Index April
Conunission Decisions
4-03-81 Thomas Robinette v. United Castle Coal Co.
4-07-81 Cement Division, National Gypsum Co.
4-10-81 Ideal Basic Industries, Cement Division
4-20-81 Mullin Creek Coal Co., Inc.
4-29-81 Nacco Mining Co.
4-29-81 ,Brown Brothers Sand Co.
4-30-81 J P Burroughs and Son, Inc.

VA 79-141-D
VINC 79-154-PM
SE 79-16-M
KENT 81-17-D
VINC 76X99-P
SE 80-124-M
LAKE 80-223-M

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

803
822
843
847
848
853
854

WEST 79-128-M
LAKE 80-216
SE 81-12
CENT 79-83-M
LAKE 80-245-M
LAKE 80-303-M
PENN 80-273-D
WEVA 80-708-D
SE 80-46-DM
CENT 79-6-M
CENT 79-297 M
KENT 80-255
KENT 80-216-D
WEST 79-72-RM
WEVA 79-336-D
DENV 79-539-PM
LAKE 79-284-M
PENN 80-318-R
WEVA 80-675-R
WEVA 81-22
SE 79-16-M
WEST 80-301-R
BARB 79-62-PM
KENT 80-304
LAKE 80-104
PENN 80-268-R
PENN 80-56-R
CENT 79-96-M
CENT 80-52-M
CENT 80-166-M
WEST 79-376-M
VA 80-145

Pg. 859
Pg. 871
Pg. 889
Pg. 898
Pg. 906
Pg. 915
Pg. 919
Pg. 921
Pg. 926
Pg. 940
Pg. 950
Pg. 955
• 958
Pg. 964
Pg. 969
Pg. 1019
Pg. 1029
Pg. 1033
. 1041
Pg. 1045
Pg. 1049
Pg. 1052
Pg. 1060
Pg. 1067
Pg. 1073
Pg. 1081
Pg. 1099
Pg. 1121
Pg. 1132
Pg. 1137
Pg. 1143
Pg. 1155

Administrative Law Judge Decisions
lf-01-81
4-07-81
4-07-81
4-08-81
4-08-81
4-08-81
4-08-81
4-10-81
4-13-81
4-lLi.-81
4-14-81
4-14-81
4-15-81
4-16-81
4-16-81
4-17-81
4-20-81
4-20-81
4-20-81
4-20-81
4-21-81
4-21-81
4-22-81
4-22-81
4-23-81
4-23-81
4-27-81
4-28-81
4-29-81
4-29-81
4-29-81
4-30-81

The Anaconda Co.
Southwestern Illinois Coal Corp.
G & M Coal Co.
Concrete Materials Co.
Columbia Cement Corp.
Mulzer Crushed Stone Co.
Mark Segedi ex rel S. J. Ezarik, et al
Belva Coal Co.
MSHA ex rel William Johnson v. Borden, Inc.
Jet Asphalt & Rock Co., Inc.
Jet Asphalt & Rock Co., Inc.
Big Hill Coal Co~
L"MWA, Local 9800 v. MS HA/Themas Dupree
Climax Molybdenum Co.
W-P Coal Co.
B. L. Anderson, Inc.
Yellow River Supply Corp.
U S Steel Corp. v. MSHA & UMWA
Badger Coal Co.
Cannelton Industries, Inc.
Ideal Basic Industries, Cement Division
Kaiser Steel Corp./U S Steel Corp.
Nolichuckey Sand Co., Inc.
Triway Mining Co.
The Youghiogheny & Ohio Coal Co.
Delmont Resources, Inc.
Republic Steel Corp v. MSHA
Ben M. Hogan Co., Inc.
Topeka Sand Co.
Lyman-Richey Sand and Gravel Corp.
J. R. Simplot Co.
Eastover Mining Co.

Commission Decisions

APRIL

The following cases were Directed for Review during the month of April:
Council of the Southern Mountains v. Martin County Coal Corporation,
KENT 80-222-D; (Judge Steffey, February 23, 1981).
Secretary of Labor on behalf of Bobby Gooslin v. Kentucky Carbon
Corporation, KENT 80-145-D; (Judge Laurenson, March 18, 1981).
Review was Denied in the following cases during the month of April:
Secretary of Labor, MSHA v. A. H. Smith Stone Company, VA 80-2-M;
(Judge Steffey, December 1, 1980).
Secretary of Labor, MSHA v. Consolidation Coal Company, WEVA 80-160-R,
WEVA 80-379; (Judge Cook, March 20, 1981).

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

April 3, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), ex rel.
THOMAS ROBINETTE,
Applicant
Docket No. VA 79-141-D

v.
UNITED CASTLE COAL COMPANY
Respondent

: '

DECISION
This case raises significant questions under section 105(c)(l) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et
(Supp. III 1979) concerning the right to refuse work which we announced
in our recent decision in Consolidation Coal Company (David Fasula), 2
FMSHRC 2786 (1980), petition for review filed, No. 80-2600 (3d Cir.
November 12, 1980). For the reasons set forth below, we affirm the
judge 1 s protected activity findings but remand for re-analysis of a
narrow, but crucial, aspect of the discrimination issue in light of
Pasula.
I.

The Secretary of Labor filed this discrimination complaint alleging,
in relevant part, that United Castle Coal Company violated section
lOS(c)(l) of the Mine Act by discharging Tommy Robinette for engaging in
the allegedly protected activity of "complain[ing] about working the
belt feeder without an operative cap light." Following an evidentiary
hearing, the administrative law judge issued a decision in Robinette's
favor and ordered his reinstatement. 1/ We granted United Castle's
petition for discretionary review. The judge's decision and the briefs
filed with us pre-dated our
decision.
In the following section, we summarize the
evidence and factual
findings and set forth additional uncontradicted testimony not discussed
in the judge's decision. Tommy Robinette was employed by United Castle
as a "miner's helper" on the continuous mining machine. In February
1979, Robinette received his first warnings for unsatisfactory job
performance--one for "substandard work" and the other for "substandard
work and insubordination." At the start of work on Wednesday, May 30, 1979,

1:/

The judge's decision is reported at 2 FMSHRC 700 (1980).

800

81-4-3

Robinette was informed by Percy Sturgill, his section foreman, that
Isaac Fields, another miner, was being given Robinette's job as miner's
helper, and that Robinette was being assigned Fields' job as conveyor
belt feeder operator, a lower paying position. ]:_/ Sturgill testified
that Robinette told him he would take the feeder work "under protest"
and "[a]nytime" Robinette had "to do something [he did not] like," he
"usually mess[ed] it up." Tr. 130-131, 145. After leaving work on May
30, Robinette filed a complaint with MSHA under section 105(c) of the
Act alleging that his job transfer was discriminatory.
When Robinette reported for work on Thursday, May 31, Sturgill
informed him that, beginning Monday, June 4, Robinette would be assigned
to driving a shuttle car at his previous rate of pay. Robinette told
Sturgill that he had filed the discrimination complaint. Sturgill
responded that if Robinette "want[e.d] to play it that way," Sturgill
"could play it that way too. 11 Tr. 11. ]/ That day, Robinette worked
for about two hours on the miner and spent the rest of the shift on the
belt feeder. While operating the miner, Robinette "let a shuttle car
get on a miner cable and ... also let the miner .•. [destroy] the line
curtains." Tr. 132-133. Sturgill reprimanded Robinette for these
incidents, but did not issue any formal warnings or complaints. Sturgill
testified that Robinette stated that "[e]verybody else [ran] over [the
cable]" and that they "[did not] need the damn [curtains] [any)way."
Tr. 133. Sturgill ended the section shift early because the belt
feeder's tail shaft broke. Sturgill and United Castle vice-president
Jack Tiltson inspected the tail shaft and concluded that failure to
grease the shaft had caused a "gobbing out" of the piece by coal and
rock. !±_/ The belt feeder, which ran about 16 hours per day, required
daily greasing by the feeder operator. Robinette admitted to Sturgill
that he had not greased the tail shaft, and Tiltson reprimanded Robinette.
2
Fields
a complaint with MSHA against United
Castle alleging that in January 1979, United Castle had demoted him from
miner's helper to feeder Qperator when he had refused to operate the
miner when he claimed there was a lack of air and water. After May 30,
Fields and United Castle signed a settlement in which he agreed to withdraw his complaint and United Castle promised not to interfere with miners'
rightsunder the Act. The judge found (2 FMSHRC at 703), and we agree,
that Robinette was switched as part of United Castle's effort to resolve
Fields' MSHA complaint.
The judge credited Robinette's, rather than Sturgill's, version of
this conversation. 2 FMSHRC at 703.
12_1
A gobb
out is a filling or choking up with coal, rock, or other
debris, The gobbed out conveyor equipment consisted of the feeder, the
conveyor belt's tail piece, and the continuously moving belt itself, or
beltline. Coal from the face is discharged from shuttle cars onto the
receiving end of the 30 foot long feeder. The feeder's dumping end
dumps coal onto the tail piece, the 14 foot long receiving end of the
beltline. The coal is moved out along the three foot wide beltline.
The beltline is suspended from the roof by chains and ropes and is
guided and moved by an idler system of regularly spaced sets of rollers.
There are top rollers for the "top" belt and bottom rollers for the
"return" belt. Each top set consists of three aligned rollers: two
side rollers positioned at 27° angles on opposite sides of the top belt,
troughing the belt, and a middle or bottom roller underneath.

804

Sturgill testified that on Friday morning, June 1, Robinette told him
that he "did [not] like being put on the feeder" and that the "[miner's
helper] job ..• was all [he] cared about." Tr. 135.
Robinette testified that while he was working on the feeder the
afternoon of June 1, the conveyor belt went out of line along the beltline and the belt's tail piece and caused a gap on the tail piece through
which coal and rock could fall. Tr. 13-15, 18. That day both coal and
rock were running through the feeder. Tr. 15, 41-44, 150. Ordinarily,
the feeder operator is required to remove or break up rocks moving on
the belt to permit coal to pass and to avoid gobbing out. Occasionally,
the feeder and belt must be shut down to remove larger rocks.
Robinette testified that while the beltline was running, he attempted
to "train" (realign) it by tapping the top beltline rollers with a small
hammer. Tr. 13, 28-29. He was wearing a standard cap lamp with an
insulated electrical conducting cord.running over his shoulder and down
the front of his body to his belt battery. Robinette testified that
while he was bending over the beltline trying to realign it, his cap
lamp cord became caught in a roller, his cap was yanked off his head,
and the cord was completely severed, cutting off his light. Tr. 13-14,
26-29. There was no other illumination in the area.
Robinette felt his way down the rib towards the tail piece. He
called to the shuttle car operator "to tell Sturgill that [he] needed a
light [because] his cord had [been] cut in two." Tr. 14. 2./ At the
time, Sturgill was working about a break away on repair of a shuttle
car. Robinette waited about 5 or 10 minutes, but there was no response.
When the shuttle car operator returned, Robinette repeated his request
that Sturgill be informed of his need for light. Robinette saw the
operator stop by Sturgill and heard Sturgill yell to the operator to
tell Robinette to sit down and that Sturgill would come over when he
could. !!_/
At that point, Robinette shut off the feeder and belt. Robinette
testified that while waiting for assistance, he heard coal and rock
falling off the belt and gobbing out near the gap caused by the belt
misalignment on the tail piece. He testified he was concerned that he
could not see what was happening and that the gobbing out could cause a
break in the belt or a friction fire. Tr. 14-15, 17-18.
Within a few minutes, Sturgill arrived. He testified that he saw
Robinette disconnect the mine phone--the only one in the immediate area.
Tr. 138. At the hearing, Robinette denied disconnecting the phone. Tr.
172. Sturgill repaired Robinette's cap lamp and also, as he testified,
The judge
that Robinette also told the shuttle car operator
to inform Sturgill that Robinette "would have to shut down the feeder. 11
2 FMSHRC at 704. However, there is no evidence to that effect in the
record.
6/
Robinette testified that Sturgill "holler[ed} [to the shuttle car
operator] to tell [Robinette] [to] just sit up there; there [isn't
anything] going to get him and [Sturgill would] be up there when [he]
could." Tr. 14. Sturgill testified that he told the operator to
"[t]ell [Robinette] to sit down at the [mine] phone and I'll be there in
just a few minutes." Tr. 137-138.

805

the mine phone. The two men engaged in heated Lonversation about
Robinette's actions. Sturgill testified that Robinette told him that
his lamp cord had been cut when he "fell down at the beltline getting a
rock off" (Tr. 139); that he disconnected the phone because he "did
[not] want to hear ... Tiltson['s] and [mine administrator Denver Cook's}
bull shit" (Tr. 141); in response to Sturgill's criticism that disconnecting the phone could be hazardous if there were a fire, that
"[t]his mine could [not] burn; it [was] too wet and muddy" (Tr. 141142); and that foremen "[have] come and gone; ... [we will} get you too"
(Tr. 142). ]_/ Robinette testified that when they turned on the conveyor
machinery again, they had to shut it down because it was gobbed out (Tr.
16); Sturgill testified that there was "some spillage" which he instructed Robinette to shovel up (Tr. 140). Sturgill instructed Robinette
to report to the mine office at the end of the shift.
After the shift, Robinette left when Tiltson was unable to meet
with him. After Robinette's departure, Sturgill discussed the day's
incidents with Tiltson and mine administrator Denver Cook. Tiltson and
Cook reviewed Robinette's file containing the two February warnings. '§_/
On Monday morning, June 4, based on Sturgill's information, Cook
prepared and signed another "employee warning record" for Robinette,
and, after reviewing it, Tiltson decided to discharge him. The form
states:
Employee became disobedient with section foreman.
[Employee] [w]as not maintaining the belt feeder in a
clean and safe condition[;] the job requires the feeder
to be greased and shoveled at all times. [Employee]
(d]isconnected the mine phone interrupting mine communications.
Dismissed from the Company after thorough
examination of his past ... record of warnings and
and present attitude and workmanship [on] his job.
When Robinette arrived at work, Cook told him to come with him to
Tiltson's office. Robinette took along another miner, Teddie Joe Fields.
At the office, Tiltson informed Robinette that he was fired. Tiltson
stated that the discharge was "for what happened that Friday and what
had happened in the past." Cook raised a question about his operating
equipment without a cap lamp. Tr. 40-41. Tiltson stated that it had
been "unnecessary for [Robinette] to stop production" because of the
incident and that "[he] could have got[ten] out of the way and the tail
piece would have [taken] care of itself." Tr. 41. 2./
Sturgill s testimony is not discussed in the judge's decision. The
judge merely found that the two men "exchanged harsh words" and that
Robinette was "belligerent and uncooperative." 2 FMSHRC at 704, 706.
Robinette's initial testimony regarding the exchange was summary (Tr.
15-16, 36-37); on rebuttal, he was not asked about, and did not contradict Sturgillts version.
'Ji/ Sturgill suffered a heart attack on June 2, and did not participate
further in the Robinette matter.
J_/
Cook's and Tiltson's comments about the lamp cord were testified to
only by Teddie Fields. Robinette did not mention these statements;
Tiltson did not testify at the hearing; and Cook, who did testify, was
not asked about the June 4 meeting.

80H

On June 4 Robinette filed another discrimination complaint with
MSHA, based on his discharge. MSHA filed an application for temporary
reinstatement, which was issued on September 24. On October 11, 1979,
the Secretary filed the instant complaint under section 105(c), alleging
that Robinette had been discharged for "complain[ing] about working the
belt feeder without an operative cap light. 11
The judge credited Robinette's testimony concerning the belt misalignment and the accidental severing of his lamp cord; he discredited
evidence introduced by United Castle to show that the cutting of the
cord was deliberate, not accidental. 2 FMSHRC at 704. The judge found
that Robinette's ceasing to operate, as well as his shutting off the
conveyor equipment when he lost his cap lamp, constituted a "bona
fide" refusal to work under conditions which Robinette believed, and the
judge agreed, were hazardous. Id. at 704, 705, 706. The judge held
that Robinette's work refusal was protected activity under the Mine Act.
Id. at 706.
.
The judge treated the case as involving a "mixed motivation"--not
pretextual--discharge. He credited Sturgill's testimony that Robinette
disconnected the mine phone shortly after he shut off the conveyor
equipment. 2 FMSHRC at 704. The judge also found that Robinette's work
was "less than satisfactory" and that he was "obviously belligerent and
uncooperative with •.• Sturgill as a result of his change in job classification." Id. at 706. The judge concluded, however, that the "effective"
cause of Robinette's discharge was his protected work refusal. Id. at
705, 706. Omitting reference to the phone disconnection, the judge
stated that "[t]he other reasons given for the discharge--insubordination
and inferior work--were not the primary motives for discharge." Id. at
705. On the basis of these findings, the judge concluded that Robinette's
discharge violated section 105(c) of the Mine Act, and he ordered reinstatement
and payment of back pay.
II.

In Fasula, we established in general terms the right to refuse to
work under the Mine Act, but did not attempt at that time to define the
specific contours of the right. 2 FMSHRC at 2789-2796. This case
requires us to set some of the contours and to determine whether
Robinette's conduct falls within the zone of protected activity.
United Castle's concessions narrow the issues before us. Anticipating Fasula, United Castle "agrees" that the Mine Act grants miners a
right to refuse work in the face of conditions which they believe "in
good faith" place their "health or safety in irrunediate danger. 11 Petition
for Discretionary Review (PDR) 7. United Castle further 11 concedes 11 that
the right may in some cases extend to "self help by taking some affirmative
actions other than merely refusing to work. 11 Id. Assuming for the sake
of argument that the severing of Robinette's cap lamp cord was a genuine
accident, United Castle 11 readily concedes 11 that once Robinette lost his
light, "it would have been hazardous for [him] to ••• perform his duties
without [it]. 11 PDR 23. Thus, assuming a genuine accident, United Castle
admits that Robinette's mere ceasing to operate the feeder was a protected
work refusal and that he could not have been lawfully discharged for that

807

conduct alone. Rather, United Castle focuses on Robinette's additional
behavior in shutting down the conveyor equipment--an action characterized
by the judge as an integral part of Robinette's protected work refusal
and by United Castle as an unprotected form of "affirmative self-help."
As a threshold matter, we consider whether the right to refuse work
includes such "affirmative" forms of self-help as shutting off or adjusting
equipment in order to eliminate or protect against hazards, for it is
precisely such conduct which is in issue here. By treating Robinette's
shutting down of the conveyor as an integral part of his protected work
refusal (2 FMSHRC at 704, 705, 706), the judge answered this question in
the affirmative. 10/ We agree with that view. Occasions will arise
where mere ceasing of work will not eliminate or protect against hazards,
while adjusting or shutting off equipment will. In these cases, such
affirmative action may represent the safest and most responsible means
of dealing with the hazard. Affirmative self-help may also reduce
possible loss of time and of productivity. Taking this case as an
example, if we accept Robinette's good faith and his claim that there
was a danger of friction fire on the gobbed-out conveyor and feeder, his
shutting down the equipment seems both responsible and praiseworthy.
Such prophylactic action may have saved United Castle from a worse
threat to health and safety--and to productivity. Approving this
affirmative dimension to the right is consistent with Pasula. Effective
and timely protection of miners is the essence of the Fasula work
refusal doctrine:
The successful enforcement of the ••• Act is ••• particularly dependent upon the voluntary efforts of miners
to notify either MSHA officials or the operator of
conditions or practices that require correction. The
right to do so would be hollow indeed, however, if
before the regular statutory enforcement mechanisms
could at least be brought to bear, the condition complained of caused the very injury that the Act was intended to prevent. [2 FMSHRC at 2790,]
Since, as discussed above, affirmative self help may often represent the
most effective and responsible means of protecting miners from hazards,
the right to refuse work "would be hollow indeed" if it did not embrace
such means. Accordingly, we hold that the right to refuse work may
extend to shutting off or adjusting equipment in order to eliminate or
protect against a perceived hazard.
United Castle contends, however, that Robinette 1 s work refusal was
void from its inception because he caused the unsafe condition in
question by deliberately severing his own cap lamp cord. Thus, United
Castle charges him with a general failure of good faith and reasonableness.
Unlike the Pasula case (see 2 FMSHRC at 2790-2793), the evidence regarding these issues is sharply disputed and cannot be resolved unless
the underlying questions of whether good faith and reasonableness are
10/ As noted above, United Castle has also conceded that, in proper
circumstances, the right to refuse work may include affirmative self
help.

808

required for the activity to be protected are also answered. By emphasizing that Robinette's work refusal was "bona fide" (2 FMSHRC at 705),
the judge implicitly found that good faith was a prerequisite to a valid
work refusal, and we agree.
A good faith requirement is supported by Fasula, the Act's legislative history, analogous sources of occupational safety and health law,
and sound policy. Pasula approvingly refers in several passages to the
good faith of the miner involved in that case. 2 FMSHRC at 2793, 2796.
In the legislative history set forth in Pasula, and quoted below, 11/
Senators Williams and Javits pointedly described the meaning of the
right to refuse work in terms of the miner 1 s "good faith'' belief and
action. Both the Secretary of Labor's work refusal regulation under the
Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et~· (the
OSHAct), 12/ and section 502 of the Labor Management Relations Act (LHRA),

1:1/

MR. WILLIAMS,. The. committ.ee intends that miners not be
faced with the Robson's choice of deciding between their safety
and health or their jobs.
The right to refuse work under conditions that a miner
believes in good faith to threaten his health and safety is
essential if this act is to achieve its goal of a safe and
healthful workplace for all miners.
MR. JAVITS. I think the chairman has succinctly presented
the thinking of the committee on this matter. Without such a
right, workers acting in good faith would not be able to afford
themselves their rights under the full protection of the act as
responsible human beings.
[2 FMSHRC at 2792, quoting from Senate floor debate on S. 717, June 21,
1977, reprinted in Legislative History of the Federal Mine Safety and
Health Act of 1977, at 1089 (1978)("Leg. Hist. 11 ) . ]
12/ 29 CFR §1977.12(b)(2), the Secretary of Labor 1 s OSHAct work refusal
regulation, provides:
[O]ccasions might arise when an employee is confronted with a
choice between not performing assigned tasks or subjecting himself
to serious injury or death arising from a hazardous condition at
the workplace. If the employee, with no reasonable alternative,
refuses in good faith to expose himself to the dangerous condition,
he would be protected against subsequent discrimination. The
condition causing the employee's apprehension of death or injury
must be of such a nature that a reasonable person, under the
circumstances then confronting the employee, would conclude that
there is a real danger of death or serious injury and that there is
insufficient time, due to the urgency of the situation, to eliminate
the danger through resort to regular statutory enforcement channels.
In addition, in such circumstances, the employee, where possible,
must also have sought from his employer, and been unable to obtain,
a correction of the dangerous condition.
As noted in Fasula (2 FMSHRC at 2793 n. 7), the Supreme Court
approved these OSHAct criteria in Whirlpool Corp. v. Marshall, 445 U.S.
1 (1979). United Castle urges us to define the scope of the right to
refuse work by wholesale adoption of these criteria. Such a step would
be inconsistent with our Pasula approach favoring gradual, case-by-case
development of the law in this area. See 2 FMSHRC at 2793. Moreover,
we agree with the Secretary that such incorporation would be ill-advised
(footnote 12 continued)

809

29 U.S.C. §143, 13/ also require good faith for a valid work refusal.
policy of not requiring good faith would appear anomalous, seemingly
condoning irresponsible or deceptive work refusals. We note that the
Secretary makes no argument here that good faith is not required.

A

Good faith belief simply means honest belief that a hazard exists.
The basic purpose of this requirement is to remove from the Act's
protection work refusals involving frauds or other forms of deception.
Lying about the existence of an alleged hazard, deliberately causing
one, or otherwise acting in bad faith could endanger other miners and
disrupt production--and, not least, squander scarce administrative
fn.
cont
as a substantive matter. The Secretary observes (Br. 9-12 & nn. 1 & 3)
that he has not promulgated an identical regulation under the Mine Act
because of the differences in the two statute's legislative histories
and regulatory purposes. As the Whirlpool decision noted (445 U.S. at
13 n. 18), the Mine Act's relevant legislative history--set forth in
Pasula at 2791-2793--shows that Congress expressly intended the Mine Act
to guarantee a broad right to refuse work. In contrast, the OSHAct's
legislative history is silent on any similar right. See 445 U.S. at 1321. More significantly, the OSHAct regulation must apply nationally to
a wide range of typical jobs and work settings, while the Mine Act
applies more narrowly to one of the nation's most hazardous occupations
and working environments. While these considerations may be thought to
justify the relatively restrictive definition of the right in the OHSAct
regulation, they support a broader and simpler definition of the right
under the Mine Act. This is not to say that we will develop the right
without concern for the operators' legitimate interests in productivity,
economy, and discipline. The concernsof miners and operators will be
best served by a straightforward approach which steers clear of subtle
refinements and complicated exceptions. Proper administration of the
Mine Act requires a simple, yet supple, right which miners and operators
can understand and practically apply without confusion and torrents of
litigation.
We also find unpersuasive United Castle's suggestion that Whirlpool
viewed the OSHAct regulation as "a correct statement" of what should be
considered protected activity under the Mine Act. In the passage upon
which United Castle relies (445 U.S. at 13 n. 18), the Court merely
indicated that the Secretary's interpretation of the OSHAct to support
a right to refuse work conforms to the same interpretation which
Congress wished to be placed on the Mine Act's anti-retaliation
provisions. The Court did not state that the details of the OSHAct
regulation necessarily defined the scope of that right under the Mine
Act.
13/ Section 502 provides in part:
(N]or shall the quitting of labor by an employee or employees
in good faith because of abnormally dangerous conditions for work
at the place of employment of such employee or employees be deemed
a strike under this chapter.

810

and judicial resources in resolution of any resultant complaint under
the Act. Such behavior has no place under the Act. 1.!:!_/
Good faith also implies an accompanying rule requiring validation
of reasonable belief. Such a validation rule is implicit in the judge's
findings. See 2 FMSHRC at 704, 705, 706. Unreasonable, irrational or
completely unfounded work refusals do not commend themselves as candidates for statutory protection in light of Gateway Coal Co. v. Mine
Workers, 414 U.S. 368, 385-387 (1973). In interpreting section 502 of
the LMRA (n. 13 above) in that case, the Court squarely rejected the
contention that "an honest belief, no matter how unjustified, in the
existence of 'abnormally dangerous conditions for work' necessarily
invokes the protection of §502." Reasoning that "[i]f the courts
require no objective evidence that such conditions actually obtain, they
face a wholly speculative inquiry into the motives of the workers" (414
U.S. at 386), the court held that "a union seeking to justify a contractually prohibited work stoppage under §502 must present ... ascertainable, objective evidence supporting its conclusion that an abnormally
dangerous condition for work exists ...• '' Id. at 386-387. Pasula also
referred approvingly to the miner's "reasonable [belief] ... supported
by objective, ascertainable evidence. 11 2 FMSHRC at 2793.
Although Gateway arose in a section 502 and contractually-prohibited work stoppage context and is explicable in terms of the national
policy favoring arbitration (see 414 U.S. at 386), the reluctance to
rely on the "slender ... thread [of] subjective judgment" weighs
against resolving work refusal cases under the Mine Act on the basis of
the miner's good faith alone. Several possible reasonableness rules
suggest themselves, but only one convincingly accords with the purposes
of the Mine Act.
The relatively stringent "objective, ascertainable evidence" test
mentioned in
is usually satisfied only by the introduction of
physical evidence,
corroborative testimony, and--not
infrequently--expert testimony. Cf. NLRB v. Fruin-Conlon Construction Co.,
330 F.2d 885, 890-892 (8th Cir. 1964), cited approvingly in Gateway, 414
U.S. at 387 (construing section 502). We think that such a test may
be better suited to the broad scope of section 502, particularly where,
as in
a union 1 s contractually prohibited strike is involved.
For while
ective, ascertainable" evidence is always welcome, it may
not be readily obtainable in mining cases. Unsafe conditions can occur
We are not suggesting that in work refusal litigation the Secretary
or miner must demonstrate an
of bad faith. Ordinarily, the
miner's own testimony will expose the credibility of his good faith.
Operators may use cross-examination or introduction of other evidence to
show that, in reality, good faith was lacking. Thus, in a practical
sense, the real evidentiary burden occasioned by the rule will be on
operators to prove the absence of good faith.

811

suddenly and in remote sections of mines; the miner in question may be
the only immediate witness; and physical evidence may be elusive.
Situations are alsoibound to arise where outward appearances suggest a
dangerous condition which closer subsequent investigation does not
confirm. Furthermore, we believe that such a test would chill the
miner's exercise of the right to refuse work, an outcome inconsistent
with the Act's legislative history favoring a broad right in a uniquely
hazardous working environment. Miners should be able to respond quickly
to reasonably perceived threats, and mining conditions may not permit
painstaking validation of what appears to be a danger. For all these
reasons, a "reasonable belief" rule is preferable to an "objective
proof" approach under this Act.
More consistent with the Mine Act's purposes and legislative
history is a simple requirement that the miner's honest perception be a
reasonable one under the circumstances. 15/ Reasonableness can be
established at the minimum through the miner's own testimony as to the
conditions responded to. That testimony can be evaluated for its detail,
inherent logic, and overall credibility. Nothing in this approach
precludes the Secretary or miner from introducing corroborative
physical, testimonial, or expert evidence. The operator may respond in
kind. The judge's decision will be made on the basis of all the
evidence. This standard does not require complicated rules of evidence
in its application. We are confident that such an approach will
encourage miners to act reasonably without unnecessarily inhibiting
exercise of the right itself.
Finally, reasonableness has a similar role to play with respect to
any affirmative self-help undertaken by the miner. The same reasons
which justify a good faith standard also support a reasonableness rule
in this context. Irresponsible reaction to a good faith, reasonable
belief in a hazard has no more place under the Act than bad faith belief
itself. For example, if Robinette had deliberately set about wrecking
the feeder in response to his problems with it, extended analysis would
not be necessary to show that his "affirmative action" was beyond the
Act 1 s pale. As with reasonable belief, a miner need only demonstrate
that his affirmative action was a reasonable approach under the circumstances to eliminating or protecting against the perceived hazard.
In sum, we adopt a good faith and reasonableness rule that can be
simply stated and applied: the miner must have a good faith, reasonable
belief in a hazardous condition, and if the work refusal extends to
affirmative self-help, the miner's reaction must be reasonable as well.
We next apply these criteria to the evidence in this case.
15/ As noted above, the OSHAct regulation approved in Whirlpool (n. 12
above) meets the validation problem by requiring that an employee's
apprehension of a hazardous condition must be one that the mythical
llreasonable person" would have shared under the circumstances. While
the "reasonable person" standard avoids the problems associated with
"objective proof, 11 it lends itself to the interpretation that there is
only one reasonable perception of any given hazard--that of the "reasonable person.ff But the reasonable person is never there. Clearly,
reasonable minds can differ, particularly in a mine setting where
conditions for observation and reaction will not be clinically aseptic.

812

Robinette's good faith in general presents a close issue. Robinette
was the only eyewitness to the severing of his lamp cord. The judge,
who observed Robinette's demeanor, credited his testimony that the cord
was accidentally cut when it became snared on a belt roller, and rejected
United Castle's claim that Robinette deliberately cut the cord. Under
the good faith principles discussed above, if Robinette did deliberately
cut his cord, he set in motion the hazardous condition complained of and
hi:p "work ref'usal" should not be protected by the Act. United Castle
points l:o sev\eral aspects of this\ case, analyzed below, which we ackn:pwledge cc+st soine doubt on Robinette''s veracity. Nevertheless, a judge's
credibility findings and resolutions o'f disputed testimbny should not be
overturned lightly .j For the following reasons, we are not p\ersuaded
that the evidence/ ~equires us to t':\ke the exceptional step o~ reversing
the judge's crediting of Robinette ''s testimony on the accident.
As United Castle correctly points out, Robinette flatly denied disconnecting the mine phone. Tr. 172. The judge's finding, in which we
concur, that he did disconnect it can mean only that Robinette testified
untruthfully regarding that incident. United Castle argues that "if
[Robinette] was willing to lie under oath about the phone incident, he
would be quite willing to lie under oath about how his lamp cord was
cut." PDR 17-18. We do not subscribe to a "false in one, false in
everything" rule of testimonial evidence, and such rules are not applied
inflexibly in any event. Cf. U.S. v. Spain, 536 F.2d 170, 173 (7th Cir.
1976),
denied, 429 U.S. 833; Lozano Enterprises v. NLRB, 327 F.2d
814, 816 & n. 2 (9th Cir. 1964). Where it is apparent that a witness
has testified untruthfully in part, the judge should ordinarily explain
how that fact affects the credibility of the witness with respect to his
remaining testimony. While we would have preferred the judge to supply
such an explanation, particularly on so sensitive a subject as good
faith, failure to do so is not necessarily reversible error. If the
remainder of a questionable witness' testimony is corroborated by other
credible evidence (see, for example, Larmay v. Hobby, 132 F. Supp. 738,
740 (E.D. Wis. 1955)), or is otherwise inherently believable, the judge
is not foreclosed from accepting it. We therefore reject the contention
that Robinette's untruthful phone testimony by itself compels disbelief
of the accident testimony. Our resolution of this credibility issue in
no way lessens our serious concern, discussed below, over proper evaluation
of the role played in Robinette's discharge by his reprehensible disconnection of the phone.
Robinetteis testimony about the accident is believable. United
Castle introduced demonstrative and testimonial evidence (Tr. 78-87) to
show that Robinette's cord could not have been severed in the way it was
by getting caught in a roller. United Castle "concedes that [its]
testimony did not establish conclusively that it was impossible for
[Robinette's] lamp cord to have been severed in the manner in which he
claimed," but maintains that "[the) testimony clearly did establish that
such an accident is highly unlikely." PDR 15-16. United Castle's
witness had held a lamp cord similar to the one worn by Robinette
against a moving belt roller, but was able to produce only a "nick" in
the cord. Among other things, however, the experiment was conducted
outside the mine on equipment other than that involved in the incident,
and the witness used a piece of cord lacking the kind of opposing
tension caused by a cap and belt at either end. See Tr. 87-96.

Obviously, the experiment did not replicate the conditions present at
the time of the alleged accident. While the judge did not explain in
detail his conclusion that United Castle's evidence "failed to establish
[its] contentions" (2 FMSHRC at 704), we conclude that the foregoing
considerations adequately support that conclusion. United Castle's
evidence merely raises suspicion about, but does not demolish,
Robinette's credibility. 16/ We find, therefore, that substantial
evidence supports the judge's finding that there was a genuine accident.
Next, United Castle claims that the judge made no findings, and
that the evidence does not show, that Robinette had a reasonable good
faith belief in a hazard which would have justified his additional step
of shutting off the equipment. 17/ The judge did make findings on these
matters. In paragraphs 13, 14,--and 15 (2 FMSHRC at 704), he describes
in general terms the hazardous conditions Robinette faced and makes
clear that Robinette's work refusal included both the ceasing of work
and shutting down of equipment. Findings 13 and 14 cover only the
conceded hazard in Robinette's continuing to operate the machinery
without light. Finding 15, however, deals with the additional problem
of whether the belt should have been left on:
The belt feeder operator is required to remove or break up rocks
moving on the belt to permit the coal to pass. It is necessary on
occasion to shut down the feeder to remove larger rocks. To permit
the belt to continue running when the operator has inadequate
illumination would create a hazardous situation for the operator
and other miners.

16/ United Castle also argues that the rest of Robinette's pre- and
post-accident conduct--his poor performance on May 31, his disconnecting
the phone, and his insubordination towards Sturgill--shows that he
probably lied about the accident. We cannot agree. These are separate
incidents and the fact that he may have acted badly otherwise does not
prove that he did so in the incident in question. United Castle also
points out what we regard as only a minor discrepancy in the testimony
of Robinette and Sturgill. As opposed to Robinette's testimonial version
of the accident, Sturgill testified (Tr. 139) that when he arrived on
the scene, Robinette told him that the cord was cut when he 11 fell down
at the beltline ... getting a rock off. 11 Assuming Robinette did say
that, the explanation seems close enough to his trial version of
ntraining" rollers while a gobbing out problem was going on. Both men
were also under stress when these words were exchanged. United Castle's
additional claim that Sturgill testified that the belt was running in
line when he got there is not borne out by the transcript. Sturgill
somewhat confusingly stated that "I've seen the belt running in line[;][a]
new set, it ought to run in line." Tr. 159. This is not an unequivocal
statement that it was then running in line, and, in any event, Robinette's
"training" may have substantially realigned the belt.
17/ As stressed above, United Castle concedes that if there was a
genuine accident, Robinette was justified in ceasing to operate the
equipment. It does not concede, though, that he was justified in
shutting the equipment down.

814

Although the judge did not specify what "hazardous situation" would have
obtained had the belt continued to run, he clearly found that shutting
it off was justified. The evidence supporting that conclusion is strong.
United Castle emphasizes Robinette's lack of light. PDR 22-23.
However, Robinette testified that he stopped working for two reasons: he
was concerned that he could not see what was happening (Tr. 17-18) and
the belt misalignment on the tail piece caused a gobbing out which could
have broken the belt or led to a friction fire. Tr. 15, 18. He shut
off the conveyor equipment mainly because of his concern over the second
condition. While lack of light alone may not have justified the shutdown,
the other perceived hazard, worsened by the darkness, did.
Robinette's testimony concerning misalignment was not convincingly
rebutted. His testimony (Tr. 16) that both coal and rock were running
through the feeder on June 7 was corroborated by Teddie Joe Fields (Tr.
41-44) and Sturgill (Tr. 150). Robinette also testified that once the
equipment was turned back on, it had to be shut down because of the
gobbing out. In partial corroboration, Fields testified that he
observed Robinette that day cleaning up gob-outs on the tail piece (Tr.
44), and Sturgill admitted that after he reprimanded Robinette for
shutting off the equipment, he had to instruct him to shovel up "some
spillage" from the beltline (Tr. 140). Furthermore, it was undisputed
that United Castle did not want gobbing out to occur; that the feeder
operator was required to remove rock because it can cause gobbing out;
and that occasionally the feeder and belt were shut down to remove rock.
United Castle's standard procedures in this regard conform to the basic
principle of mine safety that feeders and belts must be kept clear of
debris precisely to avoid the hazards of friction fire or spillage which
Robinette testified he feared. In a larger sense, it is probably
unsafe to leave an unattended, unlighted conveyor belt running because
hazardous rock accumulation can come through at any time. We therefore
conclude that there is substantial evidence to show that Robinette's
affirmative self-help was founded on a good faith reasonable belief in a
gobbing out hazard which was exacerbated by lack of light. 18/
This result also dictates the similar conclusion that Robinette 1 s
affirmative self-help was itself reasonable. Merely stopping work would
not have completely removed or protected against the gobbing out dangers.
Turning off the equipment was entirely consistent with United Castle's
standard procedure when there is an accumulation of rock. In short, it
would appear that Robinette's action was more than merely reasonable.
United Castle's remaining protected activity contentions--that any
perceived hazard was not so severe as to subject Robinette to a risk of
serious bodily harm or death; that he had less drastic alternatives
18/ United Castle also argues (PDR 21-22) that Robinette's comment
during his subsequent heated exchange with Sturgill that the mine was
too muddy to burn undermines any claimed good faith belief in a gobbing
out-related·fire hazard. While the comment is deplorable, it is not the
same as asserting that the conveyor equipment was fireproof in the event
of a gobbing out.

815

for eliminating the perceived hazard; and that he first failed to seek
opearator assistance to correct the condition--can be disposed of
through evidentiary analysis. This case does not require definitive
answer as to whether any criteria like these should be adopted.
Regarding "severity of hazard," the hazard here,_ as in Pasula, was
"sufficiently severe whether or not the right to refuse to work is
limited to hazards of some severity." See 2 FMSHRC at 2793. As discussed above, the evidence showed a reasonably-based fear of gobbing out
on the belt which could have led to friction fire or dangerous spillage
of rock and coal. These are hazards of substantial severity and,
accordingly, Robinette's reasonable good faith belief was directed to a
sufficiently serious danger.
Concerning a "less drastic alternative, 11 our preceding conclusion
on good faith rejects any implicit argument that it would have been more
reasonable
to shut off the conveyor equipment. United Castle proposes only one positive alternative course of action: that Robinette
should have sought immediate assistance from the shuttle car operator in
repairing his light. This individual did not testify, and there was no
showing that he was competent to fix the broken cord. Moreover, this
argument goes to Robinette's ceasing work due to lack of light.
Repairing the light would have taken time and, in any event, would not
have completely dealt with the danger of gobbing out. We find no
evidence that Robinette had a less drastic, reasonable alternative.
Regarding "seeking operator assistance," the evidence is undisputed
that, before shutting down the equipment, Robinette repeatedly sought
Sturgill's general assistance, waited 10-15 minutes for help, and was
finally told either that Sturgill would be there when he could or in a
"few minutes." This evidence makes out a reasonable attempt to seek
operator assistance whether or not such action is always required where
possible. True, Robinette did not inform Sturgill of the specific
gobbing out hazard or of any intention to shut off the equipment (see n.
5 above). However, we think that under the exigencies of actual mining
conditions and the stress of a possible emergency, a summons for general
help would be sufficient. Even if contact is required, we also believe
that the obligation would terminate if the situation worsened or, as here,
the operator failed to respond with reasonable promptness. 19/
United Castle's final protected activity argument is that even if
the work refusal was protected, Robinette "lost the Act's protection" by
his subsequent conduct in disconnecting the phone and threatening
Sturgill. This position is loosely based on two rules developed under

United Castle appears to argue that in shutting off the equipment,
Robinette disobeyed Sturgill 1 s "off-the-scene" instruction to sit by the
phone until he could come to help. Such "off-the-scene" instructions
should not be binding where, as here, the operator's agent has not
observed the conditions facing the miner. A contrary rule would exalt
obedience to uninformed orders to the detriment of health or safety.

81{)

the National Labor Relations Act, 29 U.S.C. §151
~·: that protected
activity loses its otherwise protected character if pursued in an
opprobious manner, and that bona fide discriminatees who engage in postdiscrimination misconduct can forfeit their entitlement to being made
whole. See, for example, Crown Central Petroleum Corp. v. NLRB, 430
F.2d 724, 729-731 (5th Cir. 1970)(opprobrious conduct); Alumbaugh Coal
Corp. v. NLRB, 635 F.2d 1380, 1385-1386 (8th Cir. 1980) (post-discrimination misconduct). Neither doctrine applies to Robinette's misconduct,
which occurred after the work refusal and prior to the alleged discrimination. Rather, this misconduct formed part of the basis for
Robinette's discharge and should simply be analyzed along with the other
discharge issues.
More importantly, Fasula has already resolved the question of the
effect of "subsequent misconduct." There, we had occasion to review an
underlying arbitral decision that Fasula had not engaged in a protected
work refusal because of several incidents of apparent misconduct after
his ceasing of work. We concluded that a "miner's good faith is not
'lost' by his subsequent misconduct .... " 2 FMSHRC at 2796. This result
is not unfair to operators. The requirements of good faith and reasonableness will guard against work refusals carried out in an opprobrious
fashion, and "subsequent misconduct" of the kind involved here will be
weighed along with all other relevant discrimination issues.
In sum, we affirm the judge's findings that Robinette engaged in a
protected work refusal. We now discuss the question of whether Robinette
was discharged because of his protected activity.
III.

In Fasula, we announced the following test for resolving discrimination cases:
We hold that the complainant has established a prima facie
case of a violation of section 105(c)(l) if a preponderence of the
evidence proves (1) that he engaged in a protected activity, and
(2) that the adverse action was motivated in any part by the
protected activity. On these issues, the complainant must bear the
ultimate burden of persuasion. The employer may affirmatively
defend, however, by proving by a preponderance of all the evidence
that, although part of his motive was unlawful, (1) he was also
motivated by the miner 1 s unprotected activities, and (2) that he
would have taken adverse action against the miner in any event for
the unprotected activities alone. On these issues, the employer
must bear the ultimate burden of persuasion. It is not sufficient
for the employer to show that the miner deserved to have been fired
for engaging in the unprotected activity; if the unprotected

817

conduct did not originally concern the employer enough to have
resulted in the same adverse action, we will not consider it. The
employer must show that he did in fact consider the employee
deserving of discipline for engaging in the unprotected activity
alone and that he would have disciplined him in any event.
[2 FMSHRC at 2799-2800 (emphasis in original).] 20/
There can be no serious question that the Secretary effectively
established a prima facie case that Robinette was discharged in part
because of his protected activity in shutting off equipment. Sturgill
reprimanded Robinette for the shutdown and was obviously upset by it.
While the shutdown is not mentioned in the final employee warning record
prepared by Cook, Tiltson informed Robinette during the June 4 discharge
interview that he was being terminated for the events of June 1 and for
past incidents. During the interview, Cook mentioned the cord incident
and shutdown, and Tiltson stated that it had been "unnecessary for
[Robinette] to stop production" because of the cap light incident and
that Robinette "could have got[ten} out of the way and the tail piece
would have [taken] care of itself." Moreover, in its brief to the
administrative law judge, United Castle argued that the discharge was
justified in part by Robinette's "shutting down production after he had
been instructed to remove himself from the area of any danger." Br. to
Administrative Law Judge 30. On the basis of all this, the judge found
that the work stoppage was the primary cause of discharge; we certainly
agree it was a cause.
burden of persuasion" on the question of discrimination
rests with the complainant and never "shifts." As we indicated in
Fasula, above, there are intermediate burdens which do shift. The
complainant bears the burden of producing evidence and the burden of
persuasion in establishing a prima facie case. The operator may attempt
to rebut a prima facie case by showing either that the complainant did
not engage in protected activity or that the adverse action was in no
part motivated by protected activity. If the operator cannot rebut, he
may still affirmatively defend in the manner indicated in the quotation
from Fasula above. The twin burdens of producing evidence and of persuasion then shift to him with regard to those elements of affirmative
defense. If the operator cannot rebut or af firmately defend against a
prima facie case, the complainant prevails. Of course, the complainant
may attempt to refute an affirmative defense by showing that he did not
engage in the unprotected activities complained of, that the unprotected
activities played no part in the operator's motivation, or that the
adverse action would not have been taken in any event for such unprotected activities alone. If a complainant who has established a prima
facie case cannot refute an operator's meritorious affirmative defense,
the operator prevails. This latter consequence stems from the fact that
the 11 ultimate" burden of persuasion never shifts from the complainant.
Cf. Wright Line, 251 NLRB No. 150, 105 LRRM 1169, 1173-1175 (1980)
(adopting a discrimination test substantially the same as the one
announced in Pasula). In footnote 11 of that decision, the NLRB
explained its similar position on the relationship of the intermediate
burdens of proof to the ultimate burden:
It should be noted that this shifting of burdens does not undermine
the established concept that the [Board's]General Counsel must
establish an unfair labor practice by a preponderance of the
evidence. The shifting burden merely requires the employer to make
out what is actually an affirmative defense ..• to overcome the
prima facie case of wrongful motive. Such a requirement does not
shift the ultimate burden.

8J8

The more difficult question is whether United Castle, in effect,
carried its defensive burden of showing that it was also motivated by
Robinette's unprotected activities and would have discharged him for
those activities alone. The j
found that Robinette's "insubordination and inferior work 11 were other reasons for the discharge, but not
the "primary motives," and that the work refusal was the
tive
cause" of discharge. In view of the evidence of Robinette's widemisconduct or "inferior" work set forth above in our summary of
the facts, we agree that United Castle was also motivated by his "unprotected activities." The Secretary does not seriously argue otherwise.
Thus, the only real question is whether Robinette would have been fired
for those activities alone,
of whether he had shut down the
conveyor.
The final warning notice does mention the phone disconnection,
Robinette's disobedience, his failure on May 31 to grease the feeder,
and his past record of warning.
These are not minor matters.
Both
the Mine Act and a mandatory
standard require mine phones 22 and
disconnecting one to avoid "lis
to supervisors' bull shit" reveals
a
disregard of mine safety.
The judge did not
explain what he meant in finding
number 23 (2 FMSHRC at 705).that the work refusal was the "effective"
cause of discharge. However, in finding number 23 he also employs the
term "primary." If "effective 11 means primary, as seem the most reasonable interpretation of the j
's language, such a f
does not
rule out the possibility that the other reasons, by themselves,
would also have led United Castle to discharge Robinette. All the
reasons listed may have been sufficient grounds for termination even if
the work refusal was the leading one. If that is the case, United
Castle effectively met its
burden. In this regard, we are
particularly troubled by the fact that the judge did
ically
the role played by the
incident in the
Accordingly, although the judge's findings are consonant with three
of the four Pasula evidentiary standards, we remand on the narrow
question of whether Robinette would have been fired for his unprotected

We recognize that the notice was prepared by Cook, who had not
witnessed the events in question. Nevertheless, Cook p
the form
based on Sturgill's firsthand information, and Sturgill supplied direct
testimony on the Nay 30 - June 1 incidents.
22
Section 316 of the Act and 30 CFR §75.1600 require installation of
phones in designated mine working areas. The phone in
was
a required "working section" phone and, indeed, was "the last phone
[inby] the face. Tr. 115. See also 30 CFR §75.1600-2(e) ("repairs
[on broken phones] shall be started immediately, and the
restored
to operating condition as soon as possible").

819

activity alone. In this regartl, the judge should discuss and analyze
all of Sturgill's testimony concerning Robinette's relevant comments and
deeds between May 30 and June 1, and in particular, Robinette's disconnection of the phone and his specific insubordinate words to Sturgill
on the latter date. The judge may permit the parties to file supplemental briefs directed to the issue on remand and, if he determines the
need exists, open the record for further testimony and evidence.
For the foregoing the reasons, we affirm the judge's findings in
part and remand in part.

Marian Pearlman Nease, Commissioner

820

Distribution
Michael L. Lowry, Esq.
Jeffrey W. Bell, Esq.
Ford, Harrison, Sullivan, Lowry & Sykes
1400 Harris Tower
233 Peachtree St., N.W.
Atlanta, GA 30303
Dennis McDaniel, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Chief Administrative Law Judge James Broderick
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

821

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

April 7, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No. VINC 79-154-PM

v.
CEMENT DIVISION, NATIONAL GYPSUM
COMPANY
DECISION

The broad question before us is when may a violation of a mandatory
safety or health standard properly be found to "significantly and
substantially contribute to the cause and effect of a coal or other mine
safety or health hazard" under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §801
~· (Supp. III 1979)(the 1977 Mine Act).
That
question is important because violations of such a nature,.. togt!ther with
a mine operator's "unwarrantable failure" to comp1y with a mandatory
safety or health standard or together with an operator's engaging in a
"pattern of violations", will trigger the withdrawal order sequences of
sections 104(d) and 104(e) of the 1977 Mine Act, respectively. l/

l/

Sections 104(d) and 104(e) provide as follows:
(d)(l) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of
such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory
health or safety standards, he shall include such finding in any
citation given to the operator under this Act. 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.
(footnote 1 cont'd)

822

81-4-6

The interpretation of the "significant and substantial" provisions
is before us in the context of a civil penalty proceeding. The facts
(footnote 1 cont'd)
(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 tha~ resulted in the
issuance of the withdrawal order under paragraph (1) until such
time as an inspection of such mine discloses no $imilar ·violations.
Following an inspection of such mine which discloses no similar
violations, the provisions~of paragraph (1) shall again be applicable
to that mine.
(e)(l) If an operator has a pattern of violations of mandatory
health or safety standards in the coal or other mine which are of
such nature as could have significantly and substantially contributed
to the cause and effect of coal or other mine health or safety hazards,
he shall be given written notice that such pattern exists. If,
upon any inspection within 90 days after the issuance of such
not
an authorized representative of the Secretary finds any
violation of a mandatory health or safety standard which ~ould
significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard, the authorized
representative shall 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 fr9m 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 be issued by an authorized representative of the Secretary
who finds upon any subsequent inspection the existence in such mine
of any violation of a mandatory health or safety standard which could
significantly and substantially contribute to the cause and effect
of a coal or other mine health or safety hazard. The withdrawal
order shall remain in effect until an authorized representative of
the Secretary determines that such violation has been abated.
(3) If, upon an inspection of the entire coal or other mine,
an authorized representative of the Secretary finds no violations
of mandatory health or safety standards that could significantly
and substantially contribute to the cause and effect of a coal
or other mine health and safety hazard, the pattern of violations
that resulted in the issuance of a notice under paragraph (1) shall
be deemed to be terminated and the provisions of paragraphs (1) and
(2) shall no longer apply. However, if as a result of subsequent
violations, the operator reestablishes a pattern of violations,
paragraphs (1) and (2) shall again be applicable to such operator.
(4) The Secretary shall make such rules as he deems necessary
to establish criteria for determining when a pattern of violations
of mandatory health or safety standards exists.
[Emphasis added.]

of the case are briefly as follows.
Between April 18, 1978, and May 9,
1978, Mine Safety and Health Administration (MSHA) inspectors issued
eleven citations under section 104(a) of the Act to the Cement Division,
National Gypsum Company.
The citations involved alleged violations of
various mandatory safety standards. With respect to each of the citations, the inspectors checked a box on the citation form that described
the particular violation as being "significant and substantial".
The Secretary of Labor subsequently filed a petition for assessment
of civil penalties with the Commission.
Following a~ evidentiary
hearing, the administrative law judge upheld ten of the eleven citations
and assessed penalties accordingly. In addition, the_ judge found that
nine of the ten violations were of a "significant and substantial"
nature. 2/ In making those significant and substantial findings, the
judge re~iewed prior Board of Mine Operations Appeals case law and the
1977 Mine Act legislative history, and reluctantly agreed with the
Secretary's position that a violation is of a significant and sub~
stantial nature if it presents more than a remote or speculative
possibility that any injury or illness may occur--only purely "technical"
violations or those with only a remote or speculative chance of any
injury of illness occurring could not be cited as significant and
substantial.
.I;.

National Gypsum sought Commission review on the ground that the
judge's interpretation of the involved significant and substantial
provisions is overly inclusive. ]_/ It did not, however, seek review

2/
We do not mean to mislead by use of the ph:rase "significant and
substantial"; we use it merely for convenience as a short-hand for the
complete statutory language, i.e., a violation of such nature as "could
significantly and substantially contribute to the cause and effect of a
coal or other mine safety or health hazard."
]../
Specifically, National Gypsum sought review of the significant and
substantial findings made with respect to each of the following violations:
Citation No. 288294.
This citation involved a violation of 30 CFR
§56.9-87.
The reverse back-up alarm signal on a bulldozer was not
operating properly.
Citation No. 288295.
This citation involved a violation of 30 CFR
§56.4-9. A foreign substance had come into contact with duct
insulation, causing the insulation to smolder.
The duct was
approximately four to six inches away from an adjacent walkway.
Citation No. 288296.
This citation involved a violation of 30 CFR
§56.12-32. A paddle switch junction box, located near an elevated
walkway, was not covered by an electrical plate.
Citation No. 288297. This citation involved a violation of 30 CFR
§56.11-1. A walkway adjacent to a conveyor belt contained up to
twenty-four inches of spillage and presented a tripping hazard.
The walkway was elevated thirty to forty feet above the ground.
Citation No. 288298. This citation involved a violation of 30 CFR
§56.12-34. A 200-watt light bulb positioned above an elevated
walkway was not protected by a guard.
(footnote 3 cont'd)

824

of the judge's findings of violation or of the penalties assessed. We
granted National Gypsum's petition for discretionary review, and heard
oral argument. !±_/
Upon careful consideration of the question before us, we hold that
the interpretation of the significant and substantial provisions applied
by the judge is erroneous. Rather, for the reasons that follow, we hold
that a violation is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health
hazard if, based upon the particular facts surrounding that violation,
there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serioui:! nature,.
The position advanced by the Secretary--that a violation is of a
significant and substantial nature, so long as it poses more than a
remote or speculative chance that an injury or illness will result, no
matter how slight that injury or illness--would result in almost all
violations being categorized as significant and substantial. Such an
interpretation would be inconsistent with the statutory language and
with the role we believe the significant and substantial provisions are
intended to play in the enforcement scheme.
The Secretary's mechanical approach would leave little, if any room
for the inspector to exercise his own judgment in evaluating the hazard
presented by the violation in light of the surrounding circumstances.
Yet, the statutory language contemplates more and is comparable to the
burden placed upon the inspector when he determines that an imminent
danger exists pursuant to section 107. Section 104(d)(l) provides that
if an inspector finds a violation "and if he al.so finds that ••• such
violation"
of a significant and substantial nature he shall include
such finding in the citation. We believe that the inspector's independent
ootnote 3 cont
Citation No. 288826. This citation involved a violation of 30 CFR
§56.12-34. A light bulb above a band-saw in the carpenter 1 s shop
was not protected by a guard.
Citation No. 288827. This citation involved a violation of 30 CFR
§56.4-33. The valves on oxygen and acetelyne cylinders (used for
welding) were left open while not in use. There were also ignition
sources nearby.
Citation No. 288566. This citation involved a violation of 30 CFR
§56.11-1. An accumulation of limestone, up to two feet
and
thirty feet long, prevented safe access to a conveyor belt.
Citation No. 288567. This citation also involved a violation of 30
CFR §56.11-1. A six-inch by eight-inch hole was observed by the
inspector in the lower end of an elevated walkway.
!!}
The American Mining Congress filed a brief and participated in the
oral argument as amicus curiae. In general, it agreed with National
Gypsum's position that the judge's interpretation of the involved significant and substantial provisions is too expansive.

,..
82 !)

judgment is an important element in making significant and substantial
findings, which should not be circumvented. ~/
Interpret
the significant and substantial language in sections
104(d) and (e) to encompass almost all violations would render that
language virtually superfluous. The language could be eliminated
altogether with nearly no change in the categories of situations that
would
rise to withdrawal orders under sections 104(d) and (e). We
do not believe that Congress intended the significant and substantial
provisions to be mere surplusage. Section lOl(a) of the Act provides
that the Secretary is to adopt mandatory health and iafety standards
"for the protection of life and prevention of injuries." Thl!s, the
violation of a standard presupposes the possibility, however remote, of
contribution to an injury or illness. The language of section 104(d)
clearly indicates, however, thaY a significant and substantial finding
is to be made in addition to a finding of a violation; something more
than the violation of a standard itself is required. §_/ Thus, the
interpretation urged by the Secretary, which would result in virtually
all violations that may contribute to an injury being categorized as
significant and substantial, would be inconsistent with the two-fold
finding required by section 104(d). On the other hand, the interpretation we have made gives substantive meaning to the significant and
substantial language, rather than rendering it superfluous, and is
consistent with the two-fold finding required by section 104(d).
The interpretation argued by the Secretary would have an untenable
effect on the implementation of section 104(e) 1 s "pattern!I provisions.
Sub-section (e)(l) provides that an operator can be subjected to withdrawal orders if it has a pattern of significant and substantial violations and is so notified by the Secretary. If a violation of a significant
and substantial nature is found within 90 days of that notice, a withdrawal
order is to be issued. If that occurs, any other violation of a significant
and substantial nature found thereafter likewise results in the issuance
of a withdrawal order. Thus, under the Secretary's interpretation of
the s
icant and substantial provision, once found to have a pattern
of violations (of almost any nature), an operator would face continual

5
This contrasts sharply with MSHA's current practice. Inspectors
involved in this case testified that they automatically marked all
violations significant and substantial except technical violations.
This practice is in accord with the instructions issued to them by
MSHA 1 s Administrator for Metal and Nonmetal Mine Safety and Health in a
memorandum dated July 5, 1979, that provides in part: "MSHA's position
on 'significant and substantial' violations continues to be that all
violations of mandatory standards are 'significant and substantial'
except those violations posing no risk of injury at all, purely technical, or bookkeeping violations, or those violations which pose risks
having only a remote or speculative chance of happening."
Section 104(d) says that if the inspector finds a violation and
if he also finds" that violation to be of a significant and substantial
nature, he shall include that additional finding in the citation.

82{:)

shutdown for almost all subsequent violations that occur in its mine,
until the pattern notice is lifted. Yet, subsection (e)(3) provides
that the pattern is terminated only upon an inspection of the entire
mine that discloses no violations of a significant and substantial
nature. If the Secretary were correct that almost all violations are of
a significant and substantial nature, most mines would never be relieved
of withdrawal order liability under the pattern provisions, particularly
large mines, no matter how diligent in improving
practices, for
as a
matter an inspection of the entire mine will rarely, if
ever, disclose no violations. No matter how hard an pperator worked to
eliminate and prevent violative conditions, it would rarely be totally
successful. Section 104(e) would, in such circumstanc;es., take on a
wholly punitive character; it would serve as continued punishment for a
pattern having occurred in the first instance, rather than serving as an
incentive to improve safety conditions. We simply do not believe that·
section 104(e) is intended to operate in such a manner.
The interpretation we have placed upon the significant and substantial provisions is, we believe, consonant with the statutory language and with the overall enforcement scheme. The provision involved
applies to violations that "could significantly and substantially
contribute to the cause and effect of a coal or other mine safety or
health hazard." Although the Act does not define the key ter~ "hazard"
or "significantly and substantially", in this context we understand the
word "hazard" to denote a measure of danger to
or health, and
that a violation "significantly and substant
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.

]_/
Webster's Third New International Dictionary, unabridged, 1971, in
part defines "hazard" as follows:
..• 2a: an adverse chance (as of being lost, injured, or defeated):
DANGER, PERIL •.. b: a thing or condition that might operate
success or safety: a possible source of peril, danger,
duress, or difficulty ••• c: a condition that tends to create or
increase the possibility of loss ••.•
Black's Law Dictionary, 5th ed., 1979, refers to "hazard" in part as "a
danger or risk lurking in a situation which by change or fortuity
develops into an active agency of harm •••• " The word "significant" is
defined in Webster's in part as follows:
•.. 3a: having or likely to have influence or effect: deserving to
be considered: IMPORTANT, WEIGHTY, NOTABLE ••• c: probably caused
by something other than mere chance ••••
"Substantial" is defined in part as 11 • • • le: being of moment: IMPORTANT,
ESSENTIAL .•. 4a: being that specified to a large degree or in the
main."

Section 104(d) says that to be of a significant and substantial
nature, the conditions created by the violation need not be so grave as
to constitute an irrnninent danger. (An "imminent danger" is a condition
"which could reasonably be expected to cause death or serious physical
harm" before the condition can be abated. Section 3(j)). At the other
extreme, there must be more than just a violation, which itself presupposes at least a remote possibility of
injury, because the inspector is to make significant and substantial findings in addition to a
finding of violation. Our interpretation of the significant and substantial language as applying to violations where there exists a reasonable likelihood of an injury or illness of a reasonably serious nature
occurring, falls between these two extremes--mere existence of a
violation, and existence of an imminent danger, the latter of which
contains elements of both likeljhood and gravity. As already noted,
this interpretation does not render the significant and substantial
language superfluous, is consistent with the two-fold finding required
by section 104(d), and requires a meaningful judgment by the inspector
in each case. It also is consistent with a sensible enforcement scheme
under section 104(e).
Our interpretation is also more consistent with the Act's overall
enforcement scheme, which generally provides for the use of increasingly
severe sanctions for increasingly serious violations or ~pera~or behavior.
·For example, the violation of any mandatory standard requires issuance
of a citat.ion and assessment of a monetary penalty. Sections 104 (a) and
llO(a). If, after having the violation brought to its attention by
issuance of the citation, the operator does not abate the violation
within the prescribed period, the more severe sanction of a withdrawal
order is required-, and an even greater monetarY penalty may be assessed.
Sections 104(b) and llO(b). Under section 104(d), if a violation occurs
as to which significant and substantial and unwarrantable failure findings are made, further unwarrantable failure violations will trigger
automatic withdrawal orders--the shutdown is immediate; the operator
will not first be given an opportunity after citation to abate. Similarly, the same consequences occur under section 104(e) if, after a
pattern of significant and substantial violations is established,
further violations of a significant and substantial nature occur. We
believe that the more severe sanctions under these sections are aimed at
more serious conduct by operators who have demonstrated a less than
diligent regard for compliance with the mandatory safety and health
standards under the Act. §_/ Interpret
the significant and substantial provisions as we have is more consistent with this enforcement
scheme than the interpretation advanced by the Secretary.
Finally, in interpret
the significant and substantial provisions
to apply to violations where there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a
reasonably serious nature, we have carefully examined the relevant

§_/ If a condition exists that is so serious to safety or health so as
to constitute an imminent danger, section 107 provides for an immediate
shutdown, regardless of the operator's behavior and without an opportunity
to first abate.

828

legislative history, including the Senate Report. 'ii We found those
references contradictory, at times directly at odds with the Act 1 s
language, and thus not helpful in resolving the issue before us. On

'ii

The Senate Committee in relevant part stated:
Unwarranted failure closure orders
Section [104(d)] contains another sanction, carried over from
the Coal Act .•• ; the unwarranted failure closure order. Like the
failure to abate closure order of section [104(b)], the unwarranted
failure order recognizes that the law should not tolerate miners
continuing to work in the face of hazards resulting from conditions
violative of the Act which, the operator knew of or should have
known of and had not corrected.

*

*

Section 104(c) [of the Coal Act] provides that where an
inspector finds a violation which, while not causing imminent
danger, could "significantly and substantially contribute to the
cause and effect of a mine safety or health hazard" (the so-called
"gravity" test), and where the violation was the result of the
operator's "unwarrantable failure" to comply with the Act, the
inspector shall so note such findings in his notice of violations .•..
The Interior Board of Mine Operations Appeals has until
recently taken an unnecessarily and improperly strict view of the
"gravity test" and has required that the violation be so serious as
to very clo
approach a situation of "imminent danger 11 , Eastern
Associated Coal Corporation, 3 IBMA 331 (~974).
The Committee notes with approval that the Board of Mine
Operations Appeals has reinterpreted the "significant and substantial" language in Alabama Ev-Products Corp., 7 IBMA 85, and
ruled that only notices for purely technical violations could not
be issued under Section 104(c)(l).
The Board there held that "an inspector need not find a risk
of serious bodily harm, let alone death" in order to issue a notice
under Section 104(c)(l).
The Board's holding in Alabama By-Products Corporation is
consistent with the Committee's intention that the unwarranted
failure citation is appropriately used for all violations, whether
or not they create a hazard which poses a danger to miners as long
as they are not of a purely technical nature. The Connnittee assumes,
however, that when
echnical" violations do pose a health or
safety danger to miners, and are the result of an "unwarranted
failure" the unwarranted failure notice will be issued.
S. Rep. 95-181, 95th Cong., 1st Sess., at 30-31 (1977), reprinted in
Senate Subconnnittee on Labor, Corrnnittee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 618-619 (1978) ("Legis. Hist. 11 ) . The Senate Report states
that the meaning of the significant and substantial provisions as
established in section 104(d)(l) is also to be applied to section 104(e).
See Legis. Hist. at 620-621.

829

the one hand, the Senate Report seems to support the Secretary's position
when, in discussing the significant and substantial provisions, it
states that it is "the Committee's intention that the unwarranted failure
citation is appropriately used for all violations, whether or not' they
create a hazard that poses a danger to miners as long as they are not of
a purely technical nature." Legis. Hist. at 619. On the other hand,
this passage is directly contrary to the significant and substantial
language in the Act. The Act requires that a "hazard" be present, yet
the Senate Report states that there need not be a "hazard." Furthermore,
other portions of the Senate Report refer to the significant and substantial provisions as the "gravity test", which connotes consideration
of both the seriousness of an injury and the likelihood of its occurrence. 10/
Statements on the Senate floor by Senators Harrison Williams (thenChairman of the Senate Committee on Human Resources) and Richard Schweiker
(author of section 104(e)) duri~g debate on the section 104(e) pattern
provisions are also contrary to the Secretary's position and to that
portion of the Senate Report quoted above. 11/ Thus, we did not find
the legislative history a reliable or helpful aid in discerning Congress'
intended interpretation of the significant and substantial provisions. 12/
Neither the interpretation argued by the Secretary nor the interpretation
we adopt here today is compelled or precluded by the legislative history;
that history simply is not dispositive.
10/ Cf., 30 CFR §100.3(e).
11/ Senator Williams stated that section 104(e) is aimed at patterns of
violations "which could significantly and substantially affect the
health and safety of miners." 123 Cong. Rec. S. 10204 (daily ed. June
20, 1977). Senator Schweiker stated that significant and substantial
violations are violations "of a serious nature~J• 123 Cong. Rec. S.
10279 (daiiy ed. June 21, 1977). He said that "no closure order [under
section 104(e)] is filed until after the owner is given notice that he
has established a pattern and then only if he has another violation of
a serious nature." Id. (emphasis added.)
11_/ The Senate Report also endorses the Board of Mine Operations Appeals
decision in Alabama By-Products Corporation, 7 IBMA 85. Because we find
the Senate Report to be contrary to the statutory language and other
legislative history, and to be internally inconsistent, we do not believe
that decision is controlling. In any event, we think it has been misread
and misapplied. In Alabama By-Products, the Board rejected its earlier
view that in order to support a significant and substantial finding
under the 1969 Coal Act, the hazard presented had to be so serious "as
to very closely approach a situation of 'imminent danger'." Rather, the
Board stated that "an inspector need not find a risk of serious bodily
harm let alone death" before a significant and substantial finding could
be made. At the other end of the spectrum, the Board stated that violations that are purely technical in nature and which pose no threat of
causing an injury or illness could not support a significant and substantial finding. We do not read the Board as having held that all such
violations must be cited as significant and substantial. The Board
stated that the question was one in each case for the exercise of reasonable judgment by the inspector dependent on the peculiar facts and circumstances of each case. The Board also stated that defining significant
and substantial as a "reasonable possibility of danger to the health and
safety of the miners" was "fairly close to the mark in our opinion."
Thus, the Board seems to have tried to define a category of violations
that could not be cited as significant and substantial, not defining a
category of violations that must be so cited.

830

For the foregoing reasons, the decision of the administrative law
judge is reversed and the case is remanded for further proceedings
consistent with this opinion.

Marian Peatr1.faan Nease, Commissioner

v

Commissioner Lawson,dissenting;

The majority's opinion herein would discount evidently successful
administration of the Federal Coal Mine Health and Safet~ Act~of 1969
(as amended in 1977) in determining when a violation may 'be found to be
"significant and substantial" under the 1977 Act.
The decision under review upholds clearly applicable precedent
since Alabama By-Products, 7 IBMA 85 (1976). The administrative law
judge's fin~ing i$ that a violation is of a significant and substantial
nature if it presents more than a remote or speculative possibility that
any injury or illness may occur, and only purely technical violations or
those with only a remote or speculative chance of any injury or illness
occurring may not be cited as significant and substantial.
The majority would~ however, overturn this decision to hold " •.. that
a violation is of such a nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard if,
based upon the particular facts surrounding that violation, there exists
a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." The mine inspector
would be required to determine the seriousness of the hazard contributed
to by the violation in terms of the potential injury or illness presented.
In addition, he would be obligated to consider the likelihood of the
injury or illness occurring.
The appellee's position is also found wanting by my colleagues since
this "would result in almost all violations being categorized as significant
and substantial".
The majority's concern is also expressed with the effect that the
interpretation argued for by the Secretary, that is, existing law, would
have on what are categorized by section 104(e) as "pattern 11 violations.

831

Conceding that the Act does not define the key terms "hazard" or
"significantly and substantially" the majority would nevertheless
"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." [Emphasis added].
They aver that their interpretation " .•. is also more consistent
with the Act's overall enforcement scheme, which generally provides for
the use of increasingly severe sanctions for increasingly serious violations or operator behavior". But most important, the' majority ignores
the legislative history by stating it to be " ..• contradictory, at times
directly at odds with the Act 1 S""language, and thus not helpful in
resolving the issue before us".
I must disagree, since the majority's opinion in this case would
mistakenly engraft upon the Act various adjectival conditions not a part
of the statute itself. The central statutory language now before us
provides that:
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
conditionscreated 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., •• [Section 104(d)(l);
emphasis added] •.J:/

l/See also Section 104(e)(l):

"If an operator has a pattern of violations

of mandatory health or safety standards in the coal or other mine which

are of such nature as could have significantly and substantially contributed
to the cause and effect of coal or other mine health or safety hazards, he
shall be given written notice that such pattern exists. If, upon any inspection
within 90 days after the issuance of such notice, an authorized representative
of the Secretary finds any violation of a mandatory health or safety standard
which could significantly and substantially contribute to the cause and effect
of a coal or other mine safety or health hazard, the authorized representative
shall issue an order requiring the operator to cause all persons in the area
affected by such violation, except those persons referred to in subsection (c),
to be withdrawn from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that such violation has
been abated." [Emphasis added].

832

Nowhere in the statute is there any qualification of the operative
language 11 • • • that ..• such violation is of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other
mine
or health hazard .••• 11
Nor do the words of the statute anywhere reflect any intent to
narrow or restrict such violation to one where, " .•• there exists a
"reasonable likelihood" that the hazard contributed to would result in
an injury or illness of a "reasonably serious" nature.
The majority's tampering will add to the statute w9rds of limi~ation
which will require every mine inspector to make judgments, not only as to
the "likelihood" of the effects of the hazard, and the "reasonable[ness]"
of that "likelihood", but will ~as well demand medical predictions be made
as to whether a hazard will result in an injury or illness of a "reasonably
serious" nature. Must the inspector henceforth determine; not only whether
the roof is safe or unsafe, but whether the unconscious miner who is the
victim of a roof fall has suffered 'merely' a concussion, or a fractured
skull? Would only the hazard in the latter case, under the majority's
rationale, be one which is
icant and substantial?
We will now have a "one toe, two toe' 1 formula, a distinction based
not upon mining but upon the extent of the injury and medically unforeseeable consequences. Are we, this Commission or its judges', or the inspectors
at the mine thereby better equipped to render the judgments which will
be required under this formulation? In an admittedly somewhat imprecise
area, does this highly qualified and subjective articulation represent
an improvement over existing practice? Neither.our predecessor, BMOA,
nor the Congress, has suggested such a change is feasible, desirable or
in accord with their respective understandings of the language or purpose
of the Act.
In summary, the standard proposed by the majority would in reality
measure the significance and substantiality of the violation after the
fact, and add to the Act numerous
subjective variables, among them
the magnitude of the potential injury, the (unspecified) circumstances
surrounding the violation, and the post hoc accuracy of the inspector's
medical judgment as to the effect[s] of
hazard.
The majority 1 s suggested standard would be even more impossible of
application in those cases in which mandatory health standards are
violated, as contrasted with those which regulate only safety.
In the Federal Coal Hine Safety Act Amendments of 1965 (amending
the 1952 Coal Act), where the term "significant and substantial" first
appeared, such referred only to violations "of such nature as could
significant
and substantially contribute to the cause or effect of a
mine explosion, mine fire, mine inundation, or man-trip or man-hoist
accident." [30 USCA 473(d)]. [Emphasis added]. In the 1969 Act (i.e.,
sect
104(c) of the 1969 Act, in all relevant respects identical to
section 104(d) in the 1977 Act), the Conference Committee substituted
the word 11 hazard" for "accident", thus since at least 1969 clearly
including health as well as safety within the purview of this section.

While one might well question the significance and substantiality of
a single exposure to coal dust, or radon daughters, or noise, for example,
the adverse, even lethal cumulative effects of these exposures is beyond
dispute.
The regulations which limit miners' exposure to radon daughters,
for example, express such limitation in terms of calendar year exposure.~/
A single exposure may consequently be either significant and substantial,
or not, under the majority's criteria. This is not only meaningless but
one which would require the forecasting ability of an orwologist, not a
mine inspector, nor I suggest this Commission. Nor is this an isolated
example. Exposures to noise and the permissible limits to which miners
may be exposed are time specified,1/ and the adverse health effects
thereof obviously based on cumulative exposure.
The breathing of coal dust, perhaps the greatest single health
hazard to which coal miners are exposed 4/ is also cumulatively deadly,
but presumably of little significance to-the miners' lungs if exposure
is limited to a day or a week.

2/See (e.g.) 30 CFR 57.5.38: "Mandatory. No person shall be permitted
to receive an exposure in excess of 4 WL.'1 in any calendar year."

30 CFR 57.5.39: "Mandatory. Except as provided. by standard 57.5-5,
persons shall not be exposed to air containing concentrations of radon
daughters exceeding 1. 0 WL in active workings. n

1/ 30 CFR 56.5-50:

" ••. Permissible Noise Exposures

Duration per day,
hours of exposure

Sound level dBA,
slow response

8........................................

90

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92

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0

0

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0"'

0

0

0

0

0.

0

0

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0.

9

0

0

0.

0

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0

0

¢

0.

0

0.

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1/2.....................................
1/4 or less.............................
!!_/See 30 CFR 75.400 to 75.403.1.

834

110
115,.•.. "

The majority's factual premises are also inaccurate. Currently, and
for at least the last five years, a violation is evaluated as "significant
and substantial" so long as it poses more than a remote or speculative
chance that an injury or illness wi~l result. The majority's apprehension
that continuing under this criteria "would result in almost all violations
being categorized as significant and substantial", is not borne out by
the record. To the contrary, as counsel for the American Mining Congress
here conceded at oral argument, only 62 percent of all coal mine violations
were characterized as significant and substantial. This hardly rises
to the level of "almost all violations."'i_/
Beyond the logical frailty of the majority's interpretation of the
statute is the violence done to the intent of Congress, unambiguously
expressed in the legislative hiStory of the 1977 Act.
The Senate repor.t accompanying the Act discusses those cases which
have interpreted "significant and substantial":
The Interior Board of Mine Operations Appeals has until
recently taken an unnecessarily and improperly strict view
of the"gravity test" and has required that the violation
be so serious as to very closely approach a situation of
"imminent danger", Eastern Associated Coal Corporation, J.i
3 IBMA 331 (1974).
The Committee notes with approval that the Board of Mine
Operations Appeals has reinterpreted the "significant and
substantial" _language in Alabama By-Products Corp.,
7 IBMA-85, and ruled that only notices for purely technical
violations could not be issued under Sec. 104(c)(l). The
Board there held that 11 an inspector need not find a risk
of serious bodily harm, let alone death" in order to issue
a notice under Section 104(c)(l),

5/While, at least for the first quarter of 1979 to which this operator
points, a much higher percentage of metal and non-metal citations were
categorized as "significant and substantial", this, if representative
data (it is not a part of the record below, but was secured by this
operator from MSHA apparently in response to a verbal request) reflects
only one calendar quarter 1 s data within a very limited (less than one
year) experience of the Secretary with metal and non-metal mines, as
contrasted with over ten years' experience with coal mine inspections.
[American Mining Congress Brief, Appendix B; Oral Argument, TR-45].

