missouri on April 8, 1981. On that date the case was partially
heard and complainant's mot ion for a continuance to produce additional
evidence was granted. The hearing was concluded on June 23, 1981. The
parties filed post trial briefs.
ISSUES
The issue js whether Charles Harvey was discharged because he
complained about excessive dust and requested a dust respirator mask at the
quarry or whether Harvey was discharged because his work was unsatisfactory.
For the reasons hereafter state~ I find in favor of Howard Quarries,
and I dismiss the discrimination complaint.
APPLICABLE CASE LAW
The Commission has ruled that to establish a prima facie case for a
violation of § 105(c)(l) of the Act a complainant must show by a
preponderance of the evidence that (1) he engaged in a protected activity
and (2) that the adverse action was motivated in any part by the protected
activity. The employer may affirmatively defend, however, by proving by a
preponderance of all the evidence that, although part of his motive was
unlawful, (1) he was also motivated by the miner's unprotected activities,
and (2) that he would have taken adverse action against the miner in any
event for the unprotected activities alone, David Pasula v. Consolidation
Coal Company 2 FMSHRC 2786 (1980) 1 Rev'd on other grounds, No. 80-2600
(3d Cir. October 30, 1981).
FINDINGS OF FACT
The references to the transcript of the April 8 hearing are prefixed
as "Tr. l" and references to the transcript of the June 23 hearing are
pre fixed as "Tr. 2."

2644

1. Charles Harvey was employed as a stockpiler by Howard Quarries,
Inc., between December 26, 1979 through July 25, 1980 (Tr. 1: 10, 13, 29).

2. A stockpiler's duties include driving a truck (50% of the time),
removing rock and debris from under the conveyor belts (35% of the time),
and doing maintenance work on the crusher (15% of the time) (Tr. l: 33).
3. Charles Harvey was a good truck driver, but he didn't do his
assigned work of shoveling from under the conveyor belts. His work
performance was poorer than other employees (Tr. 1: 34-37).

4. In May 1980 workers Winfrey, White, and Mennard complained to
supervisor Rowden that they were tired of doing Harvey's share of the work
(Tr. 1: 40).
5. Rowden talked to Harvey and told him he'd be let go if he didn't
improve. Harvey didn't improve (Tr, 1: 39),
6. On July 24, 1980 Rowden assigned Harvey, with Burns, to shovel.
Thirty or forty minutes later Harvey was laying under the conveyor (Tr. 1:
42).
7.

Burns quit that day stating he couldn't work with Harvey (Tr. l:

42).
8. Harvey was fired the next day (July 25) at quitting time. He was
fired because of his work performance and due to Burn's conversation with
Rowden (Tr. 1: 43).
9. During his employment Harvey never asked Rowden for a dust respirator, nor did he ever complain to Rowden or to his fellow workers about
safety (Tr. 1: 43).
10. Rowden, who has discharged five workers in the past two years,
didn't treat Harvey any differently from any other worker (Tr. 1: 45-46).
11. After an MSHA inspection Howard Quarries air conditioned the
crusher shack and acquired a water tank which was used when needed (Tr. 1:
47; 2: 41).
12. Rowden has never disciplined any worker for complaining about
dust nor has Rowden ever told an employee to buy a dust respirator (Tr. 1:
49).
13. The day before he was fired fellow worker Shively observed Harvey
laying under the crusher for 15 or 20 minutes when he was supposed to be
working (Tr. 2: 8-9, 18).

264[)

14.

Shively indicated Rowden was concerned about safety (Tr. 2: 15).

15. Worker Gray indicated he had seen Harvey loafing on the job (Tr.
2: 29-30).
16. After Harvey bought a respirator he used if for awhile and then
gave it to Winfrey (Tr. 2: 37).
17.
18.
1: 51).

Normally dust masks were available at the quarry (Tr. 2: 40).
No worker was ever disciplined for making a safety complaint (Tr.

19. Rowden was concerned about dust and never hesitated to send
Winfrey to water down the road (Tr. 2: 42).
DISCUSSION
Harvey would have the Corrnnission believe that he complained about
excessive dust and requested a dust mask. The credible evidence leads to a
contrary conclusion. Rowden's testimony is confirmed by workers Shively,
Gray, and Winfrey. Harvey never asked for a mask nor did he ever complain
about safety. Harvey's use of a mask he purchased was short-lived since he
gave it to Winfrey. Further, Winfrey didn't see Harvey using a mask after
that event. Further, Harvey's request for a mask would hardly have been a
motivating factor for his discharge since masks were generally furnished by
the quarry and available to the workers.
Harvey would further have the Commission believe that the dust
complaint and request for a mask motivated Howard Quarries to fire him.
Again, the credible evidence leads to a different conclusion. The uncontroverted evidence also establishes that no employee was ever
disciplined for a safety complaint. Further, Rowden was committed to
safety and would respond quickly with the use of the water truck whenever
the employees mentioned the dusty conditions. The quarry airconditioned
the crusher shack and provided respiratory protection to its workers.
In
view of the foregoing evidence, which is uncontroverted, I conclude that
Harvey's claims cannot be upheld.
In short, the evidence does not establish that Harvey was engaged tn a
protected activity for which he was discharged. The evidence does establish that Harvey was discharged for his poor work performance.
Some evidence describes Harvey as a "fair" worker (Tr. 1: 10; 2: 34).
However, Rowden, Shively and Gray all confirm the events of July 24, 1980.
Harvey's actions on that date and his prior performance caused him to be
discharged. On that day Harvey was assigned to clean out from under the
conveyor. Harvey spent 15 to 25 minutes laying under the conveyor. He was
laughing at his supervisor Rowden while Rowden was looking for him. Burns
quit because of Harvey. The evidence also reflects that Harvey's job
discipline in other respects was inadequate. There were occasions in
talking to Rowden where he said he wouldn't do his assigned duties, On two

2646

or three occasions Harvey had tried to convince Winfrey that he (Winfrey)
should stop shoveling when Rowden disappeared (Tr. 1: 41-43; 2: 10, 17, 18,
45). Howard Quarries has carried its burden of proof as required in
Pasula, supra.
Based on the foregoing findings of fact and conclusions of law I enter
the following:
ORDER
The complaint of discrimination filed herein is dismissed with
prejudice.

Judge
Distribution:
Charles A. Harvey
139 North Euclid
Slater, Missouri 65349
E. J. Holland, Jr., Esq.
James T. Price, Esq.
Spencer, Fane, Britt & Browne
1000 Power & Light Building
Kansas City, Missouri 64105

2647

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

)

SECRETARY OF LABOR, MINE SAFETY AND
)
HEALTH ADMINISTRATION (MSHA), on behalf)
of GORDON S. BENNETT, JAMIE V. COX,
)
STEVEN R. FRITSCH, JAMES E. JOHNSON,
)
WILLIAM R. JOHNSON, ROBERT C. JOLLEY,
)
JAMES OLSEN, PAUL REDHAIR, LANSING L.
)
SMITH, MICHAEL C. TATUM, FRED L. TUBBS, )
)
and ROBERT R. WILSON,
Complainants,
)

IOV 24 )ll
COMPLAINT OF DISCRIMINATION
DOCKET NO. WEST 80-489-D(A)
MINE: Deseret Mine

)

v.

)
)

EMERY MINING CORPORATION,

)
)

Respondent.

)
)

Appearances:
James H. Barkley, Esq., Office of Henry C. Mahlman,
Associate Regional Solicitor,
United States Department nf Labor
Denver, Colorado 80294
For the Complainants
Todd D. Peterson, Esq.
Crowell & Moring,
Washington, D.C. 20036
For the Respondent
Before: Judge John J. Morris
DECISION
STATEMENT OF THE CASE
The Secretary of Labor of the United States, the individual charged
with the statutory duty of enforcing the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq., (the Act) brings this action on
behalf of complainants. He asserts Emery Mining Corporation, (Emery),
violated Section 115(b) of the Act. Further, the Secretary claims that
the aforesaid violation constitutes discriminatory conduct under Section
105 (c)(l) of the Act.
Section 115 of the Act, now codified at 30 U.S.C.
1n part, as follows:

2648

§

825(a) provides,

MANDATORY HEAL TH AND SAFETY TRAINING
Sec. 115. (a) Each operator of a coal or other mine shall have a
health and safety training program which shall be approved by the
Secretary ••..
(1) new miners having no underground mining experience shall receive
no less than 40 hours of training if they are to work underground.
Such training shall include instructions in the statutory rights of
miners and their representatives under the Act, use of the selfrescue device and use of respiratory devices, hazard recognition,
escapeways, walk around training, emergency procedures, basic
ventilation, basic roof control, electrical hazards, first aid, and
the health and safety aspects of the task to which he will be
assigned;
(b) Any health and safety training provided under subsection
(a) shall be provided during normal working hours. Miners shall be
paid at their normal rate of compensation while ,they take such
training, and new miners shall be paid at their starting wage rate
when they take the new miner training. If such training shall be
given at a location other than the normal place of work, miners shall
also be compensated for the additional costs they may incur in
attending such training sessions.
(c) Upon completion of each training program, each operator
shall certify, on a form approved by the Secretary, that the
miner has received the specified training in each subject
area of the approved health and safety training plan. A
certificate for each miner shall be maintained by the operator,
and shall be available for inspection at the mine site, and a
copy thereof shall be given to each miner at the completion
of such training. When a miner leaves the operator's employ,
he shall be entitled to a copy of his health and safety training certificates. False certification by an operator that
training was given shall be punishable under section llO(a)
and (f); and each health and safety training certificate
shall indicate on its face, in bold letters, printed in a
conspicuous manner the fact that such false certification 1s
so punishable.
(d) The Secretary shall promulgate appropriate standards for
safety and health training for coal or other mine construction
workers.
Section 105(c)(l) of the Act, the discrimination section, now
codified at 30 U.S.C. § 815(c)(l) provides as follows:
§ 105(c)(l)
No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the exercise of
the statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject

2649

to this Act because such miner, representative of miners or applicant
for employment has filed or made a complaint under or related to this
Act, including a complaint notifying the operator or the operator's
agent, or the representative of the miners at the coal or other mine
of an alleged danger or safety or health violation in a coal or other
mine, or because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to section 101 or
because such miner, representative of miners or applicant for
employment has instituted or caused to be instituted any proceeding
under or related to this Act or has testified or is about to testify
in any such proceeding, or because of the exercise by such miner,
representative of miners or applicant for employment on behalf of
himself or others of any statutory right afforded by this Act.
After notice to the parties, a hearing on the merits was held in Salt
Lake City, Utah on March 17, 1981. The parties filed post trial briefs.
ISSUES
The initial issue is whether Emery's requirement that a job applicant
have 32 hours of miner training as a precondition of employment violates
Section 115, the training section of the Act. If the first issue is
answered in the affirmative, does such a violation trigger a violation of
Section 105(c)(l), the discrimination section of the Act. If a violation
of both sections occurred, what relief is appropriate particularily since
the Secretary in his complaint did not seek a civil penalty.
For the reasons herein stated I conclude that Emery's policy violates
the Act, constitutes discriminatory practice, and I further assess a civil
penalty.
SYNOPOSIS OF THE CLAIMS
Complainants, all inexperienced in mining, sought employment with
Emery. Before considering any applications Emery's personnel policy
requires that all job applicants complete 32 hours of training at an MSHA
approved miner's training course. The applicants at their expense
successfully completed the training courses. Their references were
checked by Emery, and after physical examinations they were hired.
The Secretary contends that Emery's policy violates Section 115(b) of
the Act. On behalf of complainants he seeks to recoup all expenses
attendant to their taking the training course as well as pay not received
while they were attending the course.
FINDINGS OF FACT
The facts are uncontroverted.

2650

1. Jamie V. Cox initially contacted lmery for employment. Emery
personnel told him to contact Job Service. / At that agency he was
advised to take 32 hours of miner training-:- Cox took the training and
applied at Emery. His references were good and he was hired by Emery on
January 28, 1980, as a buggy driver (underground). Cox received an
additional 8 hours of miner training from Emery.
Cox's expenses consisted of the following:
Tuition for 32 hour course
Miles travelled to attend course
(256 miles at 18 1/2¢) 2 /
Pay not received ($65.78 ~ 4 days)

$100.00
L+ 7 , 36

263.12

Cox had no prior underground mining experience (Tr. 29-39, 78).
2. James Olsen contacterl Emery personnel. He was referred to Job
Service and took the MSA 32 hour training course. His starting pay as a
miner was $65.78 per day.
Olsen started with Emery on March 21, 1980, operating a shuttle car
underground. After he was hired Olsen received 8 hours training from
Emery.
Olsen's expenses were as follows:
Tuition at MSA
(Mileage, 480 @ 18 1/2¢)
Pay not received
($65.78 x 4)

$100.00
88.80
263.12

Olsen had no prior mining experience (Tr. 40-44).
3. When Paul Redhair contacted Emery's personnel secretary he was
told he needed 32 hours of training to work underground. Redhair took the
training course and after returning to Job Service he was interviewed by
Emery. He was hired on Februnry 1, 1980, as an underground worker.
Redhair's expenses were ;is follows:
Tuition for training
Pay not received ($65. 78 x 4)

$100. 00

263.12

Redhair had no prior mining experience.

1/ The parties stipulated that Job Service ts an agency of the State of
Utah Department of Employment Security (Tr. 34).
2/ The undersigned has calculated all mileage expense on the basis of
mileage paid by the United States Government for government use of
privately owned vehicles at the time of the use.

2651

4. James E. Johnson contacted Job Service who directed him to the
safety training course. After completing the course he returned to Emery
where he received an additional 8 hours of training.
Johnson's expenses were as follows:
Tuition for miner training at MSA
Meals during training
Motel cost per night ($36 x 4)
Mileage (168 x 18 1/2¢)
Pay not received ($65.78 x 4)
Helmet
Boots
Belt

$100.00
36.00
144.00
31.08
263.12
11.00
65.00
13.00

The record does not reflect that the helmet, boots, and belt were
required by Emery as a precondition of employment. Accordingly, I
conclude that he should not recover for the expense of such items.
Johnson was employed as an underground miner on February 22, 1980.
He had no prior mining experience (Tr. 51-53).
5. William R. Johnson was told by Job Service that employment would
be more easily obtained if he had miner's training. Johnson took the 32
hour course and returned to Job Service. He was then referred to Emery,
took a physical examination, and was hired on February 22, 1980.
Johnson's first job was as an underground trainee laborer.
William R. Johnson's expenses were as follows:
Tuition for training
Motel cost ($36 x 4)
Mileage (160 @ 18 1/24)
Pay not received ($65.78 x 4)
Meals

$100.00
144.00
29.60
263.12
36.00

William R. Johnson had no prior mining experience (Tr. 54-56).
6. Fred L. Tubbs went to Job Service where he was told he needed
miner training. He took the course, went back to Job Service, then to
Emery. At Emery he was interviewed and took a physical examination.
Fred L. Tubbs' expenses were as follows:
Tuition for training
Mileage (124 x 4 x 18 1/2¢)
Lunches during course
Pay not received ($65.78 x 4)

$100.00
91.76
8.50
263.12

Tubbs was employed by Emery on February 8, 1980 as an underground
miner. He had no prior mining experience (Tr. 56-60).

2652

7. Lansing L. Smith was told by Emery that he would have to take the
32 hour training course. Emery stated that after completing the course he
would be hired. Smith took the training course at Snow College in Utah.
Smith's expenses were as follows:
Tuition for training classes
Mileage (100 miles x 4 days x 18 1/2¢)
Pay not received ($65.78 x 4)
miner.

$ 65. 00

74.00
263.12

Smith started with Emery on February 22, 1980 as an underground
He had no prior experience (Tr. 61-67),

8. Robert T. Wilson went to Emery and saw the Emery sign referring
applicants to Job Service. Wilson was told by Emery's assistant personnel
director that it would speed the hiring process if he took the course. He
took the 8 hour per day course for four days.
Wilson's expenses were as follows:
Tuition for training course
Pay not received ($68 x 4)

$ 5t1. 00

272.00

9. The parties stipulated that four complainants were out of town and
unavailable for the hearing. It was further agreed that Emery did not
compensate said complainants for the time they spent obtaining preemployment training. The complainants subject to this stipulation were
Gordon S. Bennett, Steven R. Fritsch, Robert C. Jolley, and Michael C.
Tatum (Tr. 5-6). (If the parties intended a stipulation greater in scope
they did not express it on the record.)
Based on the stipulation I enter the following findings of fact:
Complainants Bennett, Fritsch, Jolley, and Tatum did not receive their
pay for the four.days they spent attending the miner training course. The
amount of the pay not received was as follows:
Gordon S, Bennett
Steven R. Fritsch
Robert C. Jolley
Michael C. Tatum

$65.78 (starting pay) x 4 days $263.12
26 3. 12
$65.78 x 4
263.12
$65.78 x 4
263.12
$65.78 x 4

10. Prior to the 1977 Act Emery hired new miners and sent them to the
College of Eastern Utah. The new miners were given an additional two days
training at Emery's facilities (Tr. 80).

2ssa

11. During 1979 Emery experienced a 48% turnover in inexperienced
miners; 450 were hired and 190 terminated in the first 3 months (Tr.
81-82).
12. On January 1, 1980 Emery changed its policy. The new policy was
that no person would be hired unless he had completed a new miner
orientation program through an MSHA approved institution (Tr. 82).
13. The reason for Emery's change in personnel policy was to screen
out those persons who weren't interested in a mining career and thereby
reduce the turnover rate (Tr. 89, 96).
14. The turnover rate was reduced to 25% from 50% but Emery did not
identify the cause of the reduction (Tr. 86, 89, 90).
15. Before January 1, 1980 Emery paid the miners for their time in
taking the training course (Tr. 88).
16. The State of Utah was the prime mover for the training program.
Its purpose was to reduce turnover (Tr. 92, 93).
DISCUSSION
Emery contends it may impose legimate pre-employment qualifications
on those who wish to be employed at its mines. I agree. However, the
legitimacy of Emery's policies depends on whether a pre-employment
requirement of 32 hours of miner's training conflicts with a contrary
Congressional directive. Accordingly, it is necessary to look to the terms
of the Act and, if necessary, its legislative history.
Various portions of the Act dealing with miner training are profuse
in indicating a Congressional intent that miner training is the
responsibility of the operator and not the job applicant.
A review of Section 115(a) indicates such a Congressional intent. An
overview of the sect ion shows: "Each operator shall have a health and
safety training program . . . . " [300:-s.c. 825(a)J. New miners having no
underground mining experience shall receive no less than 40 hours of
training [30 U.S.C. 825(i)J which "shall be provided during normal working
hours [30 U.S.C. 825(b)]. In the instant case the applicants who took the
course did so on their •own time and not during any such normal working
hours. Section 115(b) also directs that "miners shall be paid at their
normal rate of compensation while they take such training and new miners
shall be paid at their "starting wage" when they take the new miner
training. If such training is given at a location other than the normal
place of work miners shall also ''be compensated for the additional costs
they may incur in attending such training sessions." [30 U.S.C. 115(b)J.

2654

None of the above conditions were w~t in the instant factual situation.
The applicants did not receive any compensation, a starting wage or
otherwise, for their 32 hours training course. In fact they paid their
own tuition, and they incurred additional incidental costs for which they
were not reimbursed.
Section 115(c) directs that upon completion of each training course
"the operator'' shall certify that the miner has received the training [ 30
U.S.C. 115(c)]. The certifiuite shall he maintained "by the operator" ....
False certification "by an operator" is punishable under boththe civil
and criminal penalty provisions of the Act.
[30 U.S.C. 825(c)]. (Emphasis
added.)
As indicated above the Act places the responsibility for the training
of miners on the operator. On the other hand, no portion of the Act
places the responsibility for training costs on new miners. Emery's preemployment condition clearly shifts the statutory burden from Em~ry, the
operator, to the job applicants. Although operators may enter into
cooperative training agreements (30 C.F.R. 48.4), they ultimately are
responsible for the cost and content of s11ch training.
In addition to the foregoing language in the statute, the legislative
history supports this construction , The Conunit:tee on Human Resources in
May, 1977 stated:
It: is not the Commit tee's contemplation that the Secretary
be in the business of training miners. This is clearly the
responsibility of the opurator, as long as such training meets
the Act's minimum requirements. Sen. Rep. No. 95-181, 95th
Cong., 1st Sess., 50 (1977), reprinted in Legislative History
of the Federal Mine Safety and Health Act ~f 1977, 95th
Congress, 2nd Session, 638, (July, 1978). -~~~

Further, the general tenor of Senate Report No. 95-461, 95th Cong.,
1st Sess., 61 (1977), reprinted in Leg. History, supra at 1339, clearly
illustrates the Congressional in ten-~ Aparticularily relevent portion
of this legislative history reads as follows:
MANDATORY HEALTH AND SAFETY
TRAINING AND MINE RESCUE TEAMS
The Senate bill contained a provision requiring the Secretary
to, within 180 days of the effective date of this, promulgate
regulations with respect to the safety and health training of
miners. Each operator would have a safety and health training
plan, approved by the Secretary, which would provide new underground miners with no less than 40 hours of training, new
surface miners with no less than 24 hours of training, and all
miners with at· least 8 hours of annual retraining. Any miner
reassigned to a new task would be provided with training 1n
safety and health aspects of his new assignment. Safety and
health training would be provided at the expense of the

265fi

operator 3 / and during normal 1·.>orking hours. Miners would
be paid their normal rate of compensation for such time spent
in training, and new miners would be paid their starting wage
rate. If such training was given away from the mine, miners
would also be compensated for their expense.
Other portions of the legislative history amply support the
construction stated here.
The next issue is whether the violation constitutes a discriminatory
practice under Section lOS(c) of the Act. The discrimination section is
broad in scope and it includes and prohibits discrimination against an
"applicant for employment." In David Pasula v. Consolidation Coal Company
2 FMSHRC 2786 (1980) (Reversed on other grounds, United States Court of
Appeais, (3rd Cir), October 30, 1981, No. 80-2600), the Commission cited
the report of the Senate Committee that largely drafted the 1977 Mine Act,
The Connnission citing in part the legislative history at 624, stated as
fol lows:
The wording of section lO[S](c) is broader than the
counterpart language in section 110 of the Coal Act
and the Connnittee intends section lO[S](c) to be
construed expansively to assure that miners will not
be inhibited in any way in exercising any rights
afforded by the legislation.
The Committee also intends to cover within the ambit
of this ~rotection any ciiscrimination against a miner
which is the result of the safety training provisions
... or the enforcement of those provisions ..•.
(Emphasis added).
Since § llS(b) imposes the statutory obligation on the operator to
provide and pay for miner training it follows as a necessary corollary
that the right to training as a miner is one of the statutory rights
protected by the discrimination portion of the Act. Emery's pre-employment
policy which denied this right to the complainants, therefore, discriminates against job applicants.
The Committee was cognizant of the possibility of pre-employment
training in areas other than as a pre-employment condition. The
Legislative History, supra, page 639 recognizes West Virginia and Kentucky
safety training courses and discusses their ramifications:
Lhe CoffiTTlittee recognizes that some States, namely
West Virginia and Kentucky, provide pre-employment

3/

Portion cited 1n MSHA brief.

265f)

training to individuals who may apply for johs as
miners. Such training may meet the requirements of
the standards promulgated by the Secretary, and,
assuming that such training is of sufficient quality,
the operator should not be required to duplicate Stateprovided training.
In the above circumstances there is a Congressional intent to relieve
the operator from the liability of providing duplicate training for a job
applicant. Emery has not cited any portion of the legislative history that
would cause me to conclude that there are other circumstances where Congress intended to shift the burden from the mine operator.
The doctrine expressed in Consolidated Coal Company, (David Pasula),
supra does not purport to set the outside perimeters of protected activity.
In this case complainants were "applicants for employment." Further, the
protected activity here is a statutory right to training provided for in
the Act. Emery accordingly discriminated against complainants by requiring
them to secure on their time and at their expense such training,
The Secretary's regulations, Title 30 Code of Federal Regulations,
Part 48, relating to the training and retraining of miners, does not
address the issues raised in this case.
EMERY'S CONTENTIONS
Emery argues that it may impose legitmate pre-employment
qualifications, further that such a policy is consistent with the Act, and
that there would be no practical benefit in requiring Emery to pay for all
40 hours of training since it may well continue its present personnel
policy that is the subject of this litigation.
Emery's initial argument has already been discussed. To briefly
restate the holding: Emery's pre-employment qualification fails since it
is in conflict with the statutory provisions of the Act.
Emery's second argument is that its policy is consistent with the Act
because the complainants were not "miners." Emery relies on Section 115(b)
of the Act. With particular emphasis Emery cites the pay requirement
section as follows:
Any health and safety training provided under subsection (a)
shall be provided during normal working hours, Miners shall
be paid at their normal rate of compensation while they take
such training, and new miners shall be paid at their starting
wage rate when they take-~new miner training. If such
training shall be given at a location other than the normal
place of work, miners shall also be compensated for the
additional cost they may incur in attending such training
sessions. (Emphasis added).

Further, Emery cites Section 3(g) of the Act which states:
(g) "miner" means an individual working in a coal or
other mine.
In short, Emery asserts that the job applicants here were not "miners"
since they had not been hired and most of them had not even submitted
formal applications for employment. I find from the uncontroverted
evidence that the factual statements made my Emery are credible, but I
disagree with Emery's restrictive construction of the term "miner". Such a
view conflicts with the Act and its legislative history which places the
burden for the training of all miners on the mine operator. Further, it is
an accepted principal of law that remedial legislation is to be broadly
construed. Consolidated Coal Company, 1 FMSHRC 1300, 1309 (1979).
It is apparent from the legislative history Leg. History, supra at
(pages 589-598) that Congress was exceedingly disturbed over mine disasters
and resulting deaths. The history reviews the Sunshine Silver Mine
Disaster (Idaho, 1972; 91 fatalities); Buffalo Creek (1972, 125
fatalities); Blackville disa~ter (July 1972, 9 fatalities); Scotia, (March
1976, 26 fatalities including 3 inspectors); near Tower City, Pennsylvania
(February 1977, 9 fatalities). Further, the history states:
It is unacceptable that years after enactment of these mine safety
laws, miners can still go into the mines without even rudimentary
training in safety. Leg. History, supra at 592.
Emery's final argument is that if it is required to pay for all 40
hours of training it is unlikely that the miners will ultimately benefit
from this additional burden placed on Emery. Its argument is to the effect
that it could hire only "experienced miners", further, it could train the
applicants at its facilities, and it could still require its job applicants
to have completed 32 hours of training before it gives its own 40 hours of
training.
I agree with Emery that it may restrict its hiring practices and hire
only 11 f'Xperienced miners", as defined in 30 C.F.R. 48.2(b). In addition,
Emery may use its present facilities to give the required 40 hours of
training. In fact, prior to the adoption of the present Act Emery (then
American Coal Company) had a full MSHA approved training course on its
site. Further, it compensated new miners for their expenses and wages
while they took the course (Tr. 6, 80, Exhibit C-1).
As I interpret Emery's final argument it focuses on the proposition
that it may require inexperienced miners to take 37. hours of preliminary
training and then give its own 40 hours of training (a total of 72 hours).
There should be many avenues Emery can explore in its efforts to reduce
labor turnover but its hypothetical presents a factual situation very
similar to the pre-employment condition that I have ruled invalid in the
instant case. However, in view of the fact that Emery's argument is
hypothetical no definitive ruling is required in this decision.

2658

Emery further claims that in Section lOS(c) Congress used the term
app1 icants for employment" but that term does not appear in Sect ion
llS(b), Therefore, Emery concludes that Congress did not intend to require
operators to compensate applicants for training they received prior to
becoming hired by Emery.
11

No one contends Emery should train each and every job applicant but it
may not discriminate against job applic~nts.
In Section llS(a) Congress is discussing "new miners" with no
underground experience, § 115(a)(l); new miners with no surface experience
§ 115(a)(2); refresher training for all miners, § 115(a)(3); any miner
reassigned to a new task, § 115(a)(4). It would be incongruous for
Congress to require training for a "applicant for employment." If Congress
had perceived the thrust of Emery's argument and required training for
"applicants for employment" (in addition to new miners) then Emery might
find itself in the miner training business which could be quite apart from
the coal mining business.
Emery is correct in its contention that "applicants for employment"
are not required to be trained at the expense of the mine operator.
However, Congress mandated that mine operators bear the full expense of
training new miners. Emery's pol.icy that applicants for employment obtain
32 hours of training before they may be considered for employment
circumvents this mandate. Emery constructed its employment policy in such
a way that it remained responsible for only eight of the forty hours of
training required for new underground miners. This policy clearly violates
Section 115 of the Act.
Having considered all of the arguments herein on the uncontroverted
facts I conclude that an order should be entered in favor of complainants
granting the relief they seek.
PROCEDURAL MATTERS
At the hearing of the above case counsel for the Secretary indicated
that he had been informed that there were approximately 300 employees in
addition to complainants that were hired by Emery after its policy went
into effect on January 1, 1980 (Tr. 22-28). The parties discussed the
possibility of joining other similarily situated employees once they were
specificially identified. The undersigned indicated that an amended
complaint would be favorably considered and jurisdiction would be retained
over those complainants who were added in the amended complaint.
Subsequently leave was granted to the Secretary to file an amended complaint which adds 127 complainants. They seek reimbursement for tu it ion,
back wages, and incidental expenses.
After the amended complaint was filed the undersigned, pursuant to
Rule 21, FRCP, severed the amended complaint from the original complaint.
It was further ordered that the instant case retain its present style and
that the letter (A) be designated after the docket number.

2659

The caption of the case involving the allegations raised in the
amended petition was designed as follows:
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA), on
behalf of MARK ADAMS, ET AL,

)
)
)

DOCKET NO. WEST 80-489-D(B)

)

Complainant,
v.

)
)
)

EMERY MINING CORPORATION,

)
)

Respondent.

