July 1981
Commission Decisions
7-06-81
7-06-81
7-23-81
7-28-81

Halquist Stone Co., Inc.
Waukesha Lime ans Stone Co., Inc.
MSHA ex rel Bobby Gooslin v. Kentucky
Carbon Corp.
Salt Lake County Road Department

VINC 79-118-PM
VINC 79-66-PM

Pg. 1700
Pg. 1702

KENT 80-145-D
WEST 79-365-M

Pg. 1707
Pg. 1714

Administrative Law Judge Decisions
7-01-81
7-07-81
7-07-81
7-08-81
7-10-81
7-10-81
7-13-81
7-13-81
7-13-81
7-13-81
7-14-81
7-17-81
7-20-81
7-21-81
7-21-81
7-21-81
7-23-81
7-24-81
7-29-81
7-30-81
7-31-81
7-31-81
7-31-81
7-31-81

PENN 81-96-R
Jones & Laughlin Steel Corp.
WEST 79-124-M
Asarco, Inc.
Royal Coal Co. and Cowan & Company, Inc. WEVA 80-664-C
Gerald D. Boone v. Rebel Coal Co.
WEVA 80-532-D
Cement Division, National Gypsum Co.
VINC 79-154-PM
KENT 80-312
Leslie Coal Mining Co.
South East Coal Co., Inc.
KENT 80-330
Lloyd Brazell v. Island Creek Coal Co.
KENT 81-46-D
LAKE 80-413-R
Monterey Coal Co.
WEVA 81-174-D
Cedar Coal Co.
Youngstown Mines Corp.
WEVA 81-303-R
MSHA ex rel Ralph W. Johnson v. Pathfinder
WEST 81-69-D
Mines Corp.
Phoenix Sand and Rock
WEST 80-396-M
Todilto Exploration & Development Corp.
CENT 79-91-RM
LAKE 80-365
Freeman United Coal Mining Co.
WEST 80-14-M
Magma Copper Co.
John F. Monahan v. Exxon Minerals Co.
WEST 81-196-DM
Sewell Coal Co.
HOPE 78-744-P
Eastern Associated Coal Corp.
WEVA 80-619-R
KENT 80-292
Shamrock Coal Co.
WEST 79-291
C F & I Steel Corp.
Johnny Howa~d v. Martin-Marietta Corp.
SE 80-24-DM
KENT 81-87-D
T. K. Jessup, Inc.
LAKE 80-399
Old Ben Coal Co.

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

1721
1736
1738
1751
1758
1762
1766
1773
1788
1791
1793

Pg. 1820
Pg. 1821
Pg. 1824
Pg. 1828
Pg. 1841
Pg. 1844
Pg. 1846
Pg. 1848
Pg. 1858
Pg. 1870
Pg. 1876
Pg. 1880
Pg. 1886

Conmission I>ecisions

JULY
The following cases were Directed for Review during the month of July:
Secretary of Labor for Michael Dunmire and James Estle v. Northern Coal
Company, WEST 80-313-D, WEST 80-367-D; (Judge Morris, May 27, 1981).
Secretary of Labor v. American Materials Corporation, LAKE 79-9-M; (Judge
Cook, June 12, 1981).
Secretary of Labor v. Mettiki Coal Corporation, YORK 80-140; (Judge Cook,
Interlocutory Review of 7/2/81 Order).
Review was Denied in the following cases during the month of July:
Secretary of Labor v. Union Carbide Corporation, WEST 80-401-M; (Judge
Boltz, June 10, 1981).
Secretary of Labor v. Bradford Coal Company, Inc., Fuel Fabricators, Inc.,
PENN 80-267; (Judge Kennedy, June 18, 1981).

1699

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

July 6, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. VINC 79-118-PM

HALQUIST STONE COMPANY, INC.
DECISION
This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §801 et~· (Supp. III 1979), and raises the same legal
questions that were before us in Waukesha Lime and Stone Company, Inc.,
Docket No. 79-66-PM (July 6, 1981 ). Our decision in Waukesha resolves
this question in the Secretary's favor. Accordingly, we affirm the
judge's finding of a violation and his assessment of a $700 penalty. 1../
/

Marian Pearlman\•Nease, Commissioner

!/

We reject Halquist's assertion that it did not prevent the
inspector from continuing his inspection. Substantial evidence
supports the judge's contrary finding.

1700

81-7-2

Distribution.
Michael A. McCord, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203
Paul Binzak, Esq.
Kraemer and Binzak, S.C.
16800 Appleton Avenue
Menomenee Falls, Wisconsin

53051

ALJ James A. Broderick
Chief Administrative Law Judge
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

1701

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

July 6, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VINC 79-66-PM

v.

WAUKESHA LIME AND STONE COMPANY,

INC.
DECISION
This case involves questions concerning nonconsensual inspections
without a search warrant under section 103(a) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §801 et~· (Supp. III 1979).
The facts are undisputed. On July 10, 1978, Mine Safety and Health
Administration (MSHA) Inspector Brey tried to make a routine inspection
of the Waukesha Lime and Stone Company, Inc., a limestone quarry. The
visit in question followed an April inspection during which Brey had
issued citations for 25 alleged safety violations. Before the inspector
finished his previous inspection, the operator abated 21 of those violations. Four, however, remained unabated as of the July 10 attempted
inspection. On that date, the operator's president, Douglas Dewey, told
Brey that he would no longer be allowed to inspect the premises without
a search warrant. Brey then issued a citation alleging a violation of
section 103(a) for the refusal to permit the inspection. 1/
Thereafter, the Secretary filed a petition for assessment of a
civil penalty. Waukesha contested the alleged violation of section
103(a), and the matter was set for hearing. 'l:._/ It was undisputed that

1/

Section 103(a) provides in pertinent part:
Authorized representatives of the Secretary ••• shall make
frequent inspections and investigations in coal or other mines •.•
In carrying out the requirements of this subsection, no advance
notice of an inspection shall be provided •.. [and the authorized
representative] shall have a right of entry to, upon, or through
any ••• mine.
2/
Before the hearing, the Secretary filed a separate action in federal
district court pursuant to section 108(a)(l) of the Mine Act, seeking
injunctive relief and requiring Waukesha to permit entry to MSHA inspectors. Section 108(a)(l) provides:
The Secretary may institute a civil action for relief, including
a permanent or temporary injunction, res-training order, or any
other appropriate order in the district court of the United States
for the district in which a coal or other mine is located or in
which the operator of such mine has his principal office, whenever
such operator or his agent
(footnote continued)

1702

81-7-1

Brey was denied entry. Waukesha contended, however, that its stone
quarry is not a "mine", subject to the Act, that section 103(a) does not
permit nonconsensual inspections without a search warrant, that if it
does, such warrantless inspections violate the Fourth Amendment, and
that in any event the refusal to permit federal inspection of a stone
quarry does not constitute a violation of the Mine Act for which a civil
penalty may be imposed. In his decision, the administrative law judge
held against Waukesha on each of its contentions, and assessed a $1,000
penalty. We granted Waukesha's petition for discretionary review. The
company makes the same arguments before us.
After oral argument and while the case was pending for decision,
the federal district court in the section 108(a)(l) action (see note 2,
supra) dismissed the Secretary's complaint for injunctive relief,
holding that to the extent the Act permitted nonconsensual warrantless
inspections, it violated the Fourth Amendment. Marshall v. Dewey, 493
F. Supp. 963 (D. Wis. 1980). The Secretary then filed a direct appeal
with the Supreme Court, which noted probable jurisdiction, sub. nom.,
Donovan v. Dewey, 49 U.S.L.W. 3531 (U.S. January 26, 1981), ~~ U.S.c
(1981). We stayed further action in this case pending the Supreme
Court's decision. (Order of March 16, 1981).
On June 17, 1981, the Supreme Court decided the Waukesha case
before it. Donovan v. Dewey, 49 U.S.L.W. 4748 (U.S. June 17, 1981) (No.
80-901),
U.S.
(1981). The Court held that the Mine Act
provides for nonconsensual warrantless inspections and that such
inspections do not violate the Fourth Amendment. Resolution of those
issues leaves before us the question of whether the refusal to permit an
inspection is a violation of the Act for which a penalty must be
imposed. ]_/ We hold that it is and thus affirm the judge's decision.
fn. !:._/ cont'd
(A) violates or fails or refuses to comply with any
order or decision is~ued under this Act,
(B) interferes with, hinders, or delays the Secretary or
his authorized representative, or the Secretary of Health,
Education, and Welfare or his authorized representative, in
carrying out the provisions of this Act,
(C) refuses to admit such representatives to the coal or
other mine,
(D) refuses to permit the inspection of the coal or other
mine, or the investigation of an accident or occupational
disease occurring in, or connected with, such mine ••••
3/ We reject Waukesha's contention that its stone quarry is not a
11
mine" subject to the Act. The definition of "mine" in section 3(h) of
the 1977 Mine Act is virtually identical, in pertinent part, with
section 2(b) of the Federal Metal and Non-Metallic Mine Safety Act of
1966. The legislative history of the 1966 Metal Act clearly indicated
that stone quarries were mines. S. Rep. 1296, 89th Cong., 2nd Sess.
(1966), reprinted in 1966 U.S. Code Cong. and Adm. News at 2851. The
legislative history of the 1977 Mine Act establishes that Congress
intended a very broad interpretation of "mine."
(footnote continued)

1703

\

Section llO(a) of the Act providesi
The operator of a coal or other mine in which a violation
occurs of a mandatory health or safety standard or who violates any
other provision of this Act, shall be assessed a civil penalty by
the Secretary which penalty shall not be more than $10,000 for
each such violation. Each occurrence of a violation of a mandatory
health or safety standard may constitute a separate offense.
Waukesha contends, however, that refusal of entry does not constitute a violation of a provision of the Act, because although section
103(a) authorizes certain inspections, it does not require an operator
to "perform any act or refrain from performing any act." It also
asserts that, in any event, the Secretary's exclusive remedy under the
circumstances is an injunction under section 108(a)(l), not a civil
penalty under section 110. We are not persuaded by Waukesha's arguments.
First, notwithstanding the absence of express statutory language,
it is illogical to assume that Congress intended to mandate inspections
and a right of entry for the Secretary's authorized representative
pursuant to section 103(a), without also viewing the operator's denial
of entry as a dereliction of its duty under the Act. Section llO(a) of
the Act, mandates assessment of a civil penalty where an operator violates a mandatory health or safety standard "or ••. any other provision
of this Act." Therefore, on its face, section llO(a) requires the
imposition of a penalty for the violation here of section 103(a), a
"provision of the Act." Any other interpretation would result in our
treating denial of· entry violations differently than all other violations which subject the operator to penalties under section llO(a).
Second, we reject the contention that a·section 108(a)(l) injunction is
the Secretary's sole remedy if an operator denies entry to his authorized
representative. Rather, dual remedies exist: an administrative remedy
under sections 104 and llO(a), and a civil injunctive remedy under
section 108(a)(l). We believe that if Congress had intended injunctive
relief to be the exclusive remedy, it would have stated so unequivocally.
We conclude, therefore, that refusal to permit an inspection violates
the Act and requires the imposition of a penalty under section llO(a).

fn. ]_/ cont'd
S. Rep. 95-181, 95th Cong., 1st Sess., 14 (1977), reprinted in Subcommittee on Labor, Committee on Human Resources, U.S. Senate, 95th
Cong., 2d Sess. Legislative History of the Federal Mine Safety and
Health Act of 1977 (1978) at 602. We do not believe that Congress
could possibly have intended to restrict cov~rage under the 1977 Mine
Act to less than that covered by the 1960 Metal Act and 1969 Coal Act.
Quite the contrary.

1704

For the foregoing reasons, the decision of the administrative law
judge is affirmed.

1705

Distribution
Francis R. Croak, Esq.
Jan E. Kearnery, Esq.
Cook & Franke, S.C.
600 East Mason Street
Milwaukee, Wisconsin 53202
Waukesha Lime and Stone Co., Inc.
·P.O. Box 708
Waukesha, Wisconsin 53187
Michael A. McCord, Esq.
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Boulevard
Arlington, VA 22203
Administrative Law Judge James A. Broderick
Chief Law Judge
FMSHRC
1730 K Street, N.W.
Washington, D.C.
20006

1706

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)

July 23, 1981

On behalf of:
BOBBY GOOSLIN

v.

Docket No. KENT 80-145-D

KENTUCKY CARBON CORPORATION
DECISION
This case involves the temporary reinstatement of a discharged
miner under section 105(c)(2) of the 1977 Mine Act, 30 U.S.C. §815(c)(2)
(Supp. III 1979). 1/ The broad legal question presented here is whether

1./

Section 105(c)(2) provides:
Any miner or applicant for employment or representative of
miners who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violation of
this subsection may, within 60 days after such violation occurs,
file a complaint with the Secretary alleging such discrimination.
Upon receipt of such complaint, the Secretary shall forward a copy
of the complaint to the respondent and shall cause such investigation to be made as he deems appropriate. Such investigation
shall conunence within 15 days of the Secretary's receipt of the
complaint, and if the Secretary finds that such complaint was not
frivolously brought, the Conunission, on an expedited basis upon
application of the Secretary, shall order the immediate reinstatement of the miner pending final order on the complaint. If upon
such investigation, the Secretary determines that.the provisions of
this subsection have been violated, he shall immediately file a
complaint with the Commission, with service upon the alleged
violator and the miner, applicant for employment, or representative
of miners alleging such discrimination or interference and propose
an order granting appropriate relief. The Commission shall afford
an opportunity for a hearing (in accordance with section 554 of
title 5, United States Code, but without regard to subsection
(a)(3) of such section) and thereafter shall issue an order, based
upon findings of fact, affirming, modifying, or vacating the
Secretary's proposed order, or directing other appropriate relief.
Such order shall become final 30 days after its issuance. The
Commission shall have authority in such proceedings to require a
person committing a violation of this subsection to take such
affirmative action to abate the violation as the Commission deems
appropriate, including, but not limited to, the rehiring or reinstatement of the miner to his former position with back pay and
interest. The complaining miner, applicant, or representative of
miners may present additional evidence on his own behalf during any
hearing held pursuant to his paragraph. [Emphasis added.]

1707

81-7-1·

an operator is afforded due process of law by the hearing on a Commission judge's order of temporary reinstatement that is provided for by
Commission R4le 44(a). Rule 44(a) implements the temporary reinstatement provisions of section 105(c)(2) of the Mine Act. It provides:
Contents of application; procedure; hearing. An application
for reinstatement shall state the Secretary's finding that the
complaint of discrimination, discharge or interference was not
frivolously brought and the basis for his finding. The application
shall be immediately examined, and, unless it is determined from
the face of the application that the Secretary's finding was
arbitrarily or capriciously made, an order of temporary reinstatement shall be immediately issued. The order shall be effective
upon issuance. If the person against whom relief is sought
requests a hearing on the order, a Judge shall, within 5 days after
the request is filed, hold a hearing to determine whether the
Secretary's finding was arbitrarily or capriciously made. The
Judge may then dissolve, modify or continue the order.
For the reasons that appear below, we hold that Rule 44(a), insofar as
it establishes an "arbitrary or capricious" standard of review at the
temporary reinstatement hearing, does not satisfy the minimum requirements of the Constitution's Fifth Amendment due process clause.
The facts of the case are as follows. Bobby Gooslin was employed
as a miner by Kentucky Carbon Corporation. On October 2, 1979, Kentucky
Carbon suspended Gooslin, with intent to discharge, allegedly for
causing an unauthorized work stoppage at the mine. '!:./ He was discharged
soon thereafter. Following his discharge, Gooslin filed a discrimination
complaint with the Mine Safety and Health Administration (MSHA). On
January 18, 1980, after MSHA had conducted an initial investigation of
Gooslin's complaint, the Secretary filed an application for temporary
reinstatement with the Commission. In the application, the Secretary
stated that MSHA's preliminary investigation into the merits of the
discharged miner's complaint disclosed, among other things, the following:
6. On Saturday morning, September 29, 1979, several
miners returning from work informed •.. Gooslin that ••• the
roof, in several specific areas of the mine, including the
main line, was in a dangerous condition, that they were
fearful of working under the roof in its existing condition,
and that they wanted a safety inspection to be made before
their scheduled return to work on Sunday evening, third shift,
September 30, 1979.

]:__! In a letter to Gooslin, dated October 2, 1979, Kentucky Carbon
stated:
The Company has concluded that your actions on September 30,
1979 were the efficient cause of an unauthorized work stoppage
and clearly establish you as a primary contributor in the
instigation of a work stoppage in violation of the Agreement.
For this offense, you are hereby suspended with intent to
discharge effective immediately.
(Res. Exh. R-3).

1708

7. Thereafter ..• Gooslin made several attempts to secure an
MSHA inspection. However, Mr. Gooslin was unsuccessful and
did not inspect the .•• mine •.••
8. On or about September 30, 1979, unable to secure an MSHA
inspection, ••. Gooslin sought assistance from the UMWA
District 30 Safety Inspector, James Boyd. Mr. Boyd ... agreed
to meet •.• Gooslin at the mine prior to the commencement of
the third shift that evening, Sunday, September 30, 1979.
9 • • • . Gooslin called [Kentucky Carbon's] Superintendent
William Meade, and informed Mr. Meade that he had requested an
MSHA inspection and that he wished to make a safety inspection
at the •.• mine later that evening prior to the commencement
of the third shift. Mr. Meade initially agreed, then called
••• Gooslin back and advised that the inspection would not be
permitted.
10. Notwithstanding Mr. Meade's refusal to inspect, ..•
Gooslin proceeded to the mine to keep the previously scheduled
meeting with Mr. Boyd. Upon Mr. Gooslin's arrival at the
mine, [Kentucky Carbon's] Mine Foreman James Christian informed Mr. Gooslin that an inspection of the mine would not be
permitted at that time.
11. Thereafter, •.. Gooslin advised the miners, who had begun
to assemble on the mine property in preparation for the
commencement of the shift, that a safety inspection had been
refused .•.. Gooslin left the mine property at approximately
11:15 p.m. September 30, 1979.
12. Thereafter, approximately 1 hour later, the miners
decided to not work.
13. Gooslin asserts that he at no time, encouraged, suggested,
or in any way caused the resulting work stoppage that occurred
on Octobe'!' 1, 1979.
14. On October 2, 1979, [Kentucky Carbon] discharged .••
Gooslin.
15.
Gooslin asserts that he was lawfully discharging his
duty as President of the local, as safety committeeman,
and as a miner in seeking to inspect the mine and the claimed
dangerous roof conditions.
On the basis of MSHA's preliminary investigation, the Secretary concluded
that Gooslin's complaint was "not frivolously brought". Cf. Rule 44(a).
Accordingly, the Secretary requested that the Commission order Kentucky
Carbon to temporarily reinstate the discharged miner.
On January 22, 1980, the Commission's Chief Admistrative Law Judge
granted the relief requested by the Secretary and issued an order of
temporary reinstatement. In the reinstatement order, the Chief Judge

1709

stated, "[i]t does not appear from the face of the application that the
Secretary's finding was arbitrarily or capriciously made." ]j Kentucky
Carbon then requested a hearing on the temporary reinstatement order as
provided for by Rule 44(a), and a hearing was held on January 30, 1980
before the Chief Judge. !:±_/ At the reinstatement hearing, Kentucky
Carbon attempted to prove that Gooslin was lawfully discharged and that,
therefore, his complaint to the Secretary was frivolously brought. The
Chief Judge, however, refused to receive testimony on that issue,
stating:
I think .you are getting into the merits of the discharge which are not before me. Was or was not Mr. Gooslin
discharged in violation of section 105 (c) of the Act is not
an issue before me in this hearing. No complaint has been
filed. The issue of whether the complaint was frivolously
brought is an issue peculiarly before the Secretary.
The Commission's role in this proceeding is totally to
determine whether the Secretary's finding was arbitrary and
capricious, a very limited role. I am not prepared to hear
evidence on the question either of whether Mr. Gooslin
was discharged in violation of section 105(c) or whether the
complaint Mr. Gooslin made to the Secretary was or was not
frivolous.
My issue is a very limited one as I set out in the Notice
of Hearing, namely was the Secretary's finding arbitrarily or
capriciously made?
The Commission's rules provide for this
kind of hearing on an expedited basis, but the issue is a very
limited one.
(Tr. 56-5 7).
On January 31, 1980, the Chief Judge issued an order affirming his
earlier order of temporary reinstatement on the ground that Kentucky
Carbon had failed to establish that the Secretary acted "arbitrarily or
capriciously" in determining that Gooslin's complaint was not frivolously
brought. From the January 31st order of temporary reinstatement, Kentucky

]_/ Rule 44(a) requires that the Secretary's application for temporary
reinstatement contain a finding that the miner's complaint was "not
frivolously brought".
!±./ Rule 44(a) states that "[i]f the person against whom relief is
sought requests a hearing on the order, a Judge shall, within 5 days
after the request is filed, hold a hearing to determine whether the
Secretary's finding was arbitrarily or capriciously made."

1710

Carbon sought Commission review. On March 10, 1980, we granted Kentucky
Carbon's petition and directed review of the order of temporary reinstatement. 'ii
On review, Kentucky Carbon argues that the "arbitrary or capricious" scope of the Rule 44(a) temporary reinstatement hearing is so
narrowly drawn as to deny it due process of law. We agree. 61 Although
the Chief Judge correctly applied existing Rule 44(a) in limiting the
scope of the temporary reinstatement hearing to the question of whether
the Secretary acted "arbitrarily or capriciously", our re-examination of
that rule convince.s us that the "arbitrary or capricious" standard, as
it relates to the temporary reinstatement hearing, does not comport with
the minimum requirements of the due process clause.
The due process clause contemplates more than is currently provided
the operator by Rule 44(a). Due process contemplates fundamental fairness. J_I As the Supreme Court stated in Boddie v. Connecticut, 401 U.S.
371 (1971):
What the Constitution does require is 'an opportunity ...
granted at a meaningful time and in a meaningful
manner,' •.. 'for [a] hearing appropriate to the nature of
the case,' ... [401 U.S. at 378; Court's emphasis; citations
omitted.]
See also, e.g., Armstrong v. Manzo, 380 U.S. 545, 552 (1965); Goldberg
v. Kelly, 397 U.S. 254, 267 (1970).

'ii

In our direction for review, we stated that the reinstatement order
was to remain in effect pending our decision. We also stated that we
were not suspending proceedings on the discrimination complaint that the
Secretary had filed on behalf of Gooslin. In that complaint, filed with
the Commission on February 8, 1980, the Secretary alleged that Kentucky
Carbon had discharged Gooslin in violation of section 105(c)(l) of the
Mine Act. Section 105(c)(l) in part provides that "[n]o 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 •••. " The Secretary's discrimination
complaint was based upon the same set of facts that prompted the Secretary
to seek the interim remedy of temporary reinstatement in this case.
61 Kentucky Carbon's petition for review also raises issues involving
the contents of the Secretary's application for temporary reinstatement
and the informant's privilege contained in Commission Rule 59. However,
because of our disposition of this case, we need not address those
issues here.
J_I In Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123
(1951), Justice Frankfurter, in a concurring opinion, described due
process as:
Representing a profound attitude of fairness between man and
man, and more particularly between the individual and government,
'due process' is compounded of history, reason, the past
course of decisions, and stout confidence in the strength of
the democratic faith which we profess. Due process is not a
mechanical instrument. It is not a yardstick. It is a process.
It is a delicate process of adjustment inescapably involving
the exercise of judgment by those whom the Constitution entrusted
with the unfolding of the process. [341 U.S. at 162-163.]

1711

Because of the narrow and restrictive scope of the "arbitrary or
capricious" standard of review, we believe that the Rule 44 (a) temporary
reinstatement hearing procedure falls short of providing the operator
with elemental fairness. Rule 44(a) does not provide the operator with
a sufficient opportunity to show that an order of temporary reinstatement
should not be continued. Accordingly, we hold that the hearing provided
by Rule 44(a) does not comport with due process.
Because Kentucky Carbon was denied due process, we therefore,
vacate the January 31, 1980 order of temporary reinstatement. Subsequent events, however, render it unnecessary to remand the case for
further proceedings on the temporary reinstatement application. On
March 18, 1981, a Commission judge decided the merits of the Secretary's
discrimination complaint (see n. 5) in favor of Gooslin and ordered
Kentucky Carbon to reinstate him permanently to his former position with
full seniority rights. Jl./ Kentucky Carbon did not seek review of that
decision. Thus, there is no continued need for the interim relief of
temporary reinstatement. !!__/
Accordingly, the January 31, 1980 order of temporary reinstatement
is vacated.

" ~\11~to '·' x~ D/~1r1 :~J.Qj;\ "\~ Ofl~

Marian Pearlman Nease, Commissioner

Jl./ The judge's decision is reported at 3 FMSHRC 640 (1981).
'}_/ Because there is no need to remand, ~e do not, in this decision,
delineate what procedures are required to satisfy due process. Rather,
we believe that rule-making, presently underway, is the better vehicle
for restructuring the scope of the Rule 44(a) temporary reinstatement
hearing.

1712

Distribution
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
C. Lynch Christian, III, Esq.
Jackson, Kelly, Holt & O'Farrell
P.O. Box 553
Charleston, West Virginia 25322
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
W. Timothy Pohl, Esq.
Carbon Industries, Inc.
Suite 1300
One Valley Square
Charleston, WEst Virginia

25301

Mary Lu Jordan, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge James Laurenson
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1713

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

July 28, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 79-365-M

v.
SALT LAKE COUNTY ROAD DEPARTMENT
DECISION
This case involves a civil penalty proceeding under section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 ~
~· (Supp. III 1979).
The issue is whether a proposal for penalty
should be dismissed because of its late filing under Commission Rule 27.
For the reasons below, we conclude that dismissal is not warranted in
this case.
On March 27, 1979, Salt Lake County Road Department was cited for a
violation of 30 CFR §56.14-1. 1./ The Secretary proposed a penalty of
$60 and Salt Lake timely filed a notice of contest on August 28, 1979.
The Secretary filed a proposal for a civil penalty on December 10, 1979,
which was accompanied by an instanter motion to accept late filing of
the penalty proposal. Under Connnission Rule 27, the Secretary should
have filed the penalty proposal on or before October 12, 1979. 'l:_/ In
addition, under Connnission Rule 9, if the Secretary desired an extension, such a motion should have been filed on or before October 7, 1979. 11
The Secretary's instanter motion stated that lack of clerical personnel
and a high volume of cases caused the delay in filing. !±_/

!/

56.14-1. 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, shall be guarded.
'l:_/ Rule 27, 29 CFR §2700.27, states in pertinent part:
(a) When to file. Within 45 days of receipt of a timely
notice of contest of a notification of proposed assessment of
penalty, the Secretary shall file a proposal for a penalty with the
Commission.
11 Rule 9, 29 CFR §2700.9, states:
Extension of Time. The time for filing or serving any document may be extended for good cause shown. A request for an
extension of time shall be filed 5 days before the expiration of
the time allowed for the filing or serving of the document.
!±_/
The proposal for penalty in this case is a simple two-page pleading
consisting mainly of five short paragraphs.

1714

81-7-16

On January 11, 1980, Salt Lake filed an answer and a motion for a
summary decision. Salt Lake predicated its summary decision motion, in
part, on the argument that dismissal was required because the proposal
for penalty was filed late. At the hearing held on July 23, 1980, the
parties read into the record a settlement agreement stipulating to the
violation and payment of the proposed $60 penalty subject to determination of the legal issues raised by the respondent in its motion for
summary decision. Tr. 3-5. On November 25, 1980, the administrative
law judge issued a decision in which he accepted the Secretary's late
filing, found a violation, and assessed a $60 penalty. 2 FMSHRC
3409. ii
Under section 105(a), an operator has 30 days from the receipt of
the initial notification of a proposed penalty assessment in which to
notify the Secretary that he plans to contest the assessment. Sect.ion
l05(d) requires that if a timely notice of contest is filed, "the
Secretary shall immediately advise the Commission of such notification,
and the Commission shall afford an opportunity for a hearing •••• "
(Emphasis added.) In turn, Commission Rule 27 provides that "[w]ithin
45 days of receipt of a timely notice of contest ••. , the Secretary
shall file a proposal for a penalty with the Commission." In essence,
Rule 27 implements the meaning of "immediately" in section 105(d).
We think that it is clear from the text of section 105(d) that the
purpose of that section is to provide for prompt and efficient enforcement. The requirement of prompt penalty proposal puts teeth into the
Mine Act's penalty structure. T[ie section incidentally promotes "fair
play" by protecting operators from stale claims. This focus on effective
enforcement rather than on creating a period of limitations is reflected
in relevant legislative history cited by the judge. Although that
passage in the report of the Senate committee that largely drafted the
Mine Act deals with the initial notification of an operator of a proposed penalty assessment~ it bespeaks the overriding concern with
enforcement:
To promote fairness to operators and miners and encourage
improved mine safety and health generally, such penalty proposals
must be forwarded.to the operator and miner representative
promptly. The Committee notes, however, that there may be circumstances, although rare, when prompt proposal of a penalty may not
be possible, and the. Committee does not expect that the failure to
propose a penalty with promptness shall vitiate any proposed
penalty proceeding. [_~I]

ii

Our grant of Salt Lake's petition for discretionary review limited
review to the issue of whether the penalty proposal should be dismissed
due to its late filing. There were two additional issues, originally
raised in Salt Lake's summary decision motion, concerning which we did
not grant review: 1) whether the pit in question is under the jurisdiction of the Mine Act; and 2) whether the inspection was conducted
lawfully because the inspector did not have a warrant.
§_I
S. Rep. No. 95-181, 95th Cong., 1st Sess. 34 (1977), reprinted in
Senate Subcommittee on Labor, Comm. on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act of
1977, at 622 (1978).

1715

Commission Rule 27 must be interpreted consistently with section 105(d),
since Rule 27 implements that section. Accordingly, the Secretary is
not free to ignore the time constraints in Rule 27 for any mere caprice,
as that would frustrate the enforcement purposes of section 105(d) and,
in some cases, deny fair play to operators.
In view of the foregoing, what consequences should ensue if the
Secretary does not comply with Rule 27? Since the purpose of Rule 27 is
to effectuate the Act's substantive penalty scheme, not to create a
"statute" of limitations, as Salt Lake contends, we cannot view the term
"immediately" in section 105(d), or the time limit set in Rule 27, as
procedural "strait jackets." Situations will inevitably arise where
strict compliance by the Secretary does not prove possible. Nonsuiting
the Secretary in such situations presents quite a different situatton
from defaulting the tardy private litigant. The drastic course of
dismissing a penalty proposal would short circuit the penalty assessment
process and, hence, a major aspect of the Mine Act's enforcement scheme.
We do not mean to intimate that insuring procedural fairness is not
an important concern under the Mine Act. However, effectuation of the
Mine Act's substantive scheme, in furtherance of the public interest, is
more crucial. Accordingly, considerations of procedural fairness to
operators must be balanced against the severe impact of dismissal of the
penalty proposed upon the substantive scheme of the statute and, hence,
the public interest itself. See, ~· Alumbaugh Coal Corp. v. NLRB,
635 F.2d 1380, 1384 (8th Cir. 1980). In order to help strike a proper
balance and to insure that the Secretary does not ignore section 105(d)'s
injunction to act "immediately," we hold that if the Secretary does
seek permission to file late, he must predicate his request upon
adequate cause. Cf. Valley Camp Coal Co., 1 FMSHRC 791, 792 (1979)
(excusing the late filing of an operator's answer for "adequate cause").
Such a requirement will guard against cases of abuse and also comports
with analogous leeway extended to private litigants before the Commission.
Valley Camp Coal Co., supra. Nevertheless, cases may arise where procedural justice dictates dismissal. While the requirement of showing
adequate cause for a filing delay may guard against administrative
abuse, a stale penalty proposal may substantially hinder the preparation
and presentation of an operator's case. Therefore, ',,we also hold that an
operator may object to a late penalty proposal on the grounds of
prejudice. We note that in his brief filed herein, the Secretary agrees
with this general proposition. Br. 3-4. Allowing such an objection
comports with the basic principle of administrative law that substantive
agency proceedings, and effectuation of a statute's purpose, are not to
be overturned because of a procedural error, absent a showing of prejudice.
See Alumbaugh Coal Corp. v. NLRB, 635 F.2d at 1383-1384 (and cases
cited); Jensen Construction Co. v. OSHRC, 597 F.2d 246, 247-248 (10th
Cir. 1979); Todd Shipyard Corp. v. Secretary of Labor, 566 F.2d 1327,
1329-1330 (9th Cir. 1977); Ralph Foster & Sons, 3 FMSHRC 1181 (1981). ]_/
]_/
Salt Lake's objection (Br. 3) that we are not free to read a
prejudice requirement into Rule 27 because the Rule is silent on prejudice lacks merit. As the authorities cited in the accompanying text
(footnote cont'd)

1716

In light of the foregoing general principles, we turn to the
specific issues in this case: did the Secretary show adequate cause for
the delay and did the delay prejudice Salt Lake?
The Secretary's reason for delay, an extraordinarily high caseload
and lack of clerical personnel, might be deemed an improper excuse for
filing a simple, two-page pleading two months late. As Salt Lake points
out, almost any law office in the country can claim the same "cause" as
an excuse to evade every time limit in the various rules of civil procedure. However, the Secretary is engaged in voluminous national
litigation and mistakes can happen. We believe that the Secretary
minimally satisfied the adequate cause standard in this case. This is
not to say that we will tolerate a practice of filing relatively uncomplicated pleadings late. Therefore, we cannot too strongly urge the
Secretary to comply with Commission Rule 27, to the end that the enforcement
goals embodied in section 105(d) be realized. See Arch Mineral Corp., 2
FMSHRC 277 (1980). §_/
Furthermore, we agree with the judge (2 FMSHRC 3412) that Salt Lake
has shown no prejudice. Indeed, in its brief filed herein, Salt Lake
makes no effort to demonstrate prejudice. Salt Lake certainly had
notice of the citation and had filed its notice of contest. Salt Lake
merely seizes upon a procedural irregularity to justify the drastic
remedy of dismissal.

fn. 7 continued
demonstrate, agencies have discretion to interpret their procedural
rules in light of well-established principles of administrative law,
which, in effect, are read in pari materia with the rules. Salt Lake's
attempt to treat Rule 27 as a statute of limitations or "statute of
creation" (Br. 5-7) is also misplaced. As we have concluded, section
105(d) is not a statute of limitations and, therefore, the implementing
45-day time-limit in Rule 27 is not an administrative "statute" of
limitations either) rather it is a procedural rule d~signed to give
specific and concrete form to section 105(d)'s injunction for "immediate"
action in order to effectuate the Mine Act's penalty system. For this
reason, the numerous statute of limitations cases cited by Salt Lake are
inapposite. These cases involved genuine statutes of limitations
enacted by Congress expressly to protect parties from defending against
stale claims.
§_/
Complicating this case is the fact that the Secretary did not
request an extension of time under Rule 9. Instead, the Secretary used
an instanter motion, as the period for filing a request for an extension
of time had lapsed. The use of an instanter motion could become temptation to abuse and, absent extraordinary circumstances, the Secretary is
also admonished to proceed by timely extension motion when extra time is
legitimately needed.

1717

In sum, for the reasons stated above, we affirm the judge's acceptance
of the Secretary's late-filed penalty proposal and his refusal to dismiss
the proceeding due to the late filing. Therefore, the judge's finding
of violation and assessment of penalty are affirmed.

1718

Distribution
Kevan F. Smith, Esq.
Office of the Salt Lake County Attorney
Civil Division
151 East 2100 South, Box 29
Salt Lake City, Utah 84115
Michael McCord, Esq.
Nancy Hyde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Virgil Vail
FMSHRC
333 West Colfax Ave.
Denver, Colorado 80204

1719

Administrative Law Judge Decisions

l'"i'20

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

22041

JUL 1 1981
JONES & LAUGHLIN STEEL CORPORATION
Contestant

Contest of Citation and Order
Docket No. PENN 81-96-R

v.

Vesta No. 5 Mine

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

DECISION
Appearances:

Henry McC. Ingram, Esq., Rose, Schmidt, Dixon, Hasley, Whyte
and Hardesty, Pittsburgh, Pennsylvania and J. R. Haggerty,
Esq., Jones & Laughlin Steel Corporation; R. Henry Moore,
Esq., and Thomas C. Reed, Rose, Schmidt, Dixon, Hasley,
Whyte and Hardesty, Pittsburgh, Pennsylvania on the Briefs
for Contestant.
Lawrence W. Moon, Jr., Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia; Thomas A. Mascolino,
Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia on the Briefs for Respondent.
Kurt Kobelt, Esq., United Mine Workers of America, Washington,
D.C. on the Brief for Intervenor.

Before:

Judge James A. Laurenson

This proceeding was filed by Jones & Laughlin Steel Corporation
(hereinafter "J & L") pursuant to section lOS(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(d) (hereinafter "the Act") to contest
the validity of a citation and order issued by the Secretary of Labor, Mine
Safety and Health Administration (hereinafter "MSHA"). Citation No. 1046974,
issued on February 17, 1981, pursuant to section 104(d)(l) of the Act,
alleged a violation of the mandatory safety standard at 30 C.F.R. § 75.303.
Order No. 1046866, issued on February 19, 1981, alleged a violation of the
same standard and was issued pursuant to section 104(d)(l) of the Act. The
violation charged in both documents was the failure of J & L to conduct a
preshift examination of coal-carrying conveyor belts.

1721

J & L's Motion to Expedite the proceeding was granted and a hearing was
held in Pittsburgh, Pennsylvania on April 1, 1981. Inspection Supervisor
Eugene Beck and Supervisory Mining Engineer Alex O'Rourke testified for MSHA.
J & L's witnesses were its employees as follows: Stephen J. Hajdu, assistant
safety inspector; Daniel L. Ashcraft, manager of mines; and George Pizoli,
manager of mines.

On May 5, 1981, the United Mine Workers of America (hereinafter "UMWA")
moved for leave to intervene in this proceeding. The motion was granted and
the UMWA filed a brief. J & L and MSHA also filed briefs.
ISSUE
Whether J & L violated the Act or regulations as charged by MSHA.
APPLICABLE LAW
30 C.F.R. § 75.303 provides, in pertinent part, as follows:
(a) Within 3 hours immediately preceding the beginning
of any shift, and before any miner in such shift enters the
active workings of a coal mine, certified persons designated
by the operator of the mine shall examine such workings and
any other underground area of the mine designated by the
Secretary or his authorized representative. Each such
examiner shall examine every working section in such workings
and shall make tests in each such working section for accumulations of methane with means approved by the Secretary for
detecting methane, and shall make tests for oxygen deficiency
with a permissible flame safety lamp or other means approved
by the Secretary; examine seals and doors to determine whether
they are functioning properly; examine and test the roof,
face, and rib conditions in such working section; examine
active roadways, travelways, and belt conveyors on which men
are carried, approaches to abandoned areas, and accessible
falls in such section for hazards; test by means of an
anemometer or other device approved by the Secretary to
determine whether the air in each split is traveling in its
proper course and in normal volume and velocity; and examine
for such other hazards and violations of the mandatory health
or safety standards, as an authorized representative of the
Secretary may from time to time require. Belt conveyors on
which coal is carried shall be examined after each coalproducing shift has begun.
30 C.F.R. § 75.2(g) contains the following definitions: "(3) 'Working
section' means all areas of the coal mine from the loading point of the
section to and including the working faces. (4) 'Active workings' means
any place in a coal mine where miners are normally required to work or
travel."

1722

STIPULATIONS
J

& L and MSHA stipulated the following:

1. J & L is engaged in mining and selling bituminous coal in the
United States, and its mining operations affect interstate commerce.
2. J & L is the owner and operator of the Vesta No. 5 Mine, MSHA ID
No. 3600962.

3. The Vesta No. 5 Mine is subject to the Act, and the jurisdiction
of the Mine Safety and Health Administration.
4. Operator's Exhibit 0-1 is a copy of the map of the underground
workings of the Vesta No. 5 Mine, and depicts the A, B and C conveyor belt
flights of 44 face, as that area of the mine existed on February 17, 1981,
and the 1 face A and B belt haulage flights as that area existed on
February 19, 1981, and Exhibit 0-1 is admitted into evidence in this
proceeding.
5. Operator's Exhibit 0-2 is a collective exhibit, comprised of copies
of portions of the fireboss book for the Vesta No. 5 Mine, in which certified
persons employed by J & L recorded reports of examinations for hazardous
conditions, including those conducted pursuant to 30 C.F.R. section 75.303,
on February 17, 1981 and February 19, 1981, in the areas of the Vesta No. 5
Mine referred to in Citation No. 1046974 and Order No. 1046866, and Exhibit
0-2 is admitted into evidence in this proceeding.
6. J & L made an examination of the nature specified in 30 C.F.R.
75.303 of the area referred to in Citation No. 1046974 during the midnight
shift (shift beginning at 12:01 a.m.) on February 17, 1981, except that such
.examination was not made during the last three hours of the shift.
§

7. J & L made an examination of the nature specified in 30 C.F.R.
75.303 of the area referred to in Citation No. 1046974 on the daylight
shift (shift beginning at 8:00 o'clock a.m.) on February 17, 1981, except
that no such examination was made within the three hours preceding the
beginning of the shift, or before men entered and began to work in the area
referred to in the citation, on such shift.
§

8. J & L made an examination of the nature specified in 30 C.F.R.
75.303 of the area referred to in Order No. 1046866, during the midnight
shift on February 19, 1981, except that such examination was not made during
the last three hours of the shift.
§

9. J & L made an examination of the nature specified in 30 C.F.R.
75.303 of the area referred to in Order No. 1046866 on the daylight shift
on February 19, 1981, except that no such examination was made within the
three hours preceding the beginning of the shift, or before men entered and
began to work in the area referred to in the order, on such shift.
§

1723

10. The belt conveyors referred to in the citation and order are used
by J & L to carry coal, and men are not transported on such belt conveyors.
11. J & L was producing coal on the shifts on which the citation and
order were issued.
12. At the time the citation was issued, the belt conveyors referred
to therein were. in good condition, and no hazards were observed.
13. At the time the order was issued, the belt conveyors referred to
therein were in good condition, except for two citations that were issued
by Inspector Calvert for alleged violations.
14. There was no inspection of the entire mine between February 17,
1981 and February 19, 1981.
15. MSHA's Coal Mine Inspection Manual, March 1978, contains a policy
for inspection under 30 C.F.R. § 75.303, which provides: "The examination
of belt conveyors on which men are not transported shall be started without
delay after each coal producing shift has begun."
16. There exists in the Vesta No. 5 Mine approximately 18 miles of
active conveyor belts.
SUMMARY OF THE EVIDENCE
The facts underlying the contested citation and order are not in dispute. On February 17, 1981, an MSHA inspector issued Citation No. 1046974
pursuant to section 104(d)(l) of the Act. The citation alleged that a
significant and substantial violation of 30 C.F.R. § 75.303 had occurred and
that the alleged violation was caused by the unwarrantable failure of J & L
to comply with the mandatory standard. The condition or practice was
described as follows:
Evidence indicated that A, B, and C conveyor belt flights
of 44 Face had not been preshift examined for the day shift.
An entry was not in the mine examiner's report or at the date
board along the belt flights indicating that an examination
was made before workmen of the day shift entered the area
along each belt flight.
On February 19, 1981, another MSHA inspector issued Order of Withdrawal
No. 1046866, pursuant to section 104(d)(l) of the Act, for a condition he
observed in the 1 Face A and B belt haulage flights of the Vesta No. 5 Mine.
The order alleged that a significant and substantial violation of 30 C.F.R.
§ 75.303 had occurred and that the alleged violation was caused by the
unwarrantable failure of the operator to comply with the mandatory standard.
The condition or practice was described as follows:

1724

Evidence indicated that a preshift examination was not
made of the 1 Face A and B belt haulage flights where
persons were observed working the day shift, an entry was not
in the mine examiner's book or at the date boards along the
belt haulage.
The order referred to the citation as being the underlying initial
action.
The relevant facts leading to the citation and order are the same. In
both instances, the involved areas were coal-carrying conveyor belts which
were not used to transport miners. In both cases the conveyor belts had beer.
examined by J & L during the preceding shift but not within 3 hours of the
commencement of the shift on which the citation and order were issued. In
other words, J & L did not conduct a preshift examination of the coalcarrying conveyor belts. At the time the citation and order were issued,
miners were working along the conveyor belts.
MSHA and the UMWA contend that the regulation in controversy requires
J & L to conduct a preshift examination of the coal-carrying conveyor belts.

& L asserts that the regulation does not require a preshif t examination of
the belts.

J

At hearing, MSHA's policy concerning its interpretation of the regulation leading to the controversy was stated by its employees: Eugene Beck,
Inspection Supervisor, and Alex O'Rourke, Supervisory Mining Engineer.
Mr. Beck stated,
"[B]elt lines • • • where coal is being hauled, carried, no
persons along that belt line, must be examined during, after
the shift is started, and if there was men working or
assigned to be working anyplace in them areas, along that
belt line, it had to be pre-shifted within 3 hours preceding
the beginning of the shift." (Tr. 40).
Mr. O'Rourke stated that no preshift examination of conveyor belts was
required under this regulation "where men were not required, were planned to
be working in that area during that shift."
(Tr. 82). Mr. O'Rourke went
on to state that the requirements of the regulation concerning a preshift
examination and an examination during the shift could be merged into a single
examination following the initial preshift examination. (Tr. 83). MSHA's
witnesses conceded that the Coal Mine Inspection Manual (hereinafter "the
Manual") states that the examination of conveyor belts on which men are not
transported shall be started without delay after each coal producing shift
has begun. The Manual says nothing about a preshift examination of such
belts.
On February 14, 1980, MSHA issued a citation to the same mine for the
same violation. That citation alleged a failure to conduct a preshift
examination of coal-carrying conveyor belts where men were normally required
to work or travel in the area (Ex. C-1). J & L did not contest that citation.

1725

In December, 1980, and January, 1981, discussions took place between
MSHA supervisory personnel and J & L management. During these discussions,
MSHA told J & L that a preshift examination of certain coal-carrying conveyor
belts was required. J & L disputed that interpretation of the regulation.
MSHA suggested that J & L file a petition to modify the application of the
mandatory standard pursuant to section lOl(c) of the Act. J & L elected not
to file such a petition because it believed that such filing would concede
MSHA's interpretation of the regulation.
Inspection Supervisor Beck testified that, in his opinion, the hazards
surrounding conveyor belts were at least twice as great at the end of the
shift as they were at the beginning of the shift. He identified such hazards
as accumulations of float coal, hot rollers, and roof problems. Supervtsory
Mining Engineer O'Rourke testified that although he was familiar with MSHA's
policy concerning the preshift examination requirement of coal-carrying conveyor belts, he could not say what the actual practice has been by inspectors
except that he had seen other citations in MSHA District 2 for the same violation alleged here. He could not be specific as to the number of such
citations.
Stephen Hajdu, J & L's assistant safety inspector for this mine, testified that after the February 14, 1980 citation and before the citation contested here, it was J & L's practice to conduct a preshift examination of
coal carrying conveyor belts "where you normally have men regularly employed
in those areas, or has to work normally in those areas." (Tr. 106). He was
unable to state whether the men working along the conveyor belts on
February 19, 1981, were regularly assigned to that area. He conceded that,
"anytime during any shift there is possibly a man or two somewhere along the
belt lines." (Tr. 95).
Daniel Ashcraft, manager of mines for J & L, testified that the Vesta
No. 5 Mine is not under his jurisdiction. He testified that in his 33 years
of coal mine employment he had never heard of a citation being issued for
failure to conduct a preshift examination of coal-carrying conveyor belts.
He admitted, however, that if he knew that miners were going to be assigned
for a specific job along such belts, "that area was preshifted at that time."
(Tr. 116).
George Pizoli, J & L's manager of mines, testified that the Vesta No. 5
Mine has been under his jurisdiction since October 1, 1980. He testified
that during the 6 years, prior to October 1, 1980 as an employee with other
coal mine operators, all coal-carrying conveyor belts had been examined only
during the shift and no citations had ever been issued. After the issuance
of the order herein, he increased the number of preshift examiners at this
mine from 13 to 20 to achieve compliance. Additionally, he directed his
employees to conduct a preshift examination of all 18 miles of coal-carrying
conveyor belts at this mine because "it is reasonable to assume that you are
going to have to dispatch people to any portion of that belt line at any
time • •
" (Tr. 130-31).