835

The Board's holding in Alabama By-Prociucts Corporation is
consistent with the Committee's intention that the unwarranted
failure citation is appropriately used for all violations,
whether or not they create a hazard which poses a danger to
miners as long as they are not of a purely technical nature.
The Committee assumes. however, that when "technical" violations do pose a health or safety danger to miners, and are
the result of an 11 unwarranted failure" the unwarranted failure
notice will be issued". [S. Rep. 95-181, 95th Cong. , 1st Sess.,
at 31 (1977), reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong., 2nd Sess., Legislative History of
the Federal Mine Safety and Health Act of 1977, at 619 (1978).
Reinforcing that Congressional intent is the Conference Report which
accompanied the Act as passed:
The conference substitute conforms to the Senate bill. While
a notice may be based on the existence of a pattern of violations of one standard or of a number of different standards it
is the intention of the conferees that the pattern can be based
only rm violations of standards that "significantly or substantially contribute to the cause and effect of a mine ?afeto/ and
health hazardn. After the notice of the existence of a pattern
although an order could be issued under this provision for a
violation which is not one which makes up the pattern, the
violation which results in the issuance of the order must be
one which could "significantly or substantially contribute to
the cause and effect of a miner safety and'health hazard". Thus,
just as the pattern may not be based merely on violations of
technical standards. the order under this section cannot be based
on violations of technical standards.
[Legis. Hist., supra, at
1326-1327]. [Emphasis added].
The Congress has thus clearly and expressly rejected the BJ\10A
Eastern Associated Coal Company case, 3 IBMA 331, 355 (1974), which held
that the violation must po~e-na- probable risk of serious bodily harm or
death", and was rejected by the BMOA itself in Alabama By-Products, (supra).
In discrediting the Eastern case, the BMOA in Alabama, (supra)
interpreted "significant and substantial" to preclude substantial and
significant citations under 104(d)(l) only when no risk of injury is
posed, and the violation poses a source of injury which has only a remote
or speculative chance of occurring.
Congress, therefore, in following the BMOA's lead and rejecting the
test posed by Eastern, charted no new path, but concurred in the view that
Eastern was wrong because of the BMOA's essential equation there of
"significant and substantial" with "imminent danger 11 • For this reason alone,
the majority's decision and its regressive return to the Eastern test should
be rejected. Their extended discourse on the Senate Committee's Report

B3b

and the Senate's claimed misreading of Alabama, (supra) is, with all due
respect, irrelevant. Even if the Committee misread Alabama, the Cornmittee 1 s
Report provides a clear indication as to Congress' own understanding of
the significant and substantial clause, as indeed was found to be the case
by the judge herein. [ALJ Decision at 6].
Beyond these obvious reasons for leaving well enough alone, it must
be remembered that when an operator has placed itself in the 104(d)
'chain' provided for by the statute,6/ it is as a result not only of
"significant and substantial" findings, but as a consequence also of an
unwarrantable failure determination. Although the requirement of
"unwarrantable failure" is not necessary in pattern ('section 104(e))'
violations, the Secretary has thus far promulgated no regulations implementing 104 (e), to explain how and -when a "significant and substantial" finding
will translate into a so-called "pattern" violation. The maxim "If it'§
not broke, don't fix it", could well have as a corollary: "If the case
is not before you, don't decide it."
This makes even more startling the majority's willingness to leap
in to correct the hypothetical spectre of "continual shutdown", the
consequence of a pattern of violations. For, as conceded by the counsel
for the Secretary in oral argument in this case:
"The Secretary hasn't issued a notice pattern yet. The
Secretary hasn't issued a withdrawal order based on a notice
of pattern yet. We haven't got a case that presents that
yet and I don't believe the Conunission should engage in this
unwarranted ~peculation that the National gypsum invites you
to day, that we will not be able to effectively administer the
Act if this definition of significant and substantial is
adopted." [Oral Argument, TR-36].
In short, not one 11 pattern 11 notice has yet been issued and the rules
to establish criteria for the existence of a pattern as required by
section 104(e)(4) have yet to be promulgated.

6/104(d)(l) further provides: " ..• If, during the same inspection
or any subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of the Secretary
finds another violation of any mandatory health or safety standard and
finds such violation to be also caused by an unwarrantable failure of
such operator to so comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area affected by such violation,
except those persons referred to in subsection (c) to be withdrawn from,
and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such violation has been abated".
[Emphasis added].

331-7

What this demonstrates about the enforcement of section 104(e) of
the Act may well raise one's eyebrows, but it can hardly be maintained,
given this record, that any operator has reason to fear a 104(e) based
closure of its mine. The adoption of all-encompassing rules to be applied
to cases not yet--perhaps never--to be before us is both judicially premature and the unwise rendering of a judgment in a vacuum, before any
experience or factual context exists within which to make such a decision.
We should not promulgate rules for deciding non-existent cases which
are not now and may never be before us.
Beyond the majority's encroachment on the statut~ a,nd the legislative
history, they would also appear to have erred semantically. "Significantly
and substantially" are adverbs, which beyond argument modify "contribute",
not "hazard", as was indeed necessarily conceded by counsel for the
operator on oral argument. [Oral Argument, TR-23, 49, 50]. To recast
the statute in terms of the significance or substantiality of the hazard,
and the predicted result thereof, is simply not in accord with either
the English language or the language of the Act.
The structure of the 1977 Act also reflects a considered and
progressive pattern of sanctions unrelated to the seriousness of the
injury, but rather focused on the operator's knowledge and frequency of
violation, the mine operators' efforts toward abatement, and the efficacy
of such efforts. In short, increasingly strong remedies for increasingly
serious violations. Under the statute:
I,;

(1)

Section 104(a) treats with the issuing of citations
which may be with or without significant and substantial findings, and the fixing of abatement times for
'simple' violations of the Act, or mandatory health
or safety standards promulgated thereunder.1_/

(2)

Section 104(b)) specifies the action to be taken if a
104(a) violation has not been abated within the
period of time originally fixed. or as subsequently
extended, and the action to be taken by the inspector
(issuance of a limited withdrawal order from the area
affected) in that circumstance.

(3)

Section 104(d) provides for the issuance of citations if
the 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 the violation
is caused by an "unwarrantable failure" of the operator to
comply with mandatory health and safety standards. Further,
if during the same or any subsequent inspection within ninety
days, the inspector discovers another unwarrantable failure
violation, whether or not that violation is significant and
substantial, a withdrawal order shall issue.

7/In fact, all the citations issued in the case under review were issued
under Section 104(a) with significant and substantial findings.

838

4)

Under 104(e), if an operator is a habitual violator and
has a "pattern" of (significant and substantial) violations,
it is given written notice that such pattern exists, and,
upon any inspection within 90 days after that notice issues,
the finding of an additional significant and substantial
violation will trigger a withdrawal order.

(5)

Under section 107(a)~/ the ultimate sanction of immediate
mine closure (either in whole or in part) i~ imposed if
the existing condition is one whose consequences are so
grave that safe operation of the mine cannot be had until
after the condition has been abated.

(6)

Finally, section 108(a)(2) authorizes the Secretary to
seek immediate injunctive relief if the pattern of
significant and substantial violations persists, or the
operator otherwise refuses to comply with any order or
decision issued under the Act.

The quarrel of the majority with the "technical/non-technical"
distinction also appears to be, upon examination, semantic. At least
since Alabama By-Products, (supra), it would appear that this .!s
merely the Secretary's shorthand--perhaps inartful--artictilation of
the judgment to be made when a citation with significant and substantial
findings is to be issued.9/ That is, when the violation poses no risk
of injury at all, or is a-bookkeeping violation, or poses a risk which
only has a remote or speculative chance of occurring, it is "technical",
and no significant and substantial citation wi1::b issue.
The word "technical"--evidently the basis for the majority's
unhappiness--has been defined as "a technicality", Webster's Unabridged.
This distinction appears as easily understood--indeed better so-than a
demarcation founded upon an inspector's or j
's or Commissioner's,
inexpert evaluation of (e.g.) the physiological effects of a trauma or
radiation upon the health of the victim. As a foundation for meaningful
~/Section

107(a) provides: "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."
9/The present formulation is framed negatively (i.e., under what circumstances
significant and substantial violation does not exist) (American Mining
Congress Brief, Exhibit "F"). The suggestion
this is somehow of a
lesser validity than a positively articulated standard--a distinction without
a difference--is merely another attack on Alabama and the language of the Act.

a

839

analysis, I can discern no improvement which will result from this alteration
of the existing procedure, and no benefit accruing to either the inspector,
the miner, or the mine operator. Unless the production of litigation is
our goal, I confess that I can ascertain no purpose to this redefinition.
To the extent that curtailing of the inspector's judgment may create
a "management problem" (in limiting his discretion not to issue significant
and substantial citations) (Oral Argument, TR-42), this would appear to
be ill-suited to correction by this Commission, certa~nly not in the
sweeping fashion advocated by the majority.
The record is replete with "agreement" that the inspector 1 s judgment
as to what violations are subst~~tial and significant should be large:
" .•• very wide area of discretion ••. " "reasonable judgment on the facts
and circumstances of the case." [Oral Argument, TR-14]; the inspector's"commonsense11 [Oral Argument, TR-24]; r~asonable and evenhanded" [Appellant's
Brief at 5].
11

To add to the inspector's burden the medical "likelihood" and
reasonableness 11 criteria enumerated in the majority's opinion makes
even more difficult meaningful inspectorial judgment, a judgment best
exercised at the mine where the violation, and the hazard, exis,ts.
11

Curiously, the majority claims to recognize the necessity for "the
inspector to exercise his own judgment in evaluating the hazard presented
by the violation in light of the surrounding circumstances • . • . We believe
that the inspector's independent judgment is an important element in making
significant and substantial findings, which shouid not be circumvented. 11
However, reverting to the discredited Eastern decision's criteria,
found unacceptable by both the BHOA and the Congress, necessarily has
the opposite effect, and is less, not more consistent with the statutory
scheme set forth above.
I have no quarrel with the inspector exercising the independence of
judgment claimed to be the intent of the majority. Indeed, I see no
practical alternative. Would limiting this judgment by forcing the
inspector to predict the seriousness of the injury--much less the illness-which might befall the hapless miner, be of meaningful assistance to
either the miner or the operator? Should the operator's responsibility
rise or fall depending upon the durability of his work force? Should
the protection of the miner 10/ be tied to the severity of the illness or
injury or the likelihood of death?
One must quarrel with the proposition that this Commission is better
able to make the majority mandated necessarily medical predictions than
the inspector; in truth neither we nor the inspector are, either by
training or experience, competent to so forecast.

10/Section 2(a) provides: "The first priority and concern of al).. in the
coal or other mining industry must be the health and safety of its most
precious resource--the miner;"

840

The majority's claim that large mines and mine operators will
be more subject to the threat of closure than small mines also sets up
a curious classification. No evidence appears in this record, or elsewhere
to my knowledge, in support of the proposition that large mine operators
are more prone to violate the Act than are smaller ones. Indeed, the
records of the MSHA Assessments Off ice for the calendar year 1980 reveal
that violations per inspection day are greatest for both coal and metal/nonmetal mines for the smallest operators, and second greatest in the average
number of violations.11/
In any event, no rationale. conunends itself in support of the idea
that large mines, if unsafe, should be given a waiver merely because of
size. To the contrary, it would appear as if the large mine operator witn
its presumably greater resources and sophistication should be better able
to assure the safety and health of the miners than the small mine ownei.
While the majority is correct in noting that "significant and
substantial" is not specifically defined in the Legislative History of
the 1969 Act--nor earlier--it has been clearly articulated in the
Legislative History of the 1977 Act, and expressly approved by the
Congress in Alabama, (supra).
We are bound by this Congressional expression; and the Senate
Report'sl2/ clear adherence to the rationale of Alabama, subsequently
and correctly adhered to by the judge in this case. To disregard the
Congressional will, the sole authoritative and proper source of the
judgment we must render, is in derogation of our duty under the Act.
The majority is ncit in this case merely caulking chinks in the statute,
but rather ignoring legislative direction as to the meaning of the words
of the Act. Whether or not the inspector or the judge has primary or
secondary responsibility for determining whether a violation is "significant and substantial", the controlling criteria is that significant and
substantial citations may not be issued only when no risk of injury is
posed, or one which has only a remote or speculative chance of occurring.
We have been given no authority to weigh injuries, or to determine the
possibly serious or fatal consequences of a violation.
The judgment to be made must therefore inevitably be unbounded by
facile formulas or quasi-medical constraints. Congress intended to protect
the miner from any and all injuries and illnesses resulting from mining,
not just from those of a "reasonably serious nature" as espoused by the
majority.
I therefore dissent.

A. E. Lawson, Commissioner

11/HSHA Office of Assessment Report,dated January 14, 1981.
12/The House Report is silent on "significant and substantial." Legislative
History of the 1977 Act, 376-377, 396-397.

841

Distribution
Cynthia L. Attwood, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Anthony J. Thompson, Esq.
Charles E. Sliter, Esq.
Hamel, Park, McCabe & Saunders
1776 F Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
American Mining Congress
1100 Ring Bldg.
1200 18th St., N.W.
Washington, D.C. 20036
Chief Administrative Law Judge
James A. Broderick
FMSHRC
1730 K Street, N.W.
Washington, p.c. 20006

842

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

April 10, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 79-16-M

v.
IDEAL BASIC INDUSTRIES,
CEMENT DIVISION
DECISION
This is a civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §801 et~· (Supp. III 1979).
At issue is whether the administrative law judge erred in vacating a
citation that alleged a violation of 30 CFR §56.9-2. That standard
provides:
Equipment defects affecting safety shall be corrected
before the equipment is used.
While inspecting the Castle Hayne Quarry and Mill on July 25, 1978, a
Mine Safety and Health Administration inspector cited Ideal Basic
Industries for violating 30 CFR §56.9-2. The citation (No. 103843)
alleged:
The hydraulic side coupling for the track mobile No. 1
was broken. Railroad cars could not be stopped due to
this in case of an emergency.
After an evidentiary hearing, the administrative law judge vacated the
citation. J:/ For the reasons that follow, we reverse.
The track mobile involved is a vehicle similar to a locomotive. It
is used to push or pull railroad freight cars loaded with bulk cement.
At the time of inspection, one end had a defective hydraulic coupling;
the "knuckle" was not functional. 2
The other end of the mobile had
a manual coupling which did work. Neither
disputes that the
hydraulic coupling was inoperable. The Secretary claimed that the track
mobile had been in use, even if the defective coupling had not been
used; the operator countered that the track mobile, if used at all, was
only used with the working manual coupling.

1/

The judge's decision is reported at 2 FMSHRC 1352 (June 9, 1980).
The term "knuckle" refers to a mechanism on the locomotive that
holds "onto the coupling on the railroad cars." Tr. 163.

Z/

81 ~~

81-4-7

The judge vacated the citation based on his finding that the
Secretary "failed to establish by a preponderance of the evidence that
the defective coupling in question was in fact used prior to the time it
was replaced by a new one." 2 FMSHRC at 1363. The Secretary contends
that the judge has construed the standard too narrowly, arguing that a
violation occurs if the equipment is used and the defective component
could be used. Ideal Basic argues that the question need not be reached
because, it contends, the record fails to even establish that the track
mobile was used. We first address the proper interpretation of the
standard, and then Ideal Basie's contention.
We hold that the judge's interpretation of the standard is too
narrow. As appears from his application of the standard to the facts in
this case, under the judge's interpretation a defective component does
not "affect safety 11 if it is not used, even if the equipment containing
the defective part is used.
The Secretary correctly points out, however, that the defective
coupling could have been used while the track mobile was in operation-nothing precluded such use. ]j Although the plant manager testified
that the employees had been instructed not to use the faulty coupling,
the plant administrator testified that the hydraulic coupling was
identical in appearance to the operable manual coupling. There was no
evidence presented that the defective coupling had been conspiciously
marked. Thus, the defective coupling could have been used inadvertently.
Accordingly, we hold that use of a piece of equipment containing a
defective component that could be used and which, if used, could affect
safety, constitutes a violation of 30 CFR §56.9-2. This interpretation
is more likely to prevent accidents, a primary goal of the Act. Under
the judge's interpretation, one
much closer to an accident occurrbefore correction is required.
Our interpretation of the standard is consistent with our decision
in Eastern Associated Coal, 1 FMSHRC 1473 (October 23, 1979). The
operator had been cited for an inoperable parking brake on a jitney. We
held that the violation was not abated (i.e., the violation still
existed) by placing a danger tag on the jitney, which remained operable
in a working area:

coupling were used, obvious dangerous hazards
would occur. Because the mobile was used to push railroad cars, using
the end with the broken coupler could likely lead to cars--not in fact
coupled to the mobile--freewheeling through the yard.
(The braking
system of the track mobile is used to brake the railroad cars that it is
pushing.)

We hold that
the jitney was not sufficient to withdraw
the jitney from service because the danger tag did not prevent
the use of the defective piece of equipment. The jitney was
still operable and the danger tag could have been ignored.
1 FMSHRC at 1474. The reasoning of Eastern Associated is applicable
here as well, where there was not even a danger tag placed on the
defective coupler.
We turn now to Ideal Basie's evidentiary argument that the track
mobile itself was not used. Although the judge did not specifically
find that the track mobile was used, we believe he did so impliedly. In
his summary of the evidence he refers to the inspector's testimony that,
while he did not see the mobile in operation, he was told by unidentified
employees that the mobile had been used while the coupling was defective.
He also cites Ideal Basie's testimony that this track mobile was the
company's only working track mobile at the time of the inspection (its
other track mobile was in the repair shop at the time), that employees
had been instructed not to use the faulty coupling, that at the time of
the citation the track mobile was parked at the pack house (which is a
shipping point where the railroad cars are loaded), and that cars were
loaded the day before the inspection. There is no testimony that the
track mobile was not used after the coupler became defective. In light
of this testimony and the Secretary's unrefuted evidence, though hearsay
and circumstantial, we conclude that the track mobile had been operated
while the coupler was broken and that the j
so found (even though he
found no evidence that the coupler itself had been used).
Even if, however, the evidence were insufficient to establish that
the track mobile was operated while the coupler was broken, we find that
the mobile was nonetheless "used" within the meaning of the standard.
If equipment with defects affecting safety is located in a normal work
area, fully capable of
operated, that constitutes "use". Here, at
the time of the inspection, the mobile was
in a usual location,
next to the area where railroad cars--which the mobile is used to
move--are loaded. It was neither rendered
nor in the
shop. To preclude citation because of "non-use" when equipment in such
condition is parked in a primary working area could allow operators
to use unsafe equipment yet escape citation merely by shutting
it dm·m when an
arrives.
In summary, we believe the evidence establishes "use" of the track
mobile. Accordingly, the judge's decision on this citation is reversed
and remanded for assessment of a civil enalty.

A. E. La

\___\ \~ft\tfil{
Marian Pearlman Nease, Commissioner

845

Distribution
Cynthia Attwood, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Karl W. McGhee, Esq.
Stevens, McGhee, Morgan & Lennon
P.O. Drawer 59
Wilmington, North Carolina 28401
Administrative Law Judge George Koutras
FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

846

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

April 20, 1981

SECRETARY OF LABOR
MINE SAFETY Ai.'fD HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 81-17-D

v.
MULLIN CREEK COAL CO., INC.
ORDER

A document entitled "Petition for Full Commission Review of Bench
Decision" was filed with the Commission by the operator on April 16,
1981. As of this date, however, the judge has not reduced his•bench
decision to writing. Accordingly, the petition is dismissed as premature,
subject to refiling after the issuance of a written opinion by the judge.
(29 USC 823(d)(l), Commission Rule 65(a), Council of Southern Mountains,
v. Martin County Coal Corp., 2 FMSHRC 3216 (November 12, 1980)).

81-4-9

847

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)

April 29, 1981

v.

Docket No. VINC 76X99-P

NACCO MINING COMPANY

IBMA No. 77-15

DECISION
This penalty proceeding arises under section 109 of the Federal
Coal Mine Health and Safety Act of 1969, 30 U.S.C. §801 et~· (1976)
(amended 1977)(the 1969 Coal Act).}/ The issues are whether the
administrative law judge erred in determining that Nacco Mining Company
violated 30 CFR §75.200 and in assessing a civil penalty of $500 for
that violation.
Section 75.200, which is drawn from section 302(a) of the 1969
Coal Act, provides in pertinent part: "No person shall proceed beyond
the last permanent support unless adequate temporary support is provided
or unless such temporary support is not required under the approved roof
control plan ••.. 11 The record discloses that a company section foreman,
while supervising two miners cutting a roof belt trench, proceeded alone
past the last row of permanent supports under loose, unsupported roof,
where a large rock fell on him causing the injuries from which he later
died. 30 CFR §75.200-13(a)(2) sets forth an exception to section
75.200 permitting "persons engaged in installing temporary support ...
to proceed beyond the last permanent support [before] such temporary
supports are installed." Nacco 1 s approved roof control plan included an
identical exception.
The judge upheld the notice of violation of section 75.200, finding
that the foreman went beyond permanent supports into an area where there
were no temporary supports and that he was not installing temporary
supports or inspecting the roof prior to such installation while in this
area. In assessing a civil penalty of $500, the judge determined inter
that the gravity of the violation was very serious and that Nacco 1 s
40 violations of section 75.200 within 2 years constituted a significant
history of prior violations. The judge also concluded that Nacco was
Section 109
provided in part:
The operator of a coal mine in which a violation occurs of a
mandatory health or safety standard or who violates any other provision
of this Act ... shall be assessed a civil penalty by the Secretary .•..
In determining the amount of the penalty, the Secretary shall consider
the operator's history of previous violations, the appropriateness of
such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability
to continue in business, the gravity of the violation, and the demonstrated good faith of the operator charged in attempting to achieve
rapid compliance after notification of a violation.

81-4-13

848

non-negligent.
to the judge's

Cross-appeals were filed by Nacco and the Secretary as
of liab
and non-negligence respectively.

We affirm the j
's liability findings. A section foreman's act
of violation is attributable to the operator under the agency concepts
embodied in the 1969 Coal Act which imposes liability without regard to
fault. Ace Drilling Coal Co. Inc., 2 FMSHRC 790 (1980), aff'd mem. (3d
Cir., No. 80-1750, January 23, 1981); Peabody Coal Co., 1 FMSHRC
1495 (1979);
, 1 FMSHRC 1306, 1307 (1979).
See also Pocahontas Coal Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979),
aff'g 8 IBMA 136 (1977).
In this case, substantial evidence amply supports the judge's
finding that the foreman violated section 75.200. One of the miners
whom the foreman was supervising testified without contradiction that
the foreman had traveled under unsupported roof 10 to 12 feet past the
last permanent supports and was neither installing temporary support nor
inspecting the roof prior to such installation. Tr. 36-37, 40-42, 4647. This testimony was fully corroborated by MESA's accident investigation report (Exh. P-4). Under Nacco's roof control plan and mining
practices, the proper distance between the last permanent supports and
the next temporary supports was five
Tr. 41-42, 46. There was no
need or justification for the foreman's proceeding so far past the fivefoot limit if, in fact, he was engaged in installing temporary support.
We therefore
ect Nacco's argument that the foreman's conduct was
permissible under the temporary support-installation exception of section
75.200-13(a)(2) and the roof control plan.'!::../ Given these facts and
under the settled authority set forth above, the j
did not err in
finding Nacco liable for its foreman's violation of section 75.200.
Nacco argues that the eyewitness' testimony on how far the foreman
had proceeded past permanent support was unclear; however, the judge
elicited a final clarification (Tr. 46-47) which we conclude removes any
doubt engendered by uncertainty in the witness' initial testimony.
Moreover, Nacco 1 s claim that "there [is no] reliable evidence to show
exactly where [the foreman] was when the rock fell" (Br. 11 (emphasis in
is undercut by its own contemporaneous accident report which
also placed the scene of the accident 12 feet past the permanent support.
R. Exh. 1, accident sketch map following p. 4.
]_/
Nacco's reliance on North American Coal Corp., 3 IBMA 93 (1974),
and
, 4 IBMA 184 (1975), is misplaced. In
North American, the Board stated in footnoted dicta that an operator
escape derivative liability if apparently violative conduct
stemmed from a miner 1 s negligent failure to comply with the operator's
safety requirements. 3 IB;'1A at 108-109 n. 10. To the extent that these
dicta suggest an exception to the liability without fault structure of
the 1969 Coal Act, they are out of line with, and do not survive, the
well established precedent cited above. The Board itself substantially
ected the North American footnote in Webster County Coal Corp., 7
IBMA 264, 266-268 (1977), issued after the parties filed their briefs on
appeal herein. We note that this case does not require us to express
a view on North American's precise
interpreting the duty imposed
on operators by 30 CFR §75.1720. See
1
FMSHRC at 1307 & n. 3; Kaiser Steel Corp.,
& n.6 (1979).
Eastern Associated Coal Corp. dealt only with a narrow question of
whether the presence of a person under unsupported roof constituted a
single or double violation of section 75.200 on the facts of the case,
and did not address the larger questions of liability and what duty of
care section 75.200 imposes on operators. 7 IBMA at 192-195.

849

As to the judge's penalty findings, his determination that Nacco
was not negligent raises two issues: the appropriateness in general of
considering a foreman's negligence in assessing a penalty against the
operator, and whether the judge properly declined to do so in this case.
Concerning the first question, the judge held that it is appropriate to
"hold the operator accountable for the negligence of one of its supervisors in failing to perform the regular duties required of him by the
position in which the operator has placed him, especially where the
failure to perform could affect miners who are working under him by
virtue of the supervisory position in which the operator has placed
him." J .i). 5-6. Since operators typically act in the mines only through
such supervisory agents, we agree that consideration of a foreman's
actions is proper in evaluation of negligence for penalty assessment
purposes. In Ace Drilling, supra, we also affirmed a judge's 1969 Coal
Act penalty assessment which included consideration of a foreman's
negligence. 2 FMSHRC at 791.
Regarding the specific negligence issue, the judge refused to
consider the foreman's "misconduct" because he found that Nacco was not
"remiss" in selecting and adequately tr~ining the foreman, who "had
always exercised good judgment in discharging his responsibilities";
"the testimony [made] clear that the operator could not have been
expected to have anyone else from management on the scene, and that
prior to the cut being taken there was no way to tell that [the] roof
was bad"; management's overall safety program was adequate; and notwithstanding all the foregoing factors, the foreman acted aberrantly,
engaging in "wholly unforseeable misconduct, resulting in his own death
but not in harm or a risk of a harm to anyone else." J.D. 5. !!._/ The
Secretary does not dispute these factual conclusions. In such circumstances, the judge found that penalizing the company for the foreman's
misconduct would not fairly or sensibly promote the 1969 Coal Act's
safety purposes. On the unusual and undisputed facts present here, we
agree. Where as here, an operator has taken reasonable steps to avoid a
class of accident and the erring supervisor unforseeably
exposes only himself to risk, it makes little enforcement sense to
penalize the operator for "negligence." Such an approach might well
discourage pursuit of a high standard of care because regardless of what
the operator did to insure safety, a negligence finding would automatically
result" We therefore approve the judge's finding of no negligence. 5

We note that before proceeding past the permanent support, the
foreman warned the two miners under his supervision not to follow him
and they remained behind the permanent support. Tr. 16, 37. The foreman's rescue was effected safely.
5/
In reaching this result, we do not rely on the cases arising under
the Occupational Health and Safety Act of 1970, 29 U.S.C. §651 et~·
(the OSHAct), cited by the judge. The OSHAct has not been interpreted to be a liability without fault statute, and decisions dealing
with liability thereunder are not useful for analysis under the 1969
Coal Act.

850

We emphasize, however, that even an agent's unexpected, unpredictable
misconduct may result in a negligence finding where his lack of care
exposed others to risk or harm and may not absolve an operator who was
otherwise blameworthy in hire, training, general safety procedures, or
the accident or dangerous condition in question. !i/
We also agree with the judge that Nacco's history of violations of
section 75.200 is significant and note that Nacco did not object to the
authenticity of MESA's violation printout. Nacco does not contest the
judge's other penalty criteria findings. In sum, we approve the judge's
penalty of $500.
Accordingly, the judge's decision ~s affirmed.

§_/
As Prosser has pertinently observed in explaining the standard of
care imposed by the common law of negligence:
[T}he standard [of care] imposed must be an external one,
based upon what society demands of the individual, rather than upon
his own notions of what is proper. An honest blunder, or a mistaken
belief that no damage will result, may absolve him from moral
blame, but the harm to others is still as great, and the actor's
individual standards must give way to those of the public. In
other words, society may require of him not to be a fool. [Prosser,
Handbook of the Law of Torts 146 (4th ed. 1971).]

851

Distribution
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
Administrative Law Judge Paul Merlin
FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

852

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

April 29, 1981
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. SE 80-124-M

BROWN BROTHERS SAND COMPANY
ORDER
A document seeking review of a bench decision was filed with the
Commission by the operator on April 24, 1981. As of this date, however,
the judge has not reduced his bench decision to writing. Accordingly,
the petition is dismissed as premature, subject to refiling after the
issuance of a written opinion by the judge. (29 USC 823(d)(l),
Commission Rule 65(a), Council of Southern Mountains, Inc. v. Martin
County Coal Corp., 2 FMSHRC 3216 (November 12, 1980)).

~----~~

853

81-4-14

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

April 30, 1981
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 80-223-M

v.

J. P. BURROUGHS AND SON, INC.
DECISION
This case involves the interpretation of section 105(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801
~·
(Supp. III 1979). The provision at issue concerns notification to the
Secretary of Labor of an op,erator' s intention to contest a citation or a
proposed assessment of penalty. In an order issued June 27, 1980, the
administrative law judge dismissed as untimely a notice of contest in
which the operator, J. P. Burroughs and Son, Inc. challenged penalty
assessments for four section 104(a) citations. The judge adopted the
Secretary's proposed assessments as the final order of the Commission.
Burroughs filed a petition for discretionary review, which we granted.
For the reasons that follow, we reverse.
On January 14, 1980, Burroughs received from the Mine Safety and
Health Administration (MSHA) a notice of proposed assessment for alleged
violations cited under section 104(a). The operator mailed its notice
of contest to MSHA on February 13, 1980, the 30th day after receipt of
the proposed assessment. MSHA received that notice of contest two days
later. On April 17, 1980, the Secretary initiated a civil penalty
proceeding against the operator. At the same time, he filed a motion to
dismiss the operator 1 s notice of contest. He argued that the notice was
untimely because MSHA had not rec~ived it within 30 days of Burroughs'
receipt of the notification of proposed penalty as, the Secretary contended, is required by section lOS(a), The judge agreed with the
Secretary and granted the motion to dismiss.
The question before us is one of statutory interpretation.
105(a) provides:

Section

••. If, within 30 days from the receipt of the notification [or
proposed assessment of penalty] issued by the Secretary, the operator fails to
that he intends to contest the
citation or the proposed assessment of penalty, ••• the citation
and the proposed assessment of penalty shall be deemed a final
order of the Commission and not subject to review by any court or
agency .•.• [Emphasis added.]

854

81-4-16

The issue is whether MSHA must receive the operator's notice of contest
within 30 days, as held by the judge, or whether the operator satisfies
the requirement of notifying the Secretary if it mails its notice of
contest within 30 days.
The Act does not define the key word "notify", nor does the legislative history provide direct guidance. The language of section 105(a)
as a whole is instructive, however. The Secretary argues that "notice"
does not occur until it is received. But, in speaking of the document
that triggers the 30-day contest period, the section refers to "receipt
[by the operator] of the notification" of proposed assessment of penalty.
If, as the Secretary contends, notice equals receipt, there would have
been no need whatsoever for Congress to have mentioned "receipt" in
speaking of "receipt of the notification" of proposed assessment.
Notification to the operator would not occur until it was received. The
word "receipt" would be superfluous. We read Congress as saying that
notice and receipt of notice are two separate things in this context.
No reason is apparent as to why the two notice requirements (first to
the operator, second to the Secretary) in section 105(a) should not be
interpreted in the same way. Thus, the overall language of the section
supports the operator's position that notice occurs before receipt
(i.e., upon mailing).
Practical and policy considerations also support the conclusion
that a notice of contest is effective upon mailing. Fairness to the
operator requires that it should not be penalized for vagaries in the
U.S. mails. In order to try to ensure timely arrival of its notice of
contest, the operator would be constrained to mail that document well
before the 30th day. This would effectively deprive it of a full 30
days in which to contest a penalty. At the extreme, this arguably could
even deprive the operator of any adjudication should slow or unpredictable mail service cause late receipt of a notice of contest, even though
the operator mailed that notice well in advance of the 30th day.
In any case, the Secretary's position may encourage frivolous
contests. Congress wanted the operator to have some reasonable period
to determine whether it seriously wished to contest the Secretary.
Lacking sufficient time to really consider whether to contest or not, an
operator may mail a notice of contest automatically, even though it may
not necessarily have contested if given adequate time to reflect and
decide. A procedure th~t encourages unnecessary penalty contests is
likely to slow the overall penalty assessment and collection process,
which would be counterproductive to Congress' stated goal.
The Secretary contends nonetheless that a major concern of Congress
was expediting enforcement proceedings, including penalty assessments.
He argues that receipt by him of a notice of contest within the 30-day
period speeds the penalty assessment and collection process. ±_/ If
notification is effective upon mailing, however, enforcement will be

1/

The Senate Report states: "Penalty matters should be finally
determined- as quickly as possible." S. Rep. No. 95-181, 34, 95th Cong.,
1st. Sess. (1977); reprinted in Legislative History of the Federal Mine
Safety and Health Act of 1977, 95th Cong., 2d Sess. at 622 (1978).

855

slowed at most for the period of time that a notice of contest is en
route to the Secretary; that is, the operator could mail its notice
of contest on the 30th day and the delay envisioned by the Secretary
in final assessment of a penalty normally would be a few days at most,
the time it takes the mailed contest to be delivered. Certainly, the
brief delay for the time in transit would do no appreciable damage to
Congress' desire to achieve reasonable promptness in penalty assessment
and collection.
Accordingly, we hold that a notice of contest is effective if
mailed within 30 days after the operator receives a notice of proposed
assessment of penalty. The decision of the judge is reversed and
remanded for further proceedings consistent with this opinion.

85b

Distribution
Robert J. Krupka, Esq.
Cook, Nash & Deibel
1201 Second National Bank Building
Saginaw, Michigan 48607
Michael McCord, Esq.
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Chief Administrative Law Judge
James A. Broderick
FMSHRC
1730 K Street, N.W.
Washington, D.C. 20006

857

Administrative Law Judge Decisions

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

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

)
)
)
)
)
)
)
)
)

APR

1 19Bf

CIVIL PENALTY PROCEEDiNGS
DOCKET NOS. WEST 79-128-M
WEST 79-130-M
WEST 79-137-M
MINE: Weed Concentrator

DECISION AFTER REMAND
On February 20, 1981, the Federal Mine Safety and Health Review Commission
remanded the above cases for additional findings of fact, conclusions of law,
and the reasons therefor.
My prior ruling was that the evidence in these three cases is so equally
balanced that it is impossible to make actual findings of fact. In response
to the Commission's order of remand, I have set forth below all the relevant
evidence presented at the trial. After a careful review of the record, I
again conclude that these cases are in equipoise. The Secretary failed to
present the required preponderance of evidence. The Secretary did not sustain
his burden of proof. The law, therefore, dictates that the citations be
vacated.
WEST 79-128-M
In this case, involving Citation 341994, the Secretary alleges respondent
violated 30 C.F.R. 55.16-9. The cited standard provides as follows:
55.16-9 Mandatory.

Men shall stay clear of suspended loads.

Secretary's evidence:
1.

MSHA inspection was made at respondent's Weed Concentrator.
The inspection party consisted of MSHA inspector Ketron and MSHA
trainee inspector Shanholtz for petitioner; company representatives
were safety engineer Merritt, and general foreman McHugh. In
addition there were two union representatives [unidentified].
Ketron observed a large metal supply cabinet being relocated on the
ground level (Tr. 7-11, 18, 204).

2.

The cabinet was five feet wide, four feet long, and six feet high;
it was being moved by an overhead crane (Tr. 11, 12).

3.

It was approximately six feet from the bottom of the supply
cabinet to the ground level (Tr. 12).

4.

As the cabinet descended and began moving laterally it jerked or
moved abruptly. At this point an employee was underneath the
cabinet steadying it and guiding it with both palms (Tr. 12-13).

An

859

5. The heavy cabinet, 300 to 400 pounds, neither ascended nor
descended as it moved laterall1 approximately 20 feet. There
was no tag line on the cabinet (Tr. 13, 14).
6. Merritt said the crusher operator was with the group on the
floor. An individual (not identified) said this is the way we do
it all the time. Merritt moved quickly to get the man out of the
position he was in (Tr. 17-19).
7. MSHA Inspector Shanholtz was also on the third floor. He
stated that the cabinet had to be lifted 6 to 7 feet to clear a
cone crusher. Ketron testified the cabinet was lifted 8 to 10 feet
to pass the cone. After Shanholtz observed the cabinet move
laterally over the top of a cone crusher he saw an employee walking
along the side of the cabinet with both hands underneath it. The
palms of both hands were at about shoulder level (Tr. 60,
193-194).
8. After Ketron and Shanholtz got down [to ground level] a worker
explained this happened because the crane was overtravelling (Tr.
194-195).
Respondent's evidence:
9. Witness Merritt, Anaconda's safety engineer, was with MSHA
witness Ketron at the time of the incident. Merritt accompanied
the inspectors throughout the inspection which took place between
November 28, 1978 and January 11, 1979 (Tr. 103, 105, 106).

10. Ketron and Merritt were two feet apart and they were looking at
the same metal cabinet on the first floor of the crusher. Merritt
testified that the cabinet was 8 to 10 inches above the floor
(Tr. 107-108, 160-161) when the inspector said the employees didn't
have a tag line on the metal box (Tr. 107-108, 160-161).
11. No employee or any part of his body was underneath the load.
During the entire time span Merritt never saw a worker with his
palms up on the bottom of the cabinet (Tr. 108, 148). Merritt 1 s
eyes were on the cabinet during the entire time except when he went
downstairs (Tr. 108, 148).
12. An employee was holding the cabinet at arm 1 s length to steady
it as it was moved laterally to a position 10 feet from the
stairway. In Merritt's opinion the employee was clear of the load
and not in a position of danger (Tr. 108 1 110).

1/ The inspector did not know but he believed the tag line regulation, 30
~.F.R. 55.16-8 was advisory and not mandatory at the time of the

inspection.

The tag line standard provides as follows:

55.16-8 Taglines should be attached to suspended materials
that' require steadying or guidance.

860

13. Merritt ran down the stairs because Ketron told him the
suspended load. lacked a tag line and there was a man unde_r the load.
At the trial Merritt denied that there was a miner under the load (Tr.
107).

14. As the cabinet moved laterally the employee was walking along
with his palms alongside the cabinet (Tr. 109).
15. At no time did Merritt observe the cabinet any higher than 6 to
8 inches from the floor.
The cabinet had to be suspended so a forklift could pick it up. Nothing in the movement of the cabinet required that it be raised higher than 6 to 8 inches (Tr. 109, 110).
16. When Merritt was on the third level he assumed he would receive
a tag line citation. However, he didn 1 t know the nature of the
citation until the end of the day (Tr. 111).

17. Merritt testified the tag line standard was advisory and not
mandatory at the time of the inspection (Tr. 111).
Anaconda 1 s witness McHugh. general foreman at the Weed Concentrator, was on the third level with Ketron, Shanholtz, and
Merritt. He was in a position to observe the cabinet (Tr. 107).
18.

19.

According to McHugh the cabinet was lifted 10 to 12 inches
(Tr. 187).

20. McHugh testified that the employee guided the cabinet with his
arms outstretched and no part of his body was under it (Tr. 187-188).
DISCUSSION
The standard at issue simply states that 11 men shall stay clear of
suspended loads . 11 The term 11 stay clear of" should be construed in a way
that promotes safety. Old Ben Coal Company VINC 74-11, IBMA 75-52, Volume
1 No. 9, FMSHRC Decisions, 1954 (Dec. 1979).
In view of the ordinary meaning of the words I construe the term
"stay clear of" to mean that employees shall remain a sufficient distance
from a suspended load to protect themselves from injury.
What constitutes a safe distance might be best approached by
determining the converse, or, an unsafe distance
Initially, any employee
under the load would not be clear of it and would be in an unsafe
position. In addition, the unsafe area should be extended to include that
area which the load would strike in falling, or after impact, in toppling
over, and that area encompassed by the possible spilling of any contends.
The position of the miner in relation to the suspended load is the
pivotal factor which determines whether the standard has been violated

861

As

to this element, the parties presented contradictory evidencQ
Other
factors to be considered in determining a violation are the shape, height
and weight of the suspended load, whether there is the possibility of a
spillage of contents from the object being moveq, and the bal~nce of the
load while it is suspended. There was no evidence that the cabinet while
suspended was unbalanced. It was rectangular in shape and weighed 300-400
pounds. The cabinet did not have any objects in it that could spill and
neither its shape nor its size presented an additional risk if it would
fall from the hoist at any height. The distance it was held above the
floor is determinative of the ~anger involved if it were to fall
Each
party testified to irreconcilable distances.
Merritt's actions in running down the stairs might well indicate an
inference that the worker was under the suspended load and in danger.
However, Merritt's explanation is logical and reasonable. He says he ran
down the stairs because Ketron said the suspended load didn't have a
tagline; further, Ketron added there was a man under the load. Merritt
said there wasn't a man under the load. If the man was under the load as
Ketron allegedly expressed, that allegation did not work its way into the
citation he issued to respondent. The citation states: "An employee was
observed guiding by hand, a met al supply cabinet which was suspended from
the overhead crane in the secondary crusher. 11
Inspector Shanholtz talked to the worker on the floor C• 8). The
statement from the worker that this happened all the time because the crane
was over travelling does not relate to the citation.
Inspectors Ketron and Shanholtz further testified that they saw the
cabinet move over the top of a cone crusher<• 7). This is not
determinative of whether a violation occurred since the action of the
employee took place after the cabinet was raised over the cone crusher.
This evidence raises a credibility conflict since Merritt indicated that
nothing in the movement or the cabinet required that it be raised higher
than 6 to 8 inches(~ 15).
Respondent's evidence, considered by itself, places the bottom of the
load from 8 to 12 inches above the floor. Merritt testified the cabinet
was 8 to 10 inches above the floor<• 10). He also indicated he never saw
it higher than 6 to 8 inches C• 15). I do not consider that this conflict
destroys the credibility of Merritt's testimony since the evidence
presented both by the Secretary and respondent was only an estimate of the
distances. Those estimates were made on the third level above the ground
floor where the cabinet was being moved.
Respondent 1 s evidence further places the employee standing beside the
cabinet with his palms alongside of it and. his arms outstretched C• 12,
14, 20). This directly conflicts with the testimony of the MSHA inspectors
who stated that the miner was underneath the load ( • 4, 7).
Respondent's evidence fails to establish a violation of 30 C.F.R.
55.16-9. The worker was an arm's length from the load and not under it.
There was no danger of injury, hence, the worker was clear of the load.
§

862

As to the interest of Merritt, it is my view that he has no more of an
"interest" than do the MSHA safety inspectors. All witnesses 'are
interested in seeing their views sustained. If I should rule that
respondent's witnesses have an interest that destroys their credibility,
such a ruling would be tantamount to ruling in 'favor of MSHA in all cases.
The financial interest of Anaconda in the outcome of this case does not
taint its evidence. No doubt, if Anaconda loses, it will pay the total
proposed penalties of $829.00. Considerably more than that has been spent
on these cases. If the mere payment of a fine causes Anaconda's witnesses
to be affected by its financial exposure, then MSHA's witnesses would
likewise be affected since penalties accrue to the Treasury of the United
States, 30 U.S.C. 820(j).
Since the Secretary has the burden of proof, 3 he should be prepared
to offer additional evidence when the facts are as evenly balanced as in
this case. Additional evidence that might have been offered is the
testimony from the two union representatives who accompanied the inspection
party. An invaluable witness would have been the worker whom inspector
Shanholtz talked to on the floor, or the worker who was guiding the
cabinet.
All four witnesses were in the same relative position on the third
level above the ground floor. There is nothing in the record that can
resolve the conflict as outlined above. Having observed the witnesses and
their demeanor I could not determine any reason to believe one over the
other. The MSHA witnesses are not entitled to greater credibility because
they are government inspectors. Conversely, the respondent's witnesses are
not entitled to greater credibility because they are Anaconda's personnel.
The record fails to establish any interest or bias of any witness; hence
they are equal in interest. Accordingly, I find that the evidence of each
party is equally credible. The Secretary has failed to sustain his burden
of proof.
For the foregoing reasons I conclude that Citation 341994 and all
proposed penalties theretor should be vacated.
WEST 79-130-M

§

In this case Citation 342176 alleges a violation of 30 C.F.R.
55.16-9, cited s
a.

3/ 5 U.S.C.
Construction

§

556(d); Brennan v. OSHRC, 511 F.2d 1139 9th Cir. 1975, Olin
v. OSHRC, 575 F.2d 464 (2d Cir. 1975).

Secretary's evidence:
1. While in the Anaconda Weed Concentrator MSHA inspect:or Ketron
was accompanied by MSHA inspector Shanholtz and company representabives Merritt and McHugh (Tr. 21).

2. Ketron observed that a cart containing oxygen and acetylene
bottles was being transported from the second floor to the first
floor (Tr. 22).

3. While standing at the edge of the catwalk, inspector Ketron
obseived the crane operaior move the crane to the load, pick it up,
and move it laterally. He watched the load descend to the ground
floor (Tr. 22).
4. As the cart descended from the second to the first floor two
employees were directly underneath it (Tr. 23).

5.

Neither employee was looking up as the load descended (Tr. 23).

6.
As the load descended the two employees simultaneously reached
up. Each wot"ker grabbed one wheel and turned the load as it
descended (Tr. 24).

7.

Lateral movement stopped as the load descended (Tr. 24, 25).

8. The attached tag line was not touched before the cart wao set on
the ground (Tr. 25).

9. The correct method would be for the two employees to remain
several feet back until the load was a few inches above the fl at
surface of the ground level (Tr. 26).
10. The balance of the cart was quite good ana it was not leaning
one way or the other (Tr. 26).

11. The hazard here was that two employees put themse 1ves in a
position of danger in the event of an electrical or mechanical
failure of the hoist (Tr. 27).
12.
Inspector Ketron notified Merritt at the time that the cart
movement was a violation. The citation was written at the end of the
day (Tr. 62).

13. Merritt stated the employee should not have been in that position
(Tr. 27).

14. HSHA inspector Shanholtz testified that the two workers were
directly underneath the cart as it was being lowered (Tr. 196).

15. Inspector Shanholtz indicated the employees initially used the
tag line to steady the load off of the second floor (Tr. 196).

864

Respondent's evidence:

16. Anaconda's witness .Merritt was with the inspectiorr party
consisting of Inspectors Ketron and Shanholtz and compa'riy
representative McHugh (Tr. 114).
17. Merritt recalled that there weren't any employees on the first
floor. Further Ketron stated to Merritt that there weren't any
employees on the floor (Tr. 114).

18.

Merritt testified that when he first observed the suspended load
two employees on the second floor were near the cart. They then
followed the load down to the first floor after the cart was on the
floor (Tr. 116).

19. One employee on the second floor had the tagline and he walked
over to the handrail and as the load descended to the floor he kept
feeding off the tagline (Tr. 114, 115).
When the load got down to the basement floor he dropped the rope
(Tr. 114).

20.

21. The employee who was operating the tagline was clear of the load
while the cart was being lowered (Tr. 115).
22, The second employee who was involved in the incident was giving
hand signals to the crane operator (Tr. 115).

23.
(Tr

The employee gave the hand signals from the second floor
115).

There wasn't any employee under the load as it was being lowered
(Tr . 115 , 116) .

24.

DISCUSSION
The determinative fact here is whether one or more employees were
under the descending load. MSHA' s evidence and Anaconda 1 s evidence is
directly conflicting and diametrically opposed.
The only hazard alleged was that two employees were standing under the
suspended cart. Ketron stated that the balance of the cart was "quite
good" (~J 10). There was no evidence that there was a danger that the tanks
could fall from the cart. Respondent refuted the existence of this hazard
by presenting evidence that miners were never under the load but were on
the second level until the cart was resting on the ground level (' 17 24)'

Nothing in this record permits a determination to be made for or
against either party. TI1e witnesses were in the same location at the time
of the incident. I made the same observations as to their demeanor and
credibility as expressed in the previous case. The mere fact that two
witnesses testified for the Secretary as against one for Anaconda does not
give me cause to rule that the Secretary has carried his burden of proof.

865

There was testimony that Inspector Ketron notified Safety Engineer
Merritt at the time that the cart movement was a violation. Merritt denies
that Ketron notified him of a violation before that evening (Tr. 116-117).
Two items of uncontroverted evidence should be reviewed. The
Secretary's evidence establishes that Merritt stated that the employee
should not be under the load C• 13). Also uncdntroverted is respondent's
evidence that inspector Ketron stated there weren't any employees on the
floor (, 17). Each of these statements is a damaging admission attributed
to each of the parties. However, they leave the decision-maker in the same
quandary, namely, the evidence remains evenly balanced.
The Secretary has the burden of proving his case. He should, therefore,
in circumstances such as this be prepared to offer additional evidence to
corroborate the testimony of his inspectors. In this case an invaluable
witness would have been one or both of the workers whom the Secretary
asserts were under the descending load. Even their names gleaned from
inspector's notes, or otherwise, would help to resolve the conflict in the
evidence.
For the above stated reasons I conclude that Citation 342176 and all
penalties therefor should be vacated.
WEST 79-137-M
In this case Citation 342194 alleges a violation of 30 C.F R. § 55.16-9,
cited supra.
Secretary's evidence:
1. During the inspection of Anaconda's Weed Concentrator witness
Ketron, in the presence of Shanholtz and Merritt, observed an employee
underneath a suspended load (Tr. 44, 45). Ketron also observed another
miner holding a tag line which was attached to the load (Tr. 45).
2. The object being moved was a guard 4 for the rod mill. It weighed
400 to 600 pounds and was 4 to 6 feet long, 4 to 5 feet wide,
and 3 to 6 feet high (Tr. 44, 47, 82).
3. When Inspector Ketron observed the individual under the load he
stated to Jack Barnes that it was a violation (Tr. 79-80).
4. Witness Shanholtz made the following observations: the guard was
raised six feet off of the floor, an employee grabbed hold of it,
there was another employee on the other side of the load standing
one to two feet from the guard, and he was holding the tagline (Tr.
199.)
5.

4/

After Ketron informed Barnes there was a hazard, the employees were
moved away (Tr. 199).

Called load, guard, box or cover by various witnesses.

86f)

Respondent's evidence:
6. Anaconda's witness Merritt observed the overhead crane begin to
lift the box from the floor (Tr. 121, 122).
7. One employee with a tag line on the s6uth side was ste'adying the
load (Tr. 121).
8. All other employees were out of the area except one employee on
the north side of the guard (Tr. 121).
9. When the cover was
fted off the floor about 3 to 4 feet this
employee went over and turned the cover approximately 10 degrees so it
would be straight (Tr. 121-122, 162).
10. At that point the bottom of the cover was 3 1/2 to .4 feet from
the floor (Tr. 122) .
11. While straightening the cover, no part of the employee's body was
under the cover. His arms were extended outward horizontally as he
pushed on the load approximately in the center of the cover (Tr. 122,
125).
12.

At no time did Merritt observe any employee under the cover.

13. Witness Barnes, Anaconda's maintenance superintendant was
supervising the foreman in charge of replacing the load (Tr. 180).
14. Barnes watched the load when they started lifting it from the
floor to return it to the mill (Tr. 180).
15. Barnes did not observe any employee under the load at any time
when it was being returned to the mill (Tr. 180).
16. wnen Barnes observed that the load was first off the ground, 3 to
4 feet off the floor, a steelworker walked over and straightened it
out with his hands out-stretched (Tr. 162. 180-181).
17. The crane made no movement when the worker was near it. Other
than the one worker who touched the cover twice, the nearest workers
were 20 feet away (Tr. 181-183).
18. Ketron came over and said "that is not safe" and Barnes asked
the worker to move away (Tr. 123, 181).
19. The worker did not again approach the cover until it was six
inches, or less, away from the base (Tr. lbl).

867

DISCUSSION
One of the mine inspectors, 5 Ketron, places µworker unde~ the load.
The other inspector, Shanholtz, did not support this evidence~
Shanholtz's testimony is so factually vague that it is of no value.
Shanholtz said the steelworker "grabbed a hold" of the cover. What
Shanholtz meant or how a person would accomplish the feat of grabbing a
hold of a box estimated at 4 to 6 feet long, 4 to 5 feet wide . and 3 to 6
feet high is not further developed in the record. (Exhibit R-1 is a
photograph of the cover).

The Commission in its decision remanding the case states that
Shanholtz testified that a violation of the standard occurred after the
lateral movement when the guard was hoisted over the trauma screen to be
po$tioned on top of the mill. Shanholtz's testimony is unclear as to when
Ketron informed Superintendent Barnes that there was a violation. However,
Ketron testified that the violation occurred when the guard was being moved
laterally from point A to point B (Tr. 79, 80). Barnes stated that when
the guard was 3 to 4 feet off of the floor a steelworker walked over to it
and straightened it out. I t was then that Ketron told him it was unsafe.
Barnes countered Ketron's testimony by stating that an employee was never
"under the load" while the cover was being returned to the mill nr 15).
Barnes asked the employee to move away from the guard. The miner did so,
but came back to the guard after it was positioned six inches above the
base where it was to be placed. At that time, the miner adjusted the guard
so that it would set properly on the base (Tr. 180-182). Neither the
citation nor the record indicates that Anaconda was charged with a
violation for the adjustment of the cover immediately before its final
acement on the base.
I consider in this circumstance that the evidence is equally balanced.
All the witnesses in the rod mill were equally in a position to know the
facts. No other person, such as the steelworker who moved the cover, was
offered as a witness.

5/

The citation in this case alleges the worker was under the load while
was suspended 7 feet above the floor.

868

An additional issue is whether n~spondent 1 s witnesses established a
violation of 30 C.F.R. ~ 55.16-9
Witnesses Merritt and Barne_§ ·stated that
the bottom of the cover was 3 1/2 to 4 feet from the floor when .a
steelworker walked over with his arms extended, pushed on the center ot the
guard and straightened it out about ten degree~ C• 10, 11, 12) 16).
I construe the standard in the same manner as in WEST 79-128-M, ~-uyra,
and I find that the actions of the steelworker as described by the
respondent do not constitute a violation. Respondent's version of the
facts places the guard 3 1/2 to 4 feet above the floor. The miner's arms
were extended horizonally whe~ he pushed on the center of the guard. He
was not under the suspended load. There was no evidence that the guard was
unbalanced, or of such a size or shape that it was difficult for the crane
to hold it securely above the floor.- The miner being at least at arm 1 s
length from the guard was ''clear of 11 the suspended load.

During the cross examination of Merritt he admitted that he saw "very
little danger" when the cover was 3 1/2 to 4 feet off the floor (Tr. 122).
He disagreed with MSHA's counsel on how much danger there was
(Tr. 150-152)
I do not take Merritt's statement to be an admission of a
violation. The record taken as a whole aptly conveys Merritt 1 s denial of a
violation.
For the foregoing reasons I conclude that Citation 342194 and all
proposed penalties should be vacated.
ORDER

Based on the stated facts and for the reasons indicatee1 1 enter the
following Order:
1.

In WEST 79 128-M: Citation 341994 and all
proposed penalties are vacated.

2.

In WEST 79-130-M: Citation 342176 and all
proposed penalties are vacated.

3.

In WEST 79-137-M: Citation 342194 and all
proposed penalties therefor are vacated.

Law Judge

86B

Distribution:
Michael McCord, Esq.
Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
Edward F. Bartlett, Esq.
Karla M. Gray, Esq.
Anaconda Copper Company
P 0 Box 689
Butte, Montana 59701
Phyllis K. Caldwell, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294

870

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

~.PR

7
Civil Penalty Proceeding

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

Docket No. LAKE 80-216
A.O. No. 11-00609-03016

v.
Captain Strip Mine
SOUTHWESTERN ILLINOIS COAL
CORPORATION,
Respondent
DECISION
Appearances:

Thomas Lennon, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois, for the petitioner;
Brent L. Motchan, Esq., St. Louis, Missouri, for the
respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding was initiated by the petitioner against the respondent
through the filing of a petition for assessment of civil penalties pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 820(a), proposing penalties for two alleged violations of certain mandatory safety standards promulgated pursuant to the Act. A hearing was held in St. Louis, Missouri, on February 18, 1981, and the parties
appeared and participated therein. Althou~h given an opportunity to file
posthearing proposed findings and conclusions, the parties opted to waive
such filings and none were filed. 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.
Issues
The issues presented in this proceeding are: (1) whether respondent has
violated the provisions of the Act and implementing regulations as alleged in
the petition for assessment of civil penalties, and, if so, (2) the appropriate civil penalties that should be assessed against the respondent for the
alleged violations based upon the criteria set forth in section llO(i) of the
Act. Additional issues are identified and disposed of in the course of this
decision.

871

In determining the amount of civil penalty assessments, 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 charged, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business,
(5) the gravity of the violations, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of the
violations.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 u.s.c. § 801 et seq.
2.

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

3.

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

Stipulations
The parties stipulated to the following (Tr. 4-5):
1.

The Administrative Law Judge has jurisdiction over this matter.

2. Ronald Zara was a duly authorized representative of the Secretary
of Labor when he issued the citations in question.
3. Respondent demonstrated good faith in correcting the alleged
conditions.
L;"
Respondent has been assessed with 114 violations during the 2-year
period preceding the issuance of the citations involved in this proceeding.

5. Respondent's Captain Mine has an annual tonnage of 1.4 million and
Southwestern Illinois Coal Corporation has an annual tonnage of 7.7 million.
6. The effect of the proposed assessment for both citations will not
harm respondent's ability to continue in business.
Citation No. 777767, issued November 5, 1979, citing a violation of
30 C.F.R. § 77.1710(g), states as follows:
George Salger, groundman on the Marion 6360 shovel, was
observed working in an area where a danger of falling existed,
without a safety belt. Mr. Salger was on his knees, installing a lubrication line on the end of the steering arm on the
South-west corner of the 6360 Marion shovel. ·Mr. Salger was

872

approximately 12-15 feet above the ground on a platform
approximately 2 feet wide, with no handrails or other
protection.
Testimony and Evidence Adduced by the Petitioner
MSHA inspector Ronald G. Zara testified that he conducted an inspection
of the mine on November 5, 1979, and pursuant to that inspection he issued a
citation for a violation of 30 C.F.R. § 77.1710(g). He testified that the
citation was based upon his observation of George Salger working without the
use of a safety belt or safety line on a section of a Marion 6360 shovel
where there was a danger of falling (Tr. 10-14). A picture of the shovel
was marked to indicate the position where Mr. Salger was working (Tr. 16,
Exh. P-2). Mr. Salger was repairing a broken grease line while standing on
the steering arm of the machine which was about 18 inches wide. The inspector estimated that the arm was about 12-15 feet above the ground, and he
concluded that both the possible movement of the machine and an accumulation
of grease on the working surface could contribute to a fall from the steering
arm. He observed no protective devices but suggested that the operator might
use handrails, safety belts, and safety lines as a means of safeguarding the
worker. He concluded that a worker risked the probability of a fatal injury
if he fell from the steering arm. The inspector testified that he made no
finding of negligence because there was no foreman in the immediate area,
and he felt, therefore, that he could not prove negligence on the part of the
operator (Tr. 16-22).
On cross-examination, Mr. Zara again stated that his measurements of the
machine were only estimates, and from his vantage point, he could not ascertain whether there was grease on the working surface. He also acknowledged
that an operator is supposed to signal before moving the shovel, and while he
was aware that safety belts were available at the mine, he did not know if
one was located on the shovel (Tr. 24-25).
In response to bench questions, Mr. Zara stated that he observed
Mr. Salger finish his work, get up from his kneeling position, and walk down
onto the crawler part of the shovel. The inspector spoke about the use of
a safety belt to Mr. Salger, who offered no excuse for not wearing one, and
the inspector suggested that the operator might use a mobile crane with a
hanging basket to hold a worker, if the nature of the work was so infrequent
that it did not warrant the construction of handrails (Tr. 30-34).
Steve Grau~, master electrician and chairman of the union 1 s safety committee at
time the citation issued, stated that "the company's safety
belt rule, * * * is one of the least enforced and least stressed of all the
safe
rules we have" (Tr. 84-85). He also testified that when he worked on
an identical steering section on the opposite side of the machine, he stood
on scaffolding and wore a safety belt. In his opinion, the area marked in
the picture, where the grease fittings were located, presented a danger of
falling. He estimated that this area was about 2.feet wide. He further

testified that while he is aware that some supervisors do not hold safety
meetings, his particular supervisors make it a practice to hold them (Tr.

84-88).
In response to bench questions, Mr. Graul agreed that it is not practical
to set up scaffolding for day-to-day tasks, and he stated that scaffolds are
more likely to be used for jobs extending for a period of 24 hours to 2 weeks
(Tr. 88-89).
Testimony and Evidence Adduced by the Respondent
Steve Edwards, director of safety and training, indicated that a copy of
respondent's safety rules and regulations is given to each employee at the
mine (Exh. R-1). The rules specifically require the weari11.g of safety belts
and lines where there is a danger of falling. Mr. Edwards also described the
various types of safety-training programs which are given at the mine. Using
Mr. Salger as an example, he explained that both UMWA contract training and
MSHA-approved training emphasized the importance of safety belts. Mr. Salger
completed his MSHA training on June 12, 1979 (Exh. R-3). In conjunction with
the 1979 training, Mr. Edwards prepared some slide commentaries which further
emphasized the importance of safety belts (Exh. R-2). Furthermore, the company showed a movie on the use of safety belts in 1979, and also encouraged
their foremen to hold weekly "toolbox" safety meetings. He cited Exhibit R-4
as evidence that Mr. Salger attended a toolbox meeting where the topic of
discussion was safety belts (Tr. 39-44). The exhibit is a record of
Mr. Salger's attendance at that meeting.
On cross-examination, Mr. Edwards testified that Rule No. 8 of the company's safety rules, states that "safety belts and lanyards shall be worn as
necessary." He indicated that this rule must be read with Rule No. 9 which
states that "safety belts and lines shall be worn at all times where there is
a danger of falling" (Exh. R-1). While he agreed that Slide No. 41, which
states that "anytime there is a danger of falling, the people who are going
to be working off high places must wear a safety belt," accompanies a picture
of a man working on a drill mast 30-40 feet high, he felt that this picture
was not misleading. Ultimately, he maintained, the need to wear a safety
belt is a matter of employee discretion. With regard to enforcement of the
safety rules, Mr. Edwards testified that three of the SO miners who have been
disciplined were cited with safety belt violations. He also indicated that
the company's records show that the weekly toolbox meetings are held approximately 95 percent of the time (Tr. 45-51).

Tom Rushing, mine safety director, acknowledged having issued George
Salger a notice of violation after the company received its MSHA citation (Tr.
60-62, Exh. R-5).
On cross-examination, Mr. Rushing testified that five of the 40-50 citations he has issued were in response to an MSHA in~pection and citation. He
also noted that not all supervisors would issue a.notice of violation for the

874

same set of circumstances, and they are authorized to instruct a miner on
proper procedures in accordance with Federal standards and laws, as well as
company rules (Tr. 64).
In response to bench questions, Mr. Rushing stated that Mr. Salger's
greasing work was not necessary more than once a year. He agreed that a
cherry picker could be used for the task if the worker requested one (Tr. 70).
In response to additional questions, he stated that the area where Mr. Salger
was kneeling measured 47 inches wide and the ground below him consisted of
broken and loose coal (Tr. 72). He agreed that the Red "X" on the photograph
(Exh. P-2), indicating Mr. Salger's position, showed him to be kneeling on
the steering cylinder. He conceded that he had not measured the cylinder but
had instead measured the wider steering arm (Tr. 74-75). He also indicated
that there were safety belts on the machine at the time the citation was
issued, and in his opinion, there was no need for Mr. Salger to wear one (Tr.
77-78). He conceded that he gave Mr. Salger a notice of violation even though
he felt there was no danger of falling, but claimed that it was the company's
practice to issue a violation notice to the employee responsible for a citation issued by MSHA.
Citation No. 777770, issued November 6, 1979, cites a violation of
30 C.F.R. § 77.505, and, as amended, states:
The energized 4160 volt A.C. power cable, entering the
metal frame of the switchbox #C-1506-3, located on the highwall of the 2570 pit, did not enter the box through proper
fittings. The switch box and cable were supplying power to
the 181 Marion coal loader, which was in use at the time.
The wooden fittings, which protect the cable from the sharp
metal edges of the box, were not in place.
Testimony and Evidence Adduced by the Petitioner
Inspector Ronald Zara confirmed that he issued the citation in question
upon observing an energized power cable measuring approximately 3 to
3-1/2 inches in diameter, entering a 6- by 6-inch open.ing of a metal switchbox without a proper fitting. The inspector described the sides of the metal
opening as being sharp as though it had been cut with a hacksaw or a metal
cutting device. The inspector discussed the dual purpose of the wooden fitting, and indicated that it provides strain relief by keeping the cable from
straining on the connections within the box when it is moved or pulled. This
prevents electrical shocks or the possibility of a fire if the cable shorts
out. The fittings also prevent chafing of the cable against the metal edges
of the box. The inspector testified that the rope arrangement, depicted in
Exhibit P-5, prevents excessive strain on the connections but does not prevent
chafing of the cable, and he indicated that chafing may cause the cable to
wear on one side, thereby exposing energized conductors or possibly causing
the cable to blow out. He explained that the grou~d-monitoring system should
deenergize a circuit, but he referred to a prior ~ftition as evidence that
these systems can become disconnected (Exh. P-8). He further testified that

87fi

the lack of a proper fitting should have been noticed either during an onshift
examination or a monthly electrical examination, and he concluded that an
electrical shock could be fatal due to the voltage involved. The condition
was abated by the respondent when it installed a proper fitting (Tr. 91-102).
On cross-examination, Mr. Zara stated that he stood approximately
18 inches to 2 feet away from the cable when he observed it. In his opinion,
a "pothead," in the absence of proper fittings, could not provide proper strain
relief. He admitted that he had not tested the "pothead" on this particular
cable to determine its effectiveness, and agreed that section 77.505 includes
various options to satisfy the requirement of a proper fitting (Tr. 102-111).
On redirect examination, Mr. Zara stated that he believed the standard
permitted only suitable substitutes, that he would not accept a roperestraining device in lieu of a fitting or bushing, and that in his opinion
it should take only 5 minutes or less to install proper wooden fittings when
the cable is inserted into the switchbox (Tr. 112-117).
Testimony and Evidence Adduced by the Respondent
Steve Edwards used a diagram to show the manner in which a loading shovel
ties
system power source (Exh. R-1). He pointed out that any
excess cable is looped, thereby eliminating stress on the cable (Exh. R-5).
He also explained that the cables contain conductors which are insulated.
This factor, combined with the cable's metallic shield, should prevent the
system from causing a shock if the cable is cut. In Mr. Edwards' opinion,
a cable which is adequately tied down would not touch the metal edges of
the switchbox (Tr. 125-127, Exh. P-5).
On cross-examination Mr. Edwards clarified his position on the cable
loops are cast off to allow slack in the cable,
loops, asserting
thereby allevia
strain on the heado He was not certain whether the "pothead" was larger than the openings in the switchbox (Tro 127-135).
Kenneth Adams, chief electrical engineer, testified that there should be
no tension on either the connections or the cable coming out of the switchbox (Exh. R-l)o He reasoned that since the cable weighs over 2 pounds per
foot it would take extremely heavy weight to pull it against the connections
as it was coming out of the switchbox. He testified that the top wooden
block, which was not present in the picture, served only to keep rodents and
small animals out of the electrical enclosure (Tr. 138-139, Exh. P-5).
On cross-examination, Mr. Adams testified that the rope arrangement was
an industry-wide practice for about 30 years, and that strain on the cable
and connections would only occur if the cable is not clamped or tied off.
He explained that the two halves of the wooden block are normally attached
by hinges which fall off when they are initially used (Tr. 138-142).
In response to bench questions, Mr. Adams stated that the cable is often
disconnected from the switchboxes, and this procedure requires removing the
wooden blocks (Tr. 148-150).

87b

Mitchell Wolfe, respondent's safety technician, stated that he accompanied Mr. Zara on his safety inspection and that he was in charge of the
abatement which he accomplished by calling an electrician to install the top
portion of the wooden fitting. He also confirmed Mr. Adams' contention that
the two wooden blocks, when put together, merely prevented rodents and other
animals from passing through the enclosure (Tr. 153-160). He determined that
it takes approximately 15 minutes to replace the fittings when a cable is
removed (Tr. 164).
Safety director Tom Rushing described a similar cable connection and
switchbox in use at the mine which had no wooden fittings, but was tied off.
·This box passed the inspection scrutiny of both Inspector Zara and Mr. Hinkel,
the electrical inspector (Tr. 167, Exh. R-9).
Inspector Zara was recalled by the bench and testified that he would
issue a citation for incomplete fittings if he found the top portion of the
wooden block missing. He pointed out that providing there is sufficient
strain relief, a smooth device around the cable protecting it from sharp
edges, would fulfill the safety requirement of the cited standard (Tr. 171174).
Findings and Conclusions
Fact of Violation
Citation No. 777767, November 5, 1979, 30 C.F.R. § 77.1710(g)
Respondent was cited here for the failure by the shovel groundman to have
a safety belt or line attached to his person while he was performing work at
the end of the machine-steering mechanism located some 12 to 15 feet above the
ground. Section 77.1710(g) provides that mine employees shall be required to
wear safety belts and lines where there is a danger of falling, and the standard states as follows:
Each employee working in a surface coal mine or in
the surface work areas of an underground coal mine shall be
required to wear protective clothing and devices as indicated
below:

*

*

*

*

*

*

*

(g) Safety belts and lines where there is a danger of
falling; a second person shall tend the lifeline when bins,
tanks, or other dangerous areas are entered. [Emphasis
added.J
Inspector Zara testified that he issued the citation after observing
groundman George Salger in a kneeling position at ,~he end of the steering arm
of the Marion shovel performing some maintenance work and that he was not
wearing a safety belt or line. Since he was some 12 to 15 feet off the ground

877

and was not otherwise protected, Mr. Zara was concerned that he might fall off
the machine to the ground below and sustain injuries. Mr. Zara estimated the
width of the area where Mr. Salger was working to be some 18 inches, and he
concluded that a sudden movement of the shovel and an accumulation of grease
in the working area would result in a fall. Mr. Zara had no actual knowledge
of the presence of any grease in the area because he did not climb out to the
location in question, and his 18-inch estimate of the width of the area where
Mr. Salger was standing was an estimate based on Mr. Zara's visual observation
from ground level looking up at the steering arm.
Inspector Zara did not believe that the respondent was negligent in this
case because he observed no supervisor present when Mr. Salger was positioned
on the steering arm. As a matter of fact, Mr. Zara stated that when he first
observed Mr. Salger, he was some distance away, and as he approached the
shovel, Mr. Salger was on his way back and had climbed down from his position
by the time he reached the scene. This would seem to indicate that Mr. Salger
took it upon himself to walk to the end of the steering arm without a safety
belt or line. Whether he believed he was in any danger of falling remains
unanswered since he was not called to testify and he offered no explanation
to the inspector as to why he was not wearing a belt or line.
Respondent's witness Tom Rushing testified that a day before the hearing
he measured the area where Mr. Salger was purportedly kneeling on the day the
citation was issued and he found it to be 47 inches wide. This area was the
steering arm, but he did not measure the steering cylinder, which he estimated
to be anywhere from 36 to 47 inches. Mr. Rushing indicated that he made his
measurements from under the machine after climbing a ladder to reach it from
the underside. And, while he expressed the opinion that he personally would
have no fear of falling from the area in question, he could not state that
this would be the case in the event another individual had to walk out to the
area to perform some worko He candidly conceded that belts are located on
the shovel "for men to use in an area where they think there is a danger of
falling" (Tro 77)o
In North American Coal Corporation, 3 IBMA 93, 106-109 (1974), the operator was charged with a violation of 30 C.F.R. § 75.1720(a) after an inspector
observed two miners performing tasks hazardous to the eyes without wearing the
required protective goggleso The pertinent portion of this safety standard
reads as follows:
Each miner regularly employed in the active workings of
an underground coal mine shall be required to wear the following protective clothing and devices:
(a) * * * face shields or goggles when welding, cutting,
or working with molten metal or when other hazards to the eyes
exist from flying particles. [Emphasis added.]
In holding that a violation of 30 C.F.R. § 75.1720(a) did not occur, the
former Board of Mine Operations Appeals stated as follows at 3 IBMA 107, 108:

878

A violation of this regulation occurs where an operator
does not "require" a miner to wear safety goggles. North
American contends in substance, and we agree, that an operator, in order to comply with the regulation, must establish
a safety system designed to assure that employees wear safety
goggles on appropriate occasions and must enforce such system
with due diligence. Where the failure to wear glasses is
entirely the result of the employee's disobedience or negligence rather than a lack of a requirement by the operator to
wear them, then a violation has not occurred.

*

*

*

*

*

*

*

On the basis of the existing record we find that North
American did in fact have a safety system: (1) designed to
assure that all reasonable efforts are employed to insure that
miners wear safety goggles at appropriate times and places;
and (2) enforced with due diligence. We further find that the
preponderance of the evidence indicates that the failure to
comply with the operator's clear safety requirement in this
case was due solely to the negligence of the employees
involved rather than to any enforcement omission on the part
of the operator. It is, therefore, the judgment of the Board
that North American overcome [sicJ the Government's prima
facie case and that the subject notice of violation must be
vacated. 10/ [Emphasis added.]
The footnote reference in North American states:
Where a miner intentionally, knowingly, recklessly, or
fails to comply with a requirement designed
his own protection, and where such failure does
or create a hazard to anyone but himself, and
where the operator has not condoned such conduct, we do not
believe a violation may properly be charged to the operator.
Cf. Cam Industries, Inc., CCR Employment Safety and Health
Guide par. 15,113 (1972).
In Webster County Coal Corporation, 7 IBMA 264 (1977), the Board reversed
a judge's dismissal of a petition for assessment of civil penalty after the
judge found that an operator could not be held liable for a violation caused
by the
of a miner who was fatally injured. In dismissing the violation, the judge relied on the aforementioned
American footnote.
In Webster County Coal Corporation, the Board observed as follows at
7 IBMA 267-268:
The question of whether an operator can be liable for
civil penalties even though there is no showing of negligence
on his part, was never discussed in North
supra, nor
raised or argued by the parties.

879

The operator's contention in North American was that he
had fully complied with the cited regulation and therefore was
not in violation of 30 CFR 75.1720. The regulation directed
the operator to require a miner to wear goggles. On the facts
of that case, the Board found that the operator had complied
with the standard by providing glasses and replacements, by
havill'g a system designed to assure the wearing of glasses,
and by enforcing his requirement with due diligence. Based
on the express provision of this regulation, the Board found
that the operator was in compliance.
The footnote to North American, relied upon by the Judge,
was not intended to, nor did it in fact, set out any rule of
law contrary to the holding in the case. * * *
Rather than setting out a rule of law, its intent was
merely to reflect that a similar result was reached by OSHRC
and to suggest that the result may be different where any
operator condones the intentional, or negligent non-use of
safety glasses by a miner. In such event he may be held to
be in violation of not fulfilling his obligations under the
standard. [Emphasis added.]
Rushton Mining Company, 8 IBMA 255, decided February 16, 1978, concerned
mandatory safety standard 30 C.F.R. § 75.1714-2(a), which requires that selfrescue devices shall be worn or carried on the person of each miner. In
affirmaing a judge's finding of a violation based on the company's admission
that the cited miner was not wearing the protective device at the time he was
observed by the inspector, the Board rejected the operator's argument that it
did all that was expected of a reasonably prudent mine operator in insuring
that each miner possessed a device before entering the mine.
In view of the foregoing case law, I believe that it is clear that in
an appropriate factual set of circumstances, the issue decided in the North
American decision, supra, would be a defense to the violation in issue in the
instant case. As a matter of fact, I so held in MSHA v. Peabody Coal Company,
Docket No. DENV 77-77-P, decided August 30, 1978, where I vacated a citation
charging the operator with a violation of section 77.1710(g)~ on the ground
that the operator established that it had a viable safety program requiring
its employes to wear safety belts which it provided for their safety and
that the company enforced its requirements in this regard with due diligence.
discussing and distinguishing the aforementioned precedent cases and
rather broadly worded mandatory safety standards which use the regulatory
language "shall be required to wear, 11 I specifically invited MSHA to seriously
consider amending section 77.1710(g) to clearly and precisely mandate that an
employee wear a safety belt see pp. 14-15 of my decision). As far as I know,
nothing has been done in this regard and MSHA has obviously opted to continue
litigating this safety standard on a case-by-case ~asis, and I have subsequently issued additional decisions concerning thl.s'very same standard. See
MSHA v. Kaiser Steel Corporation, Docket No. DENV 77-13-P, decided October 10,

880

1978, affirmed by the Commission on May 17, 1979, and MSHA v. Peabody Coal
Company, Docket No. VINC 79-67-P, decided March 29, 19~
In Kaiser Steel, supra, while the company established that it had a comprehensive safety program for its employees, including a requirement that they
wear safety belts, and enforced this rule with due diligence against its own
employees, the facts also established that the company did not extend or
enforce this rule in the case of employees of contractors who were on its
property performing work for the company. In these circumstances, I concluded
that the company could not avail itself of the North American defense, and
that it should be held accountable for its failure to insure that the contractor's employees who are on mine property are furnished a safety belt by the
contractor before commencing work. In affirming my decision and rejecting
Kaiser's defense to the fact of violation based on the North American holding,
the Commission stated as follows:
In the present case, under the rationale of the Board's
decision in North American Coal Corp., supra, Kaiser was
required to establish that the deceased employee's failure
to wear a safety belt tied-off to a lifeline was contrary to
an effectively enforced requirement. Kaiser does not dispute
that its safety equipment requirement did not extend to its
contractor's employees. Furthermore, Kaiser did not establish
that the employee's failure to wear appropriate safety equipment was contrary to an effectively enforced requirement
imposed by its contractor. To the contrary, the evidence in
this case leads to the inference that the contractor had no
such effective requirement. Accordingly, a violation of the
standard was established for which Kaiser, as owner of the
mine, can be held responsible. !!_/
In the cited Kaiser Steel footnote, the Commission observed that:
iv[B]ecause Kaiser has not established the proof required under North American,
we need not reach the question of whether we agree with the rationale of that
decision."
In my second Peabody Coal Company decision, supra, I affirmed a citation
for a safety belt violation and in fact increased the proposed assessment
recommended by MSHA. In that case, I concluded that the company failed to
establish that it had a clear and readily understandable safety policy in
effect with respect to employee use of safety belts. I also concluded that
the company's safety rules failed to adequately inform the employees of the
requirements for wearing safety belts while working in elevated areas where
there was a danger of falling, and that company supervisors were inconsistent
in the manner in which they enforced the safety belt rules. Coupled with the
practice of permitting each individual miner to decide for himself when he
should wear a belt, I simply could not conclude that the company met the
tests laid down in the North American case.
As noted in the preceding discussion, the Commission in Kaiser Steel
avoided a review of the prior North American opinion by the former Board of

881

Mine Operations Appeals because it believed that Kaiser Steel did not establish the factual defense required by the North American decision. An inference
can be made that the Commission agreed with the defense, but it specifically
declined to address the issue. In a subsequent case concerning the requirements of section 75.1714-Z(a) that miners wear or carry self-rescue devices
while underground, the Commission rejected the operator's defense that it complied with the standard by establishing a program designed to assure that the
devices were available to all employees, that all employees were trained in
their use, and that the company enforced its safety program in this regard with
due diligence. U.S. Steel Corporation v. MSHA , Docket Nos. PITT 76-160-P and
PITT 76-162-P, IBMA No. 77-33, Commission decision of September 17, 1979. The
Commission discussed the prior North American, Webster County, and Rushton
Mining decisions, but declined to address the issue presented in those cases,
and its rationale in this regard is stated in footnote 3 of its decision as
follows:
U.S. Steel's argument relying on North American Coal
Corp., 3 IBMA 93 (1974), is not persuasive. The rationale of
the Board's decision in North American has been limited to
the language of the particular standard involved in that case,
30 CFR §75.1720. Webster County Coal Corp., supra. See also
Rushton Mining Co., supra. The present case presents no
occasion to determine whether we agree with the Board's
interpretation of 30 CFR §75.1720.
Thus, on two occasions when faced with the opportunity to consider the
former Board's opinion in the North American case, the Commission has declined
to do so. In Kaiser Steel, the Commission obviously declined review because
it believed that the record established that Kaiser had not met the test laid
down by the North American decision. This being the case, I believe the Commission expres
a
agreement with that decision. Likewise, in U.S.
Steel the Commission avoided review by simply relying on the fact that the
case
with a standard different from those which contain the loose
Hshall be required to wear" languageo
In the instant proceeding, respondent's safety rules with regard to the
use of safety belts are found at page 8 of Exhibit R-1, and they state the
following:

*

*

*

*

*

80

Safety belts and lanyards shall be worn as necessary.