)

Further, a copy of the complete file in WEST 80-489-D(A) was transferred to
WEST 80-489-D(B). The latter case remains pending before the undersigned.
CIVIL PENALTY
In this case the Secretary did not seek a civil penalty against Emery
for the violation of Section lOS(c) of the Act.
The credible evidence has been reviewed and the complaints of
discrimination are affirmed, The Act provides that any violation of the
discrimination section shall be subject to the provisions of Section 108
and llO(a).
The statute further authorizes the imposition of a penalty not to
exceed $10,000. (30 U.S.C. 818, 820(g), (i)). The Secretary did not seek a
civil penalty in this case but the statute mandates the imposition of a
penalty. Accordingly, a penalty of $1,000 is assessed against respondent
for violating the Act. (~ Tazco, Inc. Va. 80-121 (August 1981)).
Based on the foregoing findings of fact and conclusions of law as
stated above I enter the following:
ORDER
1. Complainants Gordon S. Bennett, Jamie V. Cox, Steven R. Fritsch,
James E. Johnson, William R. Johnson, Robert C. Jolley, James Olsen, Paul
Redhair, Lansing L. Smith, Michael C. Tatum, Robert R. Wilson and Fred L.
Tubbs were unlawfully discriminated against in violation of Section lOS(c)
of the Act, and their complaints of discrimination are sustained.
2. Respondent is ordered to pay to each complainant the amount
indicated after said complainant's name:
TOTAL
Gordon S. Bennett
Back pay

$263.12

2660

$263.12

Jamie v. Cox
Tuition
Mileage
Back pay

$100.00
47.36
263.12

$410.48

James Olsen
Tuition
Mileage
Back pay

$100.00
88.80
263.12

$451. 92

Steven R. Fritsch
Back pay

$263.12

$263.12

Paul Redhair
Tuition
Back pay

$100.00
263.12

$363 .12

Lansing L. Smith
Tuition
Mileage
Back pay

$ 65.00
74.00
263.12

$402.12

Robert R. Wilson
Tuition
Back pay

$ 54.00
272 .oo

$326.00

Fred L. Tubbs
Tuition
Mileage
Meals
Back pay

$100.00
91. 76
8.50
263.12

$463.38

Michael C. Tatum
Back pay

$263.12
$263.12

James E. Johnson
Tuition
Incidental costs (meals & motel)
Mileage
Back pay

$100.00
180.00
31.08
263.12
$574.20

William R. Johnson
Tuition
Motel costs
Mileage
Back pay
Meals
Robert

c. Jolley
Back pay

266J

$100.00
144.00
29.60
263.12
36.00

$572.72

$263.12

$263.12

3. Respondent is to pay interest on all said back pay awards at the
rate of 12 1/2% per annum.~/
4. A civil penalty of $1,000 is assessed against respondent for
violating Section 105(c) of the Act.

(};;-,_~_ f(/?(/--1/l.~

/John J. Morr i's .I
/
(. Administrativ~ Law Judge
;

Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Todd D. Peterson, Esq.
Crowe 11 & Moring
1100 Connecticut Avenue, N.W.
Washington, D.C. 20036

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

2662

AND HEALTH REVIEW COMMISSION

FEDERAL MINE

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

NOV 24
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. WEVA 81-550
A.O. No. 46-04266-03019V
Meredith Mine

v.
BULL RUN MINING COMPANY, INC.,
Respondent

DECISION APPROVING SETTLEMENT
This is a civil penalty proceeding initiated by the petitioner
against the respondent pursuant to section llO(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(a), proposing a civil
penalty assessment for one alleged violation of mandatory safety standard
30 CFR 75.200.
Respondent filed a timely answer and notice of contest and the case
wan scheduled for hearing at Washington, Pennsylvania, January 14, 1982.
However, by motion filed November 18, 1981, the petitioner seeks approval
of a proposed settlement of $350 for the citation which was initially
assessed at $750.
Discussion
In support of the proposed settlement disposition of this case,
petitioner has submitted full arguments and information concerning the
six statutory criteria found in section llO(i) of the Act, including
a discussion of the facts and circumstances surrounding the citation.
Petitioner states that Citation No, 856023 was issued on March 26, 1981,
because the respondent failed to comply with the roof control requirement
that roof bolts be installed within 5 feet of the rib. In the 1 right
section, in the crosscut along the belt conveyor entry, the crew had
cut an area along the left rib for a distance of 18 feet and no support
had been installed. The distance from the rib to the installed bolts
was 6 feet 10 inches, 6 feet 7 inches, 7 feet 4 inches, and 8 feet 2 jnches.
Petitioner states further that a reduction in penalty would be appropriate
in light of the following facts.
The cited are.a had been originally cut and bolted according to
the roof control plan; however, on March 25, 1981, it was discovered that
the equipment was too wide to move into the area. Thus, a cut was made
in the corner resulting in the cited wide areas from the last row of bolts.

Except for this last row of bolts the entire crosscut had been properly
bolted. The crew, after making the cut, cleaned the area. However,
before the crew could bolt the shift ended.
The next day the crew immediately started cutting in another area
of the mine, and at the time this violation was observed no one had
been under the inadequately supported roof. Additionally, the cited roof
could not be pulled down, and in order to abate, the roof was pinned up
with additional bolts, and it was not likely that the roof would have
fallen in this area. Petitioner concludes that these factors reduce the
gravity of the violation, and that the probability of a roof fall was
certainly less than probable in light of the roof's condition. Petitioner
also asserts that the cited condition presented no danger of an immediate
roof fall, that no fatality could reasonably be expected to occur as a
result of this condition since no miners were exposed to this unsupported
area, because once the crew finished work at the cited area on March 25, 1981,
they commenced work in another area of the mine the next day.
Although petitioner concedes that the respondent was negligent
in permitting the cited conditions to exist, it argues that any negligence
is mitigated by the fact that the conditions cited had not existed for
an entire shift as previously believed since the condition were cited
approximately 2 hours and 50 minutes into the shift.
With regard to the size and scope of the respondent's mining operation,
petitioner states that the respondent operates a very small mine, employing
approximately 16 miners on one daily production shift, and that its annual
coal production is 77,830 tons. Respondent's history of prior violations
for a two year period prior to the date the instant citation issued
consists of 57 prior assessed violations, but the petitioner does not
assert that any of these were for prior violations of section 75.200.
Conclusion
After careful review and consideration of the pleadings, arguments,
and information of record in support of the motion to approve the proposed
settlement. I co~clude and find that it is reasonable and in the public
interest. Accordingly, pursuant to 29 C.F.R. § 2700.30, the motion is
GRANTED and the settlement is APPROVED.

*/ Lest there by any misunderstanding as a result of recent conclusions
made by one of my learned colleagues in a recent decision of November 17, 1981,
(Docket Nos. WEVA 81-341-R; WEVA 81-441), stating that the Commission's
"trial judges" have been admonished to adopt a "wise" rather than "zealous"
attitude toward mine safety enforcement, my decision approving the settlement
in this case is based on the record before me and I have not been the
recipient of any such "admonishments".

2664

ORDER
Respondent IS ORDERED to pay a civil penalty in the settlement
amount of $350 in satisfaction of the citation in question within thirty
(30) days of the date of this decision and order, and upon receipt of
payment by MSHA, this proceeding is DISMISSED. The scheduled hearing is
CANCELLED.

ras
Administrative Law Judge
Distribution:
Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Woodrow A. Potesta, Esq., Suite 510, 1st National Bank Bldg., Fairmont,
WV 26554 (Certified Mail)

2665

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

11.ltni I ') 'f
l\~Ul!i

,,

\~\
·· ·.

)
)
WESTERN STEEL CORPORATION
Substituted Contestant,
) CONTEST OF CITATION PROCEEDING
(FMC CORPORATION, Original Contestant))
) DOCKET NO. WEST 81-132-RM
)
v.
) Citation No. 577232
)
SECRETARY OF LABOR, MINE SAFETY AND
) MINE: FMC
HEALTH ADMINISTRATION (MSHA),
)
Respondent.
)
~~~~~~~~~~~~~~~~~~~~~

Appearances:
John A. Snow, Esq.
Vancott, Bagley, Cornwall & McCarthy
50 South Main Street, Suite 1600
Salt Lake City, Utah 84144
For the Contestant
Robert J, Lesnick, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Respondent
BENCH DECISION
Contestant filed a contest of Citation No. 577232 issued by respondent
on behalf of the Mine Safety and Health Administration (MSHA). A hearing
was held in Green River, Wyoming on September 1, 1981. At the conclusion
of the evidence the parties agreed to waive filing of post trial briefs and
agreed that a bench decision could be rendered.
Based on the evidence I entered the following bench decision:
JURISDICTION
The parties admit that the Federal Mine Safety and Health Review
Commission has jurisdiction to hear and determine this case.
PROCEDURAL MATTERS
Western Steel Corporation has been substituted as a Contestant in this
case without objection. Accordingly the case is dismissed as against FMC
Corporation, and the caption is amended to reflect the substitution.

2G6f->

STATEMENT OF THE CASE
Contestant seeks an order vacating Citation 577232 issued by the Mine
Safety and Health Administration for an alleged violation of Title 30 Code
of .Federal Regulations, section 57 .L~-33. The standard provides as
follows:
Valves on oxygen and acetylene tanks shall be kept
closed when contents are not being used.
ISSUE
The issue is whether Contestant violated the standard.
involves a construction of the regulation.

That issue

FINDINGS OF FACT
The facts are uncontroverted except as will be hereafter discussed.
find the credible facts to be as follows:

I

1. On December 3, 1980, witness Warner, a Western Steel iron worker,
was fabricating material at the FMC mine.

2. Witness Warner was putting in a dust control system. A torch
welder with acetylene and oxygen tanks was being used in connection with
the process.
3. Mr. Warner arrived to work on that date at about 8:00 a.m, He set
up his cutting tools and turned on the valves and started up the welder.
4. The torch had approximately a hundred feet of hose which led to
the acetylene and oxygen tanks.
5. During the process of the morning, witness Warner ran out of angle
iron that he was using to make brackets. It was necessary to go elsewhere,
approximately forty to fifty feet away, to cut additional pieces.
6. At the place where witness Warner was cutting additional pieces he
could not see the torch or the acetylene and oxygen tanks.
7. Mr. Warner testified that he was away for approximately five to
ten minutes from the torch cutting head before the inspection team arrived.
However, I further find that this time could be as long as twenty minutes,
and for the purpose of this discussion I accept the twenty--minute period.
8. There were two sets of shut-off valves. One set was at the oxygen
and acetylene tanks and one set was 100 feet away at the torch.

9. When witness Warner left he turned off the set of shut-off valves
that are located at the torch head itself.
10. Mr. Warner intended to turn off the valves at the acetylene and
oxygen tanks at the lunch break.

Based on the foregoing facts, I conclude that there was no violation
of the regulations, and the citation should be vacated.
DISCUSSION OF THE EVIDENCE
There's only one credibility determination in the case and that
involves testimony of MSHA Inspector Potter to the effect that he learned
while at the scene and before he issued the citation that the torch had not
been in use. He bases this testimony on statements made by three miners at
the time of the incident. I find a certain weakness in Mr. Potter's
testimony in that I could not determine whether those three witnesses were
stating that they themselves had not used the torch or whether they were
stating that someone else had not used the torch.
In addition, witness Potter confirms that the torch had been in use
at some time, I further find that Warner started at 8:00 a.m. and set up
his gear and began operating the torch. He had done so between the time
that he started at 8:00 a.m. and the time of the inspection at about 10:35
a.m.
The Mine Safety and Health Administration asserts that there was a
hazard because the lines were under pressure and there was a possibility
then that an explosion could have occurred. There's no evidence that such
an event could have occurred, and no evidence that the lines were in any
way weak. In any event, I am not convinced that Warner's actions created
any hazard because that condition will always exist whenever the lines are
in use. I further find that MSHA Inspector Potter appears to agree that
MSHA allows valves to be open for a lapse of time when a worker has to do
such a thing elsewhere such as get a piece of steel.
The defense here infers that 'in use' means being used at various
times throughout the day. There are certain defects in that approach
because then no one would be responsible for turning the valve off. The
possibility would exist that the first person coming on the scene would use
the torch for five minutes and then walk away. Then it wouldn't be turned
off until lunch time or the end of the day. I am not willing to go so far
as to rule that the valves could be left on for such a substantial period
of time.
Here I find that Mr. Warner left his work place near the torch, and he
was doing an activity in connection with the further use of that torch. He
was gone for a period not exceeding twenty minutes. Therefore, it is my
view that the contents of the oxygen and acetylene torches were still
"being used" during this twenty minute period. Therefore, there was no
violation of the subsection 57.4-33. For that reason, I conclude that
Citation 577232 should be vacated.

2668

I can see the Secretary of Labor's point, but l feel that if he wants
a more specific requirement, then he should redraft Section 57.4-33. An
employer is entitled to be fairly appraised of prohibitive activity. It
may well be that Contestant in this case would be denied due process if I
were to hold that these facts constitute a violation of the standard.

In summary, I feel that there could be two extremes involved in a
construction of the regulation, One extreme is that the tank contents are
not "being used" whenever the oxygen and acetylene are flowing through the
lines but the torch itself has been turned off. I'm unwilling to accept
that extreme construction because that would mean everytime a welder turned
off his torch, he would have to go elsewhere to shut off the oxygen and
acetylene. On the other hand, the other extreme would be if a worker used
it for five minutes at 8:00 a.m. in the morning and then did not thereafter
go back to the welder for a substantial period of time, the contents of the
tank would be considered to be "being used" during that time. I do not
accept either of these interpretations.
ORDER
For the foregoing reasons and based on the findings of fact and
conclusions of law, I enter the following order:
Citation 577232 and the proposed penalty are vacated.

POST TRIAL ORDER
The foregoing bench decision is affirmed.

Distribution:
John A. Snow, Esq.
Vancott, Bagley, Cornwall & McCarthy
50 S. Main Street, Suite 1600
Salt Lake City, Utah 84144
Robert J. Lesnick, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294

2669

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

PEABODY COAL COMPANY,

Contest of Citation
Contestant

v.

Docket No. KENT 81-92-R

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

Citation No. 1032760
February 2, 1981
Star North Underground Mine

UNITED MINE WORKERS OF AMERICA,

(UMWA),
Respondents

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

Civil Penalty Proceeding
Petitioner

Docket No. KENT 81-155
A.O. No. 15-03161-03075V

v.
Star North Underground Mine
PEABODY COAL COMPANY,
Respondent
DECISIONS
Appearances:

Thomas A. Gallagher, Esq., St. Louis, Missouri, for
contestant-respondent Peabody Coal Company;
Thomas A. Grooms, Esq., U.S. Department of Labor,
Nashville, Tennessee, for respondent-petitioner
Secretary of Labor.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern an unwarrantable failure citation served on Peabody Coal Company by an MSHA inspector pursuant to section
104(d)(l) of the Federal Mine Safety and Health Act of 1977, and a subsequent

2670

civil penalty proposal filed by MSHA pursuant to section llO(a) of the Act,
seeking a civil penalty assessment based on the alleged violation as described
in the citation.
Peabody filed a timely notice of contest challenging the inspector's
unwarrantable failure findings, as well as his finding that the citation was
significant and substantial. On motion by MSHA, the dockets were consolidated
for hearing at Nashville, Tennessee, on September 2, 1981, and MSHA and Peabody
appeared, but the UMWA did not.
Applicable Statutory Provisions

1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801

.::.!. seq.
2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i), which requires
consideration of the following criteria before a civil penalty may be assessed
for a proven violation: (1) the operator's history of previous violations,
(2) the appropriateness of such penalty to the size of the business of the
operator, (3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business; (5) the gravity of the violation, and
(6) the demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of the violation.
3.

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

Stipulations
The parties stipulated to the following (Tr. 4):
1.

The Administrative Law Judge has jurisdiction over these matters.

2. Peabody Coal Company engages in business which affects interstate
commerce.
3.

Peabody Coal Company is a large coal operator.

4. The amount of the penalty which may be imposed will not affect
Peabody Coal Company's ability to remain in business.
Issues
The issues presented in these proceedings includes the following: (1)
whether the conditions or practices cited by the inspector on the face of the
citation constituted a violation of the cited mandatory safety standard, (2)
whether the violation was of such a nature as could significantly and substantially contribute to the cause and effect of a coal or other safety or health
hazard, and if such violation was caused by the unwarrantable failure of the
operator to comply with the mandatory health or safety standard, (3) the
appropriate civil penalty which should be assessed against the operator for

2671

the alleged violation based upon the criteria set forth in section 110 of the
Act. Additional issues raised are identified and disposed of where appropriate in the course of these decisions.
DISCUSSION
Section 104(d)(l) Citation No. 1032760, issued by MSHA inspector Arthur J.
Parks, on February 2, 1981, charges a violation of 30 C.F.R. § 75.1306, and
the inspector concluded that the conditions cited constituted a "significant
and substantial" violation. The citation was issued because the inspector
believed that the explosive magazine on the No. 7 mining unit was not
adequately protected from a potential roof fall. The condition or practice
cited by the inspector on the face of the citation is as follows:
The explosives magazine on the No. 7 unit (025) was not
adequately protected from potential roof fall. The magazine
was sitting in a room neck (approximately 10' deep) next to
intersection (spad No. 246) approximately 25' outby a roof
fall in the No. 6 entry. The roof was cracked from the fall
along the rib into the room neck and a crack from the fall
extened [sic] into the crosscut opposite the magazine (this
crosscut
24' wide at the mouth). Management knew of the
abnormal condition (the roof fall) but there were only three
timbers set around the magazine and one of the three crossbars between the magazine and fall was broken.

was

The conditions cited were subsequently abated, and the citation was
terminated the same day it was issued, and the action taken to abate the conditions is described by the inspector as follows: "The area was timbered
and the magazine was moved to another area."
MSHA's Testimony and Evidence
MSHA inspector Arthur J. Parks testified that he issued the citation in
question on February 2, 1981, after he observed a magazine containing explosives situated close to a massive roof fall which had occurred in the No. 7
unit of the No. 6 entry. He stated that at least 8 feet of the roof had caved
in and a mixture of both small and large rocks had broken off. The inspector
pointed to a diagram showing the location of the violation which he had prepared from his notes after issuing the citation (Exh. G-2). He indicated that
the section magazine was sitting in a room neck that was about 10 feet deep
and 18 feet wide. There were three timbers positioned around the magazine.
Mr. Parks stated that there were cracks which ran directly from the roof fall
into the area where the magazine was located. One fracture ran almost 25 feet
from the brow of the roof fall to near the magazine. He also pointed to a
fracture on the right side of the diagram which was about 12 to 14 feet long.
He testified that these fractures indicated that the roof was about to fall.
In his opinion, the fractures were not caused by a cutting machine or other
instrument. He stated that the cutting machine marks located on the rib
opposite the magazine were distinguishable from the fractures (Tr. 7-17).

2672

Mr. Parks referred to a previously issued imminent-danger order issued
on December 22, 1980, for a violation of the roof-control plan (Exh. G-7).
In describing the conditions which led to him issuing that order, he stated
that Jesse Campbell, the foreman, had acknowledged that the roof was in
extremely bad condition but that they were proud of the fact that no one had
been injured due to rock falls. The inspector stated that he was worried
about the attitude of the mine's management because they would wait until the
roof started to break up before bolting it or timbering it (Tr. 37-41).
Mr. Parks explained the notations on Exhibit G-5 which showed the
location of prior orders and citations issued in connection with rock falls
and also showed the location of the rock falls that were reported. He indicated that these roof condition violations had all occurred in the same
general area where the citation in question occurred (Tr. 43-44).
On cross-examination, Mr. Parks admitted that his diagram of the violation (Exh. G-2) was not to ~cale and that he had not actually measured the
cracks. He agreed that the diagram showed that there were two crossbars
outby the brow of the fall and that this would be sufficient support under
the roof-control plan. The inspector testified that the plan required a
minimum of 36-inch roof bolts and that the operator was using 48-inch resin
bolts in the room neck (Tr. 67-72).
Mr. Parks stated that the three timbers around the magazine provided
additional support but not adequate protection for the magazine. He felt
that additional timbers in front of the crossbars were needed. He also
thought that the intersection leading to the magazine should only be wide
enough to let a scoop in to retrieve the magazine (Tr. 72).
Mr. Parks confirmed that a preshift inspection had taken place on
February 2, 1981. He also testified that management corrected the cited condition as expediently as possible. He admitted that he had not checked the
timbers surrounding the powder magazine to see if they were snug. He agreed
that if in fact the roof was coming down, the timbers would have been firmly
in place. The inspector also stated that he had not asked Mr. Todd why he
located the magazine in this particular position (Tr. 74-92).
On redirect examination, Mr. Parks noted that the roof-control plan
specifications were only a minimum and that additional precautions were
necessary for abnormal conditions. He felt that the conditions of
February 2, 1981, necessitated additional support. He stated that there was
just 18 inches of clearance over the top of the powder magazine (Tr. 93-94,
140). He agreed that the three posts in front of the magazine provided
additional support. He also admitted that the ribs provided some support
(Tr. 94, 143).
In response to bench questioning, Mr. Parks stated that he did not know
whether the roof had cracked before it had fallen. The roof fall had been

2673

reported on February 1, 1981. He stated that he would not have issued any
citations if the fallen crossbars had been in place, the entryway had been
20 feet instead of 24 feet wide, and the powder magazine had not been underneath the roof fall (Tr. ~04, 135-139).
Jeffrey Bivens, representative of the union, testified that he accompanied Inspector Parks on his inspection of the mine on February 2, 1981. He
testified that he observed the powder magazine which had two timbers on one
si.de of i t and one on the other. He noticed cracks running from the rock
fall into the room neck where the magazine was situated, and thought that the
fractures were caused by the weight of the roof breaking rather than by a
cutting machine. He noted that machines make very distinct markings unlike
fractures. In his opinion, the powder magazine was not adequately protected
from a roof fall, and that there were considerable problems with the roof
conditions in this area. At times, the roof would fall before it could be
supported (Tr. 106-110).
Mr. Bivens described the powder magazine as being a 5-foot by 8-foot
wooden box. It had a partition on one end with one section used for storing
electric detonators. The rest of the box was used for storing the actual
powder. The magazine was moved around the mine by a scoop. He had never
observed this particular magazine in this position prior to February 2, 1981,
although he had seen similar magazines stored in other niches with posts
around them. In these other areas, when there were adverse roof conditions,
extra steps had been taken to protect the magazines. He did not know whether
the three posts surrounding the magazine in question had been installed in
connection with the roof fall or prior to it (Tr. 116-120).
Charles Willis, a member of the safety committee, testified that he was
shown all the conditions, including the cracks and the roof fall, which led
to issuance of the citation in question. He stated that he has been around
underground mining for about 22 years, although he does not work underground.
Mr. Willis testified that the fractures were probably caused by the stress
of the fall when it took weight in the entry. He stated that a cutting
machine would make a wide, straight cut and that these cracks were circular
and narrow. Mr. Willis testified that he was aware of problems with the roof
and that No. 7 unit was having more problems than the other units at the time
(Tr. 123-128).
Operator's Testimony and Evidence
Finis Todd, a section foreman for Peabody Coal Company, testified that
he had arrived at the No. 7 unit around 4 o'clock on February 2. After
making an onshift examination and noting that the powder magazine was in
"good shape and adequately protected," he was told that Inspector Parks and
Jim Young wanted to see the powder box. Upon finding Mr. Parks, he was told
about some voltage cable violations. After correcting these, he returned to
the No. 6 entry and saw Jim Young setting up a row of timbers across the
intersection, as part of the additional support ordered by the inspector.
Mr. Todd testified that he then found Mr. Parks in the crosscut between the

2674

No. 2 and No. 3 entries and was sho~m some cracks which needed bolting or
timber:i.ng before he could run the entry. Since he did not have a trussbolt
operator, Mr. Todd decided to move the unit to the rooms on the return side.
He ordered the scoop operator to knock the timbers out and remove the powder
magazine from the room neck in the No. 6 entry. Mr. Todd described the
powder box as being 6 feet wide and 8 feet long and 36 inches in height, and
it was located about 4 feet from the intersection. After informing Mr. Parks
of his action, the inspector told him he was issuing a section 104(d)(l)
order on the powder magazine even though he had moved it. Mr. Todd state-cl
that he was baffled because i t was the first time that he knew anything about
the citation on the powder magazine (Tr. 145-157).
Mr. Todd testified that the rock fall in the No. 6 entry posed no danger
to the powder magazine. The roof had been crossbarred prior to the rockfall
and the area outby the crossbars was hard and sounded good. He indicated
that the cracks on the left side of the entry were small and did not run
toward the powder box while the cracks on the right side were caused by the
cutter bar butting the roof while cutting the corner of the inby rib.
Mr. Todd testified that the area of the roof fall was in conformance with the
roof control plan except for the wide crosscut. He stated that this wide
area did not constitute any danger to the powder magazine sitting in the room
neck. The powder magazine also had the face and left rib of the room neck
for support (Tr. 158-169).
Mr. Todd testified that the roof was draw rock and that it would crack
up as soon as coal was extracted or even a week afterwards. He indicated
that header boards on each pin were used to keep the draw rock from breakj_ng
up, and that they had discovered a pattern of slips in the roof from the
roof falls which had occurred earlier in the year. In the No. 6 entry they
noticed water leakj_ng in the top and had set two rows of timbers down the
middle of it (Tr. 167-179).
On cross examination, Mr. Todd admitted that the face and rib support
around the powder box would not help if the roof fell. He also stated that
the magazine was not literally snug against the corner since a timber
separated the magazine from the back wall. He testified that the pattern of
slips was used to predict the next area of slips. Once they found the top
breaking up they would trussbolt it. He stated that the February 2 fall was
impossible to predict since the only indication of bad condition was the
water coming out of the top (Tr. 190-196).
Jim Allen, safety manager for Peabody Coal testified that he had prepared respondent's Exhibit 4 showing the area of the roof fall in the No. 6
entry. He had investigated the circumstances surrounding the issuance of the
104(d)(l) order and took down measurements and observed the roof conditions.
Mr. Allen stated that the mouth of the crosscut measured 25 feet and that
this was a violation of the roof control plan. He testified that the timbers
around the powder box was a practice initiated under an old enforcement
policy which was no longer in effect (Tr. 230·-334).

267ti

On recall, Mr. Parks testified that he did not dispute Mr. Todd's
testimony that one rib was deliberately cut down with a cutting machine. He
agreed that it was sheared by the machine to allow the shuttle car to come
around it. He indicated that the stress cut ran through the crack made by
the cutter, and was bad enough to indicate a potential roof fall
(Tr. 260-261).

Findings and Conclusions
Contestant has challenged the section 104(d)(l) Citation No. 1032760
issued to it for an alleged violation of 30 C.F.R. § 75.1306. Section
104(d)(l) of the Act provides in part, that
(d)(l) 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.
Therefore, in order for the citation in question to be valid, MSHA bears the
burden of showing that a violation of 30 C.F.R. § 75.1306 existed, that it
was of such a nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health hazard, and it
was caused by the unwarrantable failure of the operator.
Fact of Violation
Peabody Coal Company is charged with a violation of 30 C.F.R. § 75.1306,
which provides as follows:
When supplies of explosives and detonators for use in
one or more working sections are stored underground, they
shall be kept in section boxes or magazines of substantial
construction with no metal exposed on the inside, located at
least 25 feet from roadways and power wires, and in a dry,
well rockdusted location protected from falls of roof,
except in pitching beds, where it is not possible to comply
with the location requirement, such boxes shall be placed in
niches cut into the solid coal or rock.
Under this standard, MSHA must show first that the powder magazine in question was located in an area where there was a possible danger of a roof fall.
Once this fact is established, the Secretary must prove that the magazine was
not adequately protected from a potential roof fall.

267fi

The evidence of record indicates that the No. 7 unit, in which the
alleged violation occurred, was the site of five reported roof falls in the
previous 4 months (Exhs. G-6 and G-7). The most recent roof fall of
February 1, 1981, had taken place next to an intersection which bordered the
roomneck in which the powder magazine was located. Cracks and deteriorated
roof were visible and extended from the area of the roof fall into the
roomneck containing explosives. While the operator contends that these roof
fractures were caused by a cutting machine rather than by the stress of the
roof fall, the testimony and evidence supports an opposite conclusion. 'l;'he
inspector stated that the cracks originated at the brow of the fall and ran
almost 25 feet to the magazine. Jeffrey Bevins substantiated this observation. Mr. Willis testified that they had been having problems with the :roof
in No. 7 unit and that he had been shown the cracks by Mr. Parks on
February 3, 1981. Additionally, he described the cracks as being narrow and
noted that those made by cutting machines are usually 6 to 7 inches wide.
Mr. Bevins also indicated that cutting machine fractures were very distinct
from stress fractures. Therefore, even though Mr. Todd asserted that there
was only a small stress crack which did not run toward the powder box and
another crack which had been caused by a cutter bar, the preponderance of
the evidence warrants the conclusion that the roof near the powder box contained deteriorated or fractured roof. The description of the cracks, their
location, and the inspector's familiarity with roof conditions and potential
problems indicates that there was a possible danger of a roof fall in the
area where the powder magazine was located.
The issue then becomes whether the magazine was adequately protected
from a roof fall. While Mro Todd initially contended that the face and left
rib of the room neck provided support for the powder magazine, he later
admitted that these surfaces would give no protection in the event of a roof
fall. Roof bolts but not crossbars had been placed in the roof over the
powder magazine. The three timbers that surrounded the explosive's box provided the only protection for it. Considering the history of roof falls in
this entry and the fact that the inspector cited the operator with a violation of the roof control plan on this same day near the same intersection
shared by the roomneck in question, the operator should have provided the
powder magazine with additional protection. The method of abatement which
included timbering and correcting the wide entry in the intersection indicates that such additional protection was possible. Under the circumstances
of this case, I find that MSHA has established by a preponderance of the
evidence that there was a danger of a roof fall and that the powder magazine
was not adequately protected. Accordingly, a violation of section 75.1306
has been established and the citation is AFFIRMED.
Significant and Substantial Contribution to the Cause and Effect of a Mine
Safety Hazard
In Secretary of Labor v. Cement Division, National Gypsum Company,
3 FMSHRC 822, 825 (1981), the Commission defined the phrase significant and
substantial violation as being one if, "based upon the particular facts
surrounding [the] violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably

267'1

serious nature." In making this determination, the Commission noted that
"the inspector's independent judgment is an important element in making
significant and substantial findings, which should not be circumvented."
Here the facts show that there was a danger of a roof fall in the area
where the powder magazine was located. As the inspector stated in his
-report, "there is enough evidence to believe that the intersection might
fall." (Exh. G-2). If a roof fall had occurred over the magazine, the
explosives could detonate causing fatal injury. Since the inspector found
that over 10 persons could have been affected by such an explosion, this violation presented a hazard that was of an extremely serious nature. Leaving
aside the inspector's opinion on this violation, I find that the fact of
violation, together with the fact that men worked in this entry satisfies
the Commission's requirements for a significant and substantial violation.
Any explosion in a mine could result in an injury of a reasonably serious
nature. Therefore, MSHA has established that the violation of section
75.1306 was of such a nature a~ could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health
hazard.
Unwarrantable Failure
A violation of a mandatory standard is caused by an unwarrantable
failure to comply with the standard where "the operator involved has failed
to abate the conditions or practices constituting such violation, conditions
or practices the operator knew or should have known existed or which it
failed to abate because of lack of due diligence, or because of indifference
or lack of reasonable care." Zeigler Coal Company, 7 IBMA 280, 295-296
(1977). The evidence in this case, while not showing indifference on the
part of the operator, does show knowledge of deteriorating roof conditions
and a lack of reasonable care.
The inspector listed several factors which led to his issuance of an
unwarrantable failure citation. The roof was cracked and broken and should
have been observed by the operator. Additionally, the powder magazine was
located near a roof fall and near an obvious violation of the roof control
plan in that a crosscut was too wide. The inspector testified as to prior
roof falls and the general bad condition of the roof. He stated that he was
worried about the attitude of the operator and its employees. They were
proud of the fact that no person had been injured due to rock falls. If the
roof started breaking, they would then bolt it or timber it, but they would
not take any preventative measures (Tr. 37-41). Jeffrey Bevins verified
this practice of "wait and see" by the operator. He noted that there had
considerable problems with roof falls, bad tops and fractures, and that "it
fell in before we could do anything." (Tr. p. 111).
The operator's witness, Mr. Todd, testified that it was impossible to
predict the fall of February 2, 1981, since the only indication of a Lad
condition was the water coming out of the top (Tr. p. 176). He stated that
they had been studying the pattern of slips and trussbolting the roof

2678

according to the pattern of roof falls. Since the area where the powder
magazine was located was outside the predicted roof fall zones, they had not
considered it to be dangerous (Tr. 209).
Having considered the testimony and evidence presented, it is apparent
to me that the operator was aware of the bad roof conditions in the No. 6
entry. I have found that the powder magazine was not adequately protected
and the resulting explosion could result in serious injury and I find that
the violation of section 75.1306 was caused by the unwarrantable failure of
the operator. Accordingly, the citation issued under section 104(d)(l) is
valid.
Civil Penalty
Negligence
Although I have found that the violation of section 75.1306 was caused
by the unwarrantable failure of the operator, I do not conclude that the
operator was grossly negligent. The facts show that the operator had provided some protection for the powder magazine in that three timbers
surrounded it. The operator contends that the roof around the magazine was
not deteriorated and it was not necessary to put up crossbars or additional
timbers. While I do not agree with this latter contention by the operator,
I find that the failure to exercise reasonable care with regard to the powder
magazine constitutes ordinary negligence.
Gravity
The finding that this was a "significant and substantial violation"
warrants the conclusion that this was a serious violation. As Mr. Parks
noted in his report, even if the roof fall itself did not cause an explosion,
the aftermath of the roof fall or subsequent recovery of the magazine might
cause the powders to detonate. (Exh. G-2). Accordingly, this violation was
serious.
Good Faith Compliance
The inspector stated in his report the violation was abated within the
time specified and he considered this to be normal compliance. At the
hearing, however, Mr. Parks testified that mine management corrected the
condition as quickly as possible once the violation was brought to their
attention. This indicates rapid-compliance and I have considered this in
assessing the penalty for this violation.
Size of Business and Effect of the_?enalty on ReDpondent's Ability ~o
Continue in Business
The parties have stipulated that Peabody Coal is a large operator and
that the penalty which I impose will not affect its ability to remain in
business. I have adopted this stipulation in making my assessment of a civil
penalty.

2679

History of Prior Violations
The assessed violation history report filed in this proceeding indicates
a rather extensive history of violations in the 2 years preceding the issuance
of the citation in question. Particularly, I have given considerable weight
to the fact that the company was cited for five roof control violations in the
No. 7 unit during a 4-m.onth period ending with the February 1, 1981, roof fall.
This history of roof falls is reflected in the civil penalty assessment.
Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude that a
civil penalty in the amount of $1,000 is reasonable and appropriate for
Citation No. 1032760, and respondent is ORDERED to pay the penalty within
thirty (30) days of the date of this decision •

~~~~

~~e C- Koutras

.