1726

DISCUSSION
Contentions of the Parties
J & L asserts that the language of 30 C.F.R. § 75.303 clearly does not
require belt conveyors, not used to transport miners, to be examined within
3 hours prior to the start of the shift. It further contends that the
principles of statutory construction and the legislative history of the Act
establish that it was not the intent of Congress to require such belt conveyors to be examined prior to the commencement of the shift.

At the hearing, MSHA's supervisors testified that the requirement of a
preshift examination of coal-carrying conveyor belts applies only to such
belts where men are required or assigned to work during that shift. However,
MSHA argues that the coal-carrying conveyor belts herein are "active workings" of the mine and, hence, must be examined within 3 hours preceding the
beginning of each shift. MSHA further asserts that the additional provision
of the regulation, requiring that such belts be examined after the shift has
begun, does not require more than one examination per shift because, after
the initial preshift examination, the examination during the shift and the
preshift exam for the next shift can be merged. MSHA's brief sets forth its
position as follows:
It is completely within the Secretary's interpretation
for J&L to inspect, during the preshift exam, only those areas
of the conveyor belt entries where men are to work or travel,
such as the areas of the belt drive units, leaving the remaining areas of the belt entries to be covered during the shift
(Tr. 144-145). In the alternative, as MSHA witnesses testified, J&L can delay the required onshift exam until the end
of a shift, accomplishing it within three hours of the succeeding shift, and thereby qualify that one examination to
satisfy both the preshift and onshift examination requirements
of 30 CFR § 75.303. This example, of course, assumes that the
"two for one" exam will be sufficiently broad and thorough.
MSHA accepts such an examination and does not deem it to be
violative of MSHA policy.
MSHA Brief at 10-11.
The UMWA agrees with MSHA that coal-carrying conveyor belts are "active
workings" of the mine and must be examined within 3 hours preceding the
beginning of each shift. However, the UMWA contends that because all coalcarrying conveyor belts constitute "active workings" of the mine, all such
belts must be subjected to preshift examination whether or not men are
assigned to work in the area. The UMWA also asserts that the regulation
requires two separate examinations applicable to each shift: A preshift
examination and an examination during the shift. The UMWA contends that
these examinations may not be merged into a single examination.

1727

Construction of 30 C.F.R. § 75.303
The language of the regulation in controversy, 30 C.F.R. § 75.303, is
the same as section 303(d)(l) of the Act. The principles of statutory construction apply. The cardinal principle of statutory construction was stated
by the U.S. Supreme Court as follows: "the meaning of a statute must, in the
first instance, be sought in the language in which the Act is framed, and if
that is plain, • • • the sole function of the courts is to enforce it according to its terms." Caminetti v. United States, 242 U.S. 470, 485 (1917).
The application of this principle to the regulation here must be based upon
an analysis of the first three sentences of the regulation.
The first sentence of the regulation provides that the operator must
perform a preshift examination of "the active workings of a coal mine." At
the hearing, J & L did not contend that the belts in question were not active
workings. However, in its brief it states: "It is arguable that the belt
conveyors here are not part of the active workings." J & L Brief at 9;
30 C.F.R. § 75.2(g)(4) and section 318(g)(4) of the Act provide as
follows: "'Active workings' means any place in a coal mine where miners are
normally required to work or travel." The term, "active workings," has been
broadly construed by the Interior Board of Mine Operation Appeals (hereinafter "The Board") and the Federal Mine Safety and Health Review Commission
(hereinafter "the Commission"). In Mid-Continent Coal and Coke Co., 1 IBMA
250, 257 (1972) the Board held that even though only one miner was required
to regularly inspect an entry containing a high-voltage cable, that was
enough to constitute an "active working." In Kaiser Steel Corp., 3 IBMA 489,
510 (1974) the Board held that an air return which was inspected twice a day
and rock dusted twice a week constituted an •iactive working" of the mine.
In Secretary of Labor v. Old Ben Coal Company, 3 FMSHRC 608, 609 (1981) the
Commission noted the two previously cited decisions of the Board and stated,
"the cited area was required to be inspected at least once a week, was
traveled as an escape route, and was rock-dusted periodically. We find that
these uses meet the work and travel requirements of an active working under
the standard." Although all the above cases decided by the Board and
Commission involved 30 C.F.R. § 75.400, no reason exists for applying a
different definition of "active working" to 30 C.F.R § 75.303. Even J & L
concedes that the conveyor belts in question must be examined during each
shift and that, at the time of the issuance of the citation and order, miners
were assigned to work in the areas of the conveyor belts. I find that the
conveyor belts in the cited areas constitute "active workings" of the coal
mine. Hence, the first sentence of the regulation appears to require that
they be examined "within 3 hours immediately preceding the beginning of any
shift."
Turning to the second sentence of the regulation, it specifies that the
"examiner shall examine every working section • • • seals and doors • • •
the roof, face, and rib conditions in such working sections; examine active
roadways, travelways, and belt conveyors on which men are carried • • • • "
30 C.F.R. § 75.2(g)(3) and section 318(g)(3) of the Act provides as follows:
"'Working section' means all areas of the coal mine from the loading point

1728

of the section to and including the working faces." The "loading point"
referred to in the above definition is the point at which coal is placed onto
the conveyor belt. Thus, the conveyor belts in the cited areas here are not
within the definition of "working section" as that term is used in the second
sentence of the regulation. J & L asserts that "the areas of the active
workings to be examined prior to the shift are only those areas of the working
section outlined in the second sentence of the regulation." J & L Brief at 9.
Although MSHA asserts that "statutes must be read in such a way as to give
all parts meaning," and that the first sentence is "inclusive and paramount,
and the sentences which follow [are] illustrative but not exceptive," MSHA
Brief at 19 and 16, it does not comment further on the second sentence of the
regulation. The UMWA commented on the construction of the second sentence
of the regulation as follows:
[T]he reference to "working section" in the second sentence
should be construed liberally, and harmoniously with the
first sentence as a means of ensuing [sic] that the pre-shift
examination requirement is applied to working sections, as
well as to active roadways, travelways and belt conveyors on
which men are carried, due to the particular severity of the
hazards associated with these areas • • • [and] • • • the
first two sentences define and elaborate the pre-shift
examination • • • •
UMWA brief at 9 and 12. Upon considering all the arguments, suffice it to
say that the areas which ar·e required to be examined within 3 hours before
the beginning of any shift in the second sentence of the regulation do not
include all "active workings" of the mine which are included in the first
sentence of the regulation.
Following the first two sentences of the regulation, which describe the
areas of a coal mine required to be examined prior to the beginning of a
shift, the third sentence states, " belt conveyors on which coal is carried
shall be examined aft.er each coal-producing shift has begun." J & L argues
that, "the third sentence of the standard specifically exempts such belt
conveyors from examination prior to the shift by authorizing examination to
occur during the shift." J & L Brief at 10. MSHA contends that the third
sentence is not an exception to the first sentence but rather calls for an
examination during the shift which can be delayed "until the end of a shift,
accomplishing it within 3 hours of the succeeding shift, and thereby qualify
that one examination to satisfy both the preshift and onshift examination
requirements of 30 C.F.R. § 75.303." MSHA Brief at 11. Thus, MSHA concludes
that the third sentence requires an examination of coal-carrying conveyor
belts after the beginning of the shift in addition to the examination
specified in the first sentence. The UMWA's position concerning the first
sentence is as follows: "The on-shift inspection of the coal carrying belts
required by the third sentence of 30 C.F.R. 75.303 was not intended to be
a restriction on the general pre-shift inspection provisions established in
the first sentence. Rather, it was intended to promote mine safety by
requiring that a separate and additional inspection be performed on coal
carrying belts." UMWA Brief at 13-14.

1729

I have considered the contentions of all the parties that the language
of the regulation is plain and does not need interpretation. However, I note
that the purportedly "plain" language relating to the examination of coal
carrying conveyor belts has been construed by these parties in three different
ways as follows: (1) J & L - only an examination after the shift has begun;
(2) MSHA - a preshift examination only of belts where men are assigned or
planned to work or travel and an examination of all coal-carrying conveyor
belts after the shift has begun, but if the latter examination is conducted
during the last 3 hours of the shift, one such examination will satisfy both
requirements of the regulation; and (3) UMWA - all coal-carrying belts must
be examined before each shift and examined again after the start of the shift
and such examinations may not be merged.
The first sentence of the regulation, as defined and interpreted by the
Board and the Commission, purports to require a preshift examination of the
areas cited here. The second sentence purports to specify a more narrow area
of the mine to be preshifted including, inter alia, working sections and belt
conveyors on which men are carried. Obviously, all areas identified in the
second sentence are included within the definition of "active workings" in
the first sentence. MSHA contends that the second and third sentences are
"illustrative but not exceptive." J & L claims that the second and third
sentences create "an exception to the requirement of examination prior to the
shift." J & L Brief at 11. If the first sentence requires the preshift
examination of all conveyor belts, what is the purpose of the second sentence
which requires preshift examination of only conveyor belts on which men are
carried? I find that the language used in tbe three sentences of this regulation is not plain or unambiguous. Therefore, the legislative history of
the Act must be examined to determine the intent of Congress in enacting this
law.
Legislative History
An examination of the legislative history leading to the enactment of
the provision in controversy begins with the Federal Coal Mine Safety Act
of 1952, P.L. 532, 82d. Cong. Ch. 877, 2d Sess. (1952) (hereinafter "1952
Coal Act"). The parties agree that the 1952 Coal Act did not require a
preshift examination of any conveyor belts.
In 1969, the Senate and House of Representatives passed different bills
concerning the duty to examine conveyor belts. The House Bill, HR 13950,
section 303(d)(l), added the following: (1) a specific requirement in the
second sentence that required a preshift examination of all belt conveyors
on which men are carried; and (2) the third sentence which provided that conveyors on which coal is carried shall be examined after each coal-producing
shift has begun. The House Report concerning this provision is silent.
Legislative History of the Federal Mine Health and Safety Act of 1969 (Public
Law 91-173 (August 1975) (hereinafter "Legislative History") at 1031, et seq.
The Senate Bill, s. 2917, added the phrase "and all belt conveyors" tothesecond sentence which specified areas of a coal mine subject to preshift
examination. The Senate Report concerning this change is as follows:

1730

This section sets forth requirements that the operator
must follow for preshift examinations. The provisions are
similar to the 1952 act provisions, except that they apply to
all underground coal mines and except for four additional
requirements. These are: (1) An anemometer or other
acceptable device capable of measuring the velocity of an
air current is required, (2) an examination of belt conveyors
is required, (3) the preshift examination is to be made
3 hours prior to a coal-producing shift instead of 4 hours,
and (4) the inspector may require that the preshift examination include examinations for hazards and standards violations
not specified in the section. No miner may enter the underground portion of a mine until the preshift examination is
completed, the examiner's report is transmitted to the surface
and actually recorded, and until hazardous conditions or
standards violations are corrected.
The reason for these changes are:
1. The preshift examiner cannot possibly determine the
velocity of an air current without a device capable of
measuring the velocity;
2. Many mine fires occur along belt conveyors as a
result of defective electric wiring, overheated bearings, and
friction; therefore, an examination of the belt conveyors is
necessary; and
3. The hour for beginning of the preshift examination
was changed to insure an examination as near as possible to
the beginning of the shift. Changes occur so rapidly in the
mines that it is imperative the examinations be made as near
as possible to the time the workmen enter the mine. The
3-hour time was recommended as far back as 1944; and
4. A careful preshift examination may disclose hazards
other than those caused by lack of proper ventilation and
thereby prevent loss of life and injury.
Legislative History at 183.
In essence, the House-Senate Conference Committee adopted the House
version and the Conference Report states as follows:
Subsection (d) sets forth requirements that the operator
must follow for preshift examinations. These provisions are
similar to the 1952 act provisions, except that they apply
to all underground coal mines before all shifts, not just
production shifts, and except for several additional requirements including (1) an anemometer or other acceptable device

1731

capable of measuring the velocity of an air current is
required, (2) an examination of belt conveyors on which men
are carried before each shift, (3) an examination of coal
carrying belt conveyors after each shift begins, (4) a preshift examination 3 hours prior to a shift instead of 4 hours,
and (5) an examination of such other hazards and violations
of standards, as an inspector may require. No miner may enter
the underground portion of a mine until the preshift examination is completed, the examiner's report is transmitted to
the surface and actually recorded, and until hazardous conditions or standards violations are corrected.
Legislative History at 1610.

(Emphasis supplied.)

Curiously, the House-Senate Conference Committee changed the language of
the first sentence of this section. In both the House and Senate versions,
that sentence provided that "before any workmen in such shift enter the
underground areas of the mine, certified persons designated by the operator
of the mine shall examine a definite underground area of the mine."
(Emphasis supplied). The Conference Committee changed the term "underground
areas" and "definite underground area of the mine" to "active workings." The
Conference Committee Report is silent about this change.
The issue is whether Congress intended to include coal-carrying conveyor
belts within the area designated for preshift examination. I conclude that
it did not. The 1952 Coal Act did not require a preshift examination of any
conveyor belts. The Senate version of the 1969 Act clearly and specifically
required preshift examination of all conveyor belts. I find that the House
version required a preshift examination of conveyor belts on which men were
carried and an examination of coal carrying conveyors belts after the shift
began. I find that the House-Senate Conference Committee, by rejecting the
Senate version requiring a preshift examination of all conveyor belts, indicated a Congressional intent to limit the preshift examination of conveyor
belts to those belts on which men are carried. This principle of statutory
construction has been articulated as follows:
That Congress adopted the House version of the bill,
specifically rejecting the Senate's conflicting version, is
of course an extremely significant factor in determining what
was Congress' intention with respect to the matters in issue.
See, e.g., First Nat'l Bank of Logan, Utah v. Walker Bank,
385 u-:s-:- 252, 258, 87 s.ct. 492, 17 L.Ed.2d 343 (1966).
Pan American World Airways, Inc. v. C.A.B., 380 F.2d 770, 781 (6th Cir.
1967), aff'd sub nom, World Airways, Inc. v. Pan American World Airways, Inc.,
391 U.S. 461 (1968). Moreover, the position of MSHA and the UMWA in this
matter would require that the Commission find that Congress intended a result
that it expressly declined to enact. See Gulf Oil Corp. v. Copp Paving Co.,
419 U.S. 186, 199-200 (1974). Although I am mindful that mine safety laws
are remedial legislation which should be construed broadly to effectuate

1732

their purpose, it appears beyond question from the legislative history supra,
that Congress intended to require a preshift examination only of conveyor
belts on which men are carried and an examination of coal-carrying conveyor
belts after the shift has begun.
The general language of the first sentence of this regulation requiring
preshift examination of all "active workings" of the coal mine is insufficient to require a preshift examination of coal carrying conveyor belts in
light of the specific language of the second and third sentences. If the
first sentence were construed to require preshift examination of coalcarrying conveyor belts, the second sentence requiring a preshift examination
of "belt conveyors on which men are carried," would be redundant and superfluous. It must be presumed that Congress did not use superfluous words. I
find that the broad interpretation applied to the term "active workings"
pursuant to 30 C.F.R. § 75.400 by the Board and Commission is limited by the
clear Congressional intent that coal-carrying conveyor belts only to be
examined after the shift has begun.
MSHA asserts that, since it is the agency charged with execution of this
law, its interpretation should be followed. I find that MSHA has failed to
establish that it has had any consistent or coherent construction of the section in controversy. Although this law has been in effect for almost
12 years, MSHA is unable to cite any written policy or procedure requiring a
preshift examination of coal-carrying conveyor belts. Last year, Judge Merlin
invalidated MSHA's policy of requiring the examination of coal-carrying conveyor belts without delay after the start of a production shift. Judge Merlin
stated, "indeed there is no time requirement at all except that the examination occur during the shift. If the Secretary wished to require an immediate
inspection within a specified time after the start of a shift, the regulation
could have so provided." Consolidation Coal Co., 2 FMSHRC 1809, 1817
(July 11, 1980). MSHA did not petition the Commission for review of that
decision. Nevertheless, as evidenced by the testimony in this case, MSHA has
not changed its policy contained in the Manual. The Manual still purports to
require that examination of coal-carrying conveyor belts be conducted without
delay after the commencement of the shift. MSHA's failure to articulate a
policy concerning the examination of coal-carrying conveyor belts lead an
inspector to issue citations to U.S. Steel Corporation on February 2, 1981
and March 2, 1981, alleging a violation of 30 C.F.R. § 75.303 in that the
examination of the coal-carrying conveyor belts was not made without delay
after the coal producing shift had begun. U.S. Steel Corporation, Docket No.
WEVA 81-263-R, etc., 3 FMSHRC 1228 (May 6, 1981). MSHA vacated those citations on March 4, 1981 and March 9, 1981, respectively. At a hearing on the
contest of those citations, counsel for MSHA stated:
I think there is no question that we feel that the
operator here did conduct an adequate preshift examination of
the coal-carrying belts which was performed 3 hours before
the beginning of the shift. A West Virginia law requires
preshift examinations of coal-carrying belts 3 hours before
the start of the shift and the operator is complying with

1733

that. So, in view of that, we now feel that the operator is
meeting the requirements of 30 C.F.R. § 75.303 if he examines
the belts at some time during the shift and if that examination is completed. (Emphasis supplied.)
U.S. Steel Corporation, supra, at 1233.
Judge Stewart stated in that case,
MSHA acknowledged that if the conveyor were preshifted
within 3 hours of the start of the shift, the requirement to
examine the belt immediately after the start of the shift
would in effect require two examinations within 3 hours and
that such a requirement might be harsh. MSHA stated that
because of the 40 miles of belts, there would be people
walking belts all day long because as soon as they finished
their preshift examination they would have to start their
onshift examination. MSHA conceded that the language on its
face does not require the operator to begin his onshif t
examination immediately upon the start of the shift and that
it was his option to conduct the onshift examination along
with the State-required preshift examination. Ibid.
In U.S. Steel, supra, footnote 6 at 1232, MSHA further stated:
Instructions in, the Coal Mine Inspection Manual, which
indicates a different enforcement policy with regard to
30 C.F.R. § 75.303, are not current. In fact, MSHA's
enforcement policy with regard to 30 C.F.R. § 75.303 is
currently under review and once completed, new enforcement
guidelines will be published and enforced.
In conclusion, I find that MSHA has failed to establish that it has any
construction of this regulation. Hence, there is no obligation on the
Commission or courts to follow MSHA's interpretation of the regulation in
this matter.
It should also be noted that the first sentence of this regulation
specifically permits MSHA to require preshift examination of "any other
underground area of the mine designated by the Secretary or his authorized
representative." Hence, MSHA has broad authority to promulgate a regulation
requiring the preshift examination of coal-carrying conveyor belts. Perhaps
MSHA's review of enforcement policy covering this regulation will lead to
such a regulation. In the meantime, I conclude that MSHA has failed to
establish a requirement of a preshift examination of coal-carrying conveyor
belts. Therefore, the citation and order contested herein are vacated.
Since the citation and order are vacated, I do not reach the other issues
raised by J & L, to wit: (1) whether the violations were "significant and
substantial"; (2) whether the violations were the result of an "unwarrantable failure to comply with the mandatory standard"; and (3) whether MSHA
failed to comply with the Administrative Procedure Act.

1734

ORDER
IT IS ORDERED that Citation No. 1046974 and Order No. 1046866 are
VACATED and J & L's contest of the citation and order is SUSTAINED.

Ja~~s

Distribution Certified Mail:

I

/

A. Laurensorr;/Judge

i
I

l~

Henry McC. Ingram, Esq.,; R. Henry Moore, Esq.,; and Thomas C. Reed,
Esq., Rose, Schmidt, Dixon, Hasley, Whyte and Hardesty,
900 Oliver Building, Pittsburgh, PA 15222
James R. Haggerty, Jones & Laughlin Steel Corporation, 3 Gateway Center,
Pittsburgh, PA 15263
Lawrence W. Moon, Jr., Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203
Kurt Kobelt, Esq., United Mine Workers of America, 900 ,15th Street,
N.W., Washington, DC 20005

1735

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),
)

)

MINE: Leadville Mine

)
)
)

)
)
)
)
)

ASARCO, INCORPORATED,

)
)

Respondent.

CIVIL PENALTY PROCEEDING

)
)

·)

v.

1981

DOCKET NO. WEST 79-124-M
MSHA CASE NO. 05-00516-05010
DOCKET NO. WEST 79-125-M
MSHA CASE NO. 05-00516-05011
DOCKET NO. WEST 79-126-M
MSHA CASE NO. 05-00516-05012
DOCKET NO. WEST 79-207-M
MSHA CASE NO. 05-00516-05013
DOCKET NO. WEST 79-310-M
MSHA CASE NO. 05-00516-05014
DOCKET NO. WEST 81-12-M
MSHA CASE NO. 05-00516-05022
DOCKET NO. WEST 81-13-M
MSHA CASE NO. 05-00516-05023

)

Pet it ioner,

JUL 7

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

ORDER CORRECTING DECISION
The following Citation nos. and the corresponding penalty were
inadvertently omitted from the final decision issued June 30, 1981.
should be added to those listed in the decision.

They

DOCKET NO. WEST 79-124-M
Citation No.

Penalty

333383
333384

$122.00
122.00

The total penalty amount should

therefore

be $3,549.00.

DOCKET NO. WEST 79-125-M
Citation No.

Penalty

333886
333888

$ 90.00
160.00

The total penalty amount should

therefore

be $2,649.00.

Concerning Docket No. WEST 81-12-M the last figure of $44.00 in the
penalty column should be omitted. The total penalty amount should be
$1,619.00.
SO ORDERED.

1736

h~~

~dministrative

Law Judge

Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1861 Stout Street
Denver, Colorado 80294
Earl K. Madsen, Esq.
Bradley, Campbell & Carney
1717 Washington Avenue
Golden, Colorado 80401

1737

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

JUL 7 1981

UNITED HINE WORKERS OF AMERICA,
LOCAL UNION 6003, DISTRICT 29,
Complainant
v.

Complaint for Compensation
Docket No. WEVA 80-664-C

ROYAL COAL CO~A."iY and
COWIN AND COMPANY, INC.,
Respondents
Civil Penalty Proceeding

SECRETARY OF LABOR,
HINE SAFETY AND HEALTH
Am1INISTRATION (MSHA),
Petitioner

Docket No. WEVA 81-34
A.C. No. 46-03294-03019

v.
Claremont Cleaning Plant
ROYAL COAL CO!·lPA."iY,
Respondent
DECISION
Appearances:

James Swart, Esq., Beckley, West Virginia, for Complainant,
United :line Workers of America;
Robert S. Stubbs, Esq., Jackson, Kelly, Holt.& O'Farrell,
Charleston, West Virginia, for Respondents.
Catherine Oliver, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, fo,r Petitioner,
Secretary of Labor;

Before:

Judge Melick

On June 5, 1980, an inspector for the Mine Safety and Health Administration (MSHA) issued a combined order of withdrawal and citation to the Royal
Coal Company (Royal) for the face area of an underground slope being sunk
by employees of an independent contractor, Cowin and Company, Inc. (Cowin),
at Royal's Claremont Cleaning Plant. The order of withdrawal was based upon
the inspector's finding of an imminent danger under section 107(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~·· the

1738

"Act." 1/ The citation was issued under the provisions of section 104(a) of
the Act-:- 2/ The order and citation alleged a violation of Royal's slope
construction plan under the mandatory standard at 30 C.F.R. § 77.1900-1.
Neither the order nor the citation were contested under the provisions of
section 107(e)(l) and 104(a) of the Act, respectively. Local Union 6003,
District 29 of the United Mine Workers of America (UMWA), thereafter filed
a complaint under section 111 of the Act against Royal and Cowin for compensation to miners idled by the order. That complaint was timely answered.
On November 26, 1980, MSHA filed a proposal for assessment of civil penalty
against Royal for the cited violation of the mandatory standard and Royal
thereafter answered timely under the provisions of section 105(d) of the
Act. The complaint for compensation and the civil penalty proceeding were
thereafter consolidated under Commission Rule 12, 29 C.F.R. § 2700.12, and
hearings in the consolidated cases were held in Charleston, West Virginia,
commencing February 2, 1981.
The general issues before me are: (1) whether Royal failed to comply
with the mandatory standard cited in the order and citation at bar, and,
if so, the appropriate civil penalty to be paid for the violation; and (2)
the amount of compensation due to the miners idled by the order in question.
Royal and Cowin concede that the imminent danger or~er issued in this
case on June 5, 1980, and terminated on June 18, 1980, was not contested
under section 107(e)(l) of the Ac~ and that it therefore had become final.
Moreover, within the framework of the first part of section 111 of the
1/

Section 107(a) of the Act reads as follows:
"If, upon any inspection or investigation of a coal or other mine which
is subject to this Act, an authorized representative of the Secretary .finds
that an imminent danger exists, such representative shall determine the extent
of the area of such mine throughout which the danger exists, and issue an
order requiring the operator of such mine to cause all persons, except those
referred to in section 104(c), to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative of the Secretary
determines that such imminent danger and the conditions or practices which
caused such imminent danger no longer exist. The issuance of an order under
this subsection shall not preclude the issuance of a citation under section
104 or the proposing of a penalty under section 110."
2/ Section 104(a) of the Act reads in part as follows:
"If, upon inspection or investigation, the Secretary or his authorized
representative believes that an operator of a coal or other mine subject to
this Act has violated this Act, or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant. to this Act, he shall, with
reasonable promptness, issue a citation to the operator. Each citation
shall be in writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the Act, standard, rule,
regulation, or order alleged to have been violated."

1739

Act, 3/ Royal and Cowin concede that the miners idled on the shift in which
the order was issued are entitled to full compensation for the balance of
that shift at their regular rate of pay and that the miners idled on the
next working shift are entitled to 4 hours' compensation at their regular
rate of pay. The dispute over compensation here at issue concerns the
second part of section 111. That part reads as follows:
If a coal or other mine or area of such mine is closed by
an order issued under * * * section 107 of this title for a
failure of the operator to comply with any mandatory health or
safety standards, all miners who are idled due to such order
shall be fully compensated after all interested parties are
given an opportunity for a public hearing, which shall be
expedited in such cases, and after such order is final, by
the operator for lost time at their regular rates of pay for
such time as the miners are idled by such closing, or for
1 week, whichever is the lesser.
~lotions

by m!\JA for Summary Decision

In notions for summary decision filed before and during hearing, the
argued that the section 107(a) order and the section 104(a) citation
became final upon the Respondents' failure to contest them under the provisions of sections 107(e) (1) and lOS(d) of the Act, respectively. It
f~irther c.'laintaincd that since the issues that could have been litigated
ih a contest of this order and citation incorporated all of the essential
issues to be Jecided in a section 111 compensation proceeding those issues
could not now be relitigated (presumably under the doctrines of res judicata
and collateral estoppel). The UMWA argued that section 111 therefore mandated a s~~mary decision, without the necessity of a hearing, that compensation be paid to the idled miners for a full week. The UMWA argued,
alternatively, that even if the issue of whether the operator failed to
comply with a mandatory standard survived the finality of the order and
citation, once the Judge made a determination (in ruling on Respondents'
motion for sum;aary decision discussed, infra), that the order at bar properly alleged a failure to comply with the mandatory health or safety standard there were no further factual determinations to be made and a summary
decision should in any event be rendered without a hearing. In other words,
U:!WA

3/

Section 111 of the Act provides in relevant part as follows:
"If a coal or other mine or area of such mine is closed by an order issued
under*** section 107, all miners working during the shift when such order
was issued who are idled by such order shall be entitled, regardless of the
result of any review of such order, to full compensation by the operator at
their regular rates of pay for the period they are idled, but for not more
than the balance of such shift. If such order is not terminated prior to
the next work_ing shift, all miners on that shift who are idled by such order
shall be entitled to full compensation by the operator at their regular rates
of pay for the period they are idled, but for not more than 4 hours of such
shift."

1740

the UMWA argues that since the order was "issued" for an alleged violation
of a mandatory standard there was then no need for a hearing to determine
whether or not there was, as a matter of fact, any violation of the mandatory standard.
Both Cowin and Royal admit that the section 107(a) imminent danger order
had become final and do not seek review of the order. They argue, however,
that the essential question under section 111 of whether that order was issued
for a "failure of.the operator to comply with any mandatory health or safety
standards" nevertheless survived the finality of the order. The UMWA counters
this argument by claiming that the issue under section 111 of whether the
operator failed to comply with a mandatory standard is identical to an essential issue that could have been litigated in a contest of the validity of the
section 104(a) citation. The UMWA argument continues that since the Respondents failed to contest that citation within 30 days of its issuance under
section 105(d), that citation and the issues that could have been raised in
a contest of that citation became final and were not subject to relitigation
(again presurnbably under the doctrines of res judicata and collateral estoppel)
in the compensation case before me.
The ut1WA arguments fail, however, on several grounds. Even assuming,
arguendo, that the failure to timely contest the 104(a) citation could
serve to bar the subsequent litigation in a section 111 compensation case
of an issue that might properly have been determined in that proceeding,
it is undisputed that in this case the 104(a) citation was in fact timely
challenged under the provisions of section 105(a) of the Act, i.e., within
30 days of notification to the operator of a proposed civil penalty. It
is immaterial that the operator did not also contest the citation within
30 days of its receipt under the provisions of section 105(d) of the Act.
In either case, the validity of the citation is properly at issue. Energy
Fuels Corporation v. Secretary, 1 FMSHRC 299 (1979). Moreover, since the
issue of whether the operator has "failed to comply with any mandatory'
health or safety standard," is not a necessary issue to the determination
of the validity of a. section 107(a) imminent danger withdrawal order,
footnote 1, supra, it is apparent that there has in fact been no prior
determination of that issue.
In any event, I conclude that the litigation in this compensation case
of the issue of whether the operator has "failed to comply with any mandatory health or safety standard" would not be barred by the doctrines of
res judicata or collateral estoppel even if both the 107(a) order and the
104(a) citation had become final for failing to timely contest them under
applicable procedural or jurisdictional rules. Under res judicata, only a
final judgment on the merits bars further claims by the parties or their
privies on the same cause of action. Allen v. McCurry, 445 U.S. 958
(1980). A judgment on the merits is one based on the legal rights and
liabilities of the parties as distinguished from mere matters of practice,
procedure, jurisdiction or form. Fairmont Aluminum Company v. Commissioner,
222 F.2d 622 (4th Cir. 1955), cert. den., 350 U.S. 838, reh. den., 352 U.S.

1741

913. Similarly, collateral estoppel bars relitigation only of issues actually
decided in prior litigation. Montana v. United States, 440 U.S. 147 (1979).
Since there had not been in any case a prior judgment on the merits of the
order and citation at bar, the issues that could have been raised in previous
litigation of those documents are not barred from consideration in this compensation case under section 111.
In addition, in enacting section 111 of the Act, Congress provided
specific guarantees that compensation may be awarded only "after all interested parties are given an opportunity for a public hearing." In order to
comport with these statutory requirements, it is clear that that opportunity
fcH a public hearing must be renewed after the claim for compensation is
filed when the finality of the order and the question of whether that order
was issued for a failure of the operator to comply with a mandatory standard
has not been previously determined or when one of the respondents in the
compensation case has not previously had such an opportunity. In all other
cases, the opportunity for a hearing must nevertheless be granted at least
insofar as other issues in the compensation claim remain unresolved. In
order for that right to a public hearing to have any meaning, it is also
clear that all material issues may be litigated at that hearing including
the issue of whether, as a factual matter, the order was issued for a
failure to comply with a mandatory standard.
Under Commission Rule 64(b), a summary decision may be granted "only
if the entire record, including the pleadings, depositions, answers to
interrogatori~s, admissions, and affidavits shows:
(1) that there is no
genuine issue as to any material fact, and (2) that the moving party is
entitled to SlL'llmary decision as a matter of law." 29 C.F.R. § 2700.64(b).
Since genuine issues of material fact remained for determination in the
compensation proceeding under section 111, the UMWA motions for summary
decision were, and are, properly denied.
Motions by Respondents for Summary Decision and Dismissal
In motions for summary decision and dismissal filed by the Respondents,
it was argued that the citation incorporated in the order at bar should have
been dismissed because it failed to charge any specific violation. Respondents argued, alternatively, that even if a violation of the slope plan was
properly set forth, the slope plan itself was too ambiguous to be enforceable.
The mandatory standard here cited, to wit, 30 C.F.R. § 77 .1900-1,
requires that the operator adopt and comply with a slope- or shaft-sinking
plan approved by the MSHA Coal Mine Health and Safety District Manager. It
is here alleged that the operator failed in two ways to comply with its
approved slope plan. The first violation is alleged as follows:
The slope face has entered a caved area of an abandoned
coal mine and the ribs (sides) of the slope are loose and
overhanging. The slope roof is broken and unconsolidated
shale and resin-grouted rods (6 feet long) are sole means of

1742

support. This is not an adequate system due to the conditions encountered.
The second violation is alleged as follows:
The width of the slope was 18 feet instead of the
required 10; however, the exact width could not be determined
due to area being caved on both sides.
In a bench decision, the motions were denied as to the first allegation but
granted as to the second. I found in that decision that the latter allegations indeed did not relate to any requirement of the slope plan that was
in effect at the time of the purported violation and accordingly that the
citation did not charge any violation in this regard. The slope plan as
initially approved by MSHA on October 3, 1979, included a series of
engineering drawings depicting the development of the slope tunnel. The
width of the tunnel is variously shown to be 9-1/2 and 10 feet. As part
of that approved plan, however, Royal also had submitted the following
exclusion:
The possibility of intersecting an abandoned mine exists
at the 2,000-foot level; however, data is incomplete on the
mine and as soon as it is formulated, the plans of penetration
will be submitted. The plan will be submitted for approval
and approval received before the slope reaches the 2,030-foot
level.
I conclude from that language that the operator's plan as approved by MSHA on
October 3, was not intended by either party to govern the area of intersection with the suspected abandoned mine at the 2,000-foot level. I find that
in approving the plan as s~bmitted on October 1, 1979, MSHA agreed to that
specific exclusion. 4/ According to the evidence before me, no subsequent
modification to the slope plan regarding t1:-~e width of the slope was ev"er
made. Thus there was no requirement in effect on the date of the violation
alleged herein that the slope widths not exceed 10 feet upon intersecting
the abandoned mine. Accordingly, I cannot find that the first part of the
order at bar was issued for any failure of the operator to have complied
with the cited mandatory standard. The bench decision granting a
corresponding partial summary decision is therefore reaffirmed. The citation is also correspondingly vacated in part.
However, inasmuch as subsequent modifications to the slope plan applicable to the slope intersection with the abandoned mine were submitted and
4/ This conclusion is further supported in that neither party could reasonably have expected that a 10-foot slope could have been maintained through
the abandoned mine. While there may very well have been a violation for
Royal to have proceeded without an approved plan in this regard beyond the
2,030-foot level, no such violation has been charged here. The question of
whether such a violation occurred is therefore not before me.

1743

approved with respect to roof control, I find that there was indeed a specific
roof control standard existing at the time of the alleged violation. The
original slope plan as approved by MSHA on October 3, 1979, provided as
follows: "In the event broken roof is encountered straps, wire mesh, rolled
steel sets, liner plate and grout or shot crete will be used to support the
roof and ribs." A slope plan modification was later submitted by the Respondents on '.fay 9, 1980, to govern procedures to be followed in sinking the
slope through the abandoned mine workings. That modification, approved by
HSHA on :1ay 13, -1980, included the following provisions: "Our contractor
plans to continue his normal support pattern. However, they have available
on site steel liner plates and steel ribs which can be used if support conditions warrant." Another modification was submitted on May 30, 1980, and
approved by ~!SHA on June 2, 1980. That modification included the following
language: "In areas where rock conditions dictate, a 10 GA. Armco tunnel
liner plate will be used and will be encased with grout to form a solid
support structure."
In spite of these acknowledged provisions of the slope plan, Respondents
nevertheless contend that they did not receive the requisite notice of the
alleged violation. ,Uthough the legal basis for their motion has not been
articulated, it is clear that notices of violations charged under the Act
and its implementing regulations must comport with constitutional, statutory
and regulatory requirements. Ultimately, the notice must meet the fundamental
requirements of due process of law under the Fifth Amendment to the United
States Constitution. Constitutional due process does not, however, require
any specific for:a or content for pleadings as long as the parties are given
adequate notice. S. S. Kresge Company v. NLRB, 416 F.2d 1225 (6th Cir. 1969);
NLRB v. United Aircraft Corp., 490 F.2d 1105 (2nd Cir. 1973). Section 104(a)
of the Act requires that "each citation shall be in writing and shall describe
with particularity the nature of the violation, including a reference to the
provision of the Act, standard, rule, regulation, or order alleged to have
been violated." ,\ddi tional general requirements for notice are set forth
in the Federal :une Safety and Health Review Commission Rules of Procedure,
29 C.F.R. § 2700.53, which are virtually identical to provisions of the
Administrative Procedure Act. 5 U.S.C. § 554(b). 1./
I observe that in meeting the statutory requirements for notice, it is
not necessary to describe the nature of the violation in any particular
format so long as it is described with "particularity." The description
must, however, afford notice sufficient to enable the operator to be properly advised so that corrections may be made to insure safety and to allow
adequate preparations for any potential hearing on the matter. MSHA v. Jim
Commission l~ule 29 C.F.R. § 2700.53 reads as follows:
"Except in expedited proceedings, written notice of the time, place,
nature of the hearing, the legal authority under which the hearing is to be
held, and the 1natters of fact and law asserted shall be given to all parties
at least 20 days before the date set for hearing."
5/

1744

Walter Resources, Inc., and Cowin and Co., 1 FMSHRC 1827 (1979). The Respon-·
dents here have not claimed any difficulty in being able to identify and
thereby abate the allegedly violative condition. Nor have they shown that
they were deprived of notice sufficient to enable them to defend at hearing.
Accordingly, I find no basis for their claims of insufficient notice and
their motions in that regard are therefore denied.
Respondents also argue, in the alternative, that even assuming they
received adequate notice of the alleged violation, the relevant provisions
of the slope plan were nevertheless too ambiguous to be enforceable. Inasmuch as the slope plan at issue was drafted by the operator and the language
used in the plan was, accordingly, selected by the operator, I find this
claim to be somewhat inconsistent. In any event, under the circumstances of
this case, I find that the operator had actual knowledge that the roof here
cited was indeed in such a condition that it warranted the use of the special
roof control measures called for in its own slope plan. In this regard,
Respondents have conceded that they indeed had advanced into the old mine at
least 12 to 15 feet and that they had continued to "muck out" loose coal and
rock from that area even though the left rib showed signs of caving. Indeed,
Cowin's general superintendent, Edward Stamper, essentially admitted that the
roof conditions he found when he arrived at the face were in fact so dangerous
that he ordered the miners to stop work and withdraw from the area. Stamper
later admitted that the rock conditions were so bad in. this area that even
a 10-gauge Armco tunnel liner plate was insufficient -for roof control. Under
these circumstances, I am convinced that management knew that roof bolting
was not providing adequate roof support. Where there is actual knowledge that
a cited practice is hazardous and a violation of the cited standard, the problem of fair notice does not exist. Cape and Vineyard Division of New Bedford
Gas & Light Co. v. OSHRC, 512 F.2d 1148 at 1152 (1st Cir. 1975).
Under the circumstances, Respondents' motions for summary decision and
dismissal are denied as to the alleged violation of its slope plan concerning
roof control.
The Alleged Roof Contrdl Violation
For the reasons that follow, I conclude that the requirements in the
slope plan for roof control where the slope construction entered the
abandoned mine workings, were indeed violated. In this regard, I accept the
credible testimony of MSHA inspector Birkie Allen which, in many essential
respects, is undisputed. Allen testified that on June 5, 1980, he was asked
to inspect the slope construction project. Arriving at the working face, he
saw conditions which led him to immediately issue an imminent danger order.
Slope construction had progressed about 20 feet into the abandoned mine and
the face was actually in a caved area. The roof was badly broken at the face
and the adjacent ribs were loose and overhanging. There was a particularly
dangerous area of about 15 feet in which the only roof support was from
resin-grouted rods. The ribs were so "soft" in this area that the "mucker"
operator was removing the coal without the necessity of blasting. When Allen
arrived, men were continuing to work beneath the dangerous roof installing

1745

roof bolts and "mucking" in the area. Allen suspected that the abandoned mine
had been entered on the previous 4 to 12 shift because of the amount of work
that had progressed into the intersection. The "mucker" operator corroborated
those suspicions and conceded that they had indeed intersected the mine on
the previous evening shift. According to Allen, the rib and roof conqitions
presented an extreme hazard to the six men working in the area because of
the complete lack of support from the ribs. He pointed out that while the
roof bolting provided a solid beam for the roof, without accompanying vertical
support from solid ribs, the roof would only fall as a larger slab. Allen
testified that Edward Stamper, Cowin's general superintendent, agreed at the
time that an ir.u~inent danger indeed existed.
It was Allen's opinion that the operator was chargeable with gross negligence because the men continued to work in this obviously dangerous area
without proper roof support. He pointed out that a proper preshift examination which was required to have been made 90 minutes before the beginning
of the shift, should have alerted the operator to those conditions. A steel
plate liner was subsequently erected in the cited area and the citation and
order were abated on June 18, 1980.
Cowin's i;eneral superintendent, Edward Stamper, corroborated Allen's
testimony in essential respects. He admitted that the slope had in fact
entered the old r:iine workings early in the morning of the 5th during the
"owl" shift and that work continued 12 to 15 feet into the intersection by
the ti~e he arrived. When he arrived at the face, he found the conditions
so bad that he ordered the men to stop work and withdraw from the area. He
based this decision on the fact that the left rib showed signs of caving on
the top left side. He admitted that no one should have been working in the
old works, yet the "mucker" operator, as well as others, had been indeed working in this area. Significantly, Stamper also conceded that the rock conditions were so bad in the intersection that even a 10-gauge Armco tunnel
liner was not sufficient for roof support.
Under these circumstances, I have no difficulty in concluding that the
provisions of the slope plan, requiring more than roof bolting where roof
conditions dictate, were violated. Since this condition constitutes a violation of the mandatory standard, the citation is accordingly affirmed. It
also follows that since the operator did fail to comply with the cited mandatory standard, the withdrawal order was also issued at least in part for that
nonconpliance. Under the circumstances, all of the miners who were idled as
a result of that order must be fully compensated by the operator for their
lost time at their regular rate of pay for the lesser of 1 week or their
actual lost time. Since the miners here were actually idled by the order
from June 5 to June 18 they are entitled to pay for the time idled,fqr
1 week or 7 calendar days.
Amount of Compensation
The purpose of section 111 is to provide limited compensation solely
for regular pay lost because of the issuance of an order designated in that

1746

section. UMWA v. Eastern Associated Coal Corporation, 3 FMSHRC 1175 (1981).
The miners are entitled to compensation only if they are actually "idled by"
such an order. It is not a source of independent pay or damages. UMWA,
supra at p. 1176. Accordingly, miners continuing to perform work for the
cited operator have not been "idled" by the withdrawal order and are not
entitled to additional or duplicate compensation for such work that occurs
during the authorized 1-week period. See UMWA v. Youngstown Mines Corporation, 1 FMSHRC 990 (1979). Similarly, the miners are not entitled to compensation for being "idled" on a Saturday and/or Sunday falling within that
1 week, 7-day, calendar period if indeed they did not customarily work on
Saturdays and/or Sundays and there is no evidence to suggest that they would
have worked on either or both of those days but for the issuance of the
withdrawal order.
Respondents contend that the amount of compensation paid should also be
offset by any unemptoyment comp,en.sation received by the idled miners. In
N.L.R.B. v. Gullet Gin Company, inc., 340 U.S. 361, 364 (1951), the Supreme
Court upheld the N.L.R.B. decision refusing to deduct unemployment compensation benefits from an award of back pay. The Court concluded that since
no consideration had been given, nor should have been given, to collateral
losses in framing an order to reimburse employees for their lost earnings,
manifestly no consideration need be given to collateral benefits which
employees may have received. The Court followed an earlier decision in
which it held that state unemployment compensation benefits were not
"earnings" to be deducted from back pay. See N.L.R.B. v. Marshall Field &
Company, 318 U.S. 253, 255 (1943). Several Commission judges have followed
this rationale in denying an unemployment compensation benefit offset from
back pay awards under section llO(a) of the Federal Coal Mine Health and
Safety Act of 1969 and section 105(c) of the 1977 Act, respectively. Wilson
and Rummel v. Laurel Shaft Construction Company, Inc., 2 FMSHRC 2623 (1980),
Bradley v. Belva Coal Company, 3 FMSHRC 921 (1981), and Neal v. W. B. Coal
Company, 3 FMSHRC 443 (1981). The same rationale applies as well to compensation awards under section 111 of the Act. Accordingly, I conclude that
unemployment compensation benefits are not "earnings" to be deducted from
an award of compensatory back pay under section 111 of the Act.
The mnvA claims that the miners are entitled to 12-percent interest on
the compensation owed. I find, however, that in accordance with the Commission decision in Peabody Coal Company v. Secretary et al., 1 FMSHRC 1785
(1979), they are entitled to interest at the rate of 6 percent per annum
from the date the lost wages would ordinarily have been paid to the date the
compensation is actually paid.
Attorney's Fees
The UMWA also requests an award of attorney's fees incurred in obtaining
compensation in this case. There is no authority for the award of attorney's
fees in compensation cases under section 111 of the Act. The general rule is
that the right to recover such costs does not exist except by virtue of
statutory authority. Aleyeska Pipeline Service Company v. The Wilderness

1747

Society et al., 421 U.S. 420 (1975). The exception to that general rule for
a prevailing plaintiff who acts as a "private attorney general" vindicating
important statutory rights of all citizens, is inapplicable to ~he case at
bar. Accordingly, the request herein for attorney's fees must be denied.
Accord, Local Union No. 5899, UMWA v. Tansy Beth Mining Company, 2 FMSHRC
466 (1981).
Penalty
In determining the amount of a civil penalty assessment, section llO(i)
requires consideration of the following criteria: (1) the operator's history
of previous violations, (2) the appropriateness of such penalty to the size of
the business of the operator, (3) the effect on the operator's ability to continue in business, (4) whether the operator was negligent, (5) the gravity of
the violation, and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of the violation.
The Royal Coal Company is small in size but appears to have a rather
significant history of violations. There were 207 paid violations attributed
to Royal over the 2-year period prior to the issuance of the citation at bar.
I find that Royal was negligent in failing to maintain proper control of the
slope construction even though the immediate control of the work was under
the direction of Cowin, an independent contractor. It was Royal that submitted the slope construction plan for MSHA's approval and the evidence shows
that Cowin officials maintained close contact with Royal's engineering staff,
particularly with respect to the area of intersection with the abandoned
~ine.
I also find tlrat the hazard presented by the inadequately supported
roof and ribs was serious and indeed presented an imminent danger of serious
injuries and death to the several miners working in that area. There is no
disagreement that abatement was appropriately made and that the imposition
of any penalty would not affect the operator's ability to continue in business. Within this framework, and considering that I am also finding Royal
liable for significant compeneation in the associated case, I find that a
penalty of $500 is appropriate.
ORDER
Docket ~o.