9,

Safety belts and lines shall be worn at all times
where there is a danger of falling. If belts or
lines present a greater hazard or are impractical,
notify your supervisor so that alternative precautions are taken.

As I pointed out in the aforementioned previous decisions concerning the
safety belt requirements of section 77.1710(g), the regulatory language "shall

882

be required to wear" has prompted mine operators to adopt that rather broad
language as part of its own company safety requirements, and following the
reasoning of the North American decision, they have defended on the ground
that they have complied fully with the standard by not only requiring its
employees to use safety belts, but by disciplining those who do not. In the
three cited prior decisions, I accepted the defense in one of the Peabody
Coal cases, but rejected it in the second Peabody Coal case, as well as in
the Kaiser Steel case, and I did so on the specific facts of those cases.
Turning to the facts in the instant case, I conclude that the record supports a finding that the respondent here has established and met the tests
laid down in the North American Coal Corporation case, supra. While the two
company safety rules quoted above are somewhat contradictory in that No. 8
states that belts are to be worn "as necessary," while No. 9 states they shall
be worn "at all times" where there is a danger of falling, and while the decision as to when a belt should be worn is left pretty much to the discretion of
the individual employee, I believe these results stem from the fact that the
ambiguous regulatory language "shall be required to wear" lends itself to different interpretations. It seems to me that it should be a relatively simple
matter for MSHA to amend the standard so that it directly states that safety
belts and lines shall be worn where there is a danger of falling. Failure to
address this regulatory ambiguity will only result in continued and protracted
litigation on a case-by-case basis, along with the inevitable inconsistent and
somewhat strained case-by-case adjudicatory decisions.
Respondent's unrebutted testimony and evidence reflects that a safety
belt was provided for the shovel and was apparently available for use by the
groundman. Further, respondent has established that it does have a safety
program in effect and that its safety rules and regulations require employees
to wear safety belts and lanyards "as necessary" and at all times "where there
is a danger of falling." Although a safety committeeman testifying on behalf
of the petitioner stated that the safety belt rule is the least enforced
safety rule, his conclusion in this regard was not supported by any credible
evidence other than his own opinion. He conceded that he always wore a safety
belt while working in a comparable elevated position on the shovel steering
arm. Further, while the safety committeeman disagreed that 95 percent of the
mine supervisors held "toolbox" safety meetings with their crews, and that he
knows of some who do not, he conceded that three of his supervisors, identified by name, do make it a practice to hold regular safety meetings (Tr. 88).
Respondent produced evidence and testimony that it has cited individual
miners in the past for failing to wear a safety belt. Respondent's director
of safety and training testified that approximately 50 disciplinary notices
have been issued to miners for company safety violations, and that three of
those were for safety belt violations, including one (Exh. R-5) which was
issued to the same miner cited by the MSHA inspector in this case. Although
this citation was issued after the MSHA citation was issued, it is at least
indicative of the fact that the respondent does enforce its rule in this
respect. While an inference can be drawn that the···respondent may have issued
its company notice of violation to Mr. Salger to mitigate its own liability

BB a

for the citation, since there is no indication that any supervisory personnel
were present when Mr. Salger walked out to the end of the shovel steering
arm when the MSHA inspector observed him, an inference can also be made that
Mr. Salger took it upon himself not to use a belt and the inspector obviously
believed that this was the case because he did not believe the respondent was
negligent. Further, since Mr. Salger was not called as a witness by either
party, I have no way of knowing why he was not wearing a belt when the
inspector observed him, and although the inspector indicated that he spoke
with Mr. Salger, no explanation was offered as to why he was not wearing a
a belt.
After careful consideration of all of the evidence adduced in this case,
I conclude and find that the respondent has met the guidelines established by
the North American decision, that respondent has established that it was in
compliance with the cited standard, section 77.1710(g), by requiring employees
to wear belts and that petitioner has failed to establish by the preponderance
of any credible evidence that a violation of the cited standard occurred.
Accordingly, Citation No. 777767, issued November 5, 1979, is VACATED.
Fact of Violation
Citation No. 777770, November 5, 1979, 30 C.F.R. § 77.505
In this instance, respondent is charged with a violation of section
77.505, which provides as follows: "Cables shall enter metal frames of
motors, splice 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 bushings."
It seems clear to me that the reason the inspector issued the citation
in this case is the fact that he found the top half of the wooden device (Exh.
R-4) used as a fitting to be missing at the point where the cable passes
through the metal frame of the electrical compartment in question (see Exh.
P-5). He stated that the top half of the device is usually hinged ~the
bottom half so as to provide some rigid stability for the cable so as to prevent its being pulled out and chafed against the side of the unprotected metal
hole, which the inspector described as being sharp. His concern was that the
chafing would, in time, cause the cable to wear and expose the inner conductors~ thereby subjecting them to possible short circuiting or blow-outs, and
presenting a shock hazard.
Respondent takes the position that the practice of using a rope as a
restraining device is in fact the same as using a proper fitting or bushing
for that purpose. In short, respondent argues that the use of a rope is a
suitable substitute under the cited standard, and that the rope is in fact a
strain insulator (Tr. 112-114). Further, in questioning Inspector Zara on
the citation, respondent's counsel brought out the fact that MSHA's Inspector's Manual concerning the interpretation to be Rlaced on section 77.505,
describes a "proper fitting" as including devices·sueh as box connectors,
packing glands, strain insulators, strain clamps, and counsel stated that
he believed a rope can be considered to be a strain insulator (Tr. 110-111).

884

Petitioner's counsel took the position that the cited standard is not a
performance standard, but rather, a specification standard that does not provide for so-called "suitable substitutes" (Tr. 112). Although Inspector Zara
conceded that the use of a rope as a restraining device was in use at the
mine and that section 77.505 included various options available to a mine
operator so as to meet the requirements of a "proper fitting," he nonetheless
stated that he would not accept such a rope-restraining device in the case at
hand because a rope would not prevent the chafing or wearing of the cable
against the metal unprotected edges of the hole where the cable entered the
box. He also indicated that he would accept a rope restraint if the hole
through which the cable passed was protected by a smooth-edginS-device or a
complete wooden-block fitting to prevent the cable from chafing against the
exposed metal edge of the hole.
The March 9, 1978, edition of MSHA's Inspector's Manual contains the
following "policy" statement with respect to section 77.505:
For the purpose of this part, a cable either single or
multiple conductor is one that has an outer jacket in addition to the insulation provided for each power conductor. An
electrical fitting is an accessory such as a clamp or other
part of a wiring system that is intended primarily to perform
a mechanical rather than an electrical function. The function
of a proper electrical fitting for a cable entering a junction
box, electrical panel, termination box, or other electrical
enclosure is to prevent a strain on the electrical connections
and to prevent chafing or other movement of the cable that
might allow an energized electrical conductor to fault to the
enclosure frame. Proper fittings would permit box connectors,
packing glands, strain insulators, strain clamps, or metal or
wood clamps, etc.
Electric circuits that are made up of individual insulated wires that enter junction boxes, termination boxes or
other electrical enclosures need not have fittings but must
be provided with insulated bushings. Insulated wires that
pass through metal walls within an electrical enclosure must
also be provided with insulated bushings.
Respondent 1 s argument is that the use of a rope-straining device falls
within the 11 etco 11 portion of the "policy" statement found in the Inspector's
Manualo This argument is rejected. The standard requires the use of proper
fittings at the place where cables enter the frames of electrical compartments, and it seems clear that the intent of the standard is to prevent the
chafing and deterioration of a cable when it passes through an opening which
lacks the required protection called for by the standard. The "policy"
statement simply emphasizes the intent of the standard and seems to itemize
the types of devices acceptable for compliance. In the instant case, it seems
obvious to me that the respondent has opted to use'wooden fittings of the
types depicted by Exhibit R-4 and some of the photographic exhibits as a means

of compliance with the standard. The use of the rope device is, in my view,
an additional device which the respondent opted to use to stabilize the cable,
and the fact that its use is commonplace at the mine does not, ipso facto,
establish compliance in this case. The inspector cited the violation because
he found part of the wooden-fitting device missing and he was concerned with
the fact that the cable could dislodge itself from the fitting and rub and
chafe against the sharp edge of the opening to the electric compartment in
question. The fact that a rope would assist in preventing this from happening is a matter that goes to mitigating the seriousness of the violation and
may not, in my view, serve as an absolute defense to the citation. In short,
I reject respondent's argument that the rope is a suitable substitute for a
proper fitting of the type called for by the standard. Under the circumstances, I conclude and find that petitioner has established a violation and
the citation is AFFI&.~ED.
Good Faith Compliance
The parties stipulated that the respondent exercised good faith in the
abatement of the conditions cited, and I adopt this as my finding in this
matter. The record reflects that the conditions cited were abated on the
same day the citation issued and approximately 15 minutes prior to the
time fixed by the inspector (Exh. P-4). This reflects rapid compliance by
the respondent, and I have taken this into consideration in assessing a penalty for this violation.
Gravity
Although the inspector's narrative (Exh. P-9) reflects a notation by the
inspector that he believed a "danger of electrical shock" was present, I cannot conclude that the facts adduced in this matter support such a conclusion.
While it may be true that over a prolonged period of time it is possible for
a cable to be rendere~ hazardous due to constant rubbing against a rough or
sharp edge of an opening through which it passes, the facts adduced in this
case reflect that the cable in question was in good condition, that it was
protected to some degree by the rope-restraining device, as well as by a
"pothead" device, and that the cable itself contained protective devices
such as insulated conductors and metallic shields. In these circumstances,
I cannot conclude that the missing portion of the wooden fitting presented
a serious or grave situation" Accordingly, I conclude that on the facts
presented here, the violation in question was nonserious.
Negligence
Although respondentys arguments concerning the use of a rope as a suitable substitute for a proper fitting suggests that respondent may not have
been negligent because the use of such ropes may be commonplace at the mine,
the fact is that petitioner established that on two prior occasions on
September 11, 1979, respondent was cited for identical violations of section
77.505, by Inspector Zara for failing to maintain proper cable fittings, and
in both instances the citations concerned wooden block fittings such as the

88h

one in issue here (Exhs. P-7, P-8). Since these two citations were issued
prior to the one in issue here, respondent can hardly be heard to complain
that it was totally obl~vious of the requirements of section 77.505, and the
interpretation placed on that standard by the inspector. If the respondent
is not too enchanted with the manner in which MSHA has interpreted section
77.505, and believes that a rope-restraining device is a suitable substitute
for a wooden fitting, then I suggest respondent seriously consider filing a
petition for a modification or waiver of the standard pursuant to the Act so
that the Secretary may have an opportunity to consider the merits of respondent 1 s contention in this regard. As far as the instant proceeding is concerned, I conclude and find that respondent failed to exercise reasonable
care to prevent the conditions cited by the inspector, conditions which I
believe the respondent should have been aware of by closer inspection of or
attention to its electric equipment, and its failure to exercise reasonable
care in this regard constitutes ordinary negligence.
Size of Business and Effect of the Penalty on Respondent's Ability to Continue
in Business
The infonnation stipulated to by the parties with respec~ to the size of
respondent's mining operation suggests that respondent is a large operator,
and I conclude and find that this is the case. The parties agreed that the
assessed penalties will not adversely affect respondent's ability to continue
in business and I adopt this stipulation as my finding on this issue.
History of Prior Violations
The parties stipulated that for purposes of this case, respondent's prior
history of violations consists of 114 prior violations issued by MSHA during
the 24-month period prior to the issuance of the citation in question here.
Considering the size of the respondent and the lack of any specific informatioin concerning the prior citations~ I cannot conclude that respondent's
overall prior history is so bad as to require any drastic increase in the
initial civil penalty assessment made in this case. However, I have considered the fact that respondent was cited for two similar violations and conditions 2 months prior to the issuance of the citation and this reflects in
the assessment made by me with respect to the citation which I have affirmed.
Assessment and Order
On the basis of the foregoing findings and conclusions, and taking into
account the requirements of section llO(i) of the Act, I conclude and find
that a civil penalty in the amount of .$200 is reasonable and appropriate for
Citation No. 777770, November 5, 1979, 30 C.F.R. § 77.505, and respondent
is ORDERED to pay the penalty within thirty (30) days of the date of this
decision.
On the basis of the foregoing findings and con,clusions with respect to
Citation No. 777767, November 5, 1979, 30 C.F.R. § 77.1710(g), it is ORDERED

88~

that the citation be VACATED, and petitioner's civil penalty proposal as to
this citation is DISMISSED.

h.KD~as~
Administrative Law Judge

Distribution:
Thomas Lennon, Esq., Office of the Solicitor, U.S. Department of Labor,
230 South Dearborn Street, Chicago, IL 60604 (Certified Mail)
Brent L. Motchan, Esq., Southwestern Illinois Coal Corporation, 500 North
Broadway, St. Louis, MO 63102 (Certified Mail)

888

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 Proceedings
Docket No. SE 81-12
A.O. No. 40-02419-03011

Petitioner
v.

Docket No. SE 80-140
A.O. No. 40-02419-03008

G & M COAL COMPANY,
Respondent

Docket No. SE 81-7
A.O. No. 40-02419-03010
No. 1 Mine
DECISIONS
Appearances:

George Drumming, Jr., Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for
the petitioner;
Bill Marshall, pro~' Kingston, Tennessee, for the
respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a),
charging the respondent with a total of 13 alleged violations found in Parts
70~ 75, and 77, Title 30, Code of Federal Regulationso
Respondent filed
timely answers and notices of contest requesting a hearing, and a hearing was
convened in Knoxville, Tennessee, on March 12, 1981, and the parties waived
the filing of posthearing proposed findings and conclusions.
Issues
The principal issues presented in these proceedings are (1) whether
respondent violated the provisions of the Act and implementing regulations
as alleged in the proposals for assessment of civil penalties filed in these
proceedings, and, if so, (2) the appropriate civil penalties that should be

889

assessed against the respondent for the alleged violations based upon the criteria set forth in section llO(i) of the Act. Additional issues raised by the
parties are identified and disposed of in the course of these decisions.
In determining the amount of a civil penalty assessment, section llO(i)
of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty
to the size of the business of the operator, (3) whether the operator was
negligent, (4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification of the
violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 U.S.C. § 801 et~·
2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).
3.

Commission Rules, 29 C.F.R. § 2700.1 ~seq.
Stipulations

The parties agreed to the following:
1. Respondent is subject to the jurisdiction of the Act, and I have
jurisdiction to hear and decide these cases.
2. At the time the citations were issued, the respondent operated the
Noo 1 Mine, and the mining operation was small in size.
3o The inspectors who issued the citations were duly authorized MSHA
mine inspectors, and the citations were duly served on the respondent.
4. Respondent's history of prior violations is reflected in Exhibit P-1,
a computer printout listing all citations issued to the respondent for the
period June 9, 1978, through August 5~ 1980. The printout reflects five
prior citations concerning mandatory safety standard 30 CoF.Ro § 750200, one
prior citation concerning section 75.1100-2(a)(2), and one citation for a
violation of section 70.507,
5, Respondent exhibited normal good faith compliance with respect to all
of the citations issued in these proceedings, except for Citation Nos. 985402
and 985403 (Docket No. SE 80-140), which the respondent abated rapidly.
6. Respondent does not contest the fact of violation with respect to all
of the citations except Citation No. 984540 (Docket No. SE 80-140).
7. Respondent is no longer in the mining business and has abandoned the
mine in question. He is, however, engaged in reclamation work at the site in

8~}0

order to reclaim the land so as to meet the requirements imposed on him by
Federal and State surface mining and reclamation agencies.
8. Since the respondent is no longer in business and has abandoned the
mine, the issue concerning the effect of any civil penalties imposed for the
citations in question is moot.
Procedural Matter
Petitioner's motion to amend Citation No. 984540 to add subsection paragraph (d) to the cited standard section 75.1720 was granted.
Findings and Conclusions
Docket No. SE 80-140
Fact of Violations
MSHA inspector Arthur C. Grant confirmed that he issued Citation Nos.
984540, 985402, and 985403 on June 6 and 9, 1980, during mine inspections
which he conducted. The first citation was issued after he observed mine
operator Bill Marshall exiting the mine at the portal without wearing a
hardhat. Mr. Marshall was not carrying one at the time, but went to his
truck where the hat was located and then put it on.
Respondent's defense to this citation is based on Mr. Marshall's belief
that the hardhat requirement of section 75.1720(d) only applied to mine
employees, and since he was the mine owner rather than an employee, and
since he is not recognized as an "employee" for other purposes, he did not
believe the cited standard was violated.
Section 75.1720(d) requires that each miner regularly employed in the
active workings of an underground coal mine wear a suitable hardhat or hard
capo Mro Marshall does not dispute the fact that he did not have such a hat
on when the inspector observed him. He also conceded that he works in the
mine and had been underground when the inspector observed him coming out of
the mine. His interpretation of the requirements for wearing a hardhat is
erroneous and it is
ected. The citation is AFFIR1'1ED.
Mr. Grant testified that he issued the remaining citations after finding
that short-circuit protection was not provided for the roof-bolting machine
and cutting-machine trailing cables operating in the section. Section 75.601
requires that trailing cables be provided with automatic circuit breakers or
other no less effective MSHA-approved devices. Respondent does not dispute
the fact that the cited trailing cables lacked the required shirt-circuit
devices. Accordingly, the citations are AFFIRMED.
Negligence
I conclude and find that the respondent should have been aware of the
requirements of all the cited safety standards, that the violations resulted

89J

from respondent's failure to exercise reasonable care to prevent the conditions cited, and that this constitutes ordinary negligence as to all of the
aforementioned citations which have been affirmed.
Gravity
With respect to the hardhat citation, the facts reflect that Mr. Marshall
was exiting the mine when he was observed, and at that point in time there is
no evidence that he was exposed to any hazard. However, Mr. Marshall did not
deny that he had been underground in the mine without his hat, and in these
circumstances, I conclude that the violation is serious.
With regard to the two trailing cable citations, Mr. Marshall testified
that the main power source junction box supplying power to the cables was
equipped with a magnetic-type short-circuit protective device which provides
for an instantaneous power disconnect in the event of problems with the cables.
However, there is no evidence that this provided a fail-safe protection and
respondent conceded that the cables were not equipped with the required shortcircuit protective devices. Accordingly, I find that these citations were
serious in that the lack of cable short-circuit protection posed a potential
electrical hazard to the equipment operators.
Docket No. SE 81-12
Fact of Violation
MSHA inspector Jerry F. McDaniel confirmed that he issued Citation Nos.
984814, 984815, 984816, 984818, and 984822 during mine inspections he conducted on August 6 and 7, 1980 (Exhs. P-2 through P-6). The first two were
issued because of violatons of the respondent's approved roof-control plan
(Exho P-7)o Page 4 of the plan requires the use of crossbars or steel strips
as additional roof support in areas where overhead hill seams or horsebacks
are encounteredo In addition, the transmittal letter which accompanied the
also required the respondent to use a combination of posts and roof
bolts so as to provide full overhead support in all roof spans during the
initial development of the mine. Since the respondent wa.s not in full compliance with the plan, Mr. McDaniel issued the citations. I find that the
petitioner has established the violations, and Citation Noso 984814 and
984815 are AFFIRMED"
Citation Noo 984816 concerns the lack of an automatic audible backup
alarm of an end loader used on the surface to load coal into trucks. Respondent conceded that the loader was not equipped with the required alarm and
the citation is AFFIRMEDo
Citation No. 984822 concerns the failure by the respondent to provide at
least 500 gallons of water and at least three pails of 10-quart capacity for
the mine section as required by section 75.1100-2(~)(2), as part of the mine's
firefighting equipment. Respondent conceded that'the water and pails were
not provided and the citation is AFFIRMED.

892

Citation No. 984818 concerns an alleged violation of section 70.507
because of an asserted failure by the respondent to conduct a noise survey.
The citation was vacated from the bench after I concluded that the petitioner
could not establish by any credible evidence that a violation occurred.
Petitioner interposed no objection to my ruling and in fact concurred that
it could not prove a violation.
Negligence
I conclude and find that each of the citations which have been affirmed
resulted from respondent's failure to exercise reasonable care to prevent the
cited conditions, and that this constitutes ordinary negligence as to each of
the citations in question.
Gravity
Citation Nos. 984814 and 984815
Inspector McDaniel testified that the mine roof was well supported and
fully roof bolted according to the plan. Some straps were used, but his
inspection did not detect any loose, cracked, or faulty roof. In addition,
Mr. McDaniel agreed with Mr. Marshall's testimony that by driving the entry
less than the 20-foot wide distance permitted by the plan, additional support was provided to the roof. Although the inspector stated that he
observed some horsebacks and hill seams, he also indicated that the horseback condition is a roof condition where rock flares out of the coal seam,
but that he observed none in the immediate area where men may have been working and he observed no hazardous roof conditions. Under the circumstances,
I cannot conclude that the conditions cited were serious, and I find that
they were not.
The inspector considered Citation No. 984816, concerning the lack of an
alarm on the end loader 9 to be of "minimum" gravity because of the fact that
it was a tractor-type loader, with good visibility to the rear, and he
observed no one in back of it or exposed to any real hazard. I find that
this citation was nonserious.
With regard to Citation No" 984822, concerning the lack of water on the
section, the inspector believed that the gravity was "minimum." He testified
that fire extinguishers were provided on the mobile equipment which was operating in the section, and there is no evidence that the other fire equipment
required by the cited standard was not provided. Further, the inspector
stated that since the entry had not been driven more than 100 feet or so,
the men could readily escape the mine in the event of a fire quicker than
it would take to fight any fire with water and pails. He also indicated
that the use of water is not effective in the event of an electrical equipment fire. Under the circumstances, I conclude that the conditions cited
were nonserious.

t.J t.
8 0·~

Docket No. SE 81-7
Fact of Violation
Inspector McDaniel confirmed that he issued Citation Nos. 984813, 984817,
984819, 984820, and 984821. Respondent conceded that the conditions cited
by the inspector constituted violations of the cited standard. I find that
the petitioner has established the violations and the citations are AFFIRMED.
Gravity
Citation No. 984813 concerns the failure by the respondent to install a
main mine fan after driving approximately 100 feet into the mine for approximately two crosscuts. The inspector considered this violation to be serious
because the respondent had already mined into an area of the old mine workings and could have mined into another similar area. In the event methane
were found, the lack of a fan would result in a methane buildup, and coupled
with the fact that coal dust was present, the lack of a fan prevented the
removal of dust and possible methane from the mine. I conclude that this
citation was serious.
Citation No. 984817 concerns the failure by the respondent to weigh the
self-rescuing devices worn by the miners underground during the required
90-day interval. Weighing is necessary to determine whether the chemical
agent inside the device was leaking or contaminated. The inspector believed
the citation was of "minimum" gravity because the men could readily escape
from the mine without the need to use the devices, and once the rescuers
were weighed, they were found to be in proper working order and in compliance. Under the circumstances, I find that the violation is nonserious.
Citation Nos. 984819 and 984820 concern failure by the respondent to
record the results of certain mine examinations required to be made under
several mandatory safety standards" The inspector testified that the examinations had been made but respondent simply neglected to record them in the
mine books. He considered the two citations to be "record keeping" violations and believed they were of "minimtnn gravity." I conclude that the
citations were nonserious.
Citation No. 984821 concerns the failure by the respondent to store
several detonators in a magazine as required by section 77.1301-(a). The
inspector found the detonators in a large cardboard box on the wooden floor
of a metal-covered storage building which also contained some mine record
books and which may have been used as an office. The inspector believed the
gravity to be "probable" and indicated that it was possible that lightning
could strike the building or someone could have taken the detonators since
they were in plain view and unsecured. Under the circumstances, I find that
the violation was serious.

89 11.

Negligence
I conclude and find that each of the aforementioned citations which have
been affirmed resulted from respondent's failure to exercise reasonable care
to prevent the cited conditions, and that this constitutes ordinary negligence as to each of the citations.
With respect to the detonator citation, Mr. Marshall stated that he had
no idea who placed the detonators in the storage shed and indicated that they
were of a different brand from those which he normally used. However, the
fact is that the inspector found no storage magazine on the mine property and
the detonators were subsequently removed from the property. In these circumstances, I conclude that the respondent was negligent in not discovering the
detonators which were in plain view of the inspector.
Good Faith Compliance
The parties stipulated as to respondent's good faith compliance in all of
these cases, and I adopt these stipulations as my findings on this issue. I
have also considered respondent's compliance in this regard in assessing the
civil penalties for the citations which have been affirmed, and find that he
is a responsible operator who made an effort to comply with the law.
His

of Prior Violations

Respondent's history of prior violations as reflected in Exhibit P-1
shows that respondent paid civil penalty assessments for 31 citations during
a 2-year period. Although there are several repeat violations, I cannot conclude that respondent's history of prior violations is such as to warrant any
substantial increases in the penalties assessed in these cases.
Size of Business and Effect of Assessed Penalties on Respondent's Ability to
Continue in Business
Petitioner does not dispute the fact that the respondent is no longer in
the mining business and has abandoned the mine. Further, petitioner does not
dispute the mine operator's assertion that he is financially unable to pay
civil
s in the amounts initially assessed for the citations in question, nor does it dispute the fact that the respondent has been forced to
liquidate some of his property to pay debts that he has incurred as a result
of his small and somewhat marginal mining operation.
The record establishes that at the time the citations were issued respondent had recently developed and activated the 002 section, that coal production was minimal, and that the entry had been driven for a distance of
approximately 100 to 120 feet.
Penalty Assessments
In a previbus decision concerning these very same parties, I took into
consideration the fact that the respondent's financial situation was such as

895

to preclude payment of substantial civil penalties for two violations which
had been established by the petitioner. MSHA v. G & M Coal Company, Docket
No. SE 79-128 (November 19, 1980). Nothing has changed since that decision,
and it seems clear to me that respondent has abandoned the mine and is no
longer in the mining business. In these circumstances, and considering the
fact that I consider the respondent to be a responsible party who has made a
good faith effort to comply with the law and to meet his obligations, I conclude that the following civil penalty assessments are reasonable considering
the particular circtnnstances of these cases:
Docket No. SE 80-140
Citation No.

Date

30 C.F.R. Section

984540
985402
985403

6/6/80
6/9/80
6/9/80

75.1720(d)
75.601
75.601

Assessment
$ 5
10
10

Docket No. SE 81-12
Citation No.

Date

984814
984815
984816
985822

8/6/80
8/6/80
8/6/80
8/7/80

30 C.F.R. Section

Assessment

75.200
75.200
77 .410
77 .1100-2(a) (2)

$10
10
5
5

Docket No. SE 81-7
Citation No.

Date

984813
984817
984819
984820
984821

8/6/80
8/6/80
8/7 /80
8/7 /80
8/7 /80

30 C.F .R. Section

Assessment

75.300
75.1714-3(c)
75.1803
75.1801
77.130l(a)

$20
5

5
5
10

ORDER
Respondent IS ORDERED to pay civil penalties totaling $100 within thirty
(30) days of the date of these decisions for the citations in question, and
upon receipt of payment by MSHA, these matters are DISMISSED.

~"'~

~~e A. Koutras

Administrative Law Judge

89[)

Distribution:
George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department of
Labor, 280 U.S. Courthouse, Nashville, TN 37203 (Certified Mail)
Bill Marshall, G & M Coal Company, 807 Sturgess Street, Kingston, TN
37763 (Certified Mail)

897

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

APR

8 1981

)

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

)
)

CIVIL PENALTY PROCEEDING

)

DOCKET NO. CENT 79-83-M
ASSESSMENT CONTROL NO.
39-00225-05002

)
)

v.

)
)

CONCRETE MATERIALS COMPANY,

)
)

Respondent.

DOCKET NO. CENT 79-84-M
ASSESSMENT CONTROL NO.
39-00225-05003

)
)

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

BRANDON ROAD PIT & MILL NO. 1

DECISION
APPEARANCES:
Eliehue C. Brunson, Esq., Office of the Solicitor, United States
Department of Labor, 911 Walnut Street, Kansas City, Missouri 64106,
for the Petitioner,
William G. Taylor, Esq., of WOODS, FULLER, SHULTZ & SMITH, 310 South
First Avenue, Sioux Falls, South Dakota 57102,
for the Respondent.
Before:

Judge Virgil E. Vail

INTRODUCTION:
This case, heard under the provisions of the Federal Mine Safety and
Health Act of 1977 30 U.S.C. § &01 et
. [hereinafter the Act], arose out
of an inspection conducted by repre-;entat
s of petitioner on October 2,
1978 at respondent's mine near Sioux Falls, South Dakota. As a result of
the inspection, two citations and a withdrawal order were issued.
Citation 329050 charges that respondent violated 30 CFR 56.9-87 ll
because a 1971 Chevrolet dump truck, owned by Midwest Excavating Company and
leased to respondent, was not equipped with an automatic reverse signal
alarm. A penalty of $106.00 was proposed in connection with this citation.

1/

30 CFR 56.9-87 provides: Mandatory. Heavy duty mobile equipment
shall be provided with audible warning devices. When the operator of
such equipment has an obstructed view to the rear, the equipment shall
have either an automatic reverse signal alarm which is audible above
the surrounding noise level or an observer to signal when it is safe to
back up.

898

Citation 329067 charges that respondent violated 30 C.F.R.§ 56.9-2 l:./
because a 1967 International dump truck, owned by Midwest Excavating Company
and leased to respondent, was not equipped with operating stop lights. A
penalty of $72.00 was proposed in connection with this citation.
Citation and withdrawal order number 329068, issued pursuant to § 104(a)
and 107(a) of the Act, charge that respondent violated 30 C.F.R. § 56.9-87
because the 1967 International dump truck was not equipped with an automatic
reverse alarm. A specially assessed penalty of $1,000 was proposed in
connection with this order. }_I
The parties stipulated that the violations were in fact committed on
respondent's property, and that the violations involved vehicles and
equipment belonging to an independent contractor as well as its employees
(Tr. 4, 5). !:!_/ Respondent contends, however, that as a matter of law it
should not be found in violation of the cited standards. First, respondent
argues, the premises upon which the violations were committed are not a
"mine" within the meaning of the Act, and that the Act, therefore, does not
apply. In the alternative, respondent argues that the proper party to have
been cited in this case was Midwest, an independent contractor, not
respondent, the mine owner. Finally, respondent contends that the policy of
citing the mine owner for violations committed by its independent contractor
is properly applied only where the employees of the independent contractor
are exposed to hazards contemplated by the Act,
Although respondent apparently advances three independent arguments,
there are actually only two issues to be decided in this case: Were the
violations connnitted at a "mine" as defined by the Act? Was respondent-owner
the proper party to have been cited?

2/ 30 C.F.R. ~ 56.9-2 provides: Mandatory. Equipment defects affecting
safety shall be corrected before the equipment is used.
3/ Section 107(a) expressly provides that the issuance of an order under that
Sub-section does not preclude the issuance of a citation under Section 104 or
a penalty proposal under Section 110. In this case, the withdrawal order is
also a citation issued pursuant to§ 104(a). The penalty assessment is based
on the § 104(a) citation.
30 C.F.R. § 100.4 allows the Secretary to waive the conventional penalty
procedures and make a special assessment, documented by a set of narrative
findings.
4/ Respondent had orally contracted with Midwest Excavating Company to
have Midwest move sand from respondent's Brandon Pit to its Ready Mix Plant
(Tr. 91, 92, 101). Midwest was to provide the trucks and the drivers, and
operate and maintain the trucks (Tr. 92). Midwest paid the drivers, supplied
the fuel and determined the hours during which the work would be performed
(Tr. 92). Although the drivers were sometimes directed toward the stockpiles
by Sweetman employees (Tr. 98, 99), the evidence as a whole indicates that
Midwest functioned as an independent contractor rather than as respondent's
agent.

89B

FACTS:
Respondent owns and operates a sand and gravel pit near Sioux Falls,
South Dakota. The entrance to the premises is located approximately one
mile southeast of the pit (Tr. 88). Immediately inside the entrance there
is an unobstructed, flat area, referred to as the sales area. At the south
end of the sales area there is a scale house; toward the north end of the
sales area several stockpiles of sand and gravel form an arc which protrudes
into the sales area from northwest to southeast". Approximately twenty feet
northwest of the stockpiles, in the "pocket" of the arc, is a machine which
cleans and classifies the material (Tr. SO, 99; respondent•s exhibit 1).
The pit is approximately three quarters of a mile northwest of the
classifier. Material is transported from the pit to the classifier on a
conveyor belt.
Workers check in and out, and receive instructions at the scale house
(Tr. 30). Customers (both retail and commercial) drive trucks to
the scale house, are weighed-in empty, and then proceed approximately
two hundred feet to the north end of sales area where they back up to the
stockpiles of sand and gravel. The trucks are loaded by respondent's front
end loader (Tr. 65), and then weighed again at the scale house before they
exit (Tr. 14, 32, 89, 100). Customers are not permitted outside the sales
area(Tr. 90, 114).
On September 28, 1978, a truck owned by the independent contractor
Midwest Excavating Company and driven by its employee William Crowder
entered respondent's premises and backed up to the stockpiles. Mr. Crowder
got out of the truck and was checking under the hood when a second truck
owned by Midwest Excavating Company backed into him (Tr. 80, 108).
On October 2, 1978, Richard White and Wilbur Synhorst, inspectors
representing the Mine Safety and Health Administration, entered respondent's
premises to investigate the accident (Tr. 26). Mr. White inspected a 1971
Chevrolet dump truck located in the stockpile area (Tr. 33), and issued a
citation charging that the truck was not equipped with an automatic reverse
signal alarm (Tr. 28). Mr. Synhorst issued a citation charging that a 1967
International dump truck, also located in the stockpile area, was not
equipped with operating brake lights. He also issued a withdrawal order
charging that the same truck lacked an 11utomat ic reverse signal alarm (Tr.
13, 45, 77). These two trucks were owned by the independent contractor
Midwest Excavating Company.
LAW:
1.

Jurisdiction:

The jurisdictional issue in this case is whether the sales area on
respondent's premises is part of a "mine" as defined by the Act. Respondent
argues that it is not because the sand and gravel is not extracted or
prepared there.

900

The Act defines "coal or other mine" in Section 3(h)(l) as
(A) An area of land from which minerals are extracted ...
(B) private ways or roads appurtenant to such area, and
(C) lands, excavations, underground passageways; shafts,
slopes, tunnels and workings, structures, facilities, equipment,
machines, tools, or other property ... used in, or. to be
used in or resulting from ... the work of preparing coal
or other minerals, ... [Emphasis added].
The Act defines "work of preparing the coal" in section 3(i) as
(t]he breaking, crushing, sizing, cleaning, washing, drying,
mixing, storing and loading of bituminous coal, lignite,
or anthracite, and such other work of preparing coal as
is usually done by the operator of the coal mine.
Respondent argues that since "work of preparing the coal" is defined
broadly, the "preparation of other minerals", which is left undefined by
the Act, should be interpreted narrowly; thus, respondent argues, the sales
area does not fall within the Act's definition of "mine" because no
extraction, milling, crushing or washing of minerals takes place there.
To narrowly construe the term "preparation of other minerals," as
contended by respondent, would .violate the intent of the Act. Congress
passed the Federal Mine Safety and Health Act of 1977 to consolidate and
strengthen the enforcement of existing legislation governing coal, metallic,
and non-metallic mines. Federal Mine Safety and Health Amendments Act of
1977 S. Rep. No. 181, 95th Cong. 1st Sess. 1-6, reprinted in [1977] U.S.
Code Cong. & Ad. News 3401-06. Commenting on the broad definition of
"mine", the Senate Committee stated that "what is considered to be a mine
and to be regulated under this Act is to be given the broadest possible
interpretation and that doubts are to be resolved in favor of inclusion of a
facility within the coverage of the Act. 11 This statement indicates that the
definition of a mine, and particularly the term "preparing . . . . other
minerals," should be construed broadly.
A broad definition of "mine" was recently applied by the Third Circuit
Court of Appeals in Marshall v. Stoudt's Ferry Preparation Company 602 F. 2d
589 ( 1979), Cert denied
U.S.
, January 7, 1980. In that case, the
company purchased materiar-ctredgedfrom a riverbed by the Commonwealth of
Pennsylvania and transported the material to its plant, where it was
processed into two piles. The company contended its premises were not a
11
mine 11 under the Act because the activities did not include the extraction
or preparation of minerals.

901

The court rejected the argument and stated in part as follows:
We agree with the district court that the work of
preparing coal as other minerals is included within
the Act whether or not extraction is also being performed by the operator. Although it may seem incongruous to apply the label "mine" to the kind of plant
operated by Stoudt's Ferry, the statute makes clear
that the concept that was to be conveyed by the word
is much more encompassing than the usual meaning
attributed to it - the word. means what the statute
says it means - moreover, the record also establishes
that the Company processes and sells the sand and gravel
it separates from the material dredged from the river.
We are persuaded, as was the district judge, that in
these circumstances the sand and gravel operation of
the company also subjects it to the jurisdiction of the
Act as a mineral preparation facility (emphasis added).
I find that the stockpiling and loading of material by the respondent in
this case is covered under the Act and falls with MSHA jurisdiction.

2. Proper Party -- Independent Contractor Issue:
The respondent argues that the employees of the independent contractor,
Midwest Excavating, were not exposed to mining hazards, and that respondent
was therefore not subject to the jurisdiction of the Act. Further,
respondent argues that acts of an independent contractor cannot create
vicarious liability on the part of the mine owner (respondent's letter dated
October 21, 1980).
The issue of whether a mine owner may be cited for violations committed
by an independent contractor was considered by the Federal Mine Safety and
Health Review Commission in the case of Secretary of Labor (MSHA) v. Old Ben
Coal Company, l FMSHRC 1480, (1979), wherein the Commission stated as
follows:
When a mine operator engages a contractor to perform
construction or services at a mine, the duty to maintain
compliance with the Act regarding the contractor's
activities can be imposed on both the owner and the
contractor as operators. This reflects a congressional
judgment that, insofar as contractor activities are
concerned, both the owner and the contractor are ab le
to assure compliance with the Act. Arguably, one operator
may be in a better position to prevent the violation.
However, as we read the statute, this issue does not have
to be decided since Congress permitted the imposition of
liability on both operators regardless of who might be better
able to prevent the violation. Old Ben, supra. at 1483.

902

See also Secretary of Labor, Mine Safety and Health Administration (MSHA) v.
Republic Steel Corporation, (Docket No. IBMA 76-28, April 11, 1979);
Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Kaiser
Steel Corporation, (Docket No. DENV 77-13-P, May 17, 1979); Secretary of
Labor, Mine Safety apd Health Administration (MSHA) v. Monterey Coal
Company, (Docket No. HOPE 78-469, November 13, 1979).
The Connnission further stated in Secretary v. Old Ben Coal Company,
supra at 1483 that contractors can be proceeded against and held responsible
for their own violations.
At the time the citations were issued, the Secretary of Labor was
following his interim enforcement policy of citing only owner-operators for
violations committed by their independent contractors. Subsequently, the
Secretary published new enforcement guidelines as to when he will cite
independent contractors, When he will cite owner-operators, or When he will
cite both, either jointly or severally, for violations committed by
independent contractors. 45 F.R. 44, 494-98 (1980). In Secretary of Labor
(MSHA) v. Pittsburg and Midway Coal Mining Company, (Docket No. BARB
79-307-P, (August 4, 1980), the Commission ruled that in light of the new
regulations, the Secretary should be afforded an opportunity to continue to
prosecute citations against the operator, independent contractor or both.
In my order dated August 28, 1980, I afforded the Secretary such an
opportunity in this case. Pursuant to that order, the Secretary determined
to proceed solely against Concrete Materials Company.
Since the Secretary has determined to proceed solely against the mine
operator, the Old Ben decision is controlling; thus, the operator in this
case, Concrete Materials Company, must bear the responsibility for the
citations issued against it for the violations of the mandatory safety
standards committed by its independent contractor.
3.

Penalty:

The parties further stipulated that respondent is a small operator,
abated the violations in good faith, and committed one violation within the
twenty-four month period preceding the investigation of October 2, 1978 (Tr.

5, 40).
Respondent contends that since Midwest committed the violations,
negligence should not figure into a penalty determination. The authority,
however, is to the contrary, and supports the proposition that the
negligence of an independent contractor may be imputed to the mine owner.
Secretary of Labor v. Buffalo Mining Company, 1 MSHC 2266, 2268 (December
10, 1979 .

903

With respect to citation 329068, however, no evidence of negligence was
presented at the hearing. If the 1967 International truck were shown to
have been involved in the accident, then the absence of a reverse signal
alarm four days later would be evidence of negligence. But petitioner
failed to establish any connection between the violations and the
accident. 5 / Although Mr. White testified that the International truck was
involved in the accident (Tr. 13), he admitted that he had not witnessed the
accident and that his information was based solely on what he had learned
from other people (Tr. 76, 77). Mr. White also testified that he had not
asked respondent to produce the truck involved in the accident; that he just
assumed that the trucks involved in the accident on September 28 would be on
respondent's premises four days later (Tr. 38, 29; also see 46, 52, 53, 62).
No other evidence of negligence was presented.
Since petitioner failed to establish that one of the trucks cited on
October 2 had been involved in the accident of September 28, the evidence
concerning the cause of the accident (which, incidentally, was
contradictory) proves little, if anything, about the gravity of the
violations.
The $1,000.00 penalty proposed in connection with citation 329068
assumes that the truck which was cited was also involved in the accident.
The record does not establish this connection; a $1,000.00 penalty is,
therefore, not warranted. Upon considering the evidence concerning the six
statutory penalty criteria set out in§ llO(i) of the Act, I find that
$100.00 is an appropriate penalty. The evidence, however, does support the
Secretary's proposals made in connection with citations 329050 and 329067;
$102.00 and $72.00 respectively.
CONCLUSIONS OF LAW

1. The violations alleged in citations 329050, 329067 and 329068
occurred at a 11mine" within the meaning of the Act, and, therefore, properly
fell within the jurisdiction of this Commission.
2. Respondent violated 30 C.F.R. § 56.9-87 as alleged in citation
329050, and a penalty of $102.00 is appropriate.
3. Respondent violated 30 C.F.R. § 56.9-2 as alleged in citation
329067, and a penalty of $72.00 is appropriate.
4. Respondent violated 30 C.F.R. ~ 56.9-87 as alleged in citation
329068, and a penalty of $100.00 is appropriate.

5/ It is important to emphasize at this point that the violation did not
consist of the accident but of the failure to install and maintain reverse
alarms and brake lights on the truck.

904

ORDER

Pursuant to the foregoing, it is ORDERED that the penalty proposals made
in connection with citations 329050, 329067 and 329068 are affirmed. It is
further ORDERED that respondent pay the sum of $274.00 within 30 days of
this order.

Virgil E Vail
Adrnini$ rative Law Judge

Distribution:
Eliehue C. Brunson, Esq., Office of the S6licitor, United States
Department of Labor, 911 Walnut Street, Kansas City, Missouri 64106
William G. Taylor, Esq., WOODS, FULLER, SHULTZ & SMITH, 310 South
First Street, Sioux Falls, South Dakota 57102

905

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

Civil Penalty Proceeding

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

Docket No. LAKE 80-245-M
A.O. No. 33-00047-05014 I

v.
Jonathan Mine and Mill
COLUMBIA CEMENT CORPORATION,
Respondent
DECISION
Appearances:

F. Benjamin Riek III, Esq., Office of the Solicitor,
U.S. Department of Labor, Cleveland, Ohio, for
Petitioner;
Robert A. Minor, Esq., and Michael G. Long, Esq.,
Vorys, Sater, Seymour & Pease, Columbus, Ohio, for
Respondent.

Before:

Judge Edwin S. Bernstein

On July 8, 1979, Mr. James Levering was seriously injured while operating
a Waldon 5000 front-end loader at Columbia Cement Corporation's Jonathan Mine
and HilL Respondent was cited for a violation of 30 C.F.R. § 57 ,9-2. The
Secretary of Labor alleged that the Waldon 5000 loader had defective service
brakes, that Respondent was grossly negligent, and the Secretary of Labor
requested assessment of a penalty of $10,000. Pursuant to section 105(d) of
the Federal Hine Safety and Health Act of 1977 (the Act), I conducted a hearon December 9 and 10, 1980, in Columbus, Ohio. Following the hearing,
the parties submitted briefs, Upon the entire record and the parties' briefs,
I make the following findings of fact, conclusions of law, and order.
FINDINGS OF FACT
The parties stipulated and I find:
L
Jonathan Hine and Mill is a mine.
interstate commerce.

Its products enter and affect

2. Respondent operates, and at all times pertinent to the citation
at issue, operated Jonathan Hine and Mill.

UOb

3. Respondent and every miner employed at the mine are subject to
the provisions of the Federal Mine Safety and Health Act of 1977 and
jurisdiction over the st!bject matter of this proceeding vests with the
Federal Mine Safety and Health Review Commission.
4. During the year of 1978, this mine accumulated 561,645 production
man-hours. Respondent's firm accumulated 795,115 production man-hours for
1978. For 1979, this mine's production was 503,120 man-hours. This constitutes medium-sized production for both years.
5. The assessment of penalties as requested will not affect Respondent's ability to continue in business.
6. Inspectors Dennis Haeuber and Daryl Beauchamp are authorized
representatives of the Secretary of Labor.
7. As indicated by a computer printout submitted as an exhibit by Petitioner, Respondent paid fines in connection with 140 violations covering the
period from July .10, 1977, through July 9, 1979.

8. Citation and Order No. 361463 involved in this proceeding was
served upon Respondent on July 9, 1979. Notice of this proposed penalty
was served on Respondent on February 18, 1980. Notice of contest of the
proposed penalty was filed on March 21, 1980 and a special assessment was
filed on May 5, 1980.
9.

The alleged violation was abated in good faith.

Ten witnesses testified for Petitioner while three witnesses testified
for Respondent.
James Levering testified that he worked in the mine during the second
shift on Sunday, July Si 19790 He operated a Waldon 5000 front-end loader
in order to clean up dirt and mud that was built up in the crusher area in
the underground mine portion of Respondent's facility. Craig Brannon had
operated the same machine during the prior shift and Ernie Curtis was
shoveling dirt in the area to help Levering.
Mr. Levering stated that the Waldon loader was without brakes and the
gear shift kept popping out of gear. It had been this way for about
two months. Levering had operated that Waldon loader about six or 12 times
previously and never recalled that the loader had brakes. When the gear
shift popped out of gear, the machine would float freely and the machine
would be in neutral. In order to make the machine go forward, one would
push the front of the foot pedal on the righthand side of the machine. To
make it go backwards, one would push that same pedal down with his heel.
Because the machine had no brakes, you would stop the machine by reversing
your foot on flat surfaces or dropping your bucket to drag the machine.
Before the accident, Levering told Ernie Curtis about the brakes from
the beginning of the shift onward. Levering also told his foreman, Harold

Roberts, that the machine had no brakes and that the gear knob was popping
out. He told them this at. about 5 p.m. that day. Roberts said that he
realized this but so many\hings needed to be fixed in the mine that he
doubted that anyone could work on the Waldon loader. He stated, "As you
know, bigger pieces get fixed first; small ones are the last to be worked
on."
As he made one roundtrip and was be.ginning his second trip going up a
ramp, the machine slipped out of gear, he was unable to stop the machine,
and the machine rolled backwards. The machine rolled against a catwalk
behind him. This caused Levering to be pinned between the catwalk which
was pressing against his back and the steering wheel of the Waldon loader.
As a result of the accident, his ribs were broken and his left femur was
broken in five places. He was out of work for 14 months as a result of the
accident.
On cross-examination, Levering stated that before July 8, 1979, he
never complained about the brakes to anyone representing management although
he talked to other employees about it. He stated that the top speed of the
machine in low gear was about five miles per hour. He did not tell Roberts
that he was using the ramp and Roberts may not have known this. Roberts had
told him not to take the dirt in that area. However, there was no other
to put dirt and Roberts never told him to avoid the ramp.
Dennis Haeber stated that he is an MSHA mine
specialist who
visited the mine on October 30 and 31 and November 1, 1979, in order to make
a special investigation of the accident. He saw the Waldon 5000 loader parked
at the bottom of the ramp near the accident site. He took photographs which
were submitted as exhibits in this hearing.
Haeber stated that on October 31 1 1979, he pushed the brake
with
his hand and he felt no resistanc~. The pedal went down to the floor. Based
on his experience, the brake should have stopped before going down to the
flooro
He interviewed Ray Walker, a mobile maintenance superintendent, whose
job was to order parts and supervise repairs. Walker said that the brakes
on the Waldon loader never were good. walker stated that two master cylinders
were ordered before the accident and that he thought that the master cylinder
had been put in this Waldon. However, iJalker stated that when he looked
after the accident he was surprised to find that a master cylinder had not
been installed in this loader.
Haeber also found a work order issued by George Hill, one of Respondent's
on July 4, 1979, to Walker which stated about the 5000 Waldon loader,
11
Needs brakes and light." Haeber also found a purchase order for two master
cylinders dated February 23, 1979. Haeber concluded that the brakes were
inadequate. He also found the gear shift stick wired in a forward or low
gear position.

UOo

Craig Brannon testified that he operated the Waldon 5000 on the earlier
shift on July 8, 1979. He stated that the machine did not have brakes. He
did not recall pushing the pedal that day because the brake pedal had not
worked on previous days. In order to stop the machine, he needed to reverse
gears by reversing his foot on the foot pedal. He stated that sometimes if
he reversed the gear shift would pop out and into neutral. He testified that
he complained about these mechanical problems to his supervisor, Don Hammer.
He stated that he was never instructed not to use the Waldon 5000 loader on
either July 5, 6, or 7, 1979. He testified that it was general knowledge
that the brakes on the machine did not work. Most of the workers complained
to each other about the brakes.
Lawrence Reed testified that he has been a mobile equipment repairman for
Respondent for the past 25 years. He stated that the maintenance supervisor,
Ray Walker, instructed Reed to remove the master cylinder from the Waldon
5000 loader in question in February of 1979. Reed removed the master cylinder
from that machine. He was told that a new master cylinder would be ordered
the next day. Reed never installed another master cylinder in that Waldon
and does not know whether or not a master cylinder was ordered or received.
He stated that he did not work on that machine after February 1979, and he
did not know whether or not the machine had a master cylinder at the time
of the accident. He testified that if a master cylinder is removed or empty
there is little pressure on the brake.
Robert Jones stated that he worked at Respondent's mine and is a member
of the union safety committee. He testified that a few days before the accident he looked at the Waldon 5000 loader in question with George Hill and
Clarence Simmons. Simmons had refused to run the machine because of safety.
Jones pushed the brake pedal and the pedal went to the floor with little
resistance. He stated that if the brakes were good the pedal would have
gone no more than halfway to the floor. Therefore, he concluded that the
machine had no brakes. A work order was written requesting repair of the
brakes. That work order was admitted into evidence as Petitioner's Exhibit
G-27. The date on the work order is July 4, 1979, a Wednesday.
Jones testified that Hill told the oncoming shift foreman, Donald Hammer
that the machine had no brakes. Hammer said that he told "Baldy" (Roberts)
about this. Jones acknowledged that driving through mud and water such as
that found in the area causes brake problems.
Ernie Curtis was working as a mine utility man and clearing the belt
at the time that Levering was injured. Curtis used the machine on the day
before the accident, Saturday, July 7, 1979. He stated that on that date
the machine had no brakes and popped out of gear. The brake pedal went to
the floor. The gear stick lever was wired into a forward position. It had
been that way for at least six months. When the wires would come out .of
place it would be rewired.
Curtis stated that he spoke to Harold Roberts, a shift foreman, about
the brake on Saturday, July 7, 1979. Roberts told Curtis to park the

909

machine and that Roberts would try to get a maintenance man to repair the
brakes. The machine was not marked as being defective or "tagged out."
Roberts did not request ·tbat it be tagged out.
The following day as Curtis was shoveling he found Levering pinned
between the Waldon and the catwalk. He called Roberts for help and together
they removed Levering.
Before the accident that day, Levering told Curtis that he had told
"Baldy" about the defective brakes on the Waldon. Roberts did not tell
Levering to go up the ramp, however, Levering went up the ramp in order to
do the required job. He stated that the ramp was approximately 30 feet
long and that the Waldon moved in low gear at a maximum speed of two to
two and a half miles an hour.
Dwight Kelley testified that on the day after the accident he walked by
the Waldon 5000 loader in question and he pushed the brake pedal to the floor.
He found no resistance in the pedal. He found the linkage to the pedal was
loose and not connected with anything. He saw no master cylinder where it
should have been and saw no piston. He was told that the master cylinder
had been removed previously. He reported this to Robert Stouton, the mine
superintendent.
He stated that removal of a master cylinder renders the braking system
useless. He stated that Respondent's firm had consistent brake problems on
most equipment due to mud and water. Usually if brakes were defective, the
machine would be deadlined or taken to the shop. He testified that sometimes, but generally not all the time, machines that were defective would
be tagged out. On cross-examination, Kelley stated that he could not see
the master cylinder from where he looked. To view the master cylinder, he
would have to remove the plate on the floor. However, looking from the
pedal side he saw no piston going through the floor. Thus, even if the
master cylinder was in place it would be inoperative unless it was connected to the piston which is was not.
Harold Roberts testified for Petitioner as an adverse witness. He
stated that at the time of the accident he was Levering 1 s foreman. Roberts
denied being told by Hill on July 4, 1979, or before the accident that the
Waldon loader had inadequate brakes. Roberts also denied being told by
Curtis that the machine had inadequate brakes and an inadequate gear shift.
Roberts admitted that after Levering had started work, Levering had asked
Roberts if he knew that the shift lever was wired. However, he denied that
Levering told him about the defective brakes.
Roberts stated that he "assumed the brakes were adequate a few days and
before the accident." He stated that he ran the Waldon himself in June and
that the brakes were adequate. The pedal did not go all the way to the floor.
In his report, Roberts had said "Loader may not have had any brakes."
He stated ~t the hearing that he never checked on this. At first, he denied

910

this as a possible cause. He stated that if the brakes were bad enough the
machine would have been tagged out. He did not personally push the brake
pedal after the accideni:- ·
George Hill, a mine foreman for Respondent, testified that Jones refused
to run that Haldon loader on July 3, 1979. He stated that he then checked the
brakes for pedal pressure with his hand and found the brakes to be weak. The
brakes went to the floor showing little or no brakes. Hill told the maintenance superintendent, Ray Walker, that this was a problem and the brakes
needed correction. Walker said that he would have the brakes fixed either
that shift or the next shift. On July 4, 1979, Hill wrote a work order for
repair of the brakes. He also told another supervisor, Don Hammer, about the
defective brakes. He did not recall whether or not he told Roberts about the
defective brakes.
Hill stated that he did not tag out the loader as being unsafe. He
acknowledged that he should have tagged out the machine. The reason was
that at the time he did not have any tags. He did not check to see if the
machine was repaired, however, he did not assign anyone else to run the
Waldon after he requested repair of the brakes. Hill stated that the slope
of the ramp is 10 percent and any grade is sufficient to enable the Waldon
to coast down the ramp.
Daryl Beauchamp investigated the Waldon the day after the accident,
July 9, 1979. He pushed the pedal with his hand and the pedal with just
a little resistance pushed all the way to the floor. He concluded that
the accident was caused when the machine popped out of gear and the operator lost control of it as a result of having no brakes.
Beauchamp testified that adequate emergency brakes are no substitute
for inadequate service brakes. He stated that the company cooperated fully
during his investigation and during his regular inspections. He stated that
Brannon said that he knew the brakes were bad before the accident but had
not told anyone about this. Beauchamp testified the withdrawal order is
still in effect in that the machine is still on the site unrepaired.
James Hammer testified for Respondent. He stated that a week after the
accident he looked at the Waldon 5000 on his own. He had heard there was no
master cylinder but when he looked at the machine he saw a master cylinder in
place. He does not know if there was a master cylinder before or during the
accident. He does not recall working on the machine before the accident. He
noted that hydraulic lines were not connected to the master cylinder. Without
hydraulic lines being connected to the master cylinder, the brakes would not
work. He noted that the master cylinder was held in place by three mounting
bolts and could have been installed in 10 to 15 minutes. He stated that he
could not tell how the hydraulic lines became disconnected. He indicated that
the master cylinder that he saw was not a new one, it was rusting. He could
not tell if there was a rod going between the master cylinder through the
firewall to the pedal.

911

Howard Miller testified that he was Respondent's mine maintenance superintendent between 1974 and 1978 and since March 1, 1980, but not at the time
of the accident. He has .. operated the Waldon 5000 and is familiar with the
machine, including its repair. He stated that the machine's top speed and
range is 2.5 miles per hour. He testified that the machine had brake problems from 1974 to 1978. He reported concerning tests that were made with a
similar but larger Waldon Model 6000 loader at the mine~ These tests indicated that on level ground by shifting gears between forward and reverse the
machine could be stopped at between two and a half and approximately nine feet.
Miller stated that Respondent no longer has any Waldon 5000 in use.
These have been replaced by Bobcat machines which do not use hydraulic brakes
and therefore have more effective braking systems.
Miller testified that he examined the work slips for 1979 and found no
slip complaining about the gear shift popping out of range, however, these
slips were not complete and many were not available.

On cross-examination, Miller stated that if the Waldon popped out of gear
on that ramp and had no brakes it would coast at about 10 miles per hour until
it stopped or hit something.
David Mcvicker has been Respondent's safety director or industrial relations manager since May 1979. He stated that he accompanied Beauchamp and
Haeber during their investigations. He had submitted a report which said
"No brakes" but this was based on hearsay of others. He was told by a
mechanic that the master cylinder was in the Waldon but the lines were
disengaged. He stated that if the hydraulic lines were not connected, the
brakes could not work. He did not check to see if the brake pedal was connected to the piston.
With regard to repair orders, he stated that if work is done a yellow
copy is received. With regard to the July 4, 1979, work order for brakes,
he found no yellow copy. Thus, he had no information to indicate that the
brakes had been repaired after July 4, 1979. He also had no information
that would indicate that a master cylinder had been installed on that Waldon
5000 after it had been removed by Reed in February 1979.

CONCLUSIONS OF LAW AND CONCLUDING FINDINGS
I find that Respondent violated the mandatory safety standard at
30 C.F.R. § 57.9-2 as alleged. That standard reads: "§ 57.9-2 Mandatory.
pment defects affecting safety shall be corrected before the equipment
is used. 11
The evidence is overwhelming that on July 8, 1979, when Mr. Levering
used the Waldon 5000 loader at Respondent's facility the machine had defecttive brakes and had a defective gear shift. In its posthearing brief,
Respondent argued that the problem with the loader's brakes was not one
which affected safety because "the machine's use was to be restricted to

912

traveling only on level ground at a speed of two and one-half miles per hour."
Although the machine moved slowly, it was extremely dangerous because of its
heavy weight. Even on ·a~',.slight incline the machine was capable of rolling
and injuring either a pedestrian or its operator. In fact because of the
defective brakes, Mr. Levering suffered injuries which incapacited him for
14 months.
Upon consideration of the criteria in section llO(i) of the Act, I
assess a penalty of $10,000, the maximum amount authorized by section llO(a),
against Respondent. I find that Respondent (1) is a medium sized operator;
(2) has a history of 140 violations of the Act in the 2-year period prior to
this violation; (3) abated the violation in good faith; and (4) assessment of
this penalty will not affect Respondent's ability to continue in business.
Further, I find that this violation (5) constituted gross negligence and
(6) was of severe gravity.
30 C.F.R. § 100.3(d)(3) defines gross negligence as follows:
"Gross negligence" means an operator either caused the
condition or practice which occasioned the violation by
exercising reckless disregard of mandatory health and safety
standards or recklessly or deliberately failed to correct an
unsafe condition or practice which was known to exist.
I find that in failing to correct the loader's defective brakes before
the July 8, 1979 accident, Respondent recklessly and deliberately failed to
correct an unsafe practice which was known to exist.
First, Mr. Ray Walker, Respondent's former mobile maintenance foreman
ordered its mechanic, Laurence Reed to remove the master cylinder for the
loader in February, 1979. There is no evidence that this master cylinder
was replaced before the accidento The loader was continued in use after
the cylinder was removed.·
Second, on July 4, 1979, Mro George Hill, one of Respondent 1 s foremen
in the company of Mr. Randy Jones inspected the loader and found that it had
little or no brakes. Hill then gave a work order to Walker who promised to
repair the brakes on that shift or the next shift. The work order stated:
"Needs brakes and lights. 11 Hill also told another supervisor, Don Hammer
about the defective brakes. Hill did not tag the machine out although he
admitted that he should have and the machine continued in use.
Finally, another of Respondent 7 s foremen, Harold Roberts, was told of
the defective brakes both by Ernie Curtis on July 7, 1979 and by Levering on
July 8, 1979. Although Roberts was told that the brakes was defective by
Curtis, he told Levering to use the loader the next day. I credit Levering 1 s
testimony that when Levering complained about the brakes shortly before the
accident, Roberts told him to continue to use the loader because other equipment had to be repaired first.

n1a

These actions and inactions by Respondent's foremen and supervisors constituted a deliberate decision to continue to use a machine that they knew was
unsafe over an extended ~eriod of time despite numerous warnings and opportunities to repair or discontinue use of the machine. The defective brakes
were further aggravated by the defective gearshift which would pop out of
place throwing the machine out of a running gear and into neutral. Instead
of repairing the gearshift, Respondent's wired it into place in a defective,
makeshift manner. This entire course of conduct constituted a deliberate
and reckless regard for safety and a reckless and deliberate failure to
correct an unsafe condition.
My finding of severe gravity is first based upon the fact that this was
an extremely heavy machine capable of killing or seriously injuring either
its operator or a pedestrian as a result of its deficient brakes. In fact,
Mr. Levering was disabled for over a year because of this violation. Additionally, the fact that the deficient brakes continued over a substantial
period of time increased the probability that someone would be injured.
ORDER
Respondent is ORDERED to pay $10,000 in penalties within 30 days of the
date of this Order.

Edwin s. Bernstein
Administrative Law Judge
Distribution:
F. Benjamin Riek III, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East Ninth Street, Cleveland
OH 44199 (Certified Mail)
Robert A. ~tinor, Esq., and Michael G. Long, Esq., Vorys, Sater, Seymour
& Pease, 52 East Gay Street, P.O. Box 1008, Columbus, OH 43216
(Certified Mail)

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

8 t98t

AP'R

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

Civil Penalty Proceeding
Docket No. LAKE 80-303-M
A.C. No. 12-0008~-05002

Petitioner
v.

Eckerty Quarry
MULZER CRUSHED STONE COMPANY,
A Partnership,
Respondent
DECISION
Appearances:

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

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding filed by the Secretary of Labor, Mine Safety and
Health Administration (hereinafter MSHA) under section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a) (hereinafter the Act),
to assess a civil penalty against Mulzer Crushed Stone Company (hereinafter
Mulzer) for a violation of mandatory safety standards. The proposal for
assessment of a civil penalty
a violation of 30 C.F.R. § 56.12-300
A hearing was held in Evansville, Indiana, on February 24, 1981. George
LaLumondiere testified on behalf of MSHA. Nelson R. Paris testified on
behalf of Mulzero The parties waived their right to submit findings of fact
and conclusions of law in briefs and the record was closed at the end of the
hearing.
ISSUES
Whether Mulzer violated the Act or regulations as charged by MSHA and,
if so, the amount of civil penalty which should be assessed.

APPLICABLE LAW
Section llO(a) of the Act, 30 u.s.c. § 820(a), provides:
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.
Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent
part as follows:
In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
30 C.F.R. § 56.12-30 provides as follows: "When a potentially dangerous
condition is found it shall be corrected before equipment or wiring is
energized."
STIPULATIONS
The parties stipulated the following:
1. That the Administrative Law Judge has jurisdiction in matters related
to the Mine Safety and Health Act of 1977.
2. That the inspector who issued the citation was a duly authorized
representative of the Secretary of Labor.
3. That the size of the mine as to production of tons or man-hours per
year is 101,812.
4. That the size of the company as to production of tons or man hours
per year is 469,971.
5. That the proposed assessment will not harm Mulzer 1 s ability to continue its operations.
6.

That Citation No. 366831 has been terminated.

7. That Mulzer owned and operated a secondary crusher. motor, the subject
of this citation, on February 12, 1980.

91.h

8. That Respondent operates a limestone (crushed and broken) type
facility.
SUMMARY OF EVIDENCE
On February 12, 1980, MSHA inspector George LaLumondiere made an inspection of Eckerty Quarry. In checking out the ground floor level of the crusher
control booth building, he observed that the oil switch of the secondary
crusher drive motor was set permanently in a "run" position by means of a
wooden wedge holding the switch in place. By keeping the switch in this
position, the magnetic overload protection was unable to be utilized. This
protection is designed to automatically turn off the switch if the machine is
not functioning properly. The inspector testified that if the motor should
single phase or lose a phase conductor, it might overheat since the wedge
prevented the switch from automatically turning off. He believed that this
could cause an electrical fire or an oil fire which could ignite the wooden
crusher control booth and cause injury to the control operator on the second
floor of the building. In the inspector's opinion, this amounted to a potentially dangerous condition, and he issued a citation for a violation of
30 C.F.R. § 56.12-30.
The inspector stated that the operator was aware that the wooden wedge
was being used. The violation was abated on the same day by an electrician
who cleaned the contacts or magnetic switches and removed the wedge.
Mulzer's chief electrician, Nelson Paris, testified that the only purpose
of the starter switch is to reduce the amount of voltage and current that is
used when starting the motor. After starting, the switch is then moved into
the "run" positiqn. Mr. Paris explained that they had been having problems
keeping the switch in the "run" position since the level of oil pressure was
being read inaccurately, causing the motor to shut down even though the oil
supply was adequate. When the motor and crusher stopped, rocks would wedge
into the machine resulting in a work stoppage of 4-6 hours while they
out the crushere In order to keep up production and prevent false tripping,
a wooden wedge was inserted to hold the switch in the "run" position.
Hr. Paris stated that the magnetic overload protection functioned by
shutting off the switch when the motor overloads and generates heat. He
maintained, that in the absence of the protection provided by the automatic
switch, the machine would eventually shut off when the electrical fuses
shorted out. He also indicated that the crusher operator can manually stop
the motor by using the handle located on the side of the starter's enclosure.
DISCUSSION
MSHA asserts that Mulzer violated 30 C.F.R. § 56.12-30 by having an oil
start-stop switch for a secondary crusher motor wedged into a run position.
Its use of a wooden wedge which prevented the machine from automatically
shutting off when the oil pressure was too low, was a "potentially dangerous

917

condition." I find that by using the wedge, Mulzer had to either rely on the
control operator to detect an emergency situation, or had to wait for the
fuses to burn out in order for the power to be cut off. The possibility that
the motor might single phase, allowing the machine to run for a period of
time and build up heat presents a potentially dangerous condition. Since the
building was small and made of wood, a fire might cause immediate and serious
harm.
MSHA has established the fact of violation by demonstrating a potentially
dangerous condition. I find that the probability of a dangerous !situation
occurring is low since protection was provided by both the fuses and manpower.
Since the operator was aware of the wedge and the purpose of the automatic
overload protection switch, this violation amounts to ordinary negligence. It
is also noted that the violation was abated immediately after the citation
was issued, therefore showing good faith on the part of the operator.
Based upon all of the evidence of record and the criteria set forth in
section llO(i) of the Act, I conclude that a civil penalty in the amount of
$40, the amount proposed by MSHA, is appropriate.
ORDER
WHEREFORE, IT IS ORDERED that Mulzer pay the sum of $40 within 30 days of
the date of this decision as a civil penalty for the violation of 30 C.F.R.
§ 56.12-30.

Jamks A. Laurenson, Judge
Distribution by Certified Mail:
Steven E. Walanka, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Eighth Floor, Chicago, IL 60604
Philip E. Balcomb, Manager, Mulzer Crushed Stone Company, P.O. Box 248,
Tell City, IN 47586

918

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

MARK SEGEDI,

Application for Review
of Discrimination

On behalf of:

Docket No. PENN 80-273-D
S. J. EZARIK, ET AL.,
Complainants

Somerset No. 60 Mine

v.
BETHLEHEM MINES CORPORATION,
Respondent
ORDER OF AMENDMENT
On March 31, 1981, a document styled "Decision" was issued in the abovecaptioned case. The Decision contained an order divided into eight parts,
denominated Parts A through H. In Part G of the order, the undersigned
Administrative Law Judge retained jurisdiction of the above-captioned proceeding for the purpose of assessing against the Respondent a sum equal to
the aggregate amount of all costs and expenses, including attorneys' fees,
reasonably incurred by those Complainants identified in Part B of the order in
connection with the proceeding. In view of the retention of jurisdiction,
Parts A, D, and E of the order are herewith AMENDED to read as follows:
A. IT IS ORDERED that the above-captioned proceeding be
DISMISSED as to those Complainants who were scheduled to begin
work at 8:15 a.m. on January 30, 1980. Such Complainants are
identified as B. G. Miller; Ro Filby; D. W. Clark; C. J.
Zukauckas; s. A. Jestat; T. L. Pysh; R. T. Harris; D. Phillips;
G. R. Wheeler; C. J. Rocco; S. Durko, Jr.; L. T. Pruski; J. R.
Kennedy; R. T. Rados; J. E. Karpoff; M. Toth; J. E. Timlin;
H. W. Ambrosy; G. A. Dean; and G. S. McKeta. Such dismissal
shall take effect immediately upon the issuance of the order
disposing of the issues pertaining to the assessment of costs
and expenses, including attorney's fees.

*

*

*

*

*

*

*

D. IT IS FURTHER ORDERED that the Respondent pay the
back pay and interest awarded herein within 30 days of the
issuance of the order disposing of the issues pertaining to
the assessment of costs and expenses, including attorney's
fees.

*

*

*

*

*

91B

*

*

E. IT IS FURTHER ORDERED that the Respondent, immediately upon the issuance of the order disposing of the issues
pertaining to the assessment of costs and expenses, including
attorney's fees, clear the employment records of the
Complainants identified in Part B of this order of all
unfavorable references, if any, concerning the activities
that occurred prior to 8:15 a.m. on January 30, 1980.

Administrative Law Judge
Issued:
Distribution:
Kenneth J. Yablonski, Esq., Yablonski, King, Costello & Leckie,
500 Washington Trust Building, Washington, PA 15301 (Certified Mail)
Thomas W. Ehrke, Esq., Senior Industrial Relations Attorney-Coal,
Bethlehem Mines Corporation, Room 1871, Martins Tower, Bethlehem,
PA 18016 (Certified Mail)
Harrison B. Combs, Jr., Esq., United Mine Workers of America, 900 15th
Street, NW., Washington, DC 20005 (Certified Mail)
Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

920

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

APR f 01981
Complaint of Discharge, Discrimination or Interference

FREDERICK G. BRADLEY,
Complainant

v.

Docket No. WEVA 80-708-D
MSHA Case No. HOPE CD 80-68

BELVA COAL COMPANY
Respondent

Belva Coal Mine

SUPPLEMENTAL DECISION AND ORDER

On February 11, 1981, I issued a decision finding that Respondent had
unlawfully discriminated against Complainant in violation of § lOS(c) of the
1977 Mine Act, 30 U.S.C. § 815(c). The parties were unable to agree on the
relief due, so further submissions were ordered. The monetary award herein
covers the period June 12, 1980 through April 10, 1981.
Since the initial decision, the Commission has issued Secretary of Labor
ex rel. Robinette v. United Castle Coal Co., Docket No. VA 79-141-D (April 3,
,
sharpens the contours of§ lOS(c). It is now plain that
the Pasula 1/ analysis should be applied to every discrimination case. Por the
sake of clarity, then, I will su:rrnnarize the manner in which the Pasula tests
have
applied to the evidence in this case.
The Weight to be Accorded the Decision
of the West Virginia Coal 7-,line Safety
Board of Appeals
these proceedings, Respondent moved for su:rrnnary
During the
decision based on a
adverse to Complainant issued by
West
Virginia Coal Mine Safety Board of Appeals. Complainant's cause
action
before that tribunal was essentially the same cause of action he has presented
here. The motion was denied, for the reasons set forth
my order of January
, 1981. However,
transcript
hearing before
Board and the
Board's decision were admitted as evidence at the hearing.
The
evidence is controlled by the
outlined
in Pasula,
at 2795. Based on these factors, I find that the Board's
decision is
to no weight, because there are essentially no reasons
to explain it. Without knowing how the Board evaluated the testimony or applied
the law, I think any deference to its
ion would be unjustifiable.

l/ Secretary of Labor ex rel. Pasula v. Consolidation Coal Co., 2 FMSrffiC 2786
"'[October 14, 1980).

921

The Pasula .Analysis
1. Did Bradley Engage in Protected Activity?
Four witnesses testified that Bradley often complained to
superiors
about unsafe practices in the mine. On June 11 and 12, 1980, a Federal inspector visited the mine and issued a number of citations and orders. In particular,
he directed Respondent to remove the damaged portion of a trailing cable and
install a permanent splice. The cable was tagged but was not locked out.
Complainant began to hang the cable so a scoop could pass. Larry Davis then
told Complainant not to hang the cable and simply to allow the scoop to run
over it. Complainant refused to comply with this order.
The controlling standard is whether Complainant had a good faith, reasonable belief that there was a hazardous condition and whether he reacted in a
reasonable manner to that belief. Robinette, supra, at 10. Complainant honestly
believed that running over the cable was hazardous.
belief was reasonable
since the cable was damaged and could have been further damaged by the scoop.
Although the cable was tagged and de-energized, it was
connected to a
power source and a mining machine. If it became
accidentally,
could have seriously harmed anyone touching it. The
harm would be
significantly increased by further damage to the cable. Complainant reacted
reasonably by refusing to so increase the risk. His refusal led to only a
modest delay in the performance of his duties while he hung the cable.
2. Was the Discharge Motivated in Part by the Protected Activity?
Respondent was clearly aware of Complainant's protected activity. Since
the discharge followed so closely on his refusal to allow the scoop to run over
the cable, such refusal unquestionably figured in the decision to discharge.
3. Was the Discharge Motivated in Part by Unprotected Activity?
Respondent introduced evidence that Complainant
not comply
an
order to bring a tape measure and argues that this precipitated the discharge.
It
clear, however, that this, in itself, is not a case
egregious misconduct, and that discharge was a totally disproportionate sanction.
4~

Would Bradley have been Discharged for the Unprotected Activity Alone?

The testimony suggests that personality differences played a significant
in the decision to discharge. The only specific acts of misconduct
by Respondent, however, were the refusal to have the scoop run over
and the refusal to bring a tape measure. I conclude from all the testimony
that the refusal to let the scoop run over the cable was the key event. This
act of defiance and the substantial burdens placed on company personnel by
Federal inspector became intertwined in Larry Davis's mind. Complainant's
discharge finally expressed the dissatisfaction and resentment which had been
building against him for months. I find that the isolated refusal to
a
tape measure, under the circumstances, would not have provoked the discharge
by itself.

Monetary Award
The parties were unable to agree on the amount due under paragraphs 2
and 4 of my order of February 11, 1981. They have supplied argument and
documentation to support their positions and, having considered them, I make
the following rulings on each item.
The back pay provisions of§ lOS(c), like the corresponding provisions
of Title VII of the Civil Rights Act, appear to be modeled on § lO(c) of the
National Labor Relations Act, 29 U.S.C. § 160(c). Cf. Albemarle Paper Co. v.
Moody, 422 U.S. 405, 419 (1975). Questions arisingl:illder it should therefore
be resolved by reference to NLRB precedent. Id. The general rule is that back
the difference between what the employee would have earned but for the
pay
wrongful discharge and his actual interim earnings. OCAW v. NLRB, 547 F.2d
598 (D.C. Cir. 1976). In practice, this means gross pay minus net interim
earnings equals the award. Respondent, of course, is responsible for complying
with applicable state and Federal laws on withholding. Cf. Social Security
Board v. Nieratko, 327 U.S. 358 (1946).
~
Complainant claims gross back pay
$ 25358.82. Respondent's computations
show that $ 25450 is due. Respondent's figure is better documented and will be
accepted. Complainant asserts that he earned $ 1850 while employed elsewhere
during the period. Respondent places the figure at $ 5800.
Respondent has proved net earnings of $ 1300.12 from Uniajax Mining.
Uniajax also paid a $ 2000 "cash advancement" to Complainant. Complainant
asserts that the latter was monthly salary and subject to withholding, so the
net received was $ 1300.12. Respondent also contends that Complainant earned
$ 1800 at Misty Coal. However, Respondent does not specify whether this is
net or gross pay. Therefore, only the $ 600 actually received by Complainant
will
deducted. Total interim earnings were $ 3200.24.
Unemployment and other public benefits received by Complainant, states
Respondent, amount to $ 8099. But these benefits, illllike interim earnings,
may be recoverable under state law. If Complainant has perpetrated a fraud on
the State of West Virginia, as Respondent alleges, it is a problem for that
state, not this Commission, to correct. In any event, the weight of authority
persuades me that public benefits should not be deducted from a back pay award.
Wilson and Runmel v. Laurel Shaft Const. Co., 2 FMSHRC 2623 (September 12, 1980);
Neal v. Baich, 3 FMSHRC 443, 453 (February 12, 1981); .NLRB v. Pan Scape Corp.,
.2d 198 (7th Cir. 1979); Marshall v. Goodyear Tire and Rubber Co., 554
F.2d 730 (5th
. 1977). The benefits received by Complainant will not be
deducted.
Complainant claims reimbursement of $ 90 for the transcript of the hearing
before the West Virginia Board. I deny his claim for this expense but award
$ 60.60, the cost of the transcript in the Commission hearing, and court costs
of $ 18.90.

Respondent argues that Complainant did not "incur" any attorneys fees
within the meaning of§ 105(c)(3) and therefore attorneys fees should not be
awarded. I cannot adopt this construction of the statute. In awarding attorneys
fees to successful complainants, Congress intended that the costs of litigation
not prevent them from vindicating their rights. The Seventh Circuit, applying
the Civil Rights Attorneys Fees Awards Act of 1976, squarely faced the question
whether publicly funded legal clinics could recover attorneys fees:
It is true that the prospect of attorneys fees does not discourage
the litigant from bringing suit when the legal representation is
provided without charge. But the entity providing the free legal
services will be so discouraged, and an award of attorneys fees
encourages it to bring public-minded suits when so requested by
litigants who are unable to pay. Thus an award of attorneys fees
to the organization providing free legal services indirectly serves
the same purpose as an award directly to a fee paying litigant.
:Mary and Crystal v. Ramsden, 635 F.2d 590, 602 (7th Cir. 1980), quoting,

Brandenburger v. Thompson, 494 F.2d 885, 889 (9th Cir. 1974).
Counsel for Complainant claims fees in the amount of $ 1485, 24 3/4 hours
at $ 60 per hour. Although the time spent is challenged by Respondent, counsel
has not provided any documentation of the hours spent. The hearing took
approximately 7 hours, and I conclude that an additional 14 hours were necessarily spent on the case and will award $ 1260 as attorneys fees.
The total amount of the award is $ 23589.26. The figure was derived as
follows:
Gross back pay due.
Interim earnings. ,
Subtotal, .

$ 25450.00
3200.24
22249. 76

Transcript
Court costs .
Attorneys fees
Subtotal.

$

Total . .