Administrative Law Judge

Dist ri bu t i on:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of
Labor, U.S. Courthouse,.801 Broadway~ Room 280 9 Nashville, TN 37203
(Certified Mail)
Thomas R. Gallagher, Esq. 9 Peabody Coal Company, Box 235 9 St. Louis,
MO 63166 (Certified Mail)

2680

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

22041

Complaint of Discrimination

CARROLL D. TENNEY,
Complainant

Docket No. WEVA 80-279-D

Vo

EASTERN ASSOCIATED COAL CORPORATION,
Respondent

Federal No. 2 Mine

DECISION
Appearances:

J. Montgomery Brown, Esq., Attorney at Law,
Fairmont, West Virginia for Complainant,
R. Henry Moore, Esq., and Sally S. Rock, Esq.,
Pittsburgh, Pennsylvania, for Respondent.

This proceeding arises under section 105(c) of the Federal Mine Safety
and Health Act of 1977. A hearing on the merits was held in Morgantown,
West Virginia, on August 25, 26, 27, 1981, and September 9, 10, 1981, at
which both parties were represented by counsel. On September 10, after
consideration of evidence submitted by both parties and proposed findings
of fact and conclusions of law proferred by counsel during closing argument,
a decision was entered on the record without benefit of transcript. This
bench decision appears below as it appears in the transcript aside from
minor corrections:
PROCEDURAL BACKGROUND AND STATEMENT OF THE CASE
This proceeding was initiated by the filing of a complaint in letter
form by Mr. Carroll D. Tenney on April 9, 1980. Mr. Tenney had previously
filed a complaint of discrimination with the Mine Safety and Health Administration. By letter dated February 5, 1980 (Exh. R-9), MSHA advised Mr. Tenney
that after an investigation it had been determined that a violation of section 105(c) had not occurred. Under the Federal Mine Safety and Health Act
of 1977, a complaining miner has an independent right to bring a complaint
and this proceeding is based on that right. The Complainant contends that
he was discharged because of his activities as a safety committeeman for
approximately 3-1/2 years during the period 1974-1977 and for otherwise
insisting on rigid safety practices during his tenure as an employee of the
Respondent. The Complainant alleges that there were several instances where
he had either been disciplined or harrassed for his safety activity and that
he was discharged by Respondent in retaliation therefor. He also alleges
that his discharge which resulted from his admitted refusal to obey an order
on November 30, 197 9, to walk down a haulageway to his work place, was a
setup, that is, it resulted from a plan or a conspiracy set up by Respondent's management to effect his removal.

2681

Respondent denies the various allegations made by Complainant, denies
that Complainant's discharge was the result of a conspiracy, and contends
that Complainant made no safety complaint on November 30, 1979. Respondent
charges that Complainant did not refuse to walk down the haulageway for
safety reasons, but that he based his refusal on his right under the Union
contract to be given a ride to his work place. If this contention is valid,
then Mr. Tenney's remedy would appear to be confined to the grievance and
arbitration procedures provided in the labor agreement.
Respondent also contended that Mr. Tenney's evidence should be limited
to allegations of discrimination within the period of the statute of limitations and that the Complainant should not be permitted to attempt to prove
a course of discriminatory conduct going back some 10 years. 'Ihe Respondent's motion in limine to so limit Complainant's evidence was denied by me
by order dated~y 20, 1981, in which I held that such evidence of prior
incidents might be relevant to establish discriminatory motivation. This
ruling, I must note at the outset, may be contrary to the decision of the
Mine Safety and Health Review Commission in Local Union 1957, UMWA v.
Southern Ohio Coal Company, 2 FMSHRC 3472 (December 9, 1980), which held by
clear implication, although not expressly stated, that discriminatory motivation is not an essential element of proof for a complainant in a discrimination proceeding, even under the 1969 Act.
The primary and decisive issue is whether the Complainant on November 30,
1979, at the time he refused to obey an order from his foreman, Augustine
Nunez, to walk a haulageway to his work place, was engaged in a protected
activity. A subsidiary question is whether Complainant raised the issue of
safety at this time, or more generally, whether any safety complaint or
description of unsafe conditions was raised by Complainant. Other questions
which were litigated in this proceeding were whether or not the haulageway
in question was safe, whether or not Mr. Tenney was a satisfactory employee,
whether or not there was evidence of a pattern of harrassment on the part of
the Respondent directed against Mr. Tenney because of his activities as a
safety committeeman or otherwise because of his safety practices, and whether
or not Respondent treated Mr. Tenney differently from other employees
similarly situated in connection with his discharge as well as other incidents which Mr. Tenney has complained of during the period 1974 through 1979.
To establish a prima facie case of discrimination under section 105(c)
of the Act a complainant must establish by a preponderance of the evidence
(1) that he engaged in a protective activity and (2) that the adverse action
was motivated in part by the protected activity. Pasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980). Complainant must establish these elements by a preponderance of the evidence, Secretary of Labor v.• Richardson,
3 FMSHRC 8 (January 19, 1981).
At the outset of the hearing the parties stipulated that Complainant
worked at Respondent's Federal No. 2 Mine until he was discharged on
November 30, 1979. 'Ihe parties subsequently stipulated that his employment

268:~

commenced in 1969, and I would footnote that it appears that Mr. Tenney
actually was discharged on December 3, 1979, based on incidents which
occurred on November 30, 1979. The parties also stipulated that this
federal agency has jurisdiction over the parties to and the subject
matter involved in this proceeding and, with respect to Complainant, that
he had not been employed by Respondent since November 30, 1979, that on
November 30, 1979, Complainant was working on the day shift, and that
Complainant served on the mine safety committee from January 13, 1974,
through April 13, 1977. In addition, the parties stipulated that Respondent has a payroll of 650 employees, that employees of Respondent other
than Mr. Tenney have in the past received disciplinary slips for failure to
clock in and for unsatisfactory performance of duties, and finally, that
the distance that Mr. Tenney was ordered to walk on November 30, 1979, was
2,500 feet and that the distance Mr. Tenney had been ordered to walk in
another incident on February 17, 1977, was 6,700 feet.
The general parameters of the factual material relevant in this proceeding were covered from Complainant's standpoint, by Mr. Tenney's initial
pleading herein, and by his testimony.
ANALYSIS OF THE EVIDENCE AND PRELIMINARY FINDINGS
Mr. Tenney is presently 37 years of age and he has a high school education. He is married and has three children and he has worked only 2 weeks
since November 30, 1979. He has been employed as a general inside laborer
and (he thereafter) progressed to the top paying job at the mine, roof-bolt
machine operator. His total mining experience has been over a period of
approximately 12 years. Mr. Tenney was originally employed at the Federal
No. 2 Mine of Respondent from August 1968, to March of 1969, at which time
he was discharged for illegal picket line activity. Subsequently, he was
rehired by Respondent at its Federal No. 1 Mine where he worked for approximately 8 months at which time he returned to the Federal No. 2 Mine where he
worked as a general laborer for several months and then became a roof bolter.
With respect to the incidents of November 30, 1979, Mr. Tenney testified that at this time he was a roof bolter on the day shift and he arrived
at work at 7:30 a.m. At approximately 10 minutes to 8, the cage (elevator)
took h.im to a waiting room in the A-section where his roof-bolter helper,
Jimmy Moore, and his foreman, Augustine Nunez, were waiting. Approximately
four blocks from the waiting room is an 80-foot block area with steel doors
on one side called the "transportation foreman's shanty." This shanty is
shown as "X" on Exhibit R-2, a map of the mine. Mr. Tenney had not previously
worked with Nunez as his foreman, other than the day before, November 29,
1979. An area called "old eleven switch," located about 2,500 feet down the
haulageway in question from the "shanty", was the projected work place for
Tenney and Moore, it being the same place they had worked the day before.
On November 29, Tenney, Moore and Nunez had been transported from the shanty
to the old eleven switch by a supply jeep driven by one John Long. According
to Mr. Tenney, on November 30, the transportation foreman, Ed Jones, told
Nunez that the jeep would be "down" an hour to an hour and a half. Nunez
then told Moore and Tenney that no transportation was available and said

"We' 11 have to walk." Tenney said, "I told Nunez we would not walk up
there." Tenney said, "I told Nunez under the contract we were entitled to
a safe ride up there." I footnote at this juncture that Respondent's witnesses deny that Mr. Tenney used the phrase "safe ride" and allege that he
only used the word "ride." Based upon subsequent holdings herein, I find
this to be a distinction without a difference insofar as the resolution of
the ultimate issues are concerned.
Mr. Tenney (testified) that the top in the area was low, that it had
fallen in several times, that it had to be repaired constantly, and that the
track had curves and bends in it. Mr. Tenney said he knew of the conditions
along the haulageway as a result of his having been on the safety committee
and that after his tenure as committeeman he had heard rumors that there had
been falls. Mr. Tenney indicated that he kept close watch on the bulletin
board after he was removed from the safety committee to see what kind of
violations were being written and where. This accounts for his awareness of
conditions in the mine and presumably along the haulageway. Mr. Tenney also
testified that in May 1979, he injured his neck and had 3 days of therapy
at a hospital in October 1979. Because of a low top along the haulageway,
he did not want to bend over and reinjure his neck. Other complaints
expressed by Mr. Tenney concerning the haulageway during this proceeding
were that the crosscuts along the haulageway which were designated as "manholes" contained cribs and posts which would cause a "hassle" for a miner
walking along the haulageway to get into and out of the way of any incoming
or outgoing motor or other vehicle traveling along the haulageway. Mr. Tenney
mentioned that there had been incidents where portal buses had run into each
other in this area and that on one occasion after a portal bus had run into
a wire Respondent had cut down the height of the portal buses.
With respect to the conversation he had with Foreman Nunez, Mr. Tenney
indicated that both Moore and he told Nunez that they would not walk the
haulageway and that Nunez then called outside and other work was obtained
in another area where cribs had fallen down creating an emergency. This
development which is critical will be discussed at greater length
subsequently.
Mr. Tenney indicated that from 8:10 a.m. to 10:30 a.m. he and Moore
performed the emergency work, sometimes referred to in the record as "crib
work," and that approximately 15 minutes into this work he and Moore saw
the supply jeep which was reported to be broken down.
Thereafter, at approximately 10:30 a.m., Moore and Tenney returned to
the shanty which was occupied by Nunez, Dale Gallagher, the general assistant
mine foreman, foreman Gene Lamb, and foreman Frank A. "Rock" Hudson. According to Tenney, Nunez came out of the office and said, "You' re going to have
to walk." Nunez said that the jeep was at One West. Tenney asked how long
it would be before the jeep would return. At this point, Gallagher came outside and said, "It would make no difference, you' 11 have to walk." According
to Tenney, he said to Gallagher "I want a safe ride to my working section,"
and Gallagher said, "If you're not going to walk get your bucket and let's

2684

go." Being told to "get your bucket" in terms of the parlance or jargon
prevalent in the Federal No. 2 Mine means that a miner is being subjected
to some form of disciplinary action.
Significantly, Mr. Tenney admitted that on the way out of the mine
Mr. Gallagher said to him, "Take my advice and walk," to which Mr. Tenney
replied that he would not walk.
When Gallagher and Tenney arrived at the office of the general mine
foreman, Clifford Dennison, according to Tenney, while he was waiting for
Dennison, he told Gallagher that he wanted a mine committeeman to go in with
him. The events which occurred in Hr. Dennison's office are the subject of
some dispute and findings will be made subsequently with respect thereto.
Suffice it to say at this point that Mr. Tenney .indicated that he complained
in terms of safety to Mr. Dennison, which is denied by Mr. Dennison and by
the assistant mine foreman, Mr. Gallagher. At this time, Dennison filled out
a disciplinary slip entitled "Notice of Improper Action" (Exh. C-10 a) which
appears to originally have been completed showing, "disobeying order," and
changed to "disobeying safe and reasonable order," with the word "order" as
originally used, being stricken. Complainant contends that this shows that
the subject of safety was brought up in Mr. Dennison's office which is why
the change was made.
Mr. Tenney went on to describe various incidents which occurred. during
his employment, commencing with his discharge for illegal picketing on
March 28, 1969, and his receiving a discipline slip for unsatisfactory work
on November 28, 1969, which, because of its remoteness, I find is irrelevant
to the issues involved in this proceeding either to show a pattern of
harrassment, discriminatory motivation or the quality of employee
Complainant was at anytime material herein.
In one incident which occurred on May 8, 1974, Mr. Tenney was observed
engaging in an unsafe practice when he walked under a boom and he was given
a disciplinary slip. Mr. Tenney admitted. committing this infraction and filed
no grievance or complaint as a result thereof. Mr. Tenney also admitted that
it might be an unsafe act and, in vague terms, indicated that no grievance
was taken in order not to influence others into engaging in the same practice,
or words to this effect.
In connection with this May 8, 1974, incident,
Mr. Tenney was observed by Mr. George Tippner, an assistant mine foreman, who
testified that at the time he mentioned to Tenney that it was a violation of
company policy and federal law to walk under an unblocked piece of equipment.
Mr. Tippner indicated that this was a flagrant violation and that since
Tenney was on the safety committee at the time it set a bad example.
Mr. Tenney also testified concerning his receiving a disciplinary slip
on September 20, 1975, for failing to clock out. He admitted that he forgot
to punch out and that he filed no grievance with respect to this incident.

Mr. Tenney also described an incident which occurred on October 23,
1975, when he was running a transfer feeder under the supervision of foreman
Rock Hudson. According to Mr. Tenney, the belt would not run because coal and
dust had pushed the belt off of the rollers. Mr. Tenney turned the power off
after which Hudson came down to the belt and asked what was going on. According to Mr. Tenney, Hudson told him not to shut the belt down again and if he
did it again he, Hudson, would "kick his ass." Mr. Tenney filed no grievance
or complaint with respect to this incident, although he did apparently discuss
the matter with his safety committee chairman. Mr. Tenney received no disciplinary slip as a result of this episode. Mr. Hudson, in his testimony,
denied that he reprimanded Mr. Tenney on this occasion and I find, after considering the testimony of Mr. Tenney and Mr. Hudson, that no reprimand was in
fact given, that any harsh language, if such was used by Mr. Hudson, was not
disciplinary in nature, and that Mr. Hudson's concern about the belt being
shut down was justified.
I find that this incident, as well as all those previously discussed in
1969, 1974, and 1975, involved no harrassment on the part of the Respondent
directed toward Mr. Tenney. Nor is there, in any of the conversations which
occurred during these episodes, evidence of discriminatory motivation or an
anti-safety frame of mind on the part of the Respondent. Indeed, most if not
all of these infractions were admitted by Mr. Tenney.
Proceeding now to subsequent episodes related by Mr. Tenney, on
January 28, 1977, while he was still on the safety committee, Mr. Tenney
testified he received two slips, one for not punching in, one for not punching out. Mr. Tenney claims with respect to this incident that he did not
know they were in his personnel folder until he was discharged and it came
up at his· hearing. I find no evidence of harrassment, discriminatory motivation or animus towards Mr. Tenney generally contained in this episode based
on the evidence presented, nor do I find that it played a part in Mr. Tenney's
being discharged in view of the testimony of John Hetrick, the mine superintendent, who indicated that he gave no weight to it at the Step 2 stage of
the grievance procedure. More specifically, I find that Hetrick' s decision
to effectuate the discharge of Tenney at this stage of the grievance procedure was based on the fact that Mr. Tenney in a similar situation on
February 18, 1977, had refused to obey an order to walk to his work place
and was disciplined. This episode will likewise be discussed in more detail
subsequently.
Mr. Tenney contends that part of the Respondent's pattern of discrimination directed towards him for his engagement in safety activities was the
fact that he was removed from the safety committee in February 1977. As a
mine safety committeeman, Respondent's evidence shows, Mr. Tenney had more
power than other miners in the mine including the power to close the mine in
the event of an imminent danger. On December 29, 1976, Mr. Tenney exercised
this power when he handed the general mine foreman a report stating that an
imminent danger existed on Section Six Left. The details of this incident
are best described in Exhibit R-10 which is the Arbitrator's Decision dated
April 13, 1977, upholding Mr. Tenney's removal from the safety committee at

268f;

the request of Respondent for the reason that Mr. Tenney's action in closing
down the section was arbitrary and capricious. The burden of proof on the
Respondent in the Arbitration Proceeding to effectuate the removal of Tenney
as safety committeeman was to show that his actions were arbitrary and
capricious. At Page 15 of Exhibit R~lO, Arbitrator Jay Scott Thorpe stated
that Tenney was confronted with three alternatives under the contract in
seeking a cure to the problem involved:
First, he could proceed as he did, by declaring an
imminent danger, and facing the possible consequences of
being removed from the safety commit tee.
Secondly, he could
file a safety grievance, and let an arbitrator decide the
matter if the company failed to lay the necessary track.
If
such a grievance had been filed in the past, the matter
might have been long since resolved.
Thirdly, Tenney, or any
of the other employees in the section (particularly those who
testified that an imminent danger existed), if they had
reasonable grounds to believe that they were required to work
under conditions abnormally and immediately dangerous to
himself beyond the normal hazards inherent in the operation
which could reasonably be expected to cause death or serious
physical harm before such condition or practice could be
abated, had the right to notify their supervisor of such a
belief under Article III, Section (i)(l), and if the situation was not corrected, could be relieved from duty.
None of
the persons on the sec ti.on, including Tenney, availed himself
of this remedy.
The Arbitrator went on to indicate that the declaration of an imminent
danger must not be based on mere whim or will of a safety committeeman and
found that, "Tenney's action was without fair, solid and substantial cause
and was not based upon the rules fixed by the contract and therefore must be
considered arbitrary and capricious."
Mr. Tenney testified in the instant proceeding that he was thinking of
taking action against the Respondent for having him removed from the safety
committee but that he was fired before it went through. Mr. Tenney indi~
cated that after he was removed from the safety committee, shortly thereafter
he was taken off of roof bolting by Respondent and thereafter he worked
approximately 90 percent of the time shoveling. Other duties he performed
were picking up papers on the section, driving a truck, and similiar chores.
On February 18, 1977, Mr. Tenney was given a disciplinary slip for
refusing to walk to his work place (see Exhs. R--6 a, b, and c). Th.is inci-dent, together with the episode involving his removal from the safety com~
mittee, constitute the very critical incidents out of the numerous episodes
which Mr. Tenney has listed--from the standpoint of the issues involved in
this proceeding. The disciplinary slip indicated Mr. Tenney was to be
suspended for 5 days with intent to discharge. Respondent has clearly
established that insubordination or a miner's refusal to obey any direct

268'1'

order is a dischargeable offense and not subject to what is called the
Respondent's "progressive disciplinary plan" which for minor infractions
requires preliminary warnings and a progressive upgrading of discipline
before a miner can be discharged.
Mr. Tenney's punishment for refusal to walk on February 18, 1977, became
the subject of a grievance filed by Mr. Tenney on March 7, 1977. The Arbitrator's Opinion and Award (Exh. R-13) sets forth the salient details of this
episode and Pages 2 through 5 thereof are incorporated herein by reference.
See At tac hmen t "A" •
I find that in the respects material to this proceeding the incident of
February 18, 1977, is similar to the circumstances involving Mr. Tenney's
refusal to walk in this proceeding. The critical provisions of the National
Bituminous Coal Wage Agreement of 1978 (Court Exh. 1) was involved in both
episodes. Article III, section (0)8 of this contract provides: "The
employer shall provide a safe man trip for every miner as transportation in
and out of the mines, to and from the working section." Harold G. Wren, the
Arbitrator, reached the following conclusions:
For several reasons, the Union's argument that the
Company is required at all times to provide transportation
for miners to their work stations must be rejected. In the
first place the clause in the contract is found in
Article III, dealing with matters of "Health and Safety."
Its purpose is to insure the safety of every employee; it
does not purport to confer an additional benefit on the
employee. To the extent that an employee can proceed to and
from his work station safely during the course of his working
hours, the company is not required to provide vehicular
transportation. There may be situations where considerations
of health and of safety would require that the company provide
some form of motor transportation. But in the case before us,
Grievant was capable of walking to his work station without
jeopardizing the health or safety of himself or other
employees."
Secondly, the clause is concerned with transits "in and
out of the mines" and "to and from the working section."
These phrases refer to those activities occuring at the
beginning and end of every shift.

*

*

*

*

*

*

*

Thirdly, to construe section (0)(8) in the manner that
the Union suggests would place an unrealistic burden on the
Company's facilities for its day-to-day operations. While
management may be expected to utilize the various types of
motor transport within the mine to aid employees as much as
possible, normal considerations of efficient operation require

2688

that the transportation facilities be used primarily to meet
the needs of production. Transportation of personnel within
the mine during the course of a particular shift must
necessarily take a second priority to the Company's operational requirements. It was not unreasonable for the company
to ask Grievant to walk to his work station, a distance of
6,700 feet, or approximately 1.27 miles. Grievant knew the
area well.
The Arbitrator went on to find Mr. Tenney "technically guilty of
insubordination" and concluded that a punishment of 4 days (Respondent
after investigation had reduced the initial 5-day suspension, Exh. R-6)
was too severe for such an infraction.
Finally, with respect to the listing of incidents relied on by Mr. Tenney
to show either harrassment, discriminatory motivation, or disparate treatment,
three final episodes of exceedingly minor importance will be mentioned.
Mr. Tenney testified that sometime in the winter of 1978 Bill Lemley,
who is believed to be either mine foreman or assistant mine foreman at the
time, caused an unsatisfactory work slip to be given to Mr. Tenney. A
grievance was filed, according to Mr. Tenney, but management removed the
slip at the conference stage of the procedure.
Again, in August 1979, Mr. Tenney recalls an incident where he observed
an unsafe practice and caused it to cease. In his testimony and in his initial complaint herein, this incident is described. According to Mr. Tenney,
he was working on One West Transfer. The transfer was about 10 blocks from
the section. On this day, the supply crew was putting supplies on the sec·tion. At quitting time, Mr. Tenney went to the track where they had left
him off that same morning. In his complaint, Mr. Tenney goes on:
I waited for the bus to catch a ride back. The supply
crew was coming out, and I saw cap lights all over the two
motors. The men, including Jack Shear the foreman, were
riding on the motors, on the bumpers and in the deck with
the motormen. This is against state and federal law. When
they got to me they said, 'get on, 1 I said no, I would not
ride the motor out because it was dangerous to ride out like
that. The boss said to bring the bus up, and we rode out on
the bus.
Again, in his testimony and in his initial complaint a final incident
was described by Mr. Tenney as follows:
On September 18th, 1979 they switched me from day shift
to afternoons. I told them that, according to the contract,
they should not put me on afternoons, because they had general
laborers bolting on the day shift, and I was a classified
bolter. I told the superintendent that they had made a mistake, and that they needed to switch me back to day shift.

268~J

After telling them that I was going to file a grievance, they
told me that they would check with Joe Luke tic and find out if
they had made a mistake. Evidently they checked, found they
had made a mistake and placed me back on day shift. I feel
this was another form of harrassment."
I find these last two incidents more as evidence that the Respondent did
not interfere with or attempt to stop Mr. Tenney's ultra-safe approach to
safety, and the last event was one where the Respondent apparently acquiesced
to another one of Mr. Tenney's demands without any evidence of rancor or
other reaction indicating anger or a retaliatory frame of mine.
Mr. Tenney in his testimony and in his initial pleading described a
final episode which occurred on the same day as the last incident described,
September 18, 1979. According to Mr. Tenney,
There was another incident where I refused to work in an
unsafe condition. A crew of men were sent to pick up all the
trash in a given section. A foreman told me to pick up trash
on the wire side. I said the wall was not guarded, and I
wouldn't work under it. So, I worked on the clearance side
while three or four men worked under the wire.
This incident, as well as the preceding three incidents, show not the
pattern of harrassment as contended by Mr. Tenney, or continuing animus on
the part of Respondent, but rather they show a pattern of the Respondent's
foremen acquiescing to Mr. Tenney's demands, one of which was a contract
demand. This completes the listing of numerous episodes raised by Complainant some of which will be discussed subsequently herein insofar as they
relate to other issues. It is found that these incidents, whether considered individually or cumulatively, do not establish a pattern of harrassrnent by Respondent.
Returning now to the critical incident on November 30, 1979, which
resulted in Mr. Tenney's discharge, his claim that a conspiracy existed
primarily must rest on the testimony of then transportation foreman, Edward
Jones. Mr. Jones testified that on November 30 he arrived at the mine at
6 a.m., at the shanty at 6:45 a.m., and that he received a call from
Clifford Dennison, the general mine foreman. In his testimony, Mr. Jones
was inconsistent as to the exact time this phone call took place, but indicated that Dennison told him "not to give Tenney transportation back to the
job," or words to that effect. According to Jones, Dennison gave no reason.
Jones said, "I knew the reason, it was because Tenney was on the safety
committee." Jones said that, "we've been holding it against Tenney since he
was on the safety committee." Jones then told Tenney that no transportation
was available.
Mr. Jones then testified that Tenney and Moore went down to repair the
cribs and that when th~y came back he told Jimmy Moore, "you'd better get
away from here, because Tenney is going to get fired." I footnote that

26BO

Jimmy Moore did not confirm this latter testimony. Mr. Jones said that later
in the day he heard Mr. Gallagher and Mr. Dennison talking in the shanty and
they said something to the effect, "Well we finally got him." Mr. Jones
said that they talked and joked about it.
Jones indicated that he had filed a "law suit" with the Equal Employment
Opportunity Commission against Respondent for race discrimination (he is a
Negro), harrassment on the job, and age discrimination (he is 56 years old).
This EEOC proceeding was filed sometime from July-September 197 8, or mor:e
than a year before the Tenney discharge.
The EEOC proceeding is still
pending.
Mr. Jones was transportation foreman from November 1979, until
July 2 5, 1981.
The roof-bolter helper for J:.tr. Tenney on November 30, James E. (Jimmy)
Moore, likewise is an important Complain.ant's witness. On November 30,
according to Mr. Moore, after Nunez ordered him and Tenney the first time
(at approximately 8:15 a.m.) to walk up the haulageway to their work place,
Tenney said he was not going to walk and that it was unsafe to walk up there.
Moore said that Nunez got on the phone and talked to Gallagher at this point
and that subsequently he and Tenney walked to the emergency crib job which
was 500 to 600 feet away. Mr. Moore said that in terms of custom and practice in the mine it was customary for miners to go to the transportation
shanty where they would get a ride to go to work, it was common to wait for
a ride and, if it was going to take a while the miners would be assigned
to pick up papers, etc. Mr. Moore said that he thought Tenney and he got
these "work while waiting" assignments more than other miners.
On cross-examination, Mr. Moore confirmed that he refused to walk the
first time, meaning that on November 30, as the record shows, there were
two occasions when he and Tenney were asked to walk down the haulageway to
their work assignment--at 8:15 a.m., approximately and 10:30 a.m., approximately. Mr. Moore admitted that he might have said, "I won't walk up there
because there won't be anything for me to do without Carroll." Mr. Moore
also said that he saw the jeep go by shortly after they had gone to work on
the emergency crib job and on cross-examination, when told that Mr. Tenney
was uncertain whether he had explained to Foreman Nunez why he thought walking down the haulageway was unsafe, said:
I think he did tell him."
(Emphasis added.) Mr. Moore was unable to recall the specific names of
other miners who did not pick up papers while waiting for transportation at
the shanty. Mr. Moore said that he was not aware that the transporta ti.on
foreman had standing orders to assign work to miners waiting for
transportation.
With respect to the 10:30 a.m. conversation with Nunez-·-after Tenney and
he had returned to the shanty--Mr. Moore indicated that after Nunez said they
would have to walk, Mr. Tenney said he would not walk because ( 1) what the
contract provided, and (2) that it was unsafe.
Mr. Moore said that he told
Mr. Gallagher that he would walk at some point during this conversation, his
reason being that he had "seen a man fired." Mr. Moore said that he shoveled
that day. Finally, he characterized Mr. Tenney as a safe worker and not
"necessarily" a slow worker.