~EVA

HO-b64-C

Respondents are hereby ORDERED to pay to the miners designated below,
within 30 days of the date of this decision, the designated amounts 6/ plus
interest at the rate of 6 percent per annum from the date tl;ie wages would
ordinarily hav~ been paid to the date they are actually paid:

6/

These amounts were derived from UMWA Exhibit No. 1, the accuracy of which
was stipulated at hearing. I observe that June 7, 1980, was a Saturday and
June 8, a Sunday. It was also proffered at hearing, without disagreement,
that the miners had worked 1 day during this 7-day period, presumably June 9
on the day and evening shifts and June 10 on the "owl" shift.

1748

DAY SHIFT
Employee

Hourly Rate

Powell Lane
$10.73
10.17
Delbert Harper
10.17
Ralph Blevins
10.17
Jackie Lane
Nick Wuchevich, Jr. 10.73

6/5

6/6

6/10

6/11

6/12

Total

$42. 92
40.68
40.68
40.68
37.56

$85.84
81.36
81.36
81.36
85.84

$0.00
30.51
30.51
30.51
26.83

$85.84
81.36
81.36
81.36
85.84

$42. 92
40.68
40.68
40.68
42.92

$257.52
274.59
274.59
274.59
236.07

$85.68
85.68
82. 96
82.96
82.96
82.96
82.96

$85.68
85.68
82.96
82.96
82.96
82.96
82.96

EVENING SHIFT
Terry Gilkerson
George Kessler
Carlos Bailey
Robert Hodge
Charles Ellis
James Butterworth
Johnny Daniels

$10. 71
10. 71
10.37
10.37
10.37
10.37
10.37

$85.68
85.68
82.96
82.96
82.96
82.96
82.96

$85.68
85.68
82.96
82.96
82.96
82.96
82.96

$342.72
342.72
331.84
331.84
331.84
331.84
331.84

"OWL" SHIFT

James Cabe
Harry Miller
Jackie Mill er
Okey Tolliver
Don Md1illion
Ken Pishner

$10.81
10.81
10.47
10.47
10 .47
10.47

6/6

6/9

6/11

6/12

$86.48
86.48
83.76
83.76
83.76
83.76

$86.48
86.48
83.76
83.76
83.76
83.76

$86.48
86.48
83.76
83.76
83.76
83.76

$86.48
86.48
83.76
83.76
83.76
83.76
Total

$345. 92
345.92
335.04
335.04
335.04
335.04
.$5 '704 .oo

Docket No. WEVA 81-34
Royal Coal Company is hereby ORDERED to pay a civil penalty of $500
within 30 days of the date of this decision.

J_

1749

Distribution:

James Swart, Esq., United Mine Workers of America, 900 15th Street,
~~v., \.Jashington, DC 20005 (Certified Mail)
Robert S. Stubbs, Esq., Jackson, Kelly, Holt & O'Farrell, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
Catherine Oliver, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Harket Street, Room 14480, Philadelphia, PA 19104
(Certified ~fail)

1750

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

JUL 8 1981
GERALD D. BOONE,
Complainant

Complaint of Discharge,
Discrimination, or Interference

v.
Docket No. WEVA 80-532-D
REBEL COAL COMPANY,
Respondent

Rebel Coal No. 2 Mine

DECISION
Appearances:

Daniel F. Hedges, Esq., Appalachian Research and Defense
Fund, Inc., Charleston, West Virginia, for Complainant;
Frederick W. Adkins, Esq., Cline, McAfee and Adkins,
Norton, Virginia, for Respondent.

Before:

Judge Melick

This case is before me upon the complaint filed by Gerald D. Boone under
the provisions of section 105(c)(3) of the Federal Mine Health and Safety Act
of 1977, 30 U.S.C. § 801 et seq., the "Act" alleging that Mr. Boone was discharged by the Rebel Coal-C:ompany (Rebel) in violation of section 105(c)(l)
of the Act. 1/ More specifically, Mr. Boone alleges that he was unlawfully
discharged because he refused to comply with an order to drive a haulage
truck he claimed was in a hazardous condition. An evidentiary hearing :vas
held on Boone's complaint in Abingdon, Virginia, commencing April 28, 1981.
Section 105(c)(l) of the Act provides in part as follows:
No person shall discharge * * * or cause to be discharged * * * any miner * * * in any coal * * * mine
subject to this Act * * * because of the exercise by
such miner * * * on behalf of himself or others of any
statutory right afforded by this Act.
1/ While the complaint herein alleges ·that it was filed pursuant to section
l05(c)(2) of the Act, it was obviously intended to have been filed under the
provisions of section 105(c)(J) of the Act in light of the fact that the
Mine Safety and Health Administration (MSHA) had previously made a determination that no violation of section 105(c) had occurred. I find this oversight
to be inconsequential.

1751

Mr. Boone 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
a protected activity and that his discharge was motivated in any part by
that protected activity. Secretary ex rel. David Pasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980). The refusal of a miner to perform work
where he has a good faith, reasonable belief that such work is hazardous is
a protected activity within the purview of this section. Pasula, supra;
Secretary ex rel. Thomas Robinette v. United Castle Coal Company, 3 FMSHRC
803 (1981). Since there is no dispute in this case that Boone was discharged
for refusing to drive the haulage truck, the principal question to be decided
is whether that refusal was a protected activity under section 105(c)(l).
In resolving that question, it will also be necessary to determine whether,
at the time he refused to drive that truck, he entertained a good faith
reasonable belief that it would have been hazardous to perform such work.
Robinette, supra.
According to Boone, he had been working as a truck driver at the Rebel
Coal No. 2 Strip ~line for about a year before his discharge. On May 28, 1980,
he reported for work shortly before his 3 p.m. shift. During a routine preshift inspection of his assigned vehicle, the No. 5 Caterpillar haulage
truck, he found that the seat shock absorber and tension springs were broken
and that he was unable to adjust the seat tension. He complained about this
to the second shift superintendent John Lockhart, but Lockhart told him to
drive the truck anyway. Boone then did in fact drive one load about a
quarter mile up a hill and return. On that part of the trip that was on a
poorly maintained secondary road, Boone hit his head on the cab roof and hit
his legs on the steering wheel as he bounced in the seat. When he returned,
he again complained to Lockhart warning him that because of the defect he
could not keep the truck under control. Lockhart again instructed Boone .
to drive it but agreed to have a mechanic also look at it. Later, around
3:30 p.m., mechanic Leo Browning inspected the seat. Fifteen minutes later,
Browning called to the repair shop for a replacement shock. There was none
in the shop so the original shock was rewelded in place. Boone later tested
the seat but still refused to drive the truck claiming that the seat had not
been fixed. He alleges that he then requested Lockhart to ask the mine
safety committeeman, Ron Chambers, to also check the seat.
Boone related the hazards he perceived in driving the truck with the
seat in the condition described. The driver could lose control if his head
hit the cab roof and could drive off the road. It is undisputed that there
was no benn on one side of a steep section of that road where a 20-foot
drop-off existed. On the other side of the road, the berm was only 2 or
3 feet high and the wheels of the truck were about 5 feet in diameter.
Mine Safety and Health Administration (MSHA) inspector Jefferson Adkins
examined the subject truck on June 2, 1980, after receiving a section
103(g)(l) complaint. 2/ Adkins concluded that the seat shock absorber on
2/ Under section 103(g)(l) of the Act, MSHA is required to make an inspection pursuant to a complaint filed by a miner's representative.

1752

the truck was indeed defective and that no adjustment could be made in the
seat tension. He watched as truck driver Loss Godfrey drove the vehicle in
a test. Godfrey bounced in the seat about a foot and had to drive with his
legs spread apart. Godfrey showed Adkins the bruises on his upper thigh
which he claimed had been caused by his legs being jammed into the steering
wheel. Concluding that a dangerous condition existed which could result in
the loss of vehicle control, Adkins "red tagged" the truck and issued an
order withdrawing it from service until repairs could be made. The condition was abated after the shock was replaced and on June 4, the withdrawal
order was removed.
By agreement of the parties, a transcript of the testimony of Loss
Godfrey taken from proceedings before the West Virginia Coal Mine Safety
Board of Appeals was admitted into evidence in lieu of Hr. Godfrey's
appearance. Godfrey there testified that on Tuesday the 27th (presumably
of ~y 1980), he was driving the subject truck on the 7 to 3 day shift.
According to Godfrey, the seat kept bouncing him, forcing his legs against
the steering wheel. Eventually, he raised his left leg onto the dashboard
for relief. On the following Wednesday or Thursday, the seat was even worse.
It was not working at all. He complained to his supervisor, Burt Wilson,
that his back was hurting from the defective seat and that he was unable to
drive with the steering wheel hitting his legs. Godfrey nevertheless continued to drive it. The following Friday morning, Godfrey heard that Boone
had been fired for refusing to drive the truck. He claimed that upon hearing this he decided he would not refuse to drive for fear that he would be
fired too. He testified that his bruised legs continued to hit the wheel
and his head continued to hit the cab roof. There was only a 4- to 5-inch
clearance from the top of his head to the cab ceiling and the seat was
bouncing him about a foot. The truck had still not been repaired by the
following ~fonday and Godfrey too finally refused to drive it.
John Lockhart, assistant mine superintendent, testified that on May 28
Boone did indeed complain about the seat. He assigned Boone to other work
while a mechanic checked the seat. The shock absorber bracket was rewelded.
He conceded that Bobne thereafter checked the seat by bouncing in it and
refused to test drive the truck claiming that the seat had not been improved.
Lockhart had Terry Phillips, the equipment superintendent, and Leo Browning,
a mechanic, also check the seat. According to Lockhart, neither complained
of any problems, although no one actually drove the truck. After consulting
with Mine Superintendent McGaffey, Lockhart presented Boone with an ultimatum
to drive the truck or be fired. Boone continued his refusal and Lockhart
fired him.
Equipment superintendent Terry Phillips testified that he checked the
seat after Browning had welded the bracket. The seat was "way out of adjustment," and although it had no "bounce," it was "okay" to Phillips. He also
testified that he had overheard Browning call on the radio to the supply
shop for a ~ew shock absorber but was uncertain when this call was made.
Hine superintendent Terry McGaffey testified that he also checked the
seat after the bracket had been rewelded. He found it to be in an acceptable

1753

condition. He also asked Boone to test drive the truck but Boone refused.
He ordered Boone dismissed for that refusal.
Within the framework of this evidence, I find that Mr. Boone has indeed
established by a preponderance of the evidence that he engaged in a protected
activity by refusing to drive the No. 5 Caterpillar haulage truck. In this
regard, I accept Boone's credible and amply corroborated testimony regarding
the nature of the hazard as it existed on Hay 28. I find that indeed there
was then a defect in the shock absorber causing the seat to bounce the driver
excessively. Under the circumstances, I find that the driver could strike
his head on the cab roof or his feet could leave the control pedals and he
could thereby lose control of the vehicle. If he should lose control, there
was a clear and present danger of the vehicle driving off the roadway and
overturning thereby resulting in fatal injuries. Boone's testimony in this
regard is amply corroborated by the testimony of Loss Godfrey and of the
two MSHA inspectors. While the MSHA inspection occurred 5 days after Boone's
initial complaint and discharge on May 28, it is conceded that no alterations
had been made to the seat during the interim. Both inspectors saw Loss
Godfrey bouncing excessively in the seat as he drove the truck and considered the condition hazardous. Inspector Adkins accordingly "red tagged"
the truck and ordered it removed from service until repairs could be made.
Indeed, Boone's testimony is even corroborated by the operator's own witnesses. Equipment Superintendent Phillips admitted that the mechanic had
requested a new shock absorber to replace the one Boone complained of. It
is also undisputed that since a replacement was not available, the bracket
had been rewelded. Finally, Phillips admitted that even after that rewelding,
the seat was not normal. With Boone's testimony, credible in itself, so
thoroughly corroborated, I can accord but little weight to the self-serving
unsupported conclusions of Lockhart and McGaffey that they saw nothing wrong
with the seat and that it posed no safety hazard whatsoever.
Rebel argues, alternatively, that even if, as a matter of fact, there
was a hazard, Boone did not articulate to them the precise nature of any
particular hazard and that such an articulation is a prerequisite under section lOS(c)(l). I find no such requirement, however, in the language of the
Act. In any event, I note that while Boone may not have articulated to mine
management all of the safety hazards described at hearing, it is clear that
he described the deficiency in the seat with sufficient clarity so that management was placed on notice of the potential safety hazards. Indeed, Mine
Superintendent Lockhart conceded that Boone told him that he was bouncing
in the seat to such an extent that .his head was striking the cab ceiling.
That he failed to recognize, or refused to recognize, the obvious safety
hazard under the circumstances is immaterial.
Rebel also argues that Boone failed to request the mine safety committeeman to examine the alleged defect in accordance with the collective bargaining
agreement and that that failure is fatal to his complaint. The parties disagree as to whether Boone actually did make such a request. In any event, the
Commission has made it clear in the Pasula decision, that such provisions in

1754

the collective bargaining agreement have no binding effect in a cornpiaint
under section lOS(c)(l) of the Act. Thus, even assuming, arguendo, that
Boone did not request the safety chairman to look at the alleged hazardous
condition, that does not, in itself, bar relief under section lOS(c)(l).
This contention does, however, raise a question as to whether Boone then
entertained a good faith reasonable belief of the hazardous nature of the
condition. In addition to Boone's own credible testimony, the reasonableness of his belief is supported by the evidence that after his initial complaint about the seat condition, the operator's mechanic, Leo Browning, had
requested a new shock absorber and, after finding that none was available, had
merely rewelded the old shock bracket. This evidence is further buttressed
by the testimony of truck driver Godfrey and of the MSHA inspectors who
found the seat condition so hazardous that they ordered the truck withdrawn
from service.
Rebel also suggests that Boone may have been acting vindictively and in
bad faith because he had earlier that morning received a warning about a previous unexcused absence. Both parties admit, however, that although Boone
could have then been properly discharged because of his unexcused absences,
he was not. Under these circumstances, I find it more reasonable to conclude
that Boone would, if anything, have been grateful to the operator for having
retained him and not vindictive for having merely been warned about his
unexcused absence. Within this framework, I conclude that Boone did indeed
entertain a good faith reasonable belief of the hazardous nature of the condition. Robinette, supra. I find it therefore unnecessary to determine
whether or not he actually requested that the safety chairman examine that
condition.
Rebel next contends that the decision of the West Virginia Coal Mine
Safety Board of Appeals denying Boone's discrimination corn.plaint filed under
West Virginia law and the decision of an arbitrator denying Boone's
grievance under the collective bargaining agreement should be given great,
if not controlling, weight herein. Under Pasula, the weight to be given
arbitral findings is to be controlled by several factors including the
congruence of the statutory or contractual provisions governing those proceedings and the provisions of the Federal law, the degree of procedural
fairness in the other forums, the adequacy of the record of those proceedings, and the special competence of the particular decision maker. I find
these criteria to be also relevant in determining the weight to be accorded
the decision of the West Virginia Coal Mine Safety Board of Appeals' decision. Bradley v. Belva Coal Company, 3 FMSHRC 921, petition for review
granted May 1981. Applying these criteria to the Board decision, I· find
that I cannot give it any weight. I have before me only the final summary
decision of the Board itself. The reasoning of the Board in support of its
decision and the transcript of those proceedings have not been made available. Moreover, Rebel has failed to cite even the statutory authority or
criteria under which that decision was made. lf Finally, even assuming that

lf

Presumably, the State proceedings were brought under section 22-1-21 of
the West Virginia Code. The provisions of that section, set forth below in

1755

the Pasula criteria had been met, since the Board decision has not yet become
final but is currently under appellate review, I could not in any event fairly
give any weight to that decision.
For similar reasons, I can give no weight to the arbitrator's decision.
It is clear that his decision hinged upon a finding that Boone had failed
to follow procedures outlined in the collective bargaining agreement to first
contact the safety committeeman before refusing to perform the claimed
hazardous work. -There is no such requirement in the Act and proceedings
under the Act are not controlled by any collective bargaining agreement.
Pasula, supra. Thus, while the arbitrator's decision may very well have
been correct under that agreement, it is of no import to the case before
me. The arbitrator's decision in Pasula was rejected by the Commission
under essentially the same factual setting. See Pasula at p. 2796.
Under all the circumstances, I conclude that Boone was indeed engaging
in an activity protected under section 105(c)(l) in refusing to operate the
No. 5 Caterpillar truck on May 28, 1980. Since Boone was admittedly discharged solely for his refusal to operate the truck, it follows that his
discharge was solely motivated by his protected activity. I therefore find
that Boone was discharged in violation of section 105(c)(l) of the Act.

ORDER
The parties are directed to consult and seek to stipulate as to the
specific damages resulting from the discharge of Gerald D. Boone found
unlawful in these proceedings and to report to me in wr ting on or before
July 30, 1981, the results of such consultat"ons.
•

GayJlM

---=--r-----~-----------A minis~rative L0udge
fn. 3 (continued)
relevant part, are not congruent with those o section 105(c), particularly
as the Federal law has been interpreted in Pasula. Since the criteria for
finding unlawful discrimination under the State law is much more limited in
scope, and the statute does not on its face cover the factual situation presented in this case, the decision of the State Board denying Boone's claim
of discrimination under that law should be entitled to no weight in this
case.
"(a) No person shall discharge or in any other way discriminate against
or cause to be discharged or discriminated against any miner or any authorized
representative of miners by reason of the fact that he believes or knows that
such miner or representative (1) has notified the Director [of the West Virgini;
Department of Mines]; his authorized representative, or an operator, directly
or indirectly, of any alleged violation or danger, (2) has filed, instituted
or caused to be filed or instituted any proceeding under this law, or -(3) has
testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this law. No miner or representative shall be discharged or in any other way discriminated against or
caused to be discriminated against because a miner or representative has
:lone (1), (2) or (3) above."

1756

Distribution:
Daniel F. Hedges, Esq., Appalachian Research and Defense Fund, Inc.,
1116-B Kanawha Boulevard, East Charleston, WV 25301 (Certified Mail)
Frederick W. Adkins, Esq., Cline, McAfee and Adkins, 1022 Park Avenue,
NW., Norton, VA 24273

1757

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

July 10, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.
CEMENT DIVISION, NATIONAL
GYPSUM COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. VINC 79-154-PM
A.C. No. 20-00044-05001
Alpena Stone Quarry and
Mill

DECISION ON REMAND
Appearances:

William B. Moran, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Petitioner;
Anthony J. Thompson, Esq., and Charles E.
Sliter, Esq., Hamel, Park, McCabe and
Saunders, Washington, D.C. for Respondent

Before:

Chief Administrative Law Judge Broderick
STATEMENT OF THE CASE

On April 7, 1981, the Commission remanded this case for
a determination as to which of the violations found to have
occurred were of such a nature as could significantly and
substantially contribute to the cause and effect of a mine
safety or health hazard.
The determination that the violations occurred and the amount of the penalties assessed are
no longer issues in this proceeding.
Commission review was not sought concerning my findings
on citations No. 288721 and 288722. Consequently, these are
not before me on remand.
Following remand, both parties have filed briefs setting forth their positions on the issues of fact and law. 11
Based on their arguments and on my review of the record, I
make the following decision.

!/

The United Mine Workers of America sought party status
on May 6, 1981. I denied the motion to intervene. On
review, my order was affirmed by the Commission. Leave to
file an amicus brief was granted by the Commission, but
Counsel for the UMWA stated she did not wish to file such a
brief.

1758

ISSUES
The issues with respect to each citation are whether
the inspector found it to be significant and substantial,
and whether the evidence supports his findings.
The Secretary concedes that citations No. 288294,
288295, 288298, and 288567 are not significant and substantial violations, under the Commission standard. Based
on the inspector's testimony, I agree and so find.
COMMISSION STANDARD
The Commission laid down the following test to determine whether a violation is "significant and substantial":
"based upon the particular facts surrounding the violation,
there exists a reasonable likelihood that the hazard contributed to will result in an injury of a reasonably serious
nature." 3 FMSHRC at 825. The Commission criticized the
"mechanical approach" followed by MSHA and stated that "the
inspector's independent judgment" in making significant and
substantial findings "should not be circumvented." Findings
that a violation is significant and substantial are important in that they may result in withdrawal orders under
section 104(d) because of an operator's unwarrantable failure to comply, or under section 104(e) if they are part of a
pattern of violations.
·
The Commission's test has two aspects: the probability
of resulting injury, and the seriousness of resulting injury.
The Commission gave special weight to the judgment of the
Inspector.
CITATION 288296
This citation charged that an electrical junction box
was not covered by a plate, in violation of 30 CFR 56.12-32.
The injury which might result is electrical shock to an
employee coming in contact with the box. This is an injury
of a reasonably serious nature.
However, the box was
located at the end of a walkway and, according to the
inspector's statement, the occurrence of an injury was
improbable because the only employees who would be in the
area were maintenance and repair personnel who would deenergize the equipment before working on it. Therefore, I
find there was not a reasonable likelihood that an injury
would occur, and despite my previous finding that the violation was serious, I now conclude that it was not significant and substantial.

1759

CITATION 288297
This citation was issued because of spillage of limestone up to 24 inches deep on an elevated walkway in violation of 30 CFR 56.11-1. Should an employee trip on -the
spillage, he could fall over a low railing to the ground, 30
or 40 feet below. This obviously would cause an injury of a
reasonably serious nature.
Though the walkway was infrequently used, it was a walkway and there was a reasonable
likelihood that the hazard would result in injury to an
employee using the walkway.
The walkway was out of doors
and the elements added to the likelihood of injury. The
violation was significant and substantial.
CITATION 288826
This citation charges a violation of 30 CFR 56.12-34 in
failing to provide a guard for a light bulb located over a
table saw in the carpenter's shop. The likelihood of an
injury was slight, and any injury occurring would not be
reasonably serious. Therefore, the violation was not significant and substantial.
CITATION 288566
This citation was issued for an accumulation of debris
on a walkway next to a conveyor belt in violation of 30 CFR
56.11-1. This violation is similar to the one described in
Citation No. 288297. The difference is that the walkway
here is about 10 feet off the ground.
I find that there is
a reasonable likelihood that the hazard (a fall) would
result in injury of a reasonably serious nature. The violation was significant and substantial.
CITATION 288827
This citation was issued because valves on oxygen and
acetelyne tanks were left open while the tanks were not in
use in violation of 30 CFR 56.4-33. There were sources of
ignition in the area which could result in an explosion and
serious injury. Whether the evidence shows a reasonable
likelihood of an explosion is more difficult. The inspector's statement indicates that the probability of an explosion was slight unless a hose began to leak or the tanks
were upset. No leaks were found.
On the other hand, the
inspector testified that leaving the valves open when not in
use was a dangerous practice, and that an accident was not
unlikely.
I conclude on the basis of the entire record that
there was a reasonable likelihood that a serious injury
would result from the violation. Therefore, the violation
was significant and substantial.

1760

ORDER
The parties did not challenge my penalty assessments in
my decision of December- 26, 1979. Therefore, if the penalties ordered paid in that decision have not been paid, they
are ordered paid immediately.

·;tvvrtd

A1Jrvrivi d._

,/' James A. Broderick
Chief Administrative Law Judge
Distribution:

By certified mail.

Anthony J. Thompson, Esq. and Charles E. Sliter, Esq.,
Counsel for Cement Division, National Gypsum Company, Hamel,
Park, McCabe & Saunders, 1776 F ~treet, N.W., Washington, DC
20006
William B. Moran, Trial Attorney, and Thomas A. Mascolino,
Counsel, Trial Litigation, Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
Assessment Office, MSHA, U.S. Department of Labor, 4015
Wilson Boulevard, Arlington, VA 22203

1761

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

JUL 1 O 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceedings
Petitioner

Docket No. KENT 80-312
A.C. No. 15-07082-03030

v.

LESLIE COAL MINING COMPANY,
Respondent

Docket No. KENT 80-313
A.C. No. 15-07082-03032
Leslie Mine

DECISION
Appearances:

George Drumming, Jr., Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for
Petitioner;
John M. Stephens, Esq., Stephens, Combs and Page,
Pikeville, Kentucky, for Respondent.

Before:

Judge Melick

These consolidated cases are before me upon petitions for assessment of
civil penalties under section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 810 et seq., the "Act," alleging violations of
health and safety regulations. The general issue is whether Respondent has
violated the cited regulations and, if so, the appropriabe civil penalties
to be assessed. An evidentiary hearing was held in Prestonburg, Kentucky,
on March 17, 1981. At that hearing, the parties filed a motion to settle
all but one of the citations in these cases, which, with the exception of
one citation, was approved. The latter citation was vacated and an evidentiary hearing was held as to the remaining citation. Evidence was submitted at hearing under se~tion llO(i) of the Act regarding the criteria
for determining the amount'of penalty. This evidence was considered in
reaching the penalty amounts approved herein.
Contested Citation:

Docket No. KENT 80-313

Citation No. 724330, as amended at hearing, purports to charge a violation of the mandatory standard at 30 C.F.R. § 77.205(d). That standard provides as follows: "Regularly used travelways shall be sanded, salted, or
cleared of snow and ice as soon as practicable." More specifically, the

1762

citation alleges as follows: "A safe means of access was not maintained
where the employees are required to travel from the parking lot to the bathhouse in that ice from paper thick to approximately three inches in depth
was present along the walkway." ]:_/
There is no dispute that when MSHA inspector Billy Tackett issued this
citation on March 4, 1980, at 9:30 a.m., there was indeed some ice or "frozen
moisture" as characterized by the operator, in the travelway leading from the
mine parking lot to the bathhouse. It is not questioned that the miners regularly traveled this route. Tackett estimated that 99 percent of the parking
lot itself was also covered with this substance. This too is not disputed by
the operator. Tackett admitted, however, that he never determined how long
these conditions had existed nor when the area had last been cleaned up.
Tackett could not even state when it had last snowed and could only guess
how long the ice had been there. He estimated that the ice could have been
removed in 3 or 4 hours and he actually gave the operator 4 and 1/2 hours to
complete the removal.
According to the stipulated testimony of mine official Bill Wooten, it
had snowed the day before the citation was issued and that snow had been
cleared off the parking lot by a front-end loader. Admittedly, however, a
residue of frozen moisture remained at the time the citation was issued.
Within this framework of evidence, it is apparent that indeed there
was "frozen moisture" (ice) on the employee parking lot and travelway to the
employee bathhouse. The issue to be resolved then is whether that substance
had been cleared "as soon as practicable." In order to make a determination
of whether the operator failed to clear the ice here at issue within that
time frame necessarily requires knowledge of when that ice first existed.
No unambiguous evidence has been presented to establish that fact and therefore MSHA has not established an essential element of proof that the standard at 30 C.F.R. § 77.205(d) has been violated. Accordingly, the citation
is vacated.
Motion for Approval of Settlement
A.

Docket No. KENT 80-312

Proposals for penalties were first submitted in this case for five citations. At hearing, it was represented by MSHA that Citation No. 9927173 had
been erroneously included in its petition inasmuch as that citation had been
1/ I observe that the citation, as amended, failed to allege that the cited
travelway was not sanded, salted, or cleared of snow and ice "as soon as
practicable"--an essential allegation to establishing a violation of section
77.205(d). The operator did not claim that it was prejudiced in this regard,
however, and such a technical defect under the circumstances is not sufficient
to warrant dismissal. Secretary v. Ralph Foster and Sons, 3 FMSHRC (May 12,
1981).

1763

previously vacated.
dismissed.

Accordingly, the citation is withdrawn from the case and

Citation Nos. 9927138 and 9927211 allege violations of the standard at
30 C.F.R. § 70.250. That standard sets forth the time periods within which
respirable dust samples must be taken from individual miners. Inasmuch as
these citations alleged only that the respirable dust samples had not been
received by the MSHA office, it is apparent that they did not properly
charge a violation of the standard cited. MSHA conceded, moreover, that
its evidence would not support the violations alleged. Accordingly,
counsel for 11SHA moved to vacate the citations. Under the circumstances,
I approve the motion and vacate those citations.
Citation No. 713638 alleges a violation of the standard at 30 C.F.R.
75.400. That standard provides as follows: "Coal dust, including float
coal dust deposited on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in
active workings, or on electric equipment therein." While MSHAmoved for
approval of a 50-percent reduction in the {nitially proposed penalty of
$130, it conceded that it had no evidence to support a finding that the
cited materials were indeed "combustible." Those allegedly "combustible"
materials consisted of soda pop cans, empty hydraulic fluid cans, and
apparently some sandwich wrappers the exact nature and quantity of which
no one could recall. Under the circumstances, I find insufficient evidence that "combustible materials" were "permitted to accumulate" in active
workings of the mine. Within the framework of the Commission decision in
Secretary v. Co-Op Mining Company, 2 FMSHRC 3475 (1980), I cannot accept the
.proposed settlement. Since MSHA conceded that it could not produce this
critical evidence even at hearing, I vacate the citation.
§

Citation No. 717362 alleges a violation of the standard at 30 C.F.R.
70.lOO(b). The parties propose a settlement for $60 as initially assessed.
It is undisputed that the respirable dust concentration was in fact greater
than allowed by the cited standard in effect at the time the citation was
issued. The sampling revealed a concentration of 2.1 milligrams of respirable dust per cubic meter of air, whereas the standard then required that
exposure be limited to 2.0 milligrams of respirable dust per cubic meter
of air. The operator had no history of this type of violation and had no
means of obtaining and testing dust samples on its own. Under the circumstances, I find that the proposed settlement is appropriate.
§

B.

Docket No. KENT 80-313

Citation No. 724334 alleges a violation of the standard at 30 C.F.R.
§ 75.1003(c). That standard requires that trolley wires and trolley feeder
wires be guarded adequately at mantrip stations. The parties propose a reduction in penalty from $98 to $49 because the hazard was in actu~lity not as
serious as first .thought. The subject trolley wire was on the far side of
the mantrip against the rib in an area in which miners would not ordinarily

1764

be exposed. In addition, it was subsequently determined that the plastic
insulation that ordinarily guarded the trolley wire had shrunk because of
the unusually cold weather at the time, thereby causing the cited exposure.
Since the wire was only from 5 and 1/2 to 6 feet above floor level and could
have caused death by electrocution upon contact, there was indeed a potential
serious hazard. Under the circumstances, I find that the proposed settlement
is appropriate.
ORDER
Docket No. KENT 80-312
Citation Nos. 9927173, 9927138, 9927211, and 713638 are VACATED. The
Leslie Coal Mining Company is ORDERED to pay a penalty of $60 within 30 days
of the date of this decision for the violation under Citation No. 717362.
Docket No. KENT 80-313
Citation No. 724330 is VACATED. The Leslie Coal Mining Company is
ORDERED to pay a penalty of $49 within 30 days of the d te of this decision
for the violation under Citation No. 724334.

G ry r):ielick
dmin1strative
Distribution:

Ii
~

~

1

George Drumming, Jr., Esq., Office of ~he Solicitor, U.S. Department
of Labor, 801 Br9adway, Room 280, Na 1 hville, TN 37203 (Certified
Mail)
John M. Stephens, Esq., Stephens, Combs and Page, P.O. Drawer 31,
Pikeville, KY 41501 (Certified Mail)

1765

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

JUL 1 3 \981

22041

Civil Penalty Proceeding

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

Docket No. KENT 80-330
Assessment Control
No. 15-10872-03011

v.

No. 8 Mine
SOUTH EAST COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

George Drumming, Jr., Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
James W. Craft, Esq., Polly, Craft, Asher & Smallwood,
Whitesburg, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued March 12, 1981, a hearing in the
above-entitled proceeding was held on May 7, 1981, in Prestonsburg, Kentucky,
under section 105 (d) of the Federal Hine Safety and Health Act of 1977,
30 u.s.c. § 815(d).
After the parties had completed their presentations of evidence, I
rendered the bench decision which is reproduced b~low (Tr. 98-105):
This hearing involves a Proposal for Assessment of Civil Penalty
filed on September 8, 1980, in Docket No. KENT 80-330 by the Secretary
of Labor seeking to have a civil penalty assessed for an alleged violation of 30 C.F.R. § 75.1701 by South East Coal Company.
In a civil penalty proceeding, the issues are whether a violation of
a mandatory health or safety standard occurred and, if so, what penalty
should be assessed, based on the six criteria set forth in section llO(i)
of the Federal Mine Safety and Health Act of 1977.
I shall make some findings of fact on which my decision will be
based.
1.
On June 19, 1980, Inspector Cecil Davis went to the No. 8
Mine of South East Coal Company and made an inspection of the mine,
during which he wrote Citation No. 720883, alleging a violation of
section 75.1701. His citation stated that "two places have been
advanced to within about 60 feet of an abandoned inaccessible area
of an adjacent mine in the 001-0 underground working section and test
boreholes were not being drilled."
Citation No. 720883 was terminated by a subsequent action
sheet issued on June 20, 1980, which stated that test boreholes were
being drilled in advance of the working section on the 001 section
to insure that the continuous-mining machine did not cut into abandoned
areas unexpectedly. That termination sheet was written by a different
inspector from the one who wrote the citation.

1766

2.
At the hearing, Exhibit A was introduced. It is a nap of
the No. 8 Mine as well as a map that shows the Smith-Elkhorn Mine
which was adjacent to the No. 8 Mine. The testimony of the inspector
showed that several months prior to June 19, when Citation No. 720883
was written, the No. 8 Mine had cut into the Smith-Elkhorn Mine in
what is referred to in this case as the first right section, and also
in the second right section.
3.
The testimony of Mr. Holbrook, who was the foreman on the
night shift in the No. 8 Mine, indicated that boreholes had been drilled
before the company penetrated the Smith-Elkhorn Mine which is adjacent
to the No. 8 Mine. At the time those boreholes were drilled, some
water was encountered 18 inches from the roof, and a pump was installed and the water was pumped out of the Smith-Elkhorn Mine through
the boreholes, and the water then was pumped farther to the outside of
the mine. After the water was cleared out, and other tests were made
to make sure that it was safe to do so, the company mined into the
Smith-Elkhorn, the adjacent mine, and through those holes did inspections. Those holes, as I recall, were 10 feet by 5 feet in size.
Respondent thereafter treated the Smith-Elkhorn Mine as a part of its
No. 8 Mine, and began to ventilate it, and Hr. Holbrook made trips clear
around behind and to the side of the first right and second right sections where the original places had been cut through into the SmithElkhorn Mine.
Mr. Holbrook testified that he went to the place toward which
they began to cut a room and inspected the adjacent mine, which had been
made a part of the No. 8 Mine, at least twice a week, for hazardous
conditions, and he states that no hazardous conditions existed, either
in the form of methane or lack of oxygen or water.
4.
The situation which prevailed on June 19, 1980, when Inspector
Davis wrote Citation No. 720883 was that respondent's men were advancing two rooms to the left of the second right section, and it was
the opinion of respondent's management at that time that they were advancing toward a part of their own mine which, under section 75.1701
wc:mld be considered "abandoned areas" in the mine, meaning the No. 8
Mine. Therefore, it was their contention that they were entitled to
advance to within 50 feet of the abandoned portion under the first part
of section 75.1701 before they had to drill test boreholes.
5.
The inspector, in his testimony, stated that he believed the
company had violated section 75.1701 because they were "within 200 feet
of any other abandoned areas of the mine which cannot be inspected and
which may contain dangerous accumulations of water or gas." That is a
portion of section 75.1701. l\Then it was pointed out to the inspector
that the testimony indicated that the room which had been advanced was
not an "other abandoned area", but was really in the No. 8 Mine, the
inspector said that if respondent had not violated that provision, then
he would say that respondent had violated the next provision in section
75.1701 which is, "or within 200 feet of any workings of an adjacent
mine."

1767

I believe that those are the basic facts which the testimony and
the exhibits show. The problem then becomes whether the facts support
a finding that a violation of section 75.1701 existed. That section
reads as follows:
"Whenever any working place approaches within 50 feet of
abandoned areas in the mine as shown by surveys made and certified by a registered engineer or surveyor, or within 200 feet of
any other abandoned areas of the mine which cannot be inspected
and which may contain dangerous accumulations of water or gas,
or within 200 feet of any workings of an adjacent mine, a borehole
or boreholes. shall be drilled to a distance of at least 20 feet
in advance of the working face of such working place and shall
be continually maintained to a distance of at least 10 feet in
advance of the advancing working face."
There are other provisions in that section but they have to do with
the manner in which boreholes will be made, and not with whether there
is a necessity that they be drilled.
It so happens that the testimony shows that the inspector who wrote
Citation No. 720883 relied on a certified map to determine that the company was cutting to within 60 feet of "an abandoned inaccessible area",
as he referred to it in his citation, so that the first part of the section has been satisfied in that the company was relying on certified maps
and the inspector was relying on certified maps for the purpose of determining how close they were to an abandoned area in the mine~ The testimony
in this case shows that if a company does cut into an abandoned mine, which
it did in this case, and makes that abandoned mine a part of its own mine
by commencing a ventilation system in the abandoned mine and also by making
inspections in the adjacent mine, then it is considered to be the company's
mine that is then being actively worked. Therefore, it would seem that
respondent was correct in arguing that at the time the inspector wrote
Citation No. 720883, the company was entitled to cut to within 50 feet of
the abandoned area before it had to drill boreholes.
The inspector's belief that the company had violated the second
portion of section 75.1701 was based on language in his citation to the effect
that the company was within "60 feet of an abandoned inaccessible area of an
adjacent mine". The testimony in this case shows that the company was not
within 60 feet of "an abandoned inaccessible area of an adjacent mine". The
inspector showed, by his more precise evaluation of Exhibit A in this case,
which was made after there had been further mining and which was not available to him at the time he wrote the citation, that the place to which they
had progressed at the time he wrote the citation was actually 100 feet from
the mine which he referred to as abandoned and inaccessible.
The inspector, of course, was without the testimony of Mr. Holbrook
in this case because Mr. Holbrook testified in this case that the area
toward which they were mining was not abandoned and inaccessible in the
sense that those terms are used in section 75.1701 because that area was
being ventilated and was being inspected by Hr. Holbrook at least twice a
week. So, it was not inaccessible, and it is not abandoned in the sense
that that term is used in section 75.1701.

1768

The other provision of section 75.1701 which is at issue here would
be whether respondent had progressed to within 200 feet of any workings
of an adjacent mine, and the facts in this case show that that portion
of the section doesn't apply either because this was not, on June 19,
1980, an adjacent mine, because it had already been incorporated as part
of the No. 8 Mine at that time, insofar as respondent was concerned.
Therefore, I find on the facts in this case that no violation of
section 75.1701 was proven.
Now, I am aware that the Commission has said in many cases that the
regulations are to be interpreted in the manner which will be the most
likely to prevent accidents and injuries and the Commission has very
recently so ruled in Secretary of Labor v. Ideal Industries, Cement
Division. 3 FMSHRC 843 (1981). In that case, the Commission interpreted
a section so as to require a company to correct equipment before it is
even put in an area where it might be used, if it's defective in any way,
even if the equipment has not been used at the time that it is examined
by an inspector. The Commission said in that case that the primary goal
of the Act is to prevent accidents; that an interpretation should be
given to any regulations which would bring about safety and advance safety
in the mines.
The interpretation that I place on this section is not as strict an
interpretation as the inspector gave it, but I believe that the facts in
this case support my finding because the inspector did not have in his
possession the facts which have been introduced in this case. When the
inspector wrote Citation 720883, he did think that the company was progressing toward an abandoned inaccessible area when, in fact, that was not
the case. The area toward which the company was advancing had been inspected, and was known not to have any hazardous conditions in it, and the
company was relying on certified maps and the foreman who testified here
today said that he had made the determination that he was not within
50 feet of the abandoned area, if it can be called that, and therefore,
that he did hot feel that he had to drill boreholes. The testimony in
this case shows that he was, in fact, not within 50 feet of the other
area, and therefore there simply are not facts in this case to support a
requirement that boreholes should have been drilled under the second two
provisions of section 75.1701.
After I received the transcript in this proceeding, I was reminded that
counsel for the Secretary had taken the position at the hearing that he did
not wish to file a posthearing brief and that he would "just stand on the
testimony that has been provided to the judge" (Tr. 95). If the Secretary
should decide to file a petition for discretionary review, section 113(d)(2)
(A)(iii) of the Act provides that "[e]xcept for good cause shown, no assignment of error by any party shall rely on any question of fact or law upon
which the administrative law judge had not been afforded an opportunity to
pass." The Secretary's position before me was so broad that he could argue
anything before the Commission and contend that I had had an opportunity to
pass upon it. My bench decision did not discuss the unusual circumstances
under which Citation No. 720883 was issued. If a petition for discretionary
review should be filed, the Commission may well wish that I had explained my
decision in light of some of the arguments which could be raised before the
Commission.

1769

The circumstances leading up to the writing of Citation No. 720883 began
with an incident which occurred on or about June 18, 1980, when the men working on the 001 Section of respondent's No. 8 Mine on the night shift (4 p.m.to-midnight) refused to work unless boreholes were drilled in advance of the
place where they were working (Tr. 80; 87). The section foreman, Mr. Charles
Holbrook, who testified for respondent in this proceeding, refused to drill
boreholes because he had concluded from an examination of certified maps that
he had not advanced to within 50 feet of an abandoned area (Tr. 86). He had
also personally inspected the abandoned area toward which they were advancing
and knew that it did not contain any dangerous accumulations of gas or water
or air devoid of oxygen (Tr. 74-76; 85). Nevertheless, someone reported the
matter to MSHA (Tr. 90) and an inspector named Carlos Smith came to the mine
on the night of June 18, 1980 (Tr. 68; 79-80; 85). After inspecting the mine,
Inspector Smith advised Mr. Holbrook and other personnel at the mine that they
could make one more cut of coal in each room before they were close enough to
the so-called abandoned area to require the drilling of boreholes (Tr. 82-83;
89-90).
Inspector Smith reported to his supervisor, Mr. Charles Miller, that he
had examined the mine to determine whether a violation of section 75.1701 had
occurred (Tr. 21). Mr. Miller wanted to follow up on Inspector Smith's report.
Therefore, Mr. Miller and Inspector Cecil Davis, the inspector who wrote
Citation No. 720883 here involved, drove to respondent's No. 8 Mine during the
day shift on June 19, 1980 (Tr. 29). They examined the 001 Section. Then
they reviewed respondent's certified maps showing the rooms being advanced
and the so-called abandoned areas in the Smith-Elkhorn Mine, which had been
integrated at that time with the No. 8 Mine, and Inspector Davis wrote Citation No. 720883 alleging that a violation of sect~on 75.1701 had occurred
because respondent was within 60 feet of an adjacent mine (Tr. 9-11; 22; 25;
34; 66).
The record also shows that some person or persons have filed a discrimination case against respondent under section 105(c) of the Act because of some
of the events which occurred about June 18, 1980, when the men on Mr. Holbrook's
night shift refused to work because boreholes were not being drilled (Tr. 91-93).
Additional matters mentioned by Inspector Davis include his statement
that if he had seen anyone walking around in the Smith-Elkhorn Hine, which had
been merged with the No. 8 Mine, he would have issued an imminent-danger order
because, in his opinion, the roof had not been supported at the point where
a person would have to enter the Smith-Elkhorn Mine from the No. 8 Mine (Tr. 28).
Also, although respondent's map (Exhibit A) in this proceeding shows that
respondent is ventilating the Smith-Elkhorn Mine now that it has become a part
of its No. 8 Mine, the inspector took the position that respondent may not
be properly ventilating the Smith-Elkhorn Hine and that citations, not before
me in this case, have been written with respect to respondent's alleged failure to get MSHA's approval for the way respondent is ventilating the SmithElkhorn Mine and for the failure to install roof bolts in the first and second
right sections where the Smith-Elkhorn Mine was first penetrated about February
of 1980 (Tr. 42-43; 45; 55; 60; 62-63; 65).

1770

The fact that the miners on the second shift refused to work because
boreholes were not being drilled, the fact that respondent may not have
been ventilating the Smith-Elkhorn Mine properly, and the fact that respondent may not have installed roof bolts at the points where the first and
second right sections penetrated the Smith-Elkhorn Mine all trouble me with
respect to whether Mr. Holbrook should have gone into the Smith-Elkhorn Mine
and whether the Smith-Elkhorn Mine was being ventilated properly on June 19,
1980, when Citation No. 720883 was written. On the other hand, the inspector
told me that the alleged issues as to respondent's roof bolting and ventilation
of the Smith-Elkhorn Mine were not before me and that he did not think that
I had to consider those matters in determining whether there was a violation
of section 75.1701 (Tr. 45; 55).
Anyone who reads the first sentence of section 75.1701, quoted in my
bench decision, will see that the requirement for the drilling of boreholes
becomes increasingly necessary, depending upon the amount of information one
possesses with respect to the "abandoned areas" toward which one is advancing.
If one has certified maps showing the location of the abandoned areas, he is
entitled, under the first part of section 75.1701, to advance within 50 feet
of the "abandoned areas" before he has to begin drilling boreholes. The
next step in the requirements of section 75.1701 refers to "other abandoned
areas", meaning those which are not shown on certified maps. If one advances
toward abandoned areas not shown on certified maps, he must start drilling
boreholes when he is within 200 feet of such areas because he has less knowledge as to their exact location than he has when certified maps are available
showing the location of such abandoned areas.
In my bench decision, I referred to "abandoned areas" as that term is
used in section 75.1701. That reference was based on the definition of
"abandoned areas" given in section 75.2(h) which states that "'[a]bandoned
areas' means sections, panels, and other areas that are not ventilated and
examined in the manner required for working places under Subpart D of this
Part 75." In my bench decision, I indicated that it was doubtful i f the
area toward which the rooms were bing driven constituted "abandoned areas"
because they had been made a part of respondent's No. 8 Mine and were being
ventilated and inspected. The question of whether respondent was ventilating
and inspecting the Smith-Elkhorn Mine sufficiently to eliminate the SmithElkhorn Mine from the category of "abandoned areas" was not considered to
be important in my bench decision because section 75.1701 does not require
an operator to drill boreholes when approaching admittedly "abandoned areas",
as defined in section 75.2(h), until an operator is within 50 feet of those
abandoned areas as shown on certified maps.
It should be noted that the inspector conceded several times in his
testimony that respondent had made the Smith-Elkhorn Mine a part of its No. 8
Mine (Tr. 23-24; 36; 57-58; 63). The inspector cannot state that the SmithElkhorn Mine is a part of respondent's No. 8 Mine and simultaneously argue
that the Smith-Elkhorn Mine is an "adjacent mine" for the purpose of claiming
that respondent had violated section 75.1701 by advancing to "within 200 feet
of any workings of an adjacent mine" (Tr. 48).
In short, while I am concerned about the probable hazards which might
have been associated with respondent's making the Smith-Elkhorn Mine a part

1771

of its No. 8 Hine, I do not think that I can ignore the fact that the "abandoned areas" were shown on "surveys made and certified by a registered engineer" (Tr. 25). Since the "abandoned areas" toward which respondent was
advancing were shown on a certified mine map, I cannot find that respondent
was in error in relying on its certified maps and maintaining that it was
entitled to approach within 50 feet of the "abandoned areas" before it began
to drill boreholes. As to the inspector's claim that respondent's management
didn't really know where the Smith-Elkhorn lfine was located (Tr. 59), the
record shows that respondent's vice-president was the superintendent of the
Smith-Elkhorn Hine when it was developed (Tr. 76; 97) and that Inspector Davis
was told by respondent that the engineer who prepared the map for the SmithElkhorn ~-fine was the same engineer who prepared responde~t 's map (Tr. 62).
For the foregoing reasons, I believe that my bench decision reached the
proper result when all of the evidence in this proceeding is considered.
Therefore, my bench decision is affirmed.
WHEREFORE, it is ordered:
The Proposal for Assessment of Civil Penalty filed on September 8, 1980,
in Docket No. KENT 80-330 is dismissed because no violation of section 75.1701,
as alleged in Citation No. 720883 dated June 19, 1980, was proven.