60.60
18.90
1260.00
1339.50
23589.26

ORDER
Respondent shall pay to counsel for Complainant the sum of$ 22249.76
within 30 days
the date of this order, less amounts withheld pursuant to
state and Federal law. Respondent shall also pay to collllsel for Complainant

the sum derived by applying a rate of 12 per cent 2/ interest to the net back
pay award after withholding, and$ 1339.50 for costs and fees. Counsel for
Complainant shall retain $ 1339.50 and shall disburse the balance to Complainant.

s p-13.-v ck_A1 e/..___
),~)~
James A. Broderick

.

Chief Administrative Law Judge

Distribution:
Daniel F. Hedges, Esq., Counsel for Frederick Bradley, Appalachian Research
and Defense Fund, Inc., 1116-B Kanawha Blvd. East, Charleston, \'N' 25301
(Certified mail).
Ricklin Brown, Esq., Counsel for Belva Coal Company, Bowles, :McDavid, Graff
& Love, 1200 Corrnnerce Square, P.O. Box 1386, Charleston, l'N' 25325
(Certified mail).
Special Investigation, Mine Safety and Health Administration, U.S. Department
of Labor, 4015 Wilson Blvd., Arlington, VA 22203

2/ This is the current adjusted prime rate used by the Internal Revenue Service
for underpayments and overpayments of tax. Rev. Ruling 79-366. The NLRB also
uses this figure to compute interest on back pay awards. Florida Steel Corp.,
231 N.L.R.B. No. 117, 1977-78 CCH NLRB Para. 18,484.

925

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),

Complaint of Discharge,
Discrimination, or Interference
Docket No. SE 80-46-DM

On behalf of:
MD 79-138

WILLIAM JOHNSOH,
Complainant

Tenoroc Mine

v.
BORDEN, INC. (Chemical Division,
Smith-Douglass),
Respondent
DECISION
Appearances:

Shaka M. Shedeke, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for
Complainant;
William R. Neale, Esq., Borden, Inc., Columbus,
Ohio, for Respondent.

Before:

Judge James A. Laurenson
JURISDICTION AND PROCEDURAL HISTORY

This is a proceeding commenced by the Secretary of Labor, Mine Safety
and Health Administration (hereinafter MSHA) on behalf of William Johnson
alleg
that William Johnson was discharged from his employment at Borden,
Inc., Chemical Division, Smith-Douglass (hereinafter Borden) on April 26,
1978, because of activity protected under section 105(c) of the Federal Mine
and Health Act of 1977, 30 U.S.C. § 815(c) (hereinafter the Act). On
10, 1978, William Johnson filed a complaint with the Occupational Safety
and Health Administration (hereinafter OSHA) concerning his discharge. OSHA
invest
the complaint and subsequently referred the matter to MSHA.
On December 31, 1979, MSHA filed this action on behalf of William Johnson.
Upon completion of discovery and prehearing requirements, a hearing was held
in Tampa, Florida, on December 2-4, 1980. The following witnesses testified
on behalf of Complainant: Gerald E. Harper, Charles DeCroes, William Johnson,

and Donald Fancher. The following witnesses testified on behalf of Borden:
Kenneth Snow, Richard Daniels, and Joseph Lang. Because of the onset of a
sudden illness, Joseph Lang was unable to complete his testimony at the hearing. Pursuant to an agreement of the parties, Mr. Lang completed his testimony by means of a deposition in Atlanta, Georgia, on December 18, 1980.
At the hearing, Borden objected to MSHA's right to propose a civil penalty herein without following the procedures set forth in 30 C.F.R. §§ 100.5
and 100.6 and 29 C.F.R. § 2700.25. Borden's objection was sustained and the
civil penalty proposal was severed from the complaint and remanded to MSHA
to begin the civil penalty assessment process.
ISSUES
Whether Borden violated section 105(c) of the Act in discharging Complainant William Johnson and, if so, what relief shall be awarded to
Complainant.

APPLICABLE LAW
Section 105(c) of the Act, 30 U.S.C. § 815(c), provides in pertinent
part as follows:
(1) No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger
or safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners
or applicant for emplo~nent has instituted or caused to be
instituted any
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
for employment on behalf of himself or
others of any statutory right afforded by this Act.
(2) Any miner or applicant for employment or representative of miners who believes that he has been discharged,
interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60 days

927

after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint
to the respondent and shall cause such investigation to be
made as he deems appropriate. Such investigation, shall commence within 15 days of the Secretary's receipt of the complaint, and if the Secretary finds that such complaint was
not frivolously brought, the Commission, on an expedited
basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on
the complaint. 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 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 this
paragraph,
STIPULATIONS
The parties stipulated the following:
1.
the Act

Borden is an "operator" of a "mine" as those terms are defined in
o

2, William Johnson was employed as a "miner" by Borden from October 29,
1973, to and includ
April 26, 1978, as that term is defined in the Act.
3. During the period of Johnson's employment with Borden as a miner,
immediately prior to his termination on April 26, 1978, Johnson was employed
at the Tenoroc }fine facility.
4. William Johnson was employed by Borden pursuant to the terms and provisions of a collective bargaining agreement between Borden and Local 37,

928

International Chemical Workers' Union. Until the final disciplinary action
on April 18, 1978, Johnson had never received any oral or written reprimand,
suspension, or discharge from or with respect to his job performance and
employment with Borden.

5. Pursuant to the Collective Bargaining Agreement, particularly
Article XI, Paragraph 9, "[n]o employee can be discharged without first being
suspended, the suspension to become automatically a discharge within seven
calendar days of its issuance unless otherwise directed by the management or
modified by the grievance procedure."
6. Pursuant to such collective bargaining agreement, Borden retained
the right to discipline and discharge, but had no published rules of conduct
for employees.

7. On or about April 4, 1978, William Johnson made a nuisance report to
the Polk County Health Department about filthy restrooms.
8. An inspection was made on April 7, 1978, and a follow-up inspection
on April 14, 1978, showed correction of the situation.
9. On April 13, 1978, William Johnson returned to the machine shop at
Tenoroc and removed tools from his locker.
FINDINGS OF FACT
I find that the preponderance of the evidence of record establishes the
following facts:

1. At all times relevant herein, Borden was the operator of the Tenoroc
Mine (hereinafter the mine) in Polk County, Florida.
2o William Johnson (hereinafter Johnson) was employed as a "miner" by
Borden from October 29, 1973, to April 26, 1978. At the relevant times
herein, Johnson worked as a machine shop helper and recovery plant oiler.
Prior to the incident leading to Johnson's discharge, no disciplinary action
had been taken against him by Borden. Johnson earned $4.58 per hour at the
time of his discharge and his pay would have increased to $4.83 per hour on
July 1, 1978, pursuant to a collective bargaining agreement between Borden
and Local No. 37, International Chemical Workers' Union (hereinafter the
Union) o
3o Labor-management relations at the mine were governed by the collective bargaining agreement. Although Johnson did not belong to the Union, the
Union was recognized as the exclusive bargaining agent for all production and
maintenance employees at the mine.

4. During the time prior to April 4, 1978, William Johnson complained
about the filthy condition of the restroom facilities at the mine. On
April 4, 1978, he telephoned the Polk County, Florida, Department of Health

92B

(hereinafter Department of Health) and complained about filthy restrooms at
the mine.
S. On April 7, 1978, Johnson was notified by his supervisor, Larry
Bradford, that the restrooms would be inspected and that Johnson should clean
them prior to the inspection.
6. On April 7, 1978, Gerald E. Harper, a sanitarian employed by the
Department of Health inspected the restrooms at the mine. During this inspection, he was accompanied by mine manager, Jim Calandra. Of the three restrooms inspected, two were found to be in satisfactory condition, the third
restroom was ordered closed, and minor violations were noted by the sanitarian.
During the course of the inspection, mine manager Jim Calandra made several
references to the person who filed the health complaint and stated, in
response to a question from the sanitarian, that he knew that Johnson filed
the complaint.
7. On April 10, 1978, Borden posted a notice that the position of machine
shop helper at the mine would be eliminated effective April 17, 1978. Johnson
and one other employee were the only employees classified as machine shop
helpers at the mine. Thereafter, Johnson claimed a temporary job for 1 week
as a recovery plant oiler but did not attempt to "roll" or "bump" into a
permanent job prior to the time of his discharge.
8. In late 1977, Johnson enrolled in a welding course. Borden was aware
of this fact and gave Johnson permission to practice welding at the mine after
working hours on his own time. Borden's superintendent, Richard Daniels, testified that Johnson was instructed that he could practice welding only when a
supervisor was present. Johnson testified that Superintendent Daniels only
instructed him that he should practice welding after his regular shift but not
on weekends when no one was present.
9"
At one of the two entrances to the mine property, there were gates
and a guard shack, Borden contracted with an independent security firm to
provide guard services at this entrance. Often, the guard shack was unoccupied. The other entrance to the mine property was unguarded. It was the
practice of miners employed at the mine to return to the mine property after
working hours and on weekends to go fishing on the mine property. It was not
the custom or practice of the miners to stop or sign in at the guard shack.
Fr
, miners would be accompanied by nonemployees during their fishing
expeditions,

10. On April 13, 1978, at approximately 7 p.m., Johnson returned to the
mine to practice welding, Upon entering the property, he bypassed the guard
shack and entered the unguarded entrance. Prior to this time, there had been
a heavy rain. When Johnson attempted to begin welding, he got an electrical
shock due to the wet floor conditions. He discontinued welding but decided
to clean out his lockers since he only had 1 more working day before he began
work at a different building at the mine.

930

11. The mine had no written rules or policies concerning the procedure
for checking out lockers, but Superintendent Daniels claimed that he and
Larry Bradford, Johnson's immediate supervisor, told Johnson and the other
machine shop helper not to remove tools until their lockers had been checked.
Johnson denied that he received such an instruction from Bradford or Daniels.
Neither Bradford nor the other machine shop helper testified at the hearing.
12. On Friday, Ap.ril 14, 1978, Superintendent Daniels notified Johnson
that he intended to check his locker before Johnson reported to his new
assignment as a recovery plant oiler. Johnson advised Daniels that he had
no tools in his locker since he took them home on the previous night.
13. On ~bnday, April 17, 1978, Superintendent Daniels called Joseph A.
Lang, industrial relations manager of Borden's Smith-Douglass Division, and
informed Lang that Johnson had violated his instructions and that something
should be done about it. A meeting to discuss the situation was scheduled
for the next day.
14. On Tuesday, April 18, 1978, a meeting was held at the mine with
the following in attendance: Joseph Lang, Richard Daniels, Larry Bradford,
Kenneth Snow--the Union shop steward at the mine, and Johnson. During this
meeting, Johnson conceded that he had removed certain tools--some belonging
to Borden and some of his own tools--from his locker on April 13, 1978.
Johnson denied receiving an instruction from Superintendent Daniels or
Supervisor Bradford that he have his locker checked out before removing
tools. Contrary to the assertions of Lang and Daniels, Johnson was not
asked to return the tools. At the conclusion of the meeting, Johnson was
given a Termination Notice signed by Daniels stating that he was "suspended
for 7 days to automatically end in termination on 4-26-78" for the following
reasons: "Unauthorized plant entry, unauthorized removal of tools and failure to follow specific instructions of Supervisor."

l5o Borden's employment and personnel records show that prior to
April 18~ 1978: (1) several employees were suspended, without being discharged, for up to 7 days for failure to follow instructions or insubordination, but only one employee was discharged for "gross insubordination"; (2)
several employees were discharged for theft of company property; and (3) no
oyees were subject to discipline for unauthorized plant entry or unauthorized removal of tools.
16. Johnson was unemployed from April 26, 1978 to August 7, 1978 when
he commenced employment at Church's Fried Chicken, Inc., at a salary of $175
per week.
17. Johnson paid Sun Personnel Services the sum of $951.33 for its
services in obtaining employment for Johnson at Church's Fried Chicken, Inc.
18. Johnson was employed at Church's Fried Chicken, Inc., until May
1979. Between May 1979, and February 1980, Johnson worked for three different employers as a grinder operator, a life insurance salesman, and a

931.

clerk. Since February 18, 1980, he has been employed by Piper Aircraft
Corporation. Johnson's current rate of pay at Piper Aircraft Corporation
is $5.68 per hour.
DISCUSSION
A.

Applicable Law and Contentions of the Parties

Section 105(c)(l) of the Act provides in pertinent part: "No person
shall discharge * * * any miner * * * because such miner * * * has filed or
made a complaint under or related to this Act * * * of an alleged danger or
safety or health violation * * *·" Recently, in Secretary of Labor on behalf
of David Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (October 14,
1980) (hereinafter Pasula), the Commission analyzed section 105(c) of the Act,
the legislative history of that section, and similar antiretaliation issues
arising under other Federal statutes. The Commission held as follows:
We hold that the complainant has established a prima
facie case of a violation of Section 105(c)(l) if a preponderance of the evidence proves (1) that he engaged in a
protected activity, and (2) that the adverse action was
motivated in any part by the protected activity. On these
issues the complainant must bear the ultimate burden of
persuasion. The employer may affirmatively defend, however,
by proving by a preponderance of all the evidence that,
although part of his motive was unlawful, (1) he was also
motivated by the miner's unprotected activities, and (2)
that he would have taken adverse action against the miner
in any event
the unprotected activities alone. On these
issues, the employer must bear the ultimate burden of persuasion. It is not sufficient for the employer to show that
the miner deserved to have been fired for engaging in the
unprotected activity; if the unprotected conduct did not
originally concern the employer enough to have resulted in
the same adverse action, we will not consider it. The
employer must show that he did in fact consider the employee
deserving of discipline for engaging in the unprotected
activity alone and that he would have disciplined him in
any evento Ido at 2799-28000 [Emphasis in original.]
MSHA, on behalf of Johnson, contends_that Johnson was discharged by
Borden because of his complaints to Borden and the Department of Health concerning filthy restrooms at the mine. Complainant further asserts that
Bordenvs stated reasons for discharging Johnson are a pretext to conceal an
unlawful motive. Johnson claims that he is entitled to reinstatement, back
pay, and other consequential damages.
Borden asserts that Johnson did not establish a prima facie case because
of the following: (1) his complaint to the Department of Health about filthy
restrooms is not protected activity under section lOS(c)(l) of the Act;

932

(2) he did not establish that his discharge "was motivated in any part by the
alleged protected activity"; (3) Borden had a "legal and rational basis to
discharge Mr. Johnson", i.e., unauthorized plant entry, unauthorized removal
of tools, and failure to-f-;;-llow specific instructions of supervisor; and
(4) Johnson is not entitled to the remedies he seeks.
B.

Did Johnson Engage in Protected Activity

Johnson asserts that he complained to Borden about the filthy and
unhealthful conditions of the restrooms at the mine and, when no action was
taken by Borden, he called the Department of Health about this complaint.
Borden contends that Johnson did not intend to exercise his statutory right
under section lOS(c)(l) of the Act and, hence, this ·was not activity protected
under the law.
It should first be noted that sanitary toilet facilities are the subject
of a mandatory MSHA regulation applicable to metal and nonmetallic open-pit
mines. 30 C.F.R. § 55.20-8(b) provides in pertinent part: "(Toilet) facilities shall be kept clean and sanitary.n Thus, I find that a complaint about
the unclean and unsanitary toilet facilities is activity protected under section lOS(c)(l) of the Act. Furthermore, it matters not that the complaint
was made to the Department of Health as opposed to MSHA. The fact is that
the complaint is a health complaint which constitutes protected activity.
Borden is unable to cite any authority to support its contention that a
miner must establish that he intended to invoke his statutory rights at the
time he made his complaint. Where the miner establishes that he did, in fact,
engage in protected activity under section 105(c)(l) of the Act, I find that
there is no additional requirement that the miner establish an intent to
invoke the statutory rights.
I conclude that Johnson has established that he engaged in protected
activity pursuant to section 105(c)(l) of the Act in connection with his
complaint about unsanitary toilet facililties at the mine.
C.

Was Johnson's Discharge Motivated in Any Part by His Protected Activity

On the issue of Borden's alleged unlawful motivation for Johnson's discharge, MSHA and Johnson presented no direct evidence. However, they assert
that Borden was aware of Johnson's complaint to the Department of Health;
Johnson was identified as the complainer; and shortly thereafter Johnson was
discharged. All of the relevant events occurred in April 1978, as follows:
April 4--Johnson complained to Department of Health; April 7--Department of
Health inspected the mine and ordered corrections and repairs; April 14--Final
inspection by the Department of Health finding violations to be abated; and
April 18--Johnson was suspended with intent to discharge. Although not
articulated as such, Complainant apparently contends that the above circumstances give rise to an inference of unlawful motivation sufficient to
establish a prima facie case.

Borden contends that Complainant has failed to establish a prima f acie
case because he presented no evidence "that the adverse action was motivated
in any part by the alleged protected activity." Moreover, Borden asserts
that the testimony of its management employees who made the determination to
discharge Johnson--Superintendent Daniels and Industrial Relations Manager
Lang--establish that neither of them was aware of the fact that Johnson made
the complaint to the Department of Health until long after Johnson was
discharged.
The first issue to be resolved is whether Borden was aware of the fact
that Johnson made the complaint to the Department of Health. Department of
Health sanitarian Gerald Harper testified that he performed the inspections
in question. During the initial inspection on April 7, 1979, he was accompanied by mine manager Jim Calandra. Harper stated: "On the way back,
Calandra made references to the person who filed the health complaint saying
he was in the bargaining unit but not in the Union * * *· I then asked him
if he knew
who filed the complaint and he said Johnson did." (Exh. G-6-E)
\
Jim Calandra did not testify at the hearing.
Johnson testified that his supervisor, Larry Bradford, told him prior to
the initial inspection by the Department of Health, that since he was concerned about clean toilet facilities, he should clean them himself. Larry
Bradford was also present at the meeting when Johnson was suspended but he
did not testify at the hearing.
While Joseph Lang may have been unaware of the fact that Johnson initiated the health complaint, it is inconceivable that Superintendent Daniels
was unaware of it since both of the other supervisors of the mine had such
knowledge. Curiously, these two supervisors did not testify at the hearing.
Superintendent Daniels' testimony, that he had no knowledge of Johnson's complaint concerning the unsanitary toilet facilities, is rejected. On this
issue, I find that Johnson's testimony, concerning Superintendent Daniels 1
statements admitting knowledge of Johnson's complaint prior to his discharge,
is more credible. Moreover, Johnson's other evidence corroborating Borden's
knowledge of his complaint was not rebutted by Borden. Thus, I conclude that
Borden was aware of the fact that Johnson made the complaint to the
Department of Health.
Turning next to the question of the alleged unlawful motivation of
Borden in discharging Johnson, I find that the sequence of events is relevant. Johnson worked for Borden for 4-1/2 years prior to April 1978, without
any disciplinary action being taken against him. On April 4, Johnson filed
his health complaint. On April 7, because of Johnson's concern about the
toilet facilities, he was ordered to clean them prior to their inspection.
Upon completion of the inspection on April 7, Borden's mine manager Jim
Calandra expressed a personal animus towards Johnson as set forth above. On
April 10, Johnson's job was abolished or terminated. On April 14, the final
inspection by the Health Department took place and Johnson was questioned
about unauthorized plant entry and unauthorized removal of tools. On
April 18, Johnson was called to. a meeting and suspended with an intent to

934

discharge. I conclude that these circumstances give rise to an inference
that Johnson's discharge was motivated by his protected activity. Therefore,
the preponderance of the evidence establishes a prima facie case of violation
of section lOS(c)(l) of the Act.
D.

Did Borden Establish a Legitimate Reason for Johnson's Discharge

Under the standard announced by the Commission in Pasula, supra, once
the Complainant establishes a prima facie case of violation of section
105(c)(l) of the Act, Borden may affirmatively defend by proving by a preponderance of the evidence that its decision to discharge Johnson was also motivated by his unprotected activities and that it would have discharged him for
the unprotected activities alone. In this regard, Borden asserts that Johnson
engaged in serious misconduct--unauthorized plant entry, unauthorized removal
of tools, and failure to follow specific instructions of supervisors--which
constitutes a legal and rational basis for his discharge. Thus, it is necessary to examine and analyze, individually and cumulatively, these contentions
by Borden.
The issue of Johnson's alleged unauthorized plant entry on April 13,
involves the limits of Johnson's privilege to use the Borden facilities to
practice welding after regular working hours. The evidence establishes that
Johnson enrolled in a welding course in 1977 and Borden was aware of this
fact. Johnson asserts that he was initially given permission to use Borden's
equipment and facilities to practice welding in connection with this course.
In late 1977, Superintendent Daniels and Johnson discussed the terms under
which Johnson would be permitted to practice welding. Apparently, there
were no witnesses to this conversation and nothing was reduced to writing.
Superintendent Daniels testified that he instructed Johnson that he was only
permitted on the premises if a supervisor was present or the plant was in
operation. Johnson testified that the only limitation on his access to the
plant was that Johnson could not practice welding on weekends when no one was
there.
At the hearing, there was much ado about security at this mine. Suffice
it to say that I find that during the period in question, Borden failed to
establish that Johnson was required to check in with the guard or that he
attempted to conceal his entry. The evidence also establishes that security
was lax and it was common practice for miners to enter the site after regular
hours, sometimes accompanied by nonemployees, for the purpose of fishing on
waters within Borden's property.
In any event, Superintendent Daniels and Industrial Relations :Manager
Lang concede that no employee had ever been disciplined for unauthorized
plant entry before and that even by their version of this incident, Johnson's
unauthorized plant entry, standing alone, would not merit more than a short
suspension. Therefore, I find that Johnson's alleged unauthorized plant
entry, even if true, would not justify his discharge.

Borden's contentions concerning Johnson's alleged unauthorized removal
of tools and failure to follow specific instructions of his supervisor are
interrelated. Superintendent Daniels contends that both he and Johnson's
supervisor, Larry Bradford, told Johnson that he was not to remove his tools
until his lockers had been checked out. Daniels cannot recall the date of
his instruction to Johnson but thinks he gave this instruction on Tuesday or
Wednesday, April 11 or 12. Again, supervisor Larry Bradford did not testify.
Johnson claims that neither Daniels nor Bradford gave him any instruction
concerning the removal of his tools prior to April 14. In any event, Johnson
conceded that when he went to the mine during the evening of April 13 to practice welding, he also removed some of his own tools along with welding tools
belonging to Borden. Johnson's stated reason for the removal of the welding
tools was that his job in this location was to terminate the following day
and that he was to begin a temporary assignment for a period of 1 week
beginning on Monday, April 17. Although Borden has established a record of
disciplining other employees previously for theft of its property, it never
accused Johnson of theft. Moreover, while Borden asserts that it ordered
Johnson to return its tools on several occasions, the evidence fails to support this claim. Johnson denies that he was ever asked to return the tools.
Kenneth Snow, the Union shop steward and a witness called by Borden, testified that he attended the meeting of April 18 at which Johnson was suspended,
but could not recall Johnson being asked to return the tools. To this date,
almost 3 years after the incident in question, Borden has taken no action to
retrieve the tools in question.
Although Borden contended that it was standard practice that employees'
lockers had to be checked before they were reassigned to another site, the
evidence again fails to support this claim. Borden had no written rule or
policy concerning the removal of property from miners' lockers. The evidence fails to support Borden's contention that such a verbal rule or practice was enforced. Borden has never alleged that Johnson committed theft in
taking the toolso The evidence fails to establish that Borden at any time
requested the return of the tools. The evidence does not establish that
Johnson violated a supervisor's instruction and the testimony of Superintendent Daniels to the contrary is rejected because it is not credible. In
short, the evidence shows that Borden's claims concerning the unauthorized
removal of tools and failure to follow specific instructions of the supervisor are a pretext to conceal its unlawful motive of discharging Johnson
in retaliation for his complaint to the Department of Health. Borden has
failed to establish its affirmative defense. Since Borden failed to establish its affirmative defense, Complainant has sustained his complaint of
discharge in violation of section 105(c)(l) of the Act.
E.

Award of

Section 105(c)(2) of the Act provides in pertinent part that if the
charges are sustained, Complainant shall be granted such relief as is
appropriate "including but not limited to, the rehiring or reinstatement of
the miner to his former position with back pay and interest." The evidence
of record establishes that the mine in controversy was closed by Borden in

(.) I~ I

v0tl

late 1978. On August 1, 1980, Borden sold all of its remaining mines to Amax
Phosphate, Inc. The terms of the agreement between Borden and Amax Phosphate,
Inc.,. are not in the record. However, I note that the record establishes
that all employees of Borden on the date of the sale were automatically
transferred to Amax Phosphate, Inc. In an analogous case, the Commission
ordered a successor operator to reinstate an employee who was unlawfully discharged in violation of section llO(b)(l) of the Federal Coal Mine Health
and Safety Act of 1969. See Glenn Munsey v. Smitty Baker Coal Company, Inc.,
2 FMSHRC 3463 (December 4, 1980). In any event, Borden is ordered to rehire
and reinstate Johnson to his former position. If Borden is unable to comply
with this order, the parties may apply to the Commission for additional
relief. Although Johnson claims that he wishes to be rehired and reinstated
by Borden, there is no explanation in the record for MSHA's failure to seek
an order of temporary reinstatement for him pursuant to section 105(c)(2) of
the Act. Moreover, since Johnson is presently employed at Piper Aircraft
Corporation at wages higher than he earned at Borden, there is some question
whether he truly is seeking to be rehired and reinstated. For the foregoing
reasons, Johnson shall notify Borden within 15 days after the date on which
this decision becomes final, whether he will accept reinstatement to his
former position at Borden. A failure of Johnson to notify Borden within the
above period will constitute a waiver or forfeiture of Johnson's right to be
rehired and reinstated.
Turning to the question of back pay, the evidence establishes that
Johnson was unemployed from April 26, 1978, until August 7, 1978. I find
that Johnson's rate of pay would have been $4.58 per hour between April 26,
1978, and June 30, 1978. His rate of pay, pursuant to the agreement between
Borden and the Union would have been $4.83 per hour beginning on July 1,
1978. I find that Johnson lost 47 days' wages at 8 hours per day at $4.58
per hour and 25 days' wages at 8 hours per day at $4.83 per hour. Therefore,
Johnson is entitled to an award of $2,688.08 for the period during which he
was unemployed following his discharge. Exhibit G-15, which shows the wages
paid to the recovery plant oiler during Johnson's period of unemployment, is
received in evidence over Borden's objection. I find, however, that this
document is entitled to little weight because of Complainant's failure to
establish that he would have held this position during his period of
unemployment.
On August 7, 1978, Johnson accepted a job paying $175 per week. While
his base pay at Borden would have been approximately $18 per week more,
Johnson was vague concerning increases in his wages. He conceded that he
was earning approximately $195 per week at times and at other times was
earning a commission of approximately $100 per week. Thereafter, Johnson
changed jobs frequently. The evidence presented by Complainant concerning
his claim for back pay after August 7, 1978, is speculative and insufficient
to establish any valid claim. Therefore, the claim for back pay after
August 7, 1978, is denied.
After being discharged by Borden, Johnson attempted to find other
employment. Since he was unsuccessful, he contracted with Sun Personnel

Services, Inc., for assistance in finding employment. When the employment
agency located a job for Johnson, he paid a fee of $951.33 for its services.
Borden argues that this fee should be disallowed because Johnson failed to
exhaust 11 job opportunities available to (him) without outside paid help"
and "the fee is not for comparable employment but for a complete change of
career." Borden submits no authority in support of these contentions and
they are rejected. I find that this employment agency fee is the type of
consequential damages which is authorized by section 105(c)(2) of the Act.
Complainant is awarded the additional sum of $951.33 with interest at 6 percent per annum from July 3, 1978.
Johnson also seeks reimbursement of $20 paid by him for tape recordings
of his unemployment compensation hearing. Johnson failed to establish a valid
reason for the need for these tape recordings as a reimbursable item of consequential damages. The claim for $20 for tape recordings of the unemployment
compensation hearing is denied.
Finally, Borden is required to expunge all references to Johnson's discharge from his employment records.

CONCLUSIONS OF LAW
1. At all times relevant to this decision, Johnson and Borden were subject to the provisions of the Act.
2. This Administrative Law Judge has jurisdiction over the parties and
subject matter of this proceeding.
3. On April 4, 1978, Complainant Johnson engaged in the following
activity which is protected under section 105(c)(l): Telephone call to the
Department of Health complaining about filthy restrooms at Borden's mine.
4o Complainant Johnson established a prima facie case of a violation of
section lOS(c)(l) of the Act because he established by a preponderance of the
evidence that he engaged in a protected activity and that he was discharged
under circumstances which give rise to an inference that the discharge was
motivated by the protected activity.
So
Borden's justification for discharging Complainant--unauthorized
plant entry, unauthorized removal of tools, and failure to follow specific
instructions of the supervisor--is a pretext to conceal the true reason for
Complainant's dischargeo

6. Borden failed to establish that it would have discharged Complainant
for the unprotected activities cited in the Notice of Termination.
7. Complainant William Johnson was discharged by Borden in violation of
section 105(c)(l) of the Act.
8. Complainant Johnson shall be rehired and reinstated with full
seniority rights.

U38

9. During the period beginning on April 26, 1978, and ending on
August 7, 1978, Complainant would have earned $4.58 per hour until July 1,
1978, and $4.83 per hour thereafter for 40 hours a week for a total of
$2,688.08. Complainant has failed to establish his claim for back pay subsequent to August 7, 1978. Complainant is entitled to an award of $2,688.08 as
back pay plus interest at the rate of 6 percent per annum from the dates
such payments were due to the date such payment is made.
10. Complainant is entitled to an additional sum of $951.33, the amount
paid to Sun Personnel Services, Inc., on July 3, 1978, for services in
obtaining employment at Church's Fried Chicken, Inc., commencing on August 7,
1978. Complainant is also entitled to interest on this sum at the rate of
6 percent per annum from July 3, 1978 to the date such payment is made.
11. Complainant has failed to establish entitlement to an award of $20
for obtaining recordings of his unemployment compensation hearing.
12. MSHA failed to follow the procedures concerning proposed assessment
of a civil penalty as set forth in Commission Rule of Procedure 25, 29 C.F.R.
§ 2700.25 and, therefore, the proposed assessment of a civil penalty is
severed from this proceeding and remanded to MSHA for further proceedings.
ORDER
WHEREFORE, IT IS ORDERED that Complainant's complaint of discharge is
SUSTAINED and Complainant shall be rehired and reinstated with full seniority
rights provided that he notifies Borden of his desire to be rehired and reinstated within 15 days after this decision becomes final.
IT IS FURTHER ORDERED that Borden shall pay to Complainant the following
sums: (1) $2~688.08 for back pay plus interest at the rate of 6 percent per
annum from the dates such payments were due to the date payment is made; and
(2) $951.33 for an employment service fee paid by Complainant in connection
with subsequent employment, plus interest at the rate of 6 percent per annum
from July 3, 1978, to the date payment is made.
IT IS FURTHER ORDERED that Borden shall expunge all references to Complainant 1 s discharge from his employment records.

James A. Laurenson, Judge
/

Distribution by Certified Hail:

(

/J

;

Shaka M. Shedeke, Esq., Office of-the Solicitor, U.S. Department of Labor,
1371 Peachtree Street, NE., Atlanta, GA 30309
William R. Neale, Esq., Associate Corporate Labor Counsel, Borden, Inc.,
180 East Broad Street, Columbus OH 43215

939

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

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

)

v.
JET ASPHALT AND ROCK COMPANY, INC.,
Respondent.

,.4 , .

CIVIL PENALTY PROCEEDING

)

)
)
)
)

Petitioner,

•

)
)
)
)

DOCKET NO. CENT 79-6-M
ASSESSMENT NO. 03-00401-05002
DOCKET NO. DENV 79-505-PM
ASSESSMENT NO. 03-00401-05001
MINE:

Hampton Pit and Plant

DECISION
Appearances:
Bobbie J. Gannaway, Esq., Office of the Solicitor
United States Department of Labor, Dallas, Texas,
for the Petitioner .
Don Dodson,

Before:

. , El Dorado, Arkansas,
for the Respondent.

Judge John J. Morris

Pursuant to notice, the above cases were called for a hearing on the
merits on January 13, 1981 in Little Rock, Arkansas. After the completion
of the evidentiary
and after the
waived closing arguments
and the filing of post trial briefs, I rendered a bench decision. After
t of the
an order was entered correcting minor errors in
the bench decision. The decision, as amended, is as follows:
JURISDICTION
The parties have stipulated that the Federal Mine Safety and Health
Review Commission has jurisdiction to hear and determine this cause.
PRELIMINARY ISSUES
Two preliminary issues are raised by the Respondent,and they are:
1.

Lack of a search warrant and

2.

Harassment of Respondent by Federal Mine Safety
and Health Inspectors.

I rule both of these issues against the Respondent.

940

Concerning the search warrant, the facts are clear in the case that the
inspector did not have a search warrant, and I find that a search warrant is
not necessary under existing law. The type of operation as described here by
the witnesses is a gravel operation in combination with an asphalt plant.
The weight of authority in the United States holds that a warrantless inspection
procedure is authorized by 30 U.S.C. 813 and that such a procedure has been
upheld in several of the Circuit Court of Appeals.
These cases are Marshall vs. Sink, 614 F. 2d 37 (4th Cir. 1980); Marshall
vs. Texoline Co. 612 F. 2d 935 (5th Cir. 1980); Marshall vs.Nolichuckey Sand
Company, Inc.,
F. 2d 693 (6th Cir. 1979), cert. denied,
.S.
,
100 S. Ct. 1835, 64 L. Ed. 2d 261 (1980); Marshall vs. Stoudt s Fer~y Preparation
Company, 602 F. 2d 589 (3rd Cir. 1979), cert. denied, 444 U.S. 1815, 100 S. Ct.
664, 62 L.· Ed. 2d 644 (1980); also, Marshall vs. Cedar Lake Sand and Gravel
Company, 480 F. Supp. 171 (E.D. Wis. 1979); Marshall vs. Donofrio, 465 F. Supp
838 (E.D. Pa. 1978), aff'd without opinion, 605 F. 2d 1196 (3rd Cir. 1979), cert.
denied,
U.S.
, 100 S. Ct. 1067, 62 L. Ed, 2d 787 (1980); cf.,
Youghiogheny and Ohio Coal Company vs. Morton, 364 F. Supp. 45 (S.D. Ohio 1973).
These decisions have generally examined the 1977 Federal Mine Safety and Health
Act under the standards established for judging the constitutionality of
warrantless administrative inspections which are set forth in the Supreme Court
decision of Marshall vs. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed.
2d 305 (1978).
A contrary view that would support the Respondent's claim that a warrant
is required is set forth in the case of Marshall vs. Wait 628 F. 2d 1255, which
was a case decided by the 9th Circuit Court o
s in 1980; in fact,
September 29, 1980. I have carefully read the Wait Case and, to me, it holds
that an operation involving the husband and wife, or a very small operation, is
not within the terms of a pervasively regulated industry and, therefore, a search
warrant is required. I distinguish Marshall vs. Wait from this case and, as
the parties know, we're not in the
,
we're in the 8th United
States Circuit, or the United States Court of Appeals, and to my knowledge
they have not ruled on this issue. It may well be that this will be the case
that will possibly decide the case for the 8th Circuit if it goes up on appeal.
In any event, they have my opinion and the facts before them that the inspector
did not have a search warrant and they'll have a full record upon which to
decide the issue.
The second preliminary issue raised
the Respondent is that there was
an undue harassment, or an illegal harassment of the Respondent by the federal
inspectors. I also rule this point against the Respondent. At best, this
would be an affirmative defense because it would be particularly within the
knowledge of the Respondent because he might well be do
business with
different inspectors at different plants. The best that the uncontroverted
evidence shows is that inspectors do come to inspect these plants and they
contact the superintendent, and they proceed and inspect the plants and sometimes as much as a full day is involved in these inspections. Each time,

B4J

some inspectors do find something different and, naturally, business can be
disrupted by these inspections. While I find that this is certainly an
inconvenience to a business and to the Respondent particularly, I do not find
that this constitutes, under law, an harassment of an operator that is subject
to the Act. Further, the evidence fails to establish that the inspections by
the Federal Mine Safety and Health Administration have been excessive in view
of the fact that they are charged, by the Congress, with making certain annual
inspections as the inspector testified to in this case.
For these reasons I rule both of these preliminary issues against the
Respondent.
Case No. CENT 79-6-M alleges a violation of several regulations.
ISSUES
The issues are did these violations occur and if they did occur, what
penalties, if any, are appropriate.
Citation 162903. This citation alleges a violation of 30 CFR 56.11-1.
The initials, the "CFR", of course, stand for the Code of Federal Regulations
which is a publication published, in part, on behalf of the United States
Government. The citation of 30 CFR 56.11-1 provides as follows:
Mandatory.

Safe means of access shall be provided
and maintained to all working places.

I find from the uncontroverted evidence that there existed on this work
site a rusted and deteriorated piece of pipe. The pipe was currently one of
six braces that holds a crusher and a shaker, or did at one time. Of preliminary
importance is the fact that I do not find that this pipe held anything or, by
itself, provided any m.eans of access to anything. It was merely on the work
site and not in use, The way I read the regulation, anything unsafe must
necessarily involve a means of access because this was the very term used in
the standard. In view of the fact that there was no means of access involved,
I consider that there's no violation of the standard. Accordingly,
Citation 162903 should be vacated, together with all proposed civil penalties.
Citation 164032. This citation alleges a violation of 30 CFR 56.14-1
which involves a drive shaft on the pump as described by the witnesses in the
evidence. The standard itself provides as follows:
Mandatory.

Gears~ sprockets; chains; drive, head, tail,
and take-up pulleys; fly whe~ls; couplings,
shafts; saw blades; fan inlets; and similar
exposed moving machine parts which may be
contacted by persons, and which may cause
injury to persons, shall be guarded.

I find from the facts here that there were in fact unguarded tail pulleys
and, as the compliance officer testified, there were workers in the area. Based
on this, I find that the government has made a prima facie case, but I'm more
persuaded by the Respondent's evidence testified to by its superintendent and
foreman with their more detailed explanation of the position of the workers in
relation to the exposed equipment; particularly, the workers are some, in one
instance, 3 to 3-1/2 feet away from the exposed belt. Also, the witness testified
that if a man is working on the equipment itself, the pump is shut down while
that work is carried on. In short, I find a lack of employee exposure to the
hazard involved here. In a case of this type where the regulation itself provides
that equipment must be guarded where it may be contacted by persons or where a
person may be injured, the government has an obligation to show a general
factual situation which shows that the condition that exists is generally within
the regulation itself and must further show that employees, particularly workers
of the Respondent, were exposed to a hazard.
Inasmuch as I find no exposure here, I intend to vacate Citation 164032,
together with all proposed penalties therefor.
Citation 164033. This citation alleges the violation of 30 CFR 56.9-11.
This relates to the cab windows in the equipment. The citation provides as
follows:
Mandatory.

Cab windows shall be of safety glass or
equivalent, in good condition and shall
be kept clean.

I find that the facts are essentially uncontroverted in this case. The
cab window was, in fact, broken, and the inspector testified that the operator's
vision would be impaired from the sun striking the window. He was in the
equipment and made this observation. Of course, if the vision of the operator
is impaired an injury could result. The Respondent does not deny this condition
of the broken window nor the sun possibly impairing the operator's vision, and
the standard itself provides that, and it is directed at the windows, that they
shall be kept in good condition. I take it that the standard means that the
broken window, in combination with the possible distortion of the operator's
vision, is sufficient to constitute a violation of the regulation.
Accordingly, based on this conclusion, I intend to affirm Citation 164033
and, in view of the stipulation as to the penalties in the case as set forth
at the beginning of the trial, and in view of the statutory criteria for
assessing penalties as set forth in 30 U.S. Code 820(i), I deem that the
penalty proposed by the Petitoner in the amount of $52.00 is appropriate.

Citation 164034 and 164044. These citations allege separate violations
of 30 CFR 56.5-50. The cited regulation provides as follows:
Mandatory.

(a) No employee shall be permitted an exposure
to noise in excess of that specified in the table
below. Noise level measurements shall be made
using a sound level meter meeting specifications
of type 2 meters contained in American National
Standards Institute (ANSI) Standard Sl.4-1971,
"General Purpose Sound Level Meters,n approved
April 27, 1971, which is hereby incorporated by
reference and made a part hereof, or by dosimeter
with similar accuracy. This publication may be
obtained from the American National Standards
Institute, Inc., 1430 Broadway, New York, New York
10018, or may be examined in any Metal and
Nonmetal Mine Health and Safety District or
Subdistrict Office of the Mine Safety and Health
Administration.

Duration per day,
hours of exposure

Sound level
dBA, slow response
90
92
95
97
100
102
105

8

6
4
3
2
1-1/2.
1
1/2
1/4 or less

110

115

No exposure shall exceed 115 dBA. Impact
or impulsive noises shall not exceed 140 dB,
peak sound pressure level.

944

(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 of the table
I find here from the facts that an 8-hour dosimeter test was conducted
at two different places in this plant. I find that the drag line operator
was exposed to an amount of 448 percent in excess of the limits permitted by
the regulation, and I further find that the front-end loader operator was
exposed to approximately 334 percent in excess of the permissible limits. The
government, accordingly, has made a case on these issues.
The defense here, as I see it, centers on the abatement methods used,
whether the equipment came properly equipped from the manufacturer, and it
also touches somewhat on the use of ear plugs. None of the defenses offered
in this case prevail as a legal defense. Whatever abatement methods were
undertaken, whether the door reduced the noise level or not, is not relevant.
Apparently, -- and I do find from the evidence -- the closure of the door
on the equipment did reduce the exposure to the operator within permissible
limits. However, abatement is a matter that goes to remedying a violation,
and it doesn't go to the violation itself.
There's evidence here that ear plugs were used by the operator. Whether
they were or were not used or whether they did or did not reduce the exposure
to the operator is not a defense in the case because the way the standard reads,
it provides that when there is exposure, then feasible administrative or
engineering controls shall be used. Only if such controls are used and fail
or if the controls are not feasible does personal protective equipment then
come into the picture. That's not saying that personal protective equipment
should not be used. What I'm trying to say is that the first thing to be considered
is administrative or engineering controls.
In view of the fact that I find a violation of the noise standards, Citations
164034 and 164044 should be affirmed. In view of the statutory penalty provisions
which the Congress set forth in 30 U.S. Code 820(i), I consider that the proposed
penalty of $60 for each of the citations involving the noise violation should be
affirmed.
Citation 164041 and 164042.
These citations involve violations of 30 CFR 56.14-1, which has been cited
under Citation 164032.

945

I find from the facts that the tail pulley on the finish belt, as described
by the witnesses, and the cone crusher were in fact unguarded. However, I find
from the evidence that the workers have no access to these hazards. To reach
the cone crusher, the worker would apparently have to lie on the ground or get
on his hands and knees to reach it and, as the witness described, a worker would
have to reach over to reach another pinch point. I further find that workers
could not reach thepinch point during the time that they were removing any
material that might be sloughed off of the tail pulley and if there is no
employee exposure, then the citations should be vacated.
As previously indicated, the Petitioner must prove the facts supportive
of a violation as well as employee exposure.
I've made several credibility determinations, as are apparent in this
case, involving the testimony of the MSHA inspector and the testimony of the
company superintendent and foreman particularly as to the unguarded equipment.
I have credited the company's representatives with more knowledge of what
happens on the work site than I have credited the inspector because the company
representatives are there every day and they know the general status of the
equipment, but, particularly, they are cognizant of what their employees do in
relation to that equipment, and what they don't do. So any credibility determinations on that issue are resolved in favor of the company employees. Not
that I have generally discredited the government's representation, but the
company employees are there on the job, and I credited them with more knowledge
of what the workers do rather than the inspector who made only a short visit
to the work site.
Citations 164041 and 164042 and all proposed penalties should be vacated.
Citation 164043.
This citation alleges violation of 30 CFR 56.9-87.
The cited standard provides:
Mandatory.

Heavy duty mobile equipment shall be
provided with audible warning devices.
When the operator of such equipment
has an obstructed view to the rear,
the equipment shall have either an
automatic reverse signal alarm which
is audible above the surrounding noise
level or an observer to signal when
it is safe to back up.

I find from the facts in this case that the equipment here moves backwards
and forwards some 350 to 400 times a day and that there are workers in the

!J4b

vicinity. The uncontroverted evidence further shows that this equipment had
no back-up alarm.
The way I read the standard, the devices must be at least two. The standard
itself says, "with audible warning devices," devices being in the plural. Inasmuch
as there was no back-up alarm, it's clear, at least to me, that there is a
violation of the regulation.
It's my view that Citation 164043 should be affirmed and in reviewing again
the statutory criteria regarding assessment of a penalty, I deem that the proposed
penalty of $44.00 is appropriate.
The defense raised in this case seems to me to pivot on the issue of whether
the driver had an unobstructed view or did not have an unobstructed view to the
rear. The standard does not read that way. The first part of the standard reads:
Heavy duty, mobile equipment shall be provided with
audible warning devices.
From there you get into the obstructed view issues and things of that nature.
In short, I rule that the first paragraph requires an absolute duty for
equipment to have at least two audible warning devices and inasmuch as there was
none, I affirm that citation.
In the case of DENV 79-505-PM.
Citation 164031 alleges a violation of 30 CFR 56.9-22.
provides as follows:
Mandatory.

The citing standard

Berms or guards shall be provided
on the outer bank of elevated roadways.

I find here that the evidence is uncontroverted. The evidence all indicates
that there was a 4-foot-high -- let 1 s call it an elevation for the moment -- some
30 feet long and used by the front-end loader. The defense pivots on certain
issues, namely, whether or not this is an elevated roadway. That's one of the
defenses. I find that it is since it was in use by the front-end loader.
Further defense is that a 4-foot-high roadway is insufficient to constitute
a violation and I disagree. The standard itself says uelevated roadway." A
4-foot-high roadway, if the front-end loader should leave it, would certainly
flip it over as well as an 8-foot hi
It's just a matter of degree.
The defense is that the proposed method of abatement, namely, the hub-high
berm later installed after the citation was issued, was insufficient. Of course,
any method of abatement, again, does not relate to whether or not a violation

947

occurred. If in fact the Respondent believes the 4-foot-high berm is
insufficient, then it should be raised. I consider the testimony of the
inspector in this regard to again relate to the method of abatement and it
would not be relevant as far as whether or not a violation did in fact occur.
In view of this conclusion, I consider the Citation 164031 should be
affirmed and, in view of statutory criteria, the proposed penalty of $38.00
should be affirmed.
Based on the foregoing findings of fact, the conclusions of law enter
the following:
ORDER
Case No. CENT 79-6-M
1.

Citation 162903 and all penalties therefor are vacated.

2.

Citation 164032 and all penalties therefor are vacated.

3.

Citation 164033 is affirmed and the proposed penalty of $52.00
is affirmed.

4.

Citation 164034 is affirmed and the proposed penalty of $60.00
is affirmed.

5.

Citation 164041 and Citation 164042 are vacated together with all
proposed penalties therefor.

6.

Citation 164043 is affirmed and the proposed penalty of $44.00
is assessed.

7'

Citation 164044 is affirmed and the proposed penalty of $60.00
is assessed,

Case No, DENV 79-505-PM
1.

Citation 164031 is affirmed, together with the proposed civil
penalty of $38.00,
(BENCH DECISION CONCLUDED)
ORDER

The foregoing bench decision, as amended, is affirmed.

Law Judge

U48

Distribution:
Bobbie J. Gannaway, Esq.
Off ice of the Solicitor
United States Department of Labor
555 Griffin Square
Dallas, Texas 75202
Don B. Dodson, Esq.
Nolan, Alderson & Vicery
510 First National Bank Building
El Dorado, Arkansas 71730

949

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

)

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

)
)

CIVIL PENALTY PROCEEDINGS

)

Petitioner,

)
)
)
)
)

DOCKET NO. CENT 79-297 M
A/O No. 03-01425-05001
DOCKET NO. CENT 79-362-PM
A/O No. 03-01425-05002

JET ASPHALT AND ROCK COMPANY, INC.,)
)

Respondent.