26~Ll

The testimony of Mr. Tenney, Mr. Moore, and Mr. Jones having been
analyzed with respect to the November 30th incident, it is appropriate to
consider the Respondent's position with respect to this incident focusing
now on the issues raised by Mr. Tenney of ultimate importance: Whether or
not Mr. Tenney engaged in a protected activity by raising a safety matter at
that time and whether or not Respondent or any of its management personnel
conspired to discharge Mr. Tenney.
Mr. Nunez testified that he was Mr. Tenney's supervisor on November 29
and November 30-, 1979, and that these were the only 2 days he had ever been
Mr. Tenney's superior. Mr. Nunez said that when they arrived at the shanty
at approximately 8 a.m. Ed Jones, the transportation foreman, advised him
that the supply jeep was broken down and it would take 1 to 1-1/2 hours to
repair. Nunez said that he had no reason to question this. Nunez told Moore
and Tenney that the jeep was down and they would have to walk and Mr. Tenney
said that he did not "give a darn" if it was down 4 or 5 hours he was not
walking. The precise quote of Mr. Tenney at this time appears in Exhibit
R-7 at Page 2. Mr. Tenney denied making this statement and for reasons which
subsequently will be given in resolving credibility in this case, I credit
the version of Mr. Nunez and the version found by Arbitrator Martin Lubow
in his Opinion and Award dated December 14, 1979, at Page 2 of said exhibit.
Nunez then asked Jones to let him use the phone, which he did. Nunez called
Dennison and told him he had a problem. Dennison said, "Here, talk to your
shift foreman," and turned the phone over to Gallagher. Nunez told Gallagher
what had happened and Gallagher told Nunez to go through the standard procedure which included emphasizing to Mr. Tenney that he, Nunez, was giving him
a direct order. Gallagher at the time was on the surface and while they
were speaking on the telephone between the mine and the surface, Gallagher
was informed of a sagging support which had developed near the location of
Nunez and his men. Gallagher instructed Nunez to proceed to work on the
emergency crib job. Because this work arose, Nunez, at the 8 to 8:15 a.m.
refusal episode, did not go through the procedure of telling Mr. Tenney that
he was giving him a direct order at that time. Nunez testified that neither
Moore nor Tenney complained to him while they were working on the cribs about
the Jeep going by.
Upon returning to the shanty after the crib work was completed Nunez
asked Jones if the Jeep was available and Jones replied that it was not.
Nunez told Tenney and Moore the Jeep was not available and that they would
have to walk. Tenney told Nunez, "I understand your order; I'm not walking
because the contract says I don't have to, the contract says I'd be supplied
with a ride and I want a ride." (See Exh. R-7, Page 2.) At the hearing,
Nunez said that Tenney said, "I understand what you're saying and I want you
to understand what I'm saying." At this point, Gallagher came out and asked
Mr. Tenney why he would not walk, to'which Tenney replied, the contract provides a ride to the work place. Gallagher told Tenney to take some good
advise and walk. Gallagher told Tenney he would have to take him outside and
give him disciplinary action. Tenney said, this has been tried before and
they did not get away with it, and "You're not going to get away with it."
Gallagher said, "Well, we'll see."

2692

Nunez indicated that at this point he was not aware that Tenney had been
involved in the February 18, 1977, episode, where he had refused to walk.
With respect to the amount of traffic going down the haulageway at the time
of the two refusals, Mr. Nunez testified that at 8 a.m. the traffic would
have been light and no trips would have been going through, and that at 10
to 10:15 a.m. possibly one trip would have been going through. Nunez, who
has an artificial foot, gave the opinion that there was no hazard in walking
up the haulageway, that it was relatively clear, and that the shelter holes
(crosscuts) were accessible. Nunez said that he had walked from the shanty
to "old eleven" many times and that other people have walked up there. On
cross-examination, Nunez indicated that the others who have walked up there
were fire bosses and shift inspectors, and they were not Union contract
personnel as far as he knew. Nunez did not recall ever ordering any contract employee to walk up the haulageway.
According to Nunez, Mr. Tenney said he would not walk because the contract provided for a "ride" not a "safe ride." The duties Tenney and Moore
were to perform on November 3Q were to install additional bolts in the
haulageway. Nunez did not recall that there had been a fall in the area
in February of 1977.
With respect to whether or not Moore refused to walk, Nunez testified
that at the 8 a.m. refusal episode Moore was asked if he would walk and
Moore replied, "I can't operate the machine by myself." Nunez said that
Moore at first said, "There's nothing for me to do", and that he replied,
"I'll find something for you to do," and that Moore then said, "Well, I will
walk because I get paid as much for walking as I do working." Then, Nunez
said, he started talking to Mr. Tenney again and told him that they had to
walk. Nunez testified that he did not tell Gallagher that both Tenney and
Moore would not walk and that Gallagher asked Mr. Moore to walk prior to
telling Mr. Tenney "to get his bucket." During his testimony, Nunez subsequently clarified the above testimony by indicating that it was at the
10: 15 refusal that Mr. Moore said, "I 1 11 walk, I get paid as much for
walking as for working." And again, it was at the 8 a.m. refusal that
Moore said there was nothing he could do by himself, to which Mr. Nunez
responded that he would find something for Moore to do.
Mr. Gallagher testified that Nunez called him on November 30, 1979,
and told him that Tenney and Moore did not want to walk up the haulageway
to their work place. At this point, Ed Jones came on the phone and said that
there was a bad crib that needed repairs immediately, and that he then told
(Nunez) to take Tenney and Moore down to repair the crib. Gallagher said
that Nunez did not advise (him) why Tenney would not walk up to the assigned
work place. After Gallagher got off the phone with Nunez, he had a conversation with Cliff Dennison and all he said to Dennison was that Tenney would
have to walk up the haulageway.
Gallagher was in the shanty when he overheard Tenney say he would not
walk and Gallagher went out to take care of the situation at the time of the
second refusal. Gallagher said he thought that Tenney was refusing a direct
order from Nunez. Gallagher told Tenney, "Do you understand what he's saying
to you? 11 Tenney replied, "Do you know what I'm saying?"

2s9a

According to Gallagher, Tenney did not say it was unsafe to walk nor
did he mention that he had a bad neck or mention low top or traffic along the
haulageway. Gallagher said that he told Tenney two or three times, "If you
don't walk up there I will have to suspend you," and that Tenney replied, "I
have a contract right for a ride." Gallagher said he told Tenney, "Carroll
take some good advice and walk up there and we' 11 forget the whole thing."
Gallagher said, "I thought I could reason with him one more time and he might
change his mind." Gallagher verified that at one point Tenney said that
Anthony Harris had tried the same thing. Gallagher was not familiar with
this episode.
Gallagher was present at the meeting in Dennison's office between Tenney
and Dennison. According to Gallagher, Mr. Tenney at this time kept saying
that the contract afforded him a right to a ride to his working place.
Gallagher did not hear Tenney say that it was unsafe to walk up there or say
anything about his neck injury or bad top. Gallagher said that miners and
foremen walk up the main haulageway if no ride is available. He did not
consider it unsafe. Gallagher also described the Respondent's standard
procedure for handling a miner's failure to punch in or out.
Gallagher specifically testified that in the conversation in
Mr. Dennison's office at the point when Dennison made the change on the
disciplinary slip, he did not remember Mr. Tenney telling Dennison about
safety. Gallagher vertified that Tenney did say he was available for other
work. Gallagher, as in the case of all witnesses, testified at length concerning the haulageway and other practices and the foregoing is not intended
to be an exhaustive summary of his testimony.
With respect to whether or not Tenney made a safety complaint or raised
a safety matter at an appropriate time on November 30, 1979, the Arbitrator
found that, "Tenney never raised any basis for his refusal other than his
contractual rights" (Page 3, Exh. R-7).
DISCUSSION, CREDIBILITY RESOLUTIONS, AND ULTIMATE FINDINGS AND CONCLUSIONS
There is no question but that Mr. Tenney was discharged for failing to
obey a direct order to walk down the haulageway to his work site. The
general question involved is whether Mr. Tenney engaged in a protected
activity, that is, whether his refusal to walk to the work site was because
the travelway was unsafe.
Did Mr. Tenney make a safety complaint or raise a safety issue on
November 30, 1979? Mr. Gallagher, Mr. Nunez and Mr. Dennison all deny it.
Although by the time this matter got to Dennison, I conclude that it was
too late for any safety complaint to be made in any event: Tenney had been
taken out of the mine at this point and was in the process of being disciplined, having been given repeated chances over a period of time to change
his mind. This time period included the time involved in the conversation
with Gallagher and with Nunez below ground, as well as the time spent going
up in the cage to the surface and the time spent waiting for Mr. Dennison at
his office before the conversation in Mr. Dennison's office occurred.

Highly persuasive evidence establishing that Mr. Tenney did not raise a
safety matter on November 30, 1979, is reflected in the transcript of the
Lubow Arbitration Proceeding (Exh. R-8). At the bottom of Page 27 of this
transcript, Mr. Tenney gives this account of the 8 a.m. refusal after Nunez
said they would have to work:
I asked him how long it would take to get the pole fixed
and he said, "An hour and a half." I saj_d, "Well, j_t's never
taken an hour and a half before. It's an outrageous amount
of time," and that I felt that I was afforded a ride under
the contract, Article III, section (o), paragraph (8). He
asked Jim Moore, at the same time, he said, "Are you walking
Jim" and Jim told him, "No." [Emphasis added.]
Subsequently, on page 28 after describing interim events, Mr. Tenney made
this statement:
After Mr. Shear went out of there, then Augie told me
that we was going to have to walk, and I told him that we
wasn't, and I never used no four-letter word, and I didn't
tell him that I didn't care whether it took four to six hours.
I just told him that I felt under the contract that I was
afforded a ride into and out of the coal mine, to and from
the working section. Before I could tell him anything else
he got on the phone. So, there was other reasons why I
wasn't walking, and they said that it's been brought out that
it was unsafe or whatever. I thought it was unsafe, but they
never even gave me a chance to tell them it was unsafe."
[Emphasis added.]
Subsequently, in his testimony, again at Page 28, Mr. Tenney said:
In my mind, there was two reasons why I didn't do it,
didn't walk. One was the contract, and that I felt it was
unsafe because it was low top and that area back through there
had been, I guess, I was under the assumption it was dangered
off. I really didn't know. Plus the fact that it was low.
[Emphasis added.]
Again in this transcript (Page 29), Mr. Tenney said:
We finished doing what we had to do there to tighten up
those cribs. We tightened them up the best we could, and
once we got that finished, we took the ladder back down to
the steps where the jeep runner could come down and get it
and take it to where it was going. It was going to some
section. Then we·went over to the dispatcher's shanty. When
I looked at my watch, when I got down off the beams and
cribs, it was ten thirty-five, and by the time we got back
over to the transportation foreman, it was more like twenty

2695

'till eleven. I went in and sat down there in the waiting
room. Augie went in and talked to Mr. Jones, he's the
transportation foreman. Mr. Gallagher, Mr. Hudson and I
don't know who else was in there, I never heard all of the
asking of where the jeep was at. I could hear a bunch of
whispering going on, it wasn't normal talking, it was
whispering. He turned around and came outside and said, he
told me, "The jeep ain't available. We're going to have to
walk." I told him, "Well, under the contract I still believe
I am afforded the ride into and out of the coal mine, to and
from the working section." I said, "I am still available to
do other work. I am not wanting not to work. I will work."
Then I was going to tell him about where I thought it was
unsafe. In the next instant Mr. Gallagher came out behind
him and said, I think his first words were, You are not
walking?" or something to this effect. I really don't know
because he said he didn't, he told me he didn't care where
the jeep was at, he was giving me a direct order. I said,
"Well, I still feel that I am afforded a ride into and out of
the coal mine. I still feel that." He said, he asked me if
I understood what I was doing and I guess I did, I thought I
did, and I told him yes. He said, "I'm going to take you
outside." He wasn't talking to Jim Moore. He never said one
word to Jim Moore this second time, until after he said that
he was going to take me out. Then he turned around and asked
Jim, he said, "Are you walking." Jim told him, "Yes, I'll
walk" after he told him that he was going to suspend me.
Then he said, "Get your bucket" and I told him I didn't have
no bucket, I don't carry one. Then he· told me, "Come on
let's go." I went with him. Going up on the cage I told
him, I said, "Anthony Harris tried to fire me before for the
same thing" I made the statement, "You tried to fire me
before" and he said "No, I ain't never tried to fire you
before. It wasn't me. I have' t tried." I said, "Well,
management tried it." We got outside, went to Mr. Dennison's
office, and Mr. Dennison wasn't there at the time. We waited
there a couple of minutes or whatever and Mr. Dennison was
across the street to the superintendent's office or the main
mine office and he came in a minute or two later. I don't
know exactly how long it was. [Emphasis added.]
On Page 31 of this same transcript, is a recognition that this proceeding
was not a safety matter. Commissioner Luketic made the following statement,
"Mr. Arbitrator I am going to have to object to the Commissioner for the Mine
Workers getting into ~tr. Tenney's feelings about it being unsafe. This was
never an issue at any of the prior steps, and to bring in safety at this point
would be adding to the grievance." There were Union representatives in
attendance at this meeting, as well as Mr. Tenney. No one made any exception
to this recognition.

Both the grievance involving the February 18, 1977, grievance for
Mr. Tenney's refusal to walk and the entire proceeding for the November 30,
1979, refusal to walk discharge, were treated by all involved parties as a
"contract" matter and not a safety matter. In the Pasula decision, supra,
the Commission in dicta expressed its approval of the use of arbitrators'
findings: "We believe that according weight to the findings of Arbitrators
may aid the Commission's Judges in finding facts. A Judge faced with a
credibility problem may find the views of the Arbitrator on labor practices
in the mine' s customs or on the common law of the shop helpful." The sections of the transcript above quoted are not arbitrators' findings which I
am adopting. This is a transcript of testimony which Mr. Tenney rendered
in these proceedings and thus takes on a much higher degree of weight than
even an arbitrator's conclusions and findings. This transcript showing
Mr. Tenney's statements was of a proceeding conducted on December 7, 1979-wi thin a very short period after the incident with which we are concerned
transpired. I believe it is entitled, in and of itself, to controlling weight
on the issue of whether or not Mr. Tenney was engaged in a protected activity
on November 30, 1979, when he refused to obey repeatedly an order to walk
down the haulageway from the shanty to Old Eleven. There are other reasons
for my finding in this connection which will subsequently appear herein.
One of the principles of mine safety law is that "a miner who reasonably
believes that conditions are unsafe is not required to accept a foreman's
evaluation of danger." Phillips v. IBMA, 500 F.2d 772, 780 (D.C. Cir. 1974).
A necessary corollary to. this concept would seem to be that a mine foreman
would have the right to discuss the safety problem with the miner--and evaluate it. To do that, it would be necessary, of course, for him to know what
the safety hazard or safety complaint is. On the facts established in this
proceeding, neither Foreman, Nunez nor Gallagher, had any cause to evaluate
any dangerous condition or to discuss it with Mr. Tenney or to reason with
Mr. Tenney with respect to the same.
Because of Mr. Tenney's handling of his
refusal to walk, discussion of safety or the nature of hazardous conditions
was shut off. If Mr. Tenney had the time to make the statement that the
company "had tried it before," and the like, he certainly would have had the
time to have emphasized any safety complaint or complaints that he might have
had as a basis for his refusal. During the considerable length of time that
was involved with Nunez and Gallagher prior to the meeting in Dennison's
office, it seems inconceivable that if he was so concerned with safety that
that would not have been the immediate matter raised by him and emphasized
by him at every stage of this episode as it developed from conversation to
conversation. The absence of such discussion at any time compels the conclusion that Mr. Tenney was not engaged in a protected activity. Other
evidence of this is the fact that the grievance proceeding filed in this
proceeding was not treated as a safety matter. At no time during the conversations with Nunez or Gallagher, did Mr. Tenney treat his complaint as
a safety matter.
I also find, because of the credibility resolution I make subsequently,
that the accounts of Nunez and Gallagher with respect to the conversation in
Dennison's office are to be credited and that Mr. Tenney did not raise a
safety matter at that time either.

269'1

Mr. Tenney was well aware of his contract rights as a safety commiteeman.
If this record establishes anything, it is that Mr. Tenney is not inclined to
sit on such rights and in his own testimony Mr. Tenney has pointed out his
awareness of the bulletin board, safety matters, and the like at all times,
even after he was removed from the safety committee. This matter has not
been treated as a safety matter by Mr. Tenney or any of the other parties,
including the Union.
To fully understand the November 30, 1979, refusal to obey an order, the
February 18, 1977, episode must be examined as well as a third "refusal"
incident testified about by Respondent's section foreman, John Wujcik.
Complainant admits that the grievance proceeding filed by him on the 1977
refusal to walk was not processed as a safety grievance under the contract.
Mr. Wujcik testified that in 1979, when Mr. Tenney was a roof bolter on his
section (No. 3 South) for 2 weeks, a portal bus broke down. Wujcik asked
the crew to walk to the secti0n. Mr. Tenney said that they were supposed
to have transportation and that he would walk under protest. The significance of this testimony is simply that the contract right asserted by
Mr. Tenney in refusing to walk on two prior occasions did not involve a
safety matter. It indicates that this right to transportation has been a
major cause of Mr. Tenney in the past.
I find that Mr. Tenney 1 s refusal on November 30 was not made in good
faith for the following reasons. The result reached in the arbitration of
the February 18, 1977, refusal to walk was that the contract right to transportation applies only to the beginning and ending of a shift. While this
ironically might have justified Mr. Tenney's refusal at 8 aom• on
November 30, 1979, it underscored that there was no such right to transportation otherwise. This was a proceeding which involved Mr. Tenney himself o
Although Mr. Tenney denied that he had read the Arbitrator's Decision, he did
admit that he had been told what it said. I therefore find that Mr. Tenney
had knowledge of the content of that award, even assLUUing, arguendo, that his
denial (that he did not read the award) is to be credited. I therefore find
that Mr. Tenney's refusal on November 30 was made in full knowledge of the
illegality of doing so and that, accordingly, it was not made in good faith
within the meaning of the Commission's ruling in Secretary of Labor v.
United Castle Coal Company, 3 MSHRC 803 (1981). I find that the Respondent
has met the exceedingly difficult burden of proof placed on it by the
United Castle decision in that it has established an absence of good faith
in Mr. Tenney's work refusal--asslDTling the same should become relevant. The
finding of an absence of good faith would be relevant only in the event tha.t
my finding that Mr. Tenney was not engaged in a protected activity on
November 30, 1979, is overturned.
Taking up now Complainant's contention that he was a victim of a con··
spiracy by Respondent's management, it is well to recall initially that
Edmund Jones, the transportation foreman on November 30, 1979, mentioned a
telephone call that he received from Mr. Dennison telling him not to give
Mr. Tenney transportation back to his job. Jones said that Dennison gave
him no reason, but that he, Jones, knew the reason. Another witness for

2698

Complainant, Ira Varner, a motorman at the No. 2 Mine testified, inter alia,
that he had heard Mr. Jones say something to the effect that Mr, 7I'enney had
been set up. Respondent 1 s witnesses, Gallagher, Nunez and Dennison have
denied this allegation.
In final argument, Complainant's counsel has taken
the position that Nunez and Gallagher were not involved and that the conspiracy would have been between Dennison and Jones.
Thus, to find any basis
for the conclusion that Mr. Tenney was set up would necessarily require the
crediting of Mr. Jones' testimony. To find a conspiracy in this connection,
so also would Mr. Tenney's testimony to some extent have to be credited.
Mr. Jones' testimony is suspect for several reasons. The first is that:
as a member of Respondent's management he, patently, is a renegade.
In and
of itself this means nothing, but the fact stands out that he is attempting
to blow the whistle against others in management in this case.
Secondly, his
testimony with respect to the instruction he received from Dennison contains
an uncertainty.
Assrnuing, arguendo, that Dennison did tell Jones that he was
not to give Tenney transpor-tat~on,-Jones acknowledges that Dennison gave him
no reason for this order. Jones says, "I knew the reason," meaning that he
was reading into what Mr. Dennison said Mr. Dennison's motivation. A third
reason why I do not credit Mr. Jo2es 1 testimony in this respect, is the confusion that he had with respect to the time of this conversation. Furthermore, his testimony that he told James Moore that he had better get away
because Tenney was going to be fired was not confirmed by Moore.
In determining whether Mr. Jones' testimony should be credited or
Mr. Dennison's denial should be credited, the demean.or of the wi tn.esses plays
an important part of the resolution. in this case. Although in many cases a
witness' demeanor and vA1at is physically displayed by a witness while testifying is not a bellwether of the trustworthiness of the witness, I find in
this case that it is. Mr. Jon.es conveyed a sense of being in touch with a
different reality than all other witnesses in this proceeding including
Mr. Tenney.
There are two sides in this proceeding and naturally there are
wide divergences in testimony between the witnesses on one side and the other.
Mr. Jones' testimony struck me as totally out of line with the testimony of
the other wi tn.esses in the way that it was delivered, in its quality, and
with the sense of sincerity in which it was presented. This was not entirely
traceable to the fact that he smiled throughout his testimony which, I
believe, is simply his personality.
Finally, a powerful reason for the reduction of the weight in reliability to be accorded to his testimony is the fact that he is engaged in a dis·crimination suit which is still pending against the Respondent in this
proceeding. The type and nature of this litigation like the present litigation is one which stirs high emotions.
I therefore credit Mr. Dennison's
denial of this alleged conversation and find that in all the circumstances
and for the reasons stated, Mr. Jones' testimony is not trustworthy.
With respect to the weight to be accorded to the testimony of Mr. Tenney,
it is noted that Mr. Tenney's account of the conversations with Foremen Nunez
and Gallagher were not sufficiently detailed to be persuasive. His test imon.y

9q
'!.,•

at times with respect to whether he raised a safety complaint or not seemed
calculated to avoid a direct answer. His testimony in contexts other than
the conspiracy contention are also found to not inspire a high degree of
confidence. For example, on cross-examination, he did not satisfactorily
explain his failure in the Lubow proceeding to mention that a complaint of
unsafe conditions along the haulageway in the November 30 episode had been
made. In at least one point in that part of the transcript, which I have
included previously in this decision, I find that Mr. Tenney was evasive on
this point.
Again, Mr. Tenney claimed that he had no time to make a safety complaint
on November 30, 1979, a crucial point in this proceeding. Yet, he talked
for a considerable time to Foreman Nunez and Dale Gallagher according to
his own testimony. This explanation, that he lacked the time to complain
about safety conditions, does not ring true and is directly contrary to facts
overwhelmingly established in this record.
Again, in resolving credibility I must consider the February 18, 1977,
incident. Although this matter was pursued to final arbitration and involved
a matter obviously important to Mr. Tenney, Mr. Tenney testified that he had
never read the Arbitrator's Decision. This conflicts with his emphasis that
he has an intense interest in safety matters and his denial that he did not
read this decision is shockingly at odds with every other sense of the man
which is shown in this record.
Again, Mr. Tenney's statement that he was thinking of taking action over
his removal as a member of the safety committee but was discharged before he
got around to doing so, is not the kind of explaination which lends itself
to the trustworthiness of other testimony. 1/ It is similar in type to the
other somewhat incredible explanations mentioned above, all of which are on
critical points. Therefore, I am constrained to accept the accounts and
versions of the conversations and incidents described by Dennison, Gallagher,
Nunez and other of Respondent's witnesses over that of Mr. Tenney in the
several places where there is disagreement between them previously set forth
above.
Mr. Moore's testimony is obviously calculated to help Mr. Tenney. This
was carried to the extent that in at least one instance his testimony conflicted with Mr. Tenney's. Thus, Mr. Moore testified that at the 8 a.m.
refusal on November 30, Mr. Tenney raised the subject of safety. Even
Mr. Tenney does not claim that he did so at that time and Moore's testimony
in this respect conflicts with all the other evidence in this record.
Based upon the foregoing credibility findings and for the reasons previously detailed above, I conclude that the Respondent did not plan, plot, or
conspire to set Mr. Tenney up for discharge on November 30, 1979. Other
factors are also totally inconsistent with this contention of Complainant.
1/

In view of the time interval between the two events.

2700

Thus, I note that on that morning Mr. Gallagher told Nunez to assign
Mr. Tenney to an emergency situation which arose simultaneously with
Mr. Nunez 1 s report to him that Mr. Tenney had refused to walk. Mr. Gallagher
attempted to talk Mr. Tenney out of his refusal. Assmning Mr. Gallagher
i.s not in on some attempt to get Mr. Tenney it would not be much of a con.-spi.racy to go about setting up someone without the participati.on of the key
actors. Evidence in this proceeding indicates that Mr. Gallagher and
Mr. Nunez both had the authority to suspend Mr. Tenney for 5 days with intent
to discharge without the participation of Mr. Dennison.
I infer from the testimony of John Hetrick, who participated at Step 2
of the grievance procedure and made the decision to discharge Mr. Tenney at
that time, that Mr. Tenney was given another chance to i·eturn to work. This
is an inference, and not a direct finding, based upon Mr. Hetrick's asking
Mr. Tenney, "If I asked you to walk now, would you," and Mr. Tenney's reply,
"probably not, 11 which was then followed by Mr. Tenney saying that he might,
why didn't Mr. Hetrick ask him.
I infer that at that point Mr. Tenney was
given another chance to snatch victory out of the jaws of defeat and to change
his mind. This finding is based upon various accounts of that conversation
and the psychology which pervaded the conversation.
In conclusion, on the conspiracy issues even if one were to assume,
arguendo, that Dennison and Jones did conspire can it be said that Respondent
was discriminating against Mr. Tenney because of safety reasons? The various
and numerous prior incidents from 1974 through 1979 which Mr. Tenney has
complained of in this proceeding fox .the most part represent situations where
Mro Tenney was indeed guilty of the infractions which the Respondent charged
him with, some of which were found in arbitration. Even ass unling, arguendo,
that there was a conspiracy, 2/ there is no .proof that such a conspiracy was
because of safety activities--=-other than the testimony of Mr. Jones which was
general and which I have previously not credited. Had there been a conspiracy,
whether on November 30th or at some other time, to bring about Mr. Tenney's
discharge, on the basis of this proceeding, it is found that it is more likely
that such would have been based upon Mr. Tenney's clearly established prior
wrongful conduct or even possibly because of the approach which Mr. Tenney
took in carrying out his duties, all of which have been previously described.
Another issue which was litigated and deserves some discussion is
whether or not the haulageway on November 30, 1979, was safe for a foot
traveler proceeding from the transportation foreman's shanty to old eleven
switch.
The haulageway was said to be 14 feet wide (Testimony of William R.
Toothman) and the complaints which Complainant has expressed in this proceeding concerning its condition are that the top was bad, the top was too
low, there was danger of a walking miner being struck by motors traveling
down the haulageway, and that the escape holes and crosscuts had poles ancl.
cribs in them which might block a miner's entry into them when he was
attempting to avoid a motor.

2701.