~~ C. cJ:r;J:!',u ~--

Richard C. Steffey ·7r-{7Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
James W. Craft, Esq., Attorney for South East Coal Company, Polly,
Craft, Asher & Smallwood, P.O. Box 786, Whitesburg, KY 41858 (Certified Mail)

1772

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

JUL 1 3 \981

22041

Complaint of Dischar~e,
Discrimination, or Interference

LLOYD BRAZELL,
Complainant

Docket No. KENT 81-46-D

v.

Hamilton No. 1 Hine

ISLAt\ID. CREEK COAL COMPANY,
Respondent
DECISION
Appearances:

Jerry W. Nall, Esq., Owensboro, Kentucky, for Complainant;
William R. Whitledge, Esq., Logan, Morton & Whitledge,
lladisonville, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued February 26, 1931, a hearing in
the above-entitled proceeding was held on April 14 and 15, 1981, in Madisonville, Kentucky, under section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c)(3).
After the parties had completed their presentations of evidence, I
rendered the bench decision which is reproduced below (Tr. 553-591):
This proceeding involves a complaint of. discharge, discrimination,
or interference filed on December 5, 1980, in Docket No. KENT 81-46-D
by complainant, Lloyd Brazell, pursuant to section 105(c)(3) of the
Federal Mine Safety and Health Act of 1977, alleging that respondent,
Island Creek Coal Company, discharged Brazell in violation of Section
105(c)(l) of the Act because he had notified respondent's management
of dangers relative to safety violations in the coal mine where complainant was employed.
I shall make some findings of fact on which my decision will be
based, and these will be given in enumerated paragraphs.
1.
Lloyd Ilrazell, the complainant in this proceeding, was born
on November 5, 1924, and is 56 years old. He has a wife and a son and
daughter who are 29 and 34 years old, respectively. Mr. Brazell began
working for Island Creek on June 15, 1970, at Island Creek's Hamilton
No. 1 North Mine. He began as a member of the union and performed
various types of work until December 6, 1974, when he was promoted
to a management position. Re first supervised a working section, then
became what he called an assistant mine foreman on the 4 p.m.-to-12
midnight shift. Finally, he was a belt foreman on the 12 midnight-to8 a.m. shift.
2.
On Friday, May 30, 1980, Brazell was asked to see James
Jennings, the superintendent of Hamilton No. 1 North Mine. Brazell

1773

was told that he was being laid off because Jennings had been ordered
to "cut the fat." Jennings stated that he did not like to play God
but he had to reduce personnel. Brazell was laid off, effective that
day, and the period of termination was indefinite.
3.
Brazell filed on August 5, 1980, a discrimination complaint
with the Mine Safety and Health Administration. That complaint is
Exhibit A in this proceeding. On the last page of the complaint,
Brazell suggests 7 occurrences which contributed to Brazell's termination. Brazell received a letter from HSHA dated November 10, 1980,
stating that MSHA had concluded, on the basis of its investigation
of his complaint, that no violation of section lOS(c) had occurred.
4.
Brazell testified at the hearing that he had been laid off
for the reasons given in his complaint filed with MSHA, and for other
matters in addition to those mentioned in his MSHA complaint.
5.
Item A in Brazell's complaint, or Exhibit A, is that known
employees were cutting grounds out of trailing cables. Brazell maintained a watchful eye on the personnel in the mine and eventually concluded that an employee named Barkley was cutting out the grounds. One
day Brazell found all men on his section gathered around a splice in
the trailing cable to the coal drill. The coal drill wouldn't operate
because of a malfunction of the cable from which ground wires had been
cut. Brazell had the defective splice removed from the cable. Brazell
wanted to show the splice to Jim Scott, the mine foreman, so he asked
a qualified man named O'Leary to take charge of the section while
Brazell took the splice to Scott. Scott was upset with Brazell for
bringing the splice to him at that time. So, Brazell went to show
the splice to the mine superintendent, Jim Jennings, who threatened to
have Brazell's license revoked for leaving the section. After Brazell's
shift ended that day, Brazell was called to the office where management
advised Brazell that he had violated an Island Creek rule to the effect
that section foremen are not permitted to go outby the belt tailpiece
during their working shifts. Brazell had never heard of that rule
before. In Jennings' testimony, he 'stated that he did not threaten to
revoke Brazell's license, but that he did tell Brazell that he should
not have left his section to bring the splice outside, and that if
Brazell insisted on leaving to take the splice to MSHA before his shift
was over, that he would be discharged. Jennings made it clear in his
testimony that he had no objection to Brazell taking the splice to HSHA
provided he did not do it during his working shift while leaving his
crew of men unsupervised. It was Jennings' contention that Brazell did
not inform Jennings that he had left O'Leary in charge of his section
at the time he left with the splice.
6.
Brazell never did report to management that he believed
Barkley was responsible for cutting grounds out of cables. One reason
for Brazell's failure to report Barkley to management was that Barkley's
father-in-law is a management official. Brazell said the incident regarding cutting of ground wires out of trailing cables occurred about
4 years prior to Brazell's termination.

1774

7.
Item B in Brazell's complaint, or Exhibit A, states that
Island Creek should eliminate from its payroll the outlaw miners who
were creating hazards and causing injuries and death at Hamilton No. 1
Nine. Brazell defined outlaw miners as miners who won't produce coal
and who don't want others to produce. ·The primary offender named as
an outlaw miner was C. P. Parrish who was a loading-machine operator.
Parrish wouldn't run the loader along the ribs to clean up loose coal
and gave reasons, such as curtains being in the way, for not cleaning
up the coal. Parrish was eventually killed by another miner named
Buddy Higdon who was operating the loading machine and caught Parrish
between the rib and the loader and crushed him to death. That incident
occurred about 5 years prior to Brazell's termination.
8.
Item C in Brazell's complaint, or Exhibit A, is that some
miners engaged in deliberate acts which created phony accidents and
destroyed equipment. Brazell gave two examples of such activities, one
occurring about 5-1/2 years before Brazell's termination and the other
one occurring about 1-1/2 years later. The first incident was that
Brazell was asked to supervise the No. 5 Unit because it had not been
running coal very well. Brazell discovered a man named Coffman was
deliberately causing tram mQtors to cease working. A total of 13
motors were ruined before that practice was stopped. The second incident also involved Coffman. This time Coffman deliberately ran a
loading machine under an overhang so that the materials would cover
the loading machine. Two young shuttle car operators were alarmed by
the fabricated roof fall and Coffman made it appear that Brazell was
at fault. Brazell filled out an accident report at the end of the
shift and told Coffman to go to the hospital for a physical examination.
Brazell does not claim that he explained to ~anagement that the roof fall
was deliberately contrived by Coffman. Jennings, in his testimony,
stated that he had not been told about any phony accidents that had been
caused in the mine and that an accident report should indicate the fact
that there was a contrived accident, if that, in fact, was the cause of
the accident.
9.
Item D in the MSHA complaint, or Exhibit A, is a suggestion
that fire-bossing irregularities occurred over a long period of time
and that they were condoned by management. Brazell explained the fireboss irregularities by stating that a illfl~A fire boss named Dan Brown
was a safety committeeman who was able to bargain for things with
management. Brazell said Brown wasn't preshifting on Sunday when he
was supposed to preshift and that Brown didn't check 43 seals that he
was supposed to check. His initials and date of examination did not
appear at the seals. That could be a serious oversight if methane
should seep through a seal. Brazell said that when he reported Brown's
inadequate fire bossing to management, Brazell was told that they didn't
question Brown because of his seniority, or that they were obligated to
Brown in some unexplained way. This went on for 4 or 5 years, according
to Brazell.. In his testimony, Jennings stated that a meeting was held
involving the union and management in which Brown was told that he had
to do thorough preshifts if he expected to continue in that position.

1775

10.
Item E in the MSHA complaint, or Exhibit A, is about bomb
threats as to which Brazell claims to have revealed the persons responsible and got the threats stopped. Brazell stated that he found
out, by overhearing a conversation off of mine property, that a redheaded woman was making the bomb threats on behalf of a miner who
wanted to have the mine shut down so that the miner wouldn't have to
work. After Brazell advised Jennings of the names of the persons responsible for the bomb threats, they stopped occurring after the miner
reported by Brazell to Jennings had left Island Creek's mine.
In his
testimony, Jennings denied that Brazell had ever given him the name
of any person who had made bomb threats ·and that all he could elicit
from Brazell were innuendos, about which he was unable to make any
investigation.
11. Item F in the MSHA complaint, or Exhibit A, refers to known
false safety obfuscations. Brazell said that the aforesaid reference
was to bomb threats and to occurrences such as Ken Hermes' objection
to walking over or around tires leading to the mantrip. Brazell and Bill
Green loaded out some of the tires just to get Hermes to move out of
the way. Brazell said that the relationship of Hermes' objection to
tires and Brazell's termination, was attributable to the fact that
Hermes is still working for Island Creek while Brazell is gone.
In his
testimony, Jennings stated that materials did accumulate at times near
the slope and that he would not challenge Brazell's statement that tires
might have been in the miners' way at times, but he said that the tires
were not there by design and that they were removed when it was brought
to his attention.
12.
Item G, in the MSHA complaint, or Exhibit A, is a reference
to known users and usage of drugs.
Brazell told about two different
miners who were allegedly using drugs, or carrying them. One was a
miner named Heady who was a son of a mine official named Dorris Heady.
On one occasion Brazell found Heady asleep on coal where equipment had
to move coal. So, Brazell put Heady in the shack and told Heady to stay
there. But the mine foreman and the mine superintendent advised Brazell
that he should not have done that~
The next day Heady was alert and was
operating a shuttle car when Grassiano, a mine official, complained to
Brazell that Brazell should get Heady out of the mine. Brazell claims
that he later heard that Heady had tried to run over Grassiano with the
shuttle car Heady was driving.
In his testimony, Jennings stated that
Grassiano had never reported to him that anyone was trying to run him
down and that he did not have any knowledge of that situation. The
second miner on drugs referred to by Brazell was a man named Hike
Albright who was once speeding in a railrunner and became upset when
Brazell and his men blocked his path while they were doing work on the
track. Brazell eventually arranged for a safety committee meeting regarding Albright, and Albright was put on medical leave and eventually
overcame his drug problem. Jennings, in his testimony, corroborated
the fact that Albright had been assisted in overcoming his drug problem,
and that the man recently thanked Jennings for the role Island Creek
had played in rehabilitating him.

1776

13. Brazell testified at the hearing about other matters which he
thinks resulted in his being terminated.
One area of discussion was
Brazell's description of the slope belt which became Brazell's responsibility during the last position Brazell held prior to his termination.
The slope was the most outby portion of the conveyor system.
It was
about 2,300 feet long and when Brazell started supervising it, there
were 19 employees shoveling coal along it. There was such a strong
velocity of air along the belt that large accumulations of coal dust
and float coal dust would accumulate along it. Brazell said the accumulation constituted both a fire and explosion hazard. The coal accumulations were greatly reduced after Brazell found an escapeway that had
been blocked by a roof fall. Hhen the escapeway was cleared out, intake
air traveled a different route which reduced the velocity of air in the
slope and permitted the slope belt to operate without as much danger or
problems resulting from coal spillage. Brazell does not know if his
finding the roof fall contributed in any way to his termination. Jennings,
in his testimony, stated that the roof fall which Brazell discussed had
already been brought to his attention and that the airway was cleaned
out and that the traveling of the air was changed afterwards. Jennings
denies that Brazell had any material part to do with the change in airflow or the cleaning out of the airway.
14. Brazell testified that an MSHA inspector named Goldsberry cited
Island Creek for failure to have a guard at a tailpiece at the bottom of
the slope. After guards were made, they were installed under Brazell's
supervision. Later Brazell heard that Jennings, the mine manager, was
trying to obtain an affidavit from two men named Cooper and Underwood
stating that a guard existed at the tailpiece. Brazell didn't know what
this guard, or alleged effort to get affidavits contributed to his termination. Jennings testified that no citation was issued for failure to
have a guard at the tailpiece but that an inspector did suggest that
one be placed there, and that it took two efforts by management personnel before one was constructed which met the inspector's specifications.
Jennings also denied that he had ever tried to get an affidavit from
people that the guard existed before it became the subject of a suggestion by an inspector. Jennings further explained that it would have
been unnecessary to get an affidavit; in any event, because the fact
that no citations had been issued made it unnecessary for Island Creek
to compile evidence concerning the mitigating factor of negligence.
15. Brazell received some bonus checks but he did not like to get
them because they appeared to be based on a combination of factors
such as achievement of significant production as well as safety-related
efforts. To show his disdain for such checks, Brazell once endorsed one
for about $5.00 and gave it t:o Jerry Stewart when Jerry was on his way
to buy drinks at a tavern. Brazell never did cash other bonus checks,
he says.
It is not clear how Br~zell's aversion for the bonus checks
affected his termination. Jennings testified in connection with Exhibit 1
in this proceeding, which shows that Brazell was paid a $50 bonus for
safety-related activities, that a person getting a bonus check would
know whether he was given it for achieving high production or for being
safety-minded.

1777

16. Brazell testified that the South Mine sometimes had personnel
who could be spared to help clean along the belt at the North Slope
where Brazell worked as belt foreman on the 12-to-8 a.m. shift. The
South Mine personnel were sent on the surface to the slope at the North
Hine. They would look in the slope and then would remain outside or go
back to the South Mine without doing any work. Eventually, Brazell was
notified of the men's names so that he could be certain that miners from
the South Mine actually came into the slope to work. Once a miner named
Mudbone got sick and was picked up by an ambulance. Mudbone had the
ambulance to take him to Hamilton No. 2 Mine instead of to a doctor or a
hospital. Brazell never heard of Mudbone after that, and Brazell doesn't
know what the sending of miners from the South Mine to work in the slope
in the North Mine contributed to his termination. Jennings testified
that he had never heard of Mudbone, but he did say that they had had
some trouble getting the men from the South Mine to report for work and
actually work in the slope at the North Mine, and that that problem was
overcome after they started sending a supervisor along with the men to
make sure that they stayed and worked in the slope.
17. Brazell testified that new men are supposed to wear green hats
to identify their lack of training and experience, but Brazell said that
the experienced miners also started wearing green hats so that if they
were inclined to avoid work they didn't like, they could plead ignorance
or lack of experience. Brazell told about a young man named Buchanan
who was only 20 years old, but who falsified the records so that it would
make it appear that he had the experience of a 34-year-old man. The
mine foreman, George Caudill, happened to use Buchanan on a special detail
where his actual lack of training became obvious and caused the mine foreman
to be extremely upset. Brazell did not say that anyone blamed him for
the fact that Buchanan's records had been falsified or for the fact that
experienced miners were wearing green hats. Consequently, there was no
way to determine what these incidents had to do with Brazell's termination. Jennings, in his testimony, stated that he was unaware of a problem
of a lot of miners who had experience wearing green hats to feign inexperience to avoid work. He pointed out, however, that any section foreman
wor:th his salt would know which men on his shift i;..rere experienced miners
and which ones were not.
18. Brazell testified about a miner named Don Brown who came to
work on Brazell's midnight-to-8 a.m. shift after having spent some time
in prison. Don was the son of the fire boss mentioned in Finding No. 9
above. Don had a habit of sleeping on the job and also had an affinity
to be near a female miner named Smith. Brazell stated that Don Brown
never molested the woman, but some of the miners criticized Brazell for
not separating Don from the female miner. Eventually, the other miners
stopped covering for Don's habit of sleeping on the job and Don was sent
to another place after he had, on one occasion, been observed sleeping
overly close to the haulage track. Brazell did not know how Don Brown's
sleeping and attraction to the female miner contributed to his termination.
Jennings, in his testimony, said that he was not aware of Don Brown's
sleeping problem or of his affinity for the female miner.

1778

19. Brazell, on cross-examination, agreed that he and an hourly
'employee named Powell had had a disagreement over the sharing of some
welding equipment which Brazell needed for installing some pans along
the belt conveyor. There were three oxygen cylinders and three acetylene
cylinders and Powell was used to earning extra money for doing overtime in welding or cutting and he resented Brazell's use of the tanks
because Powell sometimes had less oxygen and acetylene than he wanted.
Powell started placing the cylinders where they didn't belong and
that created a safety hazard, according to Brazell. This occurrence was
put into the record by Island Creek's counsel, but the facts are as much
in Brazell's favor as they are against him. So, it is not clear why it
was made the subject of an inquiry. In Jennings testimony, he agreed
that a conflict had occurred between Powell and Brazell concerning the
use of the welding equipment and Jennings resolved the problem by having
both men g1ven keys to the place where the oxysen and the acetylene cylinders were kept, with the understanding that each man was entitled to
use the equipment.
20. Four other managerial employees were laid off on ~lay 30, 1980,
at the time Brazell was laid off. One was L. W. Harris, who was physically older than Brazell and had been there longer than Brazell. The
other three men were named Ballard or Doc Horgan, James Scott, and Red
Wilson. Those three were all younger than Brazell, but James Scott had
worked for Island Creek longer than Brazell. Since Brazell was not the
oldest, physically, or the one with the most seniority, his being included
among those laid off, does not indicate any specific kind of discrimination. In his testimony, Jennings agreed that L .. w. Harris was not physically able to keep working as a section foreman. He also agreed that
Ballard Morgan and James Scott had problems; and that all of the men
would have been people whose absence from the work force would be advantageous to Island Creek. Jennings explained that Brzaell had been included ·among the five men from the North Hine who were laid off on Nay 30,·
1980, because Brazell was unable to coordinate the work of a crew of men
on a working section. The result was that Brazell's section produced
less coal on an average basis than other sections produced. Jennings
did not present any figures to support that contention, but he insisted
that if the slope job [described in Finding No. 13, supra] had not been
created for Brazell, Brazell would have been laid off as a section foreman at the time he was transferred to the job of supervising the slope
belt and the bottom area.
21. Brazell was laid off on Friday, May 30, 1980. He went back
to see Island Creek's president, Pete Petzold, who was courteous but
made no commitments. Then Stilley Mason wrote Brazell a letter explaining to Brazell how he could keep his insurance in effect. Also, Island
Creek recognized that Brazell had been laid off just 1 week before he
would have received a vested interest in Island Creek's retirement
program. Island Creek credited Brazell with the extra required week
and gave him papers to fill out if he wished to do so. Brazell has
never filled out the papers because he said that if he had kept working,
he was covered by about $250,000 in insurance as compared with $5,000
as a retiree. Also, he would receive about $176 per mbnth as a retiree
with his wife claimed as a joint beneficiary. Brazell has been referred

1779

to an Island Creek employee named Osborne in Lexington, Kentucky, for
additional questions about retirement •

•
22. Brazell stated that on one occasion a miner named Pyro
Williams tried to smuggle beneath his clothes 13 sex books as he was
getting into the mantrip. Brazell made Williams leave the books in
the ~afety office. Williams was mad about Brazell's not letting him
take the books with him underground and thereafter made passes at the
cables of some of the equipment until he succeeded in damaging the
cable to the loading machine. Brazell said he found out afterwards
that Williams was buying a trailer from an Island Creek superintendent
named Cunningham, and that if he had known Williams had such connections,
he wouldn't have objected to Williams' taking the books underground in
the first place.
Cunningham testified that he had not sold a trailer
to Hilliams and that he didn't understand where Brazell obtained the
information to the effect that he had sold a trailer to Williams.
Also, Jennings testified that Cunningham is not in the business of sellThe only trailer that was sold, apparently, was a house
ing trailers.
trailer and it wasn't sold to Pyro Williams.
23. Donald H. Watson testified on Brazell's behalf. Watson is a
battery maintenance person at Island Creek. He thinks Brazell would
rate a 9 on a scale of 1 to 10 for safety. He thought Brazell had made
safety reports to management but couldn't cite a single example. He
did not know of a time when Brazell refused to work on account of safety.
24. Kenneth W. Butts testified on Brazell's behalf. He still.works
for Island Creek. He respected Brazell's knowledge and rated him as a
10 on a scale of 1 to 10. Butts never knew of a slope boss prior to
Brazell holding that position. Butts is a mechanic who goes where he's
needed. He found fire in the slope at the end of his shift one day in
February 1981. He and some other men put out the fire in about 45 minutes
or an hour. The slope was closed down for cleanup for about one or two
shifts. Butts also found a ground monitoring wire cut out of a cable,
or blocked out of a cable, in March. 1981, but these things occurred long
after Brazell had been laid off. Butts had heard of an incident where
miners were paid a bonus so that coal could be produced in quantity
without worrying about safety. He said that that had occurred in March
1981, and that he had heard of it before that.
Jennings testified that
when he was transferred from the South Mine to the North Hine, he became
aware of the fact that some miners were given extra pay to do work which
they should have been required to do in the regular course of their
assigned duties.
He discouraged and stopped that type of thing, and
by the conversion of the mine to a computer system for payroll purposes,
he thinks he has been able to eliminate the juggling of time cards
whereby a miner could be paid extra for either not being at the mine
or for work not actually performed. Additionally, Jennings did away
with the giving of barbeques for any section which might produce the
most coal.in the mine in a given week or a given month. The union itself
objected to the process of giving special awards to those units which
produced the most coal.

1780

25. Charles A. Pease testified in Brazell's behalf. He was an
electrician and still works for Island Creek. He believes Brazell
is safety-minded, but he didn't work under Brazell's supervision.
Pease sees things done occasionally that are an indication of meddling
with electrical connections, but he said that he would have to see
someone actually do something before he would be able to state that
anyone had done an unsafe act. He thought that the Hamilton Mine was
a safe mine in which to work.
26. Everett Miller testified in Brazell's behalf. He is a supply
person now for Island Creek. He thinks Brazell is safety oriented and
would rate him at the top of the scale from 1 to 10 as a safety-minded
person. Hiller thinks Island Creek has brought in new management
personnel in the Southlline,where he moved in 1979, but he doesn't know
about the North Hine. Ile knows that Brazell found methane in a section
where it had never previously been found, but he said that methane comes
and goes and can be found anywhere at certain times. He thought that
management had worked to achieve a safe operation in the North Mine.
27. Dale E. Damin testified on Brazell's behalf. He is a temporary mechanic for Island Creek at the present time. He thinks that
Brazell is an extremely safety-conscious miner, and he would rate Brazell
as an 8 or 9 on a scale of 1 to 10. He doesn't know why Brazell would
have been terminated, and he stated that Island Creek had employed
Stan Belmar as a face boss on the No. 1 Unit after Brazell was laid off.
28. William D. Alvey testified on Brazell's behalf. He is now a
supply person. He thinks Brazell is safety-conscious and would rate
Brazell as an 8 or 9 on a scale of 1 to 10. ·He doesn't know of anyone
who was hired to replace Brazell. He knows that the mine was cut back
from 10 to 8 active working sections. He knows of an incident where
Brazell would not turn on the electricity when it had been turned off
until all men were accounted for, but ,he also stated that that was standatd procedu~e for turning the power back on after it had been off.
29. Jim Garrett, who is now working for Kenellis as a belt man
in Harco, Illinois, was terminated as third-shift belt foreman on
June 27, 1980, after Brazell left. He nev~r heard that Brazell was
terminated for making safety complaints. He thinks Brazell is safetyconscious and would rate him as a 10 on a scale of 1 to 10. He also
knows that the sections were reduced from 10 to 8 active sections with
2 standby units. Garrett says that Island Creek brought in Stan Belmer,
Bill Wood, Jack Milner, and Don Beverly. He says that these men were
working as UMWA employees who were given supervisory positions. Jennings,
in his testimony, corroborated Garrett's statements to the effect that
no new supervisory personnel had been hired and that some of those who
had been put in supervisory positions had been given those positions
on a temporary, or acting basis, because either some section foreman
was ill or there was a need for a replacement on a temporary basis.
They were all qualified people to hold the positions that they were
asked to hold on a temporary basis.

1781

30. Dwight Witherspoon testified on Brazell's behalf. He was
laid off on October 27, 1977, and reinstated and paid back wages after
he filed an ~ction against Island Creek in a state court. He was laid
off twice ag~in, but the final layoff was on July 10, 1978, after two
legally imposed reemployments and occurrence of no actual working
period between the first layoff on October 27, 1977, and the present
time. He thinks that Brazell is safety-conscious and would rate Brazell
as a 10 on a scale of 1 to 10 insofar as his ability as a safe and
knowledgeable supervisor is concerned. He thinks Brazell was discharged because of Brazell's stand on safety, but his appraisal of
Brazell is based on events which occurred in 1977, or about 3 years
before Brazell was laid off. Hitherspoon said that some section foremen paid men to run coal, but that involved the top-tonnage unit. If
another section foreman, who was not in charge.of the top-tonnage unit
tried. to give a bonus, he didn't succeed. Witherspoon discussed his
having to install as many as 800 roof bolts in a crosscut after a toptonnage shift had worked solely to achieve high production and had
skipped placement of roof bolts. Witherspoon thought that the aforesaid
events had something to do with Brazell's termination, but he conceded
it all occurred about 3 years prior to Brazell's termination. Witherspoon also conceded that Brazell had testified on his behalf in his
suit against Island Creek. Jennings testified that it was a fact that
sometimes a shift will, in its eagerness to produce coal, fail to put
in the proper number of roof bolts, and that nearly all section foremen, from time to time, find themselves slowed down on their shift
because they have to do work which the previous shift should have done.
Jennings tries to see that that type of thing does not occur.
31. Jennings testified that when he was required to reduce the
number of personnel at the Hamilton Mine, the number of union workers,
or hourly workers, was reduced from 604 to 548, and that the number of
managerial employees was reduced from 96 to 83. He testified that some
of the people laid off were his personal friends and that it was a difficult decision for him to determine which individuals should be laid
off on Hay 30, 1980, when Brazell was laid off. He readily agreed that
the selection of the personnel to be laid off was based on what was good
for the overall operation of the mine, and that the people who were considered the least productive necessarily were among those who were laid
off. Mr. Whitledge, in his closing argument, stressed the fact that a
managerial employee has no contract with management as do the miners,
and therefore have no way to insist that they be rehired if a prospective
opening is filled at a future time after their discharge.
I believe that those findings of fact cover the essential facts
that have been introduced in this proceeding. The question, of course,
which is raised by the filing of a complaint under section 105(c)(3) of
the Act is whether a violation of section 105(c)(l) occurred so as to
entitle the complainant to the relief which he seeks under section 105(c)(3)
of the Act. Section 105(c)(l) of the Act provides 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

1782

statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under or
related to this Act, including a complaint notifying the operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or safety
or health violation in a coal or other mine, or because such
miner, representative of miners or applicant for employment
is the subject of medical evaluations and potential transfer
under a standard published pursuant to section 101 or because
such miner, representative of miners or applicant for employment
has instituted or caused to be instituted any 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.
In his closing argument, Mr. Nall, on behalf of complainant, stressed
the fact that it is not always possible to prove by direct evidence that
a violation of section 105(c)(l) has occurred. He correctly states
that in some instances a violation of section 105(c)(l) can be proved
only by inferences and by the fact that the preponderance of the evidence shows that a violation of the Act did occur. Mr. Nall stressed in
his argument three different situations or factors that he thinks are
particularly persuasive in showing that Island Creek violated section
105(c)(l). The first of his factors was that Island Creek had created
a job of slope foreman for complainant to hold and thereby put complainant in a sort of standby position so that when a good excuse came along
for laying complainant off, he could readily be cited as a nonessential
employee because the job which had been created for him was not an
essential job.
That is probably the best argument in this case that can be made
for proving that a violation of section 105(c)(l) occurred. But it had
to do more with the company's motive than with whether Brazell, or complainant, was discharged because of his reports of safety matters to the
company. There is no doubt that complainant was put in a position from
which he could be discharged without creating a problem for the company,
but I think that Jennings satisfactorily explained that he was dissatisfied with complainant's performance as a section foreman, and that about
1977 or 1978, when complainant was transferred to the position of slope
foreman, he could have made a decision to discharge complainant at that
time, but instead created the position of slope foreman for him.
Jennings indicated that there had been some problems with the motors
installed at the slope belt and that the company was rebuilding and upgrading the equipment so as to eliminate those problems. At that time
having someone as a slope foreman was more important than it becruae later,
after the motors had been upgraded and other work had been done on the
slope belt to eliminate the need for having· people to shovel coal off of
the belt so that it could be started, and then having to shovel coal back
on after the belt was started.

1783

The next point that Hr. Nall made in his final argument was that
complainant had irritated Island Creek by the fact that a problem had
arisen with the man named Heady, who apparently was having a drug problem.
I!m not persuaded that that argument is very effective because
complainant did not discuss Heady with management and Jennings denied
that anyone had ever mentioned to him the fact that Heady had been
trying to run over Grassiano, one of the company officials, with a
shuttle car. Since there's no indication that management was aware
of any problems_with Heady, who was the son of one of management's
officials, I cannot conclude that Heady's having worked under complainant's supervision, would have been any reason for Island Creek to have
chosen complainant as a person to be discharged.
The third item that Hr. Nall stressed in his closing argument was
that complainant had reported to management that Dan Brown, who was
a union fire boss, was failing to make his preshift examinations properly. Mr. Nall stressed the fact that since Brown was also the chairman
of the safety committee, that he had a lot of power at the mine.
I
would agree that Brown had some influence in his position, but no one
has refuted Jennings' claim that the alleged failure of Brown to perform his duties as fire boss effectively was the subject of a meeting
at which man~gement insisted that Brown satisfactorily carry out his
job as fire boss if he wanted to continue doing that work.
Mr. Nall also stresses the fact that complainant demonstrated his
abilities when he was called in to supervise 19 men at the slope belt
at the beginning of the problems which brought about complainant's
transfer from a section foreman to foreman over the slope belt.
I cannot
see that it would be very difficult to supervise 19 men along a stretch
of one belt which is 2,300 feet long, as compared to maintaining supervision over a crew of 10 or 11 men on an active working section where
supplies have to be moved smoothly, and the men have to be rotated from
shotfiring to loading out coal, securing the roof, artd installation of
ventilation -- all in a smooth and satisfactory way so as to produce
coal on a continuous basis.
Mr. Nall also stressed the fact that complainant stood his ground
in dealing with management and that such practices undoubtedly irritated
management and caused management to put complainant in a position where
he would be vulnerable when it became convenient to lay off some people.
There occurred at least two or three incidents which failed to
show that complainant stood his ground for safety against management.
For example, when complainant brought the splice, from which the ground
had been severed, outside the mine with the intention, apparently, of
showing it to both of his supervisors, and to i1SHA, if necessary, to
get action taken on the matter, Jennings testified, Jennings being the
superintendent of the mine, that after he had explained to complainant
that it was improper for him to have left his section without supervision while he came out with the splice, Jennings testified, without
being contradicted by any rebuttal evidence, that complainant apologized
for his having acted hastily and that they shook hands and the matter
was smoothed over at that time.
-

1784

On another occasion, complainant spoke of having forced Pyro
Williams to leave some sex books on the surface. Then complainant
noted that Hilliams was buying a trailer from one of the high officials in the company, which of course is denied, but assuming that
it was true, complainant stated that he would not have made an issue
of it in the first place if he had known that Williams had connections
with management.
The other incident which indicates to me that complainant was not
willing to stand his ground against management was in connection with
the fact that complainant claims to have discovered the person who
was cutting grounds out of cables. He said that one of the reasons
he did not report that person to management was that he knew that that
person's father-in-law was a management official and that he didn't
see any need in tangling with someone with that much influence.
The aforesaid occurrences lead me to believe that complainant was
-an average employee who would have liked to have gotten along with
management and would have preferred to remain employed by working
smoothly with management if he could have done so.
I think the fact
that complainant was included with the group of men who were laid off
on May 30, 1980, can be explained on the basis of Jennings' testimony
to the effect that despite the fact that Brazell was faithful in reporting to work and trying to do a good job, he simply was not the kind of
section foreman that management preferred, insofar as achieving production goals is concerned.
As Mr. 'Whitledge. stressed in his closing argument, it is a fact
that coal mines are run for profit.
If thef cease to be profitable,
they have to close down.
That prof it motive is something that the
company is entitled to consider and I cannot find on the basis of the
many incidents that have been given in complainant's testimony, that
those incidents .show that there was !?uch a strong bias against complainant for his alleged safety-related activities, that he would have
been picked out as a person to eliminate simply because he had complained
about certain procedures in the mine.
One of the aspects of Jennings' testimony which is very persuasive
for me in deciding this case is that Jennings stat~d that complainant
did not come to him with any more problems than any of the other foremen
in the mine.
Jennings also stated that complainant had a problem of
staying on a given subject long enough for Jennings to be advised in
a short period of time of an exact problem and of the exact personnel
involved, and what needed to be done. He said that complainant had a
problem with rambling in his discussions and that at times it became
frustrating to try to determine just what complainant's problems were.
If complainant's direct testimony in this case is examined by anyone
interested in reviewing the record, it will be readily perceived that
it is very difficult for complainant to keep on any one subject, without
engaging in many inferential discussions about other matters. For that
reason, it was very difficult to follow any given point in his testimony
on direct examination without being led astray into other matters which

1785

were not the ones his counsel was trying to stress. r believe that that
characteristic, which was very noticeable at this hearing, supports
Jennings' statement that complainant was unable to communicate readily
with him so as to apprise him of matters that complainant might have
wanted to report, but seemed to get sidetracked in the process.
In Secretary of Labor, on behalf of Thomas Robinette v. United Castle
Coal Company, 3 FMSHRC 803 (1981), the Commission stated that i t was
always the burden of the complainant in a discrimination case to show
that respondent had violated section 105(c)(l) so as to entitle complainant to recover. The Commission stated that if complainant succeeded
in establishing a prima facie case showing that he had been discharged
because he was engaged in a protected activity, that the company would
then have the responsibility of showing that even if one of the reasons
for the complainant's discharge did relate to a protected activity, if
the company's case succeeded in showing that complainant would have been
discharged in any event for other matters in addition to the protected
activity, that respondent should prevail in that situation. In this
case, the complainant did not even prevail in establishing a prima facie
case in his direct testimony. Assuming that complainant had proven in
his direct case that he had been engaged in a protected activity, it
appears to me that respondent successfully showed in its case that complainant would have been laid off in any event on May 30, 1980, for
nondiscriminatory reasons.
This case is different from nearly all of the other cases that have
had come before me under section 105(c) in that the complainant went
into great detail and cited a large number o~ incidents which had
occurred over 4 or 5 years /prior_ to his termination. In none of those
situations was it ever made perfectly clear that there had been a
specific complaint about safety made to management in such a way that
the complaint would have been an irritant to management in the sense
that management thereafter would have said, "We're going to get rid of
this fellow as soon as it's convenient."
Complainant described in his testimony several instances which would
have been reasons for the company to have rewarded him, or complimented
him, rather than for the company to have been upset about it. For example,
assuming that the company didn't already know about the roof fall that
was blocking air from getting into the mine, and which was allowing excess
air to enter the belt slope, if complainant had been the first person
to find that out, and had made it possible to reroute the air so as to
permit less float coal dust, etc., to enter the slope entry, that would
have been a reason for management to thank him rather than to have criticized him.
The fact that complainant may have had something to do with calling
management's attention to Dan Brown, who was not making proper preshift
examinations, that also would have been something they would have appreciated. If complainant could have actually identified the person who
was making bomb threats so that that person could be arrested, or at
least could have been investigated so as to eliminate him from the work
force if necessary, there again, management would have had a reason to
appreciate it.

1786

As to the person who was using drugs, Michael Albright, not only
did management appreciate Brazell's calling that to management's attention, but Albright himself was pleased with the way that turned out,
when he succeeded in overcoming his problem.
Another item was the fact that management wanted some people from
the South Mine to work on the slope at the North Mine. When management
found out that those people were't coming, they sent a supervisor along
with them to make sure they did come. So, if complainant had reported
that to management, it would have been something that management would
have appreciated.
Consequently, this case presented me with so many incidents which
complainant said may have contributed to his termination which were not
things that a company would normally resent, that it's impossible for
me to add these inferences up, as suggested by Mr. Nall, in such a
fashion that I could find that the preponderance of the evidence supports
a finding that a violation of section 105(c)(l) occurred.
WHEREFORE, it is ordered:
The complaint of discharge, discrimination, or interference filed on
December 5, 1980, in Docket No. KENT 81-46-D is denied for failure to prove
that a violation of section 105(c)(l) of the Federal Mine Safety and Health
Act of 1977 occurred.

~·

c. ct7;/_/,,_~

Richard C. Steffey ~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Jerry W. Nall, Esq., Attorney for Lloyd Brazell, Suite 12-16 Odd
Fellows Building, Third and St. Ann Streets, Owensboro, KY 42301
(Certified Mail)
William R. Whitledge, Esq., Attorney for Island Creek Coal Company,
Logan, Morton & Whitledge, 49 Union Street, Madisonville, KY 42431
(Certified Mail)
MSHA, Special Investigations, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Assistant Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203

1787

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

Phone (703) 756-6236

MONTEREY COAL COMPANY,
Contestant

JIJll 13 1981

Contest of Citation
Docket No. LAKE 80-413-R
Citation No. 775259; 9/11/80

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

Monterey No. 'l Mine

Civil Penalty Proceeding
Docket No. LAKE 81-59
A/O No. 11-00726-03060

v.
No. 1 Mine
MONTEREY COAL COMPANY,
Respondent
DECISION
Appearances:

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

Before:

Judge Charles C. Moore, Jr.

In August of 1979, MSHA approved a modification plan for Monterey's
No. 3 Dam. This approval was in accordance with 30 C.F.R. §77.216 which
requires that certain water sediment or slurry impoundments be constructed
in accordance with approved plans.
On June 13, 1980, MSHA advised Monterey that it made a mistake in
approving the plan and that accordingly the approval was withdrawn (see
Joint Exhibit No. 1). Thereafter MSHA issued a citation because Monterey
was not operating the dam and pond under an approved plan. The question
before me is whether MSHA was justified in withdrawing its approval
because if not, its subsequent action of issuing a citation was improper.
I hold that MSHA was totally unjustified in withdrawing its approval and
that accordingly, the subsequent citation was invalid. I further hold
that this was not even a close question. The answer was clear from the
very beginning and I cannot see how MSHA's engineers, its district
manager and his assistant, and Dr. Wu refused to understand.

1788

While the witnesses referred to safety often in their testimony,
safety is only indirectly involved in this case. MSHA did not issue its
citation and withdraw its approval because the dam in question was
unsafe. It withdrew its approval because the dam and pond were not
being operated in accordance with the Engineering and Design Manual, Coal
Refuse Disposal Facilities prepared by E. D'Appolonia Consulting Engineers,
Inc., and published by MSHA's predecessor, the Interior Department's
Min{ng Enforcement and Safety Administration. The publication contains
Table 6.6 (see p~ge 6.62 of Joint Exhibit No. 6) which establishes the
criteria for determining the size of a design storm that the impoundment
must be able to accommodate. Table 6.6 classifies dams as small, intermediate and large and classifies their hazard potential as low, moderate
and high. When MSHA approved Monterey's plans, it was agreed that the
impoundment size was intermediate and that the hazard potential was low.
This resulted in the design storm of 1 percent probability or OPB. Such
a storm would occur once in a hundred years. Page 6.63 of Joint Exhibit
No. 6 makes it absolutely clear that the size classifications of Table
6.6 are based on the depth of the water "above any settled material."
That is the item which MSHA chooses not to understand. The MSHA witnesses
argued that the size criteria of Table 6.6 should be based on the depth
of the entire impoundment, including the settled materials.
Section 77.216 of Title 30, Code of Federal Regulations, provides
that design, constr~ction and maintenance plans are required if an
impounding structure can:
(1) Impound water, sediment, or slurry to an elevation
of five feet or more above the upstream toe of the structure
and can have a storage volume of 20 acre-feet or more; or
(2) Impound water, sediment, or slurry to an elevation
of 20 feet or more above the upstream toe of the structure,
or
(3) As determined by the District Manager, present a
hazard to coal miners.
From this requirement that impounding structures having a total water
slurry or sediment depth of 20 feet or more must be in accordance with a
design plan, MSHA jumps to the conclusion that whenever there is a
reference to the size of an impounding structure, it must always mean
the amount or depth of the water slurry and sediment. In the 268 pages
of deposition testimony, there was no scientific or engineering reason
given for including or excluding the sediment when determining the size
of the impoundment. There was no testimony as to the pressures on the
inner surface of the dam below the top of the sediment level comparing
that pressure to the pressure which would have been generated at that
level if the entire impoundment had consisted of water. But the fact
remains that Table 6.6,which MSHA relies on and which it charged Monterey
with violating, counts only the water above the settled material in
determining the size of a pond for design storm purposes.

1'189

If MSHA thinks a dam is dangerous it can close it with an imminent
danger order or it can set up its own standards concerning design storms
and charge a mine operator with a violation of those standards. It
cannot, however, successfully charge an operator with a violation of the
handbook's Table 6.6 and at the same time ignore the definitions of the
terms used in that Table. The formula for deriving the circumference of
a circle is only valid if "r" equals the radius, and "pi" equals approximately 3.1416. A change in the meaning of any of the terms destroys the
effectiveness of the formula and the same is true of Table 6.6. MSHA's
withdrawal of its approval was improper and the citation is VACATED.

~eP?l~a.
Charles C. Moore, Jr.
Administrative Law Judge

Distribution:
Timothy M. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring,
1100 Connecticut Avenue, NW., Washington, D.C. 20036 (Certified Mail)
Edward H. Fitch, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Harrison Combs, Esq., United Mine Workers of America, 900-15th
Street, NW., Washington, D.C. 20005 (Certified Mail)

1790

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),
ON BEHALF OF CHARLES BOOTHE,
Complainants

JUL. 1 3 1981

Complaint of Discrimination
Docket No. WEVA 81-174-D

v.

CEDAR COAL COMPANY,
Respondent
DECISION AND ORDER APPROVING SETTLEMENT
Statement of the Case
This is a discrimination proceeding filed by the complainants
against the respondent pursuant to section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977, for an alleged act of discrimination
which purportedly occurred sometime between November 1, 1978 and June 30, 1980.
The matter was originally scheduled for hearing on May 5, 1981, in
Charleston, West Virginia, but the hearing was continued at the request
of the parties so that a proposed settlement could be submitted for my
consideration.
On June 17, 1981, the Secretary filed a motion to withdraw the
complaint of discrimination together with the proposed settlement. agreement,
the terms of which are as follows:
1.

Complainant will withdraw his complaint, HOPE
CD 80-57, filed under § 105(c) of the Federal Mine
Safety and Health Act of 1977, with prejudice to a
complaint related to the matters contained therein
being refiled.

2.

Complainant authorizes the Secretary of Labor to
seek a dismissal with prejudice of the complaint
pending as Docket WEVA 81-174 before the Federal Mine
Safety and Health Review Commission. That dismissal
with prejudice will be reflected on the basis of this
voluntary settlement of all matters among the parties.

3.

Upon notification that the complaint in Docket No.
WEVA 81-174 has been dismissed with prejudice, Cedar
will post for a total period of three (3) consecutive

1791

weeks the Notice, which has been prepared and agreed
to by Boothe, counsel for the Department of Labor,
Cedar and counsel for Cedar. Provided, however, that
such posting period shall begin on the day of
effect of a new collective bargaining agreement applicable
to Cedar's operations, on Cedar's receiving notice of
the dismissal of Docket No. WEVA 81-174, with prejudice,
whichever date is later.
Discussion
The aforementioned notice was filed by the Solicitor on July 6, 1981.
This notice indicates that complainant was awarded a job bid which had
been the subject of a grievance matter filed jointly with this discrimination complaint. As complainant now has received the job, he has chosen
to withdraw his complaint.
The notice also states that there has been and will be no judicial
determination as to whether or not there has been any discrimination
by Cedar Coal Company. It also indicates the company policy of
not condoning any discriminatory practices by its management or supervisory
personnel.
Conclusion
After full consideration of the proposed settlement and the attached
notice, I conclude that the settlement disposition of this dispute
is a reasonable and fair resolution of the matter and that its approval
would be in the public interest. It seems clear that both Mr. Boothe
and the respondent are satisfied with the settlement disposition of
this case, and the Secretary is in accord with the agreement.
ORDER
In view of the foregoing, the proposed settlement disposition of
this matter is APPROVED, and the motion to withdraw the complaint of
discrimination is GRANTED.

H'~IJ.~ ..

~~ig!'A. Koutras

Administrative Law Judge
Distribution:
David Street, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Alvin J. McKenna, Esq., Alexander, Ebinger, Fisher, McAlister & Lawrence,
17 South High Street, Columbus, OH 43214 (Certified Mail)

1792

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

22041

JUL 14 1981
YOUNGSTOWN MINES CORPORATION,
Contestant
v.

Notice of Contest
Docket No. WEVA 81-303-R
Order No. 917568
February 24, 1981

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

Dehue Mine

LOCAL UNION 5869,
UNITED MINE WORKERS OF AMERICA,
Intervenor
DECISION
Appearances:

Roger S. Matthews, Esq., Youngstown Mines Corporation,
Pittsburgh, Pennsylvania, for the Contestant;
James P. Kilcoyne, Jr., Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for the Respondent;
David Vidovich, President, Local Union 5869, District 17,
United Mine Workers of America, Dehue, West Virginia, for
the Intervenor.

Before:

Judge Cook

I.

Procedural Background

Youngstown Mines Corporation (Youngstown) timely filed a notice of contest in the above-captioned proceeding pursuant to section 105(d) ];/ of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp.
III, 1979) (1977 Mine Act), to contest Withdrawal Order No. 917568. The
withdrawal order was issued at Youngstown's Dehue Mine on February 24, 1981,
1/

Section 105(d) of the 1977 Mine Act provides as follows:
"If, within 30 days of receipt thereof, an operator of a coal or other
mine notifies the Secretary that he intends to contest the issuance or modification of an order issued under section 104, or citation or a notification
of proposed assessment of a penalty issued under subsection (a) or (b) of
this section, or the reasonableness of the length of abatement time fixed in

1793

pursuant to section 104(d)(2) !:._/ of the 1977 Mine Act.
states, in part, as follows:

The notice of contest

fn. 1 (continued)
a citation or modification thereof issued under section 104, or any miner or
representative of miners notifies the Secretary of an intention to contest
the issuance, modification, or termination of any order issued under section
104, or the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary shall
immediately advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing (in accordance with section 554 of
title 5, United States Code, but without regard to subsection (a)(3) of such
section), and thereafter shall issue an order, based on findings of fact,
affirming, modifying, or vacating the Secretary's citation, order or proposed
penalty, or directing other appropriate relief. Such order shall become
final 30 days after its issuance. The rules of procedure prescribed by the
Commission shall provide affected miners or representatives of affected
miners an opportunity to participate as parties to hearings under this section. The Commission shall take whatever action is necessary to expedite
proceedings for hearing appeals of orders issued under section 104."
2/ Section 104(d) of the 1977 Mine Act provides as follows:
"(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.
If, during the same inspection or any subsequent inspection of such mine
within 90 days after the issuance of such citation, an authorized representative of the Secretary finds another violation of any mandatory health
or safety standard and finds such violation to be also caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the area affected by
such violation, except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that such violation
has been abated.
"(2) If a withdrawal order with respect to any area in a coal or
other mine has been issued pursuant to paragraph (1), a withdrawal order
shall promptly be issued by an authorized representative of the Secretary
who finds upon any subsequent inspection the existence in such mine of violations similar to those that resulted in the issuance of the withdrawal
order under paragraph (1) until such time as an inspection of such mine
discloses no similar violations. Following an inspection of such mine which
discloses no similar violations, the provisions of paragraph (1) shall again
be applicable to that mine."