MINE: Eagle Mills Pit & Plant

)
)

~~~~~~~~~~~~·~~~~~

DECISION
APPEARANCES:
Bobbie J. Gannaway, Esq.
Office of the Solicitor
United States Department of Labor
555 Griffin Square - Suite 501
Dallas, Texas 75202
For the Petitioner
Don B. Dodson, Esq.
Nolan, Alderson & Vicery
510 First National Bank Building
El Dorado, Arkansas 71730
For the Respondent
Before:

Judge John J. Morris

The Secretary of Labor, on behalf of the Mine Safety and Health
Administration (MSHA), charges that respondent Jet Asphalt and Rock Company
(JET), violated a safety regulation promulgated under the authority of the
Federal Mine Safety and Health Act, 30 U.S.C. § 801 ~seq.

950

Pursuant to notice, a hearing on the merits was held in Little Rock,
Arkansas on January 13, 1981.
'file parties waived post trial arguments and briefs.
ISSUES
The threshold issue is whether the Secretary's warrantless search
violates respondent's right to be free from unreasonable search and seizure
under the Fourth Amendment of the United States Constitution.
Secondary issues are whether the violation occurred, and, if so, what
penalty, if any, is appropriate.
CONSTITUTIONAL ISSUE
The respondent raised its objections to the search and seizure
conducted by the Secretary. 'file same arguments were entered in a case
involving the same part
Respondent reoffered
1 Docket NO. WEST 79-6-M.
those constitutional arguments in this case.
Before considering the constitutional issue it is necessary to review
the following pertinent facts: (1) the alleged violation of the Act involved
a mine that has products which enter commerce or has operations or products
which affect Commerce; (2) Jet Asphalt's Eagle Pit and Plant is a non-coal
operation that has over 10,000 but less than 20,000 annual hours worked; (3)
Jet Asphalt, the controlling company, had under 60,000 annual hours at all
times relevant to these proceedings (Tr. 4, 5).
Concerning the search warrant, the facts are clear that the inspector
did not have a search warrant; however, I find that a search warrant is not
necessary under existing law. The type of operation involved here is a
gravel operation in combination with an asphalt plant. The weight of
authority in the United States holds that a warrantless inspection procedure
is authorized by 30 U.S C. § 813. Such a procedure has been upheld in
several of the United States Circuit Courts of Appeals.
Tilese cases are Marshall v. Sink, 614 F. 2d 37 (4th Cir. 1980);
Marshall v. Texoline Co., 612 F.2d 935 (5th Cir. 1980); Marshall v.
Nolichuckey Sand Company, Inc., 606 F. 2d 693 (6th Cir.
, cert. denied,
U.S.
, 100 S. Ct. 1835, 64 L.Ed.2d 261 (1980); Marshaff v.
St:m:ilit's Ferry Preparation Company, 602 F. 2d 589 (3rd Cir. 1979), cert.
denied 444 U.S. 1815, 100 S. Ct, 665, 62 L.Ed. 2d 644 (1980); also-,~1 v. Cedar Lake Sand and Gravel Company 480 F. Supp. 171 (E.D. Wis.
1979); Marshall v. Donofrio, 465 F. Supp 838 (E.D. Pa. 1978), aff'd without
opinion, 605 F 2d 1196 (3rd Cir. 1979), cert. denied,
U. .
,
S. Ct. 1067, 62 L.Ed. 2d 787 (1980); cf., Youghioghenyaii"d-Ohio Coal Co-mpany
v. Morton, 364 F. Supp. 45 (S.D. Ohio 1973). These decisions have generally

U5.i

examined the 1977 Federal Mine Safety ;md Health Act under the standards
established for judging the constitutionality of warrantless administrative
inspections which are set forth in the Supreme Court decision, Marshall v.
Barlow's Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L.Ed. 2d 305 (1978).
A contrary view that would tend to support the Jet claim that a warrant
is required is set forth in the case of Marshall v. Wait. 628 F. 2d 1255,
which was decided by the 9th Circuit Court o
s on September 29, l %0.
I have carefully read Wait, and it holds that an operation involving the
husband and wife, or a very small operation, is not within the terms of a
pervasively regulated industry and, therefore, a search warrant was
required. Wait is against the weight of authority, and I distinguish it
from the case at bar in view of the size of respondent, Jet Asphalt. For
the foregoing reasons I overrule respondent's Fourth Amendment arguments.
CENT 79-297-M
CITATION 164055
The above citation alleges a violation of 30 C.F.R. 56.4-l(a) and
proposes a civil penalty of $36.00. At the hearing 3 without objection, the
Secretary amended his complaint to allege a violation of 30 C.F.R. 56.4-2 1
(Tr. 7-8).
FINDINGS OF FACT
1. MSHA inspector Calvin F. Hardway issued a citation because "no
smoking" s
had not been posted on a tank used to store fuel in the bed
of a Ford pickup (Tr. 9, 10).
2. 1be 85 gallon diesel fuel tank was located next to oxygen and
acetlyene bottles (Tr. 9-10, 16, 19).
3. Oxygen contributes to a fire or explosion hazard (Tr. 11).
4. Some diesel fuel had spilled onto the bed of the truck (Tr. 12).

The standard in contest provides as follows:
56.4-2 Mandatory. Signs warning against smoking and open flames shall be
posted so they can be readily seen in areas or places where fire or
explosion hazards exist.

.. -.·_ .,,,.
5. Because fuel had spilled from the tank, a person could set off a
fire with a lit cigarette (Tr. 14).
DISCUSSION
The standard, 30 C.F.R. 56.4-2, requires warning signs to be posted ...
where fire or explosion hazards exist. In this case diesel fuel had spilled
from the tank onto the bed of the truck. That spillage is sufficient to
constitute a fire or explosion hazard.
Jet's twofold contentions are that no fire hazard existed because
diesel fuel is not combustible. Jet further argued that a hazard did not
exist because the fuel was contained in a steel tank, much like an
automobile gas tank.
I find the combustibilty of diesel fuel is a matter of expert opinion.
The MSHA inspector was of the view that a hazard existed in that a fire or
explosion could result if a person threw a lit cigarette into the bed of the
truck. I accept his opinion.

Jet's second argument is that the situation here is akin to a person
smoking a cigarette while sitting in close proximity to an automobile
gasoline tank. Jet's argument is not persuavise. The facts here indicate
that some diesel fuel had spilled onto the bed of the truck (Tr. 12).
Jet's evidence does not counter the inspector's testimony in this regard.
I find that a fire hazard was created by conditions outside of the diesel
fuel tank. This hazard could also cause the fuel tank or oxygen and
acetlyene bottles to explode. The required signs were not posted in the
area. Accordingly, the citation should be affirmed.
The citation, according to inspector Hardway reflects findings for
negligence, good faith and gravity (Tr. 12). After reviewing these facts
and the stipulation concerning size and prior history of Jet (Tr. 4), I deem
the proposed penalty of $36.00 to be appropriate.
CONCLUSION
Based on the foregoing findings of fact I conclude that Citation 164055
and the proposed penalty therefor should be affirmed.
CENT 79-362-M
CITATION 164054
The above citation alleges a violation of 30 C.F.R. 56.11-1, and the
Secretary proposes a civil penalty of $56.00.
At the commencement of the hearing respondent stipulated that a
violation of the standard occurred (Tr. 67).
In view of the stipulation, I affirm Citation No. 164054. Hav
considered the necessary criteria, 30 U.S.C. § 820(i), I deem the proposed
penalty of $56.00 to be appropriate.

ORDER

Based on the foregoing findings of fact and conclusions of law I enter
the following order:

1. In CENT 79-297-M,
Citation 164055 and the proposed penalty
are affirmed.
2. In CENT 79-362-M,
Citation 164054 and the proposed penalty
theretor are affirmed.

·"~
~
.-a1'£,uL.
J tvo is
nistr'ative Law J

'·'
Distribution:
Bobbie J. Gannaway, Esq.
Office of the Solicitor
United States Department of Labor
555 Griffin Square - Suite 501
Dallas, Texas 75202
Don B. Dodson, Esq.
Nolan, Alderson & Vicery
510 First National Bank Building
El Dorado, Arkansas 71730

954

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 Al\l'D HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. KENT 80-255
Assessment Control
No. 15-11233-03007 V

v.
No. 5 Mine
BIG HILL COAL COMPAl'l'Y,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

George Drumming, Jr., Esq., Office of the Solicitor, U.S.
Department of Labor, for Petitioner;
Charles E. Lowe, Esq., Lowe, Lowe & Stamper, Pikeville,
Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

When the hearing in the above-entitled proceeding was convened on
December 10, 1980, in Pikeville, Kentucky, counsel for the parties moved
that a settlement agreement reached by the parties b~ approved. Counsel
for the parties thereafter discussed the six assessment criteria set forth
in section llO(i) of the Federal Mine Safety and Health Act of 1977 in
support of their settlement agreement under which respondent has agreed
to pay a penalty of $275 instead of the penalty of $500 proposed by the
Assessment Office.
It was stipulated
the parties that respondent is subject to the
provisions of the Act and that I have jurisdiction to approve the settlement (Tr. 3).
As to the criterion of the size of respondent's business, counsel for
the parties stated that respondent has three coal mines which produce about
175,000 tons annually. The No. 5 Mine involved in this proceeding produced
7,000 tons over a 6~month period and employed 11 miners. (Tr. 4;7). On the
basis of those facts, I find that respondent operates a small coal business.
With respect to the criterion of whether payment of penalties would
cause respondent to discontinue in business, it was stipulated that payment
of the settlement penalty of $275 will not adversely affect respondent's
ab
to continue in business (Tr. 5).
Counsel for MSHA stated that during the 24 months preceding the citing
of the single violation involved in this proceeding, respondent had been
cited for 72 prior alleged violations (Tr. 5). Those previous violations
did not include a prior violation of 30 C.F.R. § 75.306 which is involved in
this proceeding. It has been my practice to increase a penalty under the
criterion of history of previous violations only when a respondent's history

of previous violations shows that respondent has been previously cited for
the same violation which is before me in a given case. Therefore, I find
that the parties' failure to indicate any specific amount as being assessable under the criterion of history of previous violations is acceptable.
As to the criterion of whether respondent demonstrated a good faith
effort to achieve rapid compliance, the order shows that it was issued at
9:30 a.m. on July 13, 1978, and was terminated by 2:30 p.m. on the same
day. The order, of course, did not provide any time within which the
alleged violation was required to be abated, but the abatement was sufficiently rapid to warrant a finding that respondent demonstrated a normal
good faith effort to achieve compliance. Penalties are usually increased
or decreased under the criterion of good faith compliance only when there
is a lack of good faith compliance or an extraordinary effort to achieve
rapid compliance, respectively. Since there was normal compliance with
respect to the violation alleged in this proceeding, the settlement penalty
need not contain any amount expressly assessable under the criterion of
good faith abatement.
The remaining two criteria of negligence and gravity will hereinafter
be specifically evaluated in connection with consideration of the condition
or practice described in the inspector's order. Order No. 70479, here
involved, was issued on July 18, 1978, under section 105(d)(l) of the Act
citing respondent for a violation of 30 C.F.R. § 75.306 because a proper
record of the weekly ventilation examinations was not being kept. The withdrawal order was issued under the unwarrantable failure provisions (section
104(d)(l)) of the Act when the inspector was told that no anemometer or other
type of measuring device for measuring air velocity was kept at the mine.
The Assessment Office waived the penalty formula provided for under 29 C.F.R.
§ 100.3, and proposed a penalty of $500 based on narrative findings of fact.
A copy of the Assessment Office's findings is in the official file and those
findings indicate that the criterion of negligence was extensively relied
upon by the Assessment Office. Those findings indicate that the Assessment
Office considered the violation to have been the result of a high degree of
negligence because management is alleged to have known that the ventilation
examinations were not being made and the Assessment Off ice believed the
report made to the inspector to the effect that management had failed to
provide the mine foreman with an anemometer or other instrument for measuring
air velocity in the mine.
At the hearing, counsel for respondent explained that the alleged violation was not being contested because respondent's owner was ill and could
not attend the hearing (Tr. 7). If respondent's owner had appeared at the
hearing, he would have testified that an anemometer had been made available
and that respondent's management assumed that the mine foreman was making
ventilation examinations. Additionally, respondent's counsel stated that
the mine foreman who was responsible for making the ventilation examinations
had been discharged for failure to perform all of his obligations as a mine
foreman (Tr. 6).
If a hearing had been held, it is likely that respondent's owner would
have been able to show that his degree of negligence was much less than the

85h

degree of negligence assumed by the Assessment Office when it wrote its
narrative findings.
The Assessment Off ice found that the violation was serious because
failure to make the required examinations would have kept the miners
from knowing that the air velocity was sufficient to prevent possible
accumulations of methane and to carry away respirable dust. The inspector~s order and the findings of the Assessment Office are silent about
whether respondent had installed brattice curtains to within 10 feet of
the face at the time the order was written. Existence of curtains would
have been likely to provide adequate ventilation. Therefore, the violation
may or may not have been serious, but the Assessment Office is correct
in finding that respondent's mine foreman would not have known for certain
that the proper volume of air was being supplied at the last open crosscut
and working face apart from his making the proper examinations with an
anemometer.
I find that the settlement penalty of $275 should be approved because
the parties have shown that the degree of negligence was probably less than
it was thought to be by the Assessment Office, the degree of seriousness is
not known for certain, and a small operator is involved. Those criteria
support a finding that a penalty of $275 is reasonable in the circumstances.
WHEREFORE, for the reasons given above, it is ordered:
(A) The motion for approval of settlement is granted and the settlement agreement is approved.
(B) Pursuant to the settlement agreement, respondent, within 30 days
from the date of this decision, shall pay a penalty of $275.00 for the
violation of section 75.306 alleged in Order No. 70479 issued July 18s 1978s
under section 104(d)(l) of the Act.

~ <!.

9i&Jh-

Richard C. Steffey
Administrative 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)
Charles E. Lowe,
., Attorney for Big Hill Coal Company, Lowe, Lowe
& Stamper, P.O. Box 69, Pikeville, KY 41501 (Certified Mail)

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

April 15, 1981

UNITED MINE WORKERS OF AMERICA,
LOCAL UNION 9800,
Complainant

v.

Complaint of Discharge,
Discrimination, or Interference
Docket No. KENT 80-216-D

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

Peabody Coal, Riverview Mine

or
THOMAS DUPREE,
Respondents
DECISION
Appearances:

J. Davitt McAteer, Esq., Center for Law and Social Policy,
Washington, D.C., for Complainant Local Union No. 9800;
Thomas P. Piliero, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Respondent
Secretary of Labor;
Stuart A. Kirsch, Esq., American Federation of Government
Employees, Washington, DoCo, for Respondent Thomas Dupree.

Before:

Chief Administrative Law Judge James Ao Broderick

STATEMENT OF THE CASE
The complaint filed in this case alleges that the Mine Safety and Health
Administration (MSHA) or Thomas Dupree violated section lOS(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c), by threatening a lawsuit against Local Union 9800, United Mine Workers of America, in retaliation
for the local notifying MSHA of alleged irregularities in inspections at
Peabody Coal Companyis Riverview Mine. Respondent MSHA filed a motion to dismiss and a motion for summary decision on the ground that it is not a person
subject to section 105 of the Act. These contentions were rejected by an
order denying the motions issued on September 25, 1980. 2 FMSHRC 2680.
Pursuant to notice, a hearing was held on January 13 and 14, 1981, in
Evansville, Indiana.

Members of Local Union 9800 who testified for Complainant were Houston
Elmore, George Christian, Richard Embry, Charles Wilkins, Richard Maddox, Neil
Butterworth, and Randall Duncan. James Rowe and Thomas Gaston, officials of
District 23, United Mine Workers of America, also testified for Complainant.
Complainant called three additional witnesses who are officials in MSHA's
District 10 Office, Charles Dukes, William Craft, and Bobby Hill. Thomas
Dupree, an MSHA inspector and president of Local Union 3340 of the American
Federation of Government Employees (AFGE), testified on his own behalf.
Respondent MSHA called no witnesses.
The parties have filed briefs on the issues presented and, having considered them and the record as a whole, I make the following decision.
FINDINGS OF FACT
1. During the period in question, many Local Union 9800 members were
employed at Peabody Coal Company's Riverview Mine in Western Kentucky.
2. In August of 1979, officials of Local Union 9800 discovered that
there may have been irregularities in certain inspections at the Riverview
Mine conducted in late July of 1979 by MSHA inspectors. They concluded that
records indicating that coal-dust samples and environmental noise samples
had been taken were falsified and those samples had not, in fact, been taken.
3. The president and other officials and members of Local Union 9800
discussed their allegations with officials of MSHA's District 10 Office. They
were assured by those officials that the matter would be investigated and they
would be advised of any disciplinary action taken as a result.
4. By early December, 1979, members of Local Union 9800 decided that
the matter was not being handled to their satisfaction. Houston Elmore, president of the local~ then wrote a letter, dated December 2, 1979, to Joseph Cook,
MSHA 1 s Administrator for Coal Mine Safety and Health. The letter expressed
the local 1 s concern over the thoroughness of the investigation and went on to
state: "We now have reason to believe that the practice of falsifying federal
records and reports may be a widespread practice in MSHA District #10 and
accepted as a normal way of doing business." (Complainant's Exh. No. 1). The
letter was not mailed until early or mid-January 1980.
So Employees of MSHA District 10, including its inspectors, are represented by AFGE Local Union 3340, whose president is Thomas Dupree. A copy of
Elmore's letter became available to personnel in District 10 and was widely
discussed by the inspectors. Dupree informed the inspectors that he intended
to call the United Mine Workers' District 23 Office to see if district officials supported the above-quoted statement by Elmore.

6. On January 31, 1980, Dupree called Thomas Gaston, president of United
Mine Workers of America District 23 from the MSHA District 10 Office in
Madisonville, Kentucky. Dupree identified himself as a District 10 MSHA
inspector and as a representative of an employees' union at District 10. He

959

told Gaston that he thought the above-quoted statement might be defamatory
and intended to ask legal counsel whether, based on it, Elmore could be sued
for libel. Gaston informed Dupree that he generally supported the sentiments
expressed in the letter although he might not have phrased his criticism
quite the same way. He stated that he did not think the letter was libelous.
7. After the call, Dupree sent Elmore's letter to his superiors in the
AFGE with a note describing his constituency's distress over the quoted passage.
No further action was taken by the AFGE, Dupree, or MSHA with respect to a
lawsuit against Elmore or Local Union 9800, although Joseph Cook did respond
to Elmore's letter.
ISSUES J:./
1. Did t~e letter from Elmore to Cook dated December 2, 1979, constitute
activity protected under section lOS(c) of the Act?
2. Were Dupree's statements to Gaston during their phone conversation
of January 31, 1980, imputable to MSHA?
3. Were Dupree's statements to Gaston during the same phone conversation
unlawful under section lOS(c) of the Act?
STATUTORY PROVISION
Section lOS(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
t or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal .or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
miners at the coal or other mine of an alleged danger or
or health violation in a coal or other mine, or
because such miner, representative of miners or applicant for
1/ The complaint does not charge that the alleged falsification of records
and MSHA 1 s response thereto are unlawful, and I do not consider this an issue
in this case. MSHA and Dupree both assert that Local Union 9800 did not formally authorize or initiate these proceedings. I know of no rule of law
requiring such formal authorization. Officers and members of the local participated in the case. Counsel has appeared for the local, and there is a
strong presl.I!Ilption that he is authorized to do so. Bethlehem Steel Corporation
v. Deevers, 389 F.2d 44 (1968).

9GU

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.
DISCUSSION WITH ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.

The Letter from Elmore to Cook, December 2, 1979

Respondent Dupree argues that the letter from Elmore to Cook was not protected activity under the Act. Both Respondents argue that the letter written,
signed, and mailed by Houston Elmore, president of Local Union 9800, was not
the act of the local.
The Act gives unique responsibilities to miners and their representatives
in carrying out its provisions. Miner-representatives have the right to
accompany MSHA inspectors "for the purpose of aiding such inspection and to
participate in pre- or post-inspection conferences held at the mine." Miners
or their representatives have the right to an immediate inspection if they
notify the Secretary of an alleged health or safety violation or an imminent
danger. They may be entitled to an informal review by the Secretary for any
refusal to issue a citation with respect to any such alleged violation or
danger. I have found in this case that the alleged irregularities in the
MSHA inspection records were discovered by officials of Local Union 9800. I
have found that the president of the local and other officials discussed the
irregularities with MSHA officials. Clearly~ these were activities related
to safety in the mine and therefore were protected under the Act.
The letter in question was written because the local felt that MSHA was
not properly handling the case. There is no evidence and no suggestion
except in the arguments of counsel that Elmore wrote the letter because of a
matter personal to himself. It grew out of the union concern over safety in
the mine. Whether it was formally authorized by a membership meeting is
irrelevant. Elmore was the local president and is presumed to be authorized
to speak for the union in matters of union concern. I conclude that the
letter was the act of Complainant and that it was activity protected under
the Act.
B.

MSHA's Liability for Dupree's Conduct

Based upon the testimony of Dupree and Gaston, the parties to the conversation, Dupree did not state that he was speaking for MSHA. There is no
evidence that he was authorized, expressly or impliedly, to respond to the
letter on behalf of MSHA. The fact that he was an MSHA inspector and used
MSHA facilities hardly creates apparent authority, but even if it did, it was

expressly negated when he identified himself as "a representative of some
union that represented [MSHA inspectors]" (Tr. 398, 424). It is not clear,
furthermore, whether the doctrine of respondeat superior can be applied in
a case such as this. See Monell v. Department of Social Services, 436 U.S.
658, 692-694 (1978).
even if the doctrine applied, Dupree's conduct
involved herein cannot be attributed to MSHA. I find that Respondent MSHA
cannot be held liable as a principal for the statements of Dupree in the
telephone conversation in question.
C.

Did Dupree's Remarks Constitute A Violation of Section 105(c)?

My finding as to the content of the telephone call is contained in Finding of Fact No. 6. I reject Complainant's contention that Dupree threatened
Elmore or Local Union 9800. In deciding whether Dupree's statements violated
section 105(c), the focus must be on the reaction of the ordinary listener in
Gaston's circumstances. The way other United Mine Workers of America members
understood the conversation as reported to them, is largely irrelevant. That
they may have believed MSHA threatened to sue Local Union 9800 in retaliation
for complaining about inspection irregularities is unimportant if no such
threat was made.
Thomas Gaston was and remains the president of United Mine Workers of
America District 23. He supervises the union's affairs in Western Kentucky
and is familiar with legal matters, having helped to negotiate and administer
collective bargaining agreements and having participated in litigation in
which the union was involved.•
According to Gaston, Dupree called him to see if District 23 supported
the statements in Elmore's letter of December 2, 1979. Dupree supposedly
stated further that he felt the letter was libelous and that he had talked
to an attorney who agreed. In view of the short period of time which had
elapsed since Dupree received Elmore's letter and in view of Dupree's subsequent action~ I find that Dupree actually stated that he intended to consult
an attorney on the matter. I find that Dupree did not threaten a lawsuit in
so many words. The purpose of the phone call was to see if Elmore's letter
was supported by District 23. This was the understanding of both Dupree and
Gaston. I cannot conclude that the statements of Dupree constituted interference "with the exercise of the statutory rights of any miner, representative of miners * * *. 11 Dupree was acting in good faith and was motivated by
a concern for the members of his union.
Grave questions involving the first amendment protection of the right of
free speech would be presented if I concluded that the Mine Safety Act authorized the Commission to punish (Complainant seeks disciplinary action against
Dupree) speech of the kind shown in this record. "It is firmly established
that a significant impairment of First Amendment rights must survive exacting
scrutiny." Elrod v. Burns, 427 U.S. 347, 362 (1975). The communication
involved here was not physically or economically coercive, nor did it threaten
such coercion. Therefore, it is "communication" and not "action" and is

entitled to rigorous first amendment protection. See EMERSON, THE SYSTEM OF
FREEDOM OF EXPRESSION, 423-425 (1970). See also TRIBE, AMERICAN CONSTITUTIONAL
LAW (1978), 582:
[G]overrunent regulation * * * aimed at the [communication]
* * * is unconstitutional unless government shows that the
message being suppressed poses a "clear and present danger"
constitutes defamatory falsehood, or otherwise falls on the
unprotected side of one of the lines the court has drawn to
distinguish those expressive acts privileged by the first
amendment from those open to government regulation with
only minimal due process scrutiny.
To construe the Mine Safety Act in such a way that it would direct
punishing the speech found herein to have taken place, even if possible under
norms of statutory construction, would bring it in conflict with a most basic
constitutional right. I cannot so construe it.
ORDER
Based upon the above findings of fact and conclusions of law, I find that
Respondents did not violate section 105(c) of the Act as charged in the complaint, and the case is DISMISSED.
7

J

,

·/a ~1M' _;,· .A tJ~d.1/L ekJames A. Broderick
Chief Administrative Law Judge

Distribution:
Jo Davitt McAteer, Esq., Counsel for Local Union 9800, UMWA, Center for
Law & Social Policy, 1751 N Street, NW, Washington, DC 20036
(Certified Mail)
Stuart A. Kirsch, Esq., American Federation of Government Employees,
Local 1550, AFL-CIO, 1325 Massachusetts Avenue, NW, Washington,
DC 20005 (Certified Mail)
Thomas Po Piliero, Esq., Attorney for MSHA, Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)

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

CLIMAX MOLYBDENUM COMPANY,
Contestant
v.

Contest of Citation
Docket No. WEST 79-72-RM
Citation No. 565898; 2/28/79

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

Climax Mine
Respondent
DECISION

Appearances:

Raymond J. Turner, Esq., Rosemary Collyer, Esq., Sherman
and Howard, Denver, Colorado, for Contestant;
Robert S. Bass, Esq., Robert J. Lesnick, Esq., Office of
the Solicitor, U.S. Department of Labor, Kansas City,
Missouri, for Respondent.

Before:

Judge Charles C. Moore, Jr.

Nine cases alleging violations of the same standard 1/ were heard pursuant to the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et~·, in Golden, Colorado, on January 20, 1981.
Eight of the nine cases
were dismissed when the Government announced prior to hearing that it had no
evidence to
in support of the citations involved. For reasons not
entire
clear to me, the Government found it more convenient to have the
citations dismissed for failure of prosecution rather than to vacate the
citations and move for dismissal of the cases.
For reasons set forth hereinafter, I hold that Citation No. 565898
should not have been issued. Because a reviewing body may disagree with my
opinion
the initial issuance of the citation, I will also discuss
flaws in the testing procedures used to determine the amount of respirable
dusto
The citation alleged:
The quartz-bearing dust level around the No. 2 crusher
jaw floor operator was 1.02 Mg/m3 on the day shift from 0730
metal and nonmetal mines, 30 C.F.R.

964

to 1522 on 2/28/79, where the threshold limit value (TLV) was
.49 Mg/m3 • Feasible engineering or administrative controls
were not being used to reduce this amount in order to eliminate the need for respirators. The violation occurred on
2/28/79. This citation is being written on 4/4/79, because.
of the delay to get the sample analyzed.
The standard in question, 30 C.F.R. § 55.5-5, states:
Control of employee exposure to harmful airborne contaminants shall be, insofar as feasible, by prevention of contamination, removal by exhaust ventilation, or by dilution with
uncontaminated air. However, where accepted engineering control measures have not been developed or when necessary by
the nature of work involved (for example, while establishing
controls or occasional entry into hazardous atmospheres to
perform maintenance or investigation), employees may work
for reasonable periods of time in concentrations of airborne
contaminants exceeding permissible levels if they are protected
by appropriate respiratory protective equipment * * *•
On March 17, 1981, the Commission received proposed findings of fact and
conclusions of law from Climax. The Secretary had earlier announced that it
would present no brief or proposed findings, and it has not responded to the
materials submitted by Climax. I adopt the following from the proposed
findings submitted by Climax.
The parties have stipulated and I find that:
On February 28, 1979, Climax was, in fact, in the process
of developing and establishing accepted engineering controls
to control exposure to harmful airborne contaminants in the
Noo 2 Crusher, insofar as feasible, by prevention of contamination, removal by exhaust ventilation, and by dilution with
uncontaminated air, to the greatest extent possible under the
state of the art.
The time required for Climax to develop and establish
accepted engineering controls for the control of employee
exposure to harmful airborne contaminants in the No. 2 Crusher
has been reasonable and necessary.
The employee sampled by Inspector Jardee on February 28,
1979, which sample gave rise to Citation 565898, was wearing
an approved respirator.
On February 28, 1979, the Climax Mine had in effect a
proper respiratory protection program.

Under current MSHA policy, whenever an operator, including Climax, demonstrates that it is in the process of developing and implementing accepted engineering controls for the
control of employee exposure to harmful airborne contaminants,
no citation under 30 C.F.R. § 55.5-5 is to be issued, as long·
as all exposed employees are protected by respirators and a
proper respiratory protection program is in effect.
The Secretary offered no evidence regarding the feasibility of preventing
airborne contaminants by "accepted engineering control measures" other than
the stipulation. Not only was the Government unable to prove a violation, in
my opinion it stipulated that there was no violation. These reasons alone
provide sufficient grounds for vacating the citation and I hereby find that
the citation should not have been issued.
I also find, however, that the procedures used to weigh the dust sample
warrant vacation of the citation. The weighing procedure, in its simplest
form, consists of allowing a cassette containing a filter to sit undisturbed
for 30 days before being initially weighed. This permits outgassing from the
plastic cassette which results in the deposit of minute particles on the
filter. After 30 days and just before use, the cassette is desiccated (dried),
and the filter is removed, deionized, and weighed. It is then replaced in
the cassette, sealed, and given to an inspector for testing a mine atmosphere.
When the cassette has been used and returned to the laboratory, it is again
desiccated; the filter is removed, deionized, and weighed. The difference
between the initial weight and the final weight is presumed to be the weight
of the dust collected in the mine.
The laboratory technician's record (Deposition Exhibit No. 1) shows that
the sample in question (No. 039007) was initially weighed on August 8, 1978,
and that the final weighing was on March 6, 1979. J:./ Mr. Joseph Gallegos, the
laboratory technician, stated that the filter and cassette were in the inspector1 s possession from August 8, 1978, until March 6, 1979 (p. 59 of deposition)" However, Inspector Jardee says that he first got the cassette on
February 26, 1979, and states in his citation that although the violation
occurred on February 28, 1979, he did not write the citation until April 4,
i979, "because of the delay to get the sample analyzed. 11 But according to
the record, the sample was analyzed almost a month earlier on March 6, 1979.
The Secretary has made no attempt to establish which of its witnesses was
correct nor has it made any admission as to which one was incorrect. This
discrepancy alone provides sufficient grounds for vacating the citation.
A time lapse of 7 months between the initial weighing of the filter and the
final weighing would allow outgassing from the plastic cassette containing
the filter to distort and exaggerate the final reading of the weight of the
dust on the filter.
2/ The years were not actually contained on the exhibit but the testimony
makes it clear that 1978 was the year of the first weighing and 1979 the
year of the final weight. Also, eight other samples listed on the exhibit
show an 8-month time gap between weighings.

U6h

I would also vacate the citation because the deposition of Joseph
Gallegos contains insufficient probative evidence to determine how he conducted the weighing operation. His testimony is replete with memory failures and vague and contradictory statements. He interchanged the terms
"filter" and "cassette" so often that one unfamiliar with the procedure might
conclude that Mr. Gallegos had weighed cassettes rather than filters. When
asked how many-times he weighed the filter to arrive at the initial weight,
he stated, "I could probably say once, I think" (Deposition, p. 27). I cannot base conclusions on such uncertain and inconclusive testimony. Both
expert witnesses, Dr. Lois Gerchman for Climax, and Richard Durand for the
Government, expressed doubts as to what procedures were followed by
Mr. Gallegos to determine the weight of the filter before and after exposure
to the mine atmosphere. Although Mr. Durand had worked with Mr. Gallegos,
neither expert had personal knowledge of the procedures used by Mr. Gallegos
on this occasion, and they based their opinions solely on his deposition.
Both expert witnesses were well qualified. Most of Dr. Gerchman's
criticism of the dust testing procedures was directed at the actions taken
by Mr. Gallegos as best she could determine those actions from his deposition. She suggested several procedural changes to ensure greater accuracy.
Mr. Durand stated that he had written the new testing procedures and that
some changes had been made since the testing in the instant case. For
example, as a result of a change of filter brands, desiccation lasts 2 hours
rather than 15 minutes. But the new procedures were not introduced as evidence, and the record is unclear as to all the changes made in the testing
procedures. While Dr. Gerchman was highly critical of the procedures used
at the time the sample in question was weighed, I do not know how much of
that criticism could be directed at MSHA's new procedures. The new procedures were not extant when this citation was issued and I cannot declare
them invalid.
Those portions of the findings and conclusions submitted by Climax which
are not adopted above are rejected. The citation is vacated for each of the
three reasons given above, any one of which would justify vacation. /)

P /-. . 1 . ;J ·'h-. .
Ih
vrvot/Uy L i f / / C'i;VI--<, I I .

Charles C. Moore, Jr.
Administrative Law Judge

U6'1

/

I

Distribution:
Raymond J. Turner, Esq., Rosemary Collyer, Esq., 2900 First of Denver
Plaza, 633 Seventeenth Street, Denver, CO 80202 (Certified Mail)
Robert s. Bass, Esq., Office of the Solicitor, U.S. Department of Labor,
911 Walnut Street, Room 2106, Kansas City, MO 64106 (Certified Mail)
W. Michael Hackett, Esq., Richard W. Manning, Esq., Climax Molybdenum
Company, 13949 West Colfax Avenue, Golden CO 80401 (Certified Mail)
John R. Tadlock, Esq., Oil Chemical and Atomic Workers' International
Union, 1636 Champa Street, Denver, CO 80202 (Certified Mail)
David A. Jones, Jr., President, Oil, Chemical and Atomic Workers'
International Union, Local No. 2-22410, P.O. Box 949, Leadville, CO
80461 (Certified Mail)
Edwin Matheson, Chairman, International Brotherhood of Electrical
Workers, Local No. 1823, P.O. Box 102, Minturn, CO 81645 (Certified
Mail)

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

CHARLES E. BLANKENSHIP,

Complaint of Discrimination
Complainant

v.

Docket No. WEVA 79-336-D

W-P COAL COMPANY,

No. 21 Mine
Respondent
DECISION

Appearances:

Larry Harless, Esquire, Charleston, West Virginia,
for the complainant;
Harold S. Albertson, Jr., Esquire, Charleston,
West Virginia, for the respondent.

Before:

Judge Koutras
Statement of the Case

On May 29, 1979, complainant filed a discrimination complaint with the
Secretary of Labor against the respondent pursuant to section 105(c) of the
Federal Mine Safety and Health Act of 1977. The complaint was in the form
of a summary statement of the alleged discriminatory action, and it was filed
with MSHA's District No. 4 field office in Logan, West Virginia. Subsequently,
on July 10, 1979, MSHA informed the complainant that upon completion of an
investigation concerning his discrimination complaint, MSHA determined that
a violation of section lOS(c) had not occurred. Complainant was advised that
if he disagreed with MSHA's disposition of his complaint, he was free to file
a complaint on his own behalf with the Commission.
By letter received August 9, 1979, complaina~t filed his discrimination
complaint with the Commission, and asserted that he had been threatened,
discriminated against, and punished unjustly because of his position as the
chairman of the mine health and safety committee, and he enclosed a copy of
his previous complaint filed with MSHA in support of his Commission complaint.
He also asserted that "there were other actions taken against me that aren't
in the report," but he failed to furnish any details in this regard, or to
otherwise indicate the nature of the alleged "other actions." With regard to
his original claims of discrimination, they are summarized as follows in a
statement executed by the complainant:

96~J

(1) On or about April 4, 1979 a dispute arose about
firebossing the mine after the fan shut down. Mr. Blankenship
complained about this and the state mine inspector supported
his position. As punishment, Mr. Blankenship was required to
"shovel in the hole" by Freddy Vance. Witnesses: R. Evans,
B. Sipple, Blevins, C. Bailey, Jr.
(2) On April 10, 1979 a dispute arose about Foreman
Pedro Mendez transporting heavy rails into the mine on a
mantrip carrying men to the section. Mr. Blankenship
discussed this dispute with Ray Herndon and Dewey Wiley in
the mine office. Dewey Wiley became very angry and told
Mr. Blankenship "the first chance I get, I'll fire your
rump". Witness: Danny Neace.
(3) On April 12, 1979 Mr. Blankenship was fired for
allegedly instigating a work stoppage. The facts are that
Mr. Blankenship was following the instructions of his local
union president to stop the men from leaving the mine site,
and instead to meet on the company parking lot to discuss
the problem. The company had previously requested that the
men meet on the parking lot instead of leaving the premises.
The discharge of Mr. Blankenship thus put into concrete
effect Mr. Wiley's April 10, 1979 threat to "fire your
rump".
(4) On or about April 13, 1979 at the contractual
"24-48 hour" meeting on Mr. Blankenship's discharge, Dewey
Wiley offered to rescind the discharge if Mr. Blankenship
would enter into a written agreement removing him from
the Mine Health and Safety Committee for a period of one
(1) years [sic]o Mro Blankenship rejected this offero
Witnesses: Bo Belcher, Pete Brown, Do Neace, To Hodge,
Fo Robinette, Ro Accordo
By letter filed August 30, 1979, Mr. Blankenship advised that he was
seeking to clear his work record and to recoup{'ba.fk pay lost during his
suspensiono The supension resulted from an arbitration proceeding concerning Mro Blankenship's proposed discharge for allegedly instigating the work
stoppage referred to in his complaint. In addition, in response to my order
of August 19, 1980, directing the complainant to provide specific details
concerning the 0 other actions" of alleged discrimination, Mr. Blankenship
responded by letter filed September 22, 1980, as follows:
The other actions stated in the letter were other
threats by Dewey Wiley (company personal director). Also,
I feel I have been punished because of my position as Mine
Health & Safety Committee.
I filed a grievance on #21 bathhouse for failure to
comply,with the federal law under MSHA, our district safety

coordinators Ronald Nelson and Richard Cooper responded to
the grievance and went to the bathhouse. Dewey Wiley
threatened me with my job as he had done before. I am
sending a copy of the district report.
I submitted a safety grievance on toilet facilities in
the mines after W-P Coal Company complied with the law by
furnishing portable potties in the mines. W-P Coal Company
stated who ever used one of the toilet facilities had to
empty it. I asked the company to also comply with the
article on keeping them sanitary. I asked the company to
have it cleaned. Joe Bragg, day shift foreman, came to the
section and acknowledged I asked them to have it cleaned and
he removed me from my job and told me to take it to the track
so it could be took outside and cleaned. I did not use the
portable potties. I feel the company did this to punish me
for filing a grievance on portable potties because of my
position as Chairman of [sic] Health & Safety Committee.
Witness: Randall Evans.
Mr. Dewey Wiley also stated that he would see to it that
I would empty the potties if I filed a grievance on keeping
portable potties sanitary. Witnesses: Frank Robinette,
Field Representative, Ronald Nelson, safety director for
District 17.
Respondent filed a response to the complaint filed by Mr. Blankenship and
denied that it had discriminated against him. Further, respondent asserted
that since the initial complaint and relief requested by Mr. Blankenship
related to his suspension on April 12, 1979, no consideration should be given
in this proceeding to any alleged acts of discrimination which the complainant claims occurred after May 29, 1979; the date his discrimination complaint
was filed, and that no testimony regarding these alleged additional acts of
discrimination should be permitted at the hearing. Respondent filed a written
motion seeking to limit the hearing to events prior to May 29, 1979, and after
oral argument on the record at the hearing of January 6, 1981, the motion was
denied (Tro 7-A), and testimony was taken concerrui.ng the "other actions"
referred to by the complainant in his letter of September 22, 19800
This matter was heard in Charleston, West Virginia, during the term
January 6-7, 1981, and the parties appeared by and through counsel and participated fully in the hearing. Posthearing proposed findings, conclusions, and
supporting briefs were filed by the parties and the arguments presented
therein have been fully considered by me in the course of this decision.
Issue Presented
The principal issue presented in this case is whether Mr. Blankenship's
suspension was in fact prompted by his mine health and safety activities,
and whether or not the asserted acts of discrimination as detailed by the

U71.

complainant in his complaints of May 29, 1979, as well as September 22, 1980,
constituted acts of discriminatory retaliation, intimidation, or harrassment
as a result of complainant's protected mine health and safety activities in
his capacity as chairman of the mine safety and health committee.
Applicable Statutory and Regulatory Provisions
1.

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

et
2. Sections lOS(c)(l), (2) and (3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3).
Testimony and Evidence Adduced by the Complainant
Charles E. Blankenship testified that he is employed by the respondent as
a continuous miner operator, that he has been so employed for approximately
7 years, and is assigned to the No. 21 Mine, one of two mines currently operated by the respondent. He is a member of UMWA Local Union 5922 and serves
as chairman of the mine health and safety committee as well as the mine committee, and in these capacities he has represented the miners at both the
No. 21 Mine as well as the No. 19-C Mine continuously since 1977. He also
serves as chairman of COMPAC, a UMWA-endorsed political action committee
relating to mining industry laws and community-related miner activities (Tr.
10-17).
Mr. Blankenship testified that on February 13, 1979, he filed a grievance
with mine superintendent Ray Herndon concerning the lack of water at the bathhouse which had been installed at the then operating No. 20 Mine (Exh. C-2).
Mr. Herndon assured him that water would be provided or the men would be paid
.75 each per day as compensation for the lack of water. Water was not provided and the men were not compensated, and this resulted in a strike or work
stoppage on April 13, 1979, Prior to this time, another bathhouse grievance
had been filed (Exh. C-3) but it was withdrawn after the respondent corrected
the condition which was in issue, namely, the installation of floor safety
strips to preclude stumbling hazards (Tr. 17-2R).
Mr, Blankenship testified that on April 4, 1979, the main mine ventilation fan went down on the "hoot owl" shift. After he reported to work, he
and Mr. Randall Evans were assigned to "police" and clean up the parking lot
by his immediate supervisor, foreman Freddie Vance, while the other seven
members of his crew were 11 standing around." While he was doing this, mine
safety director Junior Oliver and he got into a dispute as to whether the mine
had to be fire bossed before the men were permitted to go in. Mr. Blankenship
believed that since the fan had been down for over 2 hours, the state law
required the mine to be fire bossed, but Mr. Oliver did not. A telephone call
was made to a state mine inspector and he confirmed Mr. Blankenship's position. Shortly thereafter, he and his crew were assigned by Mr. Vance to
shovel coal spillage in and around the underground panline area known as
"the hole" while another crew remained outside "laughing at us." Eventually,

972

after the fire bossing was completed at 11 a.m., he and his crew resumed their
normal work duties in the mine (Tr. 27-31).
Mr. Blankenship testified that on April 10, 1979, safety committeeman
Daniel Neace came to him with a complaint that the third shift mine foreman,
Pedro Mendez, had permitted several inexperienced miners to be transported in
a battery-powered car together with 80-pound steel rails positioned over their
heads. A meeting was held over this incident, where Mr. Mendez, Mr. Neace,
personnel director Dewey Wiley, and superintendent Ray Herndon were present.
After the meeting was over and as they were leaving the room, Mr. Wiley
remarked: "This nit-picking stuff - I'll get you yet" (Tr. 32-34). Several
days later on April 12, when he reported to work at 8 a.m., he learned that
the previous midnight or "hoot owl" shift had gone on strike, and Bill Belcher,
president of the local, informed him of this fact. Mr. Belcher advised him
that a meeting had been called at the No. 19-C bathhouse to discuss the strike
and Mr. Belcher instructed him to go to the No. 19 Mine, 3 miles away, to
advise the men not to go home and to remain for the meeting to discuss and
settle the dispute. He went to the parking lot area of the No. 19 Mine and
waited for Mr. Belcher with several of his fellow workers (Tr. 26, 35-36).
Mr. Blankenship stated that the strike dispute was over the fact that
the men had not been compensated for the lack of water in the bathhouse. He
stated that he tried to talk the men into going back to work because the work
stoppage was illegal, but that they went home after the meeting. He also
left and went home but returned on the evening shift and tried to get the men
to stay. He then returned on the following third or "hoot owl" shift and
finally convinced the men on that shift to go back to work. Upon reporting
to work, the next day, Mr. Herndon gave him an envelope which contained a
discharge slip and told him that "this wasn't my idea." Mr. Blankenship took
the slip to his union field representative and initiated a discharge grievance
(Tr. 37-41).
Mr. Blankenship indicated that the initial step in his grievance was the
"24-48 hour" meeting with mine management, where each side presented testimony. He stated that throughout this meeting mine management requested him
to relinquish his mine committee and safety co~mittee positions, and that if
he agreed, he would only receive a small suspensi~n rather than a discharge.
When he declined to relinquish the committee positions, his case proceeded to
arbitration the following week (Tr. 42-46; Exhs. C-4 through C-7). The arbitration was resolved by Mr. Blankenship receiving a 30-day suspension, and
Mr. Blankenship testified that his representative, Frank Robinette, told him
that mine management had sought his resignation from his safety committee job
but that the arbitrator denied that request. Mr. Blankenship was in fact
suspended for 30 days without pay (Tr. 47-52).
After returning to work following his suspension, Mr. Blankenship indicated that he filed another grievance (Exh. C-8) concerning the bathhouse
because the men still had not been paid for the periods when there was no
water available. That grievance was settled when the men, including himself, were paid compensation (Tr. 54), but subsequent bathhouse problems

with water, lights, an exhaust fan, and lack of sufficient shower heads
resulted in additional periodic grievances being filed (Tr. 55). A meeting
was held at the bathhouse, where union district safety director Richard
Cooper, Ron Nelson, Mr. Wiley, and Mr. Herndon were present. At that
meeting, Mr. Wiley told him he would "fire me" and "get rid of me" (Tr. 56).
Mr. Blankenship testified that on one occasion, following his suspension, his immediate foreman, Freddie Vance, stated: "Charlie, you're going
to keep it up and they've probably got a hit man after you right now" and
that "the company will catch you in the wrong place one of these times and
they'll get you." These statements were made in the presence of his entire
crew, but Mr. Vance offered no further specifics (Tr. 58).
Mr. Blankenship testified that he requested the respondent to provide
sanitary portable toilets for the men underground and that one was provided
for his section. However, when the respondent failed to provide them for
others, he filed a grievance insisting that the respondent comply with the
law. Although the company policy dictated that each miner had to remove the
toilet which he used from the mine, he was instructed by assistant mine
foreman Joe Bragg to help another miner remove his used toilet. Mr. Bragg
told him that it was not his idea and that "I just got orders to tell you to
get it out of here" (Tr. 60). He helped Mr. Randall Evans carry the toilet
to the track under protest and Mr. Wiley later told him that "I'll see that
you empty it" (Tr. 61). The toilets weigh approximately 10 to 15 pounds
(Tr. 62).
Mr. Blankenship stated that during his tenure as chairman of the mine
safety committee, he has filed numerous bathhouse complaints concerning
30 C.F.R. § 75.1712, roof-control problems, manbus problems, and other violations, and when the respondent would not cooperate with him, he resorted
to section 103(g) of the Act and requested MSHA inspectors to come in and
obtain compliance (Tr. 66-67). He has also contacted state inspectors and
union safety representatives both before and after his 30-day suspension
(Tro 68).

Mr. Blankenship explained the procedures for~filing safety complaints
and he identified several documents which constituted telephone complaints
which he made or was somehow responsible for initiating (Tr. 88-93, Exhs.
C-10 through C-18). All but the first two are dated after May 29, 1979, and
they were received in evidence over the respondent's objections (Tr. 96).
Mr. Blankenship stated that mine management accused him of "nit-picking" and
being "radical" and that he would cause the mine to shut down because his
complaints resulted in fines (Tr. 94).
On cross-examination, Mr. Blankenship confirmed that the strike or work
stoppage occurred on April 12, approximately 2 months after his bathhouse
grievance of February 13, 1979, was filed. He stated that he did not pursue
the bathhouse grievance (Exh. C-2) further with the respondent because he
relied on its word that the men would be paid (Tr. 98-101). He considered

the shoveling incident in the "hole" with his crew to be punishment and considered it 11 less desirable 11 work (Tr. 102). Regarding the incident concerning transporting inexperienced miners, he confirmed that Mr. Wiley "made the
accusation to me that he'd get rid of me." Mr. Blankenship recalled no
conversation concerning absenteeism or the respondent's policy concerning
absenteeism, and he denied telling Mr. Wiley that the policy "was not worth
the paper it was written on" (Tr. 104).
Regarding the strike, Mr. Blankenship stated that Union President Belcher
conducted the meeting with the men and that it was his position that the dispute should be settled through the grievance procedure. He stated that he
told the men to go to work but that they left spontaneously. Following the
strike, the respondent accused him of being the instigator and advised him
of its intent to suspend him with the intent to discharge (Tr. 105-111).
Mr. Blankenship confirmed the 24-48 hour meeting concerning his suspension grievance and stated that he was satisfied with Mr. Robinette's representation on his behalf at that meeting but was dissatisfied with the
subsequent arbitrator's action in excluding him from the hearing room prior
to rendering his decision (Tr. 112-114). He denied ever threatening
Mr. Robinette with a lawsuit as a result of the arbitration decision but
rather that Mr. Robinette and his union advised him to pursue the matter
further through the instant discrimination action under the Act. He did so
because he believed he was discriminated against through the proposed discharge because of safety reasons rather than for instigating the strike in
question (Tr. 113-114).
Mr. Blankenship confirmed that at the 24-48 hour grievance meeting with
mine management, he was asked to relinquish both his safety committee job as
well as his union committee job. He believed that the April 12 or 13 strike
was related to his mine safety committee activities because "the company
brought this on me because of safety reasons" because the failure of the
respondent to settle the miners' grievance resulted in the dispute which led
to the strike" At the time he received Mr. Belcher's instructions to proceed
to the parking lot meeting, he believed he was acting in his capacity as both
the safety corn.~itteeman as well as the mine c0tomitteeman because of the
combination of factors concerning the lack of.wat~r in the bathhouse as well
as the failure by the respondent to compensate the men for this (Tr. 118).
He also confirmed that Mr. Vance never threatened him and that he had never
received any threatening phone calls at his home. While he has received
obscene calls, he cannot attribute them to the instant proceeding and stated
that his phone number is readily available (Tr. 120).
Regarding the portable toilet incident, Mr. Blankenship confirmed that on
the day in question it was used by his continuous miner helper, Mr. Evans, and
that the miner was temporarily down and idle. He conceded that mine management decided that he should help Mr. Evans carry the toilet out, and while he
did not like it, he had no argument with the decision (Tr. 123-125). He also
indicated that he advised Mr. Bragg that he was acting under protest and that
Mr. Bragg told him that the order came from "outside" but he did not state

975

who gave the order (Tr. 130). Mr. Blankenship stated that several persons
laughed about the incident (Tr. 131).
In response to bench questions, Mr. Blankenship stated that the portable
toilet was carried three breaks and placed on the mantrip to be taken outside
(Tr. 136). Regarding the shoveling incident, he stated that it was the first
time he could recall an entire crew being assigned to shovel and clean the
belt in question, and in the event of a breakdown it was not unusual for a
shuttle car operator to be assigned such duties. However, he believed he was
being punished at the time because he prevailed in the confrontation over the
ventilation fan being down and the requirement for fire bossing the mine.
When asked who assigned him the task of shoveling, Mr. Blankenship replied as
follows (Tr. 140-141):

Q. Shortly after the telephone conversation, someone
from mine management told you to go shovel in the hole.
A.

Mr. Freddie Vance.

He also stipulated it wasn't his

idea.

Q. Now, that's the second time somebody from mine
management has assigned you to do certain chores which you
felt was retaliation and in both instances these individuals
purportedly told you it wasn't their idea.
A.

Yes, sir.

Q.

Whose idea was it?

Do you have any idea?

A. It had to come from outside, I figure from mine
management -- from higher up than they are. See, a section
boss -- you deal with them every day. You know what I mean.
They're just like a working person with you. You get used to
them.
Q.
Is it possible the section bosse;>. were trying to
retaliate against you and used the outside a~ an excuse so
you wouldn't know it was really them that was punishing you?

Q.

Have you ever had a dispute with the section boss?

A. I've had a few times -- not really disputes. We've
had things to happen over safety and stuff but the section
boss -- it's in his power. He'll get it corrected even if
he wants me to do it.
But see, on most of the section bosses, if you ask about
a safety dispute they say you have to go to mine management.

You had to go to Ray or Dewey or someone like that.
ain't got no power to do nothing.

They

Mr. Blankenship conceded that there have been occasions where respondent
has corrected safety complaints that he brought to its attention (Tr. 145),
and he also conceded that mine management does not totally ignore his safety
complaints (Tr. 148).
Richard C. Cooper, UMWA International Safety Inspector, testified that
he has worked with Mr. Blankenship for a number of years and considers him to
be a very good committeeman. Although he has not received too many recent
safety complaints from Mr. Blankenship, there were quite a few received from
him at one time concerning the respondent. Mr. Cooper stated that on two
occasions he personally heard Mr. Wiley threaten Mr. Blankenship because of
his safety activities. The first incident occurred at the bathhouse during
the meeting referred to by Mr. Blankenship, and the second occurred during a
telephone conversation he had with Mr. Wiley on the following day. He
remembered the incidents because he found it unusual for mine management to
threaten a union man in the presence of a union representative. Mr. Cooper
prepared a memorandtnn dated September 26, 1979, regarding the incident and
gave a copy to Mr. Blankenship upon his request (Tr. 70-74; Exh. C-9) •.
On cross-examination Mr. Cooper stated that he has received a few complaints
committeeman Randall Evans but that most of them came
through the committee chairman. He confirmed that his memorandum of
September 26, 1979, regarding his conversation with Mr. Wiley was typed by
his former secretary on the day he received the phone call from him. Although
he could not recall the exact words Mr. Wiley used during the September 19th
bathhouse meeting, he stated that the memorandum was accurate. He also distinctly recalled Mr. Wiley stating that "if Charlie Blankenship didn't like
working with that company that he would find a way to get rid of him" (Tr.
74-78). He also recalled the phone conversation when Mr. Wiley stated that
19
if Charlie Blankenship keeps writing safety grievances that the company is
going to get rid of him" (Tr. 79).
Mr. Cooper stated that it is the responde~~'s responsibility to keep the
bathhouse clean but that some mines use a union a~tendant for this task
(Tr. 86). He confirmed that he made the notation concerning Mr. Wiley's
threats in order to keep a record of it, and if additional threats were made
he would have taken some action himself (Tr. 82-83). Regarding the alleged
statement at the bathhouse on September 19, 1979, Mr. Cooper stated that
Mr. Wiley did not make the statement directly to him but made it in his
presence as he was leaving, and he believed that he was speaking to
Mr. Herndon at the time (Tr. 83). After the phone conversation, he assmned
that Mr. Wiley was going to suspend Mr. Blankenship subject to discharge, but
that was not done (Tr. 85). Mr. Cooper believed that it was easier to fire
someone than to remove him from the safety committee (Tr. 85).
Randall Evans, testified that he is employed as Mr. Blankenship's continuous miner helper and that he is also a union safety committeeman. He

977

confirmed the facts concerning the dispute over the fire bossing of the mine
after the ventilation fan went down, and confirmed the fact that Mr. Vance
assigned the crew to clean the coal which had accumulated around the underground belt line. Another crew was laughing at them and after the mine was
fire bossed, they resumed their normal work. Prior to shoveling, he and
Mr. Blankenship were cleaning up the parking lot while waiting for the mine
to be fire bossed (Tr. 150-154).
Regarding the strike meeting, Mr. Evans testified that Mr. Blankenship
tried to get the men to go back to work (Tr. 156), and he confirmed the "hit
man 11 comment made by Mr. Vance. Although he expressed concern over the statement, he stated that Mr. Vance had been "under a lot of medical attention"
(Tr. 157).
Mr. Evans confirmed the incident concerning the portable toilet and confirmed that Mr. Bragg assigned Mr. Blankenship to assist him in taking the
toilet to the track area and Mr. Evans then took it out of the mine.
Mr. Evans had previously used the toilet (Tr. 160-162). During a previous
meeting with mine management concerning the toilets, Mr. Evans stated that
Mr. Ray Herndon had made the following statements (Tr. 158-159):
A. Well, on the portable potties, Charlie come to me
and informed me -- he said some men on the hootowl were
wanting portable potties put inside the mine. Charlie said
they had to be there -- the law requires them to be in there,
so we'll ask them to put them in there.
We asked them to put them up there -- to furnish all the
sections with portable potties. Instead of furnishing all
the sections, they furnished it on the one section we worked
on. And I informed Charlie -- I said, "No, Charlie, that
don 1 t get it." I said, "The law requires it to be on all
sections within five hundred foot. 11
So, we went down in a second-step meeting on portable
potties and it was just an outrageous mee~~n~. There wasn't
nothing come out of it -- just threats. Character -- just
downgrading of peopleo I, myself, got downgraded in it.
Okay. I don't want to take up too much time.
was said by whom?

lfuat

A. Mr. Ray Herndon stated plainly -- he said, "It's
because of radicals like you all this company is going to be
shut down. 11 He said, "You all are not going to have to worry
about portable potties. You're not going to be here long
enough to worry about portable potties."
I said, "What?" And he said, "You're right. You heard
me right. Just because of radicals like yo~' -- then he said

U7h

"Radicals like you -- this company's not going to be here
long." And that was the outcome of the second-step meeting
on the portable potties.

Q. Was there anything said at that meeting about the
company said they would put them in?
A. Yeah. The company agreed to put them in but they
said whoever used it would empty it.
On cross-examination, Mr. Evans stated that the shovels used to shovel
the belt line were stored in a shed some 70 feet from the center of the parking lot. There were enough for the men, and two were located at the belt
location. It was customary for a truck driver to clean the belt by shoveling
after loading his truck, but "inside men" had never done this work in the past
and he was not aware that a "belt-mann was assigned to shovel at the belt. He
confirmed that he and Mr. Blankenship carried the portable toilet together for
a distance of some 210 feet and placed it on a rail rover. He transported it
out of the mine after being furnished safety goggles to wear while driving
the rover, and Mr. Bragg rode out with him. He and Mr. Blankenship did it
under protest because suitable transfer tanks were not available to transfer
the toilet to the surface and he believed that this is a violation. He also
indicated that he was the only person who ever used such a toilet (Tr. 16216 7).
In response to bench questions, Mr. Evans stated that he protested
handling the toilet because respondent did not furnish him with suitable
equipment to transfer it out of the mine (Tr. 169). Mr. Evans stated that
Mr. Vance was the section boss, that he had known him about a month, that
Mr. Vance had never given him or Mr. Blankenship any problems over their
safety activities, and he had never threatened or intimidated them (Tr. 171172).
Mr. Evans testified that "policing" the parking lot while the mine is
down is a normally acceptable chore. The miners simply stand around until one
of the bosses tells them what to do and none of, the miners have objected. His
testimony with respect to this incident is as fol~ows (Tr. 174-177):

Q. Is it normal -- okay. Is it normal for your fellow
employees and the following crew guys when you 1 re out with
them one evening or out on the parking lot somewhere to say,
"Ha-ha, you had to shovel the hole today?" Is that unusual?
I assume you fellows kid a lot don 1 t you. Not when you're
working.
A.

No, the company has a policy of no horseplay.

Q. I'm not talking about -- have you ever hollered or
gigged [sic] or teased any of your fellow miners when they
had to shovel the hole?

979

A. I haven't known any of the fellows -- miners that
had to shovel the hole other than our section.

Q. Yours was the only crew that had ever been assigned
to go down and shovel that belt?
A.

Yes, sir.

Q.

But if the section foreman told you to do it while
you were spinning your wheels, so to speak, waiting to go
underground you wouldn't object to it.

A.

No, sir. I don't object to no direct order as
long as it's within the law.

Q.

Was this shoveling the hole this day within the

A.

No, sir.

Q.

Why wasn't it?

law.

A. Because we was inside the hole shoveling and there
was an endloader overtop of us loading coal trucks.

Q.

Wait a minute.

A. We're in under a stockpile of coal. There's a conveyor right in the bottom of the stockple. It comes out of
the stockpile and feeds it into the truck. Okay, we're down
here. Okay, the belt's not running. There is a bulldozer up
here pushing coal back and forth (indicating) over our heads.

Q. Your objection to shoveling in the hole was because
you felt it was an unsafe act?
A. No, I didn't object to shoveling in the hole, I did
it because at the time I didn't know there was a bulldozer
up there over our heads -- an endloader loading coal.

Q. I got the impression from Mr. Blankenship his
objection about shoveling in the hole was the fact he felt
he was sent there to be punished.
A.

Yes, sir.

Q.

Was that your objection?

A. That's my opinion of it. I didn't object to it
because I was following a direct order, but my opinion of

UBU

the reason we had to do it was because of our actions we
took in making them fire boss the mines is the reason they
put us in there doing it.

Q. You're not suggesting -- or are you suggesting somebody from mine management assigned you to shovel in the hole
knowing there was a bulldozer loading coal above you that
put you in a position of possibly getting hurt as punishment
for
A. Well, they did put us in that position, but I don't
know if they knew that endloader was up there working or not.

Q. Well, let's assume you finished you policing duties
on the parking lot and the section was still not operational.
A.

Yes, sir.

Q. And they've said okay, now we're finished policing.
The next thing we're going to do now is we're going to clean
up and shovel around this belt. Would that be a problem to
you?
A. No, sir, as long as they told everybody to do it and
not just one section of men.

Q. In other words, what you thought it was more than a
coincidence you were put down there to shovel in the hole?
A. Yes, sir, they put one section down there and left
one section up on the hill laughing at us.
Qo
Now, where was -- okay, there were two sections
down and two crews waitingo

A.

Yes, sir, it was a two-section mines
[sic].
{.

Mro Evans testified as follows concerning the allegation that Mr. Wiley
threatened to fire Nro Blankenship (Tro 177-180):

Q. Did you hear Mr. Wiley or anybody else make any
threats? Have you ever heard anybody from mine management
make any threats to Mr. Blankenship or take any action
against him?
A.

Yes, sir, I sure have.

Q.

Tell me about it.

A. Well, on a safety dispute on the bathhouse, me and
Charlie -- we had to get hold of the district and we had

U81

·~ - ·-

Mr. Richard Cooper and Ronald Nelson accompany us at a thirdstep meeting at the lab. And we went from the lab to the
bathhouse, Number 20 bathhouse.
We got over there and when we got over there, we started
making the -- the international safety coordinatory started
making the safety run to see what was in violation. While
we were doing that, Mr. Wiley looked at me and Charlie right
in the face - looked at us dead in the eyes and said, "This
nit-picking safety matters like this, youtre all not going
to be here long." And I replied, I said, "Well, Mr. Wiley,
if I'm not going to be here long, my house has got wheels on
it. I'll just go find somewhere else to work when I get out
of a job."

Q.

And thatts what he said?

A.

Yes, sir.

Q. Who else was there besides you and Mr. Blankenship
when he looked you in the eye and said that to you?
A. Well, Mr. Cooper and Ronald Nelson were present.
Mr. Ray Herndon was present, and thatts it.

Q. And this was when Mr. Cooper went there to look at
the bathhouse?
A.

Yes, sir.

Q. Now, when Mr. Wiley said this -- made this statement, what was his demeanor? I mean, was he angry? Was he
calm? Was he frustrated? Was he ticked off?
Ao My opinion of his emotions was he was ticked off
because we are constantly asking them to try to cure some
safety factor. And in this instance it w~s ~he bathhouse
and he was ticked off because we took it further to the
third step meeting where we couldn't
no -- we couldntt
get nothing out of the second-step meeting, which if the
company wanted to they could've went ahead and settled it.

They could've fixed the bathhouse and the matter
would've been settled. It wouldntt have had to went anywhere. But in this instance, it went to the third-step
and I feel they just got mad because we took it on to the
third step.

Q. Were you here in the courtroom when Mr. Cooper
testified this morning?

98~

j

A.

Yes, sir, I was.

Q. Mr. Cooper purportedly said -- I don't know what his
direct statements were -- that he's a pretty busy man. He
got a little irritated having to run to the mine all the time
to the bathhouse.
A.

Yes, sir.

Q. Let's assume Mr. Cooper was in that frame of mind
when he went to the mine. Let's assume Mr. Wiley was in the
same frame of mind. Let's assume Mr. Wiley, as he's going
out the door, looks at you and Mr. Blankenship and says,
"You fellows keep this nit-picking up, we're going to close
this mine down." Is that the way it happened?
A.

No, sir.

Q.

Are we going to be out of business?

A.

No, sir.

Mr. Cooper never stated nothing like that?

Q. Did he specifically look at you and say, "I'm going
to fire you over this?"
A. Mr. Wiley looked at me and Charlie Blankenship both
right dead in the eyes just like I'm sitting here looking at
you right now and he said -- he said, "If you don't quit this
nit-picking, you're not going to be here much longer. I'm
going to get rid of you." That's exactly what he stated.
I said, "Well, one thing about it, if you get rid of me,
my house is on wheels and I can roll any time. 11
Daniel Neace testified that he has been employed as an electrician for
2 years and works on the "hoot owl" shift. He. confirmed the incident
~regarding several new miners being transported together with some rails and
stated that he advised Mr. Mendez that it was a safety violation. Although
he was on the safety committee, Mr. Mendez told him it was none of his business, but after he lodged a complaint, Mr. Mendez apologized to him (Tr. 182-

185).
At the conclusion of the meeting concerning the mantrip incident,
Mr. Neace stated that Mr. Wiley made a statement that "Charlie would make
a mistake and he would fire him" (Tr. 186). Mr. Neace testified as follows
concerning this incident (Tr. 186):
Maybe he didn't use the word fire. He said, "I'll get
you when you do make that mistake," or words pretty close to
that effect. It's been a long time and in fact, I didn't

have any reason for remembering it. It's just -- I didn't
know this was all going to come up again because I was in
the original arbitration. I was there as a witness but they
didn't call me or talk to me or anything. They just come out
and informed us what their verdict was.
On cross-examination, Mr. Neace stated that he previously served on both
the mine committee as well as the safety committee and that he considers the
duties of each to be different. He has since resigned from both of those
positions (Tr. 190-191). Mr. Neace confirmed that he had to meet once with
Mr. Herndon over a written "slip" he received for absenteeism but that he
could recall no discussions between Mr. Blankenship and Mr. Wiley concerning
the subject. However, he has heard the men state that the absenteeism policy
is "not worth the paper it's written on" (Tr. 193).
Mr. Neace stated that since he quit his mine safety committee position,
he has worked solely as an electrician and is given assistance when he has to
haul cabies into the mine, whereas on previous occasions, while serving as
committeeman, he had to handle cables alone (Tr. 195).
In response to further questions from the bench, Mr. Neace testified as
fo 11 ows ( Tr • 19 7 -19 9) :

Q. When you were on the safety committee, were you
employed as an electrician?
A.

Yes.

Q.

Did your normal duties require you to take cable in

and out?
Ao When I was on the safety committee I was on a section and I paneled outside. It required me to take cables
in but I had more men to help me.

Q. Let me ask you this, Mr. Neace. ~Were you ever,
during your tenure as committeeman, assigned~such tasks as
what I've heard today -- digging in the hole, shoveling in
the hole, carrying out potties, anything of that nature?
A.

No.

Q.

Did you ever feel that you were --

A. Now, there was a dispute come up over the potties
one time and I was involved in it. Let me think just a
minute. But at that time I believe they told me -- I said
it was the company's responsibility to see that these were
emptied and they said the men that used them emptied them
and I was the only one at that particular time who voiced

984

an objection and I think Mr. Wiley would substantiate that
if you would ask him.

Q. Were you ever threatened or intimidated or feel
intimidated by either Mr. Wiley or anyone else in mine
management with regard to any of your safety activities
when you were on the committee?
A. Well, I knew things were kind of rough for me but I
never felt like -- I never felt like they put any extra heat
or anything on me. I did feel like they put it on Charlie
because they more or less held him responsible with a lot of
actions I done because at the time I went on [sic] safety
committee -- took the position of safety, I did not know how
to write up grievances and things.
So, I would take them to Charlie and he would write
them up for me. Therefore, he carried the brunt of the heat
on everything whether I wrote it up or anybody else wrote it
up.
And, at pages 200-202:

Q. I've heard testimony today that Mr. Herndon, for
example, on the two instances concerning the mantrip -- when
that dispute arose that Mr. Herndon purportedly indicated
that Mr. Blankenship had a right which Mr. Herndon recognized
to get involved in that because he was a safety committeeman.
A.

Yes, sir.

Q. And that Mr. Herndon had purportedly dressed down
Mr. Mendezo

Q•
I've also heard testimony that Mr. ~erndon, on
another occasion when a dispute arose on safety, also conceded that Mr. Blankenship had the right to be involved
because he was on the safety committee. Okay?

A.

Yes, sir.

Qo Now, if I can accept that as true, what am I to
believe about Mr. Herndon's attitude with regard to
Mr. Blankenship and his role as a safety committeeman?

A. Well, I always found him to be honorable in anything
I went to him with -- calm. But he also takes his orders
from Mr. Wiley. He may not take direct orders or something

985

from Mr. Wiley but he takes a lot of suggestions from
Mr. Wiley and he takes orders from other people, too.

Q. Mr. Neace, you impress me as being a very candid,
honest individual, now and you've sat here all day and heard
all the testimony so far, right?
A.

Yes, sir.

Q. And I think I made the statement earlier today that,
you know, this whole dispute seems to center around or at
least the starting point is the bathhouse and from then on
everything was downhill.
Let me ask you this: Just from your own, can you give
me a capsule view of what your impression is as to what the
dispute is all about here. It seems to me on the one hand
we've got a vigorous safety committeeman over there who has
an interest in safety and is doing his thing on safety.
On the other hand, the picture that's being painted of
the company is the company just doesn't care about safety.
They're out to get this guy. Just what is your

A. Well, you know, without being involved and seeing
everything that's happening in all directions it's quite
hard to understand. I felt, personally, that given half a
chance they would dismiss him much quicker than they would
dismiss me because he is a thorn in their side -- not saying
they won't comply with safety. I've worked for companies
that was worse.
But they don 1 t comply as fast as they should at times
and by -- Charlie is a very persistent, conscientious
man and it did bring pressure upon him and I feel they would
dismiss him quicker over a small thing th~n they would me or
anybody else.
Mr. Neace testified that he was present during the 24-48 hour meeting of
April 13, 1979, and he believed Mr. Wiley offered to rescind the proposed discharge of Mr. Blankenship if he would accept a suspension and give up his union
activities. Mr, Neace stated further that he did not believe Mr. Blankenship
was asked to give up his mine safety and health job and his testimony is as
follows (Tr. 211-214):

Q. Were you present during this twenty-four,
forty-eight-hour thing -A.

Yes.

Q.

-- on April 13 --

98b

A.

Yes, I was.

Q.

1979?

A.

Yes.

Q. Tell us in your own words what you recollect of
that event?
A. There was an offer made to him. If he would give
up his -- but I didn't think they said mine safety and
health. I thought they said his union activities.

Q. To the best of your recollection, how was this
offer -- or how did it happen?
A. For one year and they would rescind the firing.
But they wanted him to accept a suspension.

Q.

Who was they?

A. It was Mr. Wiley, I believe, is the one who brought
the idea up and it was backed by Mr. Cliff Herndon.

Q.

Mr. Cliff Herndon?

A.

I believe he was presiding over the meeting.

Q.

Is he related to Ray Herndon?

A.

Yes, he is.

Q.

What 7 s the relationship?

A.

I think he 1 s your father isn't he, Ray?

Q.

Why were you there at this?

A. I was one of the safety committeemen and I was there
as a witness for Charlie.

Q. And your recollection of the offer was that
Mr. Blankenship cease and desist or quit his union
activities for a year and the company wouldn't go ahead
and fire him but would suspend him.
A.

Yes, sir.

Q.

But you don't know who said that.

98?

A. I'm pretty sure Mr. Wiley is the one that mentioned
it. But it was substantiated by the company president at
that time
or superintendent.

*

*

*

*

*

*

*

Q. But in any event, Mr. Blankenship didn't take them
up on the offer, is that right?
A. That's right. He didn't take them up on the offer,
so they stood by the dismissal which is --

Q• But your recollection was it was just general
union duties rather than Mine Health and Safety activities,
specifically?
A. No. His reason for being there was, I believe, with
all my heart -- stems from his mine safety activity.
Clarkson Browning testified that he has been employed by the respondent
for approximately 8 years as a day shift miner operator, and served as a
member of the mine committee until he resigned sometime at the end of 1979.
He confirmed that he was present at the April 13, 1979, 24-48 hour meeting
concerning Mr. Blankenship's proposed discharge. Mr. Herndon presided at
the meeting and Mr. Wiley was present.
Mr. Browning testified that both union and management representatives
were consulting with each other in their efforts to resolve the dispute but
that no agreement was reached. He stated that Mr. Wiley made an offer to
restore Mr. Blankenship's job if he were to agree to a 60-day suspension and
give up his committee jobs (Tr. 6, January 7, 1981). Mr. Browning's testimony concerning this meeting is as follows (Tro 8):
Qo
As best you can, what were his exact words?
you can remember, realizing it's been a while.

As best

{.

A. He said that Charley could have hi~ job back, you
know, with the agreement that he take a sixty-day suspension
and be relieved of his committee jobs.
Qo

Now you're saying "jobs"?

Ao Yes, sir. He didn't specify safety or mine
committee either one. He said, "Committee jobs 11 •

Q. Did you or anyone on the union side ask him,
Mr. Wiley...:.- to be clear, you said "committee jobs 11 • I
mean nothing was pursued along that or was it?
A.

No, sir.

U8H

Q. What was the response? What was your all's
you're a union rep -- what was your response or your other
union officials' response to his offer?
A. Everybody got quite upset about it because the fact
they wanted to suspend him for sixty days plus remove him
from the committee, which, you know, you have steps to remove
somebody from the committee. You just don't tell them to
quit or ask them to quit.
You know, it looked like it was either quit the committees or lose his job, one of the two.
On cross-examination, Mr. Browning stated that he would not consider an
offer by Mr. Wiley to Mr. Blankenship allowing him to relinquish only his
union committee job, accept a 60-day suspension, but permitting him to retain
his safety committee job, to be fair. He believed that Mr. Wiley's offer
encompassed resignation of both committee jobs as well as a 60-day suspension
(Tr. 11-12).
In response to further questions, Mr. Browning stated that removal of a
miner from committee jobs is covered by their contract and he personally
believed that Mr. Blankenship was a "victim of circlllllstances" and that mine
management was trying to blame him for the strike incident because he was
on the mine committee and was a tough mine safety committeeman (Tr. 13).
Mr. Browning also stated that Mr. Blankenship never "stirred up strikes," and
that since he and Mr. Blankenship have served on the safety committee, there
have been no wildcat strikes, except for the one over the bathhouse (Tr. 15).
In response to bench questions, Mr. Browning testified that he no longer
serves on the mine safety committee and that he resigned voluntarily for
"personal reasons." He also stated that Mr. Ray Herndon was always fair with
him but that some of his fellow miners did not like the idea that he and
Mr. Herndon "were close" so he quit (Tr. 19), Mr. Brmvning also stated that
any decision to accept Mr. Wiley's offer with respect to the strike incident
would have been a personal choice for Mr. Blan~enship to make, but he has
never heard of any similar offers made in the past to other committeemen (Tr.
19). Mr. Bro•vning stated that the function of a mine safety committeeman is
to deal with safety matters, and the mine committeeman deals with pay and
other management problems, The contract calls for a separation of the functions, although occasionally the same individual holds both positions. Both
committeemen are paid and supported by the local union (Tr. 20-21).
Testimony and Evidence Adduced by the Respondent
Clifton R. Herndon testified that he has been employed with the respondent for 10 years and now serves as the general mine superintendent. He
indicated that Mr. Dewey Wiley handles personnel matters and industrial relations, but has no authority over him. He stated that his position on the

98!J

bathhouse was that he would do his best to furnish water but then he
explained the problems with the system. He also stated that the respondent's
policy was to pay the men when water was not available (Tr. 22-26).
With regard to the shoveling incident, Mr. Herndon stated that it occurred
at a time when the ventilation fan was down. He wanted to take the men to the
end of the track and leave them there while the foreman fire bossed the faces
and called out his reports. However, a dispute arose between the mine committee and the safety director, and after calling the State Department of
Mines, he determined not to send the men in at all and he told the foreman to
keep each crew busy while waiting for the mine to be fire bossed. He did not
specify which crew was to be assigned to any specific task and did not order
Mr. Blankenship's crew to shovel the belt, but he simply told the foreman what
he wanted done. The so-called "hole" is a reclaim belt where coal dumps on to
a stockpile and is fed on the belt to be taken out of the mine and dumped on
a truck. He did not consider this to be a dangerous job and the belt is protected by corrugated steel and concrete and the entire stockpile rests on
that structure. Although the area is damp, it is sheltered from the weather
and is lighted (Tr. 27-30).
With regard to the incident concerning new miners being transported with
steel rails, the meeting which was held concerning that event had finished
and the issue resolved when Mr. Blankenship engaged Mr. Wiley in a conversation concerning the company policy of abseenteeism. Mr. Blankenship made a
comment that the policy "wasn't any good or wasn't worth the paper it was
wrote on," and Mr. Wiley told him: "Charley, if you lay off we'll get you,
too," meaning that if he violated the absenteeism policy he, too, would be
held accountable. Mr. Herndon denied that Mr. Wiley threatened to fire
Mr. Blankenship for his safety activities at that meeting (Tr. 32).
With regard to the April 12, 1979, strike, Mr. Herndon stated that the
decision to discharge Mr. Blankenship over that incident was a joint decision made by him, Mr. Wiley, and mine manager John Demotta (Tr. 33).
Mr. Blankenship was observed by his truck near the parking lot road between
the two mines and he was observed stopping a vehicle and informing the driver
about the meeting (Tr. 34). He confirmed that<_he was at the 24-48 hour discharge meeting and mine mangement made a joint de~ision to offer to settle the
matter by Mr. Blankenship accepting a 60-day suspension and giving up his mine
committee jobs, but management specifically did not want to mention safety
because "that could bring trouble on down the road. So we stayed away from
it" (Tr. 36). He was not sure who made the offer, and indicated that it
could have been Mr. Wiley. He saw nothing unusual about the offer and stated
that it is common for both sides to make settlement offers (Tr. 35). His
father, Cliff Herndon, conducted the meeting, and he believed he made the
following offer (Tr. 3 7): "Well, what we've decided is we' 11 give Charley
a sixty-day suspension. If he will relinquish his job as a mine committeeman,
we'll put him back to work at the end of sixty days."

990

Mr. Herndon stated that Union President Belcher advised Mr. Blankenship
not to accept the offer and to pursue the matter further and the meeting
ended. When asked why he wanted Mr. Blankenship to resign from the mine
committee, he responded as follows (Tr. 37:
We felt because of Charley's position that 1 s what
instigated this work stoppage, his activities as a mine
committeeman. Like I said, it was testified he was a victim
of circumstances. It may have well been, but the circumstances all pointed toward Charley's activities that morning
is the reason the men went home.
Mr. Herndon stated that he had no knowledge of the alleged "hit man 11 comment allegedly made by Mr. Vance and he heard it for the first time during the
instant hearing (Tr. 38). Regarding the portable toilet incident, he acknowledged that company policy dictated that Mr. Evans bring it out because he was
the one who used it and he did not order Mr. Blankenship to assist him (Tr.
39). He acknowledged that Mr. Evans complained about it and that the law
required it to be sanitary but he did not know when it had been used. When
Mr. Evans told him that the job of emptying toilets had to be posted, he
responded that it was a mine management decision and that Mr. Evans' suggestion was not justified. He acknowledged making the statement that Mr. Evans
had a radical attitude, but only after being provoked by Mr. Evans (Tr. 40).
Mr. Herndon acknowledged that he was aware of the fact that
Mr. Blankenship had at various times made complaints to State and Federal
mine safety officials. However, he also stated that he had a good working
relationship with the mine safety committee before Mr. Blankenship and
Mr. Evans came into office.
as to Mr. Blankenship's ability to cooperate,
(Tr. 42):

In

It 1 s hot and cold to tell you the truth in my opinion.
What really upsets me is when they don't give us time to
straighten up a problem or come to us and<·tell us we've got
a problem, and they go directly to the agencies. They said
yesterday there 1 s a procedure they have to go through. They
have to go through the first step and second step, and then
file one of these 103's.
That's not right. They don't have to go through any
s
to file a 103. They don 1 t even have to let you know
you've got a safety problem to file one.

Q. Can you ever recall a 103 that was filed without
consulting you first?
A.

Yes, several of them.

Mr. Herndon recalled one incident when Mr. Evans called in an inspector
after he (Herndon) thought the problem had been resolved, and when he confronted Mr. Evans, Mr. Evans admitted that he did so over the portable toilet
incident where he was told to take it out of the mine (Tr. 43).
With regard to the condition of the bathhouse, Mr. Herndon stated that
the "UMWA peopleu keep several others clean and he has had no complaints about
those (Tr. 44). Regarding the alleged threats made by Mr. Wiley to Mr. Cooper
concerning Mr. Blankenship, Mr. Herndon stated he was present during this
exchange, and his recollection of the incident is as follows (Tr. 45-47):
A. Okay. Let me explain a little bit about the bathhouse situation. Mr. Cooper was called in twice. He never
cited us for anything neither time. The UMWA man didn't. He
wrote no paperwork on it. He didn't produce any. They found
the bathhouse in good shape both times.

Q. Is it your testimony that Mr. Cooper found the bathhouse in good shape on both occasions?
A. Yes. And the UMWA man that was responsible for
cleaning them traveled with him when he made those ins,pections on that shift. The federal man wrote one notice the
ventilation fan was out of order. Someone had stuck a pop
can up in it. And that's the only notice that was wrote
on both inspections.
They found them in good operating order. Now on this
one inspection we were going through one of the bathhouses
and we weren't happy. I'll tell you the truth. We weren't
happy with the situationo Mr. Cooper wasn't either.
He told me he was tired of running checking bathhouses
when he had people getting killed underground. And we were
walking through the bathhouse and Mr. Blankenship was telling
me about other mines, how they done it, hdw they took care of
their bathhouses, what kind of bathhouses they had, first one
thing and another"
And I said to .Mr. Blankenship, "Charley, if you're not
satisfied with this place and these other places are so much
better, why don 1 t you go to one of them and get you a job?"
And he said, "No, I plan on working here a long time."
And Mro Wiley then said, "I wouldn't count on it."
That's what was said.

Q.

And how did you take that?

992

A. What Mr. Wiley as talking about, we'd already shut
down one mine, Number 20 Mine. We were in the process, which
the union didn't know at the time but we did, of shutting down
the 19C Mine. It's shut down now.
Now we're in the process of phasing out 19L Mine.
is what Mr. Wiley was talking about.

This

Q. Did you understand Mr. Wiley to be threatening
Charley Blankenship individually with the loss of his job?
A. No, sir. He was being truthful with him if you
want to know the facts.
On cross-examination, Mr. Herndon admitted that he was discouraged when
miners filed section 103(g) safety complaints because he believed that it
should be brought to the first and second mine level before an outside agency
is brought in. He acknowledged that some Federal safety regulations were at
times 11 a little bit picky," but believed they are necessary (Tr. 48). He also
acknowledged that Mr. Blankenship may have been "a victim of circumstances"
concerning the meeting which preceded the strike, but that he was informed by
a foreman that Mr. Blankenship stopped every miner who pulled in where he was
parked and they congregated at his truck. Since he was the mine committeeman, mine management believed that he was in charge of what was going on at
the time. Mr. Blankenship acted as the spokesman and told him that the men
wanted a guarantee that they would be paid for the lack of bathhouse water
and Mr. Herndon told him he would do his best to get water or pay the men.
Mr. Herndon returned to his office, and 30 minutes later the men left the
mine (Tr. 50).
Mro Herndon stated that some of the men had been paid for the lack of
water but that all of them probably had not because the water problems changed
from day to day and shift to shift and he was having payroll computer problems
(Tro 50-51)0 He personally never heard Mr. Blankenship advise the men to
strike and in the 6 years he has known him, the strike in question was the
first one that he believed Mr. Blankenship had ~nstigated, and that was the
company's position at the arbitration hearing (Tr~ 51, 54).
In response to a direct question as to why Mr. Blankenship was discharged,
Mr. Herndon replied as follows (Tr. 58-59):
Because we felt because of his position and his meeting
and the actions we observed that morning, that he was the
reason the men turned around and went home that day.

Q.

Did he instigate a work stoppage?

A. Come eight o'clock, no one was at work.
having a meeting. Eight o'clock is work time.

They were

Q. And that's what you mean by interfering with
management?
A. Right. At eight o'clock for the day shift, they
become our employees. We expect them to start to work.
At eight o'clock they were at a meeting. At eight thirty
they were in a meeting.

Q. How do you know those men would have worked if
Charley Blankenship hadn't been down there?
A. I don't know. I don't know that.
know that. No one knows that.

Q.

You suspected that, right?

A.

I suspected what?

You don't

Q. You suspected they would have worked if Charley
hadn't been down there?
A.

Yes, I do.

19C men anyway.

A. And based on suspecting, your company feels that is
a legitmate basis for taking the job from a man who has
worked there for six years?
A. Our company observed what we talked about and we put
forth our position and went through the grievance procedure.
If we had been proven wrong, we would have been proven wrong.
And we would have accepted that, too.

Mro Herndon stated that it was not unusual to use underground section
crews to clean and shovel belts as it had been done several times prior to
and after the incident in question when there was trouble with mantrips or
crews could not be sent in for some reason, anct he stated that "I'm a firm
believer in people giving an honest day's work fo~ an honest day's pay" (Tr.
64)o He conceded that the offer made to Mr. Blankenship concerning his
resignation from the mine committee was an unusual case, but that the strike
was also unusual and management felt that a mine committeeman had caused it
and it was an "unusual 11 offer simply for that fact (Tr. 65). He explained
it further as follows (Tr. 66-69):
Qo Did you see this as a welcome opportunity to get rid
of what you fellows might have considered to be a troublemaker, or someone overzealous in enforcing safety?

A. No, sir, we did not. We felt to resolve the problem
in a fair way [sic]. We felt because of his mine committeeman
activities that he had been part of the reason that these men

had went home. He was the leading factor, we felt these men
went home that day. And this would be part of the resolve of
the problem.

Q. How could that be when you said you met with
Mr. Wiley and the other Mr. Herndon and you discussed
whether or not you could go into negotiations and ask for
his safety committee job? You decided you might get into
trouble on up the road.
A. We decided we'd better make a distinct difference
in how we said that that day, because we didn't want safety
involved in the issue.

Q. That's what I'm saying. I'm not talking about what
you were saying. I'm talking about what you were thinking.
The fact is you openly discussed with them about "Well, we'd
better not bring up the safety matter". This was discussed
openly, wasn't it?
A.

Yes, it was.

Q. I want to know why you were discussing safety when
this was over a wildcat strike and it was a mine committee
function. What's safety got to do with it?
A. There's two separate distinct jobs. Safety committeeman and a mine committeeman. Safety had nothing to do with
this issue whatsoever, so we did not want to try to take his
safety position away from him; only his mine committeeman
position. You don't understand what I'm saying?
A. I think I understand. You said, "If we took the
safety away, we might get in trouble on up the road," you
said.
A. Safety wasn't an issue.
his safety position.

We had no ~ight to ask for

Q. And you did say that if you took his safety committee job, you decided not to do it because you might get in
trouble on up the road. Isn't that what you said?
A. We didn't decide not to take his -- we decided to
make sure we didn't mention his mine safety committee job
because it wasn't an issue.

Q. All right. The record will speak for itself on
that score. I want to ask you one final question. Why
would you be worried about getting in trouble on up the
road?

f''

99 ,J

A. Because this was not a safety issue and we didn't
want to involve safety in it. This was strictly a contractual
issue interfering with mine management.

Q. Then why didn't you say, "We'll take the man's mine
committee job and we won't worry about safety"?
A. That's all we did. We just decided to make a
distinct difference and not say anything about his safety
job, so someone might come along later like today and say
that we were making that kind of inference, and we weren't.
Regarding the portable toilet incident, Mr. Herndon testified as follows
(Tr. 69-70):

Q. And you say your policy was on the portable potty
deals that each man would carry out his own?
A.

Yes.

If he used it, yes.

Q. Are you familiar with the situation where Charley
Blankenship was told to help Randall Evans to help carry one
out?
A.

After it happened, yes, I was made familiar with it.

Q.

Why did that foreman give that order?

A. You get in forty inches of coal and you try to
carry a box. We talked about the box, a wooden box. The
Port-a-Potty was in a three-quarter inch plywood box with
handles on each side of it. And like the man said, try to
pick it up and bend over and walk.
It was just a thing of helping your buddy. And he didn 1 t
take it outside. He helped him take it three hundred foot
to the end of the track and Mr. Evans took it on outside.
And he was the logical man to help because his machine was
down and he was his helper.

Q. You mean individual miners working underground in
low coal don 1 t have to struggle and carry bigger loads than
that portable potty?
A. Sure they do. But as the supervisor, you want to
make it as easy as you can on a man whenever you can. Why
should we leave Mr. Blankenship sitting there on a miner not
operating and have Mr. Evans do something that would be twice
as hard on him as it would if Mr. Blankenship had helped him?

(}(} ( .

uvtl

Mr. Herndon testified that respondent operated five mines in 1979, but
due to economic conditions, two have been closed and the three remaining ones
are not in full operation (Tr. 82). He believed that the bathhouse in question has only been cited one time by MSHA, and that respondent has four bathhouses, each of which costs $85,000 (Tr. 83).
Dewey L. Wiley testified that he has been employed by the respondent for
3 years and prior to that worked for the United Mine Workers as a district
representative and in other underground mines. He is employed as respondent's
director of industrial relations, but health and safety matters are handled by
the general mine superintendent. He was not present on April 4, 1979, when
the shoveling and fire-bossing incidents took place. Regarding the April 10
meeting concerning hauling steel rails on a mantrip, he explained the incident
after the meeting as follows (Tr. 88-89):

Q. Did you speak with Mr. Blankenship about the Pedro
Mendez dispute?
A.

No.

I don't think we had anything --

Q.

Did you speak to Mr. Blankenship at all?

A.

Yeah.

Q•

What did you talk with Mr. Blankenship about?

A. Well, I might have just said, "Good morning,
Charley," or something like that, or made a comment or
something. But I know what you're referring to.
When Charley started to leave the thing broke up, and
some of the people had already left. And I was quite
interested in who he was talking to yesterday, because I
couldn 1 t remember who he was talking to.
Evidently, whoever it was had a probtem. We have an
absentee rule program and under this program~-- it's a
livable program -- it's progressive. You can just about
not get fired for being under ito We think it 1 s good.
It 1 s been in use since 1976.
Anyway, I overheard -- maybe I was walking out behind
Charley or something -- but the man had a complaint. I
can't remember who the man was. It was about the absentee
policy. Charley made the comment, "Don't worry about it.
It's not worth the paper it's written on."
Well, that didn't set too well with me, because
knowing Charley's position as a mine committeeman, he does
have a lot of influence on our employees. I don't want him

99'/

to go out and say to the other employees, you know, "Don't
worry about that absentee policy. It ain't worth the paper
it's written on."
Because he could lead them into believing that it wasn't
and, you know, that nothing could happen to them under it.
I said, "Charley, you shouldn't tell people that that thing
is not worth the paper it's written on, because it could get
somebody in trouble. It could lead them into feeling secure
about something that is not there."
And he said something else. And I said, Well, now
Charley, it's a good policy. There's nothing wrong with it.
And if people lay off and they don't work and they are
unexcused, you could cause them by telling them that to get
themselves in trouble. And that includes you. If you lay
off, it applies to you, too. So he left. That was it.

Q.

Is the absentee policy a safety issue?

A.

No.

Q.

Is it an issue involving management of the mines? .

A.

Yeah, very much so.

Yeah.

Regarding the April 12 strike, Mr. Wiley stated that he was not at the
mine, but was in his office some 9 miles away and observed none of
Mr. Blankenship's activities that day (Tr. 90). However, he was present at
the 24-48 hour discharge meeting with Ray and Cliff Herndon, and he recalled
the settlement offer made to Mr. Blankenship as follows (Tr. 90-91):

Q. Did you participate in the discussion with other
management employees to determine whether an offer of settlement would be made?
A.

Yes, sir.

Q.

Who else participated in that discussion?

A.

Ray Herndon and Cliff Herndon.

Q. As a result of that discussion, did someone
ultimately make an offer of settlement?
A. Yes, sir. And I'm like Ray. It's been a year and
a half ago, and I don't recall whether I said it or whether
Cliff Herndon, the general manager, said it. What the
contract does, it says, if we suspend Charley with intent

to discharge, he has a right to meet with the general superintendent or the mine manager in the twenty-four or
forty-eight hours.
At that meeting, the mine management or the general
superintendent, whichever one it may be, will make a decision whether or not, you know, to go ahead or whatever.
And I'm sure that we all discussed the decision. I know
we did.
And Mr. Cliff Herndon, the general manager, might have
made the offer or I might have made it. You know, it was no
issue, so it wasn't something you could just nail down in
your mind.

Q.

What was the settlement offer?

A. It was a sixty-days suspension and him give up his
right as a mine committeeman. Now let me explain that. We
had discussed it and we felt, due to the fact what had
happened, the way it came about -- and I think Pete said it
lasted a couple of hours there -- that Charley had acted
arbitrarily and capriciously in the way he conducted himself
as a committeeman, and hadn't acted in the best interests of
the local union or the company.
And it was to our best interest and the local union's
maybe, that he relinquish his position as a mine committeeman. There's no way to force him to do it. It's something
he could have done himself, and he certainly could have done
it.

Regarding the arbitration hearing, Mr. Wiley testified as follows (Tr.
92-95)

Q. After Mr. Feldman cleared the rop,m, was a settlement
offer made?
A. Well, Mr. Feldman, he asked me -- he heard our testimony and then he heard, I'm sure, whatever Bill Jack had said.
The other people would be like repetitious, you know, the same
thing maybe. Maybe not. I don't know what his reasoning was
if we actually wanted to fire Charley.
I told him, "We don't actually want to fire anybody."
There's no way we set out to fire people. We wouldn't hire
them in the first place, if we didn't need them or want them.
And he said, "Would you be adverse to settling this dispute?"
I said, "No, if it would resolve it and we'd have some kind
of assurance it wouldn't happen again. I'm not adverse to
any kind of a settlement."

99H

And he asked Frank the same thing. He said, 11 Frank
would you be against a settlement?" And he said, "It
wouldn't have anything to do with going on with the case if
you wanted to, wouldn't have any bearing on my decision after
the settlement."
I said, "Well, what do you suggest?" And he said, "What
do you suggest?" I said, "I'm not going to suggest anything.
I got burnt for suggesting things before. That's why I'm
here today, I guess, for offering settlements."
And he suggested the thirty-day suspension. And he asked
Frank if he thought Charley would accept it. He said, "Well,
I don't know." He said, "Will your people accept it?" I
said, "I'll ask them." He told me and Frank to go ask them.
We went out and we talked. I talked to my people and
I'm sure Frank talked to Charley and them, you know. We went
out the back of the building and they stayed in the building.
My people said, "Well, all we want to do is make the
people aware of what they've done. We feel like its' wrong,
and we still do. If they can give us some kind of assurance
this sort of thing won't happen again, sure. A thirty-day
suspension is fine. We don't want .to discharge him."
So we came back in and I told the arbitrator then. He
said, "Fine. I'll make it into an Order. You know, I'll
send it to you in writing."
But he also called Charley back in again. And Charley
could tell you what he said to him. I don't know what he
said to him.

Q.

Was this a compromise settlement?

A.

Yes.

Mr. Wiley testified that he knew nothing about the "hit man" comment
made by Mr. Vance, and he had nothing to do with the decision concerning
Mr. Blankenship's helping Mr. Evans remove the portable toilet from the
mine (Tr. 95-96)0 Mr. Wiley denied ever threatening Mr. Blankenship with
his job in Mr. Cooper's presence, and he recalled the meeting at the bathhouse as follows (Tr. 98-99):
But we was walking on down to the next bathhouses.
There's two bathhouses there. I don't think we got anything
on· that one either. It wasn't very clean. They never are
where miners change clothes. Just naturally due to the
nature of the job you're going to get the thing dirty. It's
for use. It's not to look pretty.

1000

Charley kept saying what good bathhouses they have at
other companies or something like that. You know, like
they've got a good one over somewhere. But there was no
big issue here, so this stuff -- we wasn't at each others
throats. We was just walking along talking.
He kept saying that and I think Ray said, "Well,
Charley, if it's a good place over there -- "wherever it
was at he was talking about -- "at these other companies,
why don't you go get you a job over there?"
He said, "No. I plan on being here a long time." And
I said, "Well, I wouldn't plan on it." You know, just talking. And I didn't explain myself because like I said, it
wasn't no big issue.
But what I meant was, the bathhouses we was in at that
time had been moved from another mine we had shut down. We
was in the process -- along about that time we had had some
real problems. Even though we are captive, steel companies
got to the point where they didn't need our coal anymore.
We'd already shut down the Number 20 Mine. I knew,
which they didn't know, that Number 19C Mine was on the line
to be shut down. And it eventually was. Also the 19L Mine
was on the list to be shut down, which half of it is gone
now. We just recently shut two sections down on it on the
second shift.
I didn 1 t bother to explain it myself, because I didn't
think it was a big issue, you know, about that. And that's
about where it ended at.
s and Conclusions
As correctly stated by the complainant at pages 8-10 of his posthearing
brief, the reporting of safety violations to min~management or to governmental mine safety agencies is protected activity under the Act. Further, I
believe that the parties recognize the fact that any
activities
engaged in
Mr. Blankenship in his capacity as chairman of the mine health
and safety committee are clearly protected activities, and that any attempts
by mine management to curtail those activities through discriminatory acts of
harassment, retaliation, intimidation, or threats is clearly illegal and
subject to severe penalties and sanctions under the law. The record in this
case establishes that ~tr. Blankenship is a conscientious and diligent safety
committeeman who obviously has no fear of mine management insofar as his mine
safety activities are concerned. Conversely, mine management concedes that
Mr. Blankenship is a vigorous safety committeeman, but the record suggests
that both Mr. Herndon and Mr. Wiley are not totally enchanted with the manner
in which Mr. Blankenship exercises his day-to-day mine safety committeeman's

1001

duties. However, the critical issue presented is not whether Mr. Blankenship
and mine management like each other. The question presented is whether mine
management, either directly or indirectly, has discriminated against
Mr. Blankenship in the exercise of his mine safety activities. Further, with
respect to the specific complaints lodged by Mr. Blankenship against the
respondent in this case, the question presented is whether the record
supports a conclusion that the incidents and events which complainant
believes amount to discrimination and retaliation for his safety activities
do in fact individually or collectively constitute discrimination under
section 105 of the Act.
Complainant argues that all of the separate events preceding and following his 30-day suspension raise the spectre of retaliation for mine safety
enforcement efforts on his part and establishes the respondent's discriminatory motive in suspending him from his job. The separate instances of
alleged discrimination relied on by the complainant are identified and discussed in this case as (1) the April 4, 1979, fire-bossing dispute, (2) the
April 10, 1979, mantrip safety meeting, (3) the events surrounding a work
stoppage and mine walkout of April 12, 1979, (4) a section foreman's "hit
man" comment, (5) the portable toilet or "pottie" incident, and (6) the
September 1979, bathhouse dispute, and two alleged threats purportedly made
by mine industrial relations director Dewey Wiley on September 19 and 26 to
fire the complainant for making or filing safety complaints.
In addition to his argument concerning the separate alleged acts of discrimination, complainant argues that even if those separate acts were to be
given little weight in and of themselves, when viewed in totality and taken
in the aggregate, the tilt toward discrimination against the complainant is
manifest. With regard to those alleged acts of discrimination which purportedly took place after the complainant's 30-day suspension, complainant
argues that those events must be closely scrutinized with care since any
discriminatory actions or implications thus established may retroactively
go towards showing the motive which actuated the suspension itself. Complainant also asserts that the overall conduct of all company management
officials in this situation, both past and present, must be considered.
In order to properly consider and evaluat~ CJ?mplainant's arguments, it
is necessary to closely examine the testimony and evidence concerning each
of the incidents complained of by Mr. Blankenship, as well as the cast of
mine management officials who Mr. Blankenship obviously believes have somehow collectively conspired to retaliate and discriminate against him because
of his protected mine health and safety activities. The specific incidents
have been itemized above and a discussion and analysis of each follows below.
As for the accused mine management officials in question, they are identified