Again, the witnesses for Respondent and Complainant differed concerning
the safety of this area. In view of my prior rulings, a lengthy analysis of
this testimony is not in order. Nevertheless, I do find that the haulageway
on November 30, 1979, was safe for a miner traveling it on foot. This finding
is based upon the testimony of Respondent's witnesses, Nunez, Gallagher, Lamb,
Glen Shamblen, John Hetrick, and Gary Cumberledge. Mr. Hetrick, presently a
superintendent of another mine of Respondent, testified that state inspectors
or federal inspectors inspect this mine (Federal No. 2) at least every
24 hours. In addition, the Union safety committee helps to see that the mine
is kept in compliance.
Gary Cumberledge, an assistant mine inspector employed by Respondent,
testified that at request of counsel he made a review of federal and state
inspections of the haulageway in question for 6-month periods before and
after November 30, 1979, that is, from June 1979, to June 1980, to determine
how many accidents had occurred along the haulageway and how many violations
had occurred. He testified that there was no record of any roof fall or
accidents during this period and that while there were violations none pertained to roof control or shelter holes.
Keeping the foregoing in mind, it is important to consider that the four
or five conditions mentioned by the Complainant (in his testimony herein) as
present in the mine on November 30, 1979, were all generally described.
There was no specific place in the mine mentioned nor specific safety hazard
which was raised by Mr. Tenney or has been raised in this proceeding.
Witnesses have testified on the one hand that there were derailments and, on
the other, that there were not derailments along the haulageway. Witnesses
have testified that the top was low, while other witnesses have testified
it is not low all the way along the area in question. Witnesses have testified that motormen traveling on their equipment through the haulageway have
to bend over and cannot see over the top of the equipment, while another
witness has testified that they can see over it. Witnesses have testified
that it was safe to duck into a cross way or an escape hole, while other
witnesses have said that there might be difficulty doing it because they were
filled with timber. The quality of the testimony and the type of testimony
with respect to these complaints is all relatively general because the complaints themselves are not specific. Complainant did mention one (specific)
incident which occurred in the haulageway on February 20, 1979, when a roof
fall occurred. This (incident) was also testified to by David Schauffner, a
bolt-machine operator. Mr. Tenney testified that he had that in his mind on
November 30, 1979. However, at no time was this expressed. In any event,
does Complainant ask that because of that roof fall a finding be made that
the haulageway on November 30 was unsafe for anyone to travel it? I find
that this evidence does not establish (1) the condition of the haulageway
on November 30, or (2) that it would be reasonable for a miner to believe
that the haulageway was unsafe on November 30, because of a roof fall in
February. Otherwise, if such were the case, one roof fall in an area would
permanently close down the area. There was much testimony of similar quality
in this record. I find that the fact of the matter is that the haulageway
had been in the general condition described by Complainant's witnesses for

2702

a long time and that it was so operating on November 30, 1979, that it was
being ins pee ted and repaired regularly, and that there was no showing having
any probative value that the haulageway was unsafe at that time. 1bere was
no (safety-related) occurrence in proximity to the date of Mr. Tenney's
discharge. I find that Mr. Tenney was not reasonably entitled to raise a
complaint with respect to the safety of the haulageway on November 30, 1979.
I also find, based upon the testimony of Respondent's witnesses, that
miners customarily traveled down the haulageway, and they were not just .fire
bosses or supervisory personnel but contract employees. In any event, fire
qosses and supervisory personnel are "miners" within the meaning of the Act.
Complainant might well contend that under the contract what is in issue is
the right to a man trip ride down the haulageway. But that is not what is
involved in_!_J:);e context of this issue. The question is whether the haulage-·
way was safe and whether whoever was traveling do\l.n it, if they are miners
(and that includes supervisors, foremen and the like), would be exposed to
a hazard. Thus I have found that the haulageway was being walked by miners
in different job classifications~regularly at that time and that Mrc Tenney
was not reasonably entitled to the belief that the haulageway was unsafe on
November 30. I infer that this is why he made no such contention at the
time. Finally, if the ha ulageway was as unsafe as claimed by Mr. Tenney
and some of his witnesses one would suspect that the Union safety committee
would have done something about it during the 2- or 3-day period preceding
November 30. Mr. Tenney did not contend or establish that the haulageway
was in any different condition or in any unusual condition on November 30,
i·~·· different from other times prior to or after November 30.
Taking up now another complaint raised by Mr. Tenney, that after he was
removed as safety committeeman his roof bolting duties were taken away and
that he tiJereafter spent 90 percent of his time shoveling, the record
establishes that this change was necessitated by a change in the safety laws
which made it impossible for the Respondent to continue using the type of
roof-bolting machine Mr. Tenney was operating at the time. Respondent
clearly established that the change in the interpretation of these safety
requirements required withdrawal of this type of machine from service. No
showing of different or unequal treatment toward Mr. Tenney relative to other
employees in this connection was established. No showing or evidence what~
soever that this change in his duties was related to Mr. Tenney's safety
complaints or his activities as a safety committee member was presented.
Mr. Tenney was given other work at the same rate of pay and he filed no
grievance under the Union contract or discrimination charges with the Mine
Safety and Health Administration at the time. It is thus found that there is
no evidence of disparate treatment, harrassment, or discriminatory motivation
involved in this occurrence.
At one stage in this proceeding, Mr. Tenney contended the disciplinary
slips which he received for not punching in or out on the time clock on
several occasions were part of Respondent's retaliation for his safety
activities. Respondent, however, established beyond question that its system
for gathering up these time cards at the change of each shift and comparing

them with its personnel roster is automatic. Mr. Tenney's inclusion of these
incidents as part of his evidence of alleged animus toward him further colors
the credibility to be attached to his ability to objectively interpret the
other events he has complained of in this proceeding. (See testimony of Dale
Gallagher with respect to the Respondent's procedure.)
Finally, a great deal of the record was devoted to establishing how
satisfactory an employee Mr. Tenney was. For the most part, the evidence presented on this topic was in the form of opinion. Again, witnesses on either
side of this litigation had different views of Mr. Tenney's worth as an
employee. Some said he was lazy, some said he worked hard. Some of the testimony was too remote to be probative. For example, the testimony of Sherman
Perkins related to a period in 1971. In any event, it is clear that
Mr. Tenney was not discharged because his work performance or production was
below par. Nor is there any evidence that his general work performance was
unsatisfactory. Respondent's witnesses in one of the arbitration proceedings
did indicate that they rated Mr. Tenney in the lower third of the mining
force. No evidence was presented that Respondent's management personnel
repeatedly or incessantly told Mr. Tenney that his work performance was
unsatisfactory or that the amount of work he did was insufficient. Some
foremen testified that they considered that it was, but no basis in evidence
was established by Respondent to show that he was an unsatisfactory employee.
Indeed, Respondent over the period of the years of Mr. Tenney's employment,
and during the 2-1/2 years after he was removed from the safety committee,
allowed Mr. Tenney to perform his job in the ultra-safe manner that he
insisted upon. Considering the length of Mro Tenney's employment and the
absence of comparative statistics comparing Mr. Tenney's experiences with
other employees similarly situated, I find no pattern of reprisals, reprimands, harrassment, or even sarcastic remarks has been shown. On the other
hand, I also find that Mr. Tenney was not an unsatisfactory worker in terms of
production. He was an extremely fastidious person with regard to insisting
on the safety aspects of his duties and I accept the characterization of one
witness who said that he was "a fair bolter." Finally, however, I do find
that the incidents complained of by Mr. Tenney himself in this case do establish somewhat of a record of improper behavior on his part. That has been
previously described.
I find that there has been no showing of disparate treatment toward
Complainant traceable to his safety activities or otherwise. That is, it
was not shown that other miners who refused to obey direct orders were not
disciplined or disciplined with the same severity as Mr. Tenney. In this
connection, however, Respondent's treatment of Mr. Tenney's helper, Jimmy
Moore, should be discussed~ Moore did refuse to obey the same order at
8 porn. as Mr. Tenney did initially, according to Respondent's witnesses.
Assuming, arguendo, that this is the case, it is noted that both Mro Tenney
and Mr. Moore were given the opportunity to change their minds. Tenney
refused to do so. Moore did change his mind and was put to work. Tenney,
even after this point in time, was given the opportunity but did not change
his mind. I find no evidence of disparate treatment in these circumstances.

2704

For the reasons stated hereinabove, I find that Complainant failed
to establish by a preponderance of the evidence a prima f acie case of
discrimination. In particular, the Complainant did not establish that he
was engaged in a protected activity when he refused to obey a lawful order
to walk to his work place during the episode which started at approximately 10 a.m. on November 30, 1979.
Accordingly, it is found that there is no merit in Complainant's
complaint filed herein and the same should be dismissed. It is ORDERED
that all proposed findings of fact and conclusions of law not expressly
incorporated in this decision are REJECTED. For the various reasons
stated, this proceeding is DISMISSED.

.~}l.:~t-/7//, /{J~ /1

PMichael A. Lasher, Jr., Judge

Distribution:
Mr. Carroll D. Tenney, Route 1, Box 172-A, Fairview, WV
(Certified Mail)

26570

Sally S. Rock, Esq., Eastern Associated Coal Corp., 1728 Koppers
Bldg., Pittsburgh, PA 15219 (Certified Mail)
R. Henry Moore, Esq., Rose, Schmidt, Hasley, Whyte & Hardesty,
900 Oliver Bldg., Pittsburgh, PA 15222 (Certified Mail)
J. Montgomery Brown, Esq., 515 Deveny Bldg., P. 0. Box 269,
Fairmont, WV 26554 (Certified Mail)

2705

ATTACHMENT "A"
Summary of the Documentary Evidence
Joint Exhibit No. 1

National Bi tt.nninous Coal Wage
Agreement of 1974 (hereinafter,
the "Contract") •

Joint Exhibit No. 2

Grievance of Carroll Tenney,
dated March 7, 1977.

Union Exhibit No. 1

Notice of Improper Action,
dated February 18, 1977, for
Grievant, Carroll Tenney.

Company Exhibit No. 1

Notice of Suspension with Intent
to Discharge, dated February 18,
1977, with accompanying Notice
to Return to Work, dated June 21,
1977.

Summary of the Transcript of Testimony
Grievant, Carroll Tenney, roof bolter, works on the day shift at the
company's Federal No. 2 Mine, at Miracle Run near Blacksville, West Virginia.
On the morning of Friday, February 18, 1977, Grievant reported at 8 aom.
to the office of Anthony Harris, general mine foreman, for a meeting to discuss progress on the "Two North Tunnel Stall", where Grievant was then
working.
Upon completion of the meeting, Grievant went to the dispatcher's shanty
at the bottom of the mine. From this point, Grievant and six other employees
were planning to commence a safety drill of walking the escapeways. The
group proceeded to "One West, Right Side" by portal bus, where they got off
and walked the returns to the Scott's Run air shaft. Grievant walked with
his roof-bolter helper, Jim Merchant.
The procedure of walking the escapeways was pursuant to the requirement
of the Contract that the "Employer shall regularly instruct all Employees as
to the location of all escapeways and the proper procedure to be followed in
cases of emergency exit." Contract, Article III, Section (o)(l2), po 19.
Upon completing the emergency procedure, Grievant and Merchant returned
to the dispatcher's shanty at about 10:30 a.m. to await a mantrip to take them
to their work station at "Two North Tunnel Stall".
Glenn Shamblen, transportation foreman, sought to arrange a ride for
Grievant and Merchant through Anthony Harris, general mine foreman. Harris
determined that there was no transportation available, and then said to

2706

Shamblen: "Let them walk." Grievant, not realizing that Harris was in the
area, commented: "That is a long Wa.y back." Harris then asked Sham bl en
again if a ride was available, and upon receiving a negative reply, said to
Grievant: "Then you walk."
Grievant remonstrated, and Harris said: "Are you disobeying a direct
order?" Grievant replied: "No, I am not disobeying a direct order.
The
Contract, under Article III, Section (0)(8), guarantees me a ride to and
from the working section."
Harris also questioned Merchant as to whether he was refusing to walk,
but Merchant replied: "I haven't said anything." Whereupon, Harris put
Merchant to work cleaning the transportation shanty. He instructed Robert
Sowden, grade foreman, to take Grievant outside and suspend him with intent
to discharge. */ Grievant accompanied Sowden to the outside and took a
shower.
Sowden prepared a "Notice of Improper Action" (Union Exhibit
No. 1), and left it on Grievant's basket.
Grievant missed 4 days of work as the result of his suspension,
returning to work on February 24, 1977.
Glenn Shamblen, transportation foreman, testified that it would have
been as much as 1-1/2 hours before a mantrip would have become available to
take Grievant and Merchant to their work stations. A nwuber of other
employees obtained rides to their various stations, after walking the
escapeways.
Some "got on their motors and left"; wliile others "took the
bus and went to the work area" (Tr. 20).
Robert Sowden, general foreman, testified that the "wire men have
their own work bus with all their tools" (Tr. 22).
This bus might have
accommodated Grievant and Merchant, but Sowden did not suggest that it
be used to transport them.
In his words, "This is not my job.
I don't
have anything to do with that" (Tr. 23).
Sowden stated that his ovm jeep was in use on themorning of Friday,
February 18, 1977. And the jeep of the general mine foreman, Anthony
Harris, was not readily available.
Rodney Jarrett, mine superintendent, testified that a majority of the
employees are furnished transportation to and from their work areas, by the
use of individual pieces of equipoment, portal buses, or jeeps.
Anthony Harris, general mine foreman, testified further that the clause
in the Contract dealing with mantrips to and from the working section was

*/ Grievant was suspended for 5 days with intent to discharge. The company,
however, ordered him back to work on the fifth day (February 24, 1977). As a
result, his right to compensation, if any, cannot exceed~ days (Friday,
February 18, and Monday, Tuesday, and Wednesday, February 21 through 23,
1977).

270'1

applicable at the beginning and end of every shift, but "doesn't include the
middle of the day" (Tr. 14). On a prior occasion, Harris had insisted that
Grievant ride, rather than walk, to and from his work station at the
beginning and end of his shift.

2708

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

22041

lt1V 27
Civil Penalty Proceeding

SECRETARY OF LABOR,
Petitioner

v.
FANCY MINING COMPANY, INC.,
Respondent

Docket No. WEVA 80-730
A.c. No. 46-02856-03004 R
J

& J No. 2 Mine

DECISION AND ORDER APPROVING SETTLEMENT
This proceeding was commenced by the Secretary of Labor, Mine Safety
and Health Administration (hereinafter "MSHA") on November 10, 1980, by the
filing of a petition for assessment of civil penalty. On April 20, 1981,
the parties filed a joint motion for an order approving settlement of this
case, which I subsequently denied in an order dated July 6, 1981. A hearing
was held on the matter on September 15, 1981, in Morgantown, West Virginia.
Barry Lane Ryan testified on behalf of MSHA and John A. Laurita testified on
behalf of both MSHA and Fancy Mining. At the close of the hearing, the
parties indicated their desire to have their motion to approve settlement
reconsidered. I stated at that time that I would rule upon the renewed
motion after posthearing briefs were submitted and the record was closed.
Having duly considered the testimony and other evidence, I conclude that
the recommended settlement is consistent with the purposes and policy of the
Act. The recommended settlement, reducing the penalty from $10,000.00 to
$2,000.00, is therefore, approved.
Accordingly, it is ORDERED that the motion to dismiss and approve
settlement is GRANTED. It is FURTHER ORDERED that the operator pay $2,000
and that subject to such payment the petition be DISHISSED.

~es

A. Laurenson, Judge

Distribution Certified Mail:
Page Jackson, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203
James A. Kent, Esq., P.O. Box 1217, Morgantown, WV 26505

270B

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

22041

NOV 3 o
Civil Penalty Proceeding

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

Docket No. LAKE 80-375-M
A/O No. 12-00083-05004 I

v.

Eckerty Quarry
MULZER CRUSHED STONE COMPANY,
Respondent
DECISION
Appearances:

Steven E. Walanka, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois, for the Petitioner,
Philip E. Balcomb, Manager, Mulzer Crushed Stone Company,
Tell City, Indiana, for the Respondent.

Before:

Judge Cook

I.

Procedural Background

On August 27, 1980, the Secretary of Labor (Petitioner) filed a proposal for a penalty in the above-captioned case pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~·
(Supp. III 1979) (1977 Mine Act), charging Mulzer Crushed Stone Company
(Respondent) with a violation of mandatory safety standard 30 C.F.R.
§ 56.9-55.
The Respondent filed an answer on September 24, 1980.
The hearing was held on January 29, 1981, in Louisville, Kentucky.
Representatives of both parties were present and participated. Both parties made closing arguments following the presentation of the evidence.
At the conclusion of the hearing, a schedule was set for the filing of
posthearing briefs and proposed findings of fact and conclusions of law.
However, difficulties experienced by counsel resulted in a revision thereof.
Posthearing briefs were received from the Respondent and the Petitioner
on March 23, 1981, and April 27, 1981, respectively. The Respondent's reply
brief was received on May 1, 1981. The Petitioner did not file a reply brief.
II.

Violation Charged
Citation No.

Date

30 C.F.R. Standard

365911

April 23, 1980

56.9-55

2710

III.

Witnesses and Exhibits
A.

Witnesses

The Petitioner called Federal mine inspector Gene Upton as a witness.
The Respondent called as its witnesses Clifton Cook III, a stockpile
truck driver, Gordon Ray Eckert, the supervisor in direct charge of operations at the Eckerty Quarry, and Robert Scheible, the assistant safety
director.
Both the Petitioner and the Respondent called as a witness John E.
Knust, the stockpile truck driver involved in the April 10, 1980, accident.
B.

Exhibits

1.

The Petitioner introduced the following exhibits in evidence:

G-1 is a copy of a mine accident, injury, and illness report submitted to the Mine Safety and Health Administration by the Respondent following the April 10, 1980, accident.
G-2 is a copy of Citation No. 365911, April 23, 1980, 30 C.F.R.
§

56.9-55.

G-3 is an April 22, 1980, photograph of the stockpile where the
accident occurred.
G-4 is an April 22, 1980, photograph taken from the top of the
stockpile where the accident occurred.
G-5 is an April 22, 1980, photograph of the ramp leading to the
top of the stockpile where the accident occurred.
G-6 is an April 22, 1980, photograph taken from the top of the
stockpile where the accident occurred.
G-7 is an April 22, 1980, photograph showing the stockpiling
method in use on the day of the accident investigation conducted by the
Mine Safety and Health Administration.
G-8 is an April 22, 1980, photograph showing the stockpile after
the departure of the truck shown in G-7.
G-9 is an April 22, 1980, photograph of the truck involved in the
accident.
G-10 is an April 22, 1980, photograph of the truck involved in the
accident.

2711

G-11 is an April 22, 1980, photograph of the truck involved in the
accident.
G-12 is a copy of the accident investigation report prepared by the
Mine Safety and Health Administration following its investigation of the
April 10, 1980, accident.
G-13 is a copy of the inspector's statement pertaining to G-2~
G-14 is a copy of a "fatalgram" dated May 5, 1980.
G-15 is a copy of a "fatalgram" dated June 19, 1980.
G-16 is a copy of a "fatalgram" dated July 15, 1980.
G-17 is a copy of a mine accident, injury, and illness report of
an accident occurring at the Respondent's Eckerty Quarry on April 28, 1978.
G-18 is a copy of the mine identification.
2.

The Respondent introduced the following exhibits in evidence:

0-1 is a diagram depicting the general conditions existing at the
stockpile at the time of the accident.
0-2 is a copy of the "narrative findings for a special assessment"
prepared by the Office of Assessments.
IV.

Issues

Two basic issues are involved in this civil penalty proceeding: (1) did
a violation of mandatory safety standard 30 C.F.R. § 56.9-55 occur, and (2)
what amount should be assessed as a penalty if a violation is found to have
occurred? In determining the amount of civil penalty that should be assessed
for a violation, the law requires that six factors be considered: (1) history
of previous violations; (2) appropriateness of the penalty to the size of the
operator's business; (3) whether the operator was negligent; (4) effect of the
penalty on the operator's ability to continue in business; (5) gravity of the
violation; and (6) the operator's good faith in attempting rapid abatement of
the violation.

v.

Opinion and Findings of Fact
A.

Stipulations

1. The parties filed a partial stipulation on January 29, 1981, which
states, in part, as follows:

2712

[a.] This shall be a partial stipulation of some of the
facts and issues involved in the above-captioned case and
shall not be construed as precluding either party from
presenting additional evidence to the Court.
[b.) That the Administrative Law Judge has jurisdiction
in matters related to the Federal Mine Safety and Health Act
of 1977.
[c.] That the inspectors who issued the Citation and
Order were duly authorized representatives of the Secretary
of Labor.
[d.] That the size of the company as to production tons
or manhours per year is 469971, as shown in Exhibit A.
[e.] That the size of the mine as to production tons or
manhours per year is 10lgl2, as shown in Exhibit A.
(f.] That the previous assessed penalty for Citation
365911 was $2,000.00, as shown in Exhibit B.
[g.J That the proposed assessment of penalty for Citation 365911 is $1,200.00, as shown in Exhibit C.
[h.] That respondent issued a notice of contest to the
Mine Safety and Health Administration on July 24, 1980.
[i.] That the Proposal For Penalty was filed on
August 25, 1980.

[j.] That respondent received the Proposal For Penalty on
August 28, 1980, as shown in Exhibit D.
[k.] That respondent filed an answer to the Proposal For
Penalty on September 22, 1980.
[l.) That the proposed assessment will not harm
respondent's ability to continue its operations.
[m.] That Citation 356911 has been terminated as shown
in Exhibit E.
[n.] That respondent owned and operated a 1967 model
Ford - L-800 SN F 80 FUA45485, single axle, 8-ton capacity
dump truck.
[o.J That respondent operates a limestone (crushed and
broken) type facility.

2713

2. The parties also stipulated that the Respondent is engaged in interstate commerce and that the Respondent is subject to the provisions of the
1977 Mine Act (Tr. 7).
B.

Occurrence of Violation

Citation No. 365911 was issued to the Respondent on April 23, 1980, by
Federal mine inspector Gene Upton. The citation charges the Respondent.with
a violation of mandatory safety standard 30 C.F.R. § 56.9-55 in connection
with a nonfatal accident which occurred at its Eckerty Quarry on April 10,
1980, in that:
The loose unconsolidated ground at the dumping point of
the agricultural lime stockpile was not sufficient to support the weight of the Ford L 800 Serial No. F80FUA45485.
The agricultural lime was approximately 45 feet in height
and 90 feet in width at the dumping point. The Ford stockpile truck L 800 Serial No. F80FUA45485 overtraveled at this
dumping point on [April 10, 1980] and approximately 7:30 a.m.
was the time of the accident.
(Exh. G-2).
The agricultural lime stockpile was roughly 45 feet in height and was
rougly 100 feet in width across the top. lf It had sloping sides and a berm
around the edge at the top except in the area directly affected by the
activities of the front-end loader in use at the base of the stockpile. The
front-end loader was removing agricultural lime from the stockpile and loading
it onto customers' trucks (Exh. 0-1). 2/ The activities of the front-end
loader had caused in that area both the formation of a vertical face on the
side of the stockpile and the destruction of the berm. Both conditions
developed as a result of material caving off from the side of the stockpile.
Mr. John E. Knust, one of the Respondent's stockpile truck drivers and
the individual involved in the accident, reported for work at the Eckerty
Quarry at approximately 7 a.m. on April 10, 1980. He acquired a load of
agricultural lime from the bins and drove up the ramp leading to the top of
the stockpile. l__/ Upon reaching the top, he backed his truck into position
to dump his load. He stopped approximately 10 feet from the edge in an area
directly above the vertical face of the stockpile created by the activities
~-The-measurements were taken during the course of the April 22, 1980,
accident investigation conducted by the Mine Safety and Health Administration.
The Federal mine inspectors were informed by employees of the company that the
conditions were approximately the same as those which had existed at the time
of the accident.
2/ The load-out operations began at approximately 5:30 a.m. on April 10, 1980.
3/ Mr. Knust was using a Ford L-800, 8-ton capacity dlllUp truck on the day of
the accident (see Tr. 16, 44, Stipulation ln.).

2714

of the front-end loader working below (Exh. 0-1). For the reasons noted
previously, there was no berm behind the truck. 4/ As the truckbed began to
rise, the ground beneath the truck gave way causing the truck to slide down
the side of the stockpile and overturn as it neared the bottom demolishing
the cab (Exhs. G-9, G-10). The accident occurred at approximately 7~30 a.m.
after Mr. Knust transported what was to have been his first load of material
to the stock pile that day.
Mandatory safety standard 30 C.F.R. § 56.9-55 provides that 11 [w]here
there is evidence that the ground at a dmnping place may fail to support the
weight of a vehicle, loads shall be dumped back from the edge of the bank."
The regulation thus requires that where there is evidence that the ground at
a dumping place may fail to support the weight of a vehicle, loads shall be
dumped at a sufficient distance from the edge of the bank to prevent a ground
collapse.
The fact that the accident occurred indicates that dumping was not
being performed at a sufficient distance from the edge of the stockpile to
prevent a ground collapse. The evidence presented, as set forth in the
testimony of Inspector Upton and as confirmed by the testimony of other
witnesses, demonstrates that ample evidence was present on April 10, 1980,
to show that the ground beneath the truck may have been inadequate to support its weight.
The ground was moist on April 10, 1980, as a result of recent rainfall.
Inspector Upton testified as an expert in the field of mine safety and health
that agricultural lime is partially dust and partially a granular material
which is affected by rainfall. The inspector further testified that rainfall
causes an erosion effect and washes away the finer dust leaving the granular
material, which would be unconsolidating. According to the inspector, this
would cause the agricultural lime pi.le to become "softer". Additionally, he
test:i.fied that loading out material from the s:i.de of the stockpile would
cause the ground a top the stockpile to be unstable, and that such instabHity
could be detected by examining the edge of the pile in that the material
would be caving off and caus:i.ng different types of faces at d:i.fferent times.
In the inspector's opinion, the accident was caused because the loose,
unconsolidated ground was insufficient to support the weight of the truck.
The moisture, the type of ground and the vertical face were the physical
factors upon wh:i.ch h:i.s opinion was based.
Mr. Knust gave testimony at one point wh:i.ch supports the conclusion that
the rainfall had adversely affected the agricultural lime stockpile. He
test:i.fied that the ground was damp as a result of the recent rainfall and
that the ground "was usually harder" than it was on April 10, 1980 (Tr. 16~
17). 21

u-Mr. Krlust testified that he misjudged the locat:i.on of the berm while
back:i.ng into position. He glanced out of his rearview mirror and thought
that one side of the truck was going to be against a berm (Tr. 106, 110).
This belief proved erroneous.
21 Mr. Knust attempted to retract this statement several questions later by
maintaining that the rainfall had made the ground harder, not softer, because

271~)

Messrs. Knust and Eckert gave testimony which supports the conclusion
that the load-out activities uriderway at the base of the stockpile and the
associated vertical face on the side of the stockpile were evidence that the
ground at the dumping place could fail to support the weight of the truck.
When asked whether he observed any ground condition which would have indicated that it was unsafe "to put your truck where it was," Mr. Knust testified that the "only thing is that I seen that they were loading out at that
particular place on the pile". Mr. Eckert testified that the worst hazard
in stockpiling is associated with the load-out operation because loading-out
causes the remaining material on the side of the pile to slide downwards.
The Respondent has placed great emphasis on its purported requirement
that loads be dumped at least 10 feet from the edge of the stockpile where
berms are absent in arguing that no violation occurred. The Respondent maintains that "[s]ince the cited standard does not specify a distance, but only
requires that loads be dumped 'back from the edge,' the distance of ten feet
established by the company and adhered to by Mr. Knust is reasonable and in
compliance" (Respondent's Posthearing Brief, p. 3). The Respondent's argument is not well founded. Mr. Robert Scheible, the Respondent's assistant
safety director, testified only that in his opinion dumping 10 feet from the
edge would be sufficient in most cases. He conceded that under some circumstances dumping 50 feet from the edge would be insufficient and maintained
that a driver must use his own judgment as to "whether 10 feet, 20 feet,
30 feet or 40 feet, or maybe not at all is sufficient" (Tr. 174). He further
testified that "[w]e dump every day on these piles and there is certainly
a lot of them being dumped closer than 10 foot" (Tr. 174·-175). In summary,
Mr. Scheible's testimony establishes that a fixed distance requirement is not
adequate under all circumstances to assure the requisite protection against
the hazards associated with ground failure, and that loads at the Eckerty
Quarry are in fact dumped at distances less.than 10 feet from the edge of
the stockpile. It is clear beyond any doubt that 10 feet was inadequate in
view of the conditions existing on April 10, 1980.
In view of the foregoing, I conclude that a violation of mandatory
safety standard 30 C.F.R. § 56.9-55 has been established by a preponderance
of the evidence.
C.

Negligence of the Operator

Mr. Gordon Ray Eckert, the supervisor in direct charge of operations at
the Eckerty Quarry, arrived at the facility at approximately 6:30 a.mo on
fn. 5 (continued)
agricultural lime gets harder when it gets wet (Tr. 18). Such attempted
retraction is not considered credible. It should also be noted that both
Mr. Clifton Cook III, another one of the Respondent's stockpile truck drivers,
and Mr. Gordon Ray Eckert, a supervisor, testified that agricultural lime
hardens when it gets wet (Tr. 81, 117). Their testimony on this point is
considered insufficient to establish the actual condition of the ground at
the time of the accident in view of the credible testimony of Mr. Knust that
the ground was usually harder than it was on April 10, 1980.

27lfj

April 10, 1980 (Tr. 139-140). It was customary for Mr. Eckert to make a
series of rounds upon reporting for work which entailed driving first through
the quarry area and thereafter examining the stockpiles (Tr. 121, 140). His
customary practice was to drive atop the stockpile and perform an examination
so as to detect any hazards (Tr. 121). On the morning of April 10, 1980, he
drove around the subject stockpile passing within 45 feet of it. However,
for some unexplained reason, he did not drive atop it (Tr. 120-122, 140,
145).
In view of the activities of the loader operator and the readily visible
condition arising as a consequence of his activities, Mr. Eckert was under an
affirmative obligation to perform a more thorough examination of the stockpile, which would have included driving atop it, designed to detect the
hazardous condition developing and to thereafter undertake effective steps
designed to prevent the occurrence of the type of accident involved herein.
It should be noted that the Respondent had given Mr. Knust some initial
training in stockpiling which included instructions that he get out of the
truck and examine the ground atop the stockpile prior to backing the truck
into position to dump a load of agricultural lime. Mr. Knust was negligent
in that he failed to perform such an examination on April 10, 1980. However,
when viewed in context, it is clear that the Respondent was under an obligation to provide additional instructions to Mr. Knust on April 10, 1980,
because he had been working as a full time stockpile truck driver for only
approximately 1 week prior to the accident. As stated in the preceding
paragraph, Mr. Eckert was under an affirmative obligation to perform a more
thorough examination of the stockpile designed to detect the hazardous condition developing and to thereafter undertake effective steps designed to
prevent the occurrence of the type of accident involved herein. In view of
Mr. Knust's relative inexperience, such effective steps would have included
either giving Mr. Knust additional instructions in stockpiling specifically
tailored to the hazards then existing or instructing the loader operator to
establish a berm atop the stockpile in the affected area.
In view of the foregoing, it is found that the Respondent demonstrated
a high degree of ordinary negli.gence in connection with the violation.
D.

Gravity of the Violation

The ground beneath the truck gave way causing the truck to slide down
the side of the agricultural lime stockpile, overturn and land upside down
demolishing the cab (Exhs. G-9, G-10). The driver was knocked unconscious
and received bruises to the chest, right shoulder and hip, and received lime
dust in his eyes (Exh. G-12). The driver lost 6 to 8 workdays as a result
of the accident.

2717

Although the injuries sustained were not more severe, it is clear that
Mr. Knust was exposed to potentially fatal or potentially permanently disabling injuries. In view of all of the circumstances surrounding the accident, it is found that the violation was extremely serious.
E.

Good Faith in Attempting Rapid Abatement

The citation was terminated within the time period specified for abatement (Exh. G-2). Accordingly, it is found that the Respondent demonstrated
'good faith in attempting rapid abatement.
F.

Size of the Operator's Business

The parties stipulated that the Respondent's size is rated at 469,971
annual production tons or man-hours, and that the size of the Eckerty Quarry
is rated at 101,812 annual production tons or man-hours.
G.

History of Previous Violations

No evidence was presented to establish that the Respondent has a history
of previous violations for which assessments have been paid. 6/ Accordingly,
it is found that the Respondent has no history of previous violations
cognizable in this proceeding.
6/ Exhibit B attached to the partial stipulation filed on January 29, 1981,
contains the statement that the Respondent had a total of seven assessed
violations during the preceding 24 months. However, in view of the wording
of the stipulation, it is clear that the parties did not stipulate this
figure into the record.
However, assuming for purposes of argument that this figure is properly
part of the record in this case, it cannot be determined therefrom that the
Respondent has a history of previous violations which is cognizable in this
proceeding. First, it appears that the 24 months was measured with reference
to April 23, 1980, and not with reference to the date of the violation. The
appropriate point of reference for determining the Respondent's history of
previous violations is the date of the violation, April 10, 1980, and not
the date when the citation was issued, April 23, 1980. It cannot be deter~·
mined how many, if any, of the seven assessed violations occurred prior to
April 10, 1980. Second, there is no indication that the Respondent has
actually paid civil penalties for any or all of the seven assessed violations.
It is well settled that paid assessments are the only assessments properly
included in a mine operator's history of previous violations. See Peggs Run
Coal Company, Inc., 6 IBMA 212, 83 I.D. 245, 1976-1977 CCR OSHD par. 20,839
(1976); Peggs Run Coal Company, Inc., 5 IBMA 144, 148-150, 82 I.D. 445, 1 BNA
MSHC 1343, 1975~1976 CCH OSHD par. 20,001 (1975); Old Ben Coal Company, 4 IBMA
198, 217-218, 82 I.D. 264, 1 BNA MSHC 1279, 1974-1975 CCH OSHD par. 19,723
(1975); Corporation of the Presiding Bishop, Church of Jesus Christ of Latter
Day Saints, 2 IBMA 285, 80 I.D. 633, 1973-1974 CCH OSHD par. 16,913 (1973);
V tlley Camp Coal Company, 1 IBMA 196, 203-204, 79 I.D. 625, 1 BNA MSHC 1043,
1971-1973 CCH OSHD par. 15,385 (1972).