1794

The factual background and Youngstown's position with
respect to the aforesaid Order is as follows:
1. On February 24, 1981, Federal Mine Inspector Dana
Napier issued Order No. 917568 (hereinafter "Order") pursuant to the provisions of Section 104(d)(2) of the Act,
for violations of the Federal Mine Safety and Health Act
of 1977 based on a report contained in the third shift
mine foreman's report book dated February 2, 1981. A
copy of the Order is attached hereto and identified as
"Exhibit "A".
2. Under the heading and caption "Condition or Practice" the Order alleges that:
"The report of the 3rd shift mine foreman's
report book dated 2/2/1981 and signed by Hiram
Marcum, Jr. stating that the fan (No. 2) was off
at.4:30 A.M. and in his statement in the record
book indicate that men were started withdrawing
at 5:06 A.M. on 2/2/81, which is not in compliance with 75.321."
3. A copy of.the report of the third shift mine foreman's report book dated February 2, 1981 and signed by Hiram
Marcum Jr. is attached hereto and identified as Exhibit "B".
Under the [heading] and caption "Violation and Other Hazardous
Conditions Observed and Reported" it states:
"At 4:30 A.M. fireboss called and said he
had no air on 2-South. Went to air lock doors
inby 1st Rt. I then realized that the fan was
off. I informed the dispatcher to get all sections on phone and tell them to come out side
pulling disconnects and all power coming out.
Started withdrawing men at 5:06 A.M. All men
cleared mines at 5 :40 A.M."
4. The Order further stated that that [sic] the alleged
violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a coal
mine safety and health hazard and that the alleged violation
was caused by the unwarrantable failure of the operator to
comply with a mandatory standard.
5. Youngstown avers that Order No. 917568 is invalid
and illegal and should be vacated for the following reasons:
(a) The Order failed to cite a condition or practice
which constitutes a violation of a mandatory health or
safety standard;

1795

(b) In issuing the Order, the Inspector acted arbitrarily, unreasonably, capriciously and in total disregard
of the prevailing standards for issuance of Section
104(d)(2) Orders;
(c) The Order is improper because the violation was
not "caused by an unwarrantable failure" of Youngstown
to comply with the cited standard; and
(d) The Order is improper since conditions related to
the alleged violation were not of "such nature as could
significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard."

*

*

*

*

*

*

*

WHEREFORE, Youngstown respectfully requests that the
Order which is challenged herein be vacated and set aside
and that all actions taken, or to be taken, with respect
thereto or in consequence thereof, be declared null and
void and of no effect.
On March 26, 1981, .the Secretary of Labor (Secretary) filed an answer
alleging, in part, that Withdrawal Order No. 917568 was properly issued pursuant to section 104(d) of the 1977 Mine Act; and that there was a violation
of a mandatory safety standard which was caused by Youngstown's unwarrantable
failure to comply with such mandatory safety standard. Additionally, the
Secretary denied all other allegations in the 'notice of contest. Also, on
March 26, 1981, Local Union 5869 of the United Mine Workers of America
(Intervenor) filed a notice of intent to intervene.
In addition to filing its notice of contest, YoungstoWn also filed a
motion to expedite the proceedings. As grounds therefore, Youngstown stated
that "the alleged unwarrantable violation * * * is a serious allegation of
impropriety of [Youngstown's] mine foreman, which could cause a serious loss
of his ability to carry out his supervisory.and other duties under the law."
On March 27, 1981, a telephone conference was held with the undersigned
Administrative Law Judge and representatives of the three parties participating. During the conference, counsel for Youngstown agreed to an April 28,
1981, hearing date. Accordingly, on March 30, 1981, a notice of hearing was
issued scheduling the case for hearing on the merits on April 28, 1981, in
Charleston, West Virginia.
On April 1, 1981, the Secretary filed a motion for continuance and opposition to motion for expedited proceedings. The Secretary opposed Youngstown's
motion to expedite the proceedings and moved for a continuance pending the filing of the associated civil penalty proceeding. On April 10, 1981, an order
was issued denying the motion for a continuance. The order recounted the
results of the March 27, 1981, telephone conference. It was noted that the
notice of hearing was issued on March 30, 1981, giving the parties 29 days

1796

notice as to the time, place, nature of the hearing, the legal authority under
which it was to be held, and the matters of fact and law asserted. The Rules
of Procedure of the Federal Mine Safety and Health Review Commission
(Commission) require only that such notice be given to the parties at least
20 days before the date set for hearing. 29 C.F.R. § 2700.53 (1980). The
29 days notice given to the parties was considered adequate to protect the
Secretary's rights.
The hearing was held as scheduled with representatives of the three parties present and participating. Youngstown made a motion to dismiss at the
close of the Secretary's case-in-chief. The motion was taken under advisement to be ruled upon at the time of the writing of the decision. 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,
subsequent events necessitated a revision of the schedule for filing reply
briefs. Under the revised schedule, reply briefs were due on or before
June 8, 1981.
Youngstown, the Secretary and the Intervenor filed posthearing briefs
on May 20, 1981. On May 22, 1981, the Secretary filed amendments to correct
typographical errors in his posthearing brief. Youngstown and the Secretary
filed reply briefs on June 1, 1981. The Intervenor did not file a reply
brief.
II.

Witnesses and Exhibits
A.

Witnesses

The Secretary called as his witnesses Dana Trescott Napier, a Federal
mine inspector; and Naman J. Kitchen, a union safety committeeman at the
Dehue Mine.
Youngstown called as its witnesses Gary Evans, a scoop operator on
February 2, 1981; and Hiram Marcum, Jr., the third shift mine foreman at the
Dehue Mine.
Both the Secretary and Youngstown called Frank Marino, the dispatcher,
as a witness.
The Intervenor did not call any witnesses.
B.

Exhibits

1.

The Secretary introduced the following exhibits in evidence:

M-1 is a copy of a letter dated February 18, 1981, received by
the Mine Safety and Health Administration detailing a Union complaint and
requesting an inspection of the Dehue Mine pursuant to section 103(g) of
the 1977 Mine Act.

1797

M-2 is a copy of the mine examiner's report prepared on
February 2, 1981.
M-3 is a copy of the dispatcher's log prepared on February 2,
1981.
M-4 is a copy of Withdrawal Order No. 917568, February 24, 1981,
30 C.F.R. § 75.321, and a copy of the termination thereof.
M-5 is a copy of a two-page document styled "104(D) Unwarrantable
Failure."
M-6 is a copy of the policy for fan stoppage procedures in effect
at the Dehue Mine on February 2, 1981.
M-7 is a copy of the fan chart for the Dehue Mine's No. 2 fan
covering February 2, 1981.
2.

Youngstown introduced the following exhibit in evidence:
0-1 is a mine map.

3.
III.

The Intervenor did not introduce any exhibits in evidence.

Issues

A. The general question presented is whether Withdrawal Order No. 917568
was validly issued pursuant to section 104(d)(2) of the 1977 Mine Act. The
specific issues presented as to the withdrawal order's validity are as
follows:
1. Whether the Secretary has proved the existence of the underlying section 104(d)(l) citation and withdrawal order.
2. Whether the Secretary has proved the absence of an intervening
"clean" inspection of the entire mine between June 9, 1980, the date of issuance of the underlying section 104(d)(l) withdrawal order, and February 24,
1981, the date of issuance of the subject section 104(d)(2) withdrawal order.
3. Whether the condition or practice cited in Withdrawal Order
No. 917568 sets forth a February 2, 1981, violation of mandatory safety standard 30 C.F.R. § 75.321.
4. If the condition or practice cited in Withdrawal Order No.
917568 sets forth a February 2, 1981, violation of mandatory safety standard
30 C.F.R. § 75.321, then whether such violation was caused by Youngstown's
unwarrantable failure to comply with such mandatory safety standard.
B. The subject withdrawal order contains the additional allegation
that the violation was of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard.

1798

Youngstown sought review of this allegation in its notice of contest, and
the issue was litigated by the parties. Accordingly, the following additional issue is presented in this case: If the condition or practice cited
in Withdrawal Order No. 917568 sets forth a February 2, 1981, violation of
mandatory safety standard 30 C.F.R. § 75.321, then whether such viol·ation
was of such nature as could significantly and substantially contribute to
the cause and effect of a mine safety or health hazard.
IV.

Opinion and Findings of Fact
A.

Stipulations

1. The Dehue Mine was owned and operated by Youngstown Mines Corporation
at the time of the alleged violation (Tr. 10).
2. Youngstown Mines Corporation and its Dehue Hine are subject to the
jurisdiction of the 1977 Mine Act (Tr. 10).
3. The Administrative Law Judge has jurisdiction over this proceeding
pursuant to section 105 of the 1977 Mine Act (Tr. 11).
4. Federal mine inspector Dana T. Napier issued Withdrawal Order No.
917568 and was a duly authorized representative of the Secretary of Labor
(Tr. 11).
5. A true and correct copy of Withdrawal Order No. 917568 was properly
served upon the mine operator in accordance with section 104(a) of the 1977
Min.e Act (Tr. 11).
B.

Standards Governing the Validity of Section 104(d)(2) Withdrawal
Orders

Section 104(d)(l) of the 1977 Mine Act provides for the issuance of both
citations and withdrawal orders. This section of the 1977 Mine Act provides
for the issuance of a citation when an authorized representative of the
Secretary, upon any inspection of a coal or other mine, finds: (1) that
there has been a violation of any mandatory health or safety standard; (2)
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 mine safety or health hazard;
and (3) that such violation was caused by the mine operator's unwarrantable
failure to comply with such mandatory health or safety standard. The section
also provides for the issuance of a withdrawal order if, during the same
inspection or any subsequent inspection of the mine within 90 days after the
issuance of the citation, an authorized representative of the Secretary finds
another violation of any mandatory health or safety standard caused by the
mine operator's unwarrantable failure to comply.
If a withdrawal order has been issued pursuant to section 104(d)(l) with
respect to any area in a mine, then section 104(d)(2) authorizes the issuance

1799

of a withdrawal order by an authorized representative of the Secretary who
finds upon any subsequent inspection the existence in such mine of violations
similar to those that resulted in the issuance of the 104(d)(l) withdrawal
order until such time as an inspection of such mine discloses no similar violations. Following an inspection of the mine which discloses no similar
violations, the provisions of section 104(d)(l) again become applicable to
. that mine.
Section 104(d)(2) of the 1977 Mine Act imposes no requirement of substantive similarity of violations. Accordingly, a 104(d)(2) withdrawal
order is not invalid because the underlying violation, as set forth in the
underlying 104(d)(l) withdrawal order, involves a different mandatory health
or safety standard. See Eastern Associated Coal Corporation, 3 IBMA 331, 346,
351-352, 81 I.D. 567,lBNA MSHC 1179, 1974-1975 CCH OSHD par. 18,706. (1974),
aff'd. on rehearing, 3 IBMA 383, 81 I.D. 627 (1974), overruled in part by
Zeigler Coal Company, 6 IBMA 182, 83 I.D. 232, 1 BNA MSHC 1446, 1976-1977
CCH OSHD par. 20,818 (1976), and Alabama By-Products Corporation, 7 IBMA 85,
83 I.D. 574, 1BNA11SHC 1484,-r976-1977 CCH OSHD par. 21,298 (1976), and
Zeigler Coal Company, 7 IBMA 280, 84 I.D. 127, 1 BNA MSHC 1518, 1977-1978
CCH OSHD par. 21,676 (1977).
Additionally, no consideration need be given to the significant and substantial criterion of the violation giving rise to the 104(d)(2) withdrawal
order in order to determine its validity. To be validly issued, a 104(d)(2)
withdrawal order must be based upon a violation of a mandatory health or
safety standard caused by the mine operator's unwarrantable failure to comply with such mandatory health or safety standard. Zeigler Coal Company,
6 IBMA 182, 188-190, 83 I.D. 232, 1 BNA MSHC 1446, 1976-1977 CCH OSHD par.
20,818 (1976). A violation of a mandatory health or safety 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 a lack of due
diligence, or because of indifference or lack of reasonable care." Zeigler
Coal Company, 7 IBMA 280, 295-296, 84 I.D. 127, 1 BNA MSHC 1518, 1977-1978
CCH OSHD par. 21,676 (1977). A section 104(d)(2) withdrawal order "can be
sustained, assuming the existence of procedural prerequisites and other
necessary elements, whenever the operator actually knows or should know of
a violation which it .fails to abate. " Pocahontas Fuel Company, 8 IBMA 136,
145, 84 I.D. 488, 1 BNA MSHC 1580, 1977-1978 CCH OSHD par. 22,218 (1977),
aff'd. sub nom. Pocahontas Fuel Company v. Andrus, 590 F.2d 95 (4th Cir.
1979).
.
C.

Youngstown's Motion to Vacate the Withdrawal Order at the Close
of the Secretary's Case-in-Chief

Youngstown moved to vacate section 104(d)(2) Withdrawal Order No.
917568 at the close of the Secretary's case-in-chief. 1_/ In support of
3/ Counsel for Youngstown styled the motion as a motion to dismiss, and
requested that the withdrawal order be vacated. This motion will be

1800

its motion, Youngstown argued: (1) that the issuing inspector applied an
erroneous standard in issuing the withdrawal order by determining that the
violation was of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard, where
the significant and substantial criterion is not a requirement for the valid
issuance of a section 104(d)(2) withdrawal order; (2) that the Secretary
failed to prove that the underlying section 104(d)(l) withdrawai order was
valid; (3) that the Secretary failed to prove the existence of the underlying
section 104(d)(l) citation and withdrawal order; and (4) that the Secretary·
failed to prove that a clean inspection of the entire mine had not occurred
in the period between the issuance of the underlying section 104(d)(l) withdrawal order and the issuance of Withdrawal Order No. 917568. The motion
was taken under advisement to be ruled upon at the time of the writing of
the decision based on the record as it existed when the motion was made (Tr.
176-181).
Only the third and fourth grounds identified above have been reasserted
by Youngstown in its posthearing brief. However, all four grounds will be
addressed herein.
The first two grounds advanced by Youngstown in support of its motion
to vacate the withdrawal order can be quickly disposed of. First, the law
simply states that no consideration need be g1ven to the significant and substantial criterion of the violation giving rise to the section 104(d)(2)
withdrawal order in order to determine its validity. Zeigler Coal Company,
6 IBMA 182, 188-190, 83 I.D. 232, 1 BNA MSHC 1446, 1976-1977 CCH OSHD par.
20,818 (1976); cf. United Mine Workers of America v. Kleppe, 532 F.2d 1403
(D.C. Cir. 1976~ The law does not state that the inspector's inclusion of
such findings on the face of a section 104(d)(2) withdrawal order renders it
invalid. Second, the validity of the underlying section 104(d)(l) withdrawal
order is not an issue in this proceeding. It is well established that the
validity of the underlying section 104(d)(l) withdrawal order is not in issue
in a proceeding for review of a section 104(d)(2) withdrawal order unless a
notice of contest was filed within 30 days of the issuance of such 104(d)(l)
withdrawal order to contest its validity. Zeigler Coal Company, 6 IBMA 182,
83 I.D. 232, 1 BNA MSHC 1446, 1976-1977 CCH OSHD par. 20,818 (1976); Zeigler
Coal Company, 5 IBMA 346, 82 I.D. 632, 1975-1976 CCH OSHD par. 20,232 (1975).
The third argument advanced by Youngstown in support of its motion to
vacate the withdrawal order asserts that the Secretary failed to prove the
existence of the underlying section 104(d)(l) citation and withdrawal order
(see Tr. 176; Youngstown's Posthearing Brief, pp. 8-9). In response, the
Secretary maintains that sufficient evidence was adduced to prove the
footnote 3 (continued
referred to in this decision as a motion to vacate the withdrawal order at
the close of the Secretary's case-in-chief because this proceeding was initiated by Youngstown's filing of a notice of contest, and because of the
nature of the relief requested in the motion.

1801

existence of the underlying section 104(c)(l) withdrawal order (Secretary's
Posthearing Brief, pp. 7-8). The Secretary also maintains, for various
reasons, that he was not required to prove the existence of the underlying
section 104(c)(l) citation (Secretary's Reply Brief, PP• 1-3).
The matter of the existence of the underlying section 104(d)(l) withdrawal order can be easily disposed of. Section 104(d) (2) Withdrawal Order
No. 917568 contains an entry identifying the initial action as Order No.
910780, issued on June 9, 1980. The Secretary did not introduce in evidence
either the original or a copy of Order No. 910780. However, Inspector Napier
testified that he and others searched the files in the Logan, West Virginia,
office of the Department of Labor's Mine Safety and Health Administration
(MSHA). The search revealed that Order No. 910780, dated June 9, 1980, was
issued pursuant to section 104(d)(l) of the 1977 Mine Act (Tr. 129-130).
Accordingly, it is found that the Secretary has proved the existence of the
underlying section 104(d)(l) withdrawal order.
The Secretary maintains that he was not required to prove the existence
of the underlying section 104(c)(l) citation because, in the Secretary's
view, Youngstown did not raise the issue either in its notice of contest or
in its opening statement. The Secretary also maintains that the existence of
the section 104(d)(l) citation can be logically inferred from the unrebutted
evidence establishing the existence of the underlying section 104(d)(l) withdrawal order. Finally, "the Secretary maintains that by challenging the
validity of the section 104(d)(l) withdrawal order in its motion to vacate,
Youngstown admitted such order's existence, and that, in so doing, it is .
without basis to challenge the existence of the section 104(d)(l) citation
upon which the section 104(d)(l) withdrawal order is based. For the reasons
set forth below, I conclude that the Secretary was required to prove the
existence of the underlying section 104(d)(l) citation. I further conclude
that the Secretary failed to prove the existence of such citation.
A mine operator's section 105(d) application for review or notice of
contest must contain, " amongst other things, a short and plain statement of
the mine operator's position on each issue of law and fact that the mine
operator contends is pertinent. 29 C.F.R. §§ 2700.20(c) and 2700.2l(b)
(1980). The Secretary has the obligation of presenting a prima facie case,
with respect to each issue raised by the mine operator, that the withdrawal
order or citation in question was validly issued. Kentland-Elkhorn Coal
Corporation, 4 IBMA 166, 82 I.D. 234, 1 BNA MSHC 1267, 1974-1975 CCH OSHD
par. 19,633 (1975); Zeigler Coal Company, 4 IBMA 88, 82 I.D. 111, 1 BNA
MSHC 1260, 1974-1975 CCR OSHD par. 19,478 (1975). In~he case of a section
104(d)(2) withdrawal order, the issues which can be raised by the mine operator include: (1) the existence of the underlying section 104(d)(l) citation and withdrawal order, (2) the fact of violation, (3) unwarrantable
failure, (4) the occurrence of an intervening "clean" inspection of the
entire mine, and (5) the other requirements for issuance of a section
104(d)(2) withdrawal order. C F & I Steel Corporation, 2 FMSHRC 3459,
2 BNA MSHC 1057, 1980 CCR OSHD par. 24,994 (1980); Kentland-Elkhorn Coal
Corporation, 4 IBMA 166, 82 I.D. 234, 1 BNA MSHC 1267, 1974-1975 CCR OSHD
par. 19,633 (1975).

1802

Youngstown's notice of contest alleged that Withdrawal Order No. 917568
was invalid because, amongst other reasons, it was issued "in total disregard
of the prevailing standards for issuance of Section 104(d)(2) Orders." This
allegation was sufficient under 29 C.F.R. § 2700.20(c) (1980), to raise all
issues pertaining to the validity of section 104(d)(2) Withdrawal Order No.
917568, including the issue as to the existence of the underlying section
104(d)(l) citation. The regulation, which sets forth the requirements for
the contents of a notice of contest, "is not a license for academic quibbling
over words, [but it plainly requires] a degree of specificity in pleading ,
sufficient to apprise the trier of fact and other parties of the grounds of
invalidity in issue." Zeigler Coal Company, 3 IBMA 448, 457, 81 I.D. 729,
1 BNA MSHC 1213, 1974-1975 CCR OSHD par. 19,131 (1974). The mine operator's
allegation was sufficiently specific to provide notice to all parties that
all issues pertaining to the validity of the withdrawal order had been
raised. One of the prevailing standards for the issuance of a valid section 104(d)(2) withdrawal order is the existence of an underlying section
104(d)(l) citation.
The fact that Youngstown had raised all issues concerning the validity
of Withdrawal Order No. 917568 was underscored at the beginning of the hearing when counsel for Youngstown outlined the issues presented. At one point
in response to a question from the undersigned Administrative Law Judge,
counsel for Youngstown stated that he expected "the government to put on a
prima facie case as to all aspects of a 104(d) (2) order" (Tr. 7).
In view of the foregoing, I conclude that Youngstown raised all issues,
including the issue as to the existence of the underlying section 104(d)(l)
citation, both in its notice of contest and in its opening statement. The
Secretary's position that the issue was not raised is not well founded.
The Secretary's position that the existence of the underlying section
104(d)(l) citation can be logically inferred from the unrebutted evidence
establishing the existence of the underlying section 104(d)(l) withdrawal
order is not well founded. A finding that the existence of the underlying
section 104(d)(l) citation has been proved must be based on reliable, probative, and substantial evidence in order to comply with the requirements of
the Administrative Procedure Act. See, 5 U.S.C. § 556(d). The evidence
presented is not sufficient to make a finding as to the existence of such
citation which complies with this requirement.
The testimony of Inspector Napier was the only reliable, probative, and
substantial evidence establishing the existence of the underlying section
104(d)(l) withdrawal order. A copy of that withdrawal order, which should
have contained an entry identifying the underlying section 104(d)(l) citation, was not placed in evidence. Additionally, neither the original nor
a copy of the citation was placed in evidence, nor did any of the witnesses
testify as to its existence. Furthermore, it cannot be concluded that the
existence of the underlying section 104(d)(l) citation can be inferred from
the entries contained in Exhibit M-5. The entries are not self-explanatory,
and none of the witnesses identified any of the entries as denoting the
underlying section 104(d)(l) citation.

1803

The Secretary's final argument on this issue asserts that Youngstown is
precluded from challenging the existence of the underlying section 104(d)(l)
citation. The Secretary's reasoning is set forth as follows:
Youngstown challenged the validity of the underlying
104(d)(l) order in its Motion to Dismiss [ 4/], thereby
admitting its existence. (See Kentland-Elkhorn Coal
Corporation, supra.) By admitting the existence of the
underlying 104(d)(l) order, Youngstown is without basis to
challenge the existence of 104(d)(l) citation on which the
104(d)(l) order is based.
In Kentland-Elkhorn, the mine operator sought review of a withdrawal
order issued pursuant to section 104(c)(2) of the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970) (1969 Coal Act). In
its application for review, the mine operator challenged the underlying
section 104(c)(l) notice of violation and withdrawal order as "* * * issued
arbitrarily, unjustly, and without legal basis or foundation in law* * *·"
At no time did the mine operator challenge the existence of such 104(c)(l)
notice and order. The Interior Board of Mine Operations Appeals (Board)
held that the validity of the underlying notice and order could not be
challenged in the proceeding because the mine operator had not sought
timely review of them, but that they were admissible in evidence to establish their existence as.an underlying part of the section 104(c) chain.
However, the Board held that the Judge committed harmless error when he
ruled the 104(c)(l) notice and order inadmissible because the mine operator, by challenging their validity, had admitted their existence.
In the instant case, Youngstown never challenged the validity of the
underlying section 104(d)(l) citation and, accordingly, never admitted
its existence. Assuming for purposes of argument that Youngstown admitted
the existence of the underlying section 104(d)(l) withdrawal order by
challenging its validity, such admission did not preclude Youngstown from
continuing its challenge to the existence of the underlying section
104(d)(l) citation.
In view of the foregoing, I conclude that the Secretary was required
to prove the existence of the underlying section 104(d)(l) citation. I
further conclude that the Secretary failed to prove such citation's
existence.
The fourth argument advanced by Youngstown in support of its motion
to vacate the withdrawal order asserts that the Secretary failed to prove
that a "clean" inspection of the entire mine had not occurred in the period
between the issuance of the underlying section 104(d)(l) withdrawal order
and the issuance of Withdrawal Order No. 917568. The Secretary concedes
that this issue was raised, and that he was required to present a prima
facie case regarding the absence of an intervening "clean" inspection of
the entire mine (Tr. 8-9; Secretary's Reply Brief, p. 3).
4/

See n. 3, supra.

1804

I

In CF & I Steel Corporation, 2 FMSHRC 3459,.2 BNA MSHC 1057, 1980 CCR
OSHD par. 24,994 (1980), the mine operator sought review of a withdrawal
order issued on December 5, 1975, pursuant to section 104(c)(2) of the 1969
Coal Act. The order was based upon an underlying section 104(c)(l) withdrawal order issued on August 6, 1975. The evidence presented showed that
the Department of the Interior's Mining Enforcement and Safety Administration
(MESA) had conducted two complete regular quarterly inspections of the mine
between (1) July 25, 1975, and September 25, 1975; and (2) October 2, 1975,
to December 16, 1975. Of the 38 inspection days required to complete both
inspections, 30 were in the period between August 6 and December 5, 1975.
The Commission held that "a prerequisite to the issuance of an order of withdrawal under section 104(c)(2) of the 1969 Coal Act was the absence of an
intervening 'clean' inspection of the entire mine, and that it was MESA's
obligation to present a prima facie case of that fact to sustain the order."
2 FMSHRC at 3461. To present a prima facie case on the "clean" inspection
issue, ·the Government needed to show that a "clean" inspection of the entire
mine had not occurred in the period between the two orders. The Commission
specifically rejected the Government's position that a "clean" inspection
of the entire mine within the meaning of section 104(c)(2) occurs only when
it conducts a regular quarterly inspection from beginning to end after the
underlying section 104(c)(l) order has been issued.
Additionally, a se~ies of spot health, safety, health and safety, ventilation and section 103 inspections which collectively cover the entire mine and
which do not result in the issuance of any section 104(c)(2) orders, have
been held to constitute a "clean" inspection of the entire mine within the
meaning of section 104(c)(2) of the 1969 Coal Act. Old Ben Coal Corporation,
3 FMSHRC 1186, 2 BNA MSHC 1305, 1981 CCR OSHD par. 25,397 (1981).
The language used in section 104(c)(2) of the 1969 Coal Act is identical
in all material respects to that used in section 104(d) (2) of the 1977 Mine
Act. Accordingly, the foregoing precedents are equally applicable to cases
involving the validity of withdrawal orders issued pursuant to section
104(d)(2) of the 19.77 Mine Act.
The underlying section 104(d)(l) withdrawal order, Order No. 910780,
was issued on June 9, 1980. The subject section 104(d)(2) withdrawal order
was issued on February 24, 1980, i.e., 260 days later. The evidence presented is not sufficient to prove-that an intervening "clean" inspection
of the entire mine had not occurred between those dates.
The Secretary sought to prove through Exhibit M-5 that an intervening
clean inspection of the entire Dehue Mine had not occurred between June 9,
1980, and February 24, 1981. The exhibit is styled "104(d) Unwarrantable
Failure," and consists of two pages, each of which is divided into five
vertical columns. The column headings, when read from left to right, are
"Date Issued," "Citation/Order No.," "Reg. Section," "Date Due," and
"Abatement Date." The exhibit contains a total of 30 entries, beginning
May 30, 1980, and ending February 24, 1981.

1805

In the column bearing the heading "Reg. Section," 29 prov1s1ons of Title
30 of the Code of Federal Regulations and one provision of the 1977 Mine Act
are cited. The notation "104 b" appears adjacent to two of the entries,
"104 d l" appears adjacent to seven of the entries, and "104 d 2" appears
adjacent to eight of the entries. No notation appears adjacent to 11 of
the entries in this column.
The entries contained in Exhibit M-5 are not self-explanatory. This
defect in the exhibit was highlighted by the inspector's testimony that he
required outside assistance to determine that No. 910780 was a 104(d)(l)
withdrawal order, and not a citation (Tr. 129-130). Furthermore, the
inspector gave testimony explaining only several of the individual entries
appearing on the exhibit (Tr. 129, 132-133).
Inspector Napier gave a general explanation as to the nature of Exhibit
M-5. When asked to explain the exhibit, he testified that he and his supervisor searched the records to determine whether the Dehue Mine was on a "(d)
sequence," or whether a "clean" inspection had been made at that mine. He
further testified that according to the instructions he had received, a
"clean" inspection is a regular inspection of the complete mine, performed
by one or more inspectors, during which the "(d) sequence violation" is not
issued (Tr. 34-35). 5/ He testified at a later point in his testimony that
when such an. inspection ·is performed, the notation "clean inspection" is
entered on Exhibit M-5. Since Exhibit M-5 does not contain such a notation,
the inspector concluded that a "clean" inspection of the entire Dehue Mine
had not been made (Tr. 131-132). He further testified that the last complete
inspection of the Dehue Mine was performed between the months of October and
December, 1980 (Tr. 132-133).
In addition to the foregoing, it is unclear whether Inspector Napier
researched the Dehue Mine's inspection history as far back as June 9, 1980,
5/ Inspector Napier testified on this point as follows during direct
examination:
"Q. Okay. I will now show you what has been received in evidence as
MSHA's Exhibit Number 5 (indicating). Will you explain that for the Court?
"A. Yes, sir. My supervisor, Oscar Nally, and myself, we searched
the records to determine if the mine was on a (d) Sequence or if there was
a clear inspection at the coal mine or if a clear inspection had been made
at the coal mine.
"And by a clear interpretation of this, our instructions are that a
clear inspection is a regular inspection of that complete coal mine by
either one or more inspectors where that the (d) Sequence violation is not
issued during that inspection.
"And that·clears the run on the (d) Sequence. To our determination,
they had not had, on the (d) Sequence, within ninety days, a clear inspection, or within the last portion we had been there the (d) Sequence was
in continuance at this coal mine" (Tr. 34-35).

1806

with an eye toward determining whether a "clean" inspection of the entire
mine had been performed between such date and February 24, 1981. He testified that Exhibit M-5 revealed three unwarrantable failure violations occurring at the mine on December 3, 1980 (Tr. 132-133), and he appeared to
imply that he had not researched the time period prior to the commencement
of the regular inspection which began in October of 1980 (Tr. 35). Given
his definition of a "clean" inspection, he may well have considered it
unnecessary to research the time period prior to the commencement of the
last regular inspection because the search had already revealed three unwarrantable failure violations dated December 3, 1980.
The foregoing evidence is not sufficient to support a finding that a
"clean" inspection of the entire Dehue Mine had not occurred in the 260 days
between Ju~e 9, 1980, and February 24, 1981. The Secretary's case on this
issue stands or falls on the basis of Exhibit M-5, and that document is
fatally flawed. The only type of inspection that would be expected to be
recorded on Exhibit M-5 as a "clean" inspection would be a complete regular
inspection of the entire mine which resulted in the issuance of no unwarrantable failure violations. A series of spot health, safety, health and
safety, ventilation and section 103 inspections which collectively cover
the entire mine and which do not result in the issuance of any unwarrantable
failure violations would not be expected to be recorded on Exhibit M-5 as
a "clean" inspection of the entire mine, given the policy in effect at MSHA's
Logan, West Virginia, office. This is contrary to the rule of law set forth
by the Commission in C F & I Steel Corporation, 2 FMSHRC 3459, 2 BNA MSHC
1057, 1980 CCR OSHD par. 24,994 (1980), and Old Ben Coal Corporation,
3 FMSHRC 1186, 2 BNA MSHC 1305, 1981 CCR OSHD par. 25,397 (1981), and precludes a finding that the Secretary has established a prima facie case as
to the absence of an intervening "clean" inspection of the entire mine
between June 9, 1980, and February 24, 1981.
In view of the foregoing, I conclude that the Secretary has failed to
prove a prima facie case as to (1) the existence of the underlying section
104(d)(l) citation, and (2) the absence of an intervening "clean" inspection
of the entire mine.
It is found later in this decision (1) that the cited violation of mandatory safety standard 30 C.F.R. § 75.321 occurred at Youngstown's Dehue
Mine on February 2, 1981, (2) that such violation was caused by Youngstown's
unwarrantable failure to comply with such mandatory standard, and (3) that
such violation was of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard.
Accordingly, Youngstown's motion will be granted in part and denied in
part. The subject section 104(d)(2) withdrawal order will not be vacated,
but it will be modified to a section 104(d)(l) citation.
D.

Power to Modify a Section 104(d)(2) Withdrawal Order to a Section
104(d)(l) Citation

Section 105(d) of the 1977 Mine Act provides, in part, that if, within
30 days of receipt thereof, a mine operator notifies the Secretary that he

1807

intends to contest the issuance of an order issued under section 104, the
Secretary shall immediately advise the Commission of such notification.
Then, the Commission is required to afford an opportunity for a hearing in
accordance with 5 U.S.C. § 554, but without regard to 5 U.S.C. § 554(a)(3).
Section 105(d) empowers the Commission and its Administrative Law Judges to
thereafter "issue an order, based on findings of fact, affirming, modifying,
or vacating the Secretary's*** order, or directing other appropriate
relief." (Emphasis added.) It is therefore clear that the statute empowers
the undersigned Administrative Law Judge to modify the subject 104(d)(2)
withdrawal order to a 104(d)(l) citation.
It is recognized that certain Board decisions under the 1969 Coal Act
can be broadly read for the proposition that an Administrative Law Judge
does not have the authority under any circumstances to modify a withdrawal
order to a citation. See Freeman Coal Mining Company, 3 IBMA 434, 444-446,
81 I.D. 723, 1 BNA MSHC 1209, 1974-1975 CCH OSHD par. 19,177 (1974); Zeigler
Coal Company, 2 IBMA 216, 224-225, 80 I.D. 626, 1 BNA MSHC 1078, 1973-1974
CCH OSHD. par. 16,608 (1973); Freeman Coal Mining Corporation, 2 IBMA 197,
209-210, 80 I.D. 610, 1 BNA MSHC 1073, 1973-1974 CCH OSHD par. 16,567 (1973),
aff'd. on other grounds sub nom. Freeman Coal Mining Company v. Interior Board
of Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974). To the extent that
such a broad reading of those decisions is possible, they are not considered
good law under the 1977·Mine Act. A blanket prohibition against modifying
a withdrawal order to a citation is considered contrary to the powers
expressly conferred on the Commission and its Administrative Law Judges by
section 105(d) of the 1977 Mine Act.
The subject withdrawal order must be pronounced invalid as a section
104(d)(2) withdrawal order only because the Secretary failed to prove both
the existence of the underlying section 104(d)(l) citation and the absence
of an intervening "clean" inspection of the entire mine. The failure of
proof on one or both of these two issues requires a disposition invalidating
the order as a section 104(d)(2) withdrawal order.
However, the fact that the withdrawal order is invalid because of a
failure of proof on these two issues does not mean that the additional allegations appearing on the face of the order are not well founded. The withdrawal
order alleges, and the proof shows, the occurrence of a condition in violation
of mandatory safety standard 30 C.F.R. § 75.321; that such violation was
caused by the mine operator's unwarrantable failure to comply with such mandatory safety standard; and that such violation was of such nature as could
significantly and substantially contribute to the cause and effect of a mine
safety or health hazard. These issues have been litigated by the parties,
and findings of fact and conclusions of law are set forth herein resolving
these issues in favor of the Secretary. It is therefore considered appropriate to modify the withdrawal order to a section 104(d)(l) citation containing
findings which reflect what the proof shows. The modification will not result
in a finding that a condition existed other than the one charged, nor that
Youngstown violated any mandatory standard other than the one charged.

1808

E.

Occurrence of Violation

Federal mine inspector Dana T. Napier issued Withdrawal Order No. 917568
at Youngstown's Dehue Mine on February 24, 1981, during the course of a
special inspection conducted pursuant to section 103(g) of the 1977 Mine Act
(Exh. M-1; Tr. 19-20, 28). The withdrawal order alleges a violation of mandatory safety standard 30 C.F.R. § 75.321 in that:
The report of the 3rd shift mine foreman's report book
dated [February 2, 1981,] and signed by Hiram Marcum, Jr.
stating that the fan (No. 2) was off at 4:30 a.m. and in
his statement in the record book indicate that men were
started withdrawing at 5:06 a.m. on [February 2, 1981,]
which is not in compliance with [30 C.F.R. §] 75.321.
(Exh. H-4).
Mandatory safety standard 30 C.F.R. § 75.321 provides as follows:
Each operator shall adopt a plan on or before May 29,
1970, which shall provide that when any mine fan stops,
immediate action shall be taken by the operator or his agent
(a) to withdraw all persons from the working sections, (b) to
cut off the power in the mine in a timely manner, (c) to provide for restoration of power and resumption of work if
ventilation is restored within a reasonable period as set
forth in the plan after the working places and other active
workings where methane is likely to accumulate are reexamined
by a certified person to determine if methane in amounts of
1.0 volume per centum or more exists therein, and (d) to provide for withdrawal of all persons from the mine if ventilation cannot be restored within such reasonable time. The
plan and revisions thereof approved by the Secretary shall be
set out in printed. form and a copy shall be furnished to the
Secretary or his authorized representative.
30 C.F.R. § 75.321-1 provides that "[u]nless a different period of tL~c
is approved by the Coal Mine Safety District Manager, 'reasonable period'
referred to in § 75.321 means a time lapse of not more than 15 minutes."
The Dehue Mine's fan stoppage plan, in effect on February 2, 1981, contained
the following requirement:
If FAN is OFF for more than 15 MINUTES, notify all people
underground and tell them to come outside and the last people
coming out of an area will knock the AC and DC Power for their
area. When the FAN is OFF for 15 MINUTES and people start
outside EVERYONE (INCLUDING FOREMEN) will come directly
outside. [Emphasis in original.] (Exh. H-6.)

In short, the fan stoppage plan required the mine operator, amongst other
things, to start withdrawing all people from the mine if the fan was off
for more than 15 minutes (see Tr. 29).

1809

The evidence presented shows that three fans are used to ventilate the
Dehue Mine. The No. 1 fan ventilates the old portion of the mine, and
produces approximately 150,000 cubic feet of air per minute (Tr. 32). The
No. 2 fan ventilates the active portion of the mine, and produces approximately 250,000 cubic feet of air per minute (Tr. 32-33). According to
Mr. Hiram Marcum, Jr., the third shift mine foreman, the No. 2 fan is the
main ventilating fan for the active working area (Tr. 227). The No. 3 fan,
a bleeder fan, produces approximately 16,000 cubic feet of air per minute
(Tr. 32).
The No. 2 fan stopped at approximately 4 a.m. on February 2, 1981 (Exh.
H-7; Tr. 33-34, 87, 107-108). The fan was not restarted until approximately
7 a.m. on February 2, 1981 (Exh. M-7; Tr. 58). Youngstown did not begin
withdrawing the miners from the Dehue Mine's underground workings until
approximately 5:06 a.m. (Exh. M-2; Tr. 30-31, 170-171), !·~·, approximately
1 hour after the No. 2 fan stopped.
In summary, the Dehue ~line's No. 2 fan was off for approximately
1 hour on February 2, 1981, before Youngstown began withdrawing the miners
from the mine's underground workings. This clearly violated the 15-minute
requirement set forth in the Dehue Mine's fan stoppage plan. Accordingly,
it is found that a violation of mandatory safety standard 30 C.F.R.
§ 75.321 has been established by a preponderance of the evidence.
F.

Unwarrantable Failure Criterion

Withdrawal Order No. 917568 contains the allegation that the cited violation was caused by the mine operator's unwarrantable failure to comply
with mandatory safety standard 30 C.F.R. § 75.321. A violation of a mandatory health or safety standard is caused by an unwarrantable failure to
comply 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 a
lack of due diligence, or because of indifference or lack of reasonable
care." Zeigler Coal Company, 7 IBMA 280, 295-296, 84 I.D. 127, 1 BNA MSHC
1518, 1977-1978 CCR OSHD par. 21,676 (1977). The evidence presented in this
case shows that the No. 2 fan was off for approximately 1 hour before
Youngstown began to withdraw the miners from the Dehue Mine's underground
workings, and that Youngstown's failure to begin the evacuation earlier was
caused by an unwarrantable failure to comply with mandatory safety standard
30 C.F.R. § 75.321.
The evidence presented as to the general layout of the Dehue Mine
reveals that the mine's underground workings are situated on both sides of
the Guyandotte River. The No. 3 fan, the dispatcher's office and the slope
entrance are located on the east side of the river (Exh. 0-1; Tr. 41-45).
The dispatcher's office is located on the surface next to the slope entrance
(Tr. 45, 172).
The underground areas identified as First Right, First Northwest, South
Mains (10 Drive), and Second South are located on the west side of the river.

1810

The No. 2 fan and two intake air shafts are also located on the west side
of the river (Exh. 0-1; Tr. 32-33, 41-45). One of those intake air shafts
is located in reasonably close proximity to the No. 2 fan. The other intake
air shaft, known as the Sugar Branch Shaft, appears to be located in one of
the westernmost portions of the mine (Exh. 0-1).
The underground areas located on the east side of the river are connected to the underground areas on the west side of the river by three
entries passing underneath the river. One of those entries is on return
air and another is on neutral air. The middle entry is the track entry,
and it is on intake air (Exh. 0-1). The No. 2 fan and the nearby intake
air shaft are located fairly close to the point at which the three entries
passing underneath the river join the underground workings on its western
side (Exh. 0-1). In terms of distance, the No. 2 fan is located on the
surf ace approximately one-quarter of a mile from the slope entrance which,
as noted above, is located on the east side of the river (Exh. 0-1; Tr.
117). An individual proceeding underground from the slope entrance to the
underground workings on the west side of the river would be required to
pass close to the No. 2 fan's air shaft (Tr. 116).
The evidence as to the specific activities occurring on the morning of
February 2, 1981, reveals that two fire bosses, Mr. Louis Zeto and Mr. Isaac
Nelson, were on duty on.t~e third shift on February 2, 1981. Mr. Zeto had
responsibility for Second South Mains and First Right Mains. Mr. Nelson
had responsibility for 10 Drive, Second Right off South Hains, and First
Northwest (Tr. 220-221). Additionally, it is important to bear in mind
throughout the discussion which follows that the fan alarm for the No. 2
fan was inoperable at all times relevant to the February 2, 1981, violation
of mandatory safety standard 30 C.F.R. § 75.321 which is the subject matter
of this case. 6/
6/ The alann system for the No. 2 fan was wired to a horn signaling device
located at or near the lamphouse. The horn signaling device was approximately 30 or 40 feet from the dispatcher's office. The alarm system is the
usual method for determining whether a fan stoppage has occurred. However,
the fan alarm did not sound on the morning of February 2, 1981, because the
alarm system was inoperable at all times relevant to the violation charged.
Inspector Napier issued a separate citation to Youngstown for its failure
to have an operable fan alarm system. The inoperable fan alarm was taken
into account by the inspector in making his decision to issue the subject
withdrawal order (Tr. 82-83, 102, 189).
The citation encompassing the inoperable fan alarm is not part of the
subject matter of this proceeding. The Secretary has not stressed the
inoperable fan alarm in arguing that the violation which is the subject
matter of this case was caused by Youngstown's unwarrantable failure to
comply with mandatory safety standard 30 C.F.R. § 75.321.

1811

Mr. Hiram Marcum, Jr., the third shift mine foreman, went underground
at approximately 12:30 a.m. on February 2, 1981. He eventually proceeded to
First Northwest where he and Messrs. Gary Evans and Ray Wolford performed
work to prepare the area for mining which was to occur onothe following day.
The setting of timbers was one of the activities that the three men intended
to perform there. However, no available timbers were present. Therefore,
the three men proceeded outside the mine for the purpose of obtaining some.
They used a track-mounted jeep to ride to the bottom of the slope and, thereafter, transferred to the slope car, or cage, for the ride up the slope (Tr.
201-203, 218-219). It is clear beyond any doubt that the three men passed
through the intake entry located beneath the Guyandotte River while riding
from First Northwest to the bottom of the slope.
Upon reaching the top of the slope, Mr. Marcum was immediately summoned
to the dispatcher's office by Mr. Frank Marino, the dispatcher, who informed
him that Mr. Zeto had just called on the pager to report an air problem, and
that Mr. Zeto was standing by to talk with him (Tr. 183-184). Mr. Marcum
proceeded immediately to the dispatcher's office and took the call. At
4:45 a.m., Mr. Marcum was informed by :Mr. Zeto that he had "no air" on the
Second South Mains (Tr. 183-185, 221-222). Mr. Zeto informed Mr. Marcum
that he was going to check the section further to see if he could find anything wrong, and requested Mr. Marcum to call Mr. Isaac Nelson, the other
fire boss, for the purpose of determining whether everything was all right
at 10 Drive (Tr. 185, 221).
Then, Mr. Marcum asked Mr. Marino where Mr. Nelson was located.
Mr. Marino responded that Mr. Nelson had departed South Mains heading for
First Northwest at 4:30 a.m. (Tr. 184-185). Mr. Marcum then contacted
Mr. Nelson on the pager. Mr. Nelson was on First Northwest at the time.
Mr. Marcum asked Mr. Nelson whether he had made 10 Drive, and Mr. Nelson
responded in the affirmative (Tr. 185-186). Mr. Marctnn followed up this
question by asking Mr. Nelson whether he had found anything wrong on
10 Drive, such as any downed curtains or any falls. Mr. Nelson responded
in the negative, but stated that he could not get any air on 10 Drive (Tr.
186-187, 197-198). Mr. Marctnn instructed Mr. Nelson to "go on up at First
Northwest and see if you're getting any air" and to immediately report his
findings to Mr. Marino (Tr. 187, 198-199).
Mr. Marcum, accompanied by Messrs. Evans and Wolford, returned underground. Mr. Marcum intended to go to 10 Drive to personally check the area
and determine the cause of the problem (Tr. 187-188).
The three men stopped at First Right so that Mr. Marcum co\1;1ld call
Mr. Marino. He placed the call and asked Mr. Marino whether Mr. Nelson had
reported back. Mr. Marino responded in the negative (Tr. 188, 206, 232-233).
Mr. Marcum testified that he knew something was wrong when he stopped at First
Right because the volume of air passing through the area was noticeably less
than it should have been (Tr. 223, 232-233). Mr. Evans' testimony indicates
that after calling Mr. Marino, Mr. Marcum stated that he could not feel any
air movement. Mr. Evans further testified that he acknowledged Mr. Marcum's
remark by stating: "Well, I can't feel nothing, either" (Tr. 206).