in this case as (1) general mine superintendent Clifton R. Herndon, (2) director of industrial relations Dewey L. Wiley, (3) section foreman Freddy Vance,
the individual who assigned Mr. Blankenship and his crew to shovel coal at
the belt line, and the individual who purportedly made the "hit man" comment
to Mr. Blankenship, and (4) shift foreman Joe Bragg, the individual who
ordered Mr. Blankenship to assist Mr. Evans in carrying the portable toilet
from the section.

1002

The

4

1979

Fire-ho

Mr. Blankenship contends that mine management retaliated against him for
the dispute arising out of the fire-bossing incident of April 4, 1979, by
requiring him and his crew to
hovel coal in the hole." The so-called
"hole" is an underground reclaim belt which dumps coal onto a stockpile so
as to facilitate its removal from the mine. At page 11 of his posthearing
brief, counsel for Mr. Blankenship contends that, due to Mr. Blankenship's
reluctance to permit his crew to go underground prior to completion of the
firebossing that followed the ventilation fan problem, he and his crew ·were
assigned a
transfer of work duties when ordered to shovel and
clean coal spillage from the belt.~ Respondent denies that this work assignment was in any way improper or discriminatory.
In his complaint, Mr. Blankenship states that the work assignment was
made by section boss Freddy Vance, who pur·portedly told him it was "not his
idea." Mr. Vance was not called as a witness in this proceeding and there is
no credible evidence to establish his motivation in making this work assignment. Further, although Mr. Blankenship listed four members of his work crew
as "witnesses" to the work assignment, only he and Mr. Evans testified, and
both of them testified that Mr. Vance never threatened or intimid~ted them
over their mine safety activities.
Mr. Evans conceded that he did not object to the shoveling chores because
the work assignment was a direct order from mine management. His objections
stemmed from his unsubstantiated assertion that
assignment of the crew to
the shove
detail somehow exposed the men to a safety hazard because of
the presence of a bulldozer "overhead" which was loading coal. A close examination of this assertion reflects that the bulldozer was operating outside
of the mine in an area which was well supported and in fact exposed no one to
danger. Ob
ively viewed, I believe that Mr. Evans 1 displeasure with the
shoveling chores was prompted by his own subjective opinion that he was somehow being
d, along with Mr. Blankenship, because of the difference of
opinion concerning the fire bossing of the section. I also believe that it
was prompted by the obvious fact that shoveling work is physically more
demanding than "policing" a parking lot, and that the other section crew was
needling Mr. Evans' crew. Further, I take note of the fact that Mr. Evans
displayed no displeasure over the somewhat menial task of cleaning up the
parking lot while the crew was waiting to enter the mine. As a matter of
fact, the testimony reflects that such duties are routinely assigned to crews
by mine management while they are idle and standing by to enter the mine~
There is no evidence or testimony that Mr. Wiley was in any way connected
with the shoveling work assignment. Mr. Wiley's office is not on the immediate mine property and his duties do not entail the supervision of miners in
their day-to-day work assignments. Mr. Herndon testified that it was not
unusual for underground crews to be assigned to clean and shovel belts and
that this has been done on several occasions, both before and after the incident in question. Mr. Herndon also testified that he did not specifically
assign Mr. Blankenship to the shoveling chore but simply told the foreman to
keep each crew ousy while awaiting the completion of the fire bossing.

After careful consideration of the testimony of record in this case, I
cannot conclude that the assignment of Mr. Blankenship and his crew to the
shoveling duties in question was an act of discrimination or retaliation
because of Mr. Blankenship's difference of opinion with mine management over
whether the section should have been fire bossed after the ventilation fan
problem was corrected. I conclude that mine management has the right to
direct the work force and assign employees to work details, and absent any
showing that such assignments are illegal or contrary to the contract, I
am not persuaded that it is discriminatory merely by the fact that a miner
is not too enchanted with the assignment.
The April 10, 1979, Mantrip Meeting
Mr. Blankenship's complaint asserts that at a meeting on April 10 concerning the mantrip incident, Mr. Wiley threatened to fire him at the first
opportunity, and Mr. Neace is listed as a witness to this alleged statement
by Mr. Wiley. There is some dispute as to when the alleged threat was
made as well as a dispute as to the issue or event that prompted it.
Mr. Blankenship testified that Mr. Wiley told him he would "get rid" of him
during the meeting concerning the mantrip incident, and he denied any conversation concerning absenteeism at that meeting. He indicated that any
comment concerning the company's absenteeism policy was made by Mr. Evans
at the time Mr. Evans received the warning slip in question (Tr. 137,
January 1, 1981).
Mr. Wiley attributed the alleged remark to a comment that he made to
Mr. Blankenship while leaving the meeting over the company's absenteeism
policy, and he readily conceded that he told Mr. Blankenship that any miner
violating the policy would be in trouble, including Mr. Blankenship. In
short, respondent argues that any discussion "to get rid" of Mr. Blankenship
at the mee
in question resulted from a discussion concerning absenteeism,
and that Mr. Blankenship obviously misinterpreted the statement.
Mr. Neace confirmed that he was present during the mantrip meeting and
conceded that he previously received a warning slip from Mr. Herndon over the
question of absenteeism. However, he denied t?~t the subject was discussed
at the mantrip meeting, and confirmed that he hea~d Mr. Wiley state that
Mr. Blankenship would "make a mistake" and that Mr. Wiley would fire him.
He then clarified his testimony as follows: "Maybe he didn 1 t use the word
fire. He said, 'I'll get you when you do make that mistake,' or words pretty
close to that effect. It's been a long time and in fact, I didn't have any
reason for remembering ito 11
Mr. Herndon's version of the conversation and the asserted threat by
Mr. Wiley to fire Mr. Blankenship is that once the meeting concerning the
mantrip incident had concluded and the issue resolved, Mr. Blankenship
engaged Mr. Wiley in a conversation concerning the company absenteeism
po
Dur
a conversation which followed, ~tr. Herndon stated that
Mr. Wiley did indicate to Mr. Blankenship that "[w]e'll get you.too," but

100,1

that the statement was made in the context of the absenteeism policy, and
that Mr. Wiley was upset over adverse comments made by Mr. Blankenship concerning that policy.
Having viewed the witnesses on the stand during their testimony, and
after careful scrutiny of the record in this regard, I cannot conclude that
Mr. Wiley threatened to fire Mr. Blankenship because of his involvement in
the safety complaint which resulted from a section foreman permitting new
miners to be transported on a mantrip with materials which may have posed a
hazard. Both Mr. Herndon and Mr. Wiley impressed me as being credible witnesses and I believe their account that Mr. Wiley's statement was prompted
by the rather heated discussion concerning the company absenteeism policy
and that Mr. Wiley may have been provoked and lost his temper when he made
the statement. More importantly, the record establishes that Mr. Herndon
supported Mr. Blankenship's position concerning the mantrip incident,
acknowledged that he had a right to be involved in the meeting concerning
that incident, and in fact took the foreman to task over the incident.
Furthermore, there is nothing to suggest that Mr. Wiley was directly
involved in the mantrip incident, and he indicated that he did not speak
with Mr. Blankenship about that issue, and that the meeting had ended when
the absenteeism policy was brought up.
In view of the foregoing, I find that the complainant has failed to
establish any connection between any comments Mr. Wiley may have made on
April 10, 1979, at the mantrip meeting, and Mr. Blankenship's discharge
which followed on April 12, 1979, for his purported role in the work
stoppage.
The Work Stoppage of April 12, 1979
The focal point of the alleged discrimination in this case is the work
stoppage of April 12, 1979, and the subsequent 24-48 hour grievance meeting
which followed that event. The relief sought by Mr. Blankenship in this
case includes payment of full back wages and benefits, with interest, for
the 30-day suspension period, and expungement from his personnel records of
all references to that suspension. From the cp,mplainant's point of view,
the
of the aforementioned incidents of a.;)..leged discrimination which
have been discussed and analyzed, which occurred both before and after his
proposed
and subsequent suspension, when considered together suggest a pattern of discrimination which culminated in a retaliatory response
from mine management, namely, the proposed discharge of Mr. Blankenship
because of mine management's bare unsupported "belief" that he was somehow
responsible for the illegal work stoppage. In short, complainant believes
that mine management found a convenient excuse to get rid of Mr. Blankenship
and to rid themselves of his somewhat troublesome mine safety activities by
proposing his discharge based on a charge that he instigated the work stoppage and subsequent walkout.
Complainant's argument that the basis of the respondent's assumption
that Mr. Blankenship instigated the work stoppage stems solely from mine

1005

management's "feelings" and unsubstantiated "assumptions" is not totally
correct. Although Mr. Herndon conceded that it was altogether possible that
Mr. Blankenship was a lfvictim of circumstances,1t he stated that the basis
for his assumption that Mr. Blankenship instigated the work stoppage was the
fact that he was observed by his truck at the parking lot, stopping and
talking to miners who were driving by. None of the miners who were driving
by progressed beyond the point where they were intercepted by Mr. Blankenship,
and it appears that each of them pulled into the parking lot area where all
of the miners were assembling for the meeting. In addition, Mr. Herndon
testified that the men were attending the meeting at 8 a.m. and at 8:30 a.m.,
and they were supposed to start work at 8 a.m. He believed the men from the
19-C Mine would have gone to work if Mr. Blankenship were not present,
although he was not sure as to what the other men would have done. Once
assembled, and after the discussion with Mr. Herndon concerning the bathhouse
issue, a discussion in which Mr. Blankenship acted as the principal spokesman
for the miners, the miners went home rather than returning and resuming their
normal work activities.
Under the foregoing circumstances, I cannot conclude that mine management
was total
wrong in assuming that Mr. Blankenship had something to do with
the walkout, notwithstanding Mr. Blankenship's assertions that he tried to get
the men to go back to work. Even if he did, the fact is that viewed in perspective, mine management's perceptions, based on Mr. Blankenship's stopping
and talking to miners on their way to work, which resulted in their assembling
in the parking lot area for a meeting during normal working hours, lends some
credence to mine management's contention that Mr. Blankenship's actions interfered with and interrupted the normal work activities of the miners. Of
course, the merits of Mr. Blankenship's proposed discharge for allegedly instigating an illegal work stoppage was never resolved at the arbitration stage
because the hearing was abruptly ended when the parties to that dispute agreed
to a settlement. Significantly, Mr. Blankenship was represented at that arbitration proceeding by the president of his own local union, the same individual
who represented him at the 24-48 hour grievance, and the same individual who
recommended that he reject the asserted offer by mine management to res
fror.i his mine committee positions and proceed to arbitration on the suspension
and proposed discharge. More significantly, t~.is individual was not called
as a witness by Mr. Blankenship and he did not te~tify in this proceeding.
Complainant 1 s arguments that I &'ll not bound by any decision of an arbitrator and may decide this case on my de novo consideration of the evidence
and my own view of the facts is correct. After careful evaluation and
assessment of the testimony presented in this case, I cannot totally discount the result of the arbitration which culminated in Hr. Blankenship's
acceptance of the 30-day suspension. The arbitration decision reflects that
Mr. Blankenship voluntarily agreed to accept a 30-day suspension without pay
through
12, 1979, with no loss in seniority (Exh. C-7, p. 3).
Although Mr. Blankenship asserted that his decision to accept a 30-day
suspension was based on his desire to insure his job security and to provide

l00t)

continued support for his family, the fact is that the record supports a conclusion that his decision was reluctantly made and that his intention was to
pursue the matter further with the "Feds" under the discrimination provisions
of the Ac.t after receiving advice from others in this regard. However, I
believe that this decision was prompted by Mr. Blankenship's belief that by
pursuing the matter further he could somehow be compensated and receive back
pay for the period of time he was in suspension status from his mine employment. I also believe that his decision to accept a 30-day suspension was
also prompted in part by his belief that he could possibly lose the arbitration case and end up without a job.
The 24-48 Hour Work-Stoppage Grievance Meeting
In his complaint, Mr. Blankenship asserted that during the 24-48 hour
contractual meeting concerning his proposed discharge, Mr. Wiley offered to
rescind the discharge if Mr. Blankenship would resign from his safety committee positions for a period of 1 year. Mr. Blankenship testified that he
was asked to relinquish his position on the mine committee as well as his
safety committee position, and to accept a "small suspension" in return for
the respondent's offer to rescind his proposed discharge for interfering with
the work force and instigating the work stoppage. Mr. Browning, who was present at the meeting, testified that the offer made by Mr. Wiley encompassed
a proposed and suggested resignation by Mr. Blankenship from both of his committee jobs, and Mr. Browning believed that requiring Mr. Blankenship to
re
from either committee as the quid pro quo for management's agreement
not to discharge him was patently wrong.
Mr. Wiley's and Mr. Herndon's versions of the offer made at the
24-48 hour meeting stand in marked contrast to that of Mr. Blankenship and
Mr. Browning. Mr. Herndon contended that it was common for both labor and
management to make settlement offers to resolve a dispute without the necessfor formal arbitration. He testified that the offer to Mr. Blankenship
was "probably made" by Mr.
, but he insisted that it only encompassed
Mr. Blankenshipis resignation from the mine committee and not the safety
committee. Mr. Herndon believed that the work stoppage had nothing to do
and that it was purely a labor-man~gement dispute over compensation in lieu of water in the bathhouse, and that ln this context, he saw
wrong in seeking Mr. Blankenship's resignation from the mine committee as a compromise offer of settlement.
Mr. Herndon candidly admitted that the reason mine management sought
Mr. Blankenshipis resignation from the mine committee was that they believed
Mr. Blankenship's actions caused the work stoppage and was the reason the men
went home that day. As a matter of fact, Mr. Herndon testified that mine
management wanted to make it absolutely clear that Mr. Blankenship's safety
activities had nothing to do with the decision to discharge him for interferwith the work force and instigating the work stoppage, and he maintained
that this issue was openly discussed so that it would be clear that
Mr. Blankenship's discharge had nothing to do with his
activities. He
also indicated that management had no right to deprive Mr. Blankenship of his

1007

safety connnittee position and he wanted to insure that it was made clear that
his proposed discharge was strictly a contractual issue dealing with his
interference with the work force.
Mr. Wiley testified that he may have made the offer in question to
Mr. Blankenship during the 24-48 hour discussions. He believed that
Mr. Blankenship's conduct concerning the work stoppage was not in the best
interests of the union or mine management, and during the discussions the
suggestion was made that Mr. Blankenship resign from the mine committee and
accept a 60-day suspension in lieu of being fired for his role in the walkout. Mr. Wiley insisted that his intent was to insure that there was no
repetition of future walkouts, and he sought assurances that it would not
happen again. He also insisted that he did not wish to fire Mr. Blankenship,
and that he accepted Mr. Blankenship's later arbitration offer of a 30-day
suspension in lieu of a discharge because he was satisfied that the respondent 1 s position was correct.
Complainant recognizes the fact that there is conflicting testimony concerning mine management's offer made during the 24-48 hour meeting that he
resign from one or both of his mine committee jobs. Even so, complainant
suggests that all of the events which transpired in this case make it far
more likely that the company sought to strip him of both positions. Even if
it were found that they did not, complainant emphasizes that the dispute
which led to the work stoppage, and his subsequent suspension subject to
discharge, were based upon alleged violations of Federal safety regulations.
The question of mine management's "offer" to Mr. Blankenship that he
resign from one or more of his mine committees and accept a suspension in lieu
of discharge is a troublesome one, particularly in light of the fact that
Mr. Blankenship held both positions. Threatening or intimidating a miner to
resign from his safety committee position is clearly a discriminatory action
under the Act. Even though an "offer" of this type is made during grievance
or settlement negotiations, there is an inference that such offers are subtle
pressures that could be used by mine management to rid themselves of a safety
committeeman who may not see eye-to-eye with mine management on matters dealing with safety and health. Whether the same ~an~be said with respect to
11
offers 11 dealing with a miner's membership on a mine collliuittee other than
safety may be debatable, but the fact is that while a clear distinction may
be made as to the separability of the two jobs, in this case it is somewhat
difficult to separate the two because Mr. Blankenship served on both committees, as well as a third "political action" committee. Therefore, a
critical question which must be addressed is whether a miner who serves on
several mine colTh.11ittees may cry 11 f oul" when mine management seeks to discipline him for conduct which may not be clearly isolated from his safety
activities.
Mr. Blankenship testified that during the 24-48 hour meeting, he was
asked to step down from both of his committee jobs. Mr. Neace, one of the
signatories to Hr. Blankenship's initial grievance on his proposed discharge
which was filed with the respondent, testified on two occasions in reply to

1006

my questions during the hearing, that while he was present at the 24-48 hour
meeting, his recollection of the asserted "offer" made by mine management
focused on Mr. Blankenship's "union activities" rather than his safety
committeeman position (see previous transcript references, pp. 211-213,
January 6, 1981). Although Mr. Neace later testified that it was his belief
that Mr. Blankenship's predicament stemmed from his mine safety activity (Tr.
214), his conclusion does not detract from his recollection of the asserted
"offer" in question, and corroborates mine management's version of the event.
On the other hand, Mr. Browning, who was also a signatory to the initial
grievance, testified that the "offer" encompassed both committee jobs held by
Mr. Blankenship (Tr. 8). Thus, Mr. Browning's testimony corroborates
Mr. Blankenship's version of the incident.
After careful consideration of all of the testimony adduced in this case,
I find mine management's version of the offer made to Hr. Blankenship to be
plausible and believable, and when coupled with my analysis of this entire
episode, which follows below, I simply cannot conclude that management's
suggestion that Mr. Blankenship step down from his mine committee position in
itself constituted an act of discrimination or intimidation.
The initial grievance filed with the respondent by Mr. Blankenship on
April 18, 1979, with respect to his proposed discharge for interfering with
the work force (Exh. C-4), states as follows:
There was a work stoppage on the 12:01 shift on April 12,
1979, because we had problems all winter long getting water
in the bathhouse. Article XXII Bathhouse. The Company has
promised to compensate the men and we are having problems
getting paid under this Agreement, which resulted in the work
stoppage.
Article XXIV Discharge Procedure, Sections (a), (b), (c),
(d), and (f)o I, Charlie Blankenship, ask to be reinstated
and compensated for lost tirneo
Article XXV Discriminationo The Company has also discriminated against me under this Article.
Article XXII Section (r)o It has always been a prior
practice of the Local Union to use the bathhouse at 19-C for
a union meeting at 8:00 a.m. when a work stoppage has occured
[sic] for the purpose of getting the men back to work. It
has been posted on the bulletin board and the Company has
agreed with us that we can hold the meeting there for the
purpose of trying to get the men back to work.
Article XXII(a) of the contract (Exh. C-1), deals with providing bathhouse facilities for mine employees, and section (r) of that article deals
with the use of the bathhouse as a union meeting place. Article XXV, which
deals with discrimination, is limited to discrimination dealing with terms

1009

of employment, race, creed, sex, age, or "political activity, whether intraUnion or otherwise." Significantly, while the three members of the mine
committee who endorsed the grievance stated thereon that it was their belief
that Mr. Blankenship had been discriminated against because of his membership on both the mine committee and mine safety committee, Mr. Blankenship
made no such claim. His complaint, on its face, pertains to matters dealing
with contract provisions which do not appear to have any direct connection
with matters of safety.
As I view the dispute over the bathhouse, it goes beyond a simple question of a mine operator violating specific safety or health~tandards and then
failing to correct the conditions. The essence of the dispute centered not
so much on the fact that the bathhouse was not always kept tidy, but rather,
focused on compensating the miners $1.75 a day for the days that the bathhouse was without water. From the company's perspective, considering the
number of miners affected and the periods of time in question, the compensation amounted to a relatively substantial amount of money. From the miners'
point of view, I can understand their frustration over what they believed to
be a recalcitrant mine operator who found convenient "computer breakdowns 11 as
an excuse for not providing compensation. Viewed in this light, I believe
that the bathhouse dispute became the focal point of a longstanding and continual labor-management dispute which affected both sides dearly, namely,
their pocketbooks.
I believe that mine management has a legitimate interest and concern in
preventing illegal work stoppages among its work force and insisting that its
personnel adhere to normal work hours and schedules. I also believe that
mine management has a legitimate interest in addressing questions concerning
employee absenteeism so that normal production is not unduly interrupted by
miners who may absent themselves from work without bona fide excuses.
Although the latter issue is not directly involved in this proceeding, I
detect an undercurrent concerning these and other labor-management confrontations cut
across this entire proceeding. As I stated to the parties during the course of the hearing, the discrimination provisions found in section
105 of the Act are there to protect miners from discriminatory acts by mine
management which infringe on their clearly recRgnizable right to insist on
a safe and healthy work environment. The Act sho~ld not be used to provide
a Federal forum for settling labor-management disputes which have no rational
relationship to the health and safety of the work force.

In Secretary of Labor ex rel. David Pasula v. Consolidation Coal
Company, 2 FMSHRC 2786, 2 BNA MSHC 1001, 1980 CCH OSHD par. 24,878 (1980),
the Commission established the following test for resolving discrimination
cases :
We hold that the complainant has established a prima facie
case of a violation of section 105(c)(l) if a preponderance
of the evidence proves (1) that he engaged in a protected
activity, and (2) that the adverse action was motivated in
any part by the protected activity. On these issues, the

1010

complainant must bear the ultimate burden of persuasion. The
employer may affirmatively defend, however, by proving by a
preponderance of all the evidence that, although part of his
motive was unlawful, (1) he was also motivated by the miner's
unprotected activities, and (2) that he would have taken
adverse action against the miner in any event for the unpro~
tected activities alone. On these issues, the employer must
bear the ultimate burden of persuasion. It is not sufficient
for the employer to show that the miner deserved to have been
fired for engaging in the unprotected activity; if the unprotected conduct did not originally concern the employer enough
to have resulted in the same adverse action, we will not consider it. The employer must show that he did in fact consider
the employee deserving of discipline for engaging in the
unprotected activity alone and that he would have disciplined
him in any event. [Emphasis in original.]
Respondent argues that the suspension and proposed discharge taken against
Mr. Blankenship for his perceived role in the work stoppage of April 12, 1979,
would have been taken against any person similarly situated and would have
been taken against Mr. Blankenship whether or not he was a member of the
safety committee and whether or not he ever participated in safety comRlaints
against the respondent. In support of this argument, respondent points to the
unequivocal testimony of Mr. Wiley, which appears at pages 132-133 of the
January 7, 1981, hearing transcript:

MR. ALBERTSON:

My question is a hypothetical question.
If Mr. Blankenship had not been a member of the mine
committee -- strike that.
If Mr. Blankenship had not been a member of the safety
but he was a member of the mine committee, and your
management people had observed his activities on the day of
the strike, would you still have taken the action that you
took?
committee~

A. Yes, sir. If Mr. Blankenship would have been an
employee, we would have taken the action.
Qo
The fact he was a member of the mine committee, and
especially the fact he was a member of the safety committee,
would not have affected your decision in dismissing or discharging him?

MR. HARLESS:
JUDGE KOUTRAS:

Objection.
Overruled.

lOll

,. ;.·.

THE WITNESS: That wouldn't have had anything to do with
it. Had he been an ordinary employee, just an employee, then
his activities would have warranted a suspension with intent
to discharge.
MR. ALBERTSON: Mr Wiley, would you have taken the
adverse action even if Mr. Blankenship were not a member of
the mine committee?
A.

Yes.

It seems clear to me that respondent's counsel was well aware of the
Pasula guidelines when he posed the above questions to Mr. Wiley since he
used that decision as a reference point while posing his questions (Tr.
133-134). However, having viewed Mr. Wiley on the witness stand, I find him
to be a credible witness, and I accept his testimony on this question.
Further, the facts surrounding the work stoppage and the resulting suspension
action which flowed from that event establish that mine management took swift
and almost instantaneous action in giving Mr. Blankenship notice that the
respondent intended to suspend him with a view to his ultimate discharge
because of his actions in interfering with the work force and instigating the
work stoppage. Exhibit C-5, a copy of the notice served on Mr. Blankenship
by Mr. Herndon on April 13, 1979, the day following the work stoppage,
informed Mr. Blankenship of the respondent's intent to discharge him for the
following stated reasons: "Violation of Article I, Section D, interfering
with direction of work force management of the mines and instigating and
participating in an unauthorized work stoppage."
Although Mr. Herndon testified that he personally never heard
Mr. Blankenship advise the men to strike, and that the work stoppage in
question was the first "strike" at the mine, it seems clear to me from
Mr. Herndon's testimony that he considered Mr. Blankenship's leadership
role at the mine as one of a "spokesman" for the rank and file for practically all matters flowing from his mine committee positions. Viewed in
this context~ and considering Mr. Herndon 1 s perceptions of the role played
by Mr. Blankenship with regard to the work sto~pa~e, I conclude that
Mr. Herndon's testimony supports mine management's position that the suspension and proposed discharge of rvtr. Blankenship on April 13, 1979, was
prompted solely by Mr. Blankenshipvs conduct and activities which led to
the work stoppage. I also take note of the fact that complainant does not
dispute the fact that the stated charges filed against him are in fact
offenses for which an employee may be disciplined under the contractual
agreement.
Section Foreman Vance's Alleged "Hit Man" Comment
Although the "hit man 11 comment by Mr. Vance is not included as part of
Mr. Blankenship's original complaint, he brought the matter up for the first
time during the course of his testimony at the hearing in this case. The
comment by Mr. Vance was purportedly made sometime after Mr. Blankenship's
return to work at the conclusion of his 30-day suspension.

1012

Although Section Boss Vance purportedly made the "hit man" comment to
Mr. Blankenship, I cannot conclude that this constituted a threat by mine
management. The record suggests that at the time the alleged statement was
made, Mr. Vance may have been having some personal problems, and notwithstanding that Mr. Vance was the individual who directed Mr. Blankenship and
his crew to police the parking lot and shovel the coal at the belt on the
morning the ventilation fan was down, safety committeeman Randall Evans
testified that Mr. Vance never caused him or Mr. Blankenship any problems
over their safety activities and had never threatened or intimidated them.
Mr. Vance did not testify at the hearing, and there is no credible
testimony or evidence to suggest that the "hit man'' comment was intended as
a mine management threat to Mr. Blankenship. After careful consideration
of all of the testimony presented, I have discounted this alleged statement
as a threat by mine management.
The Portable Toilet Incident
Complainant asserts that the respondent discriminated against him and
punished him for his mine safety activities by removing him from his job and
assigning him to remove one of the toilets from the mine. He also asserts
that Mr. Wiley made the statement that he would see to it that Mr. Blankenship
would empty the portable toilets if he filed grievances concerning keeping
them sanitary.
Although Mr. Blankenship contends that Assistant Foreman Bragg told him
he "had orders" to assign Mr. Blankenship to assist in removing the toilet
in question from the mine, Mr. Bragg was not called as a witness. Furthermore, while Mr. Blankenship stated in his original complaint that a field
representative and a safety director of his union were witnesses to
Mr. Wiley's purported statement that he would see to it that Mr. Blankenship
emptied the toilets, they were not summoned or called as witnesses either.
In short, the only corroboration for Mr. Blankenship's conclusion that
Mro Wiley was punishing him by directing others to make sure Mr. Blankenship
empties the potties is Mr. Blankenship.
There is no evidence that ~k. Blankenship wais ever directed or ordered
to remove, clean, or otherwise dispose of any portable toilets from the mine
except for the one which Mr. Evans had used. Taken in context, and considerthe circumstances surrounding the removal of that toilet, I cannot conclude that Mr. Blankenship has established that it constituted an act of
discrimination or was part of any plot by mine management to punish or otherwise intimidate him because of his mine safety activities. To begin with,
Mr. Blankenship's assertion that he was "removed from his job" and forced
to take the toilet of the mine is not totally accurate. The incident
occurred at a time when the continuous miner Mr. Blankenship was operating
was down and idle. His helper, Mr. Evans, was asked to remove the toilet
which he had used from the section, and Mr. Blankenship was asked to assist
him. The toilet was not hand-carried completely out of the mine by
Mr. Blankenship or Mr. Evans. They transported it some 300 feet to the end

101;j

of the track and it was subsequently taken out by mantrip. Furthermore,
while Mr. Blankenship testified that he assisted Mr. Evans under protest, he
conceded that he had no argument with the right of the foreman to order him
to do it.
The toilet incident occurred sometime after Mr. Blankenship's return to
work following his suspension. After due consideration of this incident, I
cannot conclude that assigning Mr. Blankenship to assist his miner helper in
carrying the portable toilet a relatively short distance and placing it on a
mantrip during an idle moment underground, constituted an act of discrimination or intimidation by management because of Mr. Blankenship's safety
activities. There is no evidence to establish that Mr. Blankenship had been
ordered or directed to clean or remove portable toilets as punishment for
insisting that they be kept sanitary. As for the company's policy requiring
the person who used it to empty it, there is no showing that this is in anyway illegal or discriminatory, and even though Mr. Blankenship did not use
the portable toilet in question, I view the incident as a rather innocuous
and isolated occurrence. The toilet was rather cumbersome, and was enclosed
in such a manner which made it difficult for one man underground to remove it
by himself. Furthermore, there is no evidence that Mr. Herndon or Mr. Wiley
gave the orders for the toilet to be removed by Mr. Blankenship. In short,
complainant has established no connection between the toilet incident and
his suspension and proposed discharge which preceded that event.
Mr. Wiley's Alleged Threats of September 19 and 26, 1979
Mr. Blankenship has alleged that subsequent to his return to work following his 30-day suspension, Mr. Wiley threatened to fire or get rid of him
because of additional complaints and grievances concerning the bathhouse. In
support of this contention, UMWA Safety Inspector Cooper testified that during a meeting at the bathhouse on September 19, 1979, he overheard a comment
made by Mro Wiley to Mr. Herndon as they were leaving to the effect that, "if
Charlie Blankenship did not like working with the company he (Wiley) would
find a way to get rid of him. 11 He also confirmed a telephone conversation of
September 26, 1979, with Mr. Wiley, during which Mr. Wiley purportedly stated
that the company would get rid of Mr. Blankenslhip if he continued making
safety complaints. Mr. Cooper identified a copy ~f a memorandum typed by his
secretary concerning the two conversations and confirmed that it accurately
reflected the conversations with Mr. Wiley (Exh. C-9). He also confirmed
that he made a notation of Mr. Wiley 1 s comment while at the mine and drafted
a memorandum for his file after the telephone conversation, and he did so
because he thought it highly unusual for a representative of mine management
to make such statements to a UMWA official such as himself. He also indicated that Mr. Blankenship had previously advised him about several threats
he had received, and this also prompted him to make a memorandum of what he
heard. Although conceding that he had no present recollection of precisely
what was said by Mr. Wiley, he distinctly recalled the statement that
Mr. Wiley would find a way to
rid of Mr. Blankenship if Mr. Blankenship
did not like working for the company (Tr. 78).

1014

Mr. Wiley's recollection of the bathhouse meeting is stated in his previous testimony at pages 98 and 99 of the transcript. Mr. Wiley denied
threatening to fire Mr. Blankenship, but confirmed making a statement that if
Mr. Blankenship was not happy working for the respondent company he should
look for employment elsewhere. Mr. Wiley also indicated that his statement
was made in the context of the threatened closure of some of the mines due
to economic conditions as well as the continued controversy over the condition of the bathhouse.
Mr. Herndon testified that he was present at the bathhouse while
Mr. Cooper was there and while the group was walking through the area,
Mr. Herndon responded to a comment by Mr. Blankenship concerning bathhouses
at other mines. Mr. Herndon stated that he suggested to Mr. Blankenship that
he seek employment with another mine if he was not happy with the bathhouse,
and that when Mr. Blankenship responded, "[n]o, I plan on working here a long
time," Mr. Wiley commented, "I wouldn't.count on it." Mr. Herndon testified
that Mr. Wiley's comment was made in the context of a truthful assessment of
the existing economic conditions at the mine and he did not view it as a
threat to fire Mr. Blankenship because of his bathhouse complaints.
There is a direct conflict between the testimony of Mr. Cooper and·
Mr. Wiley concerning the purported threatening remarks made by Mr. Wiley to
fire or get rid of Mr. Blankenship because of his complaints concerning the
bathhouse. Mr. Cooper expressed surprise that Mr. Wiley would make such
statements initially in his presence and later to him over the telephone.
On the other hand, Mr. Wiley indicated that one would have to be stupid to
make threats to a miner in the presence of a union official, let alone making
them directly to that official.
The purported statement by Mr. Wiley on September 19 was not made
directly to Mr. Cooper. He testified that he overheard a remark made by
Mr. Wiley to Mr. Herndon, and both Mr. Herndon's recollection of the statement, as well as Mr. Wiley 1 s, stand in marked contrast to Mr. Cooper's
recorded recollection of what he overheard that day as well as his subsequent conversation with Mr. Wiley. Apparently, no one else overheard the
remarks since none of the other witnesses who ~estified in this proceeding
mentioned the incident of September 19, and the r-Emarks were not made
directly to Mr. Blankenship. He first learned of the purported remarks
when Mr. Cooper mentioned the incident to him and gave him a copy of his
memorandum some time after Mr. Blankenship filed his complaint in this case.
Significantly, the asserted threats by Mr. Wiley to fire or get rid of
Mr. Blankenship came after his return to work following his suspension and
there is nothing of record to suggest that mine management has since
attempted to fire or otherwise discipline Mr. Blankenship because of his mine
safety activities. As I view Mr. Blankenship's complaint in this case, he is
arguing that the adverse action by mine management in suspending him for
30 days without pay was a discriminatory act taken against him because of his
protected min~ safety and health activities, and that the reasons given by
the respondent for the suspension, namely, the charge that Mr. Blankenship

lOlb

interfered with the work force in violation of the contract by instigating an
illegal strike, was merely a pretext and a convenient excuse by the company
to conceal their real reason for suspending him. Recognizing that the
alleged threats of September 19 and 26, 1979, came after his suspension,
complainant nonetheless argues that these threats may be retroactively considered in establishing mine management's true motives in seeking his discharge. In short, complainant argues that Mr. Wiley's statements of
September 19 and 26, purportedly made more than 5 months after the company
instituted removal action against him, may be shown to retroactively establish mine management's state of mine and true motivation for this action.
After careful review of all of the testimony and evidence concerning
the asserted remarks made by Mr. Wiley on September 19 and 26, 1979, and
having viewed the witnesses on the stand during the course of their testimony in this regard, I believe the testimony of Mr. Wiley and Mr. Herndon
with respect to their version of the statement in question and I conclude
that Mr. Wiley did not threaten to fire Mr. Blankenship because of his
complaining about the bathhouse on the two occasions in question. My reasons for this conclusion follow.
Since the work stoppage in question was precipitated by the earlier
bathhouse controversy over pay, it seems to me that mine management had ample
opportunity to
rid of Mr. Blankenship when they proposed his discharge
over that incident by simply refusing to accept a 30-day suspension and
continuing ahead with its initial proposal to discharge him for instigating
the work stoppage. Furthermore, none of the threatening remarks attributed
to Mr. Wiley by Mr. Cooper were directed to Mr. Blankenship, and he obviously
was unware of them until well after he filed his initial complaint. I reject
complainant's argument that those remarks made 5 months after his suspension
establish a retroactive illegal motive on the part of mine management. Since
Mr. Herndon testified that the decision to seek Mr. Blankenship's discharge
over the work stoppage was a joint decision made by himself, Mr. Wiley, and
the mine manager (John Demotta), acceptance of complainant's theory would
necessarily require a finding of a retroactive joint conspiracy by three mine
management officials based on the asserted threats purportedly made by one
of them well after the proposed discharge. On the basis of the evidence
presented in this case, I simply cannot make th~t conclusion.
In the final analysis, I believe that the thrust of Mr. Blankenship's
complaints concern alleged acts of discrimination taken against him by
respondent's director of industrial relations, Dewey Wiley. Although mine
superintendent Ray Herndon is part of mine management, the testimony and evidence adduced in this proceeding does not establish that he has discriminated
against Mr. Blankenship, or has otherwise harassed, threatened, or intimidated him because of his mine safety activities. The testimony reflects that
Mr. Herndon recognized Mr. Blankenship's right as the chairman of the safety
coBmittee to become involved in the grievance meeting concerning the mantrip
incident, and in fact, Hr. Herndon chastised Foreman Mendez over the incident. Furthermore, former Safety Committeeman Neace testified that
Mr. Herndon always acted honorably with him on safety matters. As a matter

lOlb

of fact, although Mr. Neace admitted that Mr. Herndon had issued him a "slip"
for absenteeism, Mr. Neace nonetheless conceded that he never felt that any
"extra heat" was ever put on him because of his mine safety activities.
Former safety committeeman Clarkson Browning testified that Mr. Herndon
was always fair to him, and that while his decision to voluntarily quit his
safety committee job was for personal reasons, his decision to quit that
position was also prompted by the fact that the men did not like the close
relationship he had with Mr. Herndon.
The only concrete testimony concerning statements purportedly made by
Mr. Herndon which could conceivably be construed as a "threat" is the testimony by safety committeeman Randall Evans that Mr. Herndon referred to him
as a "radical" during the grievance meeting concerning the underground
portable toilets. Mr. Herndon readily admitted making the statement, but
indicated that he was provoked by Mr. Evans.
Having viewed Mr. Herndon during the hearing, I find him to be a candid
and credible witness. Taking into consideration the fact that other witnesses called by the complainant were of the opinion that Mr. Herndon treated
them fairly in matters concerning safety, and considering the fact that
Mr. Evans may have believed that Mr. Herndon was responsible for the incident
concerning the removal of the portable toilet which Mr. Evans had used from
the mine, I find Mr. Herndon's statement that he may have been provoked by
Mr. Evans to be credible. When viewed in perspective, and considering the
unrebutted testimony that respondent's mining operations have apparently been
seriously curtailed due to economic and other reasons, I cannot conclude that
Mr. Herndon's statement made to Mr. Evans was a threat to discharge
Mr. Blankenship.
Mr. Herndon conceded that he has not been completely enchanted with
Mro Blankenship's performance as chairman of the mine safety committee, and
he candidly admitted that his displeasure stemmed from the fact that
Mro Blankenship has on occasion filed complaints directly with the agencies
responsible for mine safety enforcement rather than first bringing them to
the attention of mine management. Even so, Mr~ Herndon readily conceded that
safety complaints may be filed directly with MS~ pursuant to section 103 of
the Act without notifying mine management and that this has been done on
several occasions" Furthermore, Mr. Blankenship conceded that respondent has
corrected safety complaints that he brought to its attention and that mine
management does not totally ignore his safety complaints. And, while
Mr. Neace stated that he believed the respondent considered Mr. Blankenship
to be "a thorn in their side," he did not indicate that the respondent would
not comply with safety. He further indicated that "I've worked for companies
that was worse," and he characterized respondent's safety attitude when he
stated: "They don't comply as fast as they should at times."
During the course of the hearing in this matter it was brought to my
attention that Mr. Blankenship has another complaint pending with MSHA
which is currently being investigated (Tr. 63, 138). In addition, after

Mr. Blankenship was called to the stand by me for the purpose of eliciting
additional clarifying testimony, he asserted that he had also been threatened
by the mine safety director at some unspecified time, and also discussed
other alleged acts of discrimination which he characterized as "punishment"
because of his safety activities (Tr. 134-138). After consideration of this
information, I have given it no further weight or consideration in this proceeding. Complainant is free to pursue those alleged acts of discrimination
independent of the instant proceeding. Only in this way may a fair and
impartial determination of those allegations be made by the Secretary of
Labor as part of his investigative authority under the Act. If the complainant is not satisfied with the results of the Secretary's determination
in this regard, he is free to file a subsequent separate action with the
Commission.
Conclusion and Order
In view of the foregoing findings and conclusions, I conclude and find
that respondent's initial suspension and proposed discharge of Mr. Blankenship
was not motivated in any part by any protected activities engaged in by
Mr. Blankenship in his capacity as chairman of the mine safety committee. I
further conclude and find that the record adduced in this proceeding does not
establish that respondent has otherwise discriminated against the complainant
by virtue of his mine safety activities. Accordingly, the complaint filed in
this matter is DISMISSED, and the requested relief is DENIED.

Administrative Law Judge
Distribution:
Larry Harless, Esquire, P.O. Box 1313, Charleston, WV 25328 (Certified
Mail)
Harold S. Albertson, Jr., Esquire, Hall, blbertson & Jones, P.O.
Box 1989, Charleston, WV 25327 (Certified ~Iail)

1018

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

Civil Penalty Proceeding

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

Docket No. DENV 79-539-PM
A.C. No. 13-01368-05003 F

v.
Lisbon Quarry

B. L. ANDERSON, INC.,
Respondent
DECISION
Appearances:

Eliehue Brunson, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Robert D. Houghton, Esq., and Thomas M. Collins, Jr.,
Esq., for Respondent.

Before:

Judge William Fauver

This case was brought by the Secretary of Labor under section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.,
for assessment of civil penalties for alleged violations of mandatory safety
standards at Respondent's No. 2 Plant, Lisbon Quarry, Linn County, Iowa.
The case was heard at Cedar Rapids, Iowa. Both parties were represented by
counsel, who have submitted their proposed findings, conclusions, and briefs
following receipt of the transcript. Having considered the contentions of
the parties and the record as a whole, I find that the preponderance of the
reliable, probative, and substantial evidence establishes the following:
FINDINGS OF FACT
1.
li~estone

At all pertinent times, Respondent, B. L. Anderson, Inc., operated a
quarry known as the Lisbon Quarry in Linn County, Iowa.

2o Respondent has four portable crushing plants, one sand plant, and
two washing plants. The equipment at the plants includes crushing equipment,
trucks, loaders, drills, and trailers. Respondent also has a drilling crew,
a stripping crew, and an asphalt crew that operate the plants. Respondent's
limestone product is used in the highway construction and maintenance
industry. Respondent normally locates a quarry and sets up a crushing
plant near its customers' projects.

1019

3. At all relevant times, the mining process at a rock quarry generally
involved drilling holes in the floor of the quarry to blast the rock, scooping the blasted rock with a front-end loader, and dumping the material into
. the crusher. The rock was passed through crushing and sizing equipment and
dumped on a conveyor belt that transported it to trucks that stockpiled the
material nearby. The loader's cycle of scooping blasted rock at the face,
dumping a load in the hopper and returning to the face for another load would
take about 2 minutes.
4. When a new plant was assembled and ready to begin production,
Respondent's safety director, Mr. Dennis Goettel, would inspect the equipment to see that the plant was in compliance with state and federal safety
and health standards and that all employees were provided with the required
personal protective equipment. His inspection included nofse surveys of
the crushing equipment and mobile equipment, checking the condition of the
equipment, and seeing that the backup alarms on the mobile equipment functioned properly.
5. On September 15, 1978, Mr. Goettel and Mr. Craig Thompson, a control
representative from United States Fidelity and Guarantee Company, checked
decibel readings on the equipment of the No. 5 Plant at the Lisbon Quarry,
including a Michigan 275 B loader that was equipped with a Model 861 11 Warn-ALann" backup alarm on the right rear wheel and an electronic alarm on the
rear of the vehicle. Mr. Thompson used a sound level meter approved by the
National Institute for Occupational Safety and Health (NIOSH). He calibrated
it with a battery-operated tone signal instrument to 93.6 dba, and used a wind
screen to offset the effect of wind on the meter readings.
6. To determine the "surrounding noise" of the crushing and dumping
operations, sound-checks were made at six locations, with peak readings from
90 to 98 decibels. Ramps were located on either side of the primary crusher.
Readings were taken from both directions as the loader went up the ramp,
dumped blasted rock in the hopper and backed down the ramp. Mro Thompson,
who held the noise level meter, stood about 10 feet from the right side of
the loader while taking readings of its noiseso Generally, decibel readings
drop about 6 decibels for every 10 feeto The loudest reading near the loader
was taken when the primary crusher was between the loader and Mr. Thompson.
Noise level readings varied with the amount of material that was dumped into
the crusher. Differences in terrain, equipment, and type of muffler could
also cause noise level readings to vary.
7. On September 26, 1978, Mr. Goettel and Mr. Thompson ran similar tests
at Respondent's No. 4 Plant at the Ballheim Quarry; No. 3 Plant at the Garrison
Quarry; and No. 1 Plant, a sand plant, at the Spaight Sand Pit. They did not
check the No. 2 Plant because, after checking the other three plants, the
results were all found to be within acceptable limits. All readings were
below 100.
Conditions and Events at the No. 2 Plant on October 13 - 15, 1978
8. On October 13, 1978, Mr. Goettel inspected the No. 2 Plant, which had
just begun the first day of operations at the Lisbon Quarry. It was in full

1020

production when he arrived at the plant, about 3 p.m. He remained until the
equipment shut down at 5 p.m. Mr. Goettel's inspection included checking the
employees' personal protective equipment and the condition of the equipment,
including the backup alarms on the trucks and loaders, the windshields on the
trucks, and the guards on the crushing equipment. Normally, if a piece of
equipment was not working properly, he would notify the plant foreman and the
maintenance shop in Cedar Rapids.
9. The crushing equipment was located on the east side of the quarry,
the quarry face on the south, and the drill on the west. Crushing equipment
included a primary crusher, a surge bin, and secondary crushing equipment.
There was a dirt ramp leading to the primary crusher. A conveyor transported
material from the primary crusher to the rest of the equipment and finally
to a bin where it was dumped into stockpile trucks. The bin could be filled
in about 15 minutes.
10. Respondent used Michigan Clark 275 B front-end loaders at the No. 2
Plant. This model was about 13 feet 3 inches high, 22 feet long, 11 feet
3 inches wide, and was equipped with an accoustical-lined ROPS cab. From the
ground to the top of the hood in the rear was about 9 feet; in addition, a
large muffler was horizontally attached to the rear hood, above the radiator,
and the radiator extended a substantial distance rearward beyond the rear
wheels. From the operator's position, there was a substantial blind spot
behind the radiator at the back end. The loader came with an electronic
backup alarm, which was connected to the transmission and operated off the
engine. Respondent disconnected the electronic alarm and replaced it with
a mechanically-operated backup alarm, known as a Model 861 "Warn-A-Larin."
Hr. Howard Peckham, Respondent's maintenance superintendent, decided to
replace the electronic alarm because he believed it was not as dependable
as the mechanical alarm and was more difficult to maintain.
11. The Warn-A-Larm is designed to be attached to a wheel and to sound
a bell when the wheel turns counterclockwise. As the wheel so rotates, four
steel ball bearings fall against the inside of a bell and produce a bell
alarmo The device is thus designed to be used only on the right rear wheel.
The faster the vehicle backs up, the faster the bell sounds. The \.Jarn-A-Larm
has a decibel output range of 100 to 110. The electronic alarm produces a
repeating beeping noise and the Warn-A-Larm produces a bell sound; however,
their decibel outputs are similar.
12. On October 13, 1978, when Mr. Goettel inspected the loader and its
backup alarm, he stood in the general working area of the loader and near the
primary feeder as the loader dumped its load and backed down the ramp. He
could hear the backup alarm from the right side while the loader was backing
down the ramp and as it returned from the quarry face in a reverse direction.
Mr. Goettel heard the alarm over the surrounding noise from many areas in the
plant. However, he was always toward the right of the loader when he checked
the sound.
13. On October 14, at about 2 p.m., Mr. Kevin Bonney, who was operating
a stockpile truck, placed his empty truck under the surge bin to receive a
load. Mr. Bonney loaded his truck with material that had already accumulated

1021

in the surge bin and shut it off after the bin had emptied. He then drove the
partially loaded truck to the fuel trailer while the bin was refilling.
14. He returned to the bin and continued to fill the truck. Mr. Martin
Haker, the drill operator, observed Mr. Bonney get out of his truck, walk
around to the front of the truck and start to cross a vacant ground area that
was bordered on the south by the quarry face, on the west by the drill operation, and on the east by the crushing operation. The loader used a good part
of this area in its cycle of scooping at the face, backing away in a northerly
direction, then going forward to drive up the crushing site ramp on the east,
backing down the ramp and into the vacant area and then going forward to the
face, on the south. Mr. Haker observed that Mr. Bonney was headed toward his
drill; this seemed normal, as Mr. Bonney had often crossed the area to visit
Mr. Haker. After seeing Mr. Bonney head toward him, Mr. Haker turned his
attention to the drill because it became stuck in rock. When he freed the
drill and looked up, Mr. Bonney had changed direction and now was walking
south, toward the loader. Both the loader and Mr. Bonney were traveling
toward the face; Mr. Bonney was 30 to 40 feet behind the loader; and the
loader was about 50 yards from the face. Mr. Raker's drill became stuck
again, and he returned his attention to the drill. About 30 to 60 seconds
later, he freed the drill and looked up, and this time he saw Mr. Bonney
lying on his back. The loader was backing away from the face and moving
toward Mr. Bonney. Mr. Haker ran to the scene and waved his arms to stop
the loader operator. Mr. Flagel, the loader operator, saw his signal and
immediately stopped the loader, about 18 feet from Mr. Bonney. As the loader
was backing up, Mr. Haker, who was far to the right rear of the loader, could
hear the sound of the backup alarm.
15. An ambulance was summoned. The ambulance personnel determined that
Mr. Bonney was dead. For reasons not satisfactorily explained in this record,
but not relevant to the backup alarm issue, the ambulance personnel decided
they had no authority to remove the body until a coroner inspected the body
and scene undisturbedo They left the body on the ground, in place, for a
considerable time while awaiting the corornero

160 Mr. Dow Eo Prouty, Respondent's Director of Technical Services, was
notified of the accident at about 2:30 p.m, arrived at about 3 p.m., and took
photographs of the accident scene. The ambulance had already arrived; however~ the body had not been movedo
17. The lower right side of Mr. Bonney 1 s body was severely injured,
including injuries to his lower abdomen and upper part of his right leg. The
nature of the wound and the direction of the flow of blood would indicate that
a great pressure had moved down that side of his body from the lower torso to
the leg in a line generally toward the quarry face.
lB. Mr. Prouty observed a trail of blood spots left by the left rear
tire of the loader. He measured the circumference and diameter of the wheel,
the distance between the blood spots, and determined that the blood spots
trailed inby the body toward the face, and not outby the body.

19. By the time Mr. Prouty finished taking photographs, the coroner
arrived, examined the body and scene, and the body was removed.
20. On October 15, 1978, Inspectors Worsham and Paul investigated the
accident. Also present were Mr. Goettel, Mr. Bill Dahms, quarry foreman,
Mr. Dow Prouty, Mr. Tom Anderson, Treasurer, and Mr. Dave Lyon, Assistant
Operations Manager of the Aggregate Division. The mine was not in operation.
21. The exact position of the loader at the time of the accident could
not be determined because, when the accident was discovered, the loader was
making its return from the quarry face.
22. The quarry foreman, Mr. Bill Dahms, operated the loader to test its
brakes and the backup alarm. Mr. Dahms drove the loader a short distance forward and in reverse to test the brakes, and then drove forward about 75 feet
before backing up that distance to test the backup alarm. When the loader
was moved forward, Inspectors Worsham and Paul were standing about 5 feet
from the machine on the right side. Mr. Prouty and Mr. Anderson were standing about 15 feet from the right side of the loader and Mr. Lyon was standing
left of center and about 10 feet directly behind the loader. Mr. Goettel was
standing near the toolhouse shed trailer, which was to the left of the loader
and several hundred feet away. Inspector Worsham testified that, when this
test was made, he was able to hear the alarm. He then moved about 5 feet to
the left side of the machine and the machine was again moved forward and in
reverse. From the left side of the machine, he was unable to hear the backup
alarm when the loader's engine was running.
23. After the sound tests, Mr. Worsham told the B.L. Anderson personnel
that he was unable to hear the backup alarm from the left side of the loader;
however, the B.L. Anderson personnel told him that they were able to hear the
alarm from where they were standing.
240 On October 15~ 1978, Inspector Worsham issued Citation/Order of
Withdrawal Noo 178846 for a violation of 30 CoF.R. § 56.9-2 (equipment defects
af
saf
shall be corrected before the equipment is used). The citation reads in part:
The front-end loader is equipped with a wheel-mounted,
bell-type backup alarm. The alarm is not audible above the
engine noise of the loader except on the side of the loader
where a bell is mounted. Loader is to be operated only from
quarry to shop for installing an audible alarm.
25" Inspector Worsham found that the operator knew or should have known
of the defect by making a sound inspection on the left side of the loader.
He believed that the cited condition was serious and a contributing factor
to Mr. Bonney's death.
26. The condition was found to be abated on October 16, 1978, by reconnecting the electronic backup alarm on the front-end loader.

102~)

27. On December 10, 1979, the citation/order of withdrawal was modified
to substitute a charge of a violation of 30 C.F.R. § 56.9-87 (failure to provide audible reverse
alarm which is audible above the surrounding noise
level).
28.

B. L. Anderson's safety program includes the following:

(a) A copy of the company's safety policies are mailed annually to
each employee and new employees receive a copy of these policies. Included
in these policies are the mandatory USHA regulations. The company requires
the wearing of hardhats,
shoes and safety glasses around crushing
operations.
(b)

At least two

meetings for management personnel are held

each year.
(c) ~oolhouse
are held for individual crews to discuss
specific safety issues related to the particular crew.
1

(d) Mr. Goettel tries to spend at least 1 day each week in the
field to visit the crews and plants and to make written safety checks to see
that the crews are adhering to the company's and MSHA's safety policies.
(e) Seminars are held for all loader operators and truck drivers
and they are shown films on
and proper maintenance techniques.
(f) "Quarry Notes," a company newsletter, is mailed to all employees
and customers four times a year. It includes a.column called "For Safe
Keeping," which addresses
issues.
(g) Mr. Goettel tries to instill a positive safety attitude in the
employees so that they have
in their work and exercise care. Four times
each year, Mr. Goettel
the names of crews that have worked without
a lost-time injury. Also hardhat decals are given to each company
has worked without a lost-time injury.
to show how many years the
WITH FURTHER FINDINGS
Based on the
of withdrawal issued on October 15, 1978, and
amended on December 10, 1979 the Secretary has charged Respondent with a violation of 30 C.F.R. § 56.9-87, which provides:
Heavy duty mobile
shall be provided with
audible warning devices. When the operator of such equipment
has an obstructed view to the rear, the equipment shall have
either an automatic reverse s
alarm which is audible
above the surrounding noise level or an observer to signal
when it is safe to back up.
The Secretary contends that, because a backup alarm was installed only
on the loader's right rear wheel, it was not audible to employees to the left

side of the machine and that this inaudibility contributed to the fatal
accident on October 14, 1978.
The Secretary proposes a penalty of $3,000.
Respondent first argues that its operations do not affect "commerce"
within the meaning of the Act because materials mined from the Lisbon Quarry
and other quarries are sold only to local asphalt and cement-paving contractors, trucking vendors who resell the product, and local ready-mix businesses.
Respondent contends that there is no evidence that its products enter interstate commerce or that the operations affect interstate commerce.
Respondent then argues that the Secretary failed to prove by a preponderance of the evidence that the view to the rear of the loader was obstructed
so as to require a backup alarm. Finally, Respondent argues that the Secretary failed to prove by a preponderance of the evidence that the backup alarm
was inaudible above the surrounding noise level.
Commerce Coverage
Section 4 of the Act provides: "Each coal or other mine, the products of
which enter commerce, or the operations or products of which affect commerce,
and each operator of a mine, and every miner in such mine shall be subject to
the provisions of the Act."
Section 3(b) of the Act defines "commerce" as "trade, traffic, commerce,
transportation, or communication among the several States, or between a place
in a State and any place outside thereof, or * * * between points in the same
State but through a point outside thereof." By enacting the 1969 Coal Mine
Act, the predecessor to the 1977 Act, "Congress intended to regulate interstate commerce to 'the maximum extent feasible through legislation.'"
Secretary Vo Shingara, 418 Fo Supp. 693, 694 (1976), citing S. Rep. No. 1055,
89th Cong., 2nd Sess. 1, reprinted in (1966) U.S. Code Cong. & Ad. News,
2072.
In !EY. v. United States, 421 U.S. 542, 547 (1975), the Supreme Court
said:
Even activity that is purely intra-state in character
may be regulated by Congress, where the activity, combined
with like conduct by others similar situated, affects commerce among the States or with foreign nations. See Heart
of Atlanta Motel, Inc. Vo United States, 379 u.s.----z-41, 255,
13 L.Ed. 258, 85 S. Ct. 348 (1964); Wickard v. Filburn,
317 U.S. 111, 127-128, 87 L.Ed. 122,
S. Ct. 82 (1942).
In Wickard v. Filburn, supra, the Supreme Court held that wheat grown
by an individual farmer for his own consumption is subject to federal regulation if it exerts a substantial economic effect on interstate commerce. The
Court said that, even though one farmer's contribution to the demand for wheat

may be trivial, that is "not enough to remove him from the scope of federal
regulation where, as here, his contribution, when taken together with that of
many others similarly ~ituated, is far from trivial." 317 U.S. at 127-128.
Highway construction and maintenance have been held to be within
interstate commerce coverage of federal statutes. See, ~·Ji·• N.L.R.B. v.
Custom Excavating Inc., 575 F.2d 102 (7th Cir. 1978).
I conclude that Respondent's mine operations come within the Mine Act's
commerce coverage. The material mined by Respondent is regularly used to
build and repair primary and secondary state roads that abut or are near the
state border and are used in the regular stream of regular interstate
commerce. Also, there is evidence to support a finding that some of Respondent's equipment, including the Michigan Clarke 275 B front-end loader, was
purchased out of state.
The Charge of a Safety Violation
From the loader operator's position, there was a substantial blind spot
behind the radiator at the rear of the loader. I find that the height and
structure of the loader created an obstructed rear view so as to require the
use of an automatic backup alarm or the presence of a flagman under the subject safety standard.
I also find that a preponderance of the evidence shows that, from the
left rear side of the loader, the mechanical backup alarm mounted on the
loader's right rear wheel was not audible above the surrounding noise of the
loader engine. Inspector Worsham testified that, while standing on the left
side of the loader, he was unable to hear the sound of the backup alarm over
the loader's engine. He was the only person to stand close to and on the
left side of the loader during the tests. Mr. Prouty and Mr. Anderson, who
testified that they could hear t~e backup alarm, were standing on the right
side of the loader (the same side as the wheel-mounted alarm); and Mr. Lyon,
who also testified that he could hear the alarm, was standing more behind the
machine than on its left side. Mr. Goettel testified that he could hear
the backup alarm about 100 yards from the left side of the loader; however,
at such a distance, a bell sound might not be masked by the sound of the
engine even though at a distance of 5 feet the engine could have such a
masking effect. I find that Mr. Goettel's ability to hear the backup alarm
from that distance is not necessarily relevant to the audibility of the alarm
close to the loader, and does not rebut the inspector's testimony.
The sound level tests conducted by Mr. Goettel and Mr. Thompson on the
crushing equipment at the No. 5 Plant at the Lisbon Quarry are not helpful in
determining whether a person on the left rear side
of the loader at the
No. 2 Plant could hear the backup alarm. Their tests concluded that the combined noise from operation of the crushing equipment and the loader was below
the decibel output of the Warn-A-Lann, and they both testified that they heard
the sound of the backup alarm from the left side. However, Mr. Goettel testified that the front-end loader at the No. 5 Plant that day was also equipped

102b

with an operating electronic backup alarm. The front-end loader they tested
was not the one involved in the accident on October 14, and the differences
in equipment and plant environment could affect sound level readings. Differences in equipment and environment also lessen the probative value of
tests at Plants 1, 3, and 4.
Mr. Goettel also testified that, on the day before the accident, he
inspected the No. 2 Plant at the Lisbon Quarry and heard the sound of the
backup alarm. However, the path he followed during this inspection did not
bring him as close to the loader's left side as Inspector Worsham was on the
day after the accident and he was not specifically trying to determine if
the backup alarm could be heard from the left side.
I credit Inspector Worsham's testimony, and find that, from the left
rear side of the loader at the No. 2 Plant, the Model 861 Warn-A-Larm mounted
on the right rear wheel was not audible above the surrounding noise. I
therefore conclude that the alarm did not meet the requirements of the safety
standard.
The Secretary has not proved by a preponderance of the evidence that
Mr. Kevin Bonney was backed over by the loader or that the inaudibility of the
backup alarm on the left side of the loader contributed to his fatal accident.
There were no eye witnesses to the accident. When the drill operator
last saw Mr. Bonney, Mr. Bonney was walking behind the loader and both the
loader and Mr. Bonney were traveling toward the face. Within about 1 minute,
Mr. Bonney was run over.
Mr. Flagel, the loader operator, last saw Mr. Bonney when the loader was
backing down the ramp of the primary crusher. At that point, Mr. Bonney was
about 20 feet away and appeared to be walking toward the drill. Mr. Flagel
then completed his reverse motion, shifted into forward gear, and drove to
the faceo When he was backing up from the face, he saw Mr. Haker motion him
to stopo Mro
had no knowledge of the accident, and could not determine whether the loader backed over Mr. Bonney or struck him when it was
going forward.
The Secretary contends that, when Mr. Flagel backed down the ramp of the
crusher, he failed to see Mr. Bonney and backed over him with the left rear
wheel. However, the evidence is not clear as to whether Mr. Bonney was struck
by the front of the rear wheel or by the back of the rear wheel. The most
specific evidence: the trail of blood spots left by the left rear tire, the
nature of Mr. Bonney's injuries, and the blood from the body, would tend more
to indicate that the loader was going forward when it struck Mr. Bonney. At
the minimum, the evidence does not preponderate to a show that Mr. Bonney
was backed over or that the condition of the backup alarm contributed to the
accident.
Nonetheless, I conclude that the failure to provide an adequate backup
alarm was a violation of the safety standard and that this created a high

1027

degree of gravity. The blind spot obstructing the driver's rear view and the
inaudible zone (left rear side), where the backup alarm on the right wheel
was ineffective, combined to create a serious risk of death or serious bodily
injury. This condition resulted from the operator's negligence, since the
operator, by the exercise of reasonable care, should have known that an
inaudible zone was not reached by the right-wheel backup alarm.
CONCLUSIONS OF LAW
1. The undersigned judge has jurisdiction over the parties and subject
matter of the above proceeding.
2. Respondent violated 30 C.F.R. § 56.9-87 by failing to provide the
front-end loader at its No. 2 Plant with an adequate backup alarm, as alleged
in Citation/Order of Withdrawal No. 178846. Based upon the statutory criteria
for assessing a civil penalty for a violation of a mandatory standard, Respondent is assessed a penalty of $2,500 for this violation.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the Secretary of Labor
the above-assessed civil penalty, in the amount of $2,500, within 30 days from
the date of this decision.

U)~~
WILLIAM FAUVER, JUDGE

Distribution:
Eliehue Brunson, Esq., Trial Attorney, Office of the Solicitor, U.S.
Department of Labor, 911 Walnut Street, Rm. 2106, Kansas City,
MO 64106 (Certified Mail)
Robert D. Houghton, Esq., and Thomas M. Collins, Jr., Shuttleworth
& Ingersoll, 500 MNB Eld., P.O. Box 2107, Cedar Rapids, IA 52406
(Certified Mail)

1028

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

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

'?c A; ..

Civil Penalty Proceedings

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

v.

Docket No. LAKE 79-284-M
A/O No. 47-02550-05003
Bohn Pit and Frederic Plant

YELLOW RIVER SUPPLY CORPORATION,
Respondent

Docket No. LAKE 79-285-M
A/O No. 47-00906-05002

OSTERMANN SAND AND GRAVEL, INC
Respondent

Wittenbreer Pit
Docket No. LAKE 79-301-M
A/O No. 47-02537-05002
Spooner Pit & Plant

DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Robert G. Schlegel, for Respondents.

Before:

Judge Cook

I.

Procedural Background

On October 19 and 25, 1979, the Mine Safety and Health Administration
(Petitioner) filed proposals for assessment of civil penalties against Yellow
River Supply Corporation (Respondent) in the above-captioned proceedings.
The proposals were filed pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 820(a) (Supp. III 1979) (1977 Mine Act),
and allege violations of four provisions of the Code of Federal Regulations.
Answers were filed by Respondent. As a result of motions filed by Petitioner
the captions of the cases were amended to include Ostermann Sand and Gravel,
Inc. as a Respondent. On December 1, 1980, in a prehearing report Yellow
River Supply Corporation and Ostermann Sand and Gravel, Inc. appeared by
Roger G. Schlegel, Controller.
Notices of hearing were issued on January 8, 1981, and February 25, 1981.
The hearing was held on March 12, 1981, in Eau Claire, Wisconsin. Representatives of both parties were present and participated.

102B

II.

Violations Charged
Docket No. LAKE 79-284-M
Citation No.

Date

30 CFR Standard

291943

06/14/79

56.12-25

06/15/79

56.12-25

07/11/79
07/11/79

56.12/25
56.12-25

Docket No. LAKE 79-295-M
291945
Docket No. LAKE 79-301-M
291946
291947
III.

Proceedings at Hearing

Evidence was presented during the hearing by both parties up to a point
where, as a result of a conference off the record, the Petitioner presented
a motion to vacate the four citations involved. The following statements
appear in the record of proceedings on this point:
THE COURT: All right. Then, we'll proceed back on the
record. I might mention that we have had a conference off
the record between representatives of both parties to discuss
some of the detailed matters in the proof that is required as
it relates to the violation we've now been discussing; and as
a result of this conference, I believe, Mr. Carmona--and
further as a result of his conferring with his own inspector-has reached some conclusion as to what his next step is going
to be in this case; so would you like to explain that now,
Mro Carmona?
MR. CARMONA: At this point, we would like to express
our position in the case indicating that we are willing to
withdraw--vacate the citation, the four citations involved in
this case because we feel we don 1 t have sufficient evidence
to show that the operator didnvt comply with the standard that
required grounding. We find that there is no detail with
reference to the definition of grounding to determine at what
point when the equipment is tested can be determined whether
it's grounded, or not. Based upon this fact, we discussed
with the operator the problem that we're facing with the
possibility if we vacate the four citations, that it is very
important that his mine be kept in a safe condition; so that
the operator is willing to continue his program making every
possible effort to keep electrical equipment and check the
equipment tested is adequate to ensure that there is no

1030

danger for the men working in that place. I plan to request
from the Mine Safety and Health Administration a revision of
this particular standard to provide sufficient information
to the operator as to the proper way to enforce this particular standard, providing more details about what type of
reading is supposed to be obtained when the equipment is
tested, or any other way that they can have some guidelines
to follow and determine what they have to do to be in
compliance.
THE COURT: Very well. Now, Mr. Schlegel, you've heard
the statement of Mr. Carmona. He apparently is making a
motion now to vacate the four citations, and he is actually
moving to vacate his petition in this case and for the dismissal of the case; but, of course, you've heard his statement as to procedures that should be carried out between
MSHA and your companies to try to resolve this question. Now
would you like to make some statement about that?
MR. SCHLEGEL: Yes, I would. I would like to make the
statement that both Yellow River Supply Corporation and
Ostermann Sand and Gravel, Incorporated will fully and
completely cooperate with Mine Safety and Health Administration in providing a safe place to work in all of our facilities. This has been our policy in the past, and it will
continue to be in the future.
THE COURT: All right. So Mr. Carmona, you will have
your Inspector then contact Mr. Schlegel's people to work out
what you have described earlier as far as what really has to
be shown in order that grounding is proper, is that correct?
That is correcto

HRo CARMONA:

THE COURT:

And that is agreeable, Mr. Schlegel?

MR. SCHLEGEL:

Yes, it is.

THE COURT: All right. Then under those circumstances,
1 1 11 grant your motion, Mr. Carmona; and then we'll enter an
order after the transcript has been received providing for the
vacation of the four citations and for the dismissal of the
proceeding under the circumstances as stated here today.

* **
(Tr. 78-80).
ORDER
Accordingly, IT IS ORDERED that Citation Nos. 291943, June 14, 1979,
30 C.F.R. § 56.12-25; No. 291945, June 15, 1979, 30 C.F.R. § 56.12-25;

1031

No. 291946, July 11, 1979, 30 C.F.R. § 56.12-25; and No. 291947, July 11,
1979, 30 C.F.R. § 56.12-25 be, and hereby are, VACATED and that the proposals for penalty herein be, and hereby are, DISMISSED.

Law Judge

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail)
A. C. Ostermann, Secretary, Yellow River Supply Corporation,
Turtle Lake, WI 54889 (Certified Mail)
Roger G. Schlegel, Controller, Yellow River Supply Corporation,
Ostermann Sand & Gravel, Inc., Turtle Lake, WI 54889 (Certified Mail)

1032

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

UNITED STATES STEEL CORPORATION,
Contestant
v.

Contest of Order
Docket No. PENN 80-318-R
Order No. 841730

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

Civil Penalty Proceeding

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

Docket No. PENN 81-48
A.C. No. 36-05018-03060V

v.
Cumberland Mine
UNITED STATES STEEL CORPORATION,
Respondent
DECISION
Appearances:

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

Before:

Judge Melick

Expedited hearings were held in these cases in Meadow Lands,
Pennsylvania, on January 29 and 30, 1981, pursuant to sections 105(d) and
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
11
~ ~·· the
Act," and in accordance with Commission Rule 52, 29 C.F.R.
§ 2700.52.
A bench decision was rendered following those hearings. That
decision, which I now affirm, is set forth below with only non-substantive
modifications.

The contest of Order No. 841730 and the civil penalty
case associated with that order have been consolidated for
hearing. The validity of the order of withdrawal issued
under the provisions of section 104(d)(l) of the Act ]:_/ is
therefore before me as well as the question of whether there
have been any violations of mandatory standards. If I find
that there have been such violations, then I must also determine the amount of civil penalty that should be assessed
considering the criteria under section llO(i) of the 1977
Act.
Because these cases have been heard on an expedited
basis (indeed the parties agreed to proceed with only
2 days' notice), some evidence relating to the penalty
criteria is not yet available. I will not, therefore,
be in a position to make a final determination as to the
amount of any penalty at this time, but I will nevertheless make whatever findings I can based on the evidence
that is available.
The order at issue here actually charges eight separate
violations which appear to fall within three categories. ];_/
Section 104(d)(l) of the Act, 30 u.s.c. § 814(d)(l), provides as follows:
11
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 Acto 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
enter
, such area until an authorized representative of the Secretary determines that such violation has been abated. 11
2/ The order reads as follows:
"The approved roof control plan was not being complied with in the Nos. 3
and 4 West Main track haulage entries. Loose and overhanging ribs were observed
by this inspector and George Rantovich, inspector on both sides of the No. 3
entry from No. 31 crosscut to No. 27 crosscut where mantrips and supply wagons
were parked, and on both sides of the West Main parallel track haulage entry
from No. 31 crosscut to the No. 1 track switch. The width of the West Mains
1/

103ti

The first category involves loose and overhanging ribs which
are alleged to have existed in violation of the mandatory
standard at 30 C.F.R. § 75.200. That section, in relevant
part, provides that the roof and ribs of all active underground roadways, travelways and working places shall be
supported or otherwise controlled adequately to protect persons from falls of the roof or ribs.
The second and third categories of alleged violations
concern the operator's roof-control plan. Although the
relevant part of the standard at 30 C.F.R. § 75.200 requires
only the filing of a roof-control plan that is approved by
the Secretary, those provisions have been construed to also
require that the operator comply with that plan. The second
category of violations charge more particularly that the entry
widths in certain areas of the mine were in excess of 16 feet
as called for in the roof-control plan. The third category
of violations charge more particularly that excessively long
diagonal distances existed at various intersections.
For the reasons I am going to set forth later in this
decision, I conclude that none of the violations in these
cases was caused by "unwarrantable failure." "Unwarrantable
failure" has been defined as the failure by an operator to
abate a condition that he knew or should have known existed
or the failure to abate because of indifference or lack of
due diligence or reasonable care. Zeigler Coal Corporation,
2 IBMA 280 (1977).
I find however that violations nevertheless did exist
here with respect to the first and second of the eight
cont
parallel track entry between Noo 31 crosscut and the No. l track switch was
measured to be 18 feet or more in width for approximately 15 hundred feet.
The diagonal distances of 4-way intersections located in the West Main
parallel track entry were measured as follows: No. 9 intersection 34-1/2 ft.
by 26 feet; No. 8 intersection 36 fto by 22 fL; No. 3 intersection 40 ft. by
21 ft.; No. 2 intersection 32 ft. by 27 fto; intersection at sta. No. 1283
measured 37 f to by 38 ft. The approved roof control plan requires that the
roof and ribs of all active underground roadways be supported or otherwise
controlled adequately to protect persons from falls of the roof or ribs, and
that the width of entries not exceed 16 feet. The plan also states that the
total diagonal distance of 4-way intersections not exceed 56 feet and that
neither diagonal distance exceed 31 feet. Additional supports had not been
set to reduce the width of the entries or intersections to allowable limits.
This area is traveled daily by assistant mine foreman and miner examiners who
should have obs~rved the conditions."

1035

charges--those relating to loose and overhanging ribs. The
testimony of the two inspectors is entirely credible and I
find from their testimony that significant portions of the
cited ribs were cracked, that 2- to 3-foot sections of rib
extended into the entry from 6 to 12 inches and that these
conditions existed sporadically throughout 300 to 400 feet
of the No. 3 entry between crosscuts No. 31 and No. 27 and
in the \Jest Mains parallel track haulage entry from the
No. 31 crosscut to the No. 1 switch entry.
This evidence of the rib conditions is indeed even supported by the testimony of the operator's own witnesses. For
example, the company inspector-escort, Charles Lernunyon,
admittedly saw portions of the cited rib fall to the floor
after being tapped by a sounding stick. Other witnesses for
the operator claimed not to have seen the conditions described
by the inspectors but that evidence certainly does not contradict the affirmative findings by the inspectors. Much of the
difficulty these witnesses were having was clearly only one
of semantics. According to their definition an unlawful
"overhanging rib 11 is only an overhanging rib that is above
head level. No authority has been offered such a narrow
interpretation and I find it to be totally erroneous. That
explains, however, why the operator's witnesses could never
reach the conclusion that any of the ribs cited here were
in fact !!overhanging. 11
In dealing with the question of unwarrantable failure
and negligence, I am not convinced that management was aware
of the existence of overhanging or loose ribs. The testimony
of union safety committeeman Robert Sollar and safety committee chairman Gregory King in this
is inconclusive.
Although Sollar and King had complained to mine superintendent Sullivan about various general safety problems, neither
sought to have the ribs scaled. They asked only to have
management look at various conditions to see if management
thought they warranted attention. That indicates to me that
there was no specific or serious concern with any obvious rib
condition. They apparently could not reach the conclusion
themselves that the ribs were, indeed, overhanging or loose
but merely requested management to have a look. Furthermore,
while I do not doubt that Art Guty, a miner assigned to clean
up sloughage along the ribs in the West Main haulage, may have
also made various complaints to management about conditions
in the mine, it is not that clear that he had complained
specifically about the overhanging and loose ribs at issue in
the order at bar. Guty admitted that before the order was
issued, he had indeed already scaled those ribs he thought
posed a danger as he cleaned up sloughage alongside the
ribs.

l03b

I am also persuaded by the testimony of the operatorts
witnesses that the cited rib conditions were not very unusual
when compared to other uncited sections in this mine and,
indeed, in other mines in the Pittsburgh seam. Although, as
I say, I believe violations did occur here, I do not believe
that the violative conditions were so obvious and clear that
the operator could be charged with having knowledge that the
violations existed or that it should have known of the conditions before they were cited in the order. I do not therefore
find that the violations were the result of "unwarrantable
failur~' or any significant negligence.
I find the gravity of the hazard created by these rib
conditions to have been moderate to serious. Mr. Guty testified that he continued shoveling sloughage alongside some ribs
that purportedly were overhanging without apparent serious
concern for his. safety. Moreover, the persuasive evidence in
this case is that the overhanging portions of the ribs were
not above head level where clearly the most dangerous hazard
would exist. Neverthless, the overhanging portions here did
create a hazard of serious injury to someone who might be
bending over and to the lower portions of the body of someone
working adjacent to the ribs. There is no question that there
was rapid good faith abatement of these violations.
The next series of violations related to provisions on
page 4 of the roof-control plan which specify that entry
widths shall be 16 feet. As I stated when the motion to dismiss was filed and throughout this proceeding, I believe that
the operator is bound by the plain meaning of the language in
its roof-control plan and must strictly comply with its terms.
It is not the province of the Administrative Law Judge to
create a new roof-control plan or rewrite the plan under the
se of construction. Thus, when the roof-control plan calls
for entries not to exceed 16 feet, the entries must not exceed
16 feet. If the entries are wider than 16 feet it is at least
a technical violation of the plan.
There is no dispute that the widths of the cited entries
were in excess of 16 feet where noted by the inspector. There
is no question about that and therefore the violations have
been proven as charged. The gravity of the violations and the
negligence of the operator must then be considered. In this
regard, the inspector himself indirectly admitted that these
conditions were not necessarily a hazard under the facts of
this case because of the operator's roof-bolting practices.
Indeed the inspector admitted that the pattern of four roof
bolts set across the entry that was in fact followed here
would have been an acceptable method of abating the cited
condition had those bolts been installed after the excess

1037

width violations had been discovered by him. Inexplicably,
the inspector concluded that because the roof bolts here had
been inserted before his discovery of the excess widths, it
was not therefore an acceptable mode of abatement. Under
the circumstances I cannot conclude that the excess widths
cre~ted any hazard.
Under the circumstances, I also cannot conclude that
U.S. Steel was negligent or that the violation was the result
of "unwarrantable failure." It certainly was operating under
the reasonable belief that its four-roof-bolt pattern provided
adequate roof support even where the entry widths slightly
exceeded 16 feet. Moreover, MSHA now appears to concede that
such a bolting pattern did indeed provide the necessary support. The foregoing discussion points out one of the many
problems I have with this roof-control plan. I believe that
clarification is needed with respect to exactly what is going
to be required of the operator where sloughage (which everyone
concedes is going to occur) causes these entries to exceed
16 feet. The plan as it now exists unfortunately does not
deal with that problem.
With respect to the final series of charges in the order
at bar, I find that there are actually two possible violations
of this section of the roof-control plan. The last paragraph
on the page containing
No. 4 states that the sum of
diagonals A and B (which are the diagonals in the intersections) shall not exceed 56 feet. That is an unconditional
requirement of the plan and no exceptions are set forth. In
examining the relevant exhibits, I find as a matter of fact
that the sum of the diagonals in each and every cited intersection exceeds 56 feet. Now, with respect to these measurements, I observe that the notes of the inspector made at the
time he was underground differed in many cases from the measurements on the corresponding exhibit submitted by MSHA.
However, in either case,
s of which measurement you
take, the swn of the diagonals is in excess of 56 feet. The
operator has not produced any affirmative evidence of its own
to contradict these measurements so I find for purposes of the
violations here, that the differences in the inspector's notes
are immaterial. So again I must find that at least technical
violations of intersection widths have been proven as charged.
I observe, however, that the
also specifies that if
either diagonal A or diagonal B exceeds 31 feet, then additional support consisting of posts or cribs may be provided
to abate that condition. I find that in each of the cases
cited that, indeed, such additional support was provided
within the general vicinity of the intersection. The
Government seeks to have me write into the roof-control plan

l03b

a requirement that this additional support must be located
precisely within the direct line of the diagonals. I find no
such requirement in the roof-control plan and I do not intend
to write such a requirement into the plan. As I said before,
I believe it is improper in construing these plans to consider
the secret beliefs, the secret intentions or the uncommunicated interpretations that either party has regarding the
plan. I observe that in any event MSHA admitted that it
could produce no scientific or empirical evidence to support
its contention that the additional support in these wide
intersections should be placed in the direct line of the
diagonals to provide maximrnn support or that the support
actually provided by the operator was in any way less safe.
This is also an area where amendments to the roof-control
plan ought to be made to obviate future litigation of this
issue and so that the operator knows exactly what is required
of it.
Under all the circumstances, although I conclude that
the sum of the
was in excess of 56 feet and that
therefore there was at least a technical violation of the
roof-control plan, I believe the operator had made good faith
efforts to do what it understood to be required to abate such
a condition i.e. install additional support using cribs and
timbers. It was not an unreasonable interpretation of what
the roof-control plan called for so I do not find that the
operator was
in any of these circumstances. For
the same reason I do not find that the violation was the
result of "unwarrantable failure."
Since MSHA could not say that the location of the added
support in these intersections was not at least as good as
within the direct line of the diagonals, I cannot find that
the condition here was hazardous. In the absence of any
such scientific or empirical evidence that there was any
greater hazard created by the actual location of these cribs
and posts, I a~ unable to assess gravity.
I find in accordance with the stipulations entered at
the beginning of this case that the operator and this mine
are certainly of
size. There is no evidence that the
operator would be unable to pay any penalties that I might
impose in this caseo
As I say, I will not issue a final order
the
amount of
until such time as I see the history of
any prior violations. 3/
A computer
sessed Violation History Report" which was
submitted posthearing indicates a significant history of violations at the
Cumberland Mine including 28 violations between August 11, 1978, and August 10,
1980, of the standard here at issue.

1039

ORDER

Order of Withdrawal No. 841730 is vacated. The following penalties
totaling $406 shall nevertheless be paid within 30 days of this decision for
violations of the cited mandatory standard. Secretary v. Island Creek Coal
Company, 2 FMSHRC 279 (1980).
Violation No.

Penalty

1
2

$200
200

3

1
1
1

4

5
6
7
8

Distribution:
Louise Q. Symons, Esq., Attorney for
600 Grant Street, Pittsburgh, PA 15

ted State Steel Corporation,
(Certifi d Mail)

David Street, Esq., Office of the Sol citor, U.S. Department of Labor,
Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)

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

Contest of Order of Withdrawal

BADGER COAL COMPANY,
Contestant

Docket No. WEVA 80-675-R

v.

Order No. 805795

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

Badger No. 14 Mine
Respondent
DECISION

Appearances:

David J. Romano, Young, Morgan and Cann, Clarksburg,
West Virginia, for Contestant;
Catherine M. Oliver, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, Pennsylvania, for
Respondent.

Before:

Judge Melick

This case is before me upon the notice of contest filed by the Badger
Coal Company (Badger) under section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq., the "Act," challenging the
validity of an order of withdrawal issued pursuant to section 104(d)(l) of
the Act.
Section
ows:
"If~ upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the
conditions created by such violation did not cause imminent danger, such violation is of such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health hazard, and
if he finds such violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety standards, he shall
include such finding in any citation given to the operator under this Act.
If~ during the same inspection or any subsequent inspection of such mine
within 90 days after the issuance of such ci
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."

l04J

The order here at issue actually alleges three separate violations of
the mandatory standard at 30 C.F.R. § 75.200. While the relevant part of
that standard facially requires only that the operator adopt a roof-control
plan approved by the Secretary of Labor, it has been construed to mean that
the operator must also comply with its approved plan. Zeigler Coal Company,
4 IBMA 30 (1975), aff'd, 536 F.2d 398 (D.C. Cir. 1976). As clarified at
hearing, the order first charges that the roof-control plan was violated in
that the "measured width of the roadway into the No. 6 pillar block on the
three miner section was 19 feet and 6 inches and only a single row of posts
were [sic] installed on the left side of the roadway." The operator's plan
then required that the final split in a pillar that is being full-pillar
retreat mined be limited to a single roadway 14 feet wide and that double
rows of posts be installed before starting that final split.
The plan itself is silent as to whether these requirements for the final
split are applicable where the remaining block of coal or "stump" is of sufficient size so as to provide adequate roof support in itself. MSHA conceded
in closing argument, however, that if that stump of coal was at least 12 feet
by 20 feet in size then it would not have been necessary to comply with those
provisions of the roof-control plan cited herein. Thus, whether there was a
violation of the operator's roof-control plan as charged here depends in part
upon whether that remaining stump in the pillar being retreat mined was less
than 12 feet by 20 feet in size. In this regard, Badger's safety director,
John .McKnight, testified that the stump was 12 ·feet by 20 feet. Delbert
Campbell, Badger's safety inspector who accompanied MSHA inspector George
Schrader on the day at issue, concluded that the stump was "twenty foot
squa·re." It is noteworthly that McKnight and Campbell had been sequestered
during the hearing and therefore were not subject to the influence of the
other's testimony. Moreover, the significance of their testimony in this
regard was not apparent until later in the hearing when MSHA conceded there
would be no violation if the stump was of sufficient size.
On the other hand, when Inspector Schrader was asked about the size of
this stump, he responded: "It's been awhile, Your Honor, I just couldn 1 t
say. 11 He later approximated that it was 4 to 6 feet wide on one side,
10 feet wide on the other side and, from his sketch, about 20 feet long. 2/
In light of the inspector's admitted uncertainty, I accord lesser weight to
his estimates. Under all the circumstances, I find the testimony of Campbell
and McKnight to be the more credible and I therefore conclude that the stump
o coal remaining in the pillar at issue was at least 12 feet by 20 feet in
not seem to agree on the precise location of
stump as depicted on the various mine maps in evidence, it is nevertheless apparent that McKnight and Campbell were indeed describing the same
stump as Schrader. Campbell was with Schrader and actually helped him measure the roadway at issue. Schrader told him that the width was 19 feet
6 inches and that it constituted a violation. It was the only violation of
that same specific nature. In addition, Schrader subsequently pointed out
the precise location of this violation to McKnight.

1042

size. Accordingly, there was no need for the final split in that pillar to
have been limited to a single 14-foot roadway protected by double rows of
posts as might otherwise have been required by the roof-control plan. The
first violation alleged in the order is therefore vacated.
The order charges, secondly, that "breaker posts were not installed
across the roadway on the right side of the No. 6 pillar block which was
mined out." According to Schrader, those posts should have been located at
the position indicated on Government Exhibit G-1 by the numbers 9 through 16.
Schrader admitted at hearing, contrary to what he depicted on his sketches,
that the cited area was actually in an entry adjacent to a permanent barrier
pillar protecting a gas well. That location corresponds to what is depicted
in the roof-control plan as unsupported gob. Under the circumstances, I do
not find that the roof-control plan required breaker posts to have been
located where the inspector has suggested. T he second violation alleged in
the order is therefore also vacated.
The order charges, lastly, that breaker posts were not installed across
the roadway into the mined-out area between the No. 3 miner (021) section
inby the last open crosscut, 4 and 5 blocks. Although Badger contended at
hearing that the order did not provide adequate notice of the specific location of this
violation and that the order should therefore have
been partially dismissed (see MSHA v. Jim Walter Resources Et Al. 2 FMSHRC
1827 (1979), regarding the sufficiency of
, I find that its challenge
is not to the sufficiency of the notice per ~ but rather to the question of
whether the condition cited actually existed at the location
by
the inspector in his order. The only issue before me than is whether the
violation existed as charged.
Whether or not there was a violation here does indeed depend on the precise location of the cited condition. If the location was as depicted by the
numbers 1
8 on Government Exhibit G-1, and as alleged by MSHA, then
there was a violation of the roof-control plan. If on the other hand the
cited area was as depicted by the letter "C" on Operator's Exhibit No. 4, and
as
by
, then clearly there was no violation. After evaluating
the testimony from the sponsors of these opposing views, I find that Badgervs
contention should prevail. I am impressed by the consistency of the testimony from
's witnesses McKnight and Campbell, regarding the layout of
the mine and the location of significant features therein. Understandably
they were able to demonstrate a more thorough and accurate knowledge of their
mine and their testimony in this regard is corroborated by engineering draw:ings prepared from surveys. The testimony of, and the sketches by, Inspector
Schrader on the other hand are fraught with inconsistencies. As previously
noted, Schrader was unaware of the location of a rather significant feature,
a barrier
r, in the immediate vicinity of the conditions cited. Indeed,
this barrier was erroneously depicted in his sketches as partially mined-out
blocks of coal. I observe also that other
coal pillars were given
numbers on one of Schrader's original sketches that did not coincide with
the numbers
corresponding pillars in the subsequent sketch prepared by
him for the hearing. Schrader admitted to these and other inconsistencies.

I am persuaded by these factors to believe that Schrader was indeed disoriented when he prepared the last charge in the order. Accordingly, I
cannot give any weight to his testimony regarding the location of this
alleged violation. Since that precise location is critical to the Government's case, that case must fail. The third violation alleged in the order
is therefore also vacated.
ORDER
Order of Withdrawal No. 805795 and the violations cited therein are
VACATED.

Distribution:
David J. Romano, Esq., Young, Morgan ad
Clarksburg, WV 26301 (Certified Mail)
Catherine M. Oliver, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480-Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)

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
ADHINISTRATION (MSHA),
Petitioner
v.

Civil Penalty Proceeding
Docket No. WEVA 81-22
A/O No. 46-02061-03040V
Peytona No. 4 Mine

CANNELTON INDUSTRIES, INC.,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA for
Petitioner, MSHA;
William C. Miller II, Esq., Cannelton Industries,
Inc., Charleston, WV for Respondent, Cannelton
Industries, Inc.

Before:

Judge Merlin

This case is a petition for the assessment of civil penalties filed
by the government against Cannelton Industries, Inc. A hearing was held
on April 7, 1981.
Order of Withdrawal 668147
At the hearing, the Solicitor moved the approval of a settlement
for this violation in the amount of $500. The original assessment for
this violation was $750. This order was issued for a failure to comply
with the approved ventilation plan which requires that line curtain be
maintained to within 10 feet of the face and that 3,000 cubic feet of
air per minute be maintained at the face. In support of the reduction,
the Solicitor advised that
was less than originally assessed
since the continuous miner had just finished mining in this section and
had knocked down the curtain as it was backing out. In addition, gravity
was less because no power had been turned on in the section, no other
work was in progress there and there was no methane detected in the
area. Further, the condition was abated immediately by the rehanging of
the curtain and the size of both the mine and the company is medium. I
accepted the Solicitor's representations. Noting that the recommended
amount was a substantial amount, I approved the proposed settlement.
Order of Withdrawal 665636
At the nearing, the parties agreed to the following stipulations
(Tr. 4):

1045

(1)

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

(2) The operator and the mine are subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.
(3)

I have jurisdiction of this case.

(4) The inspector who issued the subject order was a duly
authorized representative of the Secretary.
(5) A true and correct copy of the subject order was properly
served upon the operator.
(6) Imposition of a penalty will not affect the operator's ability
to continue in business.
(7)

The alleged violation was abated in good faith.

(8) The operator had 182 assessed violations in the 24 months
preceding the alleged violation, which is an average history.
(9) The operator is a medium size company and the mine in question
is medium in size.
At the hearing, documentary exhibits were received and witnesses
testified on behalf of MSHA and the operator (Tr. 8-138). At the
conclusion of the taking of evidence, the parties waived the filing of
written briefs and agreed to make oral argument and have a decision
rendered from the bench (Tr. 138). A decision was rendered from the
bench setting forth findings, conclusions and determinations with
respect to the alleged violation (Tr. 142-144).
BENCH DECISION
This case is a petition for the assessment of a civil
penalty based upon an alleged violation of 30 C.F.R. 75.200. The
alleged violation is of the operator's roof control plan. It is
now well established that the roof control plan has the effect of
law and of a mandatory standard.
The pertinent section of the operator's roof control plan
is Paragraph ll(a), which provides as follows: "Sidecuts shall be
started only in areas that are supported with permanent roof
supports. During development, except where old workings are
involved, working places shall not be holed through into accessible
areas that are not supported on 5-foot maximum spacing lengthwise
and crosswise to within 5 feet of the face."
The basic conflict here is one of credibility. There is no
dispute that there was a punch-through or a hole-through in the

104b

last open crosscut from the No. 2 crosscut into the No. 1 Room.
There is, however, a conflict between the two inspectors and the
operator's two witnesses with respect to whether the area in the
No. 1 Room punched through from the No. 2 crosscut was supported.
The inspectors testified that they saw no such supports. The
operator's safety inspector and the operator's supervisor of health
and safety testified that there were such supports and in particular,
two temporary supports right in the punch-through and four to six
temporary supports in the No. 1 Room, which was reached by the
punch-through.
After consideration of the demeanor and the statements of all
the witnesses, I accept the operator's testimony in evidence on
this point and most particularly the testimony of the operator's
supervisor of health and safety. I accept the operator's evidence
given at the hearing with respect to the temporary supports marked
on the documentary exhibits, and I further accept the testimony
with respect to a photograph taken of these temporary supports.
I further believe that the Government's case is weakened
by the fact that there was so much confusion and inconsistency

regarding the map of the are.a in question. No such.confusion and
inconsistencies were present in the operator's case.
I also accept the operator's evidence regarding temporary
supports in the subject area because it was undisputed that the
operator was very careful when it set supports and dangered off the
No. 1 Room. It simply makes no sense for the operator to have been
so careful in the No. 1 Room and then immediately thereafter
undertake such dangerous activities in punching through from the
No. 2 crosscut.
Moreover, I accept the testimony of the operator's supervisor
of health and safety that the only reason for the temporary supports
being set in the affected area was because it was
to be a
punch-through from the No. 2 crosscut.
It does appear to me that there was some confusion, as
testified to by the operator's witness, with
to the basis
on which the order was issued, and this evidence as well supports
the operator's version of the case.
Based upon the foregoing, I find that there was no violation
and, therefore, no civil penalty will be assessed.

ORDER
The foregoing decisions issued from the bench are hereby AFFIRMED.

1047

The operator is ORDERED to pay $500 within 30 days from the date of
this decision.

Paul Merlin
Assistant Chief Administrative Law Judge
Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of
Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
William C. Miller II, Esq., Cannelton Industries, Inc., P.O. Box 1226,
1250 One Valley Square, Charleston, WV 25324 (Certified Mail)

l04d

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 Ai~D HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. SE 79-16-M
A.O. No. 31-00582-05003

v.

Castle Hayne Quarry & Mill

IDEAL BASIC INDUSTRIES,
CEMENT DIVISION,
Respondent
DECISION
Statement of the Case
On
10, 1981, the Commission remanded this case to me for the
purpose of assessing a civil penalty for a citation which I vacated
from the bench on March 5, 1980, and my decision in this regard was
reduced to
in my original decision of June 9, 1980. The citation
(No. 103843), was issued by an MSHA inspector on July 25, 1978, and charged
the respondent with a violation of mandatory safety standard 30 CFR
56.9-2.
After due consideration of the previous record containing the
testimony and evidence adduced by the
with respect to the citation,
I make the
findings and conclusions pursuant to the Commission 1 s
remand order:
Fact of violation
The Commission has reasoned that based on their consideration
of the record a violation has occurred. Accordingly, the
citation must be AFFIRMED.
Historv of Prior Violations
In my previous decision sustaining several other citations
which are not in issue in this remand, I concluded that
respondent's prior history of violations did not warrant
any increased civil penalty assessment and I reaffirm
that
here.

104a

Size of Business and Effect of. Civil Penalties on Respondent's Ability
to Remain in Business
In the prior proceeding, the parties agreed that the mine in question
employed 162 employees and that annual production is 600,000 tons,of marl,
the basic substance used to produce cement, and that annual production
for the respondent as a whole was some four million tons. I concluded
that respondent was a large operator and that its mining operation
at the quarry and mill in question was medium in scope. I reaffirm
those findings.
Respondent did not contend in the prior proceeding that the assessment
of civil penalties will adversely affect its ability to remain in business
and I conclude that the assessment levied in this instance will not
adversely impact on respondent's mining business.
Good Faith Compliance
A copy of the citation termination notice reflects that the condition
cited was corrected and abated through the replacement of the defective
coupler in question. While the date of the termination is subsequent
to the time initially fixed by the inspector, the testimony of record
does not support a conclusion that good faith compliance was not exercised.
To the contrary, all of the remaining citations which I affirmed in
this case reflected that they were abated rapidly, and it is altogether
possible that the actual termination date reflects the actual date of
termination of the citation rather than the actual date that repairs
were made. I conclude that the citation in question here was abated
in good faith, but there is no evidence to suggest that abatement was
achieved rapidly or that the respondent was dilatory.

The record supports a finding that the citation resulted from
the respondent's failure to exercise reasonable care to insure that the
defective coupling was repaired before it was discovered by the inspector.

The Comrnissionvs own interpretation of section 56.9-2, supports a
conclusion that the conditions cited in this case constituted a serious
violation.
Penalty Assessment
The initial proposed civil penalty assessment made by MSHA in this
case for the citation in question is $38. Considering all of the statutory
criteria found in section llO(i) of the Act, including the foregoing
findings and conclusions, I cannot conclude that the initial assessment
is unreasonable, and IT IS AFFIRMED.

1050

Order
Respondent IS ORDERED to pay a civil penalty in the amount of $38
for the citation in question here, payment to be made to MSHA within
thirty (30) days of the date of this decision and order, and upon
receipt of payment this matter is DISMISSED.

k-«~
Administrative Law Judge

Distribution:
Darryl A. Stewart, Esq., U.S. Department of Labor, Office of the Solicitor,
280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)
Karl W. McGhee, Esq., Stevens, McGhee, Morgan & Lennon, P.O. Drawer 59,
Wilmington, NC 28401 (Certified Mail)

1051

FEDERAL. MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE
DENVER, COLORADO 80204
~~~~~~~~~~~~~~~~-)