2718

H.

to Remain

The parties stipulated that the payment of a $1,200 civ:il penalty will
not hann the Respondent's ab:i.l:i.ty to continue its operations. Additionally,
no evidence was presented by the Respondent to show that the assessment of
a civil penalty greater than $1,200 will affect its ability to remain :i.n
bus:i.ness.
In Hall Coal Company, l IBMA 175, 79 I.D. 668, 1 BNA MSHC 1037, 1971·~
1973 ccrCosr-fDpar-:-1~380 (1972), the Federal M:i.ne Safety and Health Review
Commission's predecessor, the Interior Board of Mine Operations Appeals, held
that evidence relating to whether a civil penalty will affect the operator's
ability to remain in business is within the operator's control, resulting in
a rebuttable presumption that the operator's ability to continue in business
will not be affected by the assessment of a civ:i.l penalty.
In view of the foregoing, I conclude that a civil penalty otherw:i.se
properly assessed in this proceeding will not impair the Respondent's ability
to remain in business.
VI.

Conclusions of Law

1. Mulzer Crushed Stone Company and its Eckerty Quarry have been subject to the provisions of the 1977 Mine Act at all times relevant to this
proceeding.
2. Under the 1977 Mine Act~ the Administrative Law Judge has jurisdic~
ti.on over the subject matter of, and the parties to, this proceeding.
3. Federal mine inspector Gene Upton was a duly authorized representa~
tive of the Secretary of Labor at all times relevant to the issuance of
Citation No. 365911, April 23, 1980, 30 C.F.R. § 56.9~55.
4. The violation charged in Citation No. 365911, April 23, 1980,
30 C.F.R. § 56.9-55, is found to have occurred.
5. All of the conclus:i.ons of law set forth :i.n Part V, E.npra, are
reaffirmed and incorporated herein.

Both parties delivered closing arguments on January 29, 1981. The
Respondent and the Petitioner filed posthearing briefs. The Respondent filed
a reply brief. Such closing arguments and briefs, insofar as they can be
considered to have contained proposed findings and conclusions, have been
considered fully, and except to the extent that such find:i.ngs and conclusions
have been expressly or impliedly affirmed in this decision, they are rejected
on the grounds that they are, in whole or in part, contrary to the facts and
law or because they are immaterial to the decision in this case.

VIII.

Penalty Assessed

Upon consideration of the entire record in this case and the foregoing
findings of fact and conclusions of law, I find that the assessment of a
civil penalty is warranted as follows:
Citation No.
365911

Date

30 C.F.R. Standard

Penalty

56.9-55

$8QO

April 23, 1980
ORDER

The Respondent is ORDERED to pay a civil penalty in the amount of $800
within 30 days of the date of this decision.

Distribution:
Steven E. Walanka, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail)
Philip E. Balcomb, Manager, Mulzer Crushed Stone Company, P.O. Box 248,
Tell City, IN 47588 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health,
U.S. Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

2720

FEDitlRAL MINE SAFETY AND HEALTH REVIEW COMMISSDON
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
i.,·~ fh;

,., t l

ftlU r ") \J
1

Contest of Citation

OLD DOMINION POWER COHPANY,
Contestant

Docket No. VA 81-40-R
Citation No. 683762-1
January 21, 1981

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

Westmoreland Coal Company's
Central Machine Shop
Civil Penalty Proceeding

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

Docket No. VA 81-65 1/
Assessment Control
No. 44-03108-03001 F KG2

v.
Westmoreland Coal Company's
Central Machine Shop

OLD DOMINION POWER COMPAi~Y,
Respondent
DECISION
Appearances:

IJilliam D. Lambert, Esq., Ogden, Robertson & 1-Iarshall,
Louisville, Kentucky, for Old Dominion Power Company;
Leo J. McGinn, Esq., Office pf the Solicitor, U.S. Department of Labor, for Secretary of Labor.

Before:

Administrative Law Judge Steffey

Pursuant to an order issued March 20, 1981, a hearing in the aboveentitled proceeding was held on April 22, 1981, in Wise, Virginia, under
section 105(d) of the Federal Mine Safety and llealth Act of 1977, 30 U.S.C.
§ 815(d).
At the conclusion of the hearing, counsel for the parties indicated
that they would like to file posthearing briefs. Counsel for Old Dominion
Power Company (hereinafter referred to as OD) filed his brief on July 17,
1981, and counsel for the Secretary of Labor and the Hine Safety and Health
Administration (hereinafter referred to as HSHA) filed his brief on July 15,
1981. 2/

1/
The actual Petition for Assessment of Civil Penalty had not been filed
in Docket No. VA 81-65 at the time the hearing was held, but my order issued
March 20, 1981, consolidated the civil penalty issues with the issues raised
by the Notice of Contest. Therefore, the civil penalty issues are ripe for
decision on the basis of the record made in this proceeding.
]:j
This decision has been delayed by the fact that I was out of the off ice
for 4 weeks because of an eye operation.

2721

Issues
Although the parties' briefs discuss identical issues, I have elected
to use the phraseology employed in OD's brief to state the issues because
all of the issues are hereinafter decided adversely to OD. If OD files a
petition for discretionary review, the Commission's determinations will be
facilitated by my having arranged my decision so as to track the issues
raised in OD's brief. Those issues are listed below:
(1)
the Act?

Is OD an "operator" or "independent contractor" within the scope of

(2) Are MSHA's regulations defining "operators" arbitrary and capricious and unconstitutional delegations of legislative authority?

(3)

Is OSHA responsible for [investigating] the conduct cited by MSHA?

(4) Is a 1-year delay in issuing a citation "reasonable promptness" as
required by the Act?
(5)

Is any civil penalty justified?

Findings of Fact
My decision will be based on the findings of fact set forth below. Hy
findings include all of the principal facts on which the parties rely in
support of their arguments.
1.
Old Dominion Power Company is a subsidiary of Kentucky Utilities
Company and purchases from its parent company all of the electricity it sells
to its customers (Tr. 39). OD does not own or operate any generating facilities. OD's service area is located entirely in Southwestern Virginia and
is cc·rnprised of the counties of Lee, Wise, Scott, Dickenson, and Russell.
OD r:~mploys about 80 persons, including service men, meter readers, substation
te~iltlicians, office clerks, engineers, customer service representatives, and
janitors (Tr. 17). Its sales of electricity amount to $24,000,000 on an annual
basis (Tr. 23). OD does not own mining properties and is not involved in
operating coal mines or any other type of mine (Tr. 18).

2.
OD is regulated by the Virginia State Corporation Commission and the
rate schedules and contracts under which it sells electric power are on file
with that Commission (Tr. 17). OD owns poles, towers, fixtures, wire, conductors, and other facilities used in the transmission, distribution and sale
of electrical energy and its facilities are subject to inspection by the
Occupational Safety and Health Administration (Tr. 12; 18; 71-72).
3.
OD does not normally perform construction work for which it makes a
special charge. During the last 10 years, for example, in only four instances
did it perform work which it agrees would permit it to be given the label of
a "contractor". Those instances involved the installation of some poles, wires,
and metering equipment. In one instance, the charge for the work was between
$2,500 and $3,000 and the total amount involved in the other three cases would

2722

not exceed $1,000. The largest charge related to some metering equipment
installed for a coal company other than the coal companies specifically
involved in this proceeding (Tr. 21-23).
4.
OD serves all customers of all types in its service area, including
coal companies, manufacturing companies, clothing stores, fast-food restaurants, and residences. It has more residential customers than any other type
of customers (Tr. 19). Westmoreland Coal Company is among the customers which
OD serves. OD's contracts with Westmoreland and its predecessor, Stonega Coal
and Coke Company, date back to 1917 (Tr. 23). The contract with Westmoreland
was updated in December 1952, to be effective on January 1, 1953, and provides
for specific delivery points and voltages, with the right of Westmoreland to
seek additional points of service (Tr. 24). OD presently has about 20 places
where service is rendered to Westmoreland, some for Westmoreland's own use
and some for operations involving companies which have contracted to mine
coal for Westmoreland (Tr. 28).
5.
The electrical substation involved in this proceeding was erected
on land owned by Penn-Virginia Resources Corporation and leased by Westmoreland. Power from the substation is received for use in a mine which Westmoreland has leased to Elro Coal Corporation and all coal produced by Elro is sold
to Westmoreland which, in turn, sells the coal for steam generating purposes
(Tr. 13). Westmoreland hired Vanderpool Electric Corporation to construct a
transmission line from one of its existing substations to the substation involved in this proceeding (Tr. 43). The substation was constructed by Westmoreland so that Elro could receive power to operate the equipment in its
No. 3 i1ine and Westmoreland operates the substation and is billed by OD for
power received at the substation (Tr. 27-28).
6.
The only factilities installed by OD 1 s employees at the substation
consist of three current transformers, two potential transformers, and a meter
(Tr. 34). Two of OD's employees had been to the substation to install those
facilities prior to the time the substation was first energized (Tr. 35). OD
did not charge Westmoreland any specific fee for installing the facilities
other than the charge which OD makes for power delivered to the substation.
OD does not consider the installation made at the substation to be any different
from the type of work which is done at any other delivery point to any other
type of customer (Tr. 29). Occasionally, OD installs check meters for some of
its customers, but when it does so, it only charges its customers the price
which it pays for such equipment, plus storage, freight, and handling expenses
(Tr. 29). OD normally does not have to send its personnel to a substation more
than once each month for the purpose of reading the meter, unless some special
problem occurs (Tr. 35). If problems do occur at a substation, the customer
calls OD and OD's employees determine what the cause of the problem is and
make repairs, acting independently of its customer's employees if the problems
are related to the facilities installed by OD (Tr. 81).
7.
Inasmuch as this proceeding involves a fatal accident which occurred
at the substation discussed above, it is necessary that the substation be

272a

described in some detail. The substation is surrounded by a wire fence and
has a gate on one side. The substation's purpose is to reduce the incoming
voltage from 12,470 volts to the voltage which is used in Elro's No. 3 Mine
(Tr. 26). Exhibit D is a picture of the substation. There are poles and
crossbars on the left and right sides of the substation. High voltage comes
into the substation from the left side and the voltage is reduced by the large
transformers sitting on the ground at the left side of the substation (Tr. 5051). The facilities installed by OD are situated on the bottom crossbar of
the two poles on the right side of the substation. The meter may be seen
on the pole in the foreground of Exhibit D and the current and potential
transformers are located on the bottom crossbar which is situated just above
the meter (Tr. 48).
8.
Exhibit E is a picture of the fuse disconnects through which the
high voltage passes before entering the transformers for voltage reduction.
The fuse disconnects are shown in the middle of Exhibit E and may also be
seen on the crossbar closest to the ground on the poles on the left side of
Exhibit D (Tr. 52). A fuse link extends between the holders located on each
end of the two-part insulators. The high voltage passes through the fuse link
unless a short circuit or other problem causes an overload on the system to
burn out the element in the fuse link so as to interrupt the flow of current
(Tr. 59). Fuse links of several types were described at the hearing and samples of two types were introduced in evidence as Exhibits F and I. Exhibit F
is a type which passes through a tube about 1 inch in diameter. The tube
is attached to both ends of the fuse holders shown in Exhibits D and E. If
the fuse link burns out or power to the substation is interrupted, the tube
(or barrel) falls down from the top holder and hangs in a vertical position
from the bottom holder, as shown in the diagram which is Exhibit G in this
proceeding (Tr. 53-56). The other type of fuse link is similar to the wire
described above, but it is not installed inside a tube and therefore may be
in place and power may be flowing through it without its exhibiting any signs
as to whether it is "alive" with power flowing through it or "dead" with no
energy flowing through it (Tr. 58; 101).
9.
The substation was first energized about 5 or 6 p.m. on January 21,
1980, by Westmoreland's electrical foreman, Terry Mullins. The next day,
January 22, about 8:15 a.m., Hullins talked to OD's superintendent of meters,
Jack Carr, on the telephone and expressed to Carr his doubts as to whether
Old Dominion's meter at the substation was working properly because no light
was visible in the meter and because the disk in the meter was turning counterclockwise. In Carr's opinion, the disk was supposed to turn counterclockwise,
but, to make certain that there was nothing wrong with the meter, he sent two
employees to the substation to check the meter (Tr. 99-100). The two employees
were James Harlow, a substation technician, and Leonard Lambert, a meter man,
first class (Tr. 44; 48; 88). Harlow had helped install the current and potential transformers and meter at the substation. Lambert would normally
have participated in the installation, but he was on vacation when the equipment was originally installed sometime in December 1979 (Tr. 38). Lambert had,
however, gone to the substation on January 21 and had installed a replacement
meter (Tr. 89) •

2724

10.
When Harlow and Lambert arrived at the substation, Harlow, who was
on the side of the van nearest to the substation, jumped out and looked at
the fuse disconnects described in Finding No. 8 above. He was used to seeing
the type of fuse link which is installed inside a tube. It was foggy and he
did not see any tube or wire between the fuse holders or hanging down from
the bottom holder, so he concluded that the substation was deenergized.
Lambert took Harlow's word for the fact that the substation was deenergized
(Tr. 49; 90-91). They did not at first go inside the fence around the substation to look at the meter because they concluded that the meter could not
be checked while no power was flowing through i t (Tr. 91; 94; 121). Although
the substation was energized and there was a hum coming from the transformers
(Tr. 49; 105), they apparently did not hear the hum because of noise coming
from a nearby generator (Tr. 119).
11.
Harlow and Lambert returned to their van, started the engine, and
were ready to leave when it occurred to them that the GE transformers they
had installed were of a new type and might have a rating of 5 KW instead of
the 15 KW which they should have had. They decided to check the nameplate
on the transformers to determine their classification. Harlow put on climbing
equipment and went up the pole to examine the nameplate. He could not see
the plate clearly because of water on it. Ile reached out with one hand to
rub the water off the nameplate and was illlillediately electrocuted when his
hand touched the energized transformer (Tr. 63; 91-96).
12.
OD has a safety program and has safety meetings of various kinds on
a weekly and quarterly basis (Tr. 67-70). OD's Safety Manual provides in
Part III, Section l, Paragraph 31-1, "Electrical equipment and lines shall
always be considered to be energized unless they are positively proven to be
deenergized and properly grounded. IF IT IS:N' T GROUNDED--IT ISN'T DEAD!"
(Exh. H; Tr. 65). Part I, Section 1, of the rules provides in paragraph
11-1 (b) that each employee ">'; 1; >'; shall carefully study (not merely read) 11
the safety rules applying to his duties and specifies that "~'; ~·; >'; ignorance
will not be accepted as an excuse for their violation." Additionally, the
same paragraph provides that employees may be periodically examined on their
knowledge of the rules (Tr. 65-66).
13.
The fatal accident was investigated by OD and by both OSHA and
MSHA. OD's general manager, H. E. Armsey, stated that OSHA did not cite the
company for any violation in connection with the accident because the deceased
employee "~'; ~·; >'; had violated a long-standing rule of the electrical utility
industry as well as Old Dominion Power Company's" (Tr. 71). Several of MSHA's
employees, including an electrical engineer named Roy Davidson, participated
in investigating the accident. After the investigation had been completed,
Davidson concluded that OD's employees had violated 30 C.F.R. § 77.704
which provides, in pertinent part, that "[h]igh-voltage lines shall be deenergized and grounded before work is performed on them". Davidson explained
that in some circumstances, not applicable in this proceeding, work may be
done on high-voltage lines while they are energized (Tr. 114-117). When work
is done on energized high-voltage lines, special protective equipment must
be utilized. Section 77-704-2(4) prohibits persons from working on energized
high-voltage equipment if adverse weather conditions exist. Since it was
rainy and foggy on the day of the accident, OD's employees would have acted

2725

in violation of section 77.704 even if they had utilized special protective
equipment and clothing (Tr. 136).
14.
Although Davidson concluded very shortly after the investigation
that a violation of section 77.704 had occurred, confusion arose as to which
entity should be cited for the violation because Elro Coal Corporation was
using the power received at the substation~Westmoreland owned and operated
the substation, and OD's employees did the work which caused the fatal accident (Tr. 109). Davidson first issued a citation to Elro and thereafter was
directed to reissue the citation in Westmoreland's name. He reissued it on
April 3, 1980, citing Westmoreland for the violation (Exh. 2). After the
citation in Westmoreland's name had been sent to the Assessment Of~ice for
processing under the civil penalty provisions of the Act, Davidson was
directed to vacate the citation issued to Westmoreland and reissue it in the
name of OD because, by then, the rulemaking proceedings providing for citing
independent contractors for violations occurring at coal mines had been completed (Tr. 111-113). Therefore, Davidson issued Citation No. 668762 on
January 19, 1981, as modified on January 21, 1981, citing Old Dominion for
a violation of section 77.704 in connection with the fatal accident (Exh.l;
Tr. 113).
15.
Davidson 1 s statement evaluating the penalty-assessment criteria of
negligence, gravity, and good-faith abatement was received in evidence as
Exhibit 3. Davidson considered OD to have been nonnegligent because the
person who was killed had been told before he left his duty station that the
substation had been enersized (Tr. 123). Davidson considered the violation
to have been very serious since a person was fatally injured (Tr. 128). He
believed that OD had shown a good-faith effort to achieve compliance because
its employees were reinstructed in safe procedures for making repairs on highvoltage systems within the time provided in the citation (Exh. 3; Tr. 139).
Consideration of Parties' Arguments
1.
Is OD an "operator" or "independent contractor" within the scope
of the Act?
OD's brief (pp. 9-14) contends that it is not an "operator" or an "independent contractor" within the meaning of section 3(d) of the Act. Sec tion 3(d)
defines an "operator" as follows:
(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;
OD's brief (pp. 9-10) begins its argument tho.t it is not an "operator" within
the meaning of section 3(d) by noting that the definition of "operator" in the
1969 Act did not specifically refer to independent contractors at all. OD concedes that the definition of "operator" was broadened in the 1977 Act to cover
independent contractors, but OD cites language from the legislative history
which, it says, shows that Congress did not intend for an independent con~
tractor to be considered as an "operator 11 unless such independent contractor
has a continuing presence at the mine and unless such independent contractor
is "under contract or otherwise, engaged in the extraction process for the

272fi

benefit of the owner or lessee of the property and to make clear that the
employees of such individuals or firms are miners within the definition of
the "[1977 Act].)_/
OD's brief (p. 11) next relies upon a quotation from National Indus. Sand
Ass'n v. Marshall, 601 F.2d 689 (3rd Cir. 1979), in which the court stated
(at page 701):

* * * The reference made in the statute only to independent contractors
who "perform[] services or construction" may be understood as indicating,
however, that not all independent contractors are to be considered operators. There may be a point, at least, at which an independent contractor's contact with a mine is so infrequent or de minimis that it would
be difficult to conclude that services were being performed. * * *
OD argues that it is required to serve all customers within its service area,
including Westmoreland Coal Company, with electricity. OD claims that its
meter is situated in a coal company's substation, but that the substation is
a considerable distance from any actual mine site where coal is produced.
OD states that the only reason its personnel visit a substation is to install,
read, inspect, and repair meters and related equipment. OD claims that its
services at a substation are for its own benefit so that it can send a bill to
its customer for power it has used, In such circumstances, OD argues that its
services are certainly de minimis and that it may not properly be found to be
an "operator" within th-;;-meaning of section 3(d) of the Act.
OD's next argument (Br., p. 12) is that interpretations of whether a company
is an "operator" within the meaning of section 3(d) should be made under the
rule of ejusdem generis so that an independent contractor should not be found
to be an "operator" unless its activities would justify placing it in the category of an "owner" or "lessee" to which reference is first made in section 3(d),
OD points to the National Indus. Sand case, supra, and notes that the court
in !:l1ai:: case stated that the principle of ejusdem generis had been used by
another court in Association of Bituminous Contractors v. Andrus, 581 F.Zd 853
(D.C. Cir. 1978), to find that the words "other persons" in section 3(d)
includes independent contractors who "control, operate or supervise a coal
mine". OD contends, however, that a similar conclusion would be improper
as to OD in this proceeding because OD does not have a "substantial participation in the running of" a coal mine as the court in National Indus. Sand
case thought was necessary before an independent contractor can be found to
be an "operator" within the meaning of section 3(d).
OD's brief (p. 13) next cites a sentence from National Indus. Sand in
which the court stated (601 F.2d at 702, fn 43):

3/
The quotation above is taken from a paragraph appearing on page 14 of
Senate Report No. 95-181, 95th Congress, 1st Session, or page 602 of the
Legislative History of the Federal Hine Safety and Health Act of 1977 prepared
for the Subcommittee on Labor of the Committee on Human Resources, United
States Senate, July 1978.

2727

* * * Inclusion as operators of those coal mine construction companies
which "do control and supervise the construction work they have contracted to perform" would in all likelihood as Bituminous Contractors
presages, constitute a reasonable exercise of the Secretary's authority.
OD argues, on the basis of the above quotation, that finding it to be an independent contractor and an "operator" within the meaning of section 3(d) would
disregard the substance of its contacts with the mine operation and would
exceed the congressional intent stated in the legislative history.
Finally, OD's brief (p. 13) cites National Independent Coal Operators
Ass'n. v. Brennan, 372 F.Supp. 16 (D.C.D.C. 1974), aff'd, 419 U.S. 955, and
claims that the court in that case struck down the Secretary's liberal interpretation of the word "operator" so as to include as "operators" under the Act
construction companies not involved in the mining process. OD's brief (p. 14)
thereafter summarizes its arguments above to the effect that contractors made
subject to the Act should be ~ngaged in construction at the mine, or involved
in the extraction process, and have a continuing presence at the mine. OD
contends that its activities fail to satisfy any of the criteria required for
finding it to be an "operator" within the meaning of section J(d).
When one reads the legislative history and court decisions on which OD
relies in the preceding summary of its arguments, it is found that the decisions
are all adverse to the arguments which OD makes. As for OD's claims that the
legislative history shows that Congress did not intend for an electric power
company to be found to be an "operator" under the Act, on the same page from
Senate Report No. 95-181 from which OD lifted the quotation I have set forth
above, the Committee also stated (Report No. 95-181, p. 14, or Legislative
History, supra, p. 602):
'f• ,., i• The Committee notes that there may be a need to resolve jurisdictional conflicts, but it is the Committee's intention that what is
considered to be a mine and to be regulated under this Act be given
the broadest possiblfe] interpretation, and it is the intent of this
Committee that doubts be resolved in favor of inclusion of a facility
within the coverage of the Act.

* * * In enforcing this Act, the Secretary should be able to issue
citations, notices, and orders, and the Commission should be able to
assess civil penalties against such independent contractors as well
as against the owner, operator, or lessee of the mine. The Committee
notes that this concept has been approved by the federal court in
Bituminous Coal Operators' Assn. v. Secretary of the Interior, 547 F2d
240 (C.A.4, 1977).
Thus, before the 1977 Act even became effective, the courts had already held
that independent contractors could be found to be "operators" within the meaning of section 3(d) before that section was specifically amended to include
independent contractors as "operators". Moreover, the Fourth Circuit in the
Bituminous Coal case referred to inthe quotation above from Senate Report
No. 95-181, the court stated that the Brennan case, supra, on which OD relies,

2728

''* * * does not furnish persuasive authority for decision of the issues in
this case" because the holding in Brennan was made with respect to whether
independent contractors had to comply wit-h the "black lung" provisions of
Title IV of the Act rather than with the safety regulations which are involved
in Titles II and III of the Act (547 F.2d at 245). Consequently, OD's reliance on the Brennan case is misplaced because that decision had nothing to
do with whether the Secretary can cite an electrical company for violations
of the mandatory safety standards when the electrical company is rendering
services for a coal company on mine property.
In the BCOA case cited in Senate Report No. 98-181, the court referred to
power lines as one of the facilities which independent contractors might construct on mine property and be found to be operators within the meaning of the
Act (547 F.2d at 243). The court held that when a contractor sinks a shaft
or places other equipment on mine property, it is performing work on facilities which are "to be used in" the work of extracting or processing coal (SL17
F. 2d at 245). Moreover, the court stated that the ">'< ;'< ;'; fatality rate for
contractors' employees is greater than that for the rest of the coal mining
industry". Inasmuch as the Senate Report which OD cites in support of its
claim that Congress did not intend for electrical companies to be cited as
"operators" shows that the Committee was aware of the holdings of the court
in the BCOA case, there is little merit to OD's claim that Congress could not
have intended that electrical companies be cited as "operators" when they
amended the definition of "operators" to include independent contractors which
are "performing services or construction at such mine".
Also OD can take no comfort from the holding of the court in the Assn. of
Bituminous Contractors case, supra, in which the court applied the principle
of ejusdem generis and found that the term "operator", as used in section 3(d)
would include independent contractors because they are similar in nature to
"owners" and "lessees" because they supervise and control a "coal mine" as that
term is defined in the Act (581 F.2d at 861). The part of the court's rationale which OD fails to consider is that the court did not hold that the independent contractor has to participate in the actual extraction of coal in order
to be found to be an independent contractor and an "operator" within the meaning
of the Act. The court interpreted the words "controls, or supervises a coal
mine" in section 3(d) of the Act to include independent contractors who "control
and supervise the construction work they have contracted to perform over the
area where they are working" (581 F. 2d at 362-863). [Emphasis in original.]
In this proceeding, OD's contract with Westmoreland required Westmoreland
to provide OD with (Exh. B, page 2):

"< ;~ ;~the right, privilege and easement to construct, operate, use and
maintain electric power and transmission lines for the transmission of
electrical energy, and a telephone line for communication, together
with all necessary towers, foundations, poles, wires, cables, guy wires,
stay wires, braces and all other fixtures and appliances necessary or
convenient for said purposes on and over the surface of all those five
certain strips or parcels of land situate(d] in Wise and Lee Counties,
Virginia >~1dc
Under OD's rules and regulations on file with the Virginia Corporation Commission, OD is given (Exh. A):

2729

'" >'< the right of access to the Customer's premises at all reasonable
times for the purpose of installing, reading, inspecting or repairing
any meters, devices and other equipment used in connection with its
supply of electric service, or for the purpose of removing its property
and for all other proper purposes.
>'<

In this proceeding, OD installed three current and two potential transformers
and a meter at Westmoreland's substation.
OD reserved its exclusive right to
control, check, read, and repair those facilities at the substation. The substation was located on mine property leased by Westmoreland from Penn-Virginia
Resources Corporation (Finding No. 5, supra).
OD delivers power to Westmoreland
at 20 different locations (Finding No. 4, supra).
The evidence, therefore,
clearly shows that OD has a contract to construct facilities on mine property
and that those facilities are essential to the extraction of coal because cutting
machines, continuous-mining machines, roof-bolting machines, conveyor belts,
and other mining equipment will operate only when they are connected to a source
of electrical power.
In the circumstances described above, the court's opinion in Assn. of
Bituminous Contractors, supra, is applicable to OD, including the conclusion
reached by the court at 581 F.2d 863:
"~ ,·~ '" If a coal mine owner or lessee contracts with an independent construction company for certain work within a certain area involved in the
mining operation, the supervision that such a company exercises over
that separate project clearly brings it within the statute. Otherwise,
the owner would be constantly interfering in the work of the construction company in order to minimize his own liability for damages.
The
Act does not require such an inefficient method of insuring compliance
with mandatory safety regulations.

2.
Are MSHA's Regulations defining "operators" arbitrary and capricious
and an unconstitutional delegation of legislative authorit_y_?
OD's brief (pp. 14-20) attacks MSHA's regulations on the ground that MSHA
abused its discretion in finding (45 Fed. Reg. 44494):
that it had broad discretion to define the respective compliance responsibilities of owners, lessees or other persons who operate, control or
supervise mines [production-operators] and independent contractors working at mines.
OD also objects to MSHA's issuance in this proceeding of a citation based on
MSHA's definition of an independent contractor which provides (30 C.F.R.
§ 45.2(c) and 45 Fed. Reg. 44496):
(c) "Independent contractor" means any person, partnership, corporation, subsidiary of a corporation, firm, association or other organization that contract·s to perform services or construction at a mine;
OD maintains that it has been improperly found to be an independent contractor
in this proceeding because it does not come within HSHA's definition of an
independent contracLcr.
OD contends that it has no contract to perform

2730

services at Westmoreland's mine other than the contracts introduced in this
proceeding which require OD ''* *
to furnish electrical power and to install
meters to measure the quantity of electricity being used" (OD's Brief, p. 15).
OD again states that its contract with Westmoreland required it to do nothing
at the substation here involved that it would not do at any other substation
for any other customer. OD argues that it does the same kind of work on farms
and residential property that it did for Westmoreland and that it simply can't
be found to be an "independent contractor" and an "operator" under the Act on
the basis of the type of services and work done by it at Westmoreland's substation (OD's brief, p. 16).

*

OD continues its attack on MSHA's regulations pertaining to independent
contractors by contending that it is an abuse of discretion for MSHA to make
a rule which can be interpreted in a fashion which makes OD an independent
contractor subject to the provisions of the Act.
OD argues that MSHA's claim
that it has "broad discretion to define the respective compliance responsibilities of
independent contractors'' amounts to an unconstitutional delegation of legislative authority by Congress to an administrative agency (Brief,
p. 18). OD contends that while "•'c ,·~ ;'< Congress has authority to grant power
to an administrative agency to pn::scribe rules and regulations, that authority
does not include the power to make law, because no such power can be delegated
by Congress (Brief, p, 18). OD cites Reid v. Memphis Publishing Co., 521 F.2d
512 (6th Cir. 1975) and Manhatten Gene~Equipment Co. v. Commissioner,
297 U.S. 129 (1936), and other cases in support of the foregoing argument.

***

While it is true that the cases cited by OD do hold that Congress cannot
delegate the power to make law to an administrative agency, I do not find from
my review of the regulations pertaining to independent contractors that the
Secretary of Labor or MSHA promulgated any rules which amounted to "making
law". As MSHA's counsel points out in his brfef (p. 8), section 508 of the
Act authorizes the Secretary to ''*
issue such regulations as each [Secretary]
deems appropriate to carry out any provision of this Act." MSHA issued regulations pertaining to independent contractors in conformance with all due process requirements of the Administrative Procedure Act (5 U.S.C. § 553). MSHA's
brief (p. 8) shows that the rules were properly promulgated in the well-stated
explanation quoted below:

**

Following the development of a draft proposed rule and the circulation of that draft for comment to interested parties, a notice announcing the availability of the draft proposal was published in the Federal
Register on October 31, 1978 (L1J FR 50716). As a result of conunents
concerning the draft proposal, changes in it were made prior to its
publication in the Federal Register as a proposed rule on August 14,
1979 (44 FR 4!+746).
" ;eries of public hearings was announced on
September 14, 1979 in the Federal Register (!14 FR 511540), and the hearings were conducted between October 11 and October 30, 1979. After full
consideration of all comments and testimony concerning the proposed rule,
the final rule was published in the Federal Register on July 1, 1980
(45 FR !+4494). The final rule became effective July 31, 1980.