1812

Then, the three men proceeded inby First Right along the G.K. Mains
toward South Mains High Top (Tr. 206, 223; Exh. 0-1). The men stopped at the
double air lock doors which had been installed in No. 38 break, and Mr. Evans
headed for those doors (Tr. 224). Mr. Marcum testified that he knew that no
air was coming down the return even before Mr. Evans opened the air lock door
because he could not hear the air whistling through the return (Tr. 224, 232233). The first double door opened effortlessly (Tr. 224). Both Mr. Evans
and Mr. Marctml testified that they knew at that point that the fan had
stopped (Tr. 206, 224, 232-233).
The three men retreated outby and checked the return overcast at First
Right. There was no air movement in the overcast. Mr. Marctnn called
Mr. Marino on the pager, informed him that the fan had stopped, and told
him to begin withdrawing the men from the mine. Mr. Marino received this
call at approximately 5:06 a.m., and the evacuation of the mine began (Tr.
188, 224-225).
The evidence presented in this case points unmistakably to the conclusion that Youngstown's failure to begin withdrawing the miners from the Dehue
Mine's underground workings until 5:06 a.m. was caused by an unwarrantable
failure to comply with mandatory safety standard 30 C.F.R. § 75.321, notwithstanding the fact that the No. 2 fan's alarm system was inoperable at
all times relevant to this proceeding. This conclusion is based on the
combined actions of Mr. ·Isaac Nelson, one of the two fire bosses, and
Mr. Hiram Marcum, Jr., the third shift mine foreman.
Federal law imposes an affirmative obligation on the operator of a coal
mine which is subject to the provisions of the 1977 Hine Act to maintain
adequate ventilation in such mine's underground workings so as to dilute,
render harmless, and carry away volatile methane gas. Explosive concentrations of methane gas pose well recognized dangers to the safety of the
miners in the mine's underground workings, and the ventilation requirements
set forth in the various mandatory safety standards applicable to underground
coal mines are intended, in part, to eliminate those dangers. J.j See, ~·.B_•,
7/ See S. Rep. No. 95-181, 95th Cong., 1st. Sess. (1977), reprinted in
LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 629
(1978), which states, in part, as foilows:
"Investigation of the Scotin [sic] mine disaster in Eastern Kentucky
provides but one case in point. On March 8 and 11, 1976, two explosions of
methane gas in the Scotia mine resulted in the deaths of twenty-three (23)
miners and three (3) federal mine inspectors. Methane is a colorless,
odorless, tasteless gas which is liberated or escapes naturally in certain
mines. (Although methane liberation is most commonly associated with coal
mining, it is present in connection with the mining of other minerals also,
trona, for example.) Methane is explosive when it constitutes between 5
and 15 percent of the atmosphere of a mine, and when, while in that concentration range, it is ignited by some ignition source. The pressure of
methane in a mine is controlled by adequate ventilation; and thus, ventilation of a mine is important not only to provide fresh air to miners, and to

1813

30 C.F.R. §§ 75.300, 75.301, 75.301-4, 75.301-5, 75.302, 75.307, 75.308,
75.309, 75.310, 75.311, and 75.312. In addition, the need for vigilance
and timely action as to health and safety matters is underscored by those
provisions which require the performance of examinations and tests designed
to determine whether there is compliance with the mandatory health and safety
standards and to detect safety and health hazards. See, e.g., 30 C.F.R.
§§ 75.205, 75.300, 75.300-4, 75.303, 75.304, 75.305,---r5.3o6-; 75.307, and
75.320.
In view of these considerations, it must be concluded that a fire boss,
amongst others, who detects a loss of air during the course of his duties is
under an affirmative obligation to immediately notify the appropriate representatives of the mine operator that he has detected a loss of air. A "fire
boss" is defined, amongst other definitions, as "(a] person designated to
examine the mine for gas and other dangers," and as "(a] state certified
supervisory mine official who examines the mine for firedamp, gas, and other
dangers before a shift comes into it and who usually makes a second examination during the shift * * *·" Paul W. Thrush (ed.), A Dictionary of Mining,
Mineral, and Related Terms (Washington, D.C.: U.S. Department of the Interior,
Bureau of Mines) (1968) at page 429. It must be further concluded that a mine
foreman, or other similarly situated representative of the mine operator, who
receives a report that a loss of air has been detected underground, is required
to conduct his search for the cause of the problem in the most direct and most
efficient manner available to him. In the instant case, both Mr. Nelson and
Mr. Marcum were negligent in discharging their respective duties.
Mr. Nelson detected the loss of air on 10 Drive prior to departing South
Mains for First Northwest at 4:30 a.m. Yet, he made no attempt to promptly
inform his superior as to the existence of the condition. In fact, he made
no attempt to communicate his findings to his superior until he was contacted
by Mr. Marcum at approximately 4:45 a.m., i.e., after the mine foreman directed
an inquiry to him (Tr. 198). The knowledge acquired by Mr. Nelson at or
before 4:30 a.m. as to the loss of air is properly imputed to Youngstown.
The actual or constructive knowledge of a person designated by the mine
operator to perform required examinations is properly imputed to the mine
operator. Pocahontas Fuel Company, 8 IBMA 136, 84 I.D. 448, 1 BNA MSHC 1580,
1977-1978 CCR OSHD par. 22,218 (1977), aff'd. sub nom. Pocahontas Fuel
fn. 7 (continued)
control dust accumulation, but also to sweep away liberated methane before
it can reach the range where the gas could become explosive. In terms
then of the safety of miners, the requirement that a mine be adequately
ventilated becomes one of the most important safety standards under the
[1969] Coal Act."
Additionally, Inspector Napier testified that a recent methane gas
explosion at Westmore,land Coal Company's Ferrell No. 17 Hine, which
resulted in the death of five miners, occurred when improper ventilation
permitted the gas to build up (Tr. 39).

1814

Company v. Andrus, 590 F.2d 95 (4th Cir. 1979). Additionally, his negligence in failing to promptly communicate his findings to mine management
is imputable to Youngstown. See generally, Nacco Mining Company, 3 FMSHRC
848, 2 BNA MSHC 1272, 1981 CCR OSHD par. 25,330 (1981).
Mr. Marcum testified that he did not think that a fan problem existed
when he began his return trip to the mine's underground workings because:
(1) the fan alarm did not go off, (2) only one fire boss had called reporting
"no air," and (3) none of the workers underground had called to report an
air problem (Tr. 225-226). Significantly, he maintained that he did not
talk to Hr. Nelson before beginning his return trip underground (Tr. 223,
232). But he also maintained that he might have suspected a fan problem
had he been successful in contacting Mr. Nelson before returning underground,
and had Mr. Nelson also reported "no air" (Tr. 223).
Mr. Marcum's testimony is not credible insofar as he maintains that he
did not talk to Mr. Nelson before beginning his return trip underground.
Mr. Marino testified that Mr. Marcum contacted Mr. Nelson on the pager after
talking to Mr. Zeto and before returning underground, and that Mr. Nelson
reported a loss of air, or "no air," on 10 Drive during their conversation
(Tr. 184-197, 197-198). Mr. Marino's testimony is considered credible on
this point. Therefore, Mr. Marcum, by his own admission, should have
suspected a fan problem before beginning his return trip underground.
However, it appears that Mr. Marcum managed to convince himself before
beginning his return trip underground that the problem had been caused by
either a roof fall or a downed curtain somewhere on South Mains (10 Drive)
(Tr. 199, 205, 211). It further appears that Mr. Marclllll became so preoccupied with this belief (1) that he failed to notice those things which
a reasonable man in his position would have noticed, observations which
should have led him to deduce that a fan stoppage had occurred, and (2)
that he passed, but failed to stop and to examine, the No. 2 fan's air
shaft on his way to South Mains. A reasonable man in his position would
have stopped and examined the air shaft, an examination which would have
conclusively revealed that a fan stoppage had occurred, instead of proceeding farther into the mine.
The evidence shows that the largest volume of intake air used to ventilate
the active workings enters the mine through the slope entrance (Tr. 106). In
fact, approximately 95,000 cubic feet per minute of the 250,000 cubic feet per
minute of air drawn into the mine by the No. 2 fan enters through the slope,
and moves at a speed of approximately 10 to 12 miles per hour (Tr. 35-36, 140141). Air movement is barely perceptible in the slope when the No. 2 fan is
off (Tr. 141-142). A number of observations could and should have been made
in the vicinity of the slope, observations which would have led a reasonable
man to conclude that a fan stoppage had occurred. First, the slope entrance
is approximately 15 feet wide and 8 to 9 feet high (Tr. 158, 159). A cloth
rag attached to a wire was hanging in the slope entrance. The rag was hanging approximately 2 feet down from the roof, and measured approximately
8 inches in length and 4 inches in width (Tr. 140-142, 158-159, 190). The

1815

rag is dra~vn horizontally until it almost touches the roof when the No. 2
fan is on, but hangs in a vertical position and barely moves when the No. 2
fan is off (Tr. 140-142). Second, Mr. Marcum should have been able to feel
the lack of air movement as he stood at the top of the slope (Tr. 35-36, 99,
141). Third, ~rr. Marcum should have detected a lack of air pressure pushing
against a small wooden door located at the top of the slope which must be
opened to board the slope car (Tr. 140-141, 161). Fourth, Mr. Harcum should
have detected the absence of air while riding the open slope car (Tr. 140-141,
147). Finally, Mr. Marcum should have noticed the lack of air movement when
he reached the bottom of the slope (Tr. 106-107).
Only a stoppage of the No. 2 fan could have accounted for the absence
of air in the slope area. The roof fall or short circuit in the air which
Hr. Marcum appears to have suspected would not have accounted for this
phenomenon (Tr. 36-37, 99-100, 148-149). The mine is too large, covers too
much territory, for a roof fall or similar problem to have interferred with
the ventilation in such a way that Mr. Zeto wbuld not get any air on Second
South (Tr. 148-150).
Additionally, :tfr. Marcum passed, but failed to stop and examine, the
No. 2 fan's air shaft on his way to South Mains. He could have disembarked
from the jeep and walked through some air lock doors into an overcast, and
thereafter proceed to the air shaft. If the No. 2 fan had been working, the
air movement at the bottom of that shaft would have been quite noticeable
(Tr. 116-117, 150-153, 157-158). Similarly, the absence of air movement
would have been quite noticeable.
In view of the combined actions of Messrs. Nelson and Marcum, T conclude
that Youngstown failed to abate a violative condition that it knew or should
have known existed because of a lack of due diligence or because of indifference or lack of reasonable care. The failure to begin withdrawing the
miners from the Dehue Hine's underground workings until approximately
5:06 a.m. was caused by an unwarrantable failure to comply with the requirements of mandatory safety standard 30 C.F.R. § 75.321.
G.

Significant and Substantial Criterion

Withdrawal Order No. 917568 contains the additional allegation that
the violation was of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard.
Although no consideration need be given to the significant and substantial
criterion in order to determine the validity of a section ~04(d)(2) withdrawal order, Youngstown sought review of the allegation in its notice of
contest and the issue was litigated by the parties.
In National Gypsum Company, 3 FMSHRC 822, 2 BNA MSHC 1201, 1981 CCR
OSHD par. 25,294 (1981), the Commission held:

[T]hat a violation is of such nature as could significantly
and substantially contribute to the cause and effect of a mine

1816

safety or health hazard 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 serious nature.
3 FMSHRC at 825.

Additionally, the Commission stated that:

Although the [1977 Mine Actl does not define the key
terms "hazard" or "significantly and substantially," in this
context we understand the word "hazard" to denote a measure
of danger to safety or health, and that a violation "significantly and substantially" contributes to the cause and
effect of a hazard if the violation could be a major cause
of a danger to safety or health. In other words, the
contribution to cause and effect must be significant and
substantial. 3 FMSHRC at 827. [Footnote omitted.]
The No. 2 fan ventilates the active portion of the mine, and produces
approximately 250,000 cubic feet of air per minute (Tr. 32-33). It is the
main ventilating fan for the active working area (Tr. 227).
A substantial amount of the methane gas liberated by the Dehue Mine is
removed from the underground workings by the No. 2 fan. Methane gas is
removed from the mine by. that fan at a rate of approximately 175,000 cubic
feet in a 24-hour period. Of the three fans used to ventilate the mine,
the No. 2 fan removes the most methane (Tr. 33, 38). The fan stoppage
could have permitted a substantial amount of methane gas to build up in
the Dehue Mine's active workings. Given an ignition source, an explosion
could have occurred. All miners in the active workings would have been
exposed to fatal injuries (Tr. 38-39, 49). Approximately 19 men were
working underground at the time (Tr. 220). Accordingly, it must be concluded that the violation was extremely serious.
In view of the foregoing, I find that the violation could have been a
major cause of a danger to safety or health. The particular facts surrounding
the violation show the existence of a reasonable likelihood that the hazard
contributed to would result in an injury or an illness of a reasonably serious
nature. Accordingly, I conclude that the violation was of such nature as
could significantly and substantially contribute to the cause and effect of
a mine safety or health hazard.
V.

Conclusions of Law

1. Youngstown Mines Corporation and its Dehue Mine 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 jurisdiction over the subject matter of, and the parties to, this proceeding.
3. Federal mine inspector Dana T. Napier was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance
of Withdrawal Order No. 917568.

1817

4. The Secretary of Labor has failed to prove that Withdrawal Order
No. 917568 was validly issued pursuant to section 104(d)(2) of the 1977 Mine
Act because he has failed to prove: (1) the existence of the underlying section 104( d)( 1) citation; and (2) the absence of an intervening "clean" inspection of the entire Dehue Mine between June 9, 1980, the date of issuance of
the underlying section 104(d)(l) withdrawal order, and February 24, 1981, the
date of issuance of Withdrawal Order No. 917568.
5. The violation of mandatory safety standard 30 C.F.R. § 75.321
charged in Withdrawal Order No. 917568 is found to have occurred.
6. The subject violation of mandatory safety standard 30 C.F.R. § 75.321
was caused by the mine operator's unwarrantable failure to comply with such
mandatory safety standard.
7. The subject violation of mandatory safety standard 30 C.F.R. § 75.321
was of such nature as could significantly and substantially contribute to the
cause and effect of a mine safety or health hazard.
8. All of the conclusions of law set forth in Part IV, supra, are
reaffirmed and incorporated herein.
VI.

Proposed Findings of Fact and Conclusions of Law

The Secretary, Youngstown, and the Intervenor filed posthearing briefs.
Additionally, the Secretary and Youngstown filed reply briefs. Such briefs,
insofar as they can be considered to have contained proposed findings and
conclu$ions, 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.
ORDER
Accordingly, IT IS ORDERED that Youngstown's motion to vacate section
104(d)(2) Withdrawal Order No. 917568 at the close of the Secretary's casein-chief be, and hereby is, GRANTED IN PART and DENIED IN PART; and that
Youngstown's notice of contest be, and hereby is, GRANTED IN PART and DENIED
IN PART. IT IS THEREFORE ORDERED that Withdrawal Order No. 917568 be, and
hereby is, MODIFIED from a section 104(d)(2) withdrawal order to a section
104(d)(l) citation containing findings: (1) that a violation of mandatory
safety standard 30 C.F.R. § 75.321 occurred at Youngstown's Dehue Mine on
February 2, 1981, in that the No. 2 fan stopped at approximately 4 a.m. and
Youngstown did not begin to withdraw the miners from the mine's underground
workings until approximately 5:06 a.m., in violation of the 15-minute requirement set forth in the fan stoppage plan; (2) that such violation was caused
by the mine operator's unwarrantable failure to comply with such mandatory
safety standard; and (3) that such violation was of such nature as could
significantly and substantially contribute to the cause and effect of a mine
safety or health hazard.

1818

IT IS FURTHER ORDERED that No. 917568, as so modified, be, and hereby
is, AFFIRMED.

~Z::Z

)

Cook
Distribution:

Roger S. Matthews, Esq., Youngstown Mines Corporation, 3 Gateway Center
9 North, 401 Liberty Avenue, Pittsburgh, PA 15222 (Certified Mail)
James P. Kilcoyne, Jr., Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480, Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
David Vidovich, President, Local Union 5869, District 17, United Mine
Workers of America, P.O. Box 132, Dehue, WV 25618 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street,
NW., Washington, D.C. 20005 (Certified Mail)
Administrator for Metal and Nonmetal ,Mine Safety and Health, U.S.
Depart~ent of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

1819

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 RALPH W. JOHNSON,
v.

Complainant,

PATHFINDER MINES CORPORATION,
Respondent.

JUL 1L 7 1981

COMPLAINT OF DISCRIMINATION
DOCKET NO. WEST 81-69-D
MINE: Lucky McMine

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

ORDER APPROVING SETTLEMENT
On July 9, 1981, the parties filed a stipulation of settlement, consent
and motion. According to the terms of the settlement, respondent is to pay
the complainant, Ralph W. Johnson, the sum of $1,000.00 for loss of back
wages and other expenses resulting from his discharge. Furthermore, the
complainant's employment record will be expunged of any adverse references
relating to his discharge. Having given due consideration to the proposed
settlement I conclude that it should be granted.
IT IS THEREFORE ORDERED that the stipulation of settlement, consent and
motion is hereby approved. Respondent is ORDERED to pay the complainant
$1,000.00 within 30 days from the date of this order.

Administrative Law Judge
Distribution:
Phillis K. Caldwell, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, CO 80294
Thomas W. Pennington, Esq., Senior Corporate Counsel
Pathfinder Mine Corporation
550 California Street, San Francisco, CA 94104
Frank Lee, President
United Steelworkers of America, Local No. 15184
Sunnyside Trailer Court, No. 2, Riverton, WY 82501

1820

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

JUL 2 o 1921

)

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

)

CIVIL PENALTY PROCEEDING

)

)

DOCKET NO. WEST 80-396-M

)

Petitioner,

)

A/C No. 02-01037-05005

)

v.

)

MINE: Agua Fria Pit

)
)
)
)