)
)

CONTEST OF CITATION

Contestant,

)

DOCKET NO. WEST 80-301-R
Citation No. 0246571

JOINT VENTURE UNITED STATES STEEL CORPORATION
AND KAISER STEEL CORPORATION,

)
)
)
)

KAISER STEEL CORPORATION,

Contestant,

)
)
}

DOCKET NO. WEST 80-483-RM
Citation No. 0246571-6
MINE: Sunnyside No. 2

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

~~~~~~~~~~~~-=--~~~~~

Appearances:

Louise Q. Symons, Esq.
Law Department
United States Steel Corporation
600 Grant Street
Pittsburgh, Pennsylvania 15320
David B. Reeves, Esq.
Counsel, Industrial Relations
Kaiser Steel Corporation
P.O. Box 217
Fontana, California 92335,
For the Contestants
Robert A. Cohen, Esq.
Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203,
For the Respondent

Before:

Judge Jon D. Boltz
DECISION AND ORDER
STATEMENT OF THE CASE

Pursuant to section 105(d) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (here and after called the Act), Kaiser
Steel Corporation (here and after called Kaiser) contested the issuance on
April 8, 1980, of Cttation No. 246571, which alleged a violation of 30
C.F.R. 77.216-3(b). The citation stated, inter alia, that a potentially
1/ When a potentially hazardous condition develops, the person owning,
operating or controlling the impounding structure shall immediately: (1)
Take action to eliminate the potentially hazardous condition; (2) Notify
the District Manager; (3) Notify and prepare to evacuate, if necessary, all
coal miners from coal property which may be affected'by the potentially
hazardous conditions; and (4) Direct .a qualified person to monitor all
instruments and examine the structure at least once every 8 hours, or more
often as required by an authorized representative of the Secretary.

1052

hazardous condition exist[s] at the Grassy Trail Reservoir in that the
spillway structure is inadequate. The citation refers to a report
submitted by the contestant which states that the embankment of the dam
would be overtopped by 5.72 feet of flood and that a deep seated slide may
exist in the right abutment and should be investigated. In its amended
notice of contest, Docket No. WEST 80-301-R, Kaiser denied the alleged
violation and alleged that respondent had no jurisdiction to issue the
citation because the reservoir is not a "coal or other mine" as defined by
the Act.
On August 25, 1980, Citation No. 246571-6 was issued to the operator
designated as 11 Joint Venture Kaiser Steel-U. S. Steel." The cit at ion
stated, "The U.S. Steel Corporation [hereinafter referred to as U.S.S.] has
been included with Kaiser Steel Corporation as joint operators of the
Grassy Trail Reservoir . . . . " U.S. S. filed its not ice of contest, Docket
No. WEST 80-483-RM, and therein denied that a potentially hazardous
condition existed at the Grassy Trail Reservoir and alleged that neither
the joint venture nor U.S.S. is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977.
FINDINGS OF FACT
1. On September 17, 1951, Kaiser and Geneva Steel Company entered
into a joint venture agreement to construct and maintain the Grassy Trail
Dam. (Ex R-13). U.S.S. succeeded to the interest of Geneva Steel Company.
2. Pursuant to the agreement, U.S.S. owned an undivided 61.2%
interest and Kaiser owned an undivided 30.8% interest in the reservior and
its appurtenant works. (Ex R-13).
3. The earth filled dam was built in 1952 and measured approximately
85 feet in height and approximately 600 feet in length. Approximately
1,000 acre feet of water are contained in the dam when it is full to the
top. (Vol. I, p. 19).
4. The State of Utah, Division of Water Rights, is required by Utah
statutue to approve construction of earth dams and to continue to inspect
such dams after they are constructed. (Vol. III, p. 59, 61).
5. The purpose for which the dam was constructed was to provide a
stable year round supply of water for household, commerical, and lawn
watering purposes to the towns which became known as East Carbon City and
Sunnyside. The agreement provided that the water would be used primarily
for domestic use, and, if there was excess water, it could be used for
industrial or miscelleanous purposes at the coal mine. (Ex R-13).
6. The crest of the dam is 7,620 feet above sea level. The normal
pool elevation of the dam is at an elevation of 7,580 feet above sea level.
The coal mining complex of Kaiser, called Sunnyside, is at an elevation of
approximately 6,708 feet above sea level and is located approximately 4 1/2
miles down stream from the dam. (Ex. R-2, Vol. I, p. 25).
7. Approximately one mile below Kaiser's mine complex LS the town of
Sunnyside. The town's elevation is 6,523 feet above sea level and it is
approximately 5 1/2 miles down stream from the dam. Further down stream,
approximately one mile, is the town of East Carbon City, at an elevation of
6,303 feet. (Vol. I, p. 25).

8. Estimates are that from 2,000 to 6,000 persons reside in the
towns of Sunnyside and East Carbon City. (Vol. I, p. 52, Ex. R-20).
9. An employee of U.S.S., an outside foreman at their Geneva Mine,
which is located approximately 10 miles East of Grassy Trail Creek, drives
to the dam generally once daily, including Saturdays and Sundays, spending
approximately two hours there in order to look over the facilities, check
for possible slide areas, and check "dam overflow, if needed . 11 Depending
upon the water level of the tanks in the towns of Sunnyside and East Carbon
City, he adjusts water outflow from the dam to maintain an adequat~ water
supply. (Vol. III, p. 108; Vol. I, p. 165, 166, 175; Vol. I, p. 166).
10. There is one mutual valve at the dam that releases water into a 10
inch pipeline. The water from this line is distributed to East Carbon City
and the town of Sunnyside. Water from the line also flows to the 500,000
gallon tank at the Kaiser mine complex. This tank supplys some water for
facilities at Kaiser. Water from the tank is also used for the needs of
the town of Sunnyside. (Vol. I, p, 166, 167).
11. The water from the dam passes through a chlorinator on Kaiser
property and then goes into the 500,000 gallon storage tank. From the
storage tank, the water is piped to the town of Sunnyside. (Vol. III, p.
103).
12. From the main water line below the storage tank, another line
diverts water for use on Kaiser property. The water is then used at the
bathhouse, shop area, and office area for showers or drinking water, and
also to fill the boiler. (Vol. III, p. 104).
13. The boiler provides heat for the coal preparation plant, the shop,
the bathhouse and the warehouse. During the winter months it provides hot
water for showers at the bathhouse. (Vol. III, p. 99).
14. A diversion in the water line coming from the dam pipes water to
the upper bathhouse for the shower facilities. (Vol. III, p. 103, 104).
15. During the last three to four years, no water from the dam has
been used at Kaiseris coal preparation plant, except for the water applied
to domestic purposes, which includes the boiler system. (Vol. III, 98).
16. Water that is collected at the bottom of the shaft of Kaiser's
coal mine, amounting to approximately one and one half million gallons per
day, is pumped to 500,000 gallon storage tanks located on Kaiser
property. The water is then gravity fed back to the coal preparation plant
where approximately 200,000 gallons of water are used daily in the
preparation of coal. Water not used in coal preparation is sent through
pipelines to provide water for such outside uses as the watering of alfafa
fields, the city park, golf course, high school athletic fields and
lawns. Any additional water not used is discharged into Grassy Trail
Creek. (Vol. III, p. 96, 97, 98).
17. None of the water from the dam is used by or in any mines owned or
controlled by U.S.S. (Vol. I, p. 175).
18. U.S.S. initially pays all expenses of the joint venture,
including the following: the salary of the employee (called the water
master, who attends the dam), expenses associated with truck or equipment
operation, repairs incurred in maintaining and operating the dam, the cost
of operating the Big Springs Ranch and the cost of an annual study on.the
stability of the dam. (Vol. III, p. 112).

19. All of the costs incurred by U.S.S. in connection with the joint
venture are reimbursed by the East Carbon City municipal government and
Kaiser, so that U.S.S. does not make a profit nor incur a loss on the
venture. (Vol. III, p. 112, 122).
20. The dam's vertical drop inlet spillway has a round, morning
glory-shaped entrance into which water enters from all directions. The top
of this round spillway is approximately 6 1/2 feet below the crest of the
dam. The discharge rate of the spillway is 1,600 cubic feet per second
when the water level is at the crest of the dam. (Vol. II, p. Ill, 112).
21. The watershed supplying the dam is an area of approximately 20
square miles. The average annual precipitation for the area is 18 inches.
(Ex. R-2).
22. The probable maximum precipitation for the watershed area of the
darn in one hour's time is 6.5 inches and for a time interval of six hour's
duration is 7.5 inches. (Ex. R-2) 2 .
23. The 100 year flood would result with precipitation of 1.35 inches
occurring within one hour in the watershed of the dam, and precipitation of
1.8 inches in six hours. (Ex. R-2) 3
24. The embankment of the dam would be overtopped by 5.72 feet during
the passage of probable maximum flood storms. (Ex R-2).
25. After the dam is overtopped, it would breach in approximately one
hour. (Vol. II, p. 40; Ex R-3).
26. In the event of the occurrence of the prob ab le maximum flood, the
dam would begin to overtop approximately two hours and thirty minutes after
the storm begins. (Ex R-3).
27. If the dam does breach as a result of the probable maximum flood,
the water level of Grassy Trail Creek, where it flows past the mine, would
be 3.7 feet higher than if the dam does not breach during the probable
maximum flood. (Vol. II, p. 143).

];_/ The concept of probable maximum precipitation is the theoretically
greatest depth of precipitation that is physically possible for a given
time interval, over a particular drainage basin, at a particular time of
year. (Vol. II, p. 51).
3/ A 100 year flood is a storm that has a one percent chance of occurring
in any given year. (Vol. I, p. 98).

1055

28. The damage resulting from the prob ab le maximum flood would be
approximately the same whether or not a breach of the dam occurred.
(Vol. II, p. 153).
29. In case of a breach of the dam as a result of the probable maximum
flood, the water from Grassy Trail Creek would not reach Sunnyside No. 2's
bathhouse or air shaft, but would probably enter the lowest portal of the
coal mine. This portal travels uphill and water would not go in far enough
to flood the mine. (Vol. p. 122, 123; Vol. II, p. 154).
30. In the event that the lower portal of the coal mine is blocked by
flood waters, there are numerous other exits from the mine. (Vol. III, p.
94).
31. The probability of the probable maximum precipitation occurring in
the watershed of the dam is 10,000 or 20,000 to 1. (Vol. III, p. 38; Vol.
II, p. 198).
32. The spillway of the dam will adequately handle the 100 year floods
since the spillway of the dam has a maximum discharge rate of 1,600 cubic
feet per second, and the inflow into the dam during the 100 year storm or
flood would be 504 cub
feet per second. (Vol. II, p. 93, 94; Ex. K-1).
33. The spillway would be insufficient to discharge the inflow of
water to the dam during the probable maximum flood because the peak flow
rate into the dam would be approximately 26,000 cubic feet per second.
(Vol. II, p. 204).
ISSUES PRESENTED
1. Is the Grassy Trail Dam and Reservoir subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977?
2. If so, has the Secretary established a violation of 30 C.F.R.
77. 216-3(b)?
APPLICABLE LAW
The following sections of the Act are applicable to the question of
jurisdiction:
Section 3(h)(l) '"coal or other mine' means ... impoundments 4
used in, or to be used in, . . . the work of preparing coal ... [ . J11
Section J(i) tt 1 work of preparing coal' means the breaking, crushing,
sizing, cleaning, washing,
ing, mixing, storing and loading of ... coal,
and such other work of preparing such coal as is usually done by the
operator of the coal mine [.] 11
4/ The Dictionary of Mining, Mineral, and Related Terms defines an
impounding dam as one in which tailings are collected and settled; also, a
water storage dam. An impounding reservoir is defined as a reservoir 'Which
stores water from a wet season to a dry one, as distinct from a service
reservoir. U.S. DEP'T OF THE INTERIOR, BUREAU OF MINES. A DICTIONARY OF
MINING, MINEKAL, AND RELATED TERMS 572 (1968).

105tJ

DISCUSSION
It is undisputed that the Grassy Trail Dam is owned by the joint
venture and that the joint venturers are Kaiser and U.S.S. A joint venture
is a legal entity in the nature of a partnership engaged in the joint
prosecution of a particular transaction for mutual profit. Tex-CO Grain
Co., v. Happy Wheat Growers Inc., 542 S.W. 2d 934, 936. The joint venture
of Kaiser and U.S.S. is a legal entity separate from either Kaiser or
U.S.S. as individual corporations. The mutual rights and liabilities of
these joint venturers in respect to their common enterprise are
substantially those of partners. Taylor v. Brindley, 164 Fed. 2d 235
(1947). Since the .ownership and operation of the Grassy Trail Dam is
vested in the separate entity of the joint venture, any rights or
liabilities accruing from the application of the Federal Mine Safety and
Health Act of 1977, would be directed to Kaiser and U.S.S. only to the
extent of their respective interest in the joint venture.
U.S.S. argues in its post hearing brief that since the joint venture
does not own any coal mines, does not mine any coal and does not prepare
any coal for market, it is not subject to the jurisdiction of the Act.
This argument overlooks the implication of section 3(i) of the Act. If
water from the dam is used in, or to be used in, the "work of preparing the
coal", it is a "coal or other mine" and thus subject to the jurisdiction of
the Act.
The Secretary asserts that the Act gives jurisdiction over the dam
because the dam is owned, operated and controlled by a mining company; that
the dam is a surface facility close to the mine; and that the dam is used
in the mine operation and for the preparation of coal. (Vol. I, p. 83, 111,
144).
The Act does not concern itself with the question of ownership.
Whether the dam is owned by a mining company, or by the town of Sunnyside,
or by the joint venture is not controlling as to the question of
jurisdiction of the Act. Whether the dam is close to the mine
(approximately 4 1/2 miles in this case) or whether it is 20 miles away is
equally not controlling. If the water from the impoundrnent or dam is used
or to be used in the 11 work of preparing the coal" it is a coal mine
according to the definition contained in section 3(h)(l) of the Act. Thus,
the dam would be subject to the jurisdiction of the Act regardless of the
ownership of the dam or its location.
The final question is whether the water in the dam was used in the
nworkof preparing the coal" as that phrase is defined in section 3(i) of
the Act. Is the water from the dam used, or to be used, in the "breaking,
crushing, sizing, cleaning, washing, drying, mixing, storing and loading of
coal" or "such other work of preparing such coal as is usually done by
the operator of the coal mine?"

105'1

The Manager of Engineering and Quality Control for Kaiser described
the manner in which water is used at the mine in the preparation of coal.
The raw coal out of the mine goes into one of two wash boxes where a
pulsating action of water separates reject material from the coal. ·The
rejected material falls to the bottom and is transmitted to a refuse belt
and trucked to a refuse disposal site. The clean coal passes over the wash
box and into the water. Water is also used at the mine in long wall
mining. The emulsion oil, consisting of 95% water and 5% oil, charges the
hydraulic system on Kaiser's long wall mining units. (Vol. III, p~ 95.
96).

An MSHA inspector who worked at the Kaiser coal mine for approximately
one year, and whose last day of work there was August 31, 1975, testified
that water from the dam was used to fill the wash boxes on two occasions
for short periods of time when water from the mine was inadequate. Less
than eight hours use of water from the dam was required during these two
periods. (Vol. II, p.9). The witness speculated that water from the dam
may also have been used in making emulsion oil which was used in the
hydraulic system for long wall mining. (Vol. II, p. 11). In these cases,
the water from the dam was being used in the "work of preparing the coal."
There was no evidence that water from the dam has been used since
1975 for these purposes. Specifically, it is undisputed that water from
the dam has not been used for such coal preparation for the last 3 to 4
years. (Vol. III, p. 99). Water from the dam that is subsequently
purified is used at the coal mine for drinking purposes, showering,
sanitation, and also in the boiler. The boiler provides heat for the coal
preparation plant, the shop, bathhouse and the warehouse. During the
winter months it provides hot water for showers at the bathhouse.
Within the last five years, an underground sump capable of holding
millions of
lons of water has been developed at Kaiser's mine. All of
the water used at the coal mine for the purpose of cleaning and washing
coal comes from this underground source. This collection of water amounts
to approximately 1 1/2 million gallons daily. Of this amount,
approximately 200,000 gallons of water per day are used in the preparation
of coal. (Vol. III, p. 97). This ground water is also used in the
preparation of emulsion oil. Thus, the water "used in, or to be used in,
the work of preparing coal" does not come from the Grassy Trail Dam.
In support of the position that the Secretary has jurisdiction, the
Secretary argues in his post hearing brief that mining activities around
Sunnyside and East Carbon City directly depend on a stable water supply
provided by the Grassy Trail Dam. Water from the dam serves the towns
where the major
of the miners live and also supplies the domestic needs
of Kaiser Sunnyside Mine No. 2. The domestic use of water includes water
for drinking, bath
facilities and for the boiler, "which allows the
operators of the mine to comply with many of the health requirements of the
Act. 11 The problem with this argument is that it would have jurisdiction
extend to include the dam based on use of the water therefrom for purposes
other than in the work of preparing the coal. The uses of the water from
the darn, as stated by the Secretary, are for domestic purposes. The
definition of the work of preparing coal contained in section 3(i) does not
include water for domestic purposes at a mine or at a town where many coal
miners may happen to reside.

1056

The Secretary also argues that the Act should be given a broad and
liberal interpretation and any doubts concerning jurisdiction should be
resolved in favor of granting jurisdiction. I agree that the Act should be
given a broad interpretation, but the words contained in the definition of
"work of preparing coal 11 are words of limitation and are unequivocal. The
definition does not include impoundment water used for domestic purposes at
a coal mine, as distinguished from the defined use, such as washing or
cleaning the coal itself. To conclude otherwise would be to extend
jurisdiction of the Act to any facility, municipal corporation, or other
entity that might happened to provide nothing more than drinking water to a
coal mine operation.
CONCLUSION OF LAW
The Grassy Trail Dam is not a 11 coal or other mine" and is, thus, not
subject to the jurisdiction of the Act. It is, therefore, not necessary
to decide the issue of whether or not 30 C.F.R. § 77.216-3(b) was violated.
ORDER
There being no jurisdiction over the impoundment, Citations No. 246571
and 246571-6, alleging a violation of 30 C.F.R 77.216-3(b), are hereby
VACATED. There was also a written motion to strike Exhibit R-21 filed by
Kaiser several weeks after the hearing was concluded. This motion is
DENIED.

/

-::-"f:-~'""'"::-'-:~="'--~-=-=;....-~-~

Jon

1:Administrat ive
Distribution:
Louise Q. Symons, Esq., Law Department, United States Steel Corporation,
600 Grant Street, Pittsburgh, Pennsylvania 15320
David B. Reeves, Esq., Counsel, Industrial Relations, Kaiser Steel
Corporation, P.Q. Box 217, Fontana, California 92335
Robert A. Cohen,
. , Office of the Solicitor, United States Department of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203

1059

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,
HINE SAFETY AND HEALTH
ADMINISTRATION (HSHA),
Petitioner

Civil Penalty Proceeding
Docket No. BARB 79-62-PM
Assessment Control
No. 40-00806-05001

v.
Pit No. 436 and Hill
NOLICHUCKEY SAND COMPANY, IHC.,
Respondent
SUMMARY DECISION
This proceeding involves a Petition for Assessment of Civil Penalty
filed on October 26, 1978, by counsel for the Mine Safety and Health
Administration, pursuant to section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 820(a), seeking assessment of a civil
penalty for an alleged violation of section 103(a) of the Act by respondent because respondent had declined to permit an inspector to examine
respondent's Pit No. 436 and Mill on the ground that a search warrant
was required.
Counsel for respondent filed on July 6, 1979, a request that the hearing in this proceeding be continued until such time as the Sixth Circuit
Court of Appeals had rendered a decision bearing upon the constitutionof section 103(a) of the Act. I deferred the setting of a hearing
until the Sixth Circuit had issued its decision in Ray Marshall v.
Nolichuckey Sand Company, Inc., 606 F.2d 693 (6th Cir. 1979), and until
the Supreme Court had denied certiorari(446 U.S. 908 (1980)), The Sixth
Circuit affirmed a district court decision (Ray Marshall v. Nolichuckey
Sand
Inc
490 F. Supp. 1041 (E.D. 1978), which had upheld the
constitut
of section 103(a) providing for warrantless inspections
of respondent's Pit No. 436 and Mill and which also had denied respondent's
motion for preliminary and permanent injunction to prohibit MSHA from
carrying out the provisions of the Act.
After I became aware of the fact that the Supreme Court had denied
certiorari of the Sixth Circuit's decision, I issued a prehearing order
on October 15, 1980, setting forth the facts to which petitioner and respondent had stipulated in the Nolichuckey case before the district court
and requested that counsel for the parties advise me as to whether they
could agree upon those stipulations of fact for the purpose of resolving
the civil penalty issues in this proceeding. MSHA's counsel filed on
November 24, 1980, a response to the prehearing order indicating that he
was willing to adopt the proposed stipulations for the purpose of deciding the issues in this proceeding. Counsel for respondent filed on

lOGO

November 28, 1980, a response to the prehearing order in which he stated
that MSHA's counsel did not wish to settle the issues 1/ and that he was
requesting a hearing.
Counsel for MSHA thereafter filed on December 1, 1930, a motion for
summary decision, pursuant to 29 C.F.R. § 2700.64, stating that there is
no genuine issue as to any material fact in this proceeding and that MSHA
is entitled to a summary decision as a matter of law. Attached to the
motion for summary decision is a copy of the district court's Nolichuckey
decision, supra. The motion states that the court's decision sets forth
the facts with respect to issuance of Citation No. 107809 which is the
basis for the violation of section 103(a) of the Federal Mine Safety and
Health Act of 1977 alleged in the Petition for Assessment of Civil Penalty
filed in this proceeding. The motion also points out that the court's
decision in the Nolichuckey case avers that the parties have stipulated
that respondent's Pit No. 436 and Mill are subject to the provisions of
the Act.
Counsel for respondent filed on December 17, 1980, a reply to the
motion for summary decision in which, among other things, he stated that
evidence was required as to the issue of negligence because respondent
had raised a valid constitutional issue in good faith. Respondent noted
that although it lost the issue of the constitutionality of section 103(a)
before the Sixth Circuit, the correctness of its argument had been recognized by the Ninth Circuit's decision in Ray Marshall v. Elden Wait,
628 F.2d 1255 (1980), finding that warrantless searches are not constitutional, thereby disagreeing not only with the Sixth Circuit's decision in
Nolichuckey, supra, but with the decisions of the Third, Fourth, and Fifth
Circuits which had also found warrantless searches to be constitutional
(Marshall v. Stoudt's Ferry, 602 F.2d 589 (3rd Cir. 1979), cert. den.
444 U.S. 1815 (1980); Marshall v. Sink, 614 F.2d 37 (4th Ci~980); and
Marshall v. Texoline, 612 F.2d 935"(5th Cir. 1980)).
Section 2700.64(d) provides that if a judge finds it necessary to
deny a motion for summary decision because an evidentiary hearing is
required, he shall issue an order specifying the factual issues as to
which a substantial controversy exists. Inasmuch as it appeared to me
that the issue of respondent's negligence, if any, was dependent upon
uncontroverted facts as to which no hearing was required, I issued on
December 24, 1980, a second prehearing order requiring respondent's counsel
to specify the facts which he would adduce if a hearing were to be scheduled in this proceeding. Respondent's counsel filed on January 30, 1981,
a response to that order stating that he had now decided to agree to the
stipulations of fact set forth in my first prehearing order of October 15,
1980, and that he did not wish to present any witnesses at a hearing for
the purpose of adducing facts in addition to those stated in my prehearing
order of October 15, 1980.

1/
MSHA's counsel also filed a response to the letter from respondent's
counsel stating that respondent's version of his telephone conversation
with respondent's counsel was contrary to his understanding of that
conversation.

1061

I conclude from respondent's reply to my second prehearing order
that respondent is now agreeable to my granting MSHA's motion for summary
decision and to my rendering a decision in this proceeding upon the basis
of the stipulations of fact set forth in my first prehearing order. The
facts which the parties have agreed to stipulate are:
1.
Charles E. McDaniel, an authorized representative of
the Secretary of Labor, went to Nolichuckey Sand Company, Inc. 's
Pit No. 436 and Mill on April 11, 1978, for the purpose of making
a regular inspection pursuant to section 103(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 813(a).
2.
Thomas Bewley, Nolichuckey's vice-president, refused
to permit Inspector McDaniel to make an inspection of the pit or
mill on the ground that the inspector needed a search warrant
authorizing him to make such an inspection.
3.
Inspector McDaniel returned the next day, April 12,
1978, and was again refused permission to inspect the pit or mill
because he did not ~ave a search warrant.
4.
After Inspector McDaniel had been denied permission to
inspect Nolichuckey's pit and mill, he issued Citation No. 107809
dated April 12, 1978, under section 104(a) of the Act alleging
that Nolichuckey had violated section 103(a). of the Act.
5.
Nolichuckey's pit and mill are subject to the provisions
of the Act.
6.
Inspector McDaniel was not harmed or threatened with
physical assault or verbal abuse on the 2 days when he was not
permitted to inspect the pit and mill.
7.
year.

Nolichuckey's business involves 20,754 man-hours per
Therefore, Nolichuckey operates a small business.

8.
Payment of penalties will not cause Nolichuckey to
discontinue in business.
The issues in a civil penalty case are whether a violation of the
Act or the mandatory health or safety standards occurred and, if so,
what civil penalty should be assessed, based on the six criteria set
forth in section llO(i) of the Act.
Occurrence of Violation
The Petition for Assessment of Civil Penalty in this proceeding
alleges that respondent violated section 103(a) of the Act. Section 103(a),
in pertinent part, provides:
(a) Authorized representatives of the Secretary or the
Secretary of Health, Education, and Welfare shall make frequent
inspections and investigations in coal or other mines each year * * *·

1062

**

[T)he Secretary shall make inspections *
of each surface
coal or other mine in its entirety at least two times a year.
The Secretary shall develop guidelines for additional inspections of mines based on criteria including, but not limited to,
the hazards found in mines subject to this Act, and his experience under this Act and other health and safety laws. For the
purpose of making any inspection under this Act, the Secretary,
or the Secretary of Health, Education, and Welfare, with respect
to fulfilling his responsibilities under this Act, or any authorized representative of the Secretary or the Secretary of Health,
Education, and Welfare, shall have a right of entry to, upon, or
through any coal or other mine.
There can be no doubt about the fact that section 103(a)
MSHA
inspectors "a right of entry to, upon, or through" a mine for the purpose
of making inspections. The findings of fact, supra, show that respondent 1 s
vice-president on 2 successive days declined to allow an HSHA inspector
to enter its pit or mill for the purpose of making an inspection. While
respondent is entitled to assert a constitutional right in contesting the
validity of section 103(a)'s provision for warrantless searches, in doing
so, it runs the risk of being cited for a violation of the Act. The
legislative history leaves no doubt but that Congress intended for the
inspectors to be able to make inspections without obtaining a search
warrant. Page 27 of Senate Report No. 95-181, 95th Cong., 1st Session,
contains the following
regarding warrantless searches
ive
His
of the Federal
and Health Act of
Subcommittee on
)'< 1< The Committee intends to grant a broad right-of-entry to
the Secretaries or the.ir authorized representatives to make
inspections and investigations of all mines under this Act without first obtaining a warrant. This intention is based upon the
determination by legislation. The Committee notes that
ite
the progress made in improving the working conditions of the
nation's miners under present regulatory authority, mining
continues to be one of the nation 1 s most hazardous occupations.
Indeed, in view of the notorious ease with which many safety or
health hazards may be concealed if advance
of inspection
is obtained, a warrant requirement would seriously undercut
Act's objectives.

1<

The Committee has specifically adopted the prohibition on
advance notice of inspections which is currently the rule under the
Coal Act, and rejects the provision of the Metal Act which permits
such advance notice.
I conclude on the basis of the clear language of section 103(a) and
the legislative history of that section that Congress wanted inspectors to
be able to enter all mines for the purpose of inspecting them without
having to give any advance notice or having to obtain a search warrant.
Consequently, I find that a violation of section 103(a) occurred when
respondent refused to allow the inspector to enter his pit or mill for
the purpose of making a regular inspection (Finding Nos. 1-3, supra).

Section llO(a) of the Act provides that "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 ;, ·k i~"
Since I have found that .a violation
of the Act occurred, it is now necessary that a penalty be assessed
after consideration of the six criteria set forth in section llO(i) of
the Act. Stipulation of Fact Nos. 7 and 8, supra, have already covered
two of the six criteria, namely, the size of respondent's business and
whether the payment of penalties would cause respondent to discontinue
in business.
As to the criterion of respondent's history of previous violations,
the Proposed Assessment in the official file shows that the Assessment
Off ice assigned zero penalty points under that criterion when it determined a proposed penalty under the assessment procedures set forth in
30 C.F.R. § 100.3. On the basis of the Proposed Assessment, I find that
no increase in a penalty otherwise determinable under the other criteria
should be made under the criterion of respondent's history of previous
violations.
The criterion of whether respondent demonstrated a good faith effort
to achieve rapid compliance should be applied in relation to the fact
that respondent found it necessary to bar the inspector from making
a warrantless inspection so that an appeal of the constitutional issue
could be made. In Bituminous Coal Operators' Association, Inc. v.
Ray Marshall, 82 F.R.D. 350 (D.D.C. 1979), the court denied BCOA's
attempt to obtain review of an interpretative bulletin published by the
Secretary of Labor with respect to the walk-around rights of miners under
section 103(f) of the Act. The court noted that it would be necessary
for an operator to violate that section of the Act in order to obtain
judicial review of the enforcement procedures which ~1SHA intended to use
with respect to a miner 1 s walk-around rights. The court also recognized
that the operator would be subject to a civil penalty for violating the
section just to test MSHA's enforcement procedures. The court then stated
(82 F .R.D. at 354) that "* ~·, ·I< it would seem improbable that stiff supplemental civil penalties would be imposed where a genuine interpretative
question was raised as to section 103(f), a provision which normally is
not absolutely vital to human health and safety 11 • Since respondent in
this proceeding found it necessary to violate section 103(a) for the
sole purpose of testing the constitutionality of a provision of the Act,
I find that no portion of the penal
should be assessed under the criterion of whether respondent demonstrated a good faith effort to achieve
rapid compliance.
As to the criterion of negligence, here again, respondent deliberately
had to violate section 103(a) for the purpose of raising a constitutional
issue. A willful violation could be considered to be in the category of
gross negligence if respondent had not in good faith raised a valid constitutional issue. As indicated in the first part of this decision,
although respondent lost the constitutional issue in its own litigation,

1064

the Ninth Circuit held section 103(a)'s warrantless search provision to
be unconstitutional in the Wait case, supra, and a district court held
that provision to be unconstitutional in Marshall v. Douglas Dewey and
Waukesha Lime & Stone Co., 493 F.Supp. 963 (E.D. Wis. 1980), appeal
pending, U.S. Supreme Court No. 80-901. The fact that two courts have
held the warrantless search provision to be unconstitutional and that
the matter is now pending before the Supreme Court of the United States
show that respondent raised a valid constitutional issue.
In the Dewey case, the court was critical of another court's holding
in the Sink case,
to the effect that the injunction procedure in
the Act permits an operator to present his objections to a district court
before any sanctions are imposed. The court then noted in the Dewey case
that Dewey had to pay a civil penalty of $1,000 for a violation of
section 103(a). The court in the Dewey case then stated (493 F.Supp.
at 965):
While the preliminary injunction proceedings may get the
defendants into court to vindicate their constitutional rights,
the cost to them is indeed quite high. It seems a strange procedure to impose such a burden on a citizen in order to enjoy
the fruits of the Fourth Amendment which courts are enjoined
to liberally construe, and to which all owe a duty of vigilance
for its effective enforcement, lest there be an impairment of
those very rights for which it was adopted. Ker v. State of
California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. • 2d 726 (1963).
This is a particularly high cost to pay to protect valid privacy
claims. The mine operator must choose between protecting valid
privacy interests or his pocketbook. In essence, the injunctive
procedure does not present a fair means for protecting privacy
interests.
The Ninth Circuit made similar comments in its Wait decision when it
stated (628 F2d at 1259):

* >'> While we accord Congress great deference in matters within
its constitutional competency~ we cannot allow it to determine by
statutory definition the privacy expectations of American citizens.
It is the
of this court to preserve the constitutional values
embodied in the Bill of Rights. In this day of ever-increasing
federal health and safety regulation, it is especially important
that we view encroach.tuents upon individual privacy with exacting
scrutiny. Blanket application of this type of regulation to businesses large and small demands that we carefully avoid the trampling
under of the rights of those whose expectation of privacy in their
enterprises may be real and substantial.
~~

In view of the courts' belief that an operator ought to be able to
test the constitutionality of the Act without being exposed to large civil
penalties, I believe that the criterion of negligence should be given very
little weight in assessing a civil penalty in this proceeding.

106~j

The final criterion to be considered is the gravity of the violation.
The district court in the Nolichucky case at 490 F.Supp. 1041 stated at
page 1043 that the inspector had gone to respondent's mine for the purpose
of making a periodic safety and health inspection and that the sole purpose of the attempted inspection was to check routinely for possible vio· lations of the Act. The court said that the inspector had no knowledge
of any specific violation at respondent's pit or mill.
If the inspector had had reason to believe that dangerous conditions
existed in respondent's pit or mill, he could have issued a withdrawal
order and could, if necessary, have sought an injunction to require
respondent to comply with the order. Horeover, if the inspector thereafter found any serious violations when the inspector examined respondent 1 s pit and mill subsequent to respondent's losing its constitutional
challenge to warrantless searches, those alleged violations became the
subject of civil penalty proceedings, and if those violations are found
to merit large penalties, they will no doubt be assessed in future cases.
There is no evidence that respondent's constitutional challenge of
section 103(a) left any of respondent's employees exposed to dangerous
conditions while the constituional issues made their way through the
courts. It would be just as speculative for me to assume that employees
were exposed to dangerous conditions as it would be for me to find that
they were not. Therefore, as to the criterion of gravity, I find that
little weight should be given to that criterion in assessing a civil
penalty in this proceeding. In view of the fact that a small operator
is involved and that the inspector was not exposed to any threat of
assault or verbal abuse, I find that respondent should be assessed only
a nominal penalty of $50 for the exercise of a valid constitutional
right in challenging the warrantless search provisions of section 103(a)
of the Act.
\.ffiEREFORE ~ for the reasons

above, it is ordered:

(A) The motion for summary decision filed December 1, 1980, by
counsel for the Secretary of Labor is granted.
(B) Within 30 days from the date of this decision, respondent
shall pay a civil penalty of $50.00 for the violation of section 103(a)
of the Act alleged in Citation No. 107809 dated April 12, 1978.

~e.0~
Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Leo McGinn, Trial Attorney, Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified J:fail)
C. Berkeley Bell, Esq., Silvers, Bell, Rogers, Laughlin, Nunnally,
Randall & Overall, P.O. Box 679, 100 South Main Street, Greenville,
TN 37743 (Certified Mail)

lU6h

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

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

Civil Penalty Proceeding

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

Docket No. KENT 80-304
Assessment Control
No. 15-11581-03007 F

v.
Triway No. 1 Mine
TRIWAY MINING COMP ANY,
Respondent
DECISION
Appearances:

Darryl A. Stewart,
., Office of the Solicitor,
U.S. Department of Labor, for Petitioner;
Charles J. Baird, Esq., Baird & Baird, P.S.C., Pikeville,
Kentucky, for Respondent.

Before:

Administrative Law Judge

Pursuant to a notice of hearing dated November 17, 1980, as amended
on January 13, 1981, a hearing in the above-entitled proceeding was held
on March 4, 1981, in Pikeville, Kentucky, under section 105(d) of the
Federal Mine 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 below (Tr. 273-284):
This proceeding involves a Proposal for Assessment of Civil
Penalty filed in Docket No. KENT 80-304, on August 25, 1980, by
the Secretary of Labor seeking to have a civil penalty assessed
for an alleged violation of 30 C.F.R. § 75.200, by Triway Mining
Company.
I shall make some findings of fact on which my decision will
be based;
1.
The Triway Mining Company produces approximately 5,800
tons of coal per month and employs about llf miners, including
a co-owner who does work underground on occasion, but who mostly
works on the surface dealing with managerial problems and financial matters.

The testimony by the co-owner in this case shows that the
company has not been very profitable. Exhibit A, for example,
shows that the company had a net income of $15,904.95 as of
December 31, 1979. The operator was unable at the hearing to
give his exact income or loss for the year 1980, but he did

testify at some
concerning his financial situation and
he has shmvn in Exhibit B, page 2, that he has outstanding obligations totaling $182,644.92. During his testimony we took the
prices that he receives for coal on a tonnage basis and multiplied them by the number of tons that he sells each month and
found that that amounted to approximately $88,000.00. Then when
we had subtracted from that sum the amount that he had to pay
for trucking the coal and for his payroll, including his salary
and that of the other co-owner, for roof-bolting cost, for
electricity, for maintenance of electric motors, for tires for the
equipment, and other expenses we found that he doesn't seem to
have enough gross income to meet all of his obligations. The
operator indicated that ever since he began operating the No. 1
Mine in 1978, he has been able to survive financially only by
asking his coal
to advance him money each month above
and beyond that which he would be entitled to receive as of the
10th of the
month. Based on the testimony summarized
above, I find that, as to the statutory criterion of whether the
payment of
would cause the operator to discontinue in
business, that
of penalties would have a very adverse
effect on
to continue in business.
2.
The violation which was alleged in this case resulted
from a fatal accident which occurred at Triway Mining Company's
No. 1 Mine on
28, 1979. On that day, the operator of
the roof-bolt
machine was observed by his assistant
beyond
support for the purpose of prying down some
loose roof. In the process of doing the prying, a portion of the
roof fell upon the
of the roof-bolting machine and he
was crushed by a section of the falling roof.
3.
On October 2, 1979, a group of MSHA inspectors made an
investigation at the mine and interviewed a number of people who
worked at the mine on September 28, 1979, when the accident
occurred. The transcr
~from that investigation was admitted
into evidence as Exhibit 6, and on the basis of the
of
the various
at the mine~ a roof-control specialist wrote
an order of withdrawal under section 107 (a) and section 10Lf (a) of
the Act c
a violation of section 75.200. The primary violation alleged in that order and citation is a violation of respondent 1 s roof-control
, a copy of which is Exhibit 4 in this
proceeding. The
on page 12, in safety precaution
No. 9, that where loose material is being taken down a minimum
of two temporary
s on not more than 5-f oot centers shall be
installed between the workmen and the material being taken down
unless such work can be done from an area supported by permanent
roof supports installed in sound roof.
4.
The roof bolter's
on September 28, 1979, stated
unequivocally at the
and during the interview by the
inspectors on October 2, 1979, that the deceased person had proceeded beyond the
supports and had pried down some
loose roof without
the temporary supports.
Consequently,

lOl:ib

there is no doubt that a violation of section 75.200 occurred in
that the roof-bolter operator did go beyond permanent supports
without installing the necessary and required temporary supports.
5.
Order of Withdrawal No. 708133 also alleged two other
violations of the roof-control plan. It was alleged that there
had not been torque testing of the roof bolts and it was also
alleged that test holes had not been drilled as required by the
roof-control plan. At the hearing, the section foreman testified
that he had observed some test holes being drilled on September 28,
the day of the accident, and the helper for the roof bolter testified that torques had been tested on September 28, 1979. While
it is true that some of the transcript of the interview conducted
by the inspectors on October 2, 1979, appears to show that the
helper for the roof-bolting operator didn't always drill the test
holes and that there might have been some failure to do some testing of the torque, I think the preponderance of the evidence here
today supports my finding that those two portions of the roofcontrol plan were not violated on September 28, 1979.
6.
One of the witnesses who testified at the hearing today
was a person who conducts training for the miners in the No. 1
Mine and he testified that both the person who was killed in the
accident and the two miners who normally helped him in his roofbolting installation attended a class that he conducted during
which tl)ey were instructed in proper roof-bolting procedures.
His testimony and that of the operator give indication that the
operator of the mine here involved was a safety-minded person
who took safety as a serious matter and who had made every effort
to have his miners do their work in a safe manner.
I believe that those findings are sufficient for the purposes
of this case. Since I have already found that a violation occurred,
it is now necessary to consider the six assessment criteria set
forth in section 110(
of the Act because those criteria have to be
evaluated when a penalty is assessed. I have already indicated
in Finding No. 1 above that the operator is in a marginal financial
condition at best and that payment of penalties would have an adverse effect on his ability to continue in business.
Insofar as the criterion of history of previous violations
is concerned, Exhibit 5 in this proceeding shows that there have
been no previous violations of section 75.200 by the operator. The
exhibit shows some other citations of section 75.200 by another inspector on October 2, 1979, but they would not be prior to the violation here alleged. Therefore Exhibit 5, does not show any prior violations of section 75.200. It has been my practice over the years
that I have been hearing cases under the 1969 Act and the 1977 Act
to increase a penalty if I find occurrence of previous violations
of the same section of the regulations which is before me in a
given hearing. Since the record does not show any previous violations of section 75.200, it is unnecessary under that criterion
either to increase or decrease the penalty otherwise assessable
under the other five criteria.

1068

As to the criterion of whether the operator showed a good
faith effort to achieve rapid compliance, there is some lack of
proof one way or the other on that criterion because a different
inspector from the one who wrote the order and citation here
involved wrote the termination of the order and it appears that
he lost the actual termination order. Consequently, the
tor who testified today and who wrote the original order, was
unable to say exactly when the order was terminated. We normally
find a good faith effort to achieve rapid compliance when abatement is accomplished within the amount of time given by an inspector in a citation. But where a withdrawal order is involved, a
time is not given within which to comply, and the result is that
we
have some difficulty in a case involving a withdrawal
order in determining whether the criterion of good faith compliance
is
at all.
In this instance, I believe that the testimony we have heard
today would merit a
that the operator did demonstrate a
good faith effort to achieve rapid compliance because, as I have
indicated in Finding No. 6 above, the men who were acquainted with
this violation were trained in proper roof-bolting techniques.
There has been testimony by several witnesses to the effect that
the operator constantly told the men not to go out from under
permanent support for any purpose and the men who testified here
today all explained that it was not their practice to go out from
under permanent roof control for prying down roof or installing
roof
s. Consequently, I think the testimony supports my
find
that there was a good faith effort to achieve rapid comof the section of the roof-control plan which was violated
in this instance.
In finding No, 1, I have already discussed the fact that this
mine produced 5,800 tons of coal per month and only employed
14
Those
support a
that a small operator
is involved.
Next we come to the criterion of negligence. As to that
criterion, I think that the testimony would support a finding
that the operator was not personally negligent. The same factors
which I used in
a finding as to good faith effort to
achieve rapid compliance would also apply to the criterion of
in that the operator had seen that the men were instructed in the proper procedures and all of them who testified
here today indicated that they had been instructed in those procedures and had been constantly reminded of safe operating procedures and the operator had supplies of roof bolts and timbers on
hand in the mine at the time this violation occurred.
Mr. Baird in his closing argument made a good point in stressing that the quitt
time at this mine was 2:00 p.m. and that this
accident occurred around 1:30 p.m. He suggested that perhaps the
deceased miner, in his haste to finish up bolting in the No. 4 heading, might have gotten careless at this particular time and just
didn't take the precautions that he would ordinarily observe,

and that he had simply failed to put in the temporary supports.
to be
He failed to do it at a time when the mine roof
very fragile and gave way.
Mr. Baird has asked me to find that the order
written if I should find that the operator was not
Commission held in Secretary of Labor v.
2 f.MSHRC 790 (1980), that liability for the occurrence of violations
in coal mines is not conditioned upon fault.
The Commission
also held to the same effect in U.S. Steel
1 FMSHRC
1306 (1979), and in Peabody Coal Company
(1979).
Consequently, even though an operator may not be
in the
occurrence of a given violation, that does not excuse him of the
absolute liability to account for or be
for violations
which occur in his mine.
We now come to the final criterion which is the
ion of
gravity. The unfortunate aspect of a violation of the roof-control
plan is that any violation of the roof-control
at any time
may result in a person's death. I have always considered violations of the roof-control plan generally to be the most serious of
all violations. I think that the evidence in this case supports
such a finding because, here, even assuming that the deceased had
never before gone out from under supported roof either to install
roof bolts or to pry down loose material, it just takes one time
to fail to comply with the roof-control plan or any safe
of the roof-control system, for that oversight to result in a
fatality.
Therefore, it was without any doubt a very grave violation in this instance because the failure to install the temporary supports prevented the deceased from being able to
back
to a safe place when the roof gave way.
The Commission held in Secretary of Labor v.
Company 2 FMSHRC 3475 (1980), that judges are not
assessments recommended by the Assessment Office and Mr. Stewart
for the Secretary has indicated in his clos
that he
did not think that the one recommended in this case by the Assessment Off ice was appropriate in light of the evidence that we have
received here today. The Assessment Office, of course, when it
recommended the penalty that was proposed
in this case,
did not have before it the evidence that we have heard here today.
Consequently, there was reason for the Assessment Office to have
suggested a very large penalty originally, and there are reasons
for Mr. Stewart to believe, after hearing the test
in this
proceeding, that a mistake may have been made in propo
a
amount. Because of the extenuating circumstances that I have outlined above and the fact that the operator is in a very difficult
financial position I am going to assess a much smaller
than
I would otherwise.

10'71

Nevertheless, there were certain things that could have
been done by management on September 28 that were not done.
For example, it is a fact that the section foreman was operating
the scoop, and in doing so, he was the primary person who was
keeping production going at the mine. He conceded that he
had not made his methane checks every 20 minutes as he was
required to do, and he conceded that he was obligated to do more
things than he could comfortably and efficiently perform ori
September 28, 1979. Also the operator was personally running the
cutting machine and working underground because the cuttingmachine operator had quit with only the previous day's advance
notice and another person had had to go home because of illness.
Those circumstances made it necessary for the section foreman to
do work which kept him from doing his supervisory function as
efficiently as he might otherwise have performed his supervisory
responsibilities.
In view of the above-described aspects of management and the
fact that there might have been some things done here that were
not done, I believe that a penalty should be assessed which may
be a hardship for the operator, but which I think is the very
minimum that should be assessed in the circumstances. Therefore,
a penalty of $500.00 will be assessed for this violation of
section 75.200.
WHEREFORE, for the reasons given above, it is ordered:
Respondent, within 30 days after the date of this decision, shall pay
a civil penalty of $500.00 for the violation of section 75.200 alleged in
Order No. 708133 dated October 2, 1979.

R~ff<!;~~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Darryl A, Stewart, Attorney, Office of the Solicitor, U.S. Department of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Charles J. Baird, Esq., Attorney for Triway Mining Company, Baird &
Baird, P.S.C., P.O. Box 351, Pikeville, KY 41501 (Certified Mail)

1072

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

2 3 APR 1961

Civil Penalty Proceeding

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

Docket No. LAKE 80-104
A/O No. 33-01070-03050

v.
Allison Hine
THE YOUGHIOGHENY & OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Linda Leasure, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Robert C. Kota, Esq., The Youghiogheny & Ohio Coal
Company, ~!aJtins Ferry, Ohio, for Respondent.

Before:

Judge Cook

I.

Procedural Background

On December 26, 1979, the Hine Safety and Health Administration (Petitioner) filed a proposal for a penalty in the above-captioned proceeding
pursuant to section llO(a) of the Federal :21ine
and Health Act of 1977,
30 U.S.C. § 801 et~· (Supp. III 1979) (1977 Mine Act). On January 21,
1980, the Youghiogheny & Ohio Coal Company (Respondent) filed an answer.
On April 21, 1980, the Petitioner filed a motion to approve settlement.
On April 29, 1980, an order for production of additional information was
issued requiring the Petitioner to submit more detailed justifications, if
any existed, in support of the proposed settlement. On Hay 21, 1980, the
Petitioner filed a response to the order for production of additional
information
that it could not submit additional justifications in
support of the proposed settlement, and requesting that the matter be set
for hearing.
On August 13, 1980, a notice of hearing was issued scheduling the case
for hearing on the merits on September 18, 1980, in Washington, Pennsylvania.
The hearing was held as scheduled with representatives of both parties
present and participating.

Prior to the presentation of the evidence, the Petitioner moved to amend
the proposal for a penalty to charge a violation of mandatory safety standard
30 C.F.R. § 75.1725(c) instead of mandatory safety standard 30 C.F.R. § 75.511.
The Respondent had no objection to the motion, and, accordingly, the motion
was granted (Tr. 8-9). The Respondent made an oral motion to dismiss at the
close of the Petitioner's case-in-chief, arguing that the Petitioner had
failed to establish a prima facie case for a violation of mandatory safety
standard 30 C.F.R. § 75.1725(c). The motion was denied (Tr. 50-53).
Toward the conclusion of the hearing, Exhibit M-2 was reserved for the
posthearing filing by the Petitioner of a computer printout setting forth
detailed information as relates to the Respondent's history of previous violations. Exhibit 0-1 was reserved for the posthearing filing by the Respondent of any documents it wished to file in response to Exhibit M-2. Also, a
schedule was set for the filing of posthearing briefs and proposed findings
of fact and conclusions of law.
Exhibit M-2 was filed on October 14, 1980, and was received in evidence
by an order dated October 31, 1980. The Respondent did not file any documents in response to Exhibit M-2.
The Petitioner filed proposed findings of fact and conclusions of law on
January 26, 1981. The Respondent did not file a posthearing brief or proposed
findings of fact and conclusions of law.
IL

III.

Violation
Citation No.

Date

30 C.F.R. Standard

779722

June 25, 1979

75 .1725(c)

Witnesses and Exhibits
Witnesses

The Petitioner called as its witness Federal coal mine inspector (electrical) Victor H. Patterson.
The Respondent called as its witness Mr. John Yarnell.
B.

Exhibits

1.

The Petitioner introduced the following exhibits in evidence:

M-1 is a computer printout compiled by the Directorate of Assessments
summarizing by standard the Respondent's history of previous violations at the
Allison Mine for which assessments have been paid, from June 26, 1977, to
June 25, 1979.
M-2 is a computer printout compiled by the Directorate of Assessments
setting forth a detailed listing of the Respondent's history of previous

violations at the Allison Mine for which assessments have been paid, beginning
June 26, 1977, and ending June 25, 1979.
2.
IV.

The Respondent did not introduce any exhibits in evidence.

Issues

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

Opinion and Findings of Fact
A.

Stipulations

1. The Federal Mine Safety and Health Review Commission has jurisdiction
over the proceeding (Tr. 10-11).
2. The Respondent's Allison Mine constitutes a mine within the meaning
of the 1977 Mine Act (Tr. 10-11).
3. The Respondent produced approximately 1,356,816 tons of coal in 1979.
The Allison Mine produced approximately 527,843 tons of coal in 1979 (Tr. 1011).

B.

Occurrence of Violation

Federal mine inspector Victor H. Patterson issued Citation No. 779722
during the course of his June 25, 1979, inspection at the Respondent's Allison
Mine. The citation alleges that work was being performed on the Jeffrey continuous miner (Serial No. 34397), located in the No. 3 entry of the Main West
section, in that a drive shaft was being installed by the gathering head. It
is further alleged that the machine was energized, but that it was not being
used for positioning or troubleshooting. The proposal for a penalty, as
amended, alleges that the cited condition violates mandatory safety standard
30 C.F.R. § 75.1725(c), which provides that "[r]epairs or maintenance shall
not be performed on machinery until the power is off and the machinery is
blocked against motion, except where machinery motion is necessary to make
adjustments."
The evidence presented reveals that a three- or four-man repair crew was
installing a drive shaft between the cutting motor and the gathering head on
the righthand'side of the electrically powered Jeffrey continuous miner,

1073

Serial No. 34397. The evidence presented also reveals that machinery motion
was not necessary to make adjustments during such operation.
The inspector concluded that the continuous miner had not been deenergized
because the trailing cable had not been deenergized. The inspector testified
as an expert that the trailing cable, and hence the continuous miner, must
be deenergized at the power center through the following two-step operation:
Trip the circuit breaker at the power center and then disconnect the trailing
cable from the power center. The inspector did not check the circuit breaker
on the machine because he felt it was unnecessary to do so. According to the
inspector, it was unnecessary to check that particular circuit breaker because
the machine is energized whenever the trailing cable is energized.
Mr. John Yarnell testified on behalf of the Respondent that turning the
power off on the continuous miner simply required one to trip the circuit
breaker on the machine. He did not interpret this to require disconnecting
the trailing cable.
Essentially, this case presents two questions for resolution. The initial
question presented is whether the term "power is off, 11 as used in mandatory
safety standard 30 C.F.R. § 75.1725(c) with reference to electrically powered
equipment, means 11 deenergized. 11 The second question presented is what is
necessary to have the power off on a continuous miner during repairs or
maintenance?
The resolution of these issues has turned, in large measure, on the
expert testimony of Inspector Patterson and Mr. Yarnell. I find the inspector's testimony more probative because his credentials in electrical matters
are more substantial than those of Mr. Yarnell.
The initial question presented is whether the term "power is off," as
used in mandatory
standard 30 C.F.R. § 75.1725 with reference to
electrically powered equipment, means "deenergized." I conclude that it
does for two reasons. First, Inspector Patterson, an electrical inspector,
indicated that the term 11 power is off" means 11 deenergized. 11 It is, therefore, logical to conclude that experts in electrical matters consider the
power to be off a given piece of electrically powered equipment for purposes
of repair and maintenance only when it has been deenergized.
Second, a comparison of 30 C.F.R. § 75.509 and 30 C.F.R. § 75.1725 indicates that the term 11 power is off" means 11 deenergized 11 when used in reference
to electrically powered equipment. The scope of mandatory safety standard
30 C.F.R. § 75.509 is confined to electric power circuits and electric equipment. The standard provides that: · "All power circuits and electrical equipment shall be
before work is done on such circuits and equipment,
troubleshooting or testing." (Emphasis added.) The
wording of the regulation indicates that power is removed from electric
circuits and electric equipment for purposes of repair and maintenance only
when such circuits and equipment have been "deenergized."

10'7b

. •'-· r~

Mandatory safety standard 30 C.F.R. § 75.1725 is a miscellaneous provision setting forth requirements for the operation and maintenance of machinery
and equipment. It is generally applicable to the maintenance and operation of
all machinery and equipment. Its reach is not expressly confined solely to
electric machinery and electric equipment. Therefore, the term "power is off,n
as used in 30 C.F.R. § 75.1725(c), must be interpreted in light of the expansive reach of the standard so as to encompass power applications including,
but not limited to, electrical power. 30 C.F.R. § 75.509 and 30 C.F.R.
§ 75.1725(c), when read together, indicate that the "power is offn electrically powered equipment only when such equipment has been "deenergized. 11
The second question presented is what type of action is necessary to
deenergize a continuous miner? Is it sufficient to turn off the motor and
to move the circuit breaker on the machine from the "onn to the "off" position; or is it also necessary to trip the circuit breaker at the power center
and disconnect the trailing cable from the power center? For the reasons
set forth below, I conclude that in order to deenergize a continuous miner
within the meaning of mandatory safety standard 30 C.F.R. § 75.1725(c), it
is necessary to trip the circuit breaker at the power center and then disconnect the trailing cable from the power center.
As a general proposition, the rules of statutory construction can be
employed in the interpretation of administrative regulations. See C. D.
Sands, lA Sutherland on Statutory Construction, § 31.06, p. 362-0::972).
According to 2 Am.Jur.2d, Administrative Law, § 307 (1962), "rules made in
the exercise of a power 'delegated by statute should be construed together
with the statute to make, if possible, an effectual piece of legislation in
harmony with common sense and sound reason." Remedial legislation directed
toward securing safe work places must be interpreted in light of the express
Congressional purpose of providing a safe work environment, and the regulations promulgated pursuant to such legislation must be construed to effectuate Congress' goal of accident prevention. Brennen v. Occupational Safety
and Health Review Commission, 491 F.2d 1340 (2d Cir. 1974). "Should a conflict develop between a statutory interpretation that would promote safety
and an interpretation that would serve another purpose at a possible
compromise of safety, the first should be preferred." District 6, UMWA v.
Department of Interior Board of Mine Operations Appeals, 562 F.2d 1260
(D.C. Cir. 1972).
Inspector Pattersonis testimony indicates that merely tripping the
circuit breaker on the continuous miner is insufficient to deenergize the
machine because, under the proper circumstances, power can accidentally be
restored to the machine (Tr. 23-24, 26, 28-29, 34). A malfunction in the
circuit breaker can cause it to be "on, 11 notwithstanding the fact that it
has been switched to the "off" position. The motor could have started under
a single-phase condition, notwithstanding the fact that the circuit breaker
was in the "off" position. The inspector was personally familiar with
several such oecurrences. The testimony of Mr. Yarnell tends to confirm
that, no matter how remote, the possibility of such occurrences does exist.
Tripping the circuit breaker at the power center and disconnecting the
trailing cable from the power center eliminates the problem.

Additionally, according to 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 306, the term "deenergize" means "to disconnect
any circuit or device from the source of power." (Emphasis added.)
In view of the expert testimony of Inspector Patterson and the foregoing
definition of the term "deenergize, 11 I conclude that a continuous miner is
deenergized within the meaning of 30 C.F.R. § 75.1725(c) only when the
circuit breaker has been tripped at the power center and the trailing cable
has been disconnected from the power center. Accord, Consolidation Coal
Company, 2 FMSHRC 965 (1980) (Lasher, J.)
A violation of mandatory safety standard 30 C.F.R. § 75.1725(c) has been
established by a preponderance of the evidence.
C.

Negligence of the Operator

The inspector testified that, based upon the amount of work performed,
the men probably had been working on the machine for approximately 1 hour.
There is no probative evidence tending to show that supervisory personnel
knew or should have known of the condition. Accordingly, I conclude that
the Petitioner has failed to prove operator negligence.
D.

Gravity of the .Violation

The occurrence of the event against which the cited standard is directed
was improbable. The repair crew consisted of three or four men. In the event
of an occurrence, it is more probable than not that one person would have
sustained serious or fatal injuries as a result of achieving contact with
rotating machine parts.
Accordingly, it is found that the violation was accompanied by moderate
gravity (see Tro 23)o
E"

Good Faith in Attempting Rapid Abatement

The violation was abated in a prompt fashion. The repair crew immediately
disconnected the trailing cable and locked it out (Tr. 19, 24).
Accordingly? it is found that the Respondent demonstrated good faith in
attempting rapid abatement.
F.

Size of the

1

s Business

The parties stipulated that the Respondent produced approximately
1,356,816 tons of coal in 1979. The parties further stipulated that the
Allison Mine produced approximately 527,843 tons of coal in 1979 (Tr. 1011).

1078

G.

History of Previous Violations

The history of previous violations at the Allison Mine for which the
Respondent had paid assessments, beginning June 26, 1977, and ending June 25,
1979, is summarized as follows:
Year 1
6/26/77 - 6/25/78

Year 2
6/26/78 - 6/25/79

Total

All sections

246

467

713

75.1725(c)

0

1

1

30 C.F.R.
Standard

(Exh. M:-2).
H.

(All figures are approximations.)

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

No evidence was presented establishing that the assessment of a civil
penalty in this case will adversely affect the Respondent's ability to remain
in business. In Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 CCH
OSHD par. 15,380 (1972), the Commission's predecessor, the Interior Board of
Mine Operations Appeals, held that evidence relating to whether a penalty will
affect the ability of the"operator to remain in business is within the operator's control, and therefore, there is a presumption that the operator will
not be so affected. I find, therefore, that a penalty otherwise properly
assessed in this proceeding will not impair the Respondent 1 s ability to continue in business.
VI.

Conclusions of

1. The Administrative Law Judge has jurisdiction over the subject matter
of, and the parties to, this proceedingo

2, The Youghiogheny & Ohio Coal Company and its Allison Mine have been
subject to the provisions of the 1977 Mine Act at all times relevant to this
proceeding.
3"
Federal mine inspector Victor Ho Patterson was a duly authorized
representative of the Secretary of Labor at all times relevant to this
proceeding.
4"
The condition cited in Citation No. 779722 existed in the Respondent's Allison Mine on June 25, 1979, and constituted a violation of mandatory
safety standard 30 C.FoR. § 75.1725(c).

5. All of the conclusions of law set forth in Part V, supra, are
reaffirmed and incorporated herein.

1079

VII.

Proposed Findings of Fact and Conclusions of Law

The Petitioner's proposed findings of fact and conclusions of law have
been considered fully, and except to the extent that such findings and conclusions have been expressly or impliedly affirmed in this decision, they are
rejected on the grounds that they are, in whole or in part, contrary to the
facts and law or because they are immaterial to the decision in this case.
VIII.

Penalty Assessed

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

Date

30 C.F.R.
Standard

Penalty

779722

June 25, 1979

75.1725(c)

$175

ORDER
IT IS ORDERED that the oral determination made during the hearing denying
the Respondent's motion to dismiss be, and hereby is, AFFIRMED.
IT IS FURTHER ORDER,E~ that the Respondent pay a civil penalty in the
amount of $175 within the next 30 days.

n
Administrative Law Judge

Distribution:
Linda Leasure, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Marcella L. Thompson, Esq., Office of the Solicitor, U.S. Department of
Labor, 881 Federal Office Building, 1240 East Ninth Street, Cleveland,
OH 44199 (Certified Mail)
Robert C. Kota, Esq., The Youghiogheny & Ohio Coal Company, First and
Locust Streets, Martins Ferry, OH 43935 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

1080

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

22041

1 3 r~PR 1901

Notice of Contest

DELMONT RESOURCES, INC.,
Contestant

v.

Docket No. PENN 80-268-R
Citation No. 624406
January 15, 1980, modified to
to May 14, 1980

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

Delmont Mine
DECISION
Appearances:

Ronald S. Cusano, Esq., Rose, Schmidt, Dixon, Hasley,
Whyte & Hardesty, Pittsburgh, Pennsylvania, and Raymond J.
Roehler, Esq., Greensburg, Pennsylvania, for the Contestant;
Covette R9-~µey, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for the Respondent.

Before:

Judge Cook

I,

Procedural Background

On June 13, 1980, Delmont Resources, Inc. (Delmont), filed a notice of
contest in the above-captioned proceeding pursuant to section 105(d) 1/ of

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 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, pr 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,

1081

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~·
(Supp. III 1979) (1977 Mine Act) to contest Citation No. 624406, as modified
on May 14, 1980. The citation was issued at the Delmont Mine on January 15,
1980, 2/ pursuant to section 104(d)(l) of the 1977 Mine Act. 3/ The notice
of contest states, in part, as follows:
1. At approximately 0900 hours on Tuesday, January 15,
1980, Federal Mine Inspector Anthony J. Russo issued Citation
No. 0624406 (hereinafter sometimes "Citation"), pursuant to
the provisions of Section 104(d)(l) of the [1977 Mine] Act,
for a condition he allegedly observed in the 4 Left Section
I.D. No. 003 of Delmont Resources' Delmont Mine.
2. The aforesaid Citation which was issued on
January 15, 1980 and alleged a violation of 30 C.F.R.
§ 75.200 further alleged that Republic Steel Corporation
was the operator of the Delmont Mine.
3. Under the heading and caption "Condition or
Practice" the aforesaid Citation also alleged that:

"The approved roof control plan was not being complied with in the entries of the working section
of 4 Left I.D. No. 003. All three entries from
the faces outb;>: .,approximately 200 feet including
cross cuts between the three entries and all the
footnote 1 (continued)
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."
J:./ The citation erroneously designated Republic Steel Corporation as the
operator of the Delmont Mine. The citation was modified on May 14, 1980,
to show the operator 1 s name as Delmont Resources, Inc., not Republic Steel
Corporation (see Exhs. M-1 and M-8).
lf Section 104(d)(l) of the 1977 Mine Act provides, in part, as follows:
11
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."

1082

way down the No. 1 entry to the belt conveyor were
driven in excess of 18 feet wide. The measurements
were from 19 to 21 feet wide."
The aforesaid Citation directed that the condition be abated
by Friday, January 18, 1980, but by no specific time.
4. Despite the abatement period set forth in the aforesaid Citation, it is averred upon information and belief,
that Inspector Russo told the Delmont Mine foreman, in the
presence of others, that all of the entries would have to be
timbered by 9 a.m. Wednesday, the following day, January 16,
1980 or that a withdrawal order pursuant to Section 104(d)(l)
of the Act would be written.
5. At 0800 hours on Friday, January 18, 1980, Inspector
Russo issued modified Citation No. 0624406-1 (hereinafter
''Modification No. lu) pursuant to the provisions of Section
104(d)(l) of the Act. Modification No. 1 did not specify
the area of the mine to which it applied.
6. Modification No. 1, which was issued on January 18,
1980, alleged under the heading and caption "Justification
for Action Checked Bel own that:
"The Citation §0624406 is hereby modified to
change part and section to 75-1704-1-A instead of
75.0200 and to include in the Citation that until
the area is supported with posts on (5) five foot
centers the required width of six feet could not
be maintained in the designated return escapeway."
7. Modification No. 1, by necessity, appeared to revoke
the violation alleged in the aforesaid Citation. However~
while Modification No. 1 changed the part and section of
30 C.F.R. cited from 30 C.F.R. § 75.200 (Roof Support) to
30 C.F.R. § [75.}1704-1-A (Escapeway), the language of the
aforesaid Citation which alleged a violation of the approved
roof control plan was not deleted.
8. At 1030 hours on Friday, January 18, 1980, Inspector
Russo terminated the aforesaid Citation.
9. At 0710 hours on Wednesday, January 23, 1980,
Inspector Russo modified Citation No. 0624406 a second time
(hereinafter "Modification No. 2") to specify 800 hours as
the time for abatement on the date which had already been
specified in Citation No. 0624406.

108~4>

10. At 0700 hours on Wednesday, May 14, 1980, Inspector
Russo modified Citation No. 0624406 for a third time (hereinafter "Modification No. 3") to change the name of the operator
from Republic Steel Corporation to Delmont Resources, Inc.
11. Delmont Resources avers that Citation No. 0624406,
as modified, is invalid and void and should be vacated and
set aside for the following reasons:
(a) The Citation, as modified, failed to
cite a condition or practice which constitutes a
violation of a mandatory health or safety standard under 30 C.F.R. § 75.200;
(b) The Citation, as modified, failed to
cite a condition or practice caused by an unwarrantable failure of Delmont Resources to comply
with a mandatory health or safety standard;
(c) The Citation, as modified, failed to
cite a condition or practice of such a nature as
could significantly and substantially contribute
to the cause and effect of a coal or other mine
safety or health hazard;
(d) The Citation, as modified, failed to
particularize the provisions of the Act or regulations which were allegedly violated, and was
inadequately specific;
(e) The Citation, as modified, did not particularize the exact locations which were
allegedly in violation of the approved roof control plan and was inadequately specific;
(f) The Citation, as modified, failed to
give Delmont Resources an adequate and reasonable
time for abatement of the alleged violation;

(g) In issuing and in modifying the Citation, the Inspector failed to give due consideration to the fact that the roof in the entries
and cross cuts of the 4 Left I.D. No. 003 Section
of the Delmont Mine consisted of sand rock with
no cracks or slips and that the cross cuts were
posted off;
(g) In issuing and modifying the Citation,
the Inspector failed to give due consideration to
the fact that the alleged violation presented a

1084

non-immediate and non-serious threat to the
safety of miners;
(h) In issuing and modifying the Citation,
the Inspector acted arbitrarily, unreasonably,
capriciously and in total disregard of the prevailing standards for the issuance of Section
104(d)(l) citations.
12. Subsequently, on dates specified below, Inspector
Russo, pursuant to Section 104(d)(l) of the Act, issued the
following Orders which reference the aforesaid Citation:
(a)

Order No. 0624408 issued on January 16,

(b)

Order No. 0624410 issued on January 24,

1980;
1980;
(c) Order No. 0624412 issued on February 2,
1980; and
(d)

Order No. 0624414 issued on February 14,

1980.
(Footnote omitted). 4
Delmont prayed for the entry of an order vacating the citation, as
modified, and declaring all actions taken, or to be taken, with respect
thereto or in consequence thereof null, void and of no effect.
On July 3, 1980, the Mine Safety and Health Administration (MSHA) filed
an answer and motion for continuance. In its answer, MSHA (1) admitted the
issuance of Citation No. 624406, as modified, and alleged that it was properly
issued; (2) erroneously alleged that the citation was issued pursuant to section 104(a) of the 1977 Mine Act; and (3) alleged that a violation of a mandatory safety standard occurred. MSHA's motion for continuance requested that
the case be continued pending the filing of a civil penalty proceeding
addressing the subject citation. On July 11, 1980, Delmont filed a reply to
MSHA 1 s motion for continuance setting forth Delmont's opposition to a continuanceo The motion for continuance was denied on July 28, 1980.
On August 8, 1980, a notice of hearing was issued scheduling the case
for hearing on the merits on September 16, 1980, in Washington, Pennsylvania.
The hearing was held as scheduled with representatives of both parties present
and participating. Following the presentation of evidence, a schedule was set
4/ Copies of the referenced citation, termination and modifications were
attached to th~ notice of contest as Exhibits A through E.

1080

for the filing of posthearing briefs and proposed findings of fact and conclusions of law. MSHA and Delmont filed posthearing briefs on November 17, 1980,
and November 20, 1980, respectively. Neither party filed a reply brief.
II.

Witnesses and Exhibits
A.

Witnesses

MSHA called as its witnesses Anthony J. Russo, a Federal mine inspector;
James C. DeForrest, a belt repairman at the Delmont Mine; and Roger Uhazie,
a Federal coal mine inspection supervisor.
Delmont called as its witnesses John J. Cunnard, Jr., a section foreman
at the Delmont Hine; and Homer Miller, the mine foreman at the Delmont Mine.
B.

Exhibits

1.

MSHA introduced the following exhibits in evidence:
M-1 is a copy of Citation No. 624406, January 15, 1980, 30 C.F.R.

§

75.200.

M-2 is a copy of the Delmont Mine's approved roof-control plan,
dated July 9, 1979.
M-3 is a copy of a map showing the section of the Delmont Mine encompassed by the citation.
M-4 is a copy of the termination of M-1.
M-5 is a copy of modification 624406-1, dated January 18' 1980.

H-6 is a copy of modification 624407-3, dated January 24, 1980.
M-7 is a copy of modification 624406-2, dated January 23, 1980.
N-8 is a copy of modification 624406-3, dated May 14, 1980.

2.

Delmont introduced the following exhibits in evidence:
0-1 is a map of the 4 Left Section of the Delmont Mine.

0-2 is a drawing, based upon drawing No. 1-A of the approved roofcontrol plan, illustrating the first step of the mining cycle in a typical
working place.
0-3 is a drawing, based upon drawing No. 1-A of the approved roofcontrol plan, illustrating the second step of the mining cycle in a typical
working place.

108b

0-4 is a drawing, based upon drawing No. 1-A of the approved roofcontrol plan, illustrating the third step of the mining cycle in a typical
working place.
0-5 is a copy of a memorandum dated July 27, 1977, from the Assistant
Administrator for Coal Mine Health and Safety, Mining Enforcement and Safety
Administration, United States Department of the Interior, to Coal Mine Health
and Safety District Managers, addressing the subject of unwarrantable failure
violations under section 104(c) of the Federal Coal Hine Health and Safety
Act of 1969, 30 u.s.c. § 801 et seq. (1970).

3. X-1 is a drawing prepared by James C. DeForrest during the course of
his testimony.
III.

Issues

The general question presented is whether Citation No. 624406, as modified on May 14, 1980, was properly issued to Delmont pursuant to section
104(d)(l) of the 1977 Mine Act. The specific issues are as follows:
A. Whether Citation No. 624406, as modified by the various modifications, complied with the specificity requirement set forth in section 104(a)
of the 1977 Mine Act.

B. Whether the condition or practice cited in Citation No. 624406 on
January 15, 1980, constff:uted a violation of mandatory safety standard
30 C.F.R. § 75.200.
C. If the condition or practice cited in Citation No. 624406 on
January 15, 1980, constituted a violation of mandatory safety standard
30 C.F.R. § 75.200, then whether such violation was caused by the mine
operator's unwarrantable failure to comply with such mandatory safety
standard~ and whether such violation 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

l. The Delmont Hine is owned and operated by the Contestant, Delmont
Resources, Inc. (Tr. 8-9).
2, The Delmont .Mine is subject to the jurisdiction of the 1977 Hine
Act (Tr. 8-9).

3. The Administrative Law Judge has jurisdiction over this proceeding
pursuant to section 105 of the 1977 Mine Act (Tr. 8-9).
4. The subject citation, modifications and termination thereof were
properly served by a duly authorized representative of the Secretary of Labor

108 '"{

upon an agent of Delmont Resources, Inc., at the dates, times and places
stated therein (Tr. 8-9).
5.

The alleged violation was abated in a timely fashion (Tr. 9).

6. Delmont Resources, Inc., produced approximately 65,655 tons of coal
in 1979, and has approximately 50 employees (Tr. 9).
B.

Specificity of Citation No. 624406

Delmont's initial challenge asserts that Citation No. 624406, when viewed
in light of the subsequent modifications, fails to satisfy the specificity