2'7

One of OD's witnesses stated that OD would have commented on the proposed
rules pertaining to independent contractors if OD had been given proper notice
of the fact that they had been proposed (Tr. 75-76). I am adopting a paragraph
from MSHA's brief as an appropriate reply to that contention (MSHA's brief,
p. 9):
To this objection [lack of proper notice] MSHA responds that it is
a well settled principle of law that the publication of regulations in
the Federal Register gives legal notice of their contents to all who may
be affected thereby. Federal Crop Insurance Corporation v. Merrill, 332
U.S. 380, 384-385, 68 S.Ct. 1, 92 L.Ed. 10 1947); Wolfson v. United
States, 492 F.2d 1386, 1392 (Ct.Cl. 1974); Federal Register Act of 1935,
44 U.S.C. §1507 (1978). Therefore, MSHA concludes that Old Dominion
had legal notice of the publication of the final rule on independent
contractors and that due process was observed.
MSHA certainly did not make law in promulgating the definition of an independent contractor which is set forth in the final rules. Comparison of MSHA's
definition of an independent contractor with the definition of "operator"
given in section 3(d) of the Act shows that MSHA merely paraphrased the definition of "operator". The legislative history which has been quoted in this
decision and in OD's brief shows that Congress added independent contractors
to the list of persons who could be cited by MSHA for violations of the mandatory health and safety standards. MSHA did nothing more than comply with the
Act when it promulgated the independent-contractor regulations to which OD
obj er.ts.
Regardless of whether one relies on the definition of "operator" in
section 3(d) of the Act, or the definition of an independent contractor given
in section 45.2(c) of the regulations, OD's activities at Westmoreland's substation were clearly sufficient to bring OD within the categories of "operator"
and "independent contractor". The record shows that OD had a contract with
Westmoreland under which OD reserved the e~::clusive right to install all facilities required to determine the amount of electrical energy supplied to Westmoreland for Elro Coal Corporation's No. 3 Mine. OD's employees installed the
necessary metering facilities and had exclusive control over those facilities.
OD's exclusive control over those facilities required it to determine whether
to send employees out to the substation to check the metering facilities in
response to Westmoreland's notification that the metering facilities were not
working properly. The checking of the metering facilities by OD's employees
resulted in the death of one of OD's employees through failure of that employee
to comply with a mandatory safety standard.
Section 103(j) of the Act requires the operator of a coal mine to report
all accidents to MSHA. Therefore, Westmoreland had to report to MSHA the fact
that a fatal accident had occurred at its substation located on mine property.
MSHA is required by section 103(j) of the Act and by section 50.11 of the regulations to investigate accidents occurring at coal mines. If a violation is
found by MSHA's inspectors, they are required by the Act to issue citations or
orders. In issuing those citations or orders, they must determine what entity
is responsible for the occurrence of the violation. In this instance, the
evidence clearly shows that the accident was caused by the failure of OD's
employees to follow their own rules as well as the mandatory safey standards.

2732

Since the regulations to which OD is objecting in this proceeding had not been
finalized at the time of the accident on January 22, 1980, the inspector first
issued the citation here involved to Elro Coal Corporation, and then to Westmoreland, and, finally, to OD because the rules pertaining to citing independent contractors for violations had been finalized between the time the accident
occurred in January 1980 and the time the citation was issued to OD on
January 21, 1981.
The final assault which OD's brief (p. 20) makes on MSHA's rules pertaining to independent contractors is that they do not take into consideration how
remote from actual mining activities a company's work on mine property may be,
or how short and infrequent a company's contacts with mine property may be.
OD claims that the failure by MSHA to consider such elements is an arbitrary
extension of the rules to all companies and is therefore an illegal and arbitrary extension of power. A reading of MSHA's explanatory discussions published in the Federal Register at the time the rules were finalized shows that
MSHA had originally considered the very approach advocated by OD, but MSHA
rejected that approach because the persons who commented on the proposed rules
believed that such an approach would produce arbitrary results. MSHA's explanation, in pertinent part, was stated as follows (45 Fed. Reg. 44495):
7, ~·, ~~ Commenters also objected to the consideration of "major work" and
"continuing presence" as irrelevant and arbitrary.

The cornmenters' analysis of the concept that independent contractors
are generally in the best position to prevent safety and health violations
in the course of their own work, and to abate those violations that may
occur, has persuaded HSHA that holding all independent contractors responsible for their violations will in the majority of instances improve
the overall safety and health of miners. MSHA has concluded that a
regulation that would distinguish some contractors from others in fcrm~
lating a comprehensive enforcement scheme could, at this time, be overly
complex, imprecise and lead to arbitrary decisions that would not promote
the safety and health of miners. Therefore, HSHA believes that enforcement decisions should be made on the basis of the facts pertaining to
each particular case, at least until MSHA gains more ~xperience with
independent contractors under the Act. Independent contractors and
production-operators will have notice of their compliance responsibilities through this final rule and through enforcement: guidelines which
will be made available to all interested persons. * * *
As has been indicated above, OD had exclusive control over its facilities
and employees and was in the best position to have prevented the fatal accident
involved in this proceeding. Therefore, OD was the proper party to be cited
for the violation. In short, OD has shown nothing about the rules pertaining
to independent contractors which shows that they were arbitrarily issued or
involve an unconstitutional delegation of legislative power to the Secretary
of Labor or MSHA.
3.

Is OSHA responsible for investigating

~he

conduct cited by HSI-IA?

OD's brief (pp. 20-21) opens its claim that it should be subject only to
OSHA's regulations with an argument that OSHA's and MSHA's regulations are

2733

inconsistent and that OSHA's regulations are better designed to cover the
facilities and services performed by electrical utilities than MSHA's regulations are. OD contends that HSHA's regulations would require its employees
to be qualified mine electricians, or have at least 1 year of experience in
performing electrical work in a mine and complete a coal-mine electrical training program approved by MSHA, or have 1 year of experience in mining activity
and pass a series of 5 tests administered by the Secretary. OD cites section
77. 103 of the regulations in support of the foregoing argument.
The guidelines published in the Federal Register (45 Fed. Reg. 44498) at the time the
final rules pertaining to independent contractors were issued suggests that
MSHA's training program for independent contractors will be different from
that required for employees of operators who are engaged in the actual extraction of coal from mining property.
Therefore, I am not certain that OD's
claims about the adversity of being subject to MSHA's regulations at mine sites
is correct,
Assuming, arguendo, that OD would have to provide its employees with additional training before they are qualified to work at substations on mine property, the facts in this proceeding show that OD could well spend some additional
time training its employees. For example, the evidence shows that two men went
to check metering facilities at Westmoreland's substation on January 21, 1980.
The one who was electrocuted was called a substation technician and the other
one was called a meter man, first class. They had been told to find out why
a light did not work in the meter and to determine whether the disk in the
meter was supposed to turn counterclockwise. The supervisor who sent them to
check the meter believed that the meter was supposed to turn counterclockwise.
As it turned out, the meter which was installed did not have a light in it
(Tr. 50) and the disk was properly turning in a counterclockwise direction
(Finding Nos. 8-10, supra). The meter man, first class, had installed the
meter on the day preceding the accident and should have known it did not have
a light in it (Tr. 89). Yet, when the two employees arrived at the substation,
the substation technician incorrectly concluded that the substation was deenergized and stated that he could not check the light in the meter unless electrical energy was flowing through it. The meter man, first class, did not remind
the substation technician that the meter did not have a light in it to check,
regardless of whether power was flowing in it or not.
Moreover, the substation technician first suggested that a ladder be
placed across the fence of the substation against the pole on which the tranpformers had been installed. Even if the substation had not been energized,
he would have violated OD's regulations as to the placement of ladders (Exh. H,
Part I, Section 4), when he proposed that they check the nameplate on the
transformers by placing a ladder across the fence around the substation in
order to get close enough to the transformer to read the nameplate (Tr. 93).
It was only because of a counterproposal by the meter man, first class, that
the substation technician failed to carry out his proposed use of a ladder to
check the nameplate. Although OD claims that the substation technician had
missed only three of the quarterly training sessions given over a 10-year
period, his hasty and ill-considered actions on January 22, 1980, show that
OD's safety meetings were not making any impression on the work habits of the
substation technician. Therefore, I find that OD's objections to having to
comply with MSHA's regulations are not a valid reason for me to find that OD

2734

should be considered to be exempt from MSHA's jurisdiction over work done by
OD on mine property.
OD 1 s brief (p. 22) next refers to the OSIIA-MSHA Interagency Agreement
which has been published in the Federal Register (44 Fed. Reg. 22327) and
which was introduced in this proceeding as Exhibit J, That agreement provides
some general principles which govern the classes of activity over which MSHA
and OSHA will assert jurisdiction.
Most of the discussions in the agreement deal with questions of which
activity are mining as opposed to milling since MSHA has jurisdiction over
mining operations and OSHA generally has jurisdiction over milling activities.
OD cites one sentence in the agreement as a basis for arguing that its activities
at Westmoreland's substation should be subject to OSHA's jurisdiction. That
sentence reads as follows (Exh. J, p. 1):

* * * Also, if an employer has control of the working conditions on the
mine site or milling operation and such employer is neither a mine
operator nor an independent contractor subject to the Hine Act, the
OSH Act may be applied to such an employer where the application of the
OSH Act would, in such a case, provide a more effective remedy than
citing as a mine operator or an independent contractor subject to the
Mine Act who does not, in such circumstances, have direct control over
the working conditions.
The sentence quoted above might be helpful to OD's position in this proceeding
if I had not already shown in the preceding part of this decision that HSHA
properly found OD to be an independent contractor which is subject to the
Mine Act. OD did have direct control over the work it did at the substation
and it was appropriate for MSHA to assert jurisdiction under the Mine Act.
OD's brief (p. 22) additionally argues tat the Interagency Agreement makes
clear that double regulation is not intended. Although employees of both OSHA
and MSlIA investigated the fatal accident at Hestmoreland' s substation, OSlIA
did not cite any violations and made no contention that it had exclusive
jurisdiction to investigate the accident. The Interagency Agreement comes
into play only if MSHA and OSHA cannot agree at the local level as to which
agency has jurisdiction. OD is correct in pointing out that no formal assignment of jurisdiction as between OSHA and MSHA was agreed upon with respect to
the accident which occurred at the substation (OD's brief, p. 23). The
accident involved in this proceding seems to have been the first occasion
which required the two agencies to determine which had jurisdiction over the
activities of an electrical utility at substations on mine property. The
Interagency Agreement shows that the primary basis for determining jurisdiction as between HSHA and OSHA depends upon which activities occur on mine
property as opposed to milling or manufacturing operations which occur off of
mine property. It is clear under the lnteragency Agreement that a given company may be subject to the jurisdiction of both OSHA and MSHA because the Interagency Agreement has a-discussion on page 3 pertaining to the determination
of the place at which MSHA's jurisdiction ends and OSHA's jurisdiction begins.
The outcome of this case will apply in future cases in determining where MSHA's
jurisdiction over electric utilities ends and OSHA 1 s begins. It is obvious
that any of OD's activities on mine property should henceforth be subject to

273b

MSHAvs jurisdiction while OD's activities off of mine property will be subject
to OSHA's jurisdiction.
MSHA's brief (pp. 13-17) contains an excellent discussion of why MSHA's
jurisdiction was appropriately and properly exercised with respect to the
accident which occurred at Hestmoreland's substation. One paragraph is
especially pertinent and is quoted below GIBHA's briefs pp. 14-15):
Iu ruling on the extent as well as the limitations of OSHA jurisdiction under paragraph 4(b)(l) [of the 1970 Occupational Safety and
Health Act], the United States Court of Appeals for the Fourth Circuit
held that exemption from the Occupational Safety and Health Act applies
only when another Federal agency has actually exercised its statutory
authority to regulate employee safety. The court stated that when the
facts show that a Federal agency has not exercised its statutory authority to regulate employee safety, the OSHA Act applies, but where the
Federal agency has exercised its statutory authority to prescribe
standards affecting safety or health in the area in which the employee
goes about his daily tasks, the authority of OSHA is foreclosed.
Southern Railway Company v. Occupational Safety and Health Review Commission,
539 F.2d 335 (1976). Since the issue in this case is an alleged violation
on coal mine property of a mandatory safety standard of the Hine Safety
and Health Act, the inescapable conclusion must be that OSHA jurisdiction
i~, as the court has stated, foreclosed.
On the basis of the foregoing discussion, I find that OSHA was not responsible for investigating the conduct of OD's employees at the substation
on January /.2, 1980, and that the violation found by MSHA's inspector was properly cited under the Hine Act and the regulations promulgated thereunder.
4.
Is a 1-year delay in issuing a citation "reasonable promptness" as
required by the Act?
OD's brief (p. 23) contends that the citation in this case was not issued
to OD with "reasonable promptness" as required by section 104(a) of the Act
which provides, in pertinent part, as follows:
(a) If, upon inspection or investigation, the Secretary or his
authorized representative believes that an operator of a coal or other
mine subject to this Act has violated this Act, or any mandatory health
or safety standard, rule, order, or regulation promulgated pursuant to
this Act, he shall, with reasonable promptness, issue a citation to the
operator. * * * The requirement for the issuance of a citation with
reasonable promptness shall not be a jurisdictional prerequisite to
the enforcement of any provision of this Act.
OD states that the OSH Act prohibits the issuance of a citation after the
expiration of 6 months following the occurrence of any violation. OD's brief
(p. 24) also correctly states that the inspector who wrote the citation here
involved did not know of any other instance in which there was a delay of
more than 6 months between the occurrence of a violation and the writing of
a citation. OD's brief (p. 23) states that the legislative history does not
show why Congress failed to set a specific time limitation on the issuance

2736

of citations under the Mine Act. MSHA's brief (p. 12), on the other hand,
cites some legislative history from Senate Report No. 95·-181 which appears
to show exactly why Congress failed to specify an exact period of time.
That explanation is quoted below (Report No. 95-181, p. 30, or page 618
of Legislative History)~

* * * There may be occasions where a citation will be delayed because
of the complexity of issues raised by the violations, because of a protracted accident investigation, or for other legitimate reasons. For
this reason, Section [104(a)] provides that the issuance of a citation
with reasonable promptness is not a jurisdictional prerequisite to any
enforcement action. l'~ l'~ i·~
As indicated in Finding No. 14, supra, MSHA's inspector determined very
shortly after investigating the fatal accident that a violation of section
77.704 had occurred. He first issued the violation in the name of Elro Coal
Corporation, then in the name of Westmoreland, and finally in the name of OD.
Therefore, no delay occurred in the determination that a violation had occurred.
The delay arose because of the complexity of the law with respect to whether
MSHA should cite only a production operator for the violations of independent contractors working on mine property. The inspector first cited the production operators because the law was in a state of confusion as to whether
only the production operator (Westmoreland) or the independent contractor,
or both, should be cited for violations caused by activities of independent
contractors working on mine property.
The Commission first considered the question of whether an operator can
be cited for violations by independent contractors in Republic Steel Corp,
1 FMSHRC 5 (1979). In that case, the Commission reversed an administrative
law judge's decision in which the judge had held that the independent contractor was liable for the violation there involved. The Commission held that an
operator can be cited for the independent contractor's violation even if only
the independent contractor's employees are in the area where work is being
performed. In footnote 13 at 1 FMSHRC 11, the Commission majority explained,
however, that it was not holding that only the operator is liable because
it believed that both the independent contractor and the operator could be
held to be liable and that both could be cited in a separate or a consolidated proceeding.
The Commission's Republic decision followed the Fourth Circuit's decision
in Bituminous Coal Operators As~. v. Secretary of Interior, 547 F.2d 240 (4th
Cir. 1979), already cited above, in which that court held that construction
companies are subject to the Act because they work on a facility which is to
be used in the work of extracting coal. The court said that construction
companies are subject to the Act and must observe the health and safety
standards promulgated under the Act. The court held, before the 1969 Act was
specifically amended to include independent contractors as "operators," that
construction companies can be "operators" because they control and supervise
work at coal mines. The court said that when they sink a shaft or build a
tipple, they are controlling a mine because the facility will be used to
extract coal. The court also held that a construction company can be found
to be an "operator" before any coal has begun to be extracted from the mine

and can be found to be an "operator" if they are working on only a part of a
mineo Finally, the court held that the Secretary of Interior could issue
notices of violations and orders to construction companies and could assess
and collect penalties from them. The court stated that it was up to the
Secretary in each case to decide whether the production operator or the construction companys or both, were liable and which or both should be cited.
In Association of Bituminous Contractors, Inc" v. Cecil D. Andrus, 581
F.2d 853 (1978), also previously cited above, the D.C. Circuit made holdings
similar to those stated by the Fourth Circuit in the BCOA case, supra.
In Cowin and Company, Inc., 1 FMSHRC 20 (1979), the Commission affirmed
a judge's decision finding that an independent contractor should be cited for
a violation under the 1969 Act. The former Board of Mine Operations Appeals
had reversed the judge on the basis of Order No. 2977 which had been issued
by the Secretary of Interior requiring that only the production operator
could be cited for violations by.the independent contractor. In Kaiser Steel
Corp., 1 FMSHRC 343 (1979), the Commission majority held that the production
operator could be cited for a violation committed by an independent contractor
named Boyles Brothers. In Consolidation Coal Co., 1 FMSHRC 347 (1979), the
Commission majority also upheld the citing of a production operator for an
independent contractor's violations. The Commission made a similar holding
in J-1onterey Coal Co., 1 FMSHRC 1781 (1979).
In Old Ben Coal Co., 1 FMSHRC 1480 (1979), the Commission also upheld
the citing of a prorluction operator for the independent contractor's violation,
but the Commission noted that the citation in that case had been written in
April 1973 shortly after the 1977 Act became effective. Since the 1977 Act
specifically provided for independent contractors to be cited as "operators",
the Commission said that if, in future cases, it should find that the Secretary
of Labor was citing operators purely for administrative convenience, it would
not approve such procedures.
The most recent action taken by the Commission with respect to citing
independent contractors, as opposed to production operators, or both, was in
Pittsburgh & Midway Coal Mining Co., 2 FMSHRC 2042 (1980), in which the Commission remanded a case to an administrative law judge so that the Secretary
of Labor could apply the procedures for citing independent contractors for violations as those procedures were set forth in Volume 45 of the Federal Register
at pages 44,494 to 44,498. The Commission indicated in its decision that
the Secretary was free to proceed against either the independent contractor
or the production operator, or both. The Commission has issued similar orders
in at least two other proceedings, remanding the cases for the purpose of
allowing the Secretary to apply the rules pertaining to citing independent
contractors for violations of the mandatory safety standards (C and K Coal Co.,
2 FMSHRC 2047 (1980), and Phillips Uranium Corp., 2 FMSHRC 2050 (1930)).
My review of the cases involving the issue of whether the Secretary or
HSHA should cite the production operator or the independent contractor, or
both, for violations occurring at mine sites shows that HSHA was proceeding
under a series of legal decisions and that a considerable time elapsed before
a consistent policy finally was achieved. In such circumstances, I find
that complexities existed in applying the Act which justified the fact that
the violation in this instance occurred on January 22, 1980, and was not

2738

charged in a citation issued to OD until January 21, 1981, or 1 day less than
a year after its occurrence.
In Salt Lake County Road Department, 3 FMSHRC 1"114 (1981), the Commission
affirmed a judge's decision which had denied a motion to dismiss a Proposal for
Assessment of Civil Penalty which had not been filed within 45 days as provided
for by section 2700.27 of the Commission's rules. The Commission stated that
section 105(d) of the Act provides that the Secretary is to notify the Commission "immediately" after a notice of contest is filed. The Commission stated
that it had implemented the word "immediately" in the Act by using a time period
of 45 days in the rules. The Commission stated, however, that the legislative
history showed that although Congress wanted prompt notification in order to
promote fairness, Congress did not want a penalty case to be vitiated simply
because the notification happened, in a rare instance, to be somewhat less
than prompt. The Commission also stated that it was appropriate to determine
whether the late filing of the Proposal for Assessment of Civil Penalty was
prejudicial to the respondent in that case and the Commission held that no
prejudice had resulted in that instance.
The evidence in this proceeding shows that no prejudice to OD resulted
because of the fact that OD was not specifically cited for a period of 1 year.
OD had participated in the thorough investigation which MSHA made into the
cause of the accident and MSHA personnel came to OD's office and discussed the
fact that MSHA was considering the question of finding OD to be an operator
under the 1977 Act pursuant to the new rules which MSHA had promulgated with
respect to independent contractors (Tr. 75-78). OD filed a notice of contest
of the citation after it was issued and OD has been provided with a hearing
and with the opportunity to file a brief in support of its position. Therefore, the fact that the citation was not issued to OD for a year after the
violation occurred has not been prejudicial to OD.
(5)

Is any civil penalty just~?

OD 1 s brief (p. 24) contends that even i f it should be determined that OD
is subject to MSHA's jurisdiction, it would be totally inappropriate to assess
any civil penalty whatsoever because the accident occurred through no fault of
OD. OD notes that the inspector's statement evaluating negligence showed that
the inspector did not believe that OD could have known or predicted that the
accident would occur and that its occurrence was beyond OD's control. OD argues
that the electric utility industry is very safety conscious and that OD has a
thorough safety program. OD emphasizes that the employee who was electrocuted
was told before he went to the substation that it was energized and that he
violated a well-known company rule with which he was very familiar (Finding Nos.
12 and 15, supra). In such circumstances, OD contends that assessment of a
penalty would serve no useful purpose.
Even OD's witnesses agreed that a violation of the company's safety rules
had occurred (Tr. 64; 96). One of the rules violated was Paragraph 31-1 in
Part III of OD's Safety Manual (Exh. H) and i t requires that electrical lines
be grounded before work on them is done. Citation No. 688762-1 issued by the
inspector cited OD for a violation of section 77.704 which provides, in pertinent part, that "[h]igh-voltage lines shall be deenergized and grounded before

2739

work is performed on them, except that repairs may be permitted on energized
high-voltage lines if ,., ,., ,.," certain safeguards are followed. The inspector
testified that work can be done on energized lines only under certain conditions and that one of the conditions is that the weather be satisfactory.
Inasmuch as it was rainy and foggy on the <lay of the accident, the inspector
said that no work could have been done on the energized high-voltage lines
under the weather conditions prevailing on the day of the accident without violating the provisions of section 77.704. Since section 77.704 essentially
provides that energized lines be deenergized or grounded and since OD's witnesses agreed that no attempt had been made by either of OD's employees to
ground the lines before they worked on them, all the evidence in the record
supports a finding that a violation of section 77.704 occurred, and I so find.
Having found that a violation occurred, it is mandatory under the Act that
a civil penalty be assessed. The Commission has held in several cases that
liability of an operator for violations of the mandatory safety standards is
not conditioned upon fault (U. S. Steel Corp., 1 FMSIIRC 1306 (1979); Peabody
Coal Co., 1 FMSHRC 1494 (1979); and Ace Drilling, Inc., 2 FMSHRC 790 (1930)).
The Commission has also held that if a citation or order alleges a violation
and one is found to have occurred, a judge may not dismiss the penalty proceeding without assessing a penalty even if a motion to dismiss is filed by
counsel for MSHA (Island Creek Coal Co., 2 FMSHRC 279 (1980), and Van Mulvehill
Coal Co., Inc., 2 FMSHRC 283 (1980)). Therefore, it is well settled that I may
not dismiss the Petition for Assessment of Civil Penalty filed in Docket No.
VA 81-65 seeking assessment of a civil penalty for the violation of section
77.704 involved in this proceeding and that I must assess a civil penalty based
on the six criteria set forth in section llO(i) of the Act (Tazco, Inc.,
3 FMSHRC 1895(1981)).
In connection with the assessment of a civil penalty, it should be noted
that a judge is not bound by the assessment procedures which are employed by
the Assessment Office in proposing civil penalties (Rushton Mining Co.~
1 FMSHRC 794 (1979); Shamrock Coal Co., 1 FMSHRC 799 (1979); Kaiser Steel Corp.,
1 FMSHRC 984 (1979); U.S. Steel Corp., 1 FMSHRC 1306 (1979); Pittsburgh Coal
C~., 1 FMSHRC 1468 (1979); and Co-Op Mining~ _
_go., 2 FMSHRC 784 (1980)). Therefore, my decision with respect to the civil penalty issues is being made on
the basis of the evidence presented in this proceeding without regard to the
size of any penalty which may have been proposed by the Assessment Office in
Docket No. VA 81-65.
Consideration of the Six Criteria
1.

Size of OD's Business

As to the criterion of the size of OD's business, I have already indicated
in Finding No. 1, supra, that OD is a subsidiary of Kentucky Utilities Company,
that it employs 80 persons, and that its annual revenues from the sale of electricity amount to about $24,000,000 per year. On the basis of those facts,
I find that OD is a large operator and, to the extent that the penalty is based
on the criterion of the size of respondent's business, the penalty should be
in an upper range of magnitude.

2740

2.

Effect of Penalties on OD 1 s Ability To Continue in Business

OD 1 s counsel did not introduce any evidence pertaining to OD's financial
condition. The former Board of Mine Operations Appeals held in Buf_lalo Mining
Co., 2 IBMA 226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974),
that if an operator fails to present any evidence in a civil penalty case
pertaining to the operator's financial condition, that a judge may assume that
payment of penalties would not have an adverse effect on the operator's ability
to continue in business. Therefore, in the absence of any evidence in this
proceeding which would support a contrary conclusion, I find that payment of
civil penalties will not cause OD to discontinue in business.
3.

History of previous violations

As to the criterion of OD's history of previous violations, both the inspector who wrote the citation and MSHA's counsel stated that there is nothing
in MSHA's files which show that OD has previously been cited for a violation of
the mandatory health and safety standards (Tr. 140). Therefore, the penalty
to be assessed in this proceeding will neither be increased nor reduced under
OD's history of previous violations.
4.

OD's good-faith effort to achieve rap~d compliance

The inspector testified that OD reinstructed its employees with respect
to the procedures which should be used prior to working on electrical equipment
(Finding No. 15, supra). Therefore, I find that OD made a good-faith effort to
achieve rapid compliance after being cited for the violation of section 77.704
and that mitigating factor will be taken into consideration in determining the
size of the penalty.
5.

Degree of Neglig~nce

As indicated in Finding No. 13, supra, the violation of section 77.704
occurred because two of OD 1 s employee~ went to Westmoreland's high-voltage
substation and attempted to check OD's metering equipment without making a
careful examination to determine whether the substation was energized and
without grounding the lines going into the metering facilities. Section 77.704
requires that high-voltage lines be deenergized and grounded before work is
done on them. Although work can be done on energized high-voltage equipment,
it would have been a violation of section 77.704-2(4) for the employees to
have worked on the energized equipment in this instance because the weather
was rainy and foggy.
Two of OD's witnesses, including the employee who survived the encounter
with high-voltage equipment, testified that no attempt had been made to ground
the equipment before an effort was made to read the nameplate on the transformer. Both of OD's witnesses agreed that they had violated OD's own safety
regulations, particularly paragraph Jl-1, Part III, of OD's Safety Manual
(Finding No. 12, supra). The inspector's statement also shows that he did
not consider OD to have been negligent since he checked the portion of the
form used by inspectors for evaluating negligence which states that the failure of the two employees to follow the provisions of section 77.704 "could not
have been known or predicted, or occurred due to circumstances beyond the
operator's control". Under the "Remarks" portion of the inspector's statement,

274.1

the inspector made the following entry: "The employees were told the substation was energized before they left their duty station" (Exh. 3).
MSHA's brief (p. 20) states that "* 1< ~'< the failure to follow basic
safety rules under the Act and under company regulations would indicate at
least ordinary negligence on the part of the operator." MSHA's brief, however, does not cite any testimony to show why the company's management should
be held to be negligent for failure of experienced employees to follow basic
safety rules or the almost identical provisions of section 77.70~. In Nacco
Mining Co., 3 FMSHRC 848 (1981), the Commission found that the operator was
nonnegligent for a violation of section 75.200 in circumstances which showed
that a foreman had gone out from under roof support for a distance of 10 to
12 feet in violation of the operator's roof-control plan. The foreman was
killed when the roof fell on him. The facts showed that the foreman had
received proper training and that he had shown good judgment on prior occasions with respect to following safety regulations, but on the day of the
accident, he acted aberrantly and engaged in conduct which was wholly unforeseen. The foreman's action did not expose anyone else to harm or risk. The
Commission stated that finding an operator negligent in such circumstances
would discourage pursuit of a high standard of care because regardless of
what an operator did to insure safety, a finding of negligence would always
result.
The evidence in this proceeding shows that OD's management was not as
free from fault as the evidence indicated in the Nacco case cited above. As
I have already pointed out in this decision in my discussion of the issue
of whether accidents on mine property are subject to MSHA's jurisdiction as
opposed to OSHA's jurisdiction, OD's superintendent of meters sent two
employees on January 22, 1980, to check a meter which he believed was working
properly. One of the employees who was sent to the mine had originally installed the meter. The other employee had replaced the meter on January 21,
the day before the two employees were sent back to the substation to check
the meters. The employee who replaced the meter was a meter man, first class.
Westmoreland had only suggested to OD's superintendent of meters that the
meter at the substation might be defective because no light was burning in
the meter and because its disk was turning counterclockwise (Tr. 99). OD's
general manager testified that the type of meter which had been installed
did not have a light in it. The superintendent of meters had already told
Westmoreland's employee that he thought the meter's disk was supposed to turn
counterclockwise. Therefore, the evidence shows that nothing was wrong with
the meter which required any checking to be done. Since the meter had no
light, no light could have been seen by Westmoreland's employee. The meter's
disk was supposed to turn counterclockwise. The fact that the superintendent
of meters did not have a discussion with his employees in sufficient detail
for them to realize there was no need to check the meters is strong support
for a finding that management failed to advise the two employees as to the
duties they were expected to perform at the substation.
Unless the employees' supervisor was remiss in his duties of providing
the employees with specific information, there is no possible explanation for
the meter man, first class, who had in~talled the meter on the previous day,
to have testified that they could not check the light in the meter because
the employee who was electrocuted had mistakenly concluded that no electricity

2742

was flowing through the substation. It appears to me that the employees were
sent to the substation with indefinite instructions and that management was
negligent in providing them with exact information and instructions concerning
the work which was required to be done at the substation.
There is also reason to believe that management knew, or should have
known, that the employee who was electrocuted had a proclivity for cutting
corners with respect to obeying safety precautions. For example, he proposed
to·check the nameplate on a transformer by leaning a ladder across the fence
around the substation against the crossbar on which the high-voltage transformer was located for the purpose of climbing the ladder in order to read the
nameplate on the transformer. He proposed to check the nameplate in that
fashion to avoid opening the gate to the substation by knocking from the gate
a piece of 2 by 4 which had been nailed on the gate to keep it from coming
open for easy access by an animal 9r person who might have gone inside the
substation where the danger of electrocution existed.
For the reasons given above, I do not believe that the circumstances
showing no fault by management existed in this proceeding to the extent that
it did in the Nacco case. I am required to consider the evidence as a whole
in making my findings. Therefore, despite the fact that the witnesses professed to believe that OD's management was free of negligence and could not
have foreseen the occurrence of the accident, I believe that OD's management
failed to give the employees proper instructions before they were sent to the
substation and I believe that the actions of the deceased employee at the
substation show that he was in the habit of disobeying safety regulations.
In the Nace~ case, the evidence showed that the foreman who was killed had a
history of following safety procedures and that he acted aberrantly on the
day he was killed. The evidence in this proceeding shows that the employee
who was killed had a history of acting in violation of safety regulations
because he violated at least three of the company's own regulations before
he was electrocuted. Specifically, he first failed to make a careful visual
examination of the disconnects which were clearly visible as shown in a photograph taken during a snow storm on the day following the accident. The wires
are easily visible in the photograph even though the photograph was taken
from the place where the deceased employee would probably have been standing
when he carelessly decided that the substation was deenergized. It is unlikely that the rain or fog prevented him from being able to see the wires
on the disconnects, but if he could not see the wires clearly, that was all
the more reason for him to have gone inside the substation so as to assure
himself that the wires were not there. The mere fact that he was used to
seeing a type of disconnect having wires inside a 1-inch tube did not excuse
him from making certain that no type of wire was actually running between the
upper and lower holders on the disconnects (Finding Nos. 8-10, supra).
The second violation of the safety precautions was that the deceased
employee failed to ground the conductors before trying to read the inf ormat ion on the transformer's nameplate (Tr. 64-65; 96).
The third violation was not carried out because the deceased employee
only proposed to place a ladder in an unsafe position in violation of OD's
safety regulations for use of ladders (Exh. H, Part I, Section 4). The violation was not carried out because the meter man, first class, who had

274a

accompanied the deceased employee, suggested that they go inside the substation and climb the pole on which the transformer had been installed in
order to read the nameplate (Tr. 93).
Based upon my review of the entire record, I find that the violation of
section 77.704 was associated with a moderate degree of ordinary negligence,
6"

Degree of Gravity

MSHA's brief (p. 20) states that the violation must necessarily be considered to have been serious because the violation resulted in the electrocution of one of OD's employees. The evidence shows that the substation's
purpose was to reduce voltage from 12,470 to a volatage which was needed to
operate mining equipment. It would be difficult to find a violation which has
more obvious potential for causing electrocution than failure to ground wires
which may be transmitting 12,470 volts. Therefore, I find that the violation
was extremely serious.
It should also be noted that the deceased employee's failure to make a
proper visual examination as to the substation's energized status influenced
the other employee who had accompanied him to the substation to assume also
that the substation had been deenergized. Thus, the deceased employee's
violation of section 77.704 exposed another employee to possible electrocution
along with himself. Westmoreland could also have had employees working at
the substation" Since one would ordinarily be inclined to rely on the supposed
expertise of an employee of an electrical utility company, the violation would
have been likely to have exposed any people in the vicinity of the substation
to possible electrocution because they would have assumed that OD's employees
would not have performed work at the substation without making certain that
the substation had been deenergized.
Based on the findings above to the effect that a large operator is involved, that there was a good-faith effort to achieve rapid compliance, that
payment of penalties will not cause OD to discontinue in business, that there
is no history of previous violations, that there was ordinary negligence, and
that the violation was extremely serious, I find that a civil penalty of
$3,000 should be assessed.
WHEREFORE, it is ordered:
(A) The Notice of Contest filed in Docket Ho. VA 31-40-R is denied because
Old Dominion Power Company is an independent contractor and operator within
the meaning of section 3(d) of the Federal Hine Safety and Health Act of 1977
and was cited by MSHA for a violation under regulations properly promulgated
for citing independent contractors for violations occurring on mine property.
(B)

Citation No. 668762-1 dated January 21, 1981, is affirmed.