PHOENIX SAND AND ROCK,
Respondent.
~~~~~~~~~~~~~~~~~~~~~~

APPEARANCES:
Marshall P. Salzman, Esq.,
Office of the Solicitor
United States Department of Labor
450 Golden Gate Avenue, Box 36017
San Francisco, California 94102
For the Petitioner
Kay H. Wilkins, Esq.
1635 N. Alma School Road
Mesa, Arizona 85201
For the Respondent
Before: Judge Jon D. Boltz
DECISION
By authority of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq., the petitioner seeks an order assessing civil monetary
penalties agains-;-the respondent for alleged violations of regulations as
more particularly set forth in four citations, all of which were issued on
March 11, 1980.
At the hearing, the parties agreed to the following:
1. I have jurisdiction over the parties and subject matter of these
proceedings.
2. The respondent is an operator of moderate size and has a moderate
history of prior violations.

1821

3. The .imposition of requested civil monetary penalties will not impair
respondent's ability to remain in business.
4. The citations were in fact issued on the date indicated in the body
of the citations.
5. The inspector who issued the cit a~ ions was an au-thorized
representative of the Secretary.
At the conclusion of all of the evidence, the parties agreed to waive
the filing of post hearing briefs and agreed to have a Decision rendered
from the bench after closing arguments. The bench Decision is as follows:
BENCH DECISION
Citation No. 376188
Citation No. 376191
Thl petitioner alleges in Citation No. 376188 a violation of 30 C.F.R.
56.14-1 /because the self cleaning tail pulley of a transfer belt under
the cone crusher was unguarded
In Citation No. 376191 petitioner alleges a
1
violation of 30 C.F.R. 56.12-8 / in that electrical wires leading into a
junction box were pulled away from the strain relief clamp and were rubbing
.on the metal part of the junction box. These allegations were admitted by
the respondent. Accordingly, considering the criteria set forth in section
llO(i) of the Act, these citations are affirmed and penalties are assessed
in the amounts of $106.00 and $48.00 respectively.
· Citation No. 376189
A violation of 30 C.F.R. 56.12-32 3 /is alleged in that the electrical
panel on the trailer for the control switches of the crusher operator did
not have an adequate cover to fully cover the electrical wires. All ~f the
wires and the connections in the box were not covered. These facts were

1/ 56.14-1 Mandatory. Gears; sprockets; chains; drive, head, tail, and take
up pulleys; fly wheel; couplings; shafts; saw blades; fan inlets; similar
exposed moving machine parts which may be contacted by persons, and which
may cause injury to persons, shall be guarded.
2/ 56.12-8 Mandatory. Power wires and cables shall be insulated
adequately where they pass into or out of electrical compartments. Cables
shall enter metal frames of motors, splices boxes, and electrical
compartments only through proper fittings. When insulated wires, other than
cables, pass through metal frames, the holes shall be substantially bushed
with insulated bushing.

3/ 56.12-32 Mandatory. Inspection and cover plates on electrically
equipment and junction boxes shall be kept in place at all times, except
during testing or repairs.

1822

undisputed. The regulation requires cover plates on electrical junction
boxes to be kept in place, and since this had not been done, the citation is
affirmed. The penalty assessed is $20 JJO, as alleged in the pet it ion.
Citation No. 376190
The petitioner alleges a violation of 30 C.F.R. 56._14-1, which is the
guarding regulation. previously cited. Specifically, the third and fourth
return idlers under the be 1 t coming from the cone crusher were not guarded.
The evidence was that these return idlers were 5 1/2 to 6 feet off the
floor, and that no citations had been issued for this alleged violation
during four previous inspections, "plus the complimentary inspection." (Tr.
34). The citation at issue was served because an employee had been observed
walking under the idlers with a shovel at the time of the inspection. (Tr.
38). There was no evidence that any person had been observed in that area
before.

I conclude that the return idlers being 5 1/2 to 6 feet above floor
level and in a remote area were guarded by their location in this case.
Thus, the return idlers were not moving machine parts which might be
contacted by persons and which might cause an injury._~/ Citation No.
376190 is vacated.
ORDER
The foregoing bench Decision is affirmed and the respondent is ordered
to pay civil penalties in the total amount of $174.00 within 30 days of the
date of this Decision.

~

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/(,

I.

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--Jon D. · o Hz

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~Administrative L~~- Judge

4/ As an additional reason for concluding there was no violation, I
erroneously stated that return idlers were not "similar exposed moving
machine parts" as defined by the regulation. This error would not change
the result since I also found that the return idlers were guarded by their
location. Distribution:
Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, United States Department
of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, California
94102
Kay H. Wilkins, Esq., 1635 N. Alma School Road, Mesa, Arizona

1823

85201

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

JUL 21 1981
)
)
)
)
)
)
)
)
)

TODILTO EXPLORATION AND
DEVELOPMENT CORPORATION,
Contestant,
v.
SECRETARY OF LABOR, MINE SAFETY
HEALTH ADMINISTRATION (MSHA),
Respondent.

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

Petitioner,
TODILTO EXPLORATION AND
DEVELOPMENT CORPORATION,
Respondent.

)
)
)

v.

)

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

DOCKET NO. CENT 79-91-RM
Citation No. 151433; 1/31/79
MINE: Haystack Underground

)
)
)
)
)
)

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

NOTICE OF CONTEST

CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 79-310-M
ASSESSMENT CONTROL NO.
29-01650-05003
MINE: Haystack Underground

Appearances:
U. Sidney Cornelius, Esq.
Office of the Solicitor
United States Department of Labor
555 Griffin Square, Suite 501
Dallas, Texas 75202
For the Petitioner
Mr. G. Warnock, President
Todilto Exploration & Development Corporation
3810 Academy Parkway South N.E.
Albuquerque, New Mexico 87109
Pro Se
Before: Judge Jon D. Boltz
DECISION
Contestant filed case No. CENT 79-91-RM in order to obtain review of
the issuancI of Citation No. 151433, which alleged a violation of 30 C.F.R.
57.5-50(b)._/ Subsequently, in case No. CENT 79-310-M, the Secretary of

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

18'24

Labor filed a petition proposing an assessment of several penalties for
violations alleged in Citation No. 151433 and Ci~ation No. 151105, the
latter citation alleging a violation of 57.9-69. I The cases were
consolidated for hearing in Albuquerque and the respondent Todilto
Exploration and Development Corporation was represented pro~ by its
President, Mr. G. Warnock.
These cases were filed pursuant to the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 ~seq.
At the conciusion of all the evidence the parties agreed to waive the
filing of briefs and agreed to have a Decision rendered from the bench.
The bench Decision is as follows:

BENCH DECISION
I make the following findings:
1. I have jurisdiction over the parties and subject matter of these
proceedings.
2. The inspectors who duly issued the citations and extensions
thereof were authorized representatives of the Secretary.
3. The history of previous violations on the part of the respondent
is not substantial or significant.
4. Proposed civil monetary penalties are appropriate to the size of
the business of the operator.
5. The assessment of proposed penalties would not affect the operators
ability to continue in business.
6. The operator demonstrated good faith in attempting to achieve rapid
compliance after notification of the alleged violations.

2/ 57.9-69 Mandatory. Tires shall be deflated before repairs on them are
started and adequate means shall be provided to prevent wheel locking rims
from creating a hazard during tire inflation.

1825

Citation No. 151105
This citation issued May 9, 1979, alleges that there was no means to
prevent wheel locking rims from creating a hazard to the person inflating
tires with locking rims, in violation of 30 C.F.R. 57.9-69. During the
course of the hearing, the respondent agreed to withdraw his objection to
the citation since he agreed with the facts as alleged by the Secretary.
The Secretary proposed a reduction of penalty from $66.00 to $49.00 as
being a proper settlement.
I find that the criteria set forth in section llO(i) of the Act are
met, and I approve the settlement.
Citation No. 151433
The petitioner alleges a violation 30 C.F.R. 57.5-50(b), in that the
drill operator in the 440 South drift was exposed to 2,634 percent of a
permissible limit for an eight hour exposure to noise. Hearing protection
was being worn. Petitioner also alleges that all feasible engineering or
administrative controls were not being utilized to reduce this level in
order to eliminate the need for hearing protection.
I find that the tests made by the inspector were properly conducted
and the results were accurate. It is undisputed that miners who were
operating the jackleg drills were using ear ·plugs with ear muffs over the
ear plugs at the time that the citation was issued. The miners exposure to
noise did exceed the sound levels permissible during an eight hour period
of exposure. A dBA level exceeding 90 dBA is not permissible and the dBA
level during the eight hour period of the inspection measured approximately
114 dBA based on the table utilized by the MSHA in~pector. That being the
case, feasible administrative or engineering controls are to be utilized
as required by the regulation, and if such controls fail to reduce the
exposure toiwithin the permissible levels, personal protection equipment
must be provided.
The feasible controls that could be utilized as testified to by both
parties was that of a muffler installation on the jackleg drill. With the
utilization of this device, the dBA level would be reduced to approximately
110 dBA to 113 dBA. The respondent stated that the dBA level would be
approximately 114 dBA to 115 dBA with the muffler installation. In any
event, regardless of the use of this device, which was the only type of
administrative or engineering control introduced as part of the evidence,
it would fail to reduce the exposure to within permissible levels, that
being 90 dBA for an eight hour period. Thus, personal protection was
required since there would be no other way that the dBA level could be
reduced to the permissible level.
On closing argument, counsel for the Secretary stated that the
utilization of feasible controls is a necessary step as far as the
regulation is concerned. In order to establish a prima facie case, the
Secretary has shown in his case in chief that feasible controls were

1826

available in that a muffler device could have been ut i 1 ized on the jack leg
drills. However, he has also shown that even with such controls the
exposure to noise was not within permissible levels as required by the
regulation. The reduction of noise exposure to a level of 110 dBA to 113
dBA by use of the muffler is a long way from the 90 dBA within an eight
hour period required by the regulation.
Counsel for the Secretary also argues that there was no evidence that
ear plugs and ear muffs reduced the noise to permissible levels. However,
I note that on abatement the inspector was satisfied with this personal
protection, even though the muffler used reduced the sound level from only
one to four dBA.
Therefore, I conclude that the miner involved at the time of the
inspection was exposed to unacceptable or impermissible noise; that no
feasible controls were available to reduce the exposure to within
permissible levels as set forth in 30 C.F.R. 57.5-50(b); and that the
respondent in providing personal protection equipment, in this case, ear
plugs and ear muffs which were not shown to be inadequate, was in_
compliance with the regulation.
Citation No. 151433 is vacated.
ORDER
The foregoing bench Decision is affirmed and respondent is ordered to
pay a civil penalty of $49.00 within 30 days from the date of this
Decision.

Distribution:
U. Sidney Cornelius, Esq., Office of the Solicitor, United States
Department of Labor, 555 Griffin Square Building, Suite 501, Dallas, Texas
75202
Mr. G. Warnock, President, Todilto Exploration & Development Corporation,
3810 Academy Parkway South N.E., Albuquerque, New Mexico 87109

1827

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

!UL 2 i l99\
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 80-365
A.O. No. 11-00599-03040

v.

Orient No. 6 Mine
FREEMAN UNITED COAL MINING COMPANY,
Respondent
DECISION
Appearances:

Rafael Alvarez, Trial Attorney, Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois, for the
petitioner;
Harry M. Coven, Esq., Chicago, Illinois, for the
respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against
the respondent pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment
for two alleged violations of certain mandatory safety standards. Respondent
filed a timely answer and notice of contest and a hearing was convened in
Terre Haute, Indiana, on May 20, 1981. The parties appeared and participated
fully therein, and they waived the filing of posthearing proposed findings and
conclusions. However, I have considered the arguments advanced by the parties
in support of their respective cases during the course of the hearing in this
matter.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 U.S.C. § 801 ~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 ~·

1828

Issues
The principal issue presented in this proceeding is (1) whether respondent has violated the provisions of the Act and implementing regulations as
alleged in the proposals for assessment of civil penalty filed, and, if so,
(2) the appropriate civil penalty that should be assessed against the respondent for the alleged violation based upon the criteria set forth in section
llO(i) of the Act. Additional issues raised are identified and disposed of
where appropriate in the course of this decision.
In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty
to the size of the business of the operator, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of the
violation.
Discussion
Citation No. 1003913, May 8, 1980, charging the respondent with an
alleged violation of the provisions of 30 C.F.R. § 75.1719(l)(d), was settled
by the parties in advance of the commencement of the hearing. The parties
were afforded an opportunity to state their arguments in support of the
settlement on the record, and after due consideration of same, the settlement was approved, and a payment of a civil penalty in the amount of $90,
rather than the initial assessment of $106, was agreed to as a reasonable
and proper settlement disposition for this citation.
Citation No. 1003911, issued on May 6, 1980, cites an alleged violation
of 30 C.F.R. § 75.503, and the condition or practice described by the inspector on the face of the citation is as follows: "A non-permissible transformer
welding machine was located inby last open crosscut in No. 2 entry of the 4th
South entries off the 2nd main east entries, section I.D. 088."
Petitioner's Testimony and Evidence
MSHA Inspector Laverne Hinkle confirmed that he issued the citation in
question during an inspection of the mine in question and that he did so
after finding an energized non-permissible welder located in an area of the
mine which he considered was inby the last open crosscut and therefore a violation of the provisions of section 75.503.
Inspector Hinkle determined that the last open crosscut was at a point
shown on Exhibit P-4, a sketch of the scene of the alleged violation, marked
with a notation "LOX" and circled with an X mark (Tr. 38). He believed the
term "inby the last open crosscut" means anything in the direction of the
ventilation flow of the air current as shown on the exhibit, or away from,
or following the return air direction as depicted by the arrows on the

1829

sketch as they proceed from right to left along the top of the sketch. The
term "outby" would mean away from or down and towards the intake air flow
from the mark "LOX" shown on the sketch toward the mine opening (Tr. 67-70).
With regard to the question as to how he determined there was a violation in this case, Mr. Hinkle testified that he relied on the Inspector's
Manual "policy" statement found under the discussion of section 75.503, and
specifically, the instruction that requires an inspector to cite section
75.503 when he -finds any electric, non-permissible face equipment in a return
air entry (Tr. 23, 30, 33-34, 37-38, 54; Exh. P-9). He candidly conceded
that the reason he cited the law rather than the policy on the face of the
citation was that it was his understanding that policy statements found in
the manual are not enforceable (Tr. 37). His rationale for issuing the
citation is reflected in the following colloquy (Tr. 160-163):
THE COURT: I don't want to put you on the spot; that's
not my intent in asking you my leadoff question.
But when you went into the section, found this welder
over in the return air-THE WITNESS:

Yes, sir.

THE COURT: --did you at that point make up your mind
there was a violation because of what was the policy
guidelines?
THE WITNESS: No, sir. No, sir. I remembered what was
in the policy guidelines. I did not decide it was a violation based on the policy guidelines. I decided it was a
violation on the fact it was nonpermissible equipment in
return air.
THE COURT:

Well, that's--you may--

You made the decision that it was a piece of nonpermissible equipment in return air?
THE WITNESS:
THE COURT:
THE WITNESS:
THE COURT:

Yes, sir.
That's what I asked.

What I am saying is--

I'm sorry.
--standard 75.503 makes no mention of return

air.
THE WITNESS:

Correct.

THE COURT: So, if you made the decision that nonpermissible equipment being in return air was a violation, how

1830

can you say it was a violation of a standard which doesn't
mention return air?
THE WITNESS:

In or inby the last open crosscut.

THE COURT: In other words, it met both criterias, if
you will? Met not only the one on return air but it was
also inby the last open crosscut?
THE WITNESS: Whether or not I followed the manual or
not, the situation remains the same.
THE COURT: Again I think I am beating a dead horse,
but when we think about the last open crosscut, your measurement is from a different reference point, is it not?
THE WITNESS:

Yes, sir, frankly.

THE COURT: You are, aren't you? You are pursuing it
from the standpoint of the ventilation-THE WITNESS: Yes, sir.
measurement on geography.

And Freeman is basing their

THE COURT: That's right.
which party is right?
THE WITNESS:

And the standard doesn't say

Right.

THE COURT: The standard doesn't say whether it's based
on geography or whether it's ventilation or whether it's the
way the moon comes out at night; isn't that correct?
THE WITNESS:

Yes, sir.

MR. ALVAREZ: The case really is based on two factors,
I guess you might say: the Inspector, despite that policy
guideline there, the Inspector would still view it as inby
the last open crosscut, and/or with the policy guidelines.
THE COURT: Well, you know, you can argue the case any
way you want, but if the Inspector finds a piece of nonpermissible equipment in return air, then it's not too difficult for him to find inby the last open crosscut, but it
depends on which reference point he is using; isn't that
true? Intake or return-With regard to the question as to how he applied the term "inby the last
open crosscut" in this case, Inspector Hinkle testified as follows (Tr. 113118):

1831

THE COURT: Do you understand what I am talking about
here? The terms, "inby" and "outby", you explained to us,
was it used in relationship to the face?
THE WITNESS: It was used in relationship to the last
open crosscut, sir.
THE COURT: That's right. What does-- The dictionary
definition seems to define inby in relation to the working
face; in other words, anything that is from this point here
of this ribline toward the face would be inby the last open
crosscut.
THE WITNESS: I believe my definition of inby the last
open crosscut, if you use the face as a reference point, yes,
sir, anything beyond that rib, away from the face, would be
outby the last open crosscut.
THE COURT:
THE WITNESS:

If you used the face as a reference point?
yes, sir.

THE COURT: The Dictionary of Mining Methods and
Terminology which Mr. Coven has a copy of defines inby as
toward the working face or interior of the mine, away from
the shaft or entrance.
How would that comport with your definition of it?
THE WITNESS: This definition, of course, is reliable,
and everyone depends on it. However, I wrote the citation
to say the welder was inby the last open crosscut, but in
that place, sir, it would be inby the face, which is impossible because it had not been mined yet, virgin territory,
so if we are going--if we are going in this direction from
the face, according to the discussion we have just had, we
are going outby, and going in this direction in relationship to the face is going inby. However, the violation as
I seen it at the time I issued it was, in fact, the welder
was inby the last open crosscut in a ventilating current of
air. It was not a term to indicate geography; it was inby
the last open break, crosscut, in the ventilating current
of air.

*

*
MR. COVEN;

*

*

*

*

You are going to 75.503, your Honor--

THE COURT: Why does someone pick return air as the
reference point?

1832

*

THE WITNESS: I don't believe I am qualified to answer
that, sir, but return air becomes return after it passes the
last open crosscut, ventilating these faces. It's right
there, becomes return air. That is defined in the
regulations.
THE COURT: If you are measuring--if the reference point
in determining whether it's inby or outby would be toward the
face, could it be toward the face?
THE WITNESS:
THE COURT:

Yes, sir.
When could it be toward the face?

THE WITNESS: Well, if this welder were placed right
here, it would be inby the last open crosscut.
THE COURT:

Why would it be inby?

THE WITNESS: Because the ventilating current of air
goes here, sir. It's in the middle of it.
THE COURT:
THE WITNESS:

Then it's inby the last open crosscut?
Yes.

If it's back this way it's still inby, sir.
THE COURT:

Where would it become outby?

THE WITNESS: If it were here, sir, outby the last
open crosscut (indicating).
THE COURT:
flowing?
THE WITNESS:

In relationship to which way the air is
Yes, sir.

THE COURT: You would say anything that is in intake
area from that point, from that last open crosscut back
towards the mine entrance, would be outby, and anything
that, as it goes along the return air path, is inby?
THE WITNESS:

Yes, sir.

THE COURT: We're.using two different reference points.
When you determine the inby, aren't you determining that as
far as the last open crosscut as far as the ventilating air
current, are you not?

1833

THE WITNESS:

Yes, sir.

THE COURT: Somebody else might use the face as a
reference point; isn't that true?
THE \HTNESS:

Yes, sir.

THE COURT: So if someone is using the face as a
reference point, they would come around 180 degrees from
if you were using the ventilating current of air as the
reference point as to location of the face equipment;
isn't that true?
THE WITNESS:

It would come out that way.

THE COURT: It would come out that way, wouldn't it?
What do you mean, "could come out that way?" Wouldn't that
logically follow? Tell me how it would come out the same
if someone were to use toward the face as a reference and
someone were to use ventilating current of air?
THE WITNESS:

Okay.

This welder here, irrespective of our point of
reference in our discussion, is still outby; it's outby this
face, outby this face. In perfect, strict mining terminology,
this direction would be outby.
THE COURT: Would it also be outby the last open crosscut from the face?
THE WITNESS: yes, sir, geographically it would still
be outby the last open crosscut, because you are mining, in
this case, in this direction.
THE COURT: This is inby, that is outby the last open
crosscut geographically, and the standard doesn't make any
distinction, does it?
THE WITNESS:
THE COURT:

No, sir.
Then how is there a violation here?

THE WITNESS: Because anything in return air must be
permissible constuction [sic], 75.507, sir.
THE COURT:

75.507?

Well then, why didn't you cite 507 in this case?

1834

THE WITNESS: Well, may I please refer to the manual?
It indicates we should cite nonpermissible conditions
under 503.
Respondent's Testimony and Evidence
Thomas R. Mitchell, respondent's maintenance chief, disputed the location of the welder in question as stated by Inspector Hinkle, and he testified that the welder was located in intake air outby the No. 12 room in the
second crosscut outby the No. 2 entry at the time it was cited. To achieve
abatement, he had it moved approximately 70 feet toward the main entry in
the No. 2 entry approximately one crosscut outby where it had been previously
located (Tr. 91-94). Using respondent's sketch, Exhibit R-2, Mr. Mitchell
indicated where he thought the last open crosscut was located by penciling in
"LOX" on the sketch, and he testified that using the faces of the Nos. 11
and 12 rooms as a point of reference, the welder in question would have been
located outby the last open crosscut (Tr. 97-98). He also indicated that
the terms 11 inby 11 and 11 outby 11 , as commonly used by the industry in Southern
Illinois, mean towards the working face and away from the working face (Tr.
99).
Thomas Bubanovich, employed by the respondent as its chief industrial
engineer, testified that the terms 11 inby 11 and 11 outby11 the last open crosscut,
as used in the coal fields, refer to the direction of mining. Using a new
vertical mine shaft as an analogy and reference point, he indicated that if
one were driving away from the shaft in a northerly direction, the term "inby"
would mean in that northerly direction, and the term 11 outby11 would mean in a
southerly direction coming back to the mine shaft (Tr. 120-121). Using the
inspector's sketch, Exhibit P-4, Mr. Bubanovich expressed disagreement with
the inspector's interpretation that the welder in question was located inby
the last open crosscut, and he stated that he had never heard of the use of
the flow of air as a reference point for applying the term "inby" as the
inspector has in this case (Tr. 120-121, 127).
Mr. Bubanovich testified further that he visits the section in question
once every month but that he was not with the inspector during the inspection
in question (Tr. 135). However, he disputed the extent of the development of
the section as depicted on the inspector's sketch (Exh. P-4), and he indicated that the mine records show that mining had not advanced or developed as
far as the inspector indicated (Tr. 130-134).
Findings and Conclusions
Fact of Violation
Respondent is charged with a violation of the provisions of mandatory
standard 30 C.F.R. § 75.503, which provides as follows: "The operator of
each coal mine shall maintain in permissible condition all electric face
equipment required by 75.500, 75.501, 75.504 to be permissible which is
taken into or used inby the last open crosscut of any such mine."

1835

The critical issue presented in this case is whether or not the welding
machine in question was located inby the last open crosscut as alleged by
the inspector on the face of the citation which he issued. The testimony
presented by the inspector and respondent's witness Mitchell indicates a
conflict as to where they believed the welder was actually located. The
inspector's testimony reflects that it was located in return air, while the
testimony of Mr. Mitchell reflects that it was located in intake air. The
critical question, however, is whether it was located inby the last open
crosscut as that term is generally understood and defined in the mining
community. If the welder was inby the last open crosscut, then a violation
occurred; if it was not, there is no violation.
The condition or practice stated in the citation issued by Inspector
Hinkle makes no reference to the fact that the welder in question was
located in a return air entry. The inspector simply states that it was
located "inby the last open crosscut." It seems obvious to me that the
reason Inspector Hinkle failed to include the fact that the welder was
located in return air on the face of the citation is the fact that the
standard makes no mention of any such prohibition. In this instance,
Inspector Hinkle conceded that he issued the citation because the welder
was located in a return air entry contrary to the policy stated in the
inspector's guidelines •
. The condition or practice cited by Mr. Hinkle on the face of the citation which he issued makes no reference or allegation to the fact that the
welder in question was located in return air. It simply states that it was
"inby the last open crosscut." However, the language contained in the
Inspector's Manual policy statement prohibits such equipment ·from being
operated in a return entry or in or inby the last open crosscut. These
prohibitions are stated in the alternative, and unless they mean the same
thing, MSHA may not rely on one to support the other. In this case, the
terms are not synonymous since the inspector testified that in any section
in a room and pillar-mining system intake air is not always inby the last
open crosscut, and that once the intake air leaves the last open crosscut
it becomes return air (Tr. 67).
It is well settled that inspectors' guidelines and manuals do not have
the status of official mandatory regulatory safety standards. Kaiser Steel
Corporation, 3 IBMA 489, 498 (1974); King Knob Coal Company, Inc., WEVA
79-360 (June 29, 1981). The "policy" statement instructing inspectors to
issue citations citing section 75.503 when they find nonpermissible electric face equipment operating in a return entry is an expansion of the
clear statutory language limiting such violations to equipment observed
operating in or inby the last open crosscut. MSHA has cited no authority,
short of formal rulemaking under the Act, legally authorizing such an
amendment or expansion of a mandatory statutory standard through the publication of "policy" statements. Since the policy statement is stated in the
alternative, an inspector could use it to cite a violation of section 75.503
if he observes non-permissible electric face equipment in or inby the last

1836

open crosscut, and he may also cite a violation if he finds such equipment
located in a return air entry. Since MSHA has not established that such a
return air entry is always inby the last open crosscut, and since the cited
standard does not prohibit such equipment from operating in a return air
entry per se, MSHA must establish through credible evidence that the cited
welder was in fact located and operating inby the last open crosscut in order
to sustain the violation and citation which was issued in this case.
It seems clear to me that Inspector Hinkle's interpretation of the term
"inby the last open crosscut" was based on.his reliance on the policy statement found in the Inspector's Manual as well as his use of a reference point
which is directly related to the ventilating current of air rather than to.
the working face of the mine (Tr. 24, 30, 33-34, 37-38, 54). As a matter of
fact, Mr. Hinkle candidly admitted that anytime he finds non-permissible
electric face equipment located in a return air entry he is free to issue a
citation under section 75.503, and the reason he cites the "law" rather than
the "policy" is that his instructions are not to cite the manual policy provision because an inspector may not rely on it (Tr. 37).
Unless the inspector can establish that the cited non-permissible welder
was located inby the last open crosscut as that term is generally understood
in the mining industry, he should not be permitted to arbitrarily rely on
policy statements which clearly enlarge on a statutory regulation simply
because he believes that non-permissible equipment should not be allowed to
operate in return air. If MSHA believes that the operation of such equipment
in return air is per ~ a hazard, then it is incumbent on MSHA to promulgate
a mandatory standard prohibiting such a practice, rather than attempting to do
so through unpublished policy statements. Further, if MSHA believes that the
use of the terms "inby" and outby" in the mining industry are outmoded, then
I suggest MSHA redefine them through normally acceptable rulemaking rather
than through the issuance of policy statements. Petitioner's counsel conceded that the policy statement found in the Inspector's Manual expands the
statutory language found in section 75.503, but he nonetheless maintained that
an inspector may rely on the policy in citing an operator for a violation of
that section if he finds a non-permissible welder located in return air (Tr.
36).
Respondent's defense to the citation is that the petitioner has failed
to carry its burden of proof and has not established that the non-permissible
welder was in fact located inby the last open crosscut as that term is defined
by the mining dictionary as well as the commonly understood and applied meaning
of that term within the coal-mining industry. Respondent maintains that the
point of reference for determining the meaning of the terms "inby" and "outby"
should be the working production faces and not the flow of ventilating currents. Respondent also maintains that since the Inspector's Manual policy
guidelines are not mandatory standards, the inspector cannot legally apply
them to expand the statutory language contained in section 75.503 (Tr. 7982).
After careful review of the testimony presented during the hearing, I
find the inspector's testimony as to the location of the welding machine in

1837

question to be credible and I accept it. That is, I find that the welder was
located at the approximate location and place in the return air entry as
testified to by Inspector Hinkle and as reflected in his notes made at the
time the citation issued, and as depicted in the sketch which is a part of
the record (Exh. P-4).
The next question to be determined is whether the welder in.question was
inby or outby the last open crosscut. In this regard, I take note of the
fact that neither the Act nor the standard defines the terms "inby" or
"outby." However, the term "inby" is defined by the Dictionary of Mining,
Mineral and Related Terms, U.S. Bureau of Uines, 1968 ed., p. 527, as
follows:
a. Toward the working face, or interior, of the mine;
away from the shaft or entrance; * * * b. In a direction
toward the face of the entry from the point indicated as the
base or starting point. c. The direction from a haulageway
to a working face * * *· d. Opposite oi outby. [Emphasis
added.]
The term "outby" is defined by the mining dictionary as follows:
a. Nearer to the shaft, and therefore away from the
face, toward the pit bottom or surface; toward the mine
entrance. The opposite of inby. Also called outbyeside.
B.C.I.; Fay. b. In a direction toward the mouth of the
entry from the point indicated as the base or starting
point.
In a 1977 publication entitled Introduction to Underground Coal Mining,
NMHSA-CE-001, published by the U.S. Department of the Interior, and apparently used at the National Mine Health and Safety Academy in the training
of MSHA·' s inspectors, the term "inby" is defined as follows in a glossary
of terms listed at page 216: "Toward the working face or interior of the
mine, away from the shaft or entrance."
The mining dictionary referred to above defines the term "face" in
pertinent part as "the solid surface of the unbroken portion of the coalbed
at the advancing end of the working place," "a point at which coal is being
worked away," or "a working place from which coal or mineral is extracted."
The term "face equipment" is defined as electrical equipment "normally
installed or operated inby the last open crosscut in an entry or room."
In one of the earlier cases decided under the 1969 Act, Mid-Continent
Coal and Coke Company, 1 IBMA 250 (December 29, 1972), the former Board of
Mine Operations Appeals had occasion to define the term "inby the last open
crosscut," and in so doing affirmed a judge's ruling that it means "inby
the interior-most rib or wall." 1 IBMA 254.
,Respondent maintains that the term "inby" must be determined by use of
the dictionary definition of that term, and that the starting reference

1838

point should be the interiormost rib or wall as stated in the Mid-Continent
Coal and Coke Company case, supra, and that as applied to the facts of this
case, it is clear that the welder was in fact located outby the face and not
inby as contended by the inspector.
After careful review and consideration of all of the testimony and evidence adduced in this proceeding, including the arguments made by counsel in
support of their r_espective interpretations of the term "inby," I conclude
and find that the respondent has the better part of the argument and I accept
those arguments and reject those advanced by the petitioner. I conclude and
find that the applicable dictionary definition of the term "inby," coupled
with the interpretation placed on that term in the Mid-Continent Coal and
Coke Company case, supra, is controlling in this case. I therefore conclude
that by utilizing the innennost rib of the block of coal which was being
mined in this case as a starting reference point (Exh. P-4), the welder in
question was located outby the last open crosscut labeled "LOX" on that
exhibit, and that it was not in fact located inby the last open crosscut.
I further find that the welder was outby the face which was being mined at
the time in question, down the return air entry, and way from the face area
as depicted on the sketch. The fact that it was in that location is not
per sea violation, and MSHA's attempts to expand on the statutory language
foun~in section 75.503, by means of a policy prohibition against the use
of non-permissible electric face equipment in a return air entry is rejected.
If MSHA believes such a practice should be prohibited, then I suggest it take
the proper steps to promulgate an appropriate safety standard through the
proper rulemaking procedures.
In view of the foregoing findings and conclusions, I find that the petitioner has failed to establish a violation of section 75.503, as charged in
Citation No. 1003911, issued on May 6, 1980, and the citation is VACATED.
ORDER
On the basis of the foregoing findings and conclusions, IT IS ORDERED
THAT Citation No. 1003911, issued on May 6, 1980, charging a violation of
30 C.F.R. § 75.503, is VACATED, and petitioner's proposal for assessment of
civil penalty for the alleged violation is DISMISSED.
In view of the approved settlement for Citation No. 1003913, May 8,
1980, 30 C.F.R. § 75.1719(l)(d), respondent IS ORDERED to pay a civil penalty in the amount of $90 in satisfaction of this violation, payment to be
made within thirty (30) days of the date of this order, and upon receipt of
payment by the petitioner, this matter is DISMISSED.

~.!a~lf~
Administrative Law Judge

1839

Distribution:
Rafael Alvarez, Trial Attorney, Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified
Mail)
Harry M. Coven, Esq., Gould & Ratner, 300 West Washington Street,
Suite 1500, Chicago, IL 60606 (Certified Mail)

1840

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

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

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JUL 21 1981

CIVIL PENALTY PROCEEDING
DOCKET NOS. WEST 80-14-M
WEST 80-468-M
WEST 81-50-M
A/C NOS. 02-00152-05004
02-00151-05021
02-00151-05022
MINES: Superior
San Manuel
San Manuel

APPEARANCES
Marshall P. Salzman, Esq., Office of the Solicitor, United States
Department of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco,
California 94102
For the Petitioner
N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills, 1700 TowneHouse
Tower, 100 West Clarendon, Phoenix, Arizona 85013
For the Respondent
Before: Judge Jon D. Boltz
DECISION AND ORDER
The above-captioned cases were ordered consolidated for hearing and
the hearing was subsequently held in Phoenix, Arizona, on May 15, 1981.
All of the cases involved petitions for assessment of civil penalties
brought against the respondent by the petitioner who alleged violati.ons of
various regulations promulgated pursuant tothe Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 ~seq. (hereinafter "the Act").
At the hearing, the petitioner and respondent stipulated as follows:
1.

The respondent is a large operator.

2.

Respondent has a moderate history of previous violations.

3. Respondent demonstrated good faith in achieving rapid compliance
after notification of violations.

1841

4. The MSHA inspectors who issued the citations were authorized
representatives of the Secretary of Labor.
5. The citations at issue were issued on the date and times indicated
on the citations.
6. The imposition of the proposed penalties will not affect
respondent's ability to continue in business.
The petitioner and respondent proposed the following as settlement to
all of the citations at issue in the above cases, except Citation No.
599623 which will taken up last in this Decision:
Docket No. WEST 80-14-M
Citation No. 382625
Citation No. 380367
Both citations alleged violations of 30 C.F.R. 57.12-8 in that two
junction or signal boxes did not have a strain relief clamp where the
conductor entered the box. Respondent agreed to withdraw its contest and
pay the penalties proposed of $60.00 and $122.00 respectively.
Citation No. 380364
This citation alleged a violation of 30 C.F.R. 57.11-1 for failure of
the respondent to provide a safe means of access to a working place.
Petitioner stated that investigation had disclosed that the gravity of the
violation was not as serious as initially assessed and that the penalty
should be reduced from $90.00 to $50.00. Respondent agreed to withdraw its
contest and pay the revised penalty of $50.00.
Docket No. WEST 81-50-M
Citation No. 599628
Petitioner alleged a violation of 30 C.F.R. 57.13-21, however,
counsel stated that additional investigation by MSHA indicated that there
was insufficient evidence to sustain the allegation. Accordingly, the
petitioner moved to withdraw the proposed penalty and vacate the citation.
This motion was approved.
Docket No. WEST 80-468-M
Citation No. 599800
Citation No. 599801
In both citations, the petitioner alleged a violation of 30 C.F.R.
57.12-25 for improper electrical grounding. The respondent agreed to
withdraw its contest to the alleged violations and to pay the two $255.00
penalties as proposed.

1842

Citation No. 599623
Petitioner alleges that respondent violated 30 C.F.R. 57.tl-l in
fai 1 ing to provide a safe means of acc.ess to an employee's working place.
Specifically, the electrician employed by the respondent was observed on
top of a 20 foot li~ht ~ole without a safe access to that area
This
employee had one leg straddled on the light cross beam~ He then proceeded
to slide 10 feet down the pole to reach a 10 foot ladder. Petitioner and
respondent agreed to these facts, but respondent argued that the behavior
of the employee was at variance with what the employee had been instructed
to do on the job. Thus, the respondent· argued that it should not be held
strictly liable on the basis of the idiosyncratic behavior of an employee.
I find that respondent's argument goes only to the question of
respondent's negligence as an employer and does not relieve the respondent
of liability for the violation of the cited regulation. On the basts of
the agreed facts, I find that there was a violation of the cited
regulation, that respondent was liable, but that there was little, if any,
negligence on the part of the employer. Accordingly, the proposed penalty
should be reduced.
Frbm the bench, I approved the proposed settlements after considering
the statutory criteria as set forth in section llO(i) of the Act. In
regard to Citation No. 599623, I find that a penalty should be assessed in
the amount of $50.00.
ORDER
The settlements approved from the bench are hereby affirmed.
No. 599623 is also affirmed.

Citation

The respondent is ordered to pay total penalties in the sum of $792.00
within 30 days from the date of this Decision.

Distribution:
Marshall P. Salzman, Esq,, Office of the Solicitor, United States
Department of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco,
California 94102
N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills, 1700 TowneHouse
Tower, 100 West Clarendon, Phoenix, Arizona 85013

1843

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

JUL 2 3 1981
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JOHN F. MONAHAN,

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Complainant,

v.
EXXON MINERALS COMPANY,
Respondent.

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE
DOCKET NO. WEST 81-196-DM
MSHA CASE NO. 81-11

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

ORDER
On June 8, 1981, respondent filed a motion to dismiss. As grounds
therefor, respondent states that complainant's employment with the
respondent was terminated on February 14, 1980. It was not until October
13, 1980, nearly eight months later, that complainant filed a complaint
with the Secretary alleging that his discharge was in violation of Section
lOS(c)(l) of the Federal Mine Safety and Health Act of 1977.
Section lOS(c)(l) provides that any miner who believes he has been
discriminated against, "may, within 60 days after such violation occurs,
file a complaint with the Secretary alleging such discrimination." 30
U.S.C. § 815(c)(2). It has been held that, "none of the filing deadlines
are jurisdictional in natur~ Rather, they are analogous to statutes of
limitation~ which may be waived for equitable reasons."
Secretary of
Labor, on behalf of Gary M. Bennett v. Kaiser Aluminum and Chemical ,
Corporation, CENT 81-35-DM (June 15, 1981). See also Christian v. South
Hopkins Coal Co., l FMSHRC 126 (1979).
Complainant does not deny the delay in filing his complaint with the
Secretary. Rather, complainant states that the delay was due to personal
problems such as finding other employment and obtaining a divorce.
Complainant's Reply, filed June 22, 1981.
I find that the explanations given by the complainant for the delay do
not constitute "equitable reasons." The personal reasons listed by the
complainant should not be considered justification for such a lengthy
delay.

1844

The delay in the filing of the complaint makes it difficult for the
respondent to obtain evidence because of the passage of time, and to force
the respondent to defend itself in a suit after such a long period would be
unjust.
Therefore, respondent's motion to dismiss is hereby GRANTED and the
case DISMISSED;

~f~
Administrative Law Judge
Distribution:
JoAnn L. Regan, Esq.
Kenneth C. Minter, Esq.
P.O. Box 2180
Houston, Texas 77001
Mr. John F. Monahan
P. 0. Box 11 72
Glenrock, Wyoming 82637

1845

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

JUL 2 4 1981

Civil Penalty Proceeding

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

Docket No. HOPE 78-744-P
A. C. No. 46-03467-02070

v.

SEWELL COAL COMPANY,
Respondent

Meadow River No. 1 Mine

SUPPLEMENTAL DECISION
The Petitioner seeks civil penalties under section llO(i) of the
Federal Mine Safety and Health Act of 1977 for two violations alleged in
notices issued on February 13 and 14, 1978, respectively, at Respondent's
Meadow River No. 1 Mine. The first notice of violation alleges that
Respondent violated 30 CFR § 75.1704(b), failing to maintain a designated
intake escapeway to insure the passage of any person at all times. The
second notice alleges that Respondent violated 30 CFR § 75.200 by permitting the occurrence of fractured and loose roof in the No. 1 section above
the No. 1 entry roadway just inby the last open crosscut and extending in
toward the face approximately thirty feet.
In its remand dated June 11, 1981, the Federal Mine Safety and Health
Review Commission concluded that both violations occurred as charged by
the Secretary and directed that penalties be assessed therefor.
The parties agreed in stipulations that the Respondent is a large
operator (stipulation No. 4, Tr. 6), that it had a moderate history of
previous violations (No. 12, Tr. 7), and that the Respondent demonstrated
good faith in abating the notices of violations. Respondent concedes that
the payment of appropriate penalties would not jeopardize its ability to
continue in business (Tr. 48).
The statutory penalty assessment factors of "negligence" and "gravity"
remain for discussion. These factors must be considered in light of the
unique circumstances in which the notices were issued. At that time,
employees at the mine had been on strike for over two months (stipulation
No. _6, Tr. 6). Paul Given, Respondent's Safety Director, testified that
during the strike the Respondent was 'unable to assign sufficient personnel
for inspection and upkeep of the mine as would be necessary to prevent all
violations. He stated that 50 to 60 miners would be needed during a strike
to avoid violations, but that he had only 33 supervisory personnel working.
Other than the inspector's unsupported opinion which I reject as not probative, there was no evidence that Respondent was negligent in committing
the specific violations charged by Petitioner and found by the Connnission
to have occurred (Tr. 24, 39-41). There is substantial unrebutted evidence
in the record that no negligence occurred (Tr. 36, 38, 113, 120, 127), and
I so find.

1846

The inspector testified that the escapeway violation was not particularly serious while the roof control violation was serious (Tr. 30, 37).
Significantly, he also indicated that the gravity of the infractions was
lessened by the fact that the mine was closed (Tr. 33), and that the policy
behind issuing violations during "labor disputes" was to "document" hazardous conditions so that they could be corrected "when the work force returned."
(Tr. 55, 57, 68, 71, 72). In this connection, he established the abatement
time for the notices on a date he anticipated the strike would be over (Tr.
58, 71). In these.circumstances, I find that neither violation was serious
and that nominal penalties of $1.00 for each violation are appropriate.
ORDER
Respondent is ordered to pay $2.00 to the Secretary of Labor within
30 days from the date hereof.

Distribution:
Michael McCord, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
C. Lynch Christian, Esq., Jackson, Kelly, Holt & O'Farrell, P. 0.
Box 553, Charleston, WV 25322 (Certified Mail)
Gary W. Callahan, Esq., Sewell Coal Co., Lebanon, VA
(Certified Mail)

1847

24266

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

EASTERN ASSOCIATED COAL CORPORATION,
Contestant
v.

lUL 29 \~\

Contest of Citation
Docket No. WEVA 80-619-R
Federal No. 2 Mine

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

Civil Penalty Proceeding
Docket No. WEVA 81-218
A.C. No. 46-01456-03087

Petitioner
v.

Federal No. 2 Mine
EASTERN ASSOCIATED COAL CORPORATION,
Respondent
UNITED STEEL MINE WORKERS OF AMERICA,
Intervenor
DECISION
Appearances:

Sally S. Rock, Esq., Eastern Associated Coal Corporation,
Pittsburgh, Pennsylvania, for Eastern Associated Coal Corp.;
Edward H. Fitch, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Secretary of
Labor;
Terry Osborne, United Mine Workers of America, Morgantown,
West Virginia, for Intervenor.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

Eastern Associated Coal Corporation (hereinafter "Eastern") commenced
this action on August 11, 1980, by filing a Notice of Contest, concerning
Citation No. 0631927, against the Secretary of Labor, Mine Safety and Health

1848

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").
On February 18, 1981, MSHA filed a civil penalty proceeding against Eastern
arising out of the same citation. Subsequently, the two proceedings were
consolidated.
Upon completion of prehearing requirements, hearings were held in
Pittsburgh, Pennsylvania on January 22 and 23, and March 30 and 31, 1981.
The following witnesses testified for MSHA: Kevin Cross, Dominic Salentro,
William Deegan, James Merchant, Lawrence Knisell, John Phillips, Fred
Williams, and Paul Hall. The following witnesses testified on behalf of
Eastern: Lamar Richards, Gary Cumberledge, Gary McHenry,\Frank Peduti, and
John Hetric. The United Mine Workers of America (hereinafter "UMWA") participated in this case as an intervenor on January 22, 1981, b~t not thereafter.
Eastern and MSHA filed posthearing briefs.
ISSUES
Whether the citation was properly issued and, if so, the amount of the
civil penalty which should be assessed.
APPLICABLE LAW
30 C.F.R. § 75.1401-1 provides as follows: "The American National
Standards Institute 'Specifications For the Use of Wire Ropes for Mines,"
}ill.I - 1960, or the latest revision thereof, shall be used as a guide in
the use, selection, installation, and maintenance of wire ropes used for
hoisting."
STIPULATIONS
The parties stipulated as follows:
1.

Eastern is the owner and operator of the Federal No. 2 Mine.

2. The operator and the Federal No. 2 Mine are subject to the jurisdiction of the Act.
3. The presiding Administrative Law Judge has jurisdiction over this
proceeding.
4. The inspector who issued the subject citation was a duly authorized
representative of the Secretary.
5. True and correct copies of the subjec·t citation, modification, and
termination thereof were properly served upon the operator.
6. Copies of the subject citation, modification, and termination are
authentic and may be introduced into evidence for the purpose of establishing
their issuance and not for the truthfulness or relevancy of any statements
asserted therein.

1849

7. All witnesses who will testify are accepted generally as experts in
coal mine health and safety.
8. The latest revision of the American National Standards Institute
"Specifications for the Use of Wire Ropes for Mines," Mll.1-1960 is the
1980 edition, approved March 14, 1979. The standards set forth therein are
the standards to be used in the inspection and removal of hoist ropes
pursuant to 30 C.F.R. § 75.1401-1.
FINDINGS OF FACT
I find that the preponderance of the evidence of record establishes
the following facts:
1. Eastern is the owner and operator of Federal No. 2 Mine in
Fairview, West Virginia. The controversy at issue relates to the wire rope
used on the manhoist at A shaft. During a normal working day, 40 miners
simultaneously ride the manhoist between the surface and the area of the
active workings located about 740 feet below. The manhoist and wire rope
are used 80 times a day, 365 days a year.
2. The wire rope in question was installed by Eastern in 1968. In
addition to the visual inspection required by law, Eastern contracted with
Rotesco to perform electromagnetic tests of the rope. The last such test
was performed on April 15, 1980. On May 21, 1980, Rotesco reported that the
rope had lost a maximum of 13 to 14 percent of its strength but did not
recommend that it be removed.
3. The American National Standards Institute approved the latest
revision of its "Specifications for the use of wire ropes for mines"
Mll.1-1980 on March 14, 1979.
4. On April 15, 1980, three broken wires were found in one strand 1/ in
one lay 2/ of the counterweight rope at A shaft. Thereafter, the counterweight rope was replaced by the only spare rope available at the mine property. On April 16, 1980, Eastern issued a purchase order for two spare wire
ropes. Although these ropes were to be delivered to the mine on June 27,
1980, they were not received until July 24, 1980.
5. At Eastern's inspection on April 16, 1980, one broken wire in one
strand of the hoist rope was discovered. This fact was recorded in the
Report of Daily Inspection of Hoisting Equipment.

•

1/ A strand is a number of steel wires grouped together by twisting. The
steel wire rope in question consists of a number of strands laid around a
fiber core.
J:../ A lay is the distance it takes one strand to make one complete turn
around the axis of the rope.

1850

6. Between April 17, 1980 and July 21, 1980, the date the citation was
issued, MSHA conducted seven separate inspections of the rope in question
pursuant to UMWA complaints under section 103(g) of the Act. The dates of
these inspections and the pertinent findings by MSHA are as follows:
(a) April 17, 1980. Thirty broken wires were found. Two broken wires
we.re found in the same lay, but the MSHA inspectors were not sure if they
were in the same strand. The diameter of the rope was not recorded. MSHA
inspectors advised the UMWA that there was no criteria by which to order
the rope out of service.
(b) May 15, 1980. Thirty-three broken wires were found.
wires were found in one strand and one lay.

Two broken

(c) May 19, 1980. Thirty-three broken wires were found but the entire
rope was not inspected. The MSHA inspectors again said there was no criteria
by which to retire the rope because the rope did not have three broken wires
,,
in one strand or six broken wires in one lay.
(d) June 25, 1980. Thirty-nine broken wires were found in three
different locations, with two .. broken wires in one strand in one lay.
(e)

July 14, 1980.

No record of results of inspection.

(f) July 16, 1980. Forty broken wires were found. In four strands,
two broken wires were found in one lay. The smallest diameter of the wire
rope was 2.14 inches. Eastern stated that a new wire rope was to be
delivered on July 28, 1980.
(g) July 21, 1980. Forty-one broken wires were found. Four strands
had two broken wires in one lay. The smallest diameter of the rope was 2.13
inches. Citation No. 0631927 was issued.
7. On July 21, 1980, MSHA Inspector John Phillips issued Citation
No. 0631927 pursuant to section 104(a) of the Act and 30 C.F.R. § 75.1401-1.
The citation alleged the following:
The time for removal of the man cage wire rope in
A shaft is indicated by the increased No. of broken wires;
four locations with two broken wires in.one strand in one
lay, 33 broken wires at different locations, mak.ing a total
of 41 broken wires. A marked reduction in rope diameter
at four locations in the entire rope from a nominal diameter
of 2.25 inches to a diameter of 2.13 inches. Evidence of
excessive abrasion on the outside wires is evident. The
above mentioned was determined by an inspection of the
entire wire rope. The termination due date was established
as midnight, July 28, 1980.

1851

8. On July 28, 1980, Inspector Phillips modified and terminated the
citation as follows:
This citation is modified to indicate the American
National Standards Specifications for use of wire ropes for
mines Mll.l 1960 or the latest revision thereof was not
being used as a guide for inspection and removal of the man
cage wire rope as indicated by the above mentioned conditions
in the original Citation No. 0631927 and the Mine ID should
have been 46-01456 instead of 46-01455.
The Company installed a new wire rope on the man cage in
A shaft.
9. On March 14, 1979, the American Standards Institute, Inc., approved
a revision of the "American National Standard for wire rope for mines"
ANSI ~111.1-1980 (hereinafter ANSI Standard). The pertinent provisions of the
above standard are as follows:
1.5 Mandatory and Advisory Rules. In the 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.
3.11.3 Visual Evidence of Rope Degradation. Im addition
to the regularly scheduled inspections, the machine's
operating personnel should report any visual evidence of rope
degradation, such as:
(1) Severe abrasion, scrubbing, peening, or kinking, or
broken outer wires

*

*

*

*

*

*

*

(3) Severe reduction of rope diameter or an observable
increase in rope lay.

*

*
(8)
4.6.2

*

*

*

*

A rapid increase in the number of broken wires.
Retirement Criteria

4.6.2.l Causes for Rope Retirement.
causes for rem~val of wire rope:

The following are

(1) Visible Wire Breaks. More than six randomly distributed broken wires on one rope lay or three broken wires
in one strand in one rope lay.

1852

*

(2)

Worn Wires.

(3) Evidence of Loss of Strength. An estimation of
from 10%-25% loss of rope strength (based upon measurements
of rope diameter, wear pattern dimensions, corrosion, and the
number of broken wires), estimated with a series of charts
and graphs; charts and graphs may be provided by a wire rope
or equipment manufacturer. Electromagnetic or other nondestructive testing devices may be used as a supplement but
not as a substitute for recommended inspection and tests.
(4) Evidence of Rope Abuse. The following are typical
evidences of rope abuse: a kink ( a pulled-out twisted loop);
a dogleg (a simple, permanent bend); a birdcage (strands
separated and ballooned out); loose or high strand(s); a badly
out of round section; a crushed or flattened section with
abraded or broken wires; loose or looped wires with no visible
breaks; a protruding core; a local section with an unusually
small diameter; or a local section with an usually short or
unusually long lay length. It should be noted that these
conditions are all evidence of radical changes - that is,
constructional upsets - in the structure of the rope. Removal
is not required if the abuse can be removed by an end cut.
10. The rope in question did riot have more than six randomly distributed
broken wires in one rope lay or three broken wires in one strand in one rope
lay.
11. The maximum amount of reduction in the diameter of the rope was
from 2.25 inches to 2.13 inches, or 5.3 percent.
12. MSHA did not issue a safeguard or limitation on the maximum load to
be carried on this rope at any time prior to the issuance of the citation.
13.

The term "worn wires" is not defined in the ANSI standard.

14. After the rope in question was removed, a 14 foot piece of the
rope was tested to failure by Bethlehem Steel Corporation. The rope had a
catalogue strength of 480,000 lbs. and failed at 453,000 lbs or 5.6 percent
less than the catalogue strength.
15. The UMWA protested the continued use of the rope by refusing to
work as follows:
April 24, 1980
July 16, 1980
July 17, 1980
July 21, 1980
July 22, 1980
July 23, 1980

1 shift
3 shifts
1 shift
3 shifts
2 shifts
1 shift

1853

16. MSHA does not allege that the rope presented an "imminent danger"
under section 107(a) of the Act.
DISCUSSION
Difficulty of Determining Time for Removal of Wire Rope
At the outset, it is recognized that determining the time for removal of
a wire rope is an extremely difficult and complicated decision. This fact
is demonstrated by section 4.6.1.1 of the ANSI Standard which states in
pertinent part: "The decision concerning the proper time to retire a wire
rope from service is difficult to make because of a significant lack of rope
retirement criteria related to mining." MSHA's wire rope expert, Inspector
Fred Williams, agonized over the "great burden to • • • look at a rope and
make a decision and knowing that person's lives are involved and finally
deciding that it is safe for another month or safe for another two months,
it is quite a decision to make." (Tr. 302).
However, it must also be noted that this is not a case involving an
alleged "imminent danger" under section 107(a) of the Act. MSHA never
asserted that the rope presented an immient danger. Hence, much of the evidence and argument presented by MSHA concerning the fears of miners and
inspectors about the "last safe trip" of the manhoist is irrelevant to this
proceeding. The basic issue here is whether MSHA established the violation
of 30 C.F.R. § 75.1401-1 pursuant to the citation issued under section 104(a)
of the Act.
Analysis of the ANSI Standard
The issue of whether the 1960 ANSI Standard is a mandatory or advisory
standard is presently pending before the Federal Mine Safety and Health
Review Commission (hereinafter "the Commission"). In Jim Walter Resources,
Inc., 2 FMSHRC 1890 (July 25, 1980) Judge George Koutras reviewed and
analyzed the 1960 ANSI Standard and concluded that "the specific ANSI
Standards relied on by MSHA in support of the alleged violation in this
case are advisory guides for voluntary use by the industry." Id. at 1902.
(Emphasis in original.) Judge Koutras was construing 30 C.F.~§ 77.1903(b)
which' is identical to the instant regulation at 30 C.F.R. § 75.1401-1. The
Commission directed review of that decision. Curiously, MSHA neither
addresses the issue of whether the ANSI Standard is mandatory or advisory
nor mentions the Jim Walter Resources, Inc., -decision, in its brief. Moreover, MSHA did not reply to Eastern's assertion that•3o C.F.R. § 75.1401-1
is not a nandatory standard.
It must first be determined whether the citation alleged the violation
of a mandatory standard. Section 104(a) of the Act permits MSHA to issue
citations for violations of the "Act or any mandatory health or safety
standard, rule, order, or regulation promulgated pursuant to this Act." Thus,
a citation may be issued to an operator for violation of a regulation which
is not a mandatory health or safety standard. However, section llO(a) of

1854

the Act permits the assessment of a civil penalty only against a person who
violates "a mandatory health or safety standard or who violates any other
provisions of this Act • • • • "
30 C.F.R. § 75.2 states that all safety standards in Part 75 are
mandatory. 30 C.F.R. § 75.1401-1 states that the ANSI Standard shall be
used as a guide. However, section 1.5 of the ANSI Standard provides that
these standards using the term "shall" are mandatory while others using the
term "should" are advisory in nature.
In the instant case, the record is replete with references to various
ANSI Standards. MSHA' s ·inspectors allege violations of ANSI Standards concerning daily examination of the rope and record keeping requirements.
This evidence is irrelevant since the citation in issue alleges only the
violation of ANSI Standards for failure to remove or retire the rope. It
is clear that Inspector Phillips issued the citation because of the reduction
in the diameter of the rope and the existence of broken wires. Inspector
Hall stated that the substance of the alleged violation was broken wires,
marked reduction of the rope diameter, and excessive abrasion. Inspector
Williams and Inspector Phillips expressed their belief that Eastern violated
sections 3.11.3 and 4.6.2.l of the ANSI Standard.
ANSI Standard section 3.11.3 begins as follows: "In addition to the
regularly scheduled inspections, the machine's operating personnel should
report any visual evidence of rope degradation, such as • • • • " (Emphasis
supplied.) Pursuant to section 1.5 of the ANSI Standard, the use of the term
"should" renders section 3.11.3 an advisory standard. Thus, since section
3.11.3 is not a mandatory standard, no civil penalty can be assessed for a
violation of that section. Moreover, ANSI Standard 3.11.3 only suggests
that "operating personnel should report any visual evidence of rope degradation • • • • " And does not purport to establish criteria for removal or
retireMent of the rope. The citation in issue was based upon Eastern's
failure to remove or retire the rope. MSHA did not cite Eastern for violation of 30 C.F.R. § 75.1400-3 which sets forth the requirements for the daily
examination of hoisting equipment. Therefore, I find that MSHA's reliance
upon section 3.11.3 of the ANSI Standard is misplaced, since the issue here
whether Eastern violated the ANSI Standard by failing to remove or retire
the rope prior to the time the citation was written.
The only ANSI Standard applicable to this case is section 4.6.2.1
which describes "causes for rope retirement." It is noted that this
standard does not contain the terms "shall" or "shou}d" as defined in
section 1.5 of the ANSI Standards. However, the introductory language of
this section states: "The following are causes for removal of wire rope
• • • • " I find that the above quoted language of this section denotes a
mandatory requirement. Hence, if MSHA establishes a violation of section
4.6.2.1 of the ANSI Standard, the citation will be affirmed and a civil
penalty assessed.

1855

Section 4.6.2.1(1) provides for the removal of wire rope where there
are "more than six randomly distributed broken wires on one rope lay or
three broken wires in one strand in one rope lay. 11 On this question, there
is no conflict in the evidence. There is no evidence of more than six
randomly distributed broken wires in one rope lay. Likewise, there is no
evidence of three broken wires in one strand in one rope lay. On the date
the citation was issued, MSHA found four strands with two broken wires in
one lay. This evidence does not meet the criteria in section 4.6.2.1(1)
concerning visible wire breaks.
Section 4.6.2.1(2) provides for the removal of wire rope when there are
"worn wires." The term, "worn wires," is not defined in the ANSI Standard.
MSHA contends that there were worn wires while Eastern denies this assertion.
The evidence establishes that wearing o~ abrasion begins with the first use
of every wire rope. To that extent, every rope in service has "worn wires."
The failure of the ANSI Standard to define the term "worn wires" renders this
section too vague to be enforceable. See Connally v. General Construction
Co., 269 U.S. 385, 391 (1926). In any event, UMWA Safety Committeeman Kevin
Cross testified that he inspected the wire rope on four occasions between
April 17, 1980 and the date of this citation and he saw no evidence of wear
on the rope.
Section 4.6.2.1(3) provides that a cause for rope removal is as follows:

*

*

*

*

*

*

*

(3) Evidence of Loss of Strength. An estimation of
from 10%-25% loss of rope strength (based upon measurements
of rope diameter, wear pattern dimensions, corrosion, and the
number of broken wires), estimated with a series of charts
and graphs; charts and graphs may be provided by a wire rope
or equipment manufacturer. Electromagnetic or other nondestructive testing devices may be used as a supplement but
not as a substitute for recommended inspection _and tests.
It must first be determined if this provision even qualifies as a standard of
any kind. The section apparently provides that if it is estimated that there
is a ~10 to 25 percent loss of rope strength, the rope should be removed. It
does not appear that ANSI intended that ropes _with less· than a 10 percent
loss of strength should be removed. The standard can be read as requiring
the removal of ropes with a loss of strength.of 25 percent or more. For
losses of strength of less than 25 percent but more ehan 10 percent, the
standard is vague and unenforceable under the Act. Since there is no evidence
in the record of a 25 percent loss of strength of the rope in question, MSHA
failed to prove a violation of this section.
Section 4.6.2.1(4) deals with evidence of rope abuse. However, MSHA's
wire rope expert, Inspector Fred Williams, conceded that there was no
evidence of rope abuse in this case.

1856

In conclusion, MSHA has failed to establish a violation of the applicable ANSI Standard. The foregoing discussion illustrates the problems encountered by MSHA in its attempt to delegate the promulgation of mine safety
enforcement standards to a non-governmental body. On April 28, 1981, MSHA
published a notice that it intends to propose "specific requirements for
wire ropes [which) will eliminate the need to incorporate by reference the
ANSI Standard." 46 Fed. Reg. No. 81 at 23987 (April 28, 1981).
CONCLUSIONS OF LAW
1. The Administrative Law Judg~ has jurisdiction over the parties
and subject matter of this proceeding.
2.

Eastern and its Federal No. 2 Mine are subject to the Act.

3. The evidence of record fails to establish that Eastern violated
the ANSI Standard as alleged and Citation No. 0631927 is vacated.
4. The evidence fails to establish the violation of a mandatory health
or safety standard and the petition to assess a civil penalty is dismissed.
ORDER
WHEREFORE IT IS ORDERED that Eastern's Contest of Citation No. 0631927
is SUSTAINED and Citation No. 0631927 is VACATED.
IT IS FURTHER ORDERED that the petition to assess a civil penalty is
DISMISSED.

O"

A. Laurellson, Judge

Distribution Certified Mail:
Sally S. Rock, Esq., Eastern Associated Coal Corp., 1728 Koppers Bldg.,
· Pittsburgh, PA 15219
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 2220}
Terry Osborne, United Mine Workers of America, District 31, Route No. 1,
Box 103-E, Morgantown, WV 26554

1857

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

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

Civil Penalty Proceeding
Petitioner

Docket No. KENT 80-292
A.C. No. 25-02502-03018F

v.

No. 18 Mine
SHAMROCK COAL COMPANY,
Respondent
DECISION
Appearances:

George Drumming, Jr., Esq., Assistant Solicitor, Mine
Safety and Health Administration, U.S. Department.of Labor,
Nashville, Tennessee, for Petitioner;
Neville Smith, Esq., Manchester, Kentucky, for Respondent.

Before:

Judge Lasher

This proceeding arose under section llO(a) of the Federal Mine Safety and
Health Act of 1977. A hearing on the merits was held in Manchester, Kentucky,
on May 19, 1981, and May 20, 1981. After considering evidence submitted by
both parties and proposed findings of fact and conclusions of law proffered
by counsel during closing argument, I entered an opinion on the record. 1/
My bench decision containing findings, conclusions and rationale appearsbelow as it appears in the record, aside from minor corrections.
This proceeding was initiated by the filing of a petition for a penalty assessment by the Mine Safety and Health
Administration on August 25, 1980, pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977 alleging
two violations of 30 C.F.R. § 75.200 involving in turn two
alleged infractions of the Respondent's approved roof-control
plan on October 30, 1979. On this date, at apprbximately
6:30 p.m., a roof fall occurred in the No. 4 entry of the
005 secti.on of Respondent's No. 18 Mine resulting in the
death of section foreman Floyd D. "Dave" Burke. Following

J:/

Tr. 201-220.

1858

the accident, Mine Safety and Health Administration inspector Lawrence Spurlock issued a withdrawal order pursuant
to section 103(k) of the Act to assure the safety of the
miners until the MSHA investigation was completed. This
withdrawal order which issued at 10 p.m. on October 30 was
terminated on October 31, 1979, at 5 p.m. On October 31,
1979, Citation No. 736789 was issued alleging noncompliance
with the roof-control plan in that additional support, such
as timbers or cribs, was not being used with metal straps
where abnormal conditions were encountered and, furthermore,
that a test hole was not drilled in the subject area. This
citation, which issued at 4:30 p.m., was terminated 2 days
later on November 2, 1979, when the inspector determined that
the roof-control plan was being complied with inasmuch as
additional support, such as cribs and timbers, were installed
in the accident area and a test hole had been drilled.
The parties, both of whom were represented by counsel
at the hearing, entered various stipulations covering the
jurisdiction of the Administrative Law Judge and further
indicating that Respondent is a large operator; that the
operator's history of previous violations for the 24-month
period prior to October 30, 1979, revealed that Respondent
was assessed and paid penalties for eight violations of
30 C.F.R. § 75.200; that Respondent demonstrated normal good
faith in attempting to achieve compliance; t~at assessment of
penalties would not affect Respondent's ability to continue
in business; and that the injury frequency rate comparison of
Respondent for the last quarter available prior to the accident was 9.62 for the coal mining industry and .62 for
Respondent. That is, Respondent's injury frequency rate was
.62 whereas the industry frequency rate was 9.62.
The paramount issues in this case involve the proper
construction to be placed on pertinent language in the roofcontrol plan (Exh. P-8). That plan, at page 4, in pertinent
part provides:
Crossbars to be used when pots, slips, horsebacks or hill seams are encountered. A minimt.nn of
two crossbars to be used at each locatiort. At
least one post to be used under each end of the
crossbars and the posts are not to be more than
fourteen feet apart. Crossbars to be installed on
four foot centers and the foreman in charge shall
determine when the installation of crossbars is to
be discontinued.
Steel straps predrilled on not more than four
foot centers and installed with roof bolts on not

1859

more than four foot centers may be used in lieu of
wood crossbars, as stated above, in areas where the
roof structure is of such nature that it will provide adequate anchorage for roof bolts.
In areas where steel straps have been utilized
in lieu of wood crossbars where abnormal roof conditions are encountered, the area shall be supported
with cribs and-or posts set on four foot centers
on each side of a sixteen foot wide roadway.
Counsel for both parties agree that the main legal issue
is whether abnormal or subnormal roof conditions existed in
the area where the roof fall occurred. The three-paragraph
portion of the roof-control plan above quoted refers to
abnormal roof conditions in the third paragraph thereof. At
page 5 of the roof-control plan, an explanation is contained
in paragraph 1 to this effect: "This is the minimum roof
control plan and was formulated for normal roof conditions
and the mining system(s) described. When subnormal roof conditions are encountered, indicated or anticipated, additional
roof support such as longer and/or additional roof bolts,
posts, or crossbars, shall be installed."
MSHA seeks penalties for two violations of the plan,
the first being for the failure to install cribs or posts as
required by the third paragraph of the plan quoted hereinabove and the second for failure to install a drill hole as
MSHA contends is required by paragraph 12 of the plan shown
on page 6 thereof which provides:
During each produ~tion shift at least one
roof bolt hole in each active working place shall
be drilled to a depth of at least twelve inches
above the anchorage horizon of the bolts being
used shall either: (a) be left open; (b) be
plugged with a readily removable plug; or (c)
a roof bolt compatible in length with the depth
of the hole shall be installed and the plate
shall be encircled with a paint distinctively
different in color from the roof.
Inspector Spurlock testified on behalf of MSHA and indicated that after being notified of the accident he went to the
mine, arriving there at approximately 8:30 p.m. on October 30.
He ~~turned on October 31 at approximately 9 a.m. and conducted
an accident investigation. Among other things, he .determined
that the dimensions of the part of the roof which fell were
approximately 40 feet long, 20 feet wide and 20 to 36 inches
~hick.
These dimensions differ somewhat, but not in a material

1860

way, from the dimensions provided in MSHA's Report of Investigation (Exh. P-7) at page 2 thereof.
The inspector testified that the Report of Investigation
reflected what he found during his investigation. He also
indicated that the roof fall covered approximately half of
the entry in which it fell; that some of the roof which fell
landed on a continuous miner and shuttle car which were in
the area; and that there were hill seams present in the subject location, some three in number, running one side to the
other about 30 to 40 feet as reflected in a sketch contained
on page 3 of Exhibit P-7. Although at the commencement of
the hearing Respondent challenged the accuracy of the sketch
in a general way, I find that insofar as an evaluation of the
accident scene for purposes of this proceeding are concerned,
the sketch is sufficiently accurate to be accepted as an
indication of the locations of the hill seams, equipment and
personnel involved at the time and place of the accident.
There was no substantial challenge or attack with respect to
the accuracy of the sketch during the hearing.
The inspector also determined that the means of roof support employed was. that designated in the second paragraph of
the three-paragraph roof-control plan mentioned above, that
is, steel straps installed with roof bolts. Steel straps
and roof bolts were found at the place where the roof had
fallen. The inspector testified that in his opinion the
Respondent was not in compliance with the plan since it did
not use cribs or timbers; that any fracture in the roof is
"abnormal" and that in this respect he disagreed with the
Respondent's safety director, Gordon Couch, with whom he had
a conversation on October 31, 1979. According to the inspector, Mr. Couch's belief was that hill seams were normal
because of their prevalence throughout the mine and in the
section where the accident in question occurred.
With respect to the second alleged violation, the
inspector testified that he was told by day shift foreman James
Napier that he, Napier, had asked for a test hole to be drilled.
The inspector, during his investigation on October 31, 1979,
also conversed with the roof bolter on the day•shift, Stanley
Roark, who told the inspector that he was directed by Foreman
Napier to drill a test hole but that he did not. The inspector
testified that on November 31 he looked for a test hole but
could not find one.
The No. 18 Mine has two production shifts each day, the
first from approximately 7:30 a. m. to 3:30 p.m. and the
second from 3:30 p.m. to 11:30 p.m.

1861

The inspector indicated that in his opinion only a hairline crack in the roof would have been visible in the roof
fall area prior to the fall. He was unsure whether a test
hole, had one been drilled, would have made obvious any
weakness in the roof. In that connection, the Report of
Investigation, at paragraph 5 on page 2 thereof, indicates
that the presence of draw rock in the No. 4 entry, "[p]revented the workmen from detecting the loose roof with sound
and vibration tests."
The inspector confirmed that Respondent had a low injury
frequency rate and he felt that the No. 18 Mine was a safetyconscious operation. With respect to hill seams, the inspector indicated that such may be manifested in the mine roof by
only a hairline crack and that it may or may not be detectable
by viewing the mine roof. He also indicated that the draw
rock might not enable one to detect a loose roof with a soundvibration test and that the 6 to 8 inches of draw rock in the
roof would make it difficult to determine if the crack in the
roof was simply a nondangerous crack or the manifestation of a
hill seam. The record is clear, from the testimony of other
w~tnesses, that the roof of the No. 18 Mine contains ntnnerous
cracks and according to Safety Director Couch, most of these
hairline cracks throughout the mine are firm and safe when
tested.
Focusing specifically on the roof fall itself, the
record is also clear that the roof broke without significant
prior warning about 3 hours into the second production shift
and that the foreman on the first production shift, James
Napier, had tested or sounded the roof with a hammer on his
shift and found the roof to be safe in the sense that no
structural weakness was ascertained. Napier testified that
he made this test at approximately 2:50 p.m. and the roof
sounded "solid." Napier indicated that 30 to 32 inches of
rock can be sounded by this method (in this connection I
note that the thickness of the roof which fell ranged from
20 to 36 inches according to the inspector). Napier indicated that he, as section foreman on the first shift, usually
conferred with the foreman on the second shift prior to the
changing of the shifts and that on October 30 ke discussed
with Section Foreman Burke the hill seams in the area of the
roof fall. According to Napier, he did not recommend to Burke
that Burke take any particular action on his shift with respect
to the hill seams. It should be noted that although Napier
confirmed that he had directed his employees to drill a test
hole on his shift, that Napier did not check to see if the
drill hole had been drilled before his shift ended. Thus,
Napier did not mention to the decedent, Mr. Burke, that no
test hole had been drilled in their conversation at the
changing of the shifts.

1862

I do find, on the basis of the inspector's testimony
that during his investigation of the accident he was advised
by the first shift roof bolter that no test hole had been
drilled, and from Napier's testimony that his employees had
reported to him after the accident that no hole had been
drilled, that such was a fact.
Respondent has objected to the hearsay nature of this
testimony. A report or statement made to an inspector during
an investigation of an accident carries with it a higher
degree of trustworthiness than may ordinarily be prevalent
in a common conversation between two individuals. The testimony of Napier, a management person for Respondent, further
vouches for this trustworthiness. According to the inspector,
the reason that the roof bolter on the first shift did not
drill a test hole was that he did not have any drill steel.
This explanation given by the roof bolter to the inspector
further supports the finding that a test.hole was not drilled
on the first shift. In any event, hearsay, by virtue of
express provisions of the Administrative Procedure Act, is
admissible in this proceeding. And for these various bases
and various reasons, I credit the testimony of Napier and
Inspector Spurlock in this connection.
I also find that the area where the roof fall occurred
and where Napier directed that a test hole be drilled was
inby the working place and that a test hole should have
been drilled in this area during the first shift. This is
vouched for by the fact that the section foreman during his
shift directed that a test hole be drilled there. Although
at one time during the proceeding, Respondent conceded that
no test hole had been drilled on the second shift during the
first 3 hours thereof before the accident occurred, Respondent subsequently withdrew this stipulation. Respondent's
position is that the pertinent provision of the roof-control
plan, paragraph 12 at page 6, permits the hole to be drilled
"during each production shift" and that there could be no
infraction thereof on the second shift since another 5 hours
of the shift remained after the accident.

.

I concur with Respondent's position with respect to the
second shift since it cannot be said that a bolt hole would
not have been drilled during the shift. The regulation is
a standard which determines the obligation of the mine operateor. It does permit the drilling of the bolt hole at an
unspecified time during each production shift. To constitute a violation in this case, insofar as 'the second shift
is concerned, paragraph 12 would necessarily have required
the drilling of a bolt hole at the beginning of a shift
ra,ther than "during the shift." However, I do find that

1863

the area in question was an active working place on the
first shift and that a bolt hole should have been drilled
during Mr. Napier's shift. And since I find that one was
not, and Respondent has introduced no evidence that one was,
I conclude that a violation of 30 C.F.R. § 75.200 did
occur in this respect as alleged by MSHA.
In his gravity sheet (Exh. P-5), Inspector Spurlock indicated that:
The crew was questioned and they stated they
did not drill a test hole in the area to evaluate
the extent of the roof conditions. However, due
to the firmness of the shale it is very doubtful
if the test hole would have detected the crack in
the top.
I therefore find, based thereon, as well as other testimony
in the record, that it is conjectural whether or not the
test hole would have disclosed a structural weakness (see
testimony of safety director Gordon Couch) and that there
is no causal relationship, direct or otherwise, between the
violation and the roof fall which resulted in the death of
Second Shift Section Foreman Burke.
Turning now to the question whether or not the failure
to install cribs or posts in the accident area in conjunction
with the steel straps which were used to support the roof constitutes a violation, it first should be noted that Respondent
has stipulated that in fact no timbers or cribs were used and
that only steel straps installed with roof bolts were used
to support the roof in the accident area on October 30, 1979.
I so find.
According to Denver Collins, a shuttle car operator who
was called as a witness by MSHA, cribs and posts would not
have been installed in the subject entry due to its width-that is, the entry was 20 feet wide and because the continuous miner working in the area was 10 feet 9 inches wide and
the cribs would have been approximately 4 feet wide each,
there would not have been maneuvering or operating room in
the area. This testimony was not further developed on the
one hand or challenged on the other so, accordingly, I do
conclude that the physical size limitations of the area
would have precluded the use of cribs and posts. However,
the question remains whether or not the roof-control plan,
which the parties agree does authorize the use of steel
straps installed by roof bolts, should be construed so as
to require the supplementary installation of cribs and posts
at all times the "steel strap" alternative is utilized. If

1864

so, the impossibility of installing cribs or posts in the area
would in turn preclude the use of the steel strap alternative
and ~equire the mine operator to use crossbars as the only
means of roof support specifically authorized by the pertinent
three-paragraph plan.
To fully understand this plan, the three paragraphs must
be paraphrased. The first paragraph unequivocally requires
crossbars td be used when the hill seams are encountered.
The second paragraph permits an alternative: Steel straps
installed with roof bolts. The third paragraph thus becomes
critical. It states: "In areas where steel straps have been
utilized in lieu of wood crossbars where abnormal roof conditions are encountered, the area shall be supported with
cribs and/or posts--", etc.
This plan is glorious in its ambiguity and pregnant with
the confusion which it necessarily creates in the minds of
the miners, the operators and the Government enforcement
personnel who must work wit.h it, implement it, live with it,
and enforce it. Nevertheless, it is a minimum. plan and we
must endeavor to answer various subquestions which arise.
MSHA contends that the third paragraph is a necessary qualification to the second paragraph, that is, cribs and posts must
always be used to back up the use of steel straps. Respondent, on the other hand, contends that it has the option to
use either crossbars or steel straps and that cribs and posts
are required to be used only "[w]here abnormal roof conditions
are encountered." Respondent contends that the "pots, slips,
horsebacks or hill seams" language contained in the first
paragraph are not abnormal roof conditions. Petitioner contends that they are and that paragraph 3~s reference to
abnormal roof conditions must be referenced back to the first
paragraph.
I agree with the Petitioner's position with respect to
the construction of this regulation. My reasons for doing
so are based first on the general philosophic principles
governing statutory construction of remedial legislation,
secondly on ancillary provisions of the roof-control plan
itself and finally because of the severe hazards roofcontrol regulations seek to prevent.
In Cleveland Cliffs Iron Company, Inc., Docket No. VINC
79-68-PM, the Federal Mine Safety and Health Review Commission,
in a decision dated Februqry 9, 1981, endorsed the principle
of the liberal construction of the Act and its implementing
regulations so as to promote the remedy sought by such
standards.

1865

The roof-control plan itself, as previously noted,
recognizes that the three paragraphs are minimums and it
anticipates that additional bolts, posts or crossbars
would be installed in subnormal roof conditions when such
are "encountered, indicated or anticipated." Considering the rule of liberal construction and the apparent
abundantly cautious tenor of the plan itself, a reading
of the three paragraphs is required which would promote
rather than diminish safety even though I do believe
that the three paragraphs can be read as Respondent contends without an absurdity resulting.
I conclude that hill seams, as mentioned in paragraph 1,
are an abnormal roof condition within the meaning of paragraph 3 and a subnormal roof condition within the meaning of
paragraph 1 of page 5 of the plan. I do so for two reasons.
The first phrase of paragraph 3 ends with the word
"e.ncountered." This encourages the ,construction that cribs
and posts must be used in all cases where steel straps are
utilized. A contrasting punctuation would have been to
place a comma after the word "crossbars" in paragraph 3, in
which event the concept of abnormal roof conditions would
stand out as a separate situational classification which,
by itself, would call for cribs and posts.
The second reason I find that hill seams are abnormal or
subnormal roof conditions is based upon my view of the evidence in this proceeding and observation of various witnesses who testified concerning the nature of hill seams.
Section Foreman Napier, although he indicated that "[j]ust
because you have a hill seam or crack someplace doesn't mean
it's dangerous," also stated: "You never know about a hill
seam. You can test hole them and they'll be solid and it
would fall anyway. You can't tell by looking." Napier's
actions on October 30 indicated a considerable concern with
the hill seams in the roof fall area. I felt the inspector's opinion that hill seams were abnormal conditions was
also credible and should be accepted over those of Respondent's witness Gordon Couch, who, on two occasions, indicated that he did not really know what a hill seam was.
Mr. Couch wanted to treat a hill 'seam as a "se~m" even
though there is considerable evidence in this record that
a hill seam runs from the top or outside of the mountain
down into the mine and manifests itself as a crack or a seam
visible to the naked eye in the mine roof. I conclude that
hill seams are abnormal or subnormal roof conditions within
the meaning of the roof-control plan; that they pose a significantly higher degree of risk of roof falls because of
their susceptibility to water which, indeed, on occasion
has been seen leaking from them, and since hill seams

1866

require and in fact were and have been given a much higher
degree of attention by the mine foreman and the miners than
other normal mine conditions.
There is credible unchallenged testimony in the record
that cribs would have supported the amount of roof that fell
on October 30, 1979, but also that neither the steel straps
installed with 36-inch roof bolts and crossbars would not
have held up· the part of the roof which fell at that tragic
time. Thus, crossbars and metal straps would support only
3 to 4 tons, whereas cribs would have supported 100 to
150 tons, according to Safety Director Couch.
I conclude, therefore, that unduly peculiar factual
situations were posed in this case; that even though steel
straps were used, where abnormal roof conditions were
encountered and where cribs and posts were not susceptible
to being installed in the entry in question, that only two
options remained with Respondent: (1) to either use crossbars, which would have not held up that amount of roof, or
(2) not mine--that is, cut into the area in question. The
option was available to the Respondent to use crossbars in
the situation which it encountered on October 30, 1979.
Thus, it cannot b~ said ~hat there is a direct causal
relationship on these unusual facts between the failure to
use cribs and posts and the roof fall which resulted in the
death of Mr. Burke. Again, this is becaus.e the option was
available to use crossbars--which would not have held the
roof up.
Whether a causal relationship exists between the violation and an accident greatly determines the degree of gravity
which must attach to the violation. However, any violation
of a roof-control plan is a serious violation. I thus conclude that since two miners were immediately exposed to the
roof fall, that is the continuous miner operator and the
shuttle car operator, and other miners on the crew were
also exposed to any hazard which might result from the violation in question, that both the failure to drill a test
hole and the use of steel straps without cribs or posts
were both serious violations.
I find, ~herefore, that the failure to use crossbars in
the area at the time constituted a violation of 30 C.F.R.
§ 75.200.
I find that the use of steel straps in the area,
which was an area in which cribs and posts could not be
utilized, is a corollary to this violation, that is, it is
the other side of the coin.
With respect to negligence, which is the remaining
statutory penalty assessment factor to be considered, in

1867

view of the early stipulations of the parties, I find that
Section Foreman Napier was negligent in not following
through to determine whether the test hole he ordered
drilled in the portion of the roof which fell was drilled.
He also indicated that he did not tell Mr. Burke about the
test hole--I infer this from his overall testimony including
his testimony that he did not recommend any action on
Burke's part when he spoke to Burke at the changing of the
shifts. The record is clear that Napier recognized the
danger the hill seam posed, as I have previously pointed
out, and he did testify that he told Foreman Burke to
"[w]atch and be careful." I thus find, based upon Napier's
testimony, that at least one member of management considered the hill seams to be dangerous but that in the changeover of shifts, appropriate action failed to be taken by
management with respect to the V-shaped hill seams in the
accident area.
I do not find any negligence attributable to Respondent
based on Napier's actions or nonactions to be of a high degree
since Napier did sound the roof and did take action which he
might have believed had been carried out by employees. I also
find that culpability on the part of Respondent's management
in the commission of the two violations found is substantially
mitigated by the lack of clarity in the three-paragraph roofcontrol plan insofar as that particular violation is concerned.
Weighing then the factors which must be considered in assessing
penalties, the factors of the large size of the company,
moderate degree of negligence, and seriousness of the violations, go toward raising any penalty which might otherwise be
appropriate. Counterbalanced against those factors are the
factors that Respondent's previous history of violations
appears to be moderate, only relatively small penalties were
paid for the eight prior violations of the cited regulation,
and Respondent had a highly commendable injury frequency rate
for the quarter immediately preceding the accident. Inspector
Spurlock considered the Respondent to be a safety-conscious
operation. Finally, it was stipulated that the Respondent
demonstrated normal good faith in attempting to achieve
compliance with the violated safety standard.
I would add that I believe the Respondent sincerely
construed the roof-control plan in the manner that it urges
here today and that such position is not a cynical one.
Considering all of these factors, a penalty of $750 is
assessed for the violation in Citation No. 736789 relating
to the failure to drill a test hole and a penalty of $2,250
is assessed for the violation charged in Citation No. 736789
insofar as the same relates to the failure to comply with the

1868

roof-control plan by using steel straps to support the roof
without supplemental cribs and posts being utilized.
ORDER
It is ORDERED that Respondent pay the sum of $3,000 to
the Secretary of Labor within 30 days from the date hereof.
All proposed findings of fact and conclusions of law, which
have not been expressly incorporated in this decision, are
REJECTED.

Michael A. Lasher, Jr., Judge
Distribution:
George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department
of Labor, 801 Broadway, Room 280, Nashville, TN 37203 (Certified
Mail)

Neville Smith, Esq., P.O. Box 441, Manchester, KY 40962 (Certified
Mail)

1869

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

DENVER.COLORADO 80204

JUL ·31 1981

)
)

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

)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 79-291

)

)
)

v.

C F & I STEEL CORPORATION,

ASSESSMENT CONTROL NO.
05-02820-03014

)

Respondent.

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

)
)

MINE : Max we 11

DECISION AND ORDER
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
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290
For the Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE CASE
This proceeding arose through initiation of an enforcement .action
brought pursuant to section 105 of the Federal Mine Safety and Health Act
111
of 1977, 30 U.S.C. § 801 et seq. 0978) [hereinafter cited as' the 1977
Act" or "the Act"]. The Secretary of Labor, Mine Safety and Health
Administration [hereinafter "the Secretary"], brought this action against
C F & I Steel Corporation [hereinafter "C F. & I"] alleging two violations
of the Act. The Secretary seeks an order assessing civil monetary
penalties against C F & I for its alleged violations of the Act •

•

1870

On March 2, 1981, the parties filed wlth the Connnission a Joint Motion
to Approve Se~tlement regarding the alleged violation contained in Citation
No. 387990. Pursuant to notice, a hearing on the merits was held on March
3, 1981, in Pueblo, Colorado. In anticipation of a favorable ruling on the
pending motion, testimony at the hearing was limited to the alleged
violation contained in Citation No. 387774. On March 16, 1981, I denied
the pending motion, without prejudice, for failure to provide sufficient
facts in support of the appropriateness of the penalty proposed by the
parties. A Stipulation and Motion to Approve Settlement Agreement and
Order Payment was subsequently filed with the Connnission on May 28, 1981.
As a matter of procedure, I will treat the two citations separately in
this decision. Citation No. 387774, to be addressed first, will be decided
on the evidence presented at the hearing. Citation No. 387990 will then be
decided based upon the pleadings contained in the record.
CITATION NO. 387774
FINDINGS OF FACT
1. C F & I is the operator of an underground coal mine located near
Weston, Colorado, known as the Maxwell Mine.
2.

Products of the Maxwell Mine enter or affect interstate connnerce.

3. On March 19, 1979, during the course of an investigation of an
unintentional roof fall in development Unit No. 2, · a duly authorized
representative of the Secretary conducted an inspection of the Maxwell
Mine.
4. In that unit, the MSHA inspector observed a strike 1 / running
diagonally a~ross five consecutive entries. The strike, which had advanced
as far as Entry No. 12, was accompanied by water and unconsolidated roof.
S. Two unintentional roof falls had recently taken place at the
Maxwell Mine. One fall occurred on February 6, 1979, in Entry No. 14, and
the other occurred earlier on the day of the inspection, in Entry No. 13.
The location of the two falls closely approximated points on the line
formed by the strike.

1/ A strike is defined as a deformity in the roof which designates a
weakness in the roof strata, (Tr. 117), or the direction or bearing of a
horizontal line in a structual plane. U.S. DEP'T. OF THE INTERIOR, BUREAU
OF MINES, A DICTIONARY OF MINING, MINERAL, AND RELATED TERMS 1089 (1968).

1871

6. Citation No. 387774 2 / was issued to C F & I by thj MSHA
inspector for its alleged violation of 30 C.F.R. § 75.200. /
7. Two days prior to the roof fall in Entry No. 1"4, C F & I
supervisory personnel concluded that the condition of the immediate roof
was precipitous and that the area should be deadlined to prevent further
travel. C F & I proceeded to timber-off the affected area and then waited
for the roof to fall.
8. Following the roof fall of February 6, 1979, and prior to the roof
fall of March 19, 1979, C F & I took the following steps to improve its
roof control in the area in Entry No. 13 adjacent to the strike line:
increased roof bolt lengths from 42 inches to 72 inches; decreased roof
bolt centers from four feet to three or two feet, or whatever the roof bolt
installer thought necessary to control roof conditions; spotted steel beams
in the entry; installed steel carrying beams at crosscut intersections; and
drilled weep holes in the roof to drain away wate~. These measures
exceeded the requirements of the mine's roof control plan.

2/ The condition or practice cited alleges: "Although the approved roof
control plan was exceeded, not enough precautions were taken in No. 13
entry on No. 2 unit to protect the miners, when known existing adverse
conditions were approached. An unintentional roof fall has occurred at the
intersection of crosscut No. 21. The operator shall take steps to further
strenghthen (sic) the roof control in areas of this type."
3/ Roof control programs and plans. [STATUTORY PROVISIONS] Each operator
°'Shall undertake to carry out on a continuing basis a program to improve the
roof control system of each coal mine and the means and measures to
accomplish such system. The roof and ribs of all active underground
roadways, travelways, and working places shall be supported or otherwise
controlled adequately to protect persons from falls of the roof or ribs. A
roof control plan and revisions thereof suitable to the roof conditions and
mining system of each coal mine and approved by the Secretary shall be
adopted and set out in printed form on or before May 29, 1970. The plan
shall show the type of support and spacing approved by the Secretary. Such
plan shall be reviewed periodically, at least every 6 months by the
Secretary, taking into consideration any falls of roof or ribs or
inadequacy of support of roof or ribs. No person shall proceed beyond the
last permanent support unless adequate temporary support is p.rovided or
unless such temporary support is not required under the approved roof
control plan and the absence of such support will not pose a hazard to the
miners. A copy of the plan shall be furnished to the Secretary or his
authorized representative and shall be available to the miners and their
representatives.

1872

9. On March 12, 1979, C F & I submitted a proposed amendment to the
roof control plan then in effect at the Maxwell Mine. The amendment sought
to incorporate certain new provisions, including a requirement that
additional roof supports would be installed when excessive amounts of water
from the roof were encountered. The addendum received the approval of
MSHA's District 9 Manager for Coal Mine Health and Safety on March 26,
1979.
10. On March 17, 1979, an idle work day, CF & I became aware of
unstable roof conditions near the strike line in Entry No. 13. Additional
timbering was added under the beam supports already in place, blocking the
entry to further travel. The blocked-off portion of the roof fell sometime
late on March 18, 1979, or early on March 19, 1979.
11. The roof control measures employed in the localized area of the
March 19, 1979 fall included: ten 72-inch roof bolts on three to four foot
centers, steel beams spaced approximately four feet apart, and steel
carrying beams on both sides of the intersection.
12. In the hours following discovery of the roof fall and prior to the
issuance of the subject citation, C F & I contin~ed to employ those means
of roof control outlined above in Finding of Fact No. 8. No work proceeded
in entries adjacent to Entry No. 13, other than efforts to confine the
cave-in to a limited area.
13. Payment of the proposed penalty will not impair the ability of
C F & I to continue in business.
ISSUES
1. As a matter of law, can an operator be found in violation of 30
C.F.R. § 7S.200 if it is complying with the minimum requirements of the
mine's roof control plan?
2. As a matter of fact, did Respondent support the roof and ribs or
otherwise control such areas to adequately protect persons from falls of
the roof or ribs?
DISCUSSION
At the hearing, the Secretary admitted that C F & I was in compliance
with the minimum requirements of the roof control plan then in effect at
the Maxwell Mine. It is the Secretary's position that C F & I violated 30
C.F.R. § 75.200 by failing to comply with the first sentence df the
regulation, which requires an operator to continually improve the roof
control system at each coal mine. Additionally, the Secretary contends in
his post hearing reply brief that an operator must control any and all roof
conditions it encounters in the mine, even if control of those conditions
requires the operator to exceed the minimum requirements of the roof
control ~lan.

1873

Petitioner's citation of authority for the propos1t1on that an
operator has responsibilities above and beyond the minimum requirements of
the mine's roof control plan is well taken. In Ziegler Coal Company, 2
IBMA 216, September 18, 1973, the Interior Board of Mine Operations Appeals
held that" ..• an operator is under a duty to maintain a safe roof
irrespective of any roof control plan and that the failure to do so
constitutes a violation of the mandatory safety standard at section
302(a)." Id. at 222. Section 302(a) of the Act has since been superseded
by an improved mandatory safety standard promulgated by the Secretary
pursuant to section 101, namely 30 C.F.R. § 75.200. Unless and until
overturned, this decision is binding upon the Commission and its judges.
Section 30l(c)(2). Therefore, as a matter of law, an operator can be found
in violation of 30 C.F.R. § 75.200 even if it is complying with the minimum
requirements of the mine's roof control plan .
.Citation No. 387774 states in part that "[a]lthough the approved roof
control plan was exceeded, not enough precautions were taken in No. 13
entry or No. 2 unit to protect the miners, when known existing adverse
conditions were approached." However, based upon the evidence presented at
the hearing and for the reasons presented below, I find that C F & I did
not violate 30 C.F.R. § 75.200 as alleged.
The first sentence of the standard reads as follows: "[e]ach operator
shall undertake to carry out on a continuing basis a program to improve the
roof control system of each coal mine and the means and measures ·to
accomplish such system." C F & I complied with this provision by
implementing procedures to improve roof stability beyond the threshold
level required by the roof control plan. See Finding of Fact Nos 8 and 12.
Similarily, C F & I took independent affirmative action to upgrade the
minimum requirements of the roof control plan then in effect at the Maxwell
Mine. See Finding of Fact No. 9.
The second sentence of the standard requires that "[t]he roof and ribs
of all active underground roadways, travelways, and working places shall be'.
supported or otherwise controlled adequately to protect persons from falls
of the roof or ribs." While no one can dispute the fact that· the roof that
fell in Entry No. 13 was not adequately supported, C F & I complied with
this provision by blocking the entry to further travel before it fell. See
Finding of Fact No. 10. This action otherwise adequately controlled the~
affected area to protect persons from falls of the roof or ribs.
Therefore, as a matter of fact, Respondent discharged the obligations
imposed on it by 30 C.F.R. § 75.200.
CITATION NO. 387990
Due consideration of all factors contained in the record convinces me
that the proposed settlement is consistent with the purposes of the Act and
should be approved.

1874

CONCLUSIONS OF LAW

1. The undersigned Administrative Law Judge has jurisdiction over the
parties and the subject matter of this proceeding.
2. Petitioner has failed to meet his burden of proving that Respondent
violated the Act as alleged in Citation No. 387774.

3. Citation No. 387774 should therefore be vacated.
4. The settlement proposed in Citation No. 387990 is consistent with
the purposes of the Act and should be approved.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it
is ORDERED that Citation No. 387774 is hereby VACATED. It is FURTHER
ORDERED that the joint motion regarding settlement of Citation No. 387990
is hereby GRANTED and that Respondent shall pay the agreed amount of
$200.00 within 40 days of the date of this ORDER.

Jon.D: nolt~.
~_9.m1n1strat1ve

,'·)
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
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290

1875

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

July 31, 1981
JOHNNY HOWARD,
Complainant

v.
MARTIN-MARIETTA CORPORATION,
Respondent

COMPLAINT OF DISCHARGE,
DISCRIMINATION, OR
INTERFERENCE
Docket No. SE 80-24-DM
MSHA Case No. MD 79-93

SUPPLEMENTAL DECISION
On June 19, 1981, I issued a decision in Complainant's
favor on his complaint of discrimination under § lOS(c) of
the Act. The parties were ordered to confer for the purpose
of effectuating paragraphs 1 - 6 of the order contained in
the decision.
It appears that the parties substantially
agree on all issues save back pay. While they agree on the
figures to be used in computing back pay, they disagree on
the formula to be applied to those figures.
The formula and
award are set forth in this decision, which constitutes my
final disposition of the proceedings.
Turning to the provisions of the order of June 19,
1981, reinstatement will not be ordered since Comp~ainant
has obtained full-time work elsewhere and does not wish to
return to Respondent's employ.
Therefore, paragraph 1 of
the order is vacated.
Paragraph 2 directs back pay for Complainant. There
have been few Commission decisions dealing with the computation of back pay under the Mine Act.
Irt Bradley v.
Belva Coal Co., 3 FMSHRC 921 (1981), I concluded that the
remedial portions of § lOS(c) were modeled on § lO(c) of the
National Labor Relations Act, so the NLRB's approach to back
pay computation should be followed.
According to the Board,
"Making whole" involves payment to the
discriminatee of a sum equal to gross back
pay (what the discriminatee would have earned
in employment lost through discrimination)
less net interim earnings (what was actually
earned from other employment during the period
less expenses incurred in seeking and holding
interim employment) , tbe difference between
the two being the net back pay due.
3 NLRB CASEHANDLING MANUAL, § 10530 (1977).

1876

Complainant renounced reinstatement at the hearing, so
the period of back pay liability runs from July 31, 1979, to
March 26, 1981. If the general formula were applied and
total earnings for the period lumped together, no back pay
would be due, since Complainant has earned more elsewhere
during this period than he would have earned at Respondent's
quarry in Jamestown, South Carolina. However, the NLRB
computes back pay by calendar quarters of the year.
3 NLRB
CASEHANDLING MANUAL § 10534.1 (1977}. This policy has been
in effect more than 30 years and was adopted because computations based on the entire period of liability fell short
of the "make-whole" remedy the Board was attempting to
provide. See NLRB v. Seven-Up Bottling Co., 344 U.S. 344,
347 (1953). The Commission should draw on this experience.
Therefore, Complainant's back pay award will be computed on
a quarterly basis.
The parties have stipulated that Complainant's hourly
rate was $4.76 with time and a half for overtime. Complainant worked 50 hours each week.
During periods of
unemployment, Howard received unemployment benefits from the
State, but these will not be deducted from back pay. Bradley, supra, at 923. The back pay computation is as· follows:
7/31/79 - 9/30/79
10 weeks

Lost earnings
400 hrs. at 4.76
100 hrs. at 7.14
Interim earnings
Net back pay

10/1/79 - 12/31/79
13 weeks

Lost earnings
520 hrs. at 4.76
130 hrs. at 7.14
Interim earnings
Net back pay

1/1/80 - 3/31/80
13 weeks

Lost earnings
520 hrs. at 4.76
130 hrs. at 7.14

1904.
714.
2618.
0
2618.

2475.20
928.20
3403.40
0

3403.40

2475.20
928.20
3403.40

Interim earnings
Rogers & Wilson Co.
Net back pay

1877

2253.25
1150.15

4/1/ao - 6/30/80
13 weeks

Georgetown Steel

Lost earnings
520 hrs. at 4.76
130 hrs. at 7.14
Interim earnings
480 hrs. at 8.73

2475.20
928.20
3403.40
4190.40

Net back pay

0

.!f Total back pay

7171.55

A rate of 6% interest per annum will be applied to the
back pay award through January 31, 1980. Thereafter, a rate
of 12% will be applied.
Bradley, supra, at 925.
Interest
will accrue beginning with the last day of each calendar
quarter of the back pay period.
3 NLRB CASEHANDLING MANUAL,
§ 10623.1.
Respondent is responsible for deducting the amounts
required by state and Federal law and f6r any additional
contributions which those laws may require.
The parties agree that $750 is a reasonable attorney's
fee for Complainant's counsel.
The notice submitted by Respondent for posting at its
Jamestown quarry is acceptable.
ORDER
1.

Respondent shall pay to Complainant the sum of
$7,171.55, as back pay with interest thereon at
the rate of 6% per annum from July 31, 1979,
through January 31, 1980, and at the rate of
12% per annum thereafter.

2.

Respondent shall pay to counsel for Complainant the sum of $750 for legal services rendered
to Complainant. Counsel for Complainant shall
refund to Complainant so much of that fee as he
has already paid.

1/

Interim earnings exceed lost earnings for every quarter
after April 1980.

1878

3.

The notice submitted by Respondent shall be
posted in a conspicuous place at Respondent's
Jamestown quarry.

j
Distribution:

t}t-1tt-5

.48mdu.;teL

James A. Broderick
Chief Administrative Law Judge

By certified mail.

Nathan Kaminski, Jr., Esq., Attorney for Johnny Howard,
Complainant, Schneider & O'Donnell, 601 Front Street, P.O.
Box 662, Georgetown, SC 29440
Elliott D. Light, Esq., Assistant General Counsel, Attorney
for Martin-Marietta Corporation, 6001 Rockledge Drive,
Bethesda, MD 20034
Thomas A. Mascolino, Esq., Counsel for Trial Litigation,
Office of the Solicitor, Division of Mine Safety, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203
Special Investigation, MSHA, U.S. Department of Labor, 4015
Wilson Boulevard, Arlington, VA 22203

1879

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

July 31, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of J. C. DUNCAN,
WILLIAM DUNCAN, T. C. GALLION,:
and TOMMY TURNER,
Complainants
v.

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR
INTERFERENCE
Docket No. KENT 81-87-D
Bakersport Mine

T. K. JESSUP, INC.,
Respondent
DECISION
On August 25, 1980, six men comprising the second shift
at Respondent's mine refused to start work. As a result,
they were fired.
Four of them subsequently filed complaints
with the Mine Safety~and Health Administration (MSHA). The
issue is whether they were discharged in violation of
§ 105(c) of the Mine Act, 30 U.S.C. § 815(c).
A hearing was held, pursuant to notice, in Evansville,
Indiana, on June 9 - 10, 1981. Witnesses for the Secretary
of Labor were J. C. Duncan, T. C. Gallion, Tommy Turner,
William Duncan, Jerry Van Crick, Jerry Vincent, James Greg
East, and Boyd Mathis, all former employees of Respondent
T. K. Jessup, Inc. Witnesses for Jessup were T. K. Jessup,
the mine owner, Robert Sykes, former super.intendent, William
Jerry Anderson, night foreman, Michael Oates, reclamation
and safety director, and James Utley, an MSH~ inspector.
The parties have filed briefs setting forth their positions.
Based on the whole record, my decision is as follows.
Findings of Fact
1.
At all times relevant herein, Jessup owned and operated
the Bakersport Mine in Dawson Springs, Hopkins County, Kentucky.
It produces coal by strip mining the surface.
2.
During the months preceding their discharges on August 25, 1980, 1/ the complainants notified management of a

1/
Two other miners were discharged with the complainants
that day, James Greg East and Boyd Mathis.
However, Jessup
offered reinstatement to them a week ~ater and they returned
to work within one month. Neither is a party to this case.

18ri0

number of problems with their equipment. Some repairs were
completed and some were not by August 25, 1980. Complainants rarely notified management of equipment problems on the
report slips intended for that purpose.
Instead, the complaints were predominantly oral.
3.
On August 23, 1980, Robert Sykes returned to the mine
to check on the progress of work during the second shift.
He had just finished sharing a six-pack of beer with Michael
Oates. When he arrived, he found that James East was
operating a dozer on a highwall in what Sykes considered an
unsafe and unproductive manner. Sykes then got a dozer and
proceeded to show East how he wanted the job done. The
other men on the shift were watching and thought he was
being reckless with the machine. They smelled alcohol on his
breath and thought he was intoxicated and were very upset
because of this.
I find that Sykes was not intoxicated and
was, in fact, trying to demonstrate a safer and more productive method of operating the dozer. However, East and
the other men misunderstood his explanation and thought East
was being told to operate the dozer in an unsafe manner.
4.
After Sykes left the mine on the night of August 23,
the men spoke with foreman Jerry Anderson and expressed
their dismay at Sykes's conduct and their general dissatisfaction with him as a superintendent. They asked Anderson
to arrange a meeting between them and Sykes and T. K. Jessup
on August 25. Anderson agreed. Anderson attempted to contact Jessup but was unsuccessful. On August 25, before the
second shift, he confronted Sykes with the men's concerns.
Sykes admitted that he was wrong to visit the mine after
drinking. Anderson did not tell Sykes that the men wanted a
meeting.
5.
At the start of tne second shift on August 25, Anderson
told the men that their problems had been "taken care of."
The men were still dissatisfied and demanded a meeting with
Sykes. J. C. Duncan then saw Sykes approaching in a road
grader and motioned him to stop. Duncan related the men's
concerns but did not raise specific safety complaints.
Rather, he alluded to the incident on August 23 and stated
the men's belief that they were being mistreated and were
being required to operate unsafe equipment in an unsafe
manner. Sykes and Duncan became quite hostile and finally
Duncan dared Sykes to fire him. At that, Sykes fired him.
6.
Next, Sykes went to each member of the second shift in
turn and asked if he was going to work. Each of them
expressed solidarity with Duncan and with the group as a
whole. Sykes fired each of them.

1881

7.
The next day, the men went to the local MSHA office and
filed a § 103(g) request for an inspection, listing their
complaints. An inspector arrived at the mine on August 27,
1980, and subsequently issued two citations and one withdrawal order.
Issue
§

Did the complainants engage in activity protected under
105(c) and, if so, were they discharged because of it?
Discussion

In Secretary of Labor ex rel. Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (1980), the Commission announced its
formula for weighing the evidence in a discrimination case.
To establish a prima facie case, the Secretary must demonstrate that the Complainants engaged in protected activity
which played some role in the decision to discharge them.
The parties agree that during the months preceding
their discharges, each complainant notified management of
various problems with his equipment affecting safety. These
ranged from broken mirrors and windshields to faulty brakes.
The fact that the complaints were registered orally, rather
than written on slips of paper as required by company rules,
is immaterial. The complaints constituted protected activity.
By the date of their discharges, dissatisfaction with
Robert Sykes had been building for months among the miners
on the second shift. No doubt, personality clashes played a
major role.
J. C. Duncan, in particular, believed neither
Anderson nor Sykes were running the mine as it ought to be
run. When Sykes arrived at the mine on August 23, 1980,
with beer on his breath, the miners decided that he was
unfit to supervise thew.
They therefore requested a meeting
with Sykes and Jessup. Whether concern for their safety was
the dominant motive for the request is unclear.
The fact
that it figu:i:-ed in the request is enough, however. The
request for a meeting was protected under § 105(c).
On August 25, 1980, the miners on the second shift
found that no meeting had been arranged.
They were determined to air their grievances before commencing work, so
J. C;,;. 'Duncan stopped Sykes, who was working a short distance
from them, and began to relate the miners' concerns.
Sykes
and Duncan began to argue almost immediately, so Sykes left.

1882

Sykes soon returned and once again exchanged heated words
with J. C. Duncan. Beyond raising the incident of August 23, Duncan did not relate any specific safety concerns
but rather expressed general dissatisfaction with the way
the mine was being operated. Finally, Duncan dared Sykes to
fire him, which he did.
Again, the fact that concern over safety played some
role in J. C. Duncan's complaints to Sykes on the miners'
behalf is enough to bring the complaints within the protection of§ 105(c). Although the complaints were voiced in a
provocative and combative tone, I cannot conclude that
Duncan's conduct was so opprobrious as to forfeit the
protection of the Act. Cf. American Telephone and Telegraph Co. v. NLRB, 521 F. 2d 1159 (2d Cir. 1975).
Before they were discharged, the miners on the second
shift collectively and individually refused to work. Whether a refusal to work is protected under§ 105(c) depends
on whether a miner has a good faith, rea·sonable belief that
continuing work would pose a safety hazard. Secretary of
Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC
803, 812 (1981).
In my judgment, none of the complainants
satisfied this standard.
I assume, as Respondent's brief concedes, that the complainants honestly believed their jobs presented unjustifiable risks from time to time. However, while generalized
complaints over safety are protected under § 105(c), they
cannot form the basis for a refusal to work.
Reasonableness
requires, at a minimum, that the miner's refusal to work
concern a condition actually confronting him at the time. ~/
Only two miners on the second shift expressed any
concern over the safety of the tasks they we~e about to
perform. James East, who did not join the complainants in
this action, renewed his misgivings about the brakes on his
dozer. Sykes responded that the dozer had been taken out of
service for repairs and that he would lay off East temporarily and recall him when the brakes were fixed.
East

~/

Reasonableness cannot be established after the fact.
The day after they were fired, the complainants prepared a
list of unsafe conditions and presented it to the local MSHA
office, requesting an inspection under§ 103(g). Had they
coupled their refusal to work with such specific complaints,
I could then analyse whether their beliefs in these allegedly
dangerous conditions were reasonable. As it was, even this
threshold element of reasonableness was not present.

1883

declined, preferring to remain with the group. According to
Sykes, Tommy Turner claimed that the mirrors on his truck
had not been fixed.
Sykes told him they were fixed earlier
in the day.
Still, Turner refused to work.
The actual safety of the work the complainants were
about to perform has some bearing on the reasonableness of
the complainants' refusal to work. An MSHA inspector
visited the mine two days after they were discharged, with a
list of their complaints.
Two citations were issued, one
for an inoperative back-up alarm and one for a missing fire
extinguisher. One withdrawal order was issued, covering a
road grader with faulty brakes, which none of the complainants had operated. The equipment that caused them the
greatest concern had been removed from service.
I cannot
conclude, on the basis of this record, that complainant's
refusal to work was reasonably related to conditions
believed to be unsafe.
Whether the Secretary has established that the complainants' protected activity figured in the decision to
discharge is academic at this point. Even if it did, the
record is clear that they would not have been discharged had
they not refused to work.
Therefore, Respondent has established an affirmative defense under Pasula, supra, at 2799 2800.
Based on the above, I find that Respondent did not violate § l05(c) when it discharged the complainants.
Conclusions of Law
1.
I have jurisdiction over the parties and the subjectmatter of this proceeding.
2.
Respondent did not violate
the complainants.

§

105(c) when it discharged

Order
1.
The complaint of discrimination in this case is DISMISSED.

1884

2.
Any proceedings aimed at assessing a civil penalty
against Respondent for the allegations in the complaint are
hereby ordered DISMISSED. No penalty shall be assessed.

ti{l/v'JWf>

» tVrivi~

~James A. Broderick

Chief Administrative Law Judge

Distribution:

By certified mail.

E. Robert Goebel, Esq., Attorney for T.K. Jessup, Inc., 233
Saint Ann Street, Owensboro, KY 42301
George Drumming, Jr., Attorney, Office of the Solicitor,
U.S. Department of Labor, 801 Broadway, 280 U.S. Courthouse,
Nashv.ille, TN 37203
Special Investigation, MSHA, U.S. Department of Labor, 4015
Wilson Boulevard, Arlington, VA 22203

1885

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

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

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 80-399
A.C. No. 11-00588-03079 F

v.
No. 21 Mine
OLD BEN COAL COMPANY,
Respondent
DECISION
Appearances:

Thomas Lennon, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for Petitioner;
Robert J. Araujo, Esq., Old Ben Coal Company,
Chicago, Illinois, for Respondent.

Before:

Judge Charles c. Moore, Jr.

The above case was tried in Evansville, Indiana, on April 8, 1981, and
final briefs of the parties were submitted by May 29, 1981. The citation
alleged a violation of 30 C.F.R. § 77.1700 in that:
A bulldozer operator was allowed to perform work in a
hazardous area where he could not be seen or heard by others
and no communication means was provided. This violation was
determined during a fatal accident investigation of the bulldozer operator working atop the raw coal storage pile on
4/8/80.
Although no one will ever know exactly how this accident occurred, and
although there was some difference of opinion as to whether the bulldozer
backed into a hole or fell through a bridged-over area of the coal, the evidence indicates that the events could have taken place as described in the
"Commentary" and "Discussion and Evaluation" sections of the accident report
(Petitioner Exh. 13). Those sections are as follows:
"Commentary
On Tuesday, April 8, 1980·, at midnight, the surface prepaation plant crew under the supervision of Gale Pearce, Surface

1886

Foreman, entered their respective work areas and routine coal
preparation activities commenced. At this time, Robert
Mitchell, Bulldozer Operator, mounted the TD-25-C International
bulldozer and began coal pushing operations on top of the
unusually large raw coal pile located near the preparation
plant. Mitchell's duties consisted of pushing coal away from
the coal stacker and pushing coal over the four load-out holes
located beneath the coal pile. Coal is loaded out from beneath
the raw coal pile by feeders located on four sides of the coal
stacker. The preparation plant operator, Jesse Jones, began
loading out coal from the north feeder at the beginning of the
shift and continued until 1:30 a.m. when he received a telephone call from Mitchell requesting that he switch over and
load from the south feeder. Jones switched to the south feeder
and continued loading out coal until he received _another call
from Mitchell at 1:45 a.m. At this time, Mitchell told Jones
it was alright to load from any hole because he had come down
off the raw coal pile with the bulldozer. Jones then began
loading coal from the various feeders until he achieved the
desired flow rate of coal to satisfy the preparation plant.
To do this, Jones loaded coal approximately 10 minutes from
the west feeder which would have conveyed approximately
100 tons of coal from the coal pile on the west side of the
stacker. At approximately 2:30 a.m., Mitchell pulled a stuck
vehicle from a mud hole in the mine yard and trammed the bulldozer onto the coal pile to resume coal pushing. However,
Mitchell did not contact the plant operator, Jones, to inform
him that he was returning to the coal pile.
"At approximately 6 a.m., a belt line in the head house
stopped and Steve Mazur, Top Utility Man, walked up to the
top of the stacker to investigate why it had stopped. At
that tim_e, Mazur looked out over the coal pile and saw a
small portion of the bulldozer blade protruding from beneath
coal directly over the west feeder hole location.
"It was quickly determined that Mitchell was still on the
buried bulldozer because he could not be located elsewhere.
Rescue operations were commenced immediately. An endloader
and a backhoe were driven onto the coal pile to h-elp, but
they were ineffective in moving the large quantity of coal.
Two large bulldozers brought to the accident scene from a
nearby mine began digging out Mitchell and the buried bulldozer. The stacker had apparently dumped a large quantity
of coal on top of Mitchell and the bulldozer after the accident occurred.
"At approximately 9 a.m., enough coal had been removed to
get to the operator's cab which had filled up with coal when
the front windows of the cab were pushed in under the weight

1887

of the coal which buried the bulldozer. At 9:20 a.m.,
Mitchell who had apparently been suffocated by the inrush of
coal into the cab was found and removed from the cab of the
still partially buried bulldozer.
"Discussion and Evaluation
The investigation revealed the following factors relev.ant
to the occurrence of the accident:
"l. The unusually large raw coal pile, approximately
75,000 tons, had accumulated due to poor coal sales recently.
"2. It had rained heavily several times during the shift
on which the accident occurred.
"3. Illumination for the coal pile was provided by large
spotlights on the top of the stacker as well as headlights on
the bulldozer.
"4. It was assumed that as Mitchell operated the bulldozer in reverse it fell through crusted over coal into a
void created when coal was loaded out by the west feeder.
"5. The two previous shifts had not loaded coal from the
west feeder and the bulldozer operators had trammed over the
west feeder hole location numerous times. This action presumably tightly compacted the loose coal on the surface of
the pile in this area.
11

6. The gear shift in the cab of the bulldozer was in the
reverse position when the bulldozer was recovered.
"7. The bulldozer was examined after the accident and
found to be mechanically sound.
"8. No means of communication was provided between the
preparation plant operator and the dozer operator."
The statement above that there was no means of communication between the
bulldozer operator and the preparation plant operator means that there was no
means of constant communication. There were telephones that the bulldozer
operator could use to phone the preparation plant operator. But in order
to do so, he would have to drive his dozer off of the top of the raw coal
storage pile to telephone the preparation plant operator. There were three
locations from which he could make such telephone calls.
Mr. Jesse Jones and Mr. Hosea Thomas are both bulldozer operators who
work on top of the raw coal storage pile at the present time. At the time
of the accident, however, Mr. Jones was the preparation plant operator. The

1888

testimony of these two miners resulted in a detailed description of the operations of the raw coal storage pile and the preparation plant insofar as this
accident is concerned. The pile itself is created by the stacker which is a
tube approximately 60 feet high containing rectangular holes at various levels.
The coal is brought to the top of the stacker by means of a conveyor tube and
is dropped into the top of the stacker. The coal comes out of the stacker
through the aforementioned rectangular holes and forms a cone of coal around
the stacker. The bulldozer operator's job is to create a plateau out of the
lower portions of this cone in such a manner that he can keep coal feeding
into four coal feeders which are openings 6 feet on a side with grates at the
bottom or ground level of the stack of coal. The coal feeders are in all
four cardinal directions from· the stacker and 40 feet away from it. The bulldozer driver has to guess where these coal feeders are because on the surf ace
of the coal, which at the time of the accident was approximately 40 feet above
the coal feeders, he has no way of knowing where they are located except, as
aforesaid, that they are 40 feet from the stacker and either north, east,
south, or west. When a feeder is taking coal and the coal is feeding properly an indentation or a "bird's nest" appears above the feeder at the surface
of coal and the dozer operator can continually push coal in such a manner as
to make sure there is an adequate supply over the feeder. At the time of the
accident, the plateau area had become unusually large and about 40 feet in
height. When coal gets wet, it is possible for the bulldozer running over
the surface to compact it in such a way that when a feeder starts to load
coal from beneath the pile a cavity or a void is created in that the looser
coal near the feeder goes into the feeder and onto a conveyor belt to be
taken into the preparation plant, whereas the surface of the coal bridges
over creating a situation similar to that of a snow bridge over a crevasse
in a glacier. A bulldozer may be able to run over the bridged-over area for
a time, but it is not uncommon for one to collapse the bridge and fall into
the void. There appears to be no problem when the bulldozer goes forward
into a void, because both of the bulldozer operators said when they suspected
a void they deliberately put their blade down into the area and drove forward.
The blade itself apparently protects the bulldozer from going too deep into
the void.
MSHA's theory of this case is that if there had been two-way radio communications, the preparation plant operator would have informed the victim
that he had been feeding out of the east feeder and that the victim upon
seeing no "bird's nest" would have known that a void existed and would have
avoided the area or collapsed the bridge with his blade. It is the theory
that he did not know this, that he was running over the bridged-over area
and that on one of his trips backing over the bridged area, it collapsed and
that he fell backwards into the void and that coal fell in behind him,
crushed the front window of the cab and that he suffocated under the coal.
W,hen the bulldozer was found, only one tip of the _blade was not covered
with coal because the coal stacker had continued to run after the accident
and had buried the bulldozer. There is no evidence as to the extent of its
burial innnediately after the accident. There was no autopsy report. There
was no testimony as to what would happen if a bulldozer either backed into

1889

a hole or fell through a bridge and the engine continued to run with the
treads in reverse. According to the accident report, the bulldozer was
found with the front portion elevated 60 degrees from the horizontal. The
pictures look more like 80 degrees but there was apparently no attempt to
determine what caused the bulldozer engine to stop or whether the continued
action of the treads would cause the elevation angle to become steeper. The
victim was found with his arms stretched out in front of him but the significance of that finding was not explored. It is puzzling to me that if the
accident happened as MSHA supposes in that the bulldozer suddenly fell into
a collapsed void in an almost vertical position and that the inrush of coal
following the collapse covered the cab and crushed the front windshield so
that coal could come in and smother the driver, that he should have had his
arms stretched out in front of him. The inrush of coal it would seem would
have brushed his arms aside.
Certainly if the victim had been alive and in control of himself within
seconds after the collapse through the bridge, he would not have left the
operating controls in a reverse position. There are thus a lot of questions
that the investigation leaves unanswered.
There is nothing in the accident report, for example, that would negate
the possibility that the victim had a heart attack or some other seizure,
backed into or caved into the hole and died while the engine was still turning
the treads in reverse with the stacker continuing to pile up sufficient coal
to cave in the windshield and eventually almost cover the bulldozer.
I think it possible that the accident happened as envisioned by MSHA
in its accident report but I think it matters little whether the victim
backed into a hole that had collapsed behind him, or actually broke through
the bridged-over area. In either event, there is no contention by HSHA that
a two-way radio would have enabled the victim to call for help and thus be
rescued. The contention is that if a two-way radio had been present in the
cab, the operator would have found out from the plant operator which feeders
had been in use and thus would be aware of the location of possible voids.
30 C.F.R. § 77.1700 provides:
No employee shall be assigned, or allowed, or be required
to perform work alone in any area where hazardous conditions
exist that would endanger his safety unless he can communicate with others, can be heard, or can be seen.
This standard has been interpreted by other Commission judges. In Secretary
of Labor v. B.S.K. Company, Inc., Docket No. BARB 79-190-P, 2 FMSHRC 998,
1006, Judge Cook said:
All surface mines present certain common dangers, yet
the wording of the regulation is such that its mandate
applies only when conditions outside the norm are present.

1890

The regulation is designed to assure that an individual
working in an area where hazardous conditions exist that
would endanger his safety is within sight or hailing distance of others who can render or summon\assistance when
necessary.
Judge Broderick reached a similar conclusion in a bench decision issued on
February 11, 1981, in Monterey Coal Company v. Secretary of Labor, Docket
No. WEVA 81-203-R,- 3 FMSHRC 439, 442, Judge Broderick said:.
I do not accept the interpretation that apparently MSHA
follows, that any work at a mine site is in an area where
hazardous conditions exist that would endanger an employee's
safety. Such an interpretation would render the words meaningless. And I am bound to give all words in a mandatory
standard meaning, and can only conclude that the standard
applies to areas wpere conditions exist that are hazardous,
which would endang~r an employee's safety, over and above
the conditions that exist throughout the mining industry, or
indeed in any industry.
I agree with these decisions.
In hindsight, since a miner was killed on the raw storage stockpile, it
is easy to say that it was an area that was more hazardous than other areas.
At the time of the accident, however, falling into a void was a frightening
and uncomfortable experience that the miners did not like, but there is no
evidence that they feared for their lives when they fell into one of these
voids. If the bulldozers had been equipped with two-way radios prior to
the accident, there is no reason to assume that all of the operators,
including the victim, would have inquired as to which feeders had been in
use. In fact, the victim could have stopped to telephone the plant operator on his way back to the storage pile if he had been inclined to do so.
The situation after the accident is, of course, different. The bulldozer
operators are informed as to which feeders have been in use and if there
is no "bird's nest" present they proceed to collapse the bridge.
The safety standard involved in this case appears to be more concerned
with rescuing a miner after an accident than it is in preventing the accident in the first place. If someone had kept the bulldozer constantly in
sight, it would not have prevented the accident. Nor would the accident have
been prevented by having another miner sit in the cab with the victim or having a miner close enough so that he could have heard the victim call out.
Rescue operations could have begun earlier but whether that would have saved
the miner's life is a matter of conjecture. Yet, by the wording of the regulation itself, if there had been another miner in the cab with the victim or
within hailing distance or if the victim and his bulldozer had been constantly
observed by someone, there would be no violation. Old Ben attempted to prove
that the victim's bulldozer was visible but the evidence, at most, amounted
to the fact that the bulldozer was visible when operating in certain parts of

1891

the raw storage coal pile area if someone had been looking. While I reject
the Government's argument that I should disregard the words of the regulation
and interpret it as though it were a panacea to prevent accidents of the type
involved here, I also reject 6ld Ben's defense that the victim was under
observation or in sufficient communication with others to avoid a violation
of the regulation.
I find that this was in fact a hazardous area, this raw coal storage
pile that was 40 feet high, but I also find that it was not so considered by
MSHA or the operator prior to the accident. MSHA was specifically requested
at the hearing to indicate whether it considered other companies' storage
piles as hazardous areas where communication would be required and while the
Government's brief mentioned the problem, it did not supply an answer. I do
not know whether any other company has been cited for failure to provide twoway communication with the bulldozer operators on top of a raw storage coal
pile. Nor do I know whether MSHA would have issued the citation in this case
had the coal pile been only 30 feet high or if it had not been raining or if
there had been no accident. I find that there was a violation and that the
current system of two-way radio communication is a much safer way to operate
the raw coal storage pile than is required by the regulations. Under the
present system, the accident that occurred in this case would not happen,
if the cause actually was a bridging over of a void. At the time, however,
it is very doubtful that two-way communication would have prevented the
accident.
The fact that the victim told the plant operator by phone that
he could feed out of any of the feeders he wanted because,the operator was
leaving the top of the storage pile for another chore and the fact that when
he returned to the pile he did not stop to phone the preparation plant operator to find out which feeders had been used indicates that he did not consider it a matter of great concern. There is no reason to think he would
have used a two-way radio to ask the appropriate questions.
While I find a violation of the regulation, I find that MSHA has failed
to carry the burden of proof that the violation caused the fatal accident or
that compliance with the regulation would have prevented the accident. Old
Ben is a large company with a substantial history of violations, although I
am not aware of a history of violating this particular section. The negligence was of a very low order, there was good,faith abatement and the degree
of hazard is questionable. A penalty of $900 is assessed.
ORDER
It is therefore ORDERED that Old Ben Coal Company pay to MSHA, within
30 days, a civil penalty in the amount of $900. It is FURTHER ORDERED that
all arguments not specifically adopted in the above opinion are REJECTED.

~ c 'JJroot-./ti.
Charles C. Moore, Jr.
Administrative Law Judge

1892

Distribution:
Thomas Lennon, Esq., Office of the Solicitor, U._S. Department of Labor,
230 South Dearborn Street, 8th Floor, Chicago, IL 60604 (Certified
Mail)
Robert J. Araujo, Esq., Old Ben Coal Company, 125 South Wacker Drive,
#2400, Chicago, IL 60606 (Certified Mail)

* United States Government Printing Office:1981--341-638/4359

1893