(C) The Petition for Assessment of Civil Penalty filed in Docket No.
VA 81-65 is granted and Old Dominion Power Company, within 30 days from the
date of this decision, shall pay a civil penalty of $3,000 for the violation

of section 77.704 which was violated by Old Dominion as alleged in Citation
No. 688762-1 issued January 19, 1981~ as modified January 21, 1981.

~ e.~o/h-

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

William D. Lambert, Esq., Counsel for Old Dominion Power Company,
Ogden, Robertson & Marshall, 1200 One Riverfront Plaza, Louisville,
KY 40202 (Certified Mail)
Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)

274~)

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

UNITED MINE WORKERS OF AJ.~ERICA,

Complaint of Discharge,
Discrimination, or Interference

On behalf of GARY L. SHREVE,
Complainant

Docket No. WEVA 81-378-D

v.
Mc Elroy Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Mary Lu Jordan, Esq., Washington, D.C., for Complainant;
Daniel L. Fassio, Esq., Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Melick

This case is before me upon the complaint of the United Mine Workers of
America (Union) on behalf of Gary L. Shreve under section 105(c)(3) of the
Federal Mine Safety and Health Act of 1977, ·30 U.S.C. § 301 et seq., the
"Act," alleging that the Consolidation Coal Company ( Consolidat-ion) discr iminated against and interfered with Mr. Shreve in violation of section lOS(c)(l)
of the Act. ]:/ Seven specific protected activities and eight acts of discrimination and interference ranging in time from December 7, 1979, to March 7,
1981, are alleged. Complainant seeks costs, expenses (including attorney's
fees) and a general order requiring Consolidation to cease and desist from
purportedly threatening to transfer or discharge employees who report unsafe
or unhealthy conditions and who refuse to perform work in unsafe or unhealthy
conditions.

]:/

Section lOS(c)(l) of the Act provides in part as follows:
"No person shall discharge or in any manner discriminate against or
cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, [or] representative of miners * * * in any coal * * * mine subject to this Act
because such miner, [or] representative of miners * * * has filed or made
a complaint under or related to this Act, including a complaint notifying
the operator or the operator's agent, or the representative of miners at
the coal * * * mine * * * or because of the exercise by such miner, [or]
representative of miners * * * on behalf of himself or others of any
statutory right afforded by this Act."

2746

Consolidation argued in dismissal motions that the complaint should have
been dismissed as to those alleged discriminatory acts that did not occur
within 60 days before the Union complaint was filed with the Secretary,
citing sections 105(c)(2) and 105(c)(3) of the Act as authority. ]) I t is
undisputed that the Union complaint in this case was initially filed with the
Secretary on November 21, 1980, and that the Union was subsequently notified
of the Secretary's determination that no violation of section lOS(c) had
occurred. Six acts of discrimination and interference were cited in that
complaint only tvm of which were alleged to have occurred within 60 days
before that complaint was filed with the Secretary,..!·~·· the acts alleged
to have occurred on November 10 and 12, 1980. The remaining acts were
alleged to have occurred on December 7, 1979, February 23, 1980, March 4,
1980, and "sometime in 1980."
While the Union had initially claimed that the four earlier discriminatory acts should each have been considered on its own merits as an independent
complaint under section 105(c)(3) of the Act, it has apparently withdrawn from
that position. As clarified in its post hearing brief, the Union position now
is that evidence of the earlier acts should be considered only as evidence of
a pattern of conduct leading up to the alleged discriminatory acts on
November 10 and 12, 1980. To the extent that evidence of prior acts of discrimination could be used to d~nonstrate that the conduct of the individual
allegedly acting in a discriminatory manner on November 10 and 12, 1980, was
in conformity with those previous acts as a habit or practice, I found such
evidence to be relevant and admissible at hearing. Commission Rule 60(a),
29 C.F.R. § 2700.60(a). See ~lso, Rule 406, Federal Rules of Evidence. I see
no reason to reconsider that ruling at this time. In ight of the position of
the Union in its brief, the question of whether those earlier acts could also
support independent actions before the Commission under section 105 of the
Act is no longer before me.
2/

Section 105(c) (2) provides in part as follows:
"Any miner * * * or representative of miners who believes that he has
been discharged, interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60 days after such violation occurs, file a complaint with the Secretary alleging such discrimination."
Section 105(c)(3) provides in part that:
"Within 30 days of the receipt of a complaint filed under paragraph (2),
the Secretary shall notify, in writing, the miner * * '~ or representative of
miners of his determination whether a violation has occurred. If the Secretary, upon investigation, determines that the provisions of this subsection
have not been violated, the complainant shall have the right, within 30 days
of notice of the Secretary's determination, to file an action in his own
behalf before the Commission, charging discrimination or interference in
violation of paragraph (1) ."

274 ..,

Consolidation further argued in its motion for partial dismissal that the
complaint herein should have been dismissed as to the discriminatory acts
alleged to have occurred subsequent to the filing of its complaint with the
Secretary. For the reasons that follow, I conclude that I cannot consider
the merits of those alleged acts either as independent complaints under section 105 of the Act or as relevant evidence in support of the alleged incidents on November 10 and 12, 1980, which preceded those alleged acts. Under
section 105(c)(3), the right of a miner or representative of miners to file
an action before the Commission on his own behalf arises only after the
Secretary determines that no violation of section 105(c) has occurred. See
footnote 2, supra. I am bound to give operative effect to the plain meaning
of that statutory requirement. United States v. Menasche, 348 U.S. 528,
99 L.Ed 615, 75 S. Ct. 513 (1955). Accordingly, I do not have authority to
consider in this proceeding as a substantive matter any discriminatory acts
alleged to have occurred subsequent to the filing of the complaint with the
Secretary and which therefore had not been considered by the Secretary.
Respondent's motion for partial dismissal is therefore granted with respect
to the discriminatory acts alleged to have occurred on February 17, 1981,
and March 7, 1981.
Consolidation further argued that any evidence relating to those alleged
acts of discrimination on February 17, 1981, and March 7, 1981, was inadmissible for any purpose in this proceeding. While arguably such evidence of subsequent conduct might be admissible to show the habit or routine practice of
an individual thereby being relevant to proving that the conduct of that individual on the particular occasion at issue was in conformity with that habit
or routine practice, Commission Rule 60(a), supra; Rule 406, Federal Rules of
Evidence; the proffered evidence in this case is clearly so collateral to the
principal issues that I find it to be irrelevant. Since the alleged violators
of Mr. Shreve's rights on February 17 and March 7, 1981, were persons not even
alleged to have been involved in any of the preceding discriminatory acts,
their behavior on these occasions could hardly be considered evidence of
habits or routine practices of any of the other individuals cited for the
previous discriminatory acts. 3/ The proffered evidence is not therefore
admissible. Commission Rule 60(a), supra.
I also observe that the Union failed to inform Consolidation of these
alleged subsequent discriminatory acts until the day of hearing. This constituted a violation of the prehearing order issued by the undersigned on June 24,
1981. In order to refute these new allegations of discrimination, it appears
that Respondent ~uld have been required to call the five witnesses alleged to
have participated in, or been present during, the alleged acts. Four of those
witnesses were located too far from the hearing site to appear on the scheduled
3/ While the evidence could have arguably supported a contention that the
alleged discriminatory acts of Consolidation personnel other than Aloia
showed a conspiracy or pattern of discrimination by the company, the
Complainant failed to proffer evidence to demonstrate that these acts were
other than the isolated independent acts of the named individuals.

2748

day of hearing. In addition, at least one of the witnesses was committed to
testify on the following day as an essential witness in an out-of-state trial.
Thus, on the one hand, it would have been unfairly prejudicial to the Respondent to have allowed the proferred evidence without providing it an opportunity to rebut that evidence and, on the other hand, it would have caused
undue delay and expense to have continued the hearing for an additional 2 days
to provide Respondent an opportunity to call the essential witnesses on its
behalf. Moreover, even the Complainant conceded that it did not wish to have
the proceedings continued. Under the circumstances, even assuming, arguendo,
that the proffered evidence was relevant, it was an appropriate sanction for
noncompliance with the prehearing order to have excluded that evidence. Evidence regarding alleged discriminatory acts on February 17, 1981, and March 7,
1981, is therefore given no consideration in this case.
Summary_-2l_!he Evidence
The Principal Complaints - November 10 and 12, 1980: These complaints
center. on two conversations, one on November 10, 1980, between union safety
committeeman Richard Lipinski and Gary Shreve's foreman, Albert Aloia, and
the other on November 12, 1980, between Gary Shreve and Albert Aloia. At the
time of the conversations, Albert Aloia, a recent mine engineering graduate,
had been working at the McElroy Mine for only 2 years and had been a section
foreman for less than a year. According to Aloia, on Friday, November 7, a
company official informed him that an alleged "hotline" safety complaint had
been made to the Federal Mine Safety and Health Administration (MSHA) regarding
the scoop car under Aloia's control. He was informed that the complaint concerned unsecured lids for the scoop car batteries. Aloia was "disgusted"
about the complaint because he thought he had already corrected the problem.
It appeared that in spite of his corrective actions and without reporting any
problem to him someone on the safety committee had reported the complaint to
MSHA.
He suspected that his scoop car operator, Gary Shreve, had initiated
the complaint. It had been Shreve's past practice to bypass him in complaining of equipment defects.
On the following Monday (November 10), Aloia had occasion to talk with
Union Safety Committeeman Lipinski. Aloia confided in Lipinski because he
felt they "understood each other" and had a "fairly good relationship."
Aloia 1 s testimony about the conversation is as follows:

Q. [Attorney for Consolidation] And did you ask him
what was wrong with the method that you had remedied [sic]?
A. [Aloia] In a general sense I did. I stated that
I didn't think there would be anything wrong with it.

Q.

What did he say?

A.

He didn't say much during the whole conversation.

Q. Did he say that it was okay, as far as he was
concerned?

274B

A.

I don't think he stated that?

Q.

He didn't state that?

A.

No.

Q. Do you recall him stating anything about the method
about which the lids had been secured?
A.

I do not recollect him stating anything.

Q. Did you discuss Mr. Gary Shreve at all during this
time when you were inspecting the lids on the scoop car?
A.

Yes.

Q.

And how did his name come up in the conversation?

A. It is what we were talking about before, he was the
operator and if there was a problem I felt he should have
came and tell me about [sic]. And that's basically what I was
telling Lipinski.
JUDGE MELICK: What was the full conversation that
occurred regarding Mr. Shreve, on this day with
Mr. Lipinski?
THE WITNESS: I told Lipinski that if there was a problem here that the problem should come to me first. It seemed
like lately all the problems that were going on the safety
committee were going around me and I'd be getting it second
hand, and that didn't seem right. That wasn't the way it
was supposed to work.
JUDGE MELICK:

What did that have to do with Mr. Shreve?

THE WITNESS:

In what sense?

JUDGE MELICK; Well, the question I asked, the information I want is the full extent of the conversation between
you and Lipinski concerning Mr. Shreve.
THE WITNESS: I also said in that conversation that it
seemed like we've had a ntnnerous ntnnber of problems with
that scoop and maybe Gary couldn't handle the job because
of all the problems.
JUDGE MELICK:

Did you suggest anything else?

THE WITNESS:

No, sir.

2750

JUDGE MELICK: Did you suggest that perhaps he would be
better at another job.
THE WITNESS:

No, sir.

JUDGE MELICK: Is that the extent of your conversation
concerning Mr. Shreve?
THE WITNESS:

Yes, sir.

JUDGE MELICK:

All right.

Q. (By Mr. Fassio) Did you tell Mr. Lipinski that you
were going to have Gary Shreve taken off the scoop car?
A.

No, sir.

Q. Did you tell Rick Lipinski that there was always
something wrong with the scoop car?
A. I told Mr. Lipinski that there was a numerous amount
of problems with the scoop car.

Q. Did you tell him that it was always one thing after
another and it always needs fixing?
A. No, I don't believe, ~ said that.
there was a numerous amount of problems.

I said that

o. Did you state to him you can see why other foremen
do not want to work with Gary Shreve?
A.

No, I don't think I said that.

JUDGE MF.LICK:

You could have said it?

THE WITNESS:

No, I did not say that.

JUDGE MELICK: Did you say anything that might be interpreted as coming out that way?
THE WITNESS: I said that I thought that maybe Gary
could not handle the job.
(Tr. 306-309).
Union safety committeeman Richard Lipinski also testified concerning that
conversation. The relevant testimony appears as follows:

275.l

[Lipinski]
* * * I could tell he was kind of-- he was kind of upset and
he was kind of disgusted. He says, I'm going to have Gary
Shreve taken off the scoop car, you know, he says, he keeps
on-- everytime he runs it, there's something wrong with the
scoop car. And he said, I'm just tired of it, and he said
I've tried to work with Gary on getting things fixed on the
scoop car, but it's always one thing after another and, you
know, like it seems like all the time there's something that
needs fixing on the scoop. And that he could see why none of
the other foremen really liked working with Gary.
I told Albert, I says, you know, you're really upset.
The way I'm saying it now, I'm saying, you know, just in my
own tone voice [sic], but you know, he was very upset and I
told him there's no sense getting this upset Albert, you
know.
And he says, no, he says, the hotline was called on my
scoop and I'm really pissed off about it. He said, that when
Gary runs the scoop car, you know, there's always something
that comes up, but with someone else on the scoop car when
Gary's off or on vacation and they don't seem to have any
problems.
And I says, you know, that really doesn't really, you
know, sound like him. And he said, well, come on up and
I'll show you what, you know, what it is all about.
I went on up and he showed me where they had welded
some additional supports on, to hold the lids on better. I
told Albert then, I said, that to me this isn't an upsetting manner-- matter, that, you know, what they done was a
perfectly, you know, correct thing to do to support the lids
on better and I can't see you being so upset over this.
And that was-- right then, we kind of ended the
conversation* * *·
(Tr. 188-189).
Lipinski reported the conversation he had with Aloia to Gary Shreve
on Wednesday, November 12, 1980. Shreve's testimony in this regard is as
follows:

Q. [Counsel for Union] And can you tell us what
Mr. Lipinski said?
A. [Gary Shreve] Yes, he said that Albert had stated to
him that he was going to remove me from my job. He'd had
enough and it was-- there was some foul words said, and then

2752

he said that he was just tired of it.
coming off the scoop.

He'd had enough.

I was

Q. Did he explain any further, as to why Mr. Aloia
had made this statement at this time?
A. Yes, he said that-- he told me that I had called
the hotline on his, his scoop car-- his scoop car.

(Tr. 30).
After Lipinski told Shreve about the conversation he had with Aloia,
Shreve confronted Aloia. Shreve's testimony concerning that conversation is
as follows:

Q. * * * I asked was the statement that was alleged to
have been made by Mr. Aloiai [sic] made directly to you?
A.

[Shreve] Later tnat day, yes.

Q.

Later what day?

A.

The

Q.

The 12th of November?

A.

Yes, 12th of November.

Q.

And what did Mr. Aloiai [sic] say to you?

A.

He said that he blew it.

Q.

He blew it?

A. Yeah, he lost it.
everything Ricky said.

*

*
Q.

*

It was a -- he admitted to

*

*

*

*

All right, at that point what happened?

A. I told him that I was going to file a safety
grievance.

Q. You didn't say, what is going on, you said I'm going
to file a safety grievance?
A.

He knowed what was going on.

Q. How did he know what was going on? I thought you
had said you had been in Mr. Donley's office, Mr. Donley

2753

said to go downstairs and go inside and talk to your section foreman?
A. Because I had talked to John-- I had approached John
Tothe and John Tothe wanted to meet with me and Albert, and
that would have been with no one else there, basically, and
that would have been if we would have went in the office, I
would have asked for a committeeman and I wouldn't have
cared, just so I had somebody to hear the conversation. Now,
that's my opinion that he sent "Preacher" away.

Q. All right, what I'm really interested in, Mr. Shreve,
what was said between you and Mr. Aloia?
A.

That I was going to file a safety grievance.

Q.

Over?

A. The way he had been treating me and harassing me.
I considered it harassment and discrimination.

Q. Did Albert ask you what sort of harassing treatment
you had been subjected to by him?
A.

Yes.

Q.

What did you say?

A. And I didn't quote the dates or anything, I quoted
[sic] over in tailgate. I quoted [sic] up at the end of the
section.

Q. You gave him a litany of everything that happened
over: the years.
A.

Yes.

Q.

Did you mention the statement by Richard Lipinski?

A.

Yes.

Q.

And what did Albert say?

A. Albert said, yes he made it.
because he--

He was just mad

Q. What was the statement that was made by Lipinski
quote it exactly, tell me what Albert admitted to, that
you recall?
A.

I don't follow you, could you repeat the question?

275,1

Q. Yes, my question really is, you said that Albert
admitted making the statement, I want to know what statement
that Albert admitted to making?
A. Albert said that he thought that I'd called the
hotline. He-- his scoop, his scoop was turned into the
hotline and that-·- his exact words were that pissed me
off. That's what he said to me.

Q. Albert admitted to you that he thought that you
had made the hotline call?
A.

Yes.

Q.

And that he was upset over it?

A.

Yes.

Q. Did he admit that he had threatened to fire you or
take you off the scoop car?
A.

Yes.

Q.

What did he say?

A. He said that he had made the statement, yes, I told
Rick that I was going to take you off the scoop car.

Q.

Okay, he admitted that, is that your testimony?

A.

Yes.

Q.
Did he say why he had made that statement allegedly
to Mr. Lipinski?

A.

I don't-- did he say-- repeat the question.

Q. That question is if Hr. Aloia admitted, as you say
that he did, that he'd threatened to take you off the scoop
car, did he tell you why or did Hr. Lipinski tell you why
Mr. Aloia supposedly made that statement?
A. The first time I heard it was from Rick Lipinski.
The second time was in D section with Albert Aloia.
Q.

And what was the reason given?

A.. Because he was turned into the hotline.
was turned into the hotline.
(Tr. 91 and 100-103).

2755

His scoop

The same conversation was described by Aloia in the following testimony:

Q.

You did talk with Mr. Shreve?

A.

Yes.

Q.

Did he approach you or did you approach him?

A. He approached John Paul Tothe and said that he
needed to talk to us.

Q.

That he needed to talk to you and Mr. Tothe?

A.

Yes, sir.

Q. Did he say why he needed to talk to you and
Mr. Tothe?
A. I don't believe he did, because I really didn't talk
to him. He talked to John and John just informed him [sic]
that we needed to go over and talk to Mr. Shreve about
something.

q.

Okay--

A. And I was supposed to meet John there at twelve
o'clock that day or something like that and John filled me
in then.

Q. Okay, did you eventually have your discussion with
Mr. Shreve and Mr. Tothe?
A. We got there around twelve, and somehow he said
he didn't want to talk to John, but John said you had
better go over there and talk to him.

Q. John said to you you had better go over there
and talk to Gary Shreve?

A.

Yes.

Q.

Okay, did you go over and talk to him?

A.

Yes, I did.

Q.

What was the conversation about?

A. We talked about, what Lipinski and I talked about,
and we went over some things about how safety problems with
the scoop, why they were not reporting and stuff like that,
how they got around me, and how they went to the committee

2756

before they came to us, we talked about some other things
that had happened on the scoop, with the pitch point signs
[sic] and things like that, and I think he said something
about I threatened his job, and I stated that I did not
threaten his job.

Q.

Mr. Shreve asked you whether or not you threatened

his job?
A.

Yes, he did.

Q.

And what did you tell Mr. Shreve?

A.

I told him that I did not threaten his job.

Q. Did he ask you whether or not you had threatened to
take him off the job of scoop car operator?
A.

Yes, I believe that's how it was worded.

Q.

Excuse me?

A.

I believe that's how it was worded.

Q.

What was your response?

A.

I said I did not threaten to take him off the job.

Q. Did you ever intend at any time to threaten or
take Gary Shreve off the job of scoop car operator?
A.

No, I didn't.

Q. Do you feel that anything that you said to
Mr. Shreve concerning his work as a scoop car operator,
was in any way threatening or intimidating?
A. No, I didn't, I tried to relate to him that when
he had safety problems to come to me first, instead of -Q.

Why was that?

A. Because I felt that we had a relationship that we
could have solved problems, we didn't have to go outside our
group of people.

Q. When you say your group of people, you mean the
people that work at the section?
A.

Yeah, the twenty-one people that we have.

2757

Q. But you didn't in any way tell Mr. Shreve not to
go outside the group of people?
A. No, I didn't, something was stated about, if he
was to file a grievance, and I told him that was his right.

Q. So you didn't say you shouldn't file a grievance
over this?
A.

No, I didn't.

(Tr. 310-313).
Evaluation of the Evidence
In order to prevail in this case, the Complainant must first establish
by a preponderance of the evidence that (1) Gary Shreve engaged in a protected
activity, (2) that adverse action was taken against him, and (3) that the
adverse action was motivated in any part by the protected activity. Secretary of Lahor ex rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC
2786 (1980); rev'd on other grounds, No. 80-2600 (3d Cir. October 30, 1981),
Robinnette v. United Castle Coal Co., 3 FMSHRC 803 (1981), and Chacon v.
Phelps Dodge Corporation, 3 FMSHRC
, November 13, 1981. The reporting
of an alleged danger or safety violation to the representative of miners is
a protected activity under section lOS(c)(l) of the Act. Footnote!/, supra.
The miner is protected from retaliation even if he did not actually report
a safety violation or hazard to the representative of miners if the adverse
action against him was the result of a belief that he had made such a report.
Elias Moses v. Whitely Development Corporation, 3 FMSHRC 746 (1981), petition
for review granted, Hay 1981. Even assuming, however, that Shreve had engaged
in such a protected activity, I do not find in this case sufficient evidence
of resulting discriminatory action or interference to support a violation of
section lOS(c)(l).
November 10, 1980, Conversation: The complaint alleges that Shreve was
unlawfully threatened in a conversation between Aloia and Lipinski on this
date. Accord{ng to Aloia, he told Lipinski in the subject conversation only
that "it seemed like we've had a numerous number of problems with that scoop
and maybe Gary [Shreve] couldn't handle the job because of all the problems."
According to Lipinski, Aloia said:
I'm going to have Gary Shreve taken off the scoop car

* * * everytime he runs it, there's something wrong with the
scoop car. * * * I've tried to work with Gary on getting things
fixed on the scoop car, but it's always one thing after another
and * * * it seems like all the time there's something that
needs fixed [sic] on the scoop.
While Aloia's version of his own statement is too imprecise, ambiguous and
conditional to constitute any impermissible threat, I do not find his version
to be entirely credible. Because of Lipinski's position of neutrality and

2758

disinterest on the other hand, I find him to be a more reliable witness. It
is apparent from Lipinski's version of the conversation that Aloia indeed
wanted to have Shreve transferred from the scoop car. According to Lipinski,
Aloia was "really upset" and "kind of disgusted" at the time of this conversation because the MSHA hotline had been called on the scoop. Aloia himself
admitted that he was indeed "disgusted" to learn that the "hotline" had been
called on the scoop because the battery lids on the scoop had already been
repaired. While he knew that Shreve had not made the actual "hotline" call,
he suspected that Shreve had originated the complaint to the union repres·entative who made that call. Accordingly, I am compelled to find that Aloia's
statement to Lipinski was motivated at least in part by his belief that Shreve
had originated that safety complaint.
An essential question still remains, however, as to whether that statement of intent to have Shreve transferred even though motivated by a protected
activity, resulted in any unlawful interference or discrimination against
Shreve if it was expressed only in confidence to a third party with no intent
that it be communicated to Shreve. Indeed on the facts of this case, I find
that Aloia did not intend to have any part of the conversation disclosed to
Shreve. In explaining this confidentiality and his reason for confiding in
Lipinski, Aloia testified "(y]ou got to understand that [Lipinski] and I had
a fairly good relationship, I felt, we understood each other." Since any
reference to the possibility of Shreve being transferred was thus made to
Lipinski in confidence with no intent or expectation that Lipinski would violate that confidence, I cannot conclude that any such statement constituted
an improper threat to Shreve. The facts are not unlike those in NLRB v.
Mccann Steel Company, Inc., 448 F.2d 277 (6th Cir. 1971). In that case, an
apparent threat made in a private conversation between management personnel
not intended to be overheard by any employees was held not to constitute an
improper threat to the employees under the National Labor Relations Act.
Here, the private conversation between Aloia and Lipinski was not only not
intended to be revealed to Shreve, it was deemed by Aloia to be confidential.
It is arguable that Aloia should nevertheless be responsible for threats
made out of the presence of Shreve when the third party in whose presence the
threats were made violates such a confidence. However, because of the
inherent unreliability of such hearsay, Shreve would not be justified in
relying on such evidence alone to establish an unlawful threat. Otherwise,
an operator could be penalized under the Act for the rankest of irresponsible
and false rumors. !:._/ Before any person under similar circumstances could be
permitted to rely upon that type of information, it would be reasonable to
expect that it be confirmed, preferably by confronting the source. As
4/ This is not to say that where the comments of management personnel are
introduced as evidence of motive for a subsequent discriminatory action,
such a limitation would apply. In this case, as in McCann Steel, supra, it
is the statement itself which is alleged to constitute improper or illegal
conduct.

2759

discussed, infra, Shreve did in fact subsequently confront that source, i.e.,
Aloia, who thereupon apparently confirmed that the earlier conversation between
he and Lipinski did in fact take place but indicated that what had been said
had since been countermanded and retracted. See discussion of November 12
conversation, infra. Any threat that had been made was accordingly then
neutralized. See N.L.R.B. v. Staub Cleaners, Inc., 418 F.3d 1086 (2d Cir.
1969), for application of the "neutralization theory" under the National Labor
Relations Act. Under the circumstances, I do not find find that either version of the conversation between Aloia and Lipinski on November 10, 1980,
would have resulted in any unlawful discrimination or interference.
November 12, 1980, Conversation: It is undisputed that on November 12,
1980, there was a direct conversation between Shreve and Aloia in which
Shreve confronted Aloia with the hearsay reports from Lipinski. Even if
Shreve's version of this confrontation is accepted as the more credible, it
is clear that Aloia did not then threaten to remove Shreve from the scoop
car. The most that can be gleaned from Shreve's version of this conversation
is that Aloia admitted that in his previous conversation with Lipinski 2 days
before, he had indeed threatened to remove Shreve but that he now recognized
that such a threat was improper and retracted it. Indeed, by admitting to
Shreve that he "blew it," Aloia was clearly expressing that recognition. Thus,
when Shreve first confronted Aloia with the hearsay allegations of threats
reported to him by Lipinski, the "threats" were neutralized. Staub Cleaners,
supra. In other words, as a result of the confrontation on November 12, 1980,
Shreve could not have been truly threatened. While he then learned that the
previous hearsay rumor about a possible recommended job transfer was in fact
accurate, he also learned at the same time that the earlier contemplated
action had already been countermanded and was retracted. Under the circumstances, I find that Complainant has failed to meet its burden of proving
any unlawful discrimination or interference. l./ The complaint is accordingly
dismissed.
~

5/ Since the prior alleged acts of discr mi ation agai
Shreve were
admitted only as evidence to support the a eged unlawf
nature of the acts
of November 10 and 12, which I have found
t to be in violation of the Act,
a detailed analysis of these incidents is unnecessary. The overall credibility
of the complaint herein may also be considered in light of Shreve's allegations that although he had been threatened with discharge or transfer on as
many as eight different occasions between December 7, 1979, and March 7, 1981,
no such action has ever been taken. Moreover, the Complainant has conceded
that the alleged acts of discrimination or interference were each so incon~
sequential as not to have warranted any remedial action under the Act.

2760

Distribution;
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street,
N.W., Washington, DC 20005 (Certified Mail)
Daniel L. Fassio, Esq., Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

*U.S. GOVERNMENT PRIIHlllG OFFICE:

2761

1981--361-638/4364