requirement set forth in that portion of section 104(a) of the 1977 Mine Act
which provides that "[e]ach citation shall be in writing and shall describe
with particularity the nature of the violation, including a reference to the
provision of the [1977 Mine] Act, standard, rule, regulation, or order alleged
to have been violated." The record contains the following facts material to
the issue of whether the specificity requirement has been satisfied:
Federal mine inspector Anthony J. Russo visited the Delmont Mine on
January 15, 1980, to continue a regular inspection. At approximately 9 a.m.,
he issued Citation No. 624406 charging a violation of mandatory safety standard 30 C.F.R. § 75.200 in that "[t]he approved roof control plan was not
being complied with in tJ1:r;,ee entries of the working section of 4 Left, I.D.
No. 003. All three entries from the faces outby approximately 200 feet
including the crosscuts between the three entries, and all the way down the
No. 1 entry to the belt conveyor were driven in excess of 18 feet wide. The
measurements were from 19 to 21 feet wide." The citation was served to John J.
Cunnard, Jr., a section foreman, and designated Republic Steel Corporation as
the mine operator. The operator's agents were told that abatement was due by
8 a.m. on January 18, 1980. The termination due date appears on the face of
the citation, but the time does not. The operator's agents were notified
oral
that 8 a.m. was the precise hour by which abatement was due.
The testimony of Inspector Russo and the testimony of Mr. Homer Miller,
the mine foreman, reflects agreement that abatement procedures were discussed
on January 15, 1980. However, they demonstrated some disagreement as to precisely what was said and as to where it was said. Inspector Russo testified
that when he returned to the surface he instructed mine management to install
wooden posts in those areas exceeding 19 feet in width. He denied requiring
them to install posts all the way down the No. 1 entry. Mr. Miller testified
that he discussed the matter underground with Inspector Russo, at which time
the inspector stated that he had found some wide places and set forth his
requirements to abate the citation. According to Hr. Miller, Inspector Russo
told him to install posts on 4-foot centers from the face all the way to the
mouth of the entry, and did not limit it to those areas greater than 18 feet
wide. Regardless of which account is the most accurate, both witnesses agree
that mine management was informed of the actions necessary to abate the
citation.

1088

Delmont commenced its abatement activities on January 15, 1980, and
completed them on January 16, 1980. Abatement was accomplished through the
installation of 365 posts on 4-foot centers.
Inspector Russo returned to the mine on January 18, 1980. At approximately 8 a.m., he issued modification 624406-1 which states that "Citation
No. 624406 is hereby modified to change the part and section to 75.1704-l(a)
instead of 75.200 and to include in the citation that until the area is supported with posts on 5-foot centers, the required width of 6 feet could not
be maintained in the designated return escapeway" (Exh. M-5). Inspector
Russo's testimony clarified this modification. His intention was to modify
Citation No. 624407, which was also issued on January 15, 1980. 5/ He corrected his error on January 24, 1980, by issuing modification 624407-3 to
show that modification 624406-1 was modified to 624407-1 (Exh. M-6).
When modification 624406-1 was issued, the inspector did not tell the
operator that the abatement procedures discussed on January 15, 1980, were
changed in any way. More significantly, modification 624406-1 was served on
Mr. Miller. His testimony makes clear that he knew at the time that Inspector Russo had committed an error in writing the modification.
At 10:30 a.m. on January 18, 1980, Inspector Russo terminated Citation
No. 624406. The citation was terminated because "[wJooden posts were
installed to bring the w1d'th of all entries and crosscuts down to 18 feet
wide as required by the roof control plan" (Exh. M-4). The termination was
served on Mr. Miller.
At 7:10 a.m. on January 23, 1980, the citation was modified to fill an
omission on the face of the original citation by designating 8 a.m. as the
time by which termination was due (Exh. M-7).
At 7 a.m. on May 14, 1980, the citation was modified "to show the operator name as 'Delmont Resources, Inc. 1 not Republic Steel Corporation" (Exh.
M-8)"

Exhibits M-4, H-5, M-6, M-7 and H-8 were served on Homer Miller and
designate Delmont Resources, Inc., as the mine operator.
5/

The following description appears under the "condition or practice"

~eading on Citation No. 624407:
11

An area 14 feet long and 11 feet wide in the designated return escapeway approximately 100 feet outby survey point 284 was not supported according
to the approved roof control plan, bolting, full bolting or crossbarring.
The area was supported solely by wooden posts which is not according to the
plan. This condition was allowed to exist in the 4 Left section, I.D.
No. 003, survey point 284 in the No. 3 entri' (Tr. 99).

108~

Delmont argues that the citation, as modified, does not satisfy the
requirement set forth in section 104(a) of the 1977 Mine Act that the citation contain a reference to the regulation allegedly violated. Delmont points
out that the citation as written on January 15, 1980, alleges a violation of
mandatory safety standard 30 C.F.R. § 75.200, and argues that modification
624406-1 of January 18, 1980, changed the cited regulation to 30 C.F.R.
§ 75.1704-l(a).
The latter regulation pertains to the requirements for
designated escapeways. According to Delmont, the statute requires the citation to specify with precision the regulation alleged to have been violated
so that the mine operator will have notice as to the type of abatement action
required. Delmont further argues that a modification changing the cited regulation creates ambiguity or confusion as to what the precise violation is and
as to whether the work performed has abated the initial citation (Delmont's
Posthearing Brief, pp. 2-4).
The applicable law can be stated concisely. Adequate notice is necessary
to enable the mine operator "to determine with reasonable certainty the allegations of violations charged so that it may intelligently respond thereto and
decide whether it wishes to request formal adjudication." Old Ben Coal Com~· 4 IBMA 198, 208, 82 I.D. 264, 1974-1975 CCH OSHD par. 19,723 (1975).
In
a civil penalty proceeding, notice is adequate, even though it does not specify
the particular section of the 1977 Mine Act or mandatory safety standard violated, if the alleged violation is described with sufficient specificity to
permit abatement. At the stage where the operator is charged with a violation of law in a civil penalty proceeding, it is entitled to adequate and
timely notice of the sec·ti'on of the 1977 Mine Act or mandatory safety standard
involved so as to permit preparation of a timely and adequate defense. Old
Ben Coal Company, supra; Eastern Associated Coal Corporation, 1 IBMA 233,
79 I.D. 723, 1971-1973 CCR OSHD par. 15,388 (1972). In determining whether
adequate notice has been given, the inquiry need not be confined to the four
corners of the citation or order. It is appropriate to consider other oral
and written communications given to the operator. Citations and orders will
not be invalidated for failure to comply with the specificity requirement
absent a showing that prejudice has resulted to the mine operator. Jim
Walters Resources, Inc., 1 FMSHRC 1827, 1 BNA HSHC 2233, 1979 CCH OSHD par.
24,046 (1979) declining to follow Armco Steel Corporation, 8 IBMA 88, 84 I.D.
454, 1977-1978 CCH OSHD par. 22,089 (1977), aff'd. on reconsideration, 8 IBMA
245, 1978 CCR OSHD par. 22,550 (1978).
Delmont failed to introduce any probative evidence to prove that any or
all of the modifications created ambiguity or confusion as to the precise
violation charged, or created ambiguity or confusion as to whether the work
performed was adequate to abate the initial citation. In fact, the evidence
makes it clear beyond a shadow of a doubt that any irregularities appearing
on the face of the citation or on the face of any of the modifications created
absolutely no ambiguity or confusion as to either point mentioned by Delmont.
Inspector Russo informed Delmont's agent on January 15, 1980, that
abatement was due by 8 a.m. on January 18, 1980. In fact, the abatement
work was completed the following day, and the citation was terminated at
10:30 a.m. on January 18, 1980.

10!30

Modification 624406-1, issued at 8 a.m. on January 18, 1980, created no
confusion or ambiguity because Mr. Miller knew at the time that the modification was issued in error. If Mr. Miller had any doubts on this point,
they should have been resolved when the inspector terminated the citation
2-1/2 hours later without requiring additional abatement work.
Additionally, Delmont has not shown that any irregularities appearing
on the face of the citation, or on the face of any of the modifications, in
any way prejudiced its ability to prepare for the instant hearing. Delmont
defended on the merits by presenting evidence on the issues of whether the
cited condition or practice violated 30 C.F.R. § 75.200, whether the violation was caused by the operator's unwarrantable failure to comply with such
mandatory safety standard, and whether the violation was of such nature as
could significantly and substantially contribute to the cause and effect of
a mine safety or health hazard.
In view of the foregoing, I conclude that any irregularities appearing
on the face of either the citation or the various modifications did not
result in any prejudice to Delmont's abatement efforts or trial preparation.
Delmont's challenge to Citation No. 624406 on the grounds that it fails to
comply with the specificity requirement set forth in section 104(a) of the
1977 Nine Act is not well founded. Such basis for challenge is rejected
because it is unsupported by the evidence.
C.

Occurrence of Vio,lation

As noted above, Citation No. 624406 charges that a violation of mandatory
safety standard 30 C.F.R. § 75.200 existed at the Delmont Mine on January 15,
1980, in that "[t]he approved roof control plan was not being complied with
in three entries of the working section of 4 Left, I.D. No. 003. All three
entries from the faces outby approximately 200 feet including the crosscuts
between the three entries, and all the way down the No. 1 entry to the belt
conveyor were driven in excess of 18 feet wide. The measurements were from
19 to 21 feet wide" (Exh. M-1). The Delmont Mine's approved roof-control
plan, in effect on January 15, 1980, prescribed 18 feet as the maximum width
for entries, crosscuts, rooms and room crosscuts. The approved roof-control
plan does not allow for any type of deviation from the 18-f oot width
requiremenL
Mandatory safety standard 30 C.F.R. § 75.200 provides that:
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

1091

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 provided
or unless such temporary support is not required under the
approved roof control plan and the absence of such support
will not pose a hazard to the 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.
The mine operator violates mandatory safety standard 30 C.F.R. § 75.200
by failing to comply with the provisions of the approved roof-control plan.
Pontiki Coal Corporation, 1 FMSHRC 1476, 1 BNA MSHC 2208, 1979 CCH OSHD
par. 23,979 (1979); Peabody Coal Company, 8 IBMA 121, 84 I.D. 469, 1977-1978
CCH OSHD par. 22,111 (1977); Zeigler Coal Company, 5 IBMA 132, 82 I.D. 441,
1975-1976 CCH OSHD par. 19,998 (1975).
The citation encompasses a rather extensive portion of the Delmont
Mine's 4 Left Section. It appears to allege that the condition or practice
existed in the No. 1 entry from the face to the belt conveyor drive; in the
Nos. 2 and 3 entries from the faces outby approximately 200 feet; in the last
open crosscut, the second~open crosscut, and the third open crosscut between
Nos. 1 and 2 entries; and the last open crosscut, the second open crosscut,
and the third open crosscut between Nos. 2 and 3 entries (Exh. M-1, M-3). The
citation, on its face, further appears to allege that all such areas were
uniformly driven in excess of 18 feet wide, with the width measurements
ranging from 19 to 21 feet. However, the evidence is insufficient to sustain
such a sweeping allegation.
:i-1SHA now appears to concede that all areas encompassed by the citation
were not uniformly driven in excess of 18 feet wide. MSHA argues that
Inspector Russo took approximately 16 measurements in the entries and crosscuts and obtained readings of 19 to 21 feet. MSHA further argues that the
excessive width condition existed for a distance of approximately 10 to
21 feet in the areas where the measurements were taken (MSHA's Posthearing
Bri
pp. 3-4),
It appears that measurements were taken only in locations that appeared
wide. The evidence shows that the No. 1 entry was approximately 700 to
800 feet long, and that measurements were taken at three to five locations
in the No. 1 entry. At least three of these locations were outby the power
box. It appears that the power box was located two crosscuts outby the face.
Measurements were taken at two locations in the No. 2 entry. One of these
locations was in the vicinity of spad No. 269, and the other location was in
the vicinity of spad No. 281. Measurements were taken at two locations in
the No. 3 entry from spad No. 268 to spad No. 284. Measurements were taken

in the last open crosscut between No. 1 entry and No. 2 entry, in the last
open crosscut between No. 2 entry and No. 3 entry, and in the second open
crosscut between the No. 2 entry and the No. 3 entry. The measurements at
each such location revealed the width to be between 19 and 21 feet, and there
were no additional supports in the area.
The evidence is sufficient to establish the length of the affected areas
at only three locations where measurements were taken. The condition existed
for a distance of 2 to 3 feet at the following locations: (1) the second
open crosscut between the No. 2 entry and the No. 3 entry; (2) the last open
crosscut between the No. 1 entry and the No. 2 entry; and (3) a spot in the
No. 1 entry approximately 60 feet outby the face.
In view of the foregoing, I find the evidence sufficient to establish
a practice at the Delmont Hine in violation of the roof-control plan's
18-foot width requirement for entries and crosscuts. The evidence is sufficient to establish the existence of the individual conditions comprising
the practice only at those locations where measurements were actually taken.
A practice in violation of mandatory safety standard 30 C.F.R. § 75.200 has
been established by a preponderance of the evidence.
D.

Unwarrantable Failure

A violation of a mandatory standard is caused by an unwarrantable failure to comply with the standard where "the operator involved has failed to
abate the conditions or practices constituting such violation, conditions or
practices the operator knew or should have known existed or which it failed
to abate because of a lack of due diligence, or because of indifference or
lack of reasonable care." Zeigler Goal Company, 7 IBM.A 280, 295-296, 84 I.D.
127, 1977-1978 CCH OSHD par. 21,676 (1977).
The evidence presented in this case indicates that the violation of
January 15, 1980, was caused by the operat'or's unwarrantable failure to comply
with the 18-foot width requirement for entries and crosscuts as set forth in
the approved roof-control plan. The practice resulted from a combination
of poor mining practices, a pitch from left to right in the floor of the
entries, and the unevenness of the sandrock roof. None of the excessive
widths were caused by spalling or sloughing.
The evidence presented indicates that some of the wide places existed
for a very substantial period of time, and that the individual conditions
comprising the practice should have been detected during the course of the
required examinations. The evidence further indicates that the excessive
width conditions should have been detected by the individuals in charge of
roof bolting on the section. Considering the roof-bolting pattern, the
conditions could have been easily and promptly detected by simply measuring
the distance between the last roof bolt installed and the rib. However, as
a general rule, such measurements were not taken. Additionally, simply
gazing at the roof-bolting pattern from the proper angle would have been
sufficient to detect the wide areas.

Of even greater significance is the testimony of Mr. John J. Cunnard,
Jr., the section foreman. His testimony indicates that he was aware that
some excessively wide areas existed in the cited portion of the Delmont Mine.
In view of the foregoing, I conclude that Delmont failed to abate a
practice that it knew or should have known existed, and that Delmont failed
to abate the practice because of a lack of reasonable care or because of
an absence of due diligence. The violation was caused by an unwarrantable
failure to comply with the width requirements of the approved roof-control
plan.
E.

Significant and Substantial Criterion

The citation contains the 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. In Secretary of Labor, MSHA v.
Cement Division, National Gypsum Company, Docket No. VINC 79-154-PM (FMSHRC,
filed April 7, 1981), the Federal Mine Safety and Health Review Commission
Commission) held "that a violation is of such nature as could significantly
and substantially contribute to the cause and effect of a mine safety or
health hazard if, based upon the particular facts surrounding the violation,
there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. 11 Slip~
at 4. Additionally, the Commission stated that "[a]lthough the [1977 Mine
Act] does not define the.-lX:ey terms 'hazard' or 1 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." Slip
op. at 6 (footnote omitted.)
-As noted previously in this decision, the evidence establishes only that
the 18-foot width requirement was exceeded at those locations where measurements were made. The measurements at such locations showed them to be 19 to
21 feet wide. The evidence establishes the length of the violation at only
three locations within the cited area. In those three areas, the excessive
width condition existed for a distance of 2 to 3 feet.
The evidence reveals that the roof in the No. l entry was composed of
sand rock almost all the way to the face where it changed to shale (Tr. 163,
182). The roof was in good condition to within approximately 100 feet of
the face (Tr. 37, 63-64, 115-116). The roof in such area was not cracked and
no pieces were falling from it (Tr. 115-116). However, the roof was loose and
cracked in the face area of the entry (Tr. 63-64).
A fault existed in the No. 2 and No. 3 entries. It appears that the
fault ran diagonally from the lower right hand side of the section to the'
upper left hand side of the section (Tr. 126). The face area of the No. 2
entry and the face area of the No. 3 entry were cracked and deteriorated due
to the fact that they were going through the fault area (Tr. 37).

1094

It appears that good roof conditions existed in the last. open crosscut
(Tr. 109-111).
The inspector did not take a sound and vibration test because he did not
have the necessary equipment (Tr. 60). However, it appears that the roof
was in a safe condition. The approved roof-control plan required the
installation of roof bolts at least 36 inches in length (Tr. 154, Exh. t1-2,
p. 2). The mine operator had installed roof bolts measuring 4 feet in
length (Tr. 154, 182), and none of the roof bolts in the cited area were
bearing excessive weight (Tr. 64, 164). There were no additional supports
in the cited area (Tr. 36). Additionally, there was little or no spalling
or sloughing of the roof or ribs (Tr. 34-35, 84, 164).
For the reasons set forth below, I find the evidence insufficient to
sustain the allegation that the practice in violation of mandatory safety
standard 30 C.F.R. § 75.200 was of such nature as could significantly and
substantially contribute to the cause and effect of a mine safety or health
hazard.
MSHA argues that Inspector Russo took approximately 16 measurements of
the entries and crosscuts, and that the measurements revealed widths from
19 to 21 feet in areas approximately 10 to 21 feet in length. (MSHA's
Posthearing Brief, pp. 3-4). It thus appears that MSHA maintains that the
practice consisted of approximately 16 separate instances of excessive widths,
measuring from 19 to 21 ~~et, each extending for distances of approximately
10 to 21 feet. MSHA argues that the practice met the significant and substantial criterion because "a roof fall was probable. Excessive widths without
additional supports put stress on a roof. The inspector also noted that in
certain areas the roof was cracked and deteriorated" (MSHA's Posthearing
Brief, p. 10).
The evidence fails to support MSHA's position that the violation was
significant and substantialo First, the evidence does not support the contention that the practice consisted of approximately 16 separate instances
of excessive widths, each of which extended for approximately 10 to 21 feet
in length. The evidence shows less than 16 instances of excessive widths,
and in only three instances is there probative evidence as relates to length.
In those three instances, the excessive width condition existed for a distance
of 2 to 3 feet. The absence of more precise evidence as to length in the
other locations is deemed of particular significance to the conclusion that
MSlL~ has failed to prove that the violation was significant and substantial.
Second, there is no evidence that a roof fall was probable or that the
roof was under stress. There was little or no spalling or sloughing. Fourfoot roof bolts had been installed and the roof bolts were not bearing
excessive weight.
Additionally, MSHA permitted Delmont to exceed the 18-foot width
requirement by up to 12 inches at intermittent locations. This 12-inch
deviation was'apportioned with 6 inches on either side of the entry as

1095

measured from the roof bolt closest to the rib (Tr. 87-88, 186, Exh. M-2). In
this regard, it should also be noted that Inspector Russo intended to require
posting only in those areas exceeding 19 feet in width (Tr. 87). The fact
that MSHA permitted 19-foot widths under certain circumstances, and intended
to permit them in the abatement of the cited practice, indicates that a
19-foot width measurement was not significant and substantial given the roof
conditions in existence at the time. It appears that in at least some of the
areas cited, the inspector obtained width measurements of approximately
19 feet prior to the issuance of the citation.
In view of the foregoing, I find the evidence insufficient to sustain a
conclusion that the violation could have been a major cause of a danger to
safety or health. The evidence is insufficient to sustain a conclusion that
a reasonable likelihood existed that the hazard contributed to would have
resulted in an injury. Accordingly, I conclude that MSHA has failed to prove
that the violation described 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. Delmont Resources, Inc. and its Delmont Mine have been subject to
the provisions of the 1977 Nine Act at all times relevant to this procceeding.
2. Under the 1977 Hine Act, the Administrative Law Judge has jurisdiction over the subject mat·t12r of, and the parties to, this proceeding.
3. Federal mine inspector Anthony J. Russo was a duly authorized
representative of the Secretary of Labor at all times relevant to the
issuance and modifications of Citation No. 624406.
4. Citation No. 624406, as modified, complied with the specificity
requirement set forth in section 104( a) of the 1977 Mine Act.

S. Citation No. 624406 sets forth a practice in violation of mandatory
saf
standard 30 C.F.R. § 75.200, and in existence at the Delmont Hine on
January 15, 1980, only to the extent found in Part IV(C), supra.
6. The subject violation of mandatory safety standard 30 C.F.R.
75.200 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.
75.200 was not of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard.

§

8. Citation No. 624406, as modified, was improperly issued under section
104(d)(l) of the 1977 Mine Act.
9. All of the conclusions of law set forth in Part IV, supra, are
reaffirmed and incorporated herein.

l09b

VI.

Proposed Findings of Fact and Conclusions of Law

MSHA and Delmont filed posthearing briefs. Such briefs, insofar as they
can be considered to have contained proposed findings and conclusions, have
been considered fully, and except to the extent that such 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 the notice of contest of 104(d)(l)
Citation No. 624406 is GRANTED IN PART and DENIED IN PART. IT IS THEREFORE
ORDERED that Citation No. 624406 be, and hereby is, MODIFIED from a 104(d)(l)
citation to a 104(a) citation containing findings: (1) that on January 15,
1980, a practice in violation of mandatory safety standard 30 C.F.R. § 75.200,
as set forth in Part IV(C), supra, existed in the 4 Left Section of the
Delmont Mine; !i/ and (2) that such violation was caused by the mine operator's
unwarrantable failure to comply with such mandatory safety standard.
IT IS FURTHER ORDERED that Citation No. 624406, as so modified, be, and
hereby is, AFFIRI1ED.

ohnF.~~

:>

Administrative Law Judge
6/ The "condition or practice" section of Citation No. 624406 is modified to
read as follows:
"The approved roof control plan was not being complied with at certain
locations in the working section of 4 Left, loDo Nao 003, in that the crosscuts and entries were driven in excess of 18 feet wide at such locationso
There were three to five places in the Noo 1 entryo At least three of these
places were outby the power box, which was located two crosscuts outby the
faceo There were two places in the No. 2 entry, one in the vicinity of spad
Noo 269, and the other in the vicinity of spad No. 281. There were two places
in the Noo 3 entry from spad No. 268 to spad No. 284. Places existed in the
last open crosscut between Noo 1 entry and Noo 2 entry, in the last open
crosscut between Noo 2 entry and Nao 3 entry, and in the second open crosscut
between the Noo 2 entry and the No. 3 entry. The measurements at each such
location revealed the width to be between 19 and 21 feeto
"The condition existed for a distance of 2 to 3 feet at the following
locations: (1) the second open crosscut between the No. 2 entry and the
Noo 3 entry; 92) the last open crosscut between the No. 1 entry and the
Nao 2 entry; and (3) a spot in the No. 1 entry approximately 60 feet outby
the face~"

1097

Distribution:
Ronald S. Cusano, Esq., Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty,
900 Oliver Building, Pittsburgh, PA 15222 (Certified Mail)
Raymond J. Roehler, Esq., 102 N. Main Street, Suite 200, Greensburg, PA
15601 (Certified Mail)
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health, U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

1098

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

22041

I 7 AP!1 1981
REPUBLIC STEEL CORPORATION,
Contestant

v.

Contest of Order
Docket No. PENN 80-56-R
Clyde Mine

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

Complaint for Compensation

LOCAL UNION NO. 688,
DISTRICT 5, UNITED MINE
WORKERS OF AMERICA,

Docket No. PENN 80-112-C
Complainant,
Clyde Mine

v.

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

Civil Penalty Proceeding
Petitioner

Docket No. PENN 81-29
A.C. No. 36-00967-03059
Clyde Mine

REPUBLIC STEEL CORPORATION,
Respondent
DECISION
Appearances:

B. K. Taoras, Esq., Republic Steel Corporation, Coal Mining
Division, Meadow Lands, Pennsylvania for Republic Steel
Corporation;
David E. Street, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Secretary of Labor;
Mary Lu Jordan, Esq., United Mine Workers of America,
Washington, D.c. for Local Union 688, District 5, United Mine
Workers of America.

Before:

Judg-e James A. Laurenson

109U

JURISDICTION AND PROCEDURAL HISTORY
This proceeding was commenced by Republic Steel Corporation (hereinafter
Republic) on November 13, 1979, to contest an order of withdrawal issued by
the Secretary of Labor, Mine Safety and Health Administration (hereinafter
MSHA) pursuant to section 104(b) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 814(b) (hereinafter the Act). On January 3, 1980, the
Contest of Order was dismissed without prejudice by Administrative Law Judge
Joseph B. Kennedy. On October 9, 1980, the Federal Mine Safety and Health
Review Commission (hereinafter Commission) vacated the order of dismissal and
remanded the matter for further proceedings. Thereafter, the Contest of Order
proceeding was consolidated with the Complaint of Compensation brought by
Local Union 688, District 5, United Mine Workers of America (hereinafter UMWA)
against Republic arising out of the order in controversy. At the time of the
hearing and over Republic's objection, the civil penalty proceeding involving
the underlying citation was also consolidated with the other two cases.
A hearing was held on these cases in Pittsburgh, Pennsylvania, on
January 20-21, 1981. The following witnesses were called to testify on
behalf of MSHA: Lawrence Merella, Robert Swarrow, William Thistlewaithe, and
Robert Semancik. The UMWA called Gary Mylan as a witness. Republic called
no witnesses.
ISSUES
1.

Whether the order and citation were properly issued.

2. Whether Republic violated the Act or regulations as alleged by
MSHA and, if so, the amount of the civil penalty which should be assessed.
3o

entitl
to which

Whether employees at the mine were idled by the order in question
them to receive compensation and? if so, the amount of compensation
are entitled"
APPLICABLE LAW

Section 104(b) of the Act, 30 U.S.C. § 814(b) provides as follows:
If? upon any follow-up inspection of a coal or other
mine, an authorized representative of the Secretary finds
(1) that a violation described in a citation issued pursuant
to subsection (a) has not been totally abated within the
period of time as originally fixed therein or as subsequently
extended, and (2) that the period of time for the abatement
should not be further extended, he shall determine the extent
of the area affected by the violation and shall promptly issue
an order requiring the operator of such mine or his agent to
immediately cause all persons, except those persons referred

1100

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.
Section 111 of the Act, 30 U.S.C. § 821, provides as follows:
If a coal or other mine or area of such mine is closed
by an order issued under section 103, section 104, or 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 working 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 four hours of such shift. If a
coal or other mine or area of such mine is closed by an order
issued under section 104 or section 107 of this title for a
failure of the operator to comply with any mandatory health
or
standards, all miners who are idled due to such
order shall be fully compensated after all interested parties
are
an opportunjty for a public hearing, which shall
be
ted 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 one
week, whichever is the lesser. Whenever an operator violates
or fails or refuses to comply with any order issued under
section 103, section 104, or section 107 of this Act, all
miners employed at the affected mine who would have been
withdrawn from, or prevented from entering, such mine or area
thereof as a result of such order shall be entitled to full
compensation by the operator at their regular rates of pay,
in addition to pay received for work performed after such
order was issued, for the period beginning when such order
was issued and ending when such order is complied with,
vacated, or terminated. The Commission shall have authority
to order compensation due under this section upon the filing
of a complaint by a miner or his representative and after
opportunity for hearing subject to section 554 of title 5,
United States Code.
Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent
part as follows:
In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations,

1101

the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
FINDINGS OF FACT
I find that the preponderance of the evidence of record establishes the
following facts:
1.

Republic operates the Clyde Mine.

2. The products or operations of Republic's Clyde Mine affect interstate
commerce.
3.

Republic is an operator for purposes of section 111 of the Act.
i

4. Inspectors Robert Swarrow, Lawrence Merella, and William
Thistlewaithe were duly authorized representatives of the Secretary of Labor
at all times relevant to this proceeding.
S. At 1:45 p.m., on September 24, 1979, Inspector Lawrence Merella
issued to Republic at its.Clyde Mine Citation No. 624247 pursuant to section
104(a) of the Act.
6. Citation No. 624247 alleged a violation of 30 C.F.R. § 75.200 as
follows:
There was a violation of the roof control plans as
hanging bolts,
knocked out from cross bars and the roof
above cross bars that had fallen away was not lagged to
support broken roof on the main track haulage from 2 West to
2 Flat switch at the following locations: (1) from pump
no. 22 -- 75 feet outby there were 23 hanging bolts; (2) two
hanging bolts on the wire side just inby shelter hole no. 156;
(3) 50 feet outby shelter hole no. 151 -- needs lagging over
the cross bar on the wire side; (4) 300 feet inby the Jacuzzi
pump -- the loose rock on the cross bars taken down and roof
bolted; (5) 300 feet outby 3 East switch -- the area needs
to be bolted or lagged above the cross bars; (6) 25 feet
outby shelter hole no. 150 (near telephone) -- two bolts
need to be installed; (7) just ouby shelter hole no. 149
the left side above the cross bars needs lagging; (8) 20 feet
outby shelter hole no. 148 -- a cracked cross bar needs
replaced; (9) 300 inby 2-1/2 West switch -- two legs need be
replaced two under cross bars and needs bolted; (10) 50 feet
outby the bottom of 3 East switch -- two bars need replaced
under cross bars and one leg replaced just outby 3 East
switch; (11) inby no. 136 shelter hole -- 20 feet of coal rib

1102

and broken rock on the wire side taken down; (12) replace
broken cross bar -- 75 outby 3 East wreck latch; (13) replace
four legs under cross bars -- outby shelter hole no. l;
(14) at shelter hole no. 129 -- replace three legs under
cross bars; (15) 20 feet outby shelter hole no. 122 -- replace
four hanging bolts; and (16) replace four hanging bolts outby
shelter hole no. 126.
7. The parties stipulated and I find that the inspector was mistaken
when he alleged a "violation of the roof control plans" because the area
in question was driven prior to the enactment of the Federal Coal Mine Health
and Safety Act of 1969.

8. The condition of the roof and rib in the Clyde Mine on September 24,
1979, was as stated in Citation No. 624247.
9. Citation No. 624247 establishes a termination due date of October 9,
1979, at 8 a.m.
10. During the period of time between the issuance of Citation No.
624247 and October 10, 1979, Republic took no action to abate the citation.
11. At noon on October 10, 1979, Inspector Robert E. Swarrow issued
to Republic, at its Clyde Mine, withdrawal Order No. 624051 pursuant to the
provisions of section 104(b) of the Act. The withdrawal order stated that
it was issued because "no-apparent effort was made by the operator to correct
the roof conditions" in the 16 areas along the main track haulage listed in
Citation No. 624247.
12. Republic presented no evidence concerning its inability to abate
the citation within the time allowed by the citation.
l3o On September 18 and 19~ 1979? MSHA inspector, William Thistlewaithe,
issued other citations for conditions along the haulage at Republic's Clyde
Mineo These citations had not been abated prior to Inspector Merella's
issuing Citation No. 624247. Inspector Thistlewaithe and the management of
Clyde Mine had a discussion regarding the sequence or order of abatement of
the citations. Prior to the issuance of Citation No. 624247, Inspector
Thistlewaithe told Republic that if good faith was shown and an honest effort
was performed toward getting the most hazardous conditions abated first, the
time for abatement of other cit.ations would be extended. On October 9, 1979,
Inspector Thistlewaithe terminated one citation and extended the time for
abatement of two others.

14. During all periods of time relevant to this proceeding, Republic
regularly operated three daily shifts at its Clyde Mine. The shifts are
commonly referred to as the midnight shift, the day shift, and the afternoon
shift.

110d

15. As a direct result of Order No. 624051, certain miners scheduled
to work from 4 p.m. to midnight were idled for the entire afternoon shift
of October 10, 1979.
16. Such miners, except for Mr. Bundy, have been compensated for
4 hours of such afternoon shift as indicated on Joint Exhibit No. 1.
17. As a direct result of Order No. 624051, certain miners scheduled
from midnight to 8 a.m., on October 11, 1979, were idled for their entire
8 hour shift.
18. Joint Exhibit No. 2 identifies those miners who were idled during
the midnight to 8 a.m. shift on October 11, 1979.
19. As a direct result of Order No. 624051, certain miners scheduled
to work the day shift on October 11, 1979, were idled for their entire
8 hour shift.
20. Joint Exhibit No. 3 identifies those miners who were idled during
the day shift of October 11, 1979.
21. The parties stipulated that if Order No. 624051 was affirmed,
miners listed in Joint Exhibit Nos. 1, 2, and 3 are entitled to compensation
for the period of time set forth in paragraphs 15 through 20 of the Findings
of Fact herein.
22. In the 2 years prior to the issuance of Citation No. 624247,
Republic was assessed 429 violations in 952 inspection days.
23.

Republic's Clyde Mine is a large underground coal mine.

240

Republic is a large operator.

25. Order Nao 624051 was modified on October 11, 1979, at 2 p.m., to
allow use of the main track haulage because of the abatement efforts made by
Republic up to that time.
DISCUSSION

Io

Citation Noo 624247

It appears that the area of the mine in controversy was driven in the
late 1940 1 s or early 1950's when there was no requirement of an approved
roof control plan. Indeed, MSHA has now stipulated that the roof control
plan does not apply to this citation. Republic contends that the citation
is defective in that it
violations of the inapplicable plan.
Republic goes on to assert that the inspector's nmere recital of the facts
stated in the notice of violation without some recollection of the details
of the pertinent facts are not sufficient to sustain MSHA's. burden of proof."
No authority is cited in support of Republic's arguments.

1104

MSHA asserts that the inspector's reference to the roof control plan
is of no consequence since the citation specifically alleges a violation of
30 C.F.R. § 75.200 which applies to all active mines. This regulation
requires that "the roof and ribs of all active underground roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs." MSHA asserts
that Republic has not claimed any prejudice resulting from the inspector's
error and that even where a condition does not violate the approved roof
control plan, an operator may be liable for a violation of 30 C.F.R. § 75.200.
MSHA cites the decision of Judge John F. Cook in Peabody Coal Company,
1 FMSHRC 1121, 1 BNA MSHC 2218 (August 29, 1979). In Peabody Coal Company,
Judge Cook held as follows:
It is unnecessary to address the ambiguities in the roof
control plan, if it is indeed ambiguous, because the plan is
not the basis for the violation presented herein. In Zeigler
Coal Company, 2 IBMA 216, 80 I.D. 626, 1973-1974 OSHD
par. 16,608 (1973), the 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
of (30 CFR 75.200] ." 2 IBMA at 222.
Accordingly, where the evidence presented is sufficient
to establish that the mine's roof was not adequately supported
to protect persons from falls, it is not necessary to prove a
violation of the roof control plan in order to sustain a violation of 30 C.F.R. § 75.200.
Id. at 1150.
I agree with MSHA's contention that the inspector's error in charging
a violation of the roof control plan is of no consequence in this proceeding.
The citation specifically alleged a violation of 30 C.F.R, § 75.200,
Republic does not claim that it was mislead or prejudiced in any way by the
error. The unrefuted testimony of the three MSHA inspectors fully establishes
numerous areas of inadequately supported roof and one area of inadequately
controlled rib along the main haulage track of the Clyde Mine. The uncontroverted evidence of record also establishes that miners traveled in these
areas and were exposed to injuries from falling material.
I also agree with Judge Cook's decision in Peabody Coal Company, supra,
that where the evidence establishes that the mine's roof was inadequately
supported to protect persons from falls, it is unnecessary to prove a violation of the approved roof control plan in order to establish a violation of
30 C.F.R. § 75.200. This is particularly true in the instant case where the
area in question was driven prior to the time approved roof control plans
were required by law.
Republic's arguments, that the citation is defective because it alleged
a violation of the roof control plan and that MSHA did not establish the

violation of 30 C.F.R. § 75.200 by a preponderance of the evidence, are
rejected. Republic violated 30 C.F.R § 75.200 as charged by MSHA and
Citation No. 624247 is affirmed.
II.

Order No. 624051

On September 24, 1979, MSHA issued the citation to Republic for
inadequately supported roof and rib. That citation allowed a period of
15 days, until October 9, 1979, for Republic to abate the violation alleged.
On October 10, 1979, Inspector Swarrow went to the Clyde Mine to determine
whether the violation had been abated or the time for abatement should be
extended. Inspector Swarrow determined that Republic had performed no work
to abate the citation. Thereupon, he issued Order of Withdrawal No. 624051
pursuant to section 104(b) of the Act.
Since Republic's challenge to the underlying citation has been rejected
herein, Republic's sole remaining argument is that the order is invalid
"because the citation should have been extended." Republic asserts that
Inspector Swarrow acted unreasonably in refusing to extend the period for
abatement and in issuing the order of withdrawal. Republic also claims that
the time for abatement of this citation should have been extended because it
was abating another more hazardous condition along the haulage and that MSHA
Inspector Thistlewaithe had previously stated that if Republic showed good
faith and an honest effort to abate the most hazardous conditions first,
other times for abatement would be extended.
The testimony of the MSHA inspectors establishes that the termination
due date or abatement date for the citation was reasonable. Since Republic
presented no evidence to the contrary, the testimony of the inspectors is
accepted. Likewise, Republic did not controvert the testimony of Inspector
Swarrow that on October lOt 1979, 16 days after the citation was issued, no
work had been performed by Republic to abate the 16 conditions listed in the
citationo Accordingly, MSHA has established that the violation cited was not
abated on October 10, 1979"
In its brief, Republic argues that the order of withdrawal pursuant to
section 104(b) of the Act should be vacated because of the "inflexible and
adamant position" of Inspector Swarrow. Republic cites Peter White Coal
April, 1979, FMSHRC 255 (April 24, 1979), where Judge
vacated an order of withdrawal issued under section 104(b) of
the Act because of the inspector's failure to consider the operator's
explanation for failure to abate. In that case, an electrician mistakenly
repaired a different splice at another location in the mine and there was
confusion regard
the location of the violation. Peter White Coal Mining
Corp., supra, is clearly distinguishable from the instant case because the
evidence-0£ record establishes that there was no confusion regarding the
locations of the alleged violations in the citation and Republic failed to
show that it took any action, mistaken or otherwise, to correct the violation.
Republic failed to establish that Inspector Swarrow acted improperly because
of his alleged "inflexible and adamant position."

llOh

The primary thrust of Republic's assertion that the time for abatement
of the citation should have been extended, is its contention that it was
utilizing its resources to abate more hazardous conditions in the area which
required "more immediate attention." In this regard, Republic relies upon
a statement made by Inspector Thistlewaithe prior to the time the instant
citation was issued, that if Republic demonstrated good faith and an honest
effort to correct the more hazardous conditions, the time for abatement of
citations issued by Inspector Thistlewaithe would be extended. Inspector
Thistlewaithe testified that, in his opinion, Republic did not demonstrate
good faith or an honest effort to correct the previously cited violations but
that his supervisor ordered him to extend the earlier citations. Although
not articulated as such, Republic appears to raise estoppel as a defense
against MSHA. Suffice it to say that the Government cannot be estopped by
the statements of an MSHA inspector. However, if Republic can establish that
it committed maximum resources to abate violations, beginning with the most
hazardous, this would be considered in deciding whether the time for abatement should be extended. Unfortunately for Republic, it has failed to establish anything beyond a token effort towards abatement of the outstanding
citations prior to the issuance of the order in question. The mine employed
more than 300 miners. On the day this order was issued, Inspector Swarrow
saw three miners working to abate the citations issued on September 18 and
September 19. As noted earlier, Republic elected to present no testimony at
the hearing.
In the instant case,.the citation was issued for 16 areas of inadequately supported roof and rib. These conditions presented a safety hazard
to all miners traveling in the area. During the 16 days from the time the
citation was issued until the day the order of withdrawal was issued, Republic
took no action to abate any of the cited conditions. Republic failed to
establish any justification for its refusal to abate the violation. The evidence clearly shows a lack of diligence by Republic in its response to this
citation. I find that Republic failed to establish that the time for abatement of Citation No. 624247 should have been extended. MSHA has established
that Order No. 624051 was properly issued. Order No. 624051 is affirmed.
III.
A.

Minervs Claim for Compensation
Lost Wages

Section 111 of the Act provides that where a coal mine is closed by a
valid order issued under section 104 for a failure of the operator to comply
with a mandatory health or safety standard, "all miners who are idled due to
such order shall be fully compensated • • • for lost time at their regular
rates of pay for such time as the miners are idled by such closing • • • • "
In this case, the order under section 104(b) was issued at noon on October 10,
1979. The order was modified at 2 p.m., on October 11, 1979, and no working
shifts thereafter were idled. The parties stipulated the identities, rates
of pay, and lost wages of the miners who were idled by the order in question.
Joint Exhibit Nos. 1, 2, and 3 are incorporated herein and attached as an
Appendix to this Decision and Order. Republic failed to comply with mandatory safety standard 30 C.F.R. § 75.200. The section 104(b) order was issued

because of this failure. The miners who were idled as a result of the order
are entitled to that rate of pay which they would have received on the days
in question had the withdrawal order not been issued. Therefore, Republic
is ordered to pay each miner listed in the Appendix attached hereto the amount
of compensation owed including, where applicable, shift differential and the
rate of pay for the grade at which the miner was scheduled to work on the days
in question.
B.

Interest

The UMWA contends that the miners are entitled to 12 percent interest
on the compensation owed. It urges that the Commission should follow the
lead of the National Labor Relations Board in Florida Steel Corp., 231
N.L.R.B. 651 (1977). The UMWA presented the same argument to me in
Local Union 9690 v. Itmann Coal Company, 2 FMSHRC 1986 (1980). In that
decision, I stated:
I am aware that other judges of the Commission have
awarded interest in excess of 6 percent per annum. Although
the UMWA presents a persuasive argument in support of its
position in favor of higher interest, I am constrained to
follow the decision of the Commission in Peabody Coal Company,
Docket No. VINC 77-50, November 14, 1979, where it modified
a judge's decision on interest to a rate of 6 percent per
annum from the date compensation was due up to the date on
which payment is mad~. If this policy is to be changed, it
is for the Commission to make the change.
Id. at 2011.
Although the Commission's decision in Peabody Coal Company, supra,
involved an order of withdrawal under the 1969 Act, the UMWA is unable to
cite any legislative history of the 1977 Act which would support a higher
rate of interest for the award herein. At the UMWA request, I have reconsidered my prior ruling on the amount of interest to be awarded in compensation
cases brought under the 1977 Act. However, I continue to believe that the
Commission's decision in Peabody Coal Company, supra, is controlling on this
issueo Therefore the amount of interest payable on the compensation award
herein shall be at 6 percent per annum from the date the compensation was
due until the date payment is madeo
IV.

Civil Penalty

MSHA intitially proposed a civil penalty of $500 for the violation
herein. However, the Solicitor's posthearing brief states that "MSHA
recommends a penalty of $5,000 in the instant proceeding."
In assessing a civil penalty, the six criteria set forth in section
llO(i) of the Act shall be considered. The parties stipulated that Republic
was assessed 429 violations and 952 inspection days at this mine and the

llOb

Solicitor characterizes this as a "moderate" history of violations. Republic
is a large operator and the assessment of a civil penalty will not affect
its ability to continue in business.
Republic is chargeable with ordinary negligence in its failure to
discover and correct the numerous areas of inadequately supported roof and
rib in its main track haulage. The uncontradicted testimony of the MSHA
inspectors established a void, which required lagging between cracked roof
and the crossbar below; loose material resting on a crossbar; loose rib;
and hanging roof bolts. The evidence established that more than 300 miners
traveled through this area every day. Those miners were exposed to possible
injury from a roof fall. I conclude that the gravity of this violation was
serious.
As noted above, Republic failed to exercise good faith in abating the
cited conditions. During the 16 days from the time the citation was issued
until the order of withdrawal was issued, Republic took no action to correct
the conditions. Republic failed to establish any reason for its lack of
good faith compliance.
Based upon all of the evidence of record and on the criteria as set
forth in section llO(i) of the Act, I conclude that a penalty of $1,000
should be imposed for the violation found to have occurred.
CONCLUSIONS OF LAW
1. The Administrative Law Judge has jurisdiction over the parties and
subject matter of this proceeding.
2.

Republic and its Clyde Mine are subject to the Act.

3, Citation No. 624247 issued on September 24~ 1979, charging a violation of mandatory safety standard 30 C.F.R. § 75.200, is affirmed.

4. Republic failed to establish that the time to abate Citation
No. 624247 should have been extended.
So Order No. 624051 issued on October 10, 1979, for failure to abate
Citation No. 624247 pursuant to section 104(b) of the Act, is affirmed.

6. Order No. 624051 was issued pursuant to section 104(b) of the Act
because Republic failed to comply with a mandatory health or safety standard.
7. The miners listed in Joint Exhibit Nos. 1, 2, and 3, attached
hereto and incorporated herein, were idled for the times specified due to
Order No. 624051.
8. Those miners described in the foregoing conclusion.of law are
entitled to the compensation listed in the above documents at the rate of
pay which they would have received had the order not been issued including,

llOB

where applicable, shift differential and the rate of pay for the grade at
which the miner was scheduled to work on the days in question.
9. Interest on the amount of compensation awarded herein shall be
payable at 6 percent per annum from the date such compensation was due to
the date payment is made.
10. Considering the criteria specified in section llO(i) of the Act,
Republic is assessed a civil penalty in the amount of $1,000 for the
violation of 30 C.F.R. § 75.200.

ORDER
WHEREFORE IT IS ORDERED that Republic's contest of Order No. 624051 is
DENIED and Order No. 624051 is AFFIRMED.
IT IS FURTHER ORDERED that the miners listed in Joint Exhibit Nos. 1,
2, and 3, attached hereto and incorporated herein, are entitled to the

compensation listed therein, with interest at 6 percent per annum from the
dates such compensation was due to the dates such compensation is paid, and
where applicable, shift differential and the rate of pay for the grade at
which the miner was scheduled to work on the days in question.
IT IS FURTHER ORDERED that Republic pay the sum of $1,000 within 30 days
of the date of this decision as a civil penalty for the violation of
30 C.F.R. § 75.200.

(j\!s

Distribution by Certified Mail:

\_,)

A. LaurerfuOil, Judge

Bronius Taoras, Esq., Republic Steel Corporation, Coal Mining Division,
455 Race Track Road, P.O. Box 500, Meadow Lands, PA 15347
David E. Street, Esq., Office of the Solicitor, U.S. Department of Labor,
3535 Market Street, Philadelphia, PA 19104
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th Street.,
N.W., Washington, D.C. 20005

1110

Local Union 688, District 5, v. Republic Steel Corp., PENN 80-112-C
(Clyde Mine
4:00 p.m. to midnight shift -- 10/10/79)

--

Hourly Rate
(with SD)

Hour!y Rate
(without SD)

4 Hrs. Compensation Owed
(with SD)
(without SD)

23118

9.2925
(8.9975)

9. 0925
(8.7975)

37.17
(35.99)

36.37
(35 .19)

*R. Keller

23096

10.065
(8.9975)

9.865
(8. 7975)

40.26
(35.99)

39.46
(35.19)

*Molk

23043

10.065
(8.9975)

9.865
(8. 7975)

40.26
(35.99)

39.46
(35.19)

*Lucostic

23139

9.07
(8.9975)

8.87
(8.7975)

36.28
(35.99)

35.48
(35.19)

Roh fer

23126

8.9975

8.7975

35.99

35.19

M. Angelo

23064

9.07

8.87

36.28

35.48

*Cutwright

23146

10.065
(8.9975)

9.865
(8.7975)

40.26
(35.99)

39.46
(35.19}

*Stickles

23117

10.065
(8. 9975).

9.865
(8. 7975)

40.26
(35.99)

39.46
(35.19)

*Stickovich

20527

10.065
(8.9975)

9.865
(8.7975}

40.26
(35.99)

39.46
(35.19)

*Sutton

20484

10.065
(8.9975)

9.865
(8. 7975}

40.26
(35.99)

39.46
(35.19)

*P. Mahoney

20530

10.065
(9.66)

9.865
(9.46)

40.26
(38.64)

39.46
(37.84)

*D. Mahoney

20493

10.065
(9.66)

9.865
(9.46)

40.26
(38.64)

39.46
(37.84)

*T. Mahoney

23091

10.065
(9.07).

9.865
(8. 87)

40.26
(36.28)

39.46
(35.48)

*Bishop

20329

9.2925
( 9. 0 7)

9.0925
(8.87)

37 .17
(36.28)

36.37
(35.48)

*Davis

20474

9.2925
( 9. 07)

9.0925
(8.87)

37.17
(36.28)

36.37
(35.48)

*Bailey

20389

9.2925
{9.07)

9.0925
(8.87)

37.17
(36.28}

36.37
(35.48)

*St. Fane in

20534

9.2925
(9.07)

9.0925
( 8. 87)

37.17
( 36. 28)

36.37
(35.48)

*Meese

23108

10.065
(8. 9975)

9.865
(8.7975)

40.26
(35.99)

39.46
(35.19)

l)('nnis

23040

9.29::'5

9.092'3

n.11

36.37

Greenwood

23080

9.2925

9.0925

37 .17

36.37

Lesouski

20377

10.065

9.865

40.26

39.46

Bucher

23087

10.065

9.865

40.26

39.46

*Meadows

23111

9.2925
(8. 9975)

9.0925
( 8. 797'.))

37.17
(35.99}

36.37
(35.19)

Erneloyee

Number

*Bundy

Appendix

Joint Exhibit 1

111.t

APPEND1X

-2Hourly t<.-ite
(withoutsD)

4 Hrs. Compensation Owed
{With SD)
(without SD)

9.2925
(8.9975)

9.0925
(8. 7975)

37.17
(35.99}

36.37
(35.19)

20498

10.065

9.865

40.26

39.46

Hess

23048

9.2925

9.0925

37.17

36.37

*Devlin

23071

9.2925
(8. 9975)

9.0925
(8.7975)

37.17
(35.99)

36.37
(35.19)

Revi

20515

10. 065

9.865

40.26

39.46

Gleason

23019

10.065

9.865

40.26

39.46

*McMaster

23106

10.065
(8.9975)

9.865
(8.7975)

40.26
(35.99)

39.46
(35.19)

*Lanzi

23149

10.065
(8.9975}

9.865
(8.7975)

40.26
(35.99)

39.46
(35.19)

Kern

23027

10.065

9.865

40.26

39.46

Crawford

20502

10.065

9.865

40.26

39.46

*Jackson

23136

9.2925
(8. 9975)

9. 0925
(8.7975)

37.17
(35.99)

36.37
(35.19)

*Sweany

23120

9.2925
(8.9975)

9.0925
(8.7975)

37.17
(35.99)

36.37
(35.19)

Le'3ko

20382

10.065

9.865

40.26

39.46

*Dunseath

23068

10.065
(9.2925)

9.865
(9.0925)

40.26
(37.17)

39.46
(36.37)

*Christopher

23030

10.065
(8.9975)

9.865
(8.7975)

40.26
(35.99)

39.46
(35.19)

*Lawson

23069

9.2925
(8.9975)

9.0925
(B.797:'>)

37.17
(3'3.99)

36.37
(35 .19)

Employee

Number

*K. Lockett

23129

Adamson

*l·'airf«x

'J • ).1))."

'l • () 'J). '.>

J'/. J 7

(8. 7975)

(H.797S)

(3~.99)

36.37
(35.19)

*Green

23148

9.2925
(8. 9975)

9.0925
(8.7975)

37.17
(35.99)

36.37
(35.19)

Nicholson

23151

9.2925

9.0925

37.17

36.37

Neyman

20512

8.9975

8.7975

35.99

35.19

Anderson

20439

10.065

9.865

40.26

39.46

Hammon

20543

10.065

9.865

40.26

39.46

Smigovsky

20476

10.065

9.865

40.26

39.46

Emericko

23057

9.66

9.46

38.64

37.84

Ru;nblc

23026

9.66

9.46

38.64

37. 84·

Bates

23066

9.07

8.87

36.28

35.48

Di rd a

23067

9.07

8.87

36.28

35.48

SD

*
{

)

Shift differentiLll.
Employee scheduled to work in a pay grade higher than his normal job
classification.
Employee's regular job grade.
Appendix - Joint Exhibit l

1112

APPENDIX

MIDNIGHT SHIFT (Midnight to 8:00 am shift) - 10/11/79
Hourly Rate
(with SD)

Daily Rate

Hourly Rate
(without SD)

Daily Rate
(without SD)

5

10.165

81. 32

9. 865

78.92

4

9.76

78.08

9.46

75.68

3

9. 3925

75.14

9.0925

72.74

2

9.37

74.96

8.87

70.96

1

9. 0975

72. 78

8.7975

70.38

Job Grade

SD = shift differential
$4,771.58 -- rate of higher pay with shift differential.

Appendix - Joint Exhibit 2

111~>

APPENDIX

LOCAL UNION 688, DISTRICT 5 v. REPUBLIC STEEL CORP., PENN 80-112-C
Midnight to 8:00 am shift -- 10/11/79)
(CLYDE MINE
HOURLY RATE

HOURLY RATE

8 HRS. COMPENSATION OWED
(without SD)

EMPLOYEE

B. King

23127

9.0975

8.7975

72. 78

70.38

Makel

23092

9.0975

8.7975

72. 78

70.38

Kon tor

20521

10.165

9.865

81.32

78.92

Ashford

23037

9.37

8.87

74.96

70.96

White

23060

9.37

8.87

74.96

70.96

Carter

23144

9.0975

8.7975

72.78

70.38

Workman

23098

9.37

8.87

74.96

70.96

*Pas car al

23134

10.165
(9.0975)

9.865
(8.7975)

81.32
(72.78)

78.92
(70.38)

*Zaksek

23115

10.165
(9.0975)

9.865
(8. 7975)

81.32
(72. 78)

78.92
(70.38)

*Orawiec

23052

10.165
(9.0975)

9.865
(8.7975)

81. 32
(72.78)

78.92
(70.38)

*Strathers

23105

10.165
(9.0975)

9.865
(8. 7975)

81.32
(72.78)

78.92
(70.38)

McLaughlin

23140

9.0975

8.7975

72. 78

70.38

*Katpuska

20466

10.165
(9. 76)

9.865
(9. 46)

81.32
(78. 08)

78.92
(75. 68)

*Strathers

20462

10.165
(9. 76)

9.865
{9.46)

81. 32
(78. 08)

78.92
(75. 68)

*Sasko

23058

10.165
(9. 0975)

9.865
(8. 7975)

81. 32
(72.78)

78.92
(70.38)

*Vargo

23054

10.165
(9. 0975)

9.865
(8. 7975)

81. 32
(72. 78)

78.92
( 70. 38)

*Mahoney

20508

10.165
(9.0975)

9.865
(8. 7975)

81. 32
(72. 78)

78.92
(70. 38)

*Parks

23135

9.3925
(9.0975)

9.0925
(8.7975)

75.14
(72. 78)

72.74
(70. 38)

*Hancak

23032

9.3925
(9.37)

9.0925
(8.87)

75.14
(74.96)

72.74
(70. 96)

*O.Dillinger

20481

9.3925
(9. 37)

9.0925
(8.87)

75.14
(74. 96)

72.74
(70.96)

Vilcoss

23072

9.0975

8.7975

72.78

70.38

*Hoover

23128

9.37
(9.0975)

8.87
(8. 7975)

74.96
(72. 78)

70.96
(70.38)

Lorence

20496

10.165

9.865

81. 32

78.92

Stickle

20517

10.165

9.865

81. 32

78.92

*Tedrow

20471

10.165
(9.0975)

9.865
(8. 7975)

81. 32
(72.78)

78.92
(70.38)

Sweany

20450

10.165

9.865

81. 32

78.92

Appendix - Joint Exhibit 2

1114

APPENDIX

-2HOURLY RATE

HOURLY RATE
(without SD)

8 HRS. COMPENSATION OWED
(with SD)
(without SD}

23113

9.3925
(9.0975)

9.0925
(8.7975)

75.14
(72.78)

72. 74
(70.38)

*King an

23107

9.3925
(9.0975)

9.0925
(8. 7975)

75.14
(72.78)

72. 74
(70.38)

Nyswaner

20449

10.165

9.865

81. 32

78.92

Martin

20485

10.165

9.865

81.32

78.92

*Ferrari

23021

10.165
(9. 0975)

9.865
(8.7975)

81. 32
(72.78)

78. 92
(70.38)

*Klamers

23074

10.165
(9.0975)

9.865
(8.7975)

81. 32
(72. 78)

78.92
(70.38)

*Bungard

23076

9.3925
(9 .0975)

9.0925
(8.7975)

75.14
(72.78)

72. 74
(70.38)

*Stotka

23109

9.3925
(9.0975)

9.0925
(8. 7975)

75.14
(72.78)

72. 74
(70.38)

Vavreck

20535

9.37

8.87

74.96

70.96

Kruper

20566

10.165

9.865

81.32

78.92

Glebes

20536

10.165

9.865

81.32

78.92

J. Swaney

20468

10.165

9.865

81. 32

78.92

*Ferarri

23075

9.3925
(9. 0975)

9.0925
(8. 7975)

75.14
(72. 78)

72. 74
(70.38)

*Stuck

23133

9.3925
(9.0975)

9.0925
(8. 7975)

75 .14
(72.78)

72.74
(70.38)

Corrazi

23020

10.165

9.865

81. 32

78.92

*Dice

23124

10.165
(9. 0975)

9.865
(8.7975)

81. 32
(72. 78)

78.92
(70. 38)

Brewer

20480

10.165

9.865

81. 32

78.92

*Tchiniski

23078

9.3925
(9.0975)

9. 0925
(8. 7975)

75.14
(72. 78)

72.74
(70.38)

Wise

23143

9.3925

9.0925

75.14

72. 74

Callahan

20554

10.165

9.865

81.32

78.92

Bricker

23041

10.165

9.865

81. 32

78.92

*Elentri

20561

10.165
(9. 0975)

9.865
(8.7975)

81. 32
(72.78)

78.92
(70. 38)

*Peters

23044

10.165
(9.0975)

9.865
(8. 7975)

81.32
(72.78)

78.92
(70.38)

Vegoda

23023

10.165

9.865

81. 32

78.92

*Shrontz

23114

9.3925
(9.0975)

9.0925
(8.7975)

75.14
(72.78)

72. 74
(70.38)

*Burrie

23142

9.3925
(9. 0975)

9.0925
(8. 7975)

75.14
(72.78)

72. 74
(70.38)

EMPLOYEE

NUMBER

*Fisher

Appendix - Joint Exhibit 2

111:1

APPENDIX

-3HOURLY RATE

HOURLY RATE
(without SD)

8 HRS. COMPENSATION OWED
(without SD}

NUMBER
Fieldson

20477

9.0975

8.7975

72. 78

70.38

Turner

20415

10.165

9.865

81. 32

78.92

Branstettler 20292

10.165

9.865

81. 32

78.92

Stagon

23022

9.76

9.46

78. 08

75.68

Retucci

23065

9.76

9.46

78.08

75.68

Toth

23094

9.37

8.87

74.96

70.96

Boyer

23056

9.37

8.87

74.96

70.96

*Bowman

20495

9.37
(9.0975)

8.87
(8.7975)

74.96
(72.78)

70.96
(70 .38)

Meadows

20571

10.165

9.865

81. 32

78.92

SD

shift differential

*Employees scheduled to work in a pay grade higher than their normal
job classification.
} Employees regular job grade.

Appendix - Joint Exhibit 2

111u

APPENDIX

DAY

(8:00 am to 4:00 pm)

-

10/11/79

HOURLY RATE

DAILY RATE

5

9.865

$78.92

4

9.46

$75.68

3

9.0925

$72.74

2

8.87

$70.96

l

8.7975

$70.38

JOB GRADE

$4,434.92 --

rate of higher job grade.

Appendix - Joint Exhibit 3c .·

1117

APPENDIX

LOCAL UNION 688, DISTRICT 5 v. REPUBLIC STEEL CORP. / PENN 80-112-C
(CLYDE MINE

8:00 am to 4:00 pm shift -- 10/11/79)
NUMBER

Levo

23145

8.7975

$70.38

Ferarri

23119

8.7975

70.38

Hajari

23083

9.0925

72.74

Miller

20531

8.87

70.96

Srnoggie

23015

8.87

70.96

Mccarty

23077

8.87

70.96

*DeFrancisco

23123

8.87
(8. 7975)

70.96
(70.38)

Doman

23130

8.7975

70.38

Galek

23090

9.0925

72. 74

Dubovich

23095

8.7975

70.38

Bohna

23121

8.7975

70.38

*Colbert

20559

9.865
(8.87)

78.92
(70.96)

*Vigoda

20333

9.865
( 9. 46)

78.92
(75.68)

*Celaschi

20551

9.865
( 9. 46)

78. 92
(75. 68)

*Mutucci

20342

9.0925
(8.87)

72. 74
(70. 96)

*Rossell

20322

9.0925
(8.87)

72. 74
(70. 96)

'"Rossell

20325

9.0925
( 8. 87)

72. 74
(70. 96)

Frey

23063

8.7975

70.38

Grooms

23131

8.7975

70.38

Lynch

20313

9.865

78.92

Man ch es

20557

9.865

78.92

*Scuccia

23125

9.0925
(8.7975)

72.74
( 70. 38)

Valen tic

20568

9.865

78.92

Hritz

205H

9.865

78.92

Petrovich

20569

9.865

78.92

*Elko

20482

9.865
(9. 0925)

78.92
(72. 74)

Piper

20344

9.865

78.92

A~pendix

- Joint Exhibit 3

HOURLY RATE

8 HRS.
COMPENSATION OWED

EMPLOYEE

lllb

APPENDIX

-28 HRS.
RATE

NUMBER
King

23042

9.865

78.92

*Junk

23053

9.0925
(8.7975)

72.74
(70.38)

Steinmiller

20501

9.865

78. 92

Grooms

20413

9.865

78.92

Gallagher

20553

9.865

78. 92

*Ga land

23089

9.865
(8.7975)

78.92
(70. 38)

*O'Hern

23101

9.865
(8.7975)

78. 92
(70. 38)

Taft

23070

9. 0925

72. 74

*Chuska

23110

9. 0925
(8. 7975)

72.74
(70. 38)

McEven

20550

9.865

78.92

Johnson

20472

9.865

78.92

E. Grooms

20562

9.865

78.92

*J. Lawrence

20360

9.865
(8.7975)

78.92
(70. 38)

Thompson

23029

9.865

78.92

Adamson

23025

9.865

78.92

*L. Smith

23112

9.0925
(8.7975)

72. 74
(70. 38)

Bonamo

23059

9.0925
(8. 7975)

72.74
(70. 38)

Guthrie

20549

9.865

78.92

Lacinak

20323

9.865

78.92

''Smith

23016

9.865
(8.87)

78.92
(70.96)

Workman

23024

9.0925

72. 74

*Schubert

23062

9.0925
(8.7975)

72.74
(70. 38)

*Jenko

23122

9.0925
(8.7975)

72.74
(70. 38)

Kennison

23103

8.7975

70.38

Ropejko

20510

8.7975

70.38

Rankin

20548

9.865

78.92

Wilson

20334

9.865

78. 92

Wilson

23047

9.46

75.68

i>A4

Appendix

Joint Exhibit 3

1119

APPENDIX

-3B HRS.
COMPENSATION OWED

EMPLOYEE

NUMBER

Tuomi

23033

9.46

75.6B

Ro pa ch

20990

9.46

75.6B

Keffer

23045

B.87

70.96

Kolek

23097

8.87

70. 96

HOURLY RATE

*Employees scheduled to work in a pay grade higher than their normal
job classification.
} Employees regular job grade.

Appendix - Joint Exhibit 3

1120

APPENDIX

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

2 8 APR 1981

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

Civil Penalty Proceeding
Petitioner

Docket No. CENT 79-96-M
A/O No. 03-01140-05003F

v.
Searcy Quarry and Mill
BEN M. HOGAN COMPANY, INC.,
Respondent
DECISION
Appearances:

Gail M. Dickenson, Esq., and Eloise V. Vellucci, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Dallas, Texas, for Petitioner;
Gus Albright, Safety Director, Ben M. Hogan Company,
Inc., Little Rock, Arkansas, for Respondent.

Before:

Judge Cook

lo

Procedural Background

On June 25, 1979, the Mine Saf
and Health Administration (Petitioner)
filed a petition for assessment of civil penalty against Ben M. Hogan Company,
Inc. (Respondent), in the above-captioned proceeding. The petition was filed
pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 820(a) (Supp. III 1979) (1977 Mine Act), and alleges a violation
of one provision of the Code of Federal Regulations. An answer was filed on
July 5, 1979"
The case was assigned to the undersigned Administrative Law Judge on
October 16, 1979, and a prehearing order was issued on October 19, 1979,
which, among other things, ordered the parties to confer as to the
bility of settlement of the case. Settlement negotiations continued for
several months without fruition. A notice of hearing was issued scheduling
the case for August 27, 1980, in Little Rock, Arkansas. This was continued
until December 2, 1980, pursuant to request by the Respondent's representative that eye surgery would prevent him from activity for at least 2 months.
The case was then again continued as a result of a request by both parties
to submit the case on stipulations. Time for filing stipulations and briefs
was set, however, pursuant to a motion by the Petitioner, the time limit was
extended.

1121

A stipulation of facts was filed as well as the Petitioner's motion for
summary judgment. 1/ A memorandum in support of the Petitioner's motion was
filed as well as a-letter from the Respondent's representative in rebuttal
to the Petitioner's memorandum.
II.

III.

Violation Charged
Citation No.

Date

30 C.F.R. Standard

1629 21

6/23/78

56.9-37

Issues

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

Opinion and Findings of Fact
A.

Stipulation and Findings of Fact

The stipulation provided, in part, as follows:
The parties stipulate and agree that the following documents and statements constitute all factual evidence in this
case.
1.

Copy of Citation No. 16292L

2.

Copy of Penalty Assessment.

3.

Accident report.

4
Conference worksheet which reflects violation, size
of mine and previous history.
0

1/

The Petitioner's motion for summary judgment stated, in part, as follows:
11
Comes now the Secretary and moves the court for summary judgment in
favor of petitioner and against respondent affirming citation #16 2921 and
proposed penalty of $1,000.00.
"In support of said motion complainant would show the court that no
genuine issue exists as to any material fact, and that complainant is
entitled to judgment as a matter of law."

5.

Letter to MSHA from Gus Albright dated July 2, 1979.

The order and citation as originally issued provided, in part, as
follows:
Order No. 162921 (date - 06/23/78; time - 0700; type - 107a,
104a) [part and section: 56.9-37]
William O. Wilcox, the operator of the 980-B Caterpillar
front-end loader, Serial No. 89P5256, was fatally injured on
June 21, 1978, at approximately 11:30 a.m. Ed Tomlinson, a
witness, stated that he observed the victim squatting on top
of the front-end loader left rear wheel, facing the engine
while the engine was operating at a fast idle. The frontend loader, parked on a grade, the bucket in a raised position and the wheels not blocked or turned toward the bank,
star~ed moving and the victim was pulled between the wheel
and the fuel tank and subsequently run over by the left rear
wheel.
The termination of such order and citation was issued on June 23, 1978, at
0800 and stated, in part, as follows: "The front-end loader operators were
instructed on the proper procedure for parking and dismounting the front-end
loaders."
On February 2, 1979, a modification of the original order and citation
was issued which stated, in part, as follows: "Delete the 107 A order and
modify to read 104 A citation only."
Pertinent parts of the accident report provide as follows:
INTRODUCTION
This report is based on an investigation made pursuant
to Section 103(a) of the Federal Mine Safety and Health Act
of 1977, Public Law 91-173 (83 STAT. 742) as amended by
Public Law 95-164 (91 STAT. 1290).
William Oo Wilcox, SSN 431-48-0037, front-end loader
operator, age 62, married, with no dependents, was fatally
injured at 11:30 a.m., June 21, 1978, when the parked frontend loader he was operating started a sudden forward movement, throwing the victim from a squatting position on the
left rear tire, pulling him between the wheel and mudguard
and ran over him. The victim had 3 years experience operating a front-end loader at this operation, and 25 years
experience in related heavy equipment operations.
The Little Rock field office was notified by a telephone call from Gus Albright, safety director for Ben M.

Hogan Company, Inc. at 4:16 p.m. June 21, 1978.
dent was investigated on June 22, 1978.

This acci-

Information for this report was obtained by visiting
the accident site and interviewing employees and officials
of the Ben M. Hogan Company, Inc. The accident site had
been left undisturbed. Investigations of the accident
had been conducted by the company officials in conjunction
with local law enforcement officers and J. A. Riggs Tractor
Company.

GENERAL INFOR...'1ATION
The Ben M. Hogan Company, Inc., Searcy Quarry and Mill
is a crushed stone mining and sizing operation 3 miles north
of Searcy, Arkansas. Sandstone is drilled, shot and loaded
into haulage trucks, hauled to the crushing and screening
plant, where crushed material is stockpiled, loaded and
hauled to various areas for the construction industry.

*

*

*

*

*

*

*

PHYSICAL FACTORS INVOLVED
The rubber-tired articulated front-end loader was a
Caterpillar Model 980-B, Serial No. 89P5256, equipped with a
5-1/2-cubic yard capacity bucket, 260 horsepowered at 220 RPM,
operating weight of 47,000 pounds, single lever planetary
power shift, iron counterweight of 3,190 pounds, wheelbase of
122 inches, overall length of 24 feet 10 inches, height to
top of exhaust stack 11 feet 7 inches, and a maximlllll hinge
pin height of 13 feet 7 inches.
On the
of the accident the victim had complained to
Ed Tomlinson, haulage truck operator, that it felt like a
tire was low. After an investigation by the two it was
decided the tires were ok.
Mobile equipment operators change oil, lubricate, and
their vehicles weekly. Deficiencies found at any
time were reported verbally to the foreman or the superintendent and the J. A. Riggs Tractor Company sends a mechanic
to repair equipment.
The west top of quarry bench was cap rock and clay that
was removed by loading with a front-end loader into haulage
trucks and hauled off to dump. There was a grade of about
5 percent south after the overburden was removed.

1124

DESCRIPTION OF ACCIDENT
On Wednesday, June 21, 1978, William o. Wilcox (victim)
reported for work at 7 a.m., his normal starting time. The
victim performed his duties of loading the Euclid haulage
trucks with stripped sail, from the west end of the quarry
site, with a 980-B Caterpillar front-end loader, until about
11:30 a.m.
At this time, he parked his loader on a grade with the
bucket in a raised position and the wheels not blocked or
turned toward the bank.
Ed Tomlinson, a witness, stated that he observed the
victim squatting on top of the front-end loader left rear
wheel, facing the engine, while the engine was running at a
fast idle. (See sketch.)
The victim had motioned Tomlinson to come toward him
and when Tomlinson got to within 6 feet of the victim, the
front-end loader suddenly moved forward and the victim was
pulled between the wheel and the fuel tank and subsequently
run over by the left rear wheel. The front-end loader continued down the 5 percent grade for approximately 100 feet
at which point the left front wheel climbed the side of a
sloped dirt bank causing the loader to turn over on its
side.
After he determined that there wasn't anything he
could do for the victim, Tomlinson drove his haulage truck
to the mine office and notified Dwain Mason, the superintendent, about the accident. Mason immediately called the
White County emergency ambulance service out of Searcy?
Arkansaso
Boyce Moser, a haulage truck operator, stated that he
drove up to the overturned loader, and thinking that Wilcox
might be pinned under the loader, started looking for him.
Moser, unable to locate Wilcox, turned the engine off since
it was still runningo
Allen Foster, the White County coroner, pronounced
Wilcox dead at the scene of the accident. The body was
taken to the Powell Funeral Home in Bald Knob, Arkansas.
After the investigation was completed, it was determined that the victim had set the emergency parking brake
and left the transmission in first forward gear before
getting out of the loader cab. The transmission safety
leve,r was not in the horizontal position which would have
locked the transmission in neutral.

In trying to determine why the victim was on top of
the rear wheel and apparently working on the engine while
it was running, Jim Evans, a mechanic for J. A. Riggs
Tractor Company, checked the following:
1.

2.
3.
4.
5.

The operation of the transmission.
Transmission shift linkage.
Throttle control linkage.
Throttle control--low and high idle.
Brakes on all four wheels.

Results:
1.

He found that the transmission link assembly was
out of adjustment. The rod had been welded to the
link assembly. The link assembly was replaced.

2.

The link return spring on the throttle linkage was
broken. The spring being broken would not return
the governor to idle RPM. The spring was replaced.
CAUSE OF THE ACCIDENT

The direct cause of the accident was the victim
attempting to work on the engine with the transmission in
gear, the bucket in a raised position, and the loader was
not blocked or turned into a bank.
The penalty assessment form states that the Respondent's company size
is 320,508 man-hours per year, and that the mine size (Searcy Quarry and Mill)
is 42,571 man-hours per year.
The conference worksheet states that the 1978 production of the subject
company was 320,508 man-hours, and that the 1978 production of the subject
mine was 42,571 man-hours.
The conference worksheet states that there were 11 assessed violations
issued by HSHA at the subject mine during 1978 and that there were 11 inspection days during 1978 at the subject mine.
Bo

Occurrence of Violation

The Respondent is charged with a violation of mandatory safety standard
30 C.F.R. § 56.9-37 in that one of its front-end loader operators parked the
front-end loader on a grade with the bucket in a raised position and the
wheels not blocked or turned toward the bank. The stipulation signed by
both parties clearly states that this in fact did occur as charged.
Mandatory safety standard 30 C.F.R. § 56.9-37 provides that:
equipment shall not be left unattended unless the brakes are set.

112b

"Mobile
Mobile

equipment with wheels or tracks, when parked on a grade, shall be either
blocked or turned into a bank or rib; and the bucket or blade lowered to
the ground to prevent movement."
It is clear that mandatory safety standard 30 C.F.R. § 56.9-37 was violated at the time and place charged.
The Respondent, however, raises the argument that under the facts of
this case the violation was caused by the equipment operator himself who then
was the unfortunate victim of the fatal accident that followed. The Respondent states that its supervisor had no knowledge of the actions of the victim.
The Respondent argues that it should not be held responsible for the violation.
In this regard, the letter of Gus Albright, safety director of the
Respondent, dated July 2, 1979, to the Petitioner was made a part of the
record by the stipulation. That letter states, in part, as follows:
Per instructions of Attorney Gail M. Dickenson, Office
of the Solicitor, 555 Griffin Square Building, Dallas, Texas
75202, the Ben M. Hogan Co., Inc. submits the following
reason for requesting a Hearing.
"The accidental death of William O. Wilcox was caused
solely by the victim's own negligence and violation of at
least four safety rules, all of which were well known by
Mr. Wilcox, an operator with many years of experience.
This fact was established by the only witness present and
by HSHA Inspectors.
"The accident was in no way due to unsafe equipment.
Mr. Wilcox had been operating the particular piece of
equipment for many months and was well acquainted with it.
11
Mr. Wilcox was operating the piece of equipment approximately one-quarter mile from the primary job site and his
immediate supervisor. This is normal procedure around a
quarry and crusher operation - no way a supervisor can be
with every employee at all times."

The Ben Mo Hogan Company understands·that penalties
and assessments are mandatory under MSHA. We understand
our training and supervisory responsibilities; however, in
cases as the one in question, where unquestioned evidence
dictates that the cause of the accident was due to the
employee's own chance-taking action, we question the fairness and advisability of assessing a civil penalty against
the employer. It should at least be the very minimum.
In this regard, also, the Respondent in its letter filed in response to
the Petitioner's memorandum in support of the motion for summary judgment

112~1

takes issue with certain factual statements made by the Petitioner.
letter, the Respondent states in part:

In that

Enclosed are the copies of the Stipulation which I have
signed. We do not agree, however, with two references under
"FACTS" submitted in your Memorandum. They are:
1. Page 1, line 4 which states: "Evidently, due to a
malfunction of the transmission, the loader would not shift
into neutral." We propose that there is no such statement in
the Accident Investigation Report. Jim Evans, J. A. Riggs
Tractor Company mechanic, found the "transmission link
assembly was out of adjustment" and the "link return spring
on the throttle linkage was broken." There is no evidence or
testimony that the front end loader would not shift into
neutral.

2. Page 2, line 6 which states, "Mr. Wilcox informed
his supervisor." The Accident Investigation Report does not
bear this out. At no time did Mr. Wilcox report to a "supervisor" any malfunction of the front end loader. He talked
with a haul truck operator [concerning] the possibility of a
low tire (concluded by both that there was not a low tire).
The haul truck operator was Ed Tomlinson. Our supervisors,
Foreman and Superintendent, were approximately one-half mile
away, site of the quarry, crusher and office.
As relates to the Respondent's position in the above-quoted paragraph
No. 1, it appears that there is nothing in the record as stipulated which
clearly states that the loader would not shift into neutral. The findings
by MSHA in the accident report were:
lo He found that the transmission link assembly was out
of adjustment, The rod had been welded to the link assembly.
The link assembly was replaced.
2. The link return spring on the throttle linkage was
brokeno The spring being broken would not return the governor
to idle RPMo The spring was replaced.
MSHA went on to state the cause of the accident as follows: "The direct
cause of the accident was the victim attempting to work on the engine with
the transmission in gear, the bucket in a raised position, and the loader was
not blocked or turned into a bank."
Therefore, I must reject the findings of fact proposed by the Petitioner
that "the loader would not shift into neutral."
As relates to the Respondent's argument in paragraph No. 2 of its letter
quoted above, the record does not sustain the finding proposed by the Petitioner that: "Mr. Wilcox had informed his supervisor earlier of what he

1126

thought to be a low tire * * *·" The facts show that Mr. Wilcox discussed
the tire with Mr. Tomlinson, a haulage truck operator.
In view of the fact that there has been no proof that the Respondent's
supervisors had knowledge of the actions of the unfortunate victim of the
accident, and in view of the findings by MSHA that the direct cause of the
accident was the action of the victim attempting to work on the engine with
the transmission in gear, the bucket in a raised position, and the loader
not blocked or turned into the bank, the Respondent has demonstrated no
negligence in this case.
However, the fact that the Respondent has demonstrated no negligence does
not result in its lack of liability for the violation of mandatory safety
standard 30 C.F.R. § 56.9-37. It has been held that a mine operator may be
held liable for a violation of a mandatory safety standard regardless of fault.
El Paso Rock Quarries, Inc., 3 FMSHRC 35, 2 BNA MSHC 1132, 1981 CCH OSHD par.
25,154 (1981); United States Steel Corporation, 1 FMSHRC 1306, 1 BNA MSHC 2151,
1979 CCH OSHD par. 23,863 (1979); see also, Heldenfels Brothers, Inc. v.
Marshall, No. 80-1607, 2 BNA MSHC 1107CSth Cir., filed January 15, 1981).
Accordingly, the Respondent is found to be liable for the violation of
mandatory safety standard 30 C.F.R. § 56.9-37 as charged.
C.

Negligence

As stated above, I find that the Respondent demonstrated no negligence.
D.

Gravity of the Violation

In view of the fatal accident which resulted here, it is found that the
violation is extremely serious.
Eo

of Previous Violations

The record shows that 11 inspections were conducted at the subject mine
during 1978, resulting in assessment by MSHA for 11 violations of the regulations. This is a moderate history.
Fo

Good Faith in At

Abatement

The record shows that the violation was terminated within 1 hour after
the citation was issued
instructing the front-end loader operators in the
the front-end loaders. Good
proper procedures for parking and dismount
faith in attempting rapid abatement of the violation has been established on
the part of the operator.
G.

Appropriateness of Penalty to Operator's Size

The record establishes that the Respondent's size was 320,508 man-hours
per year at the time of the violation, while the size of the mine was
42,571 man-hours per year. The Respondent is small in size.

112U

H.

Effect on Operator's Ability to Continue in Business

The Federal Mine Safety and Health Review Commission's predecessor,
the Interior Board of Mine Operations Appeals, held that evidence relating
to whether a civil penalty will affect the operator's ability to remain in
business is within the operator's control, resulting in a rebuttable presumption that the operator's ability to continue in business will not be affected
by the assessment of a civil penalty. Hall Coal Company, 1 IBMA 175, 79 I.D.
668, 1971-1973 OSHD par. 15,380 (1972). Therefore, I find that a penalty
otherwise properly assessed in this proceeding will not impair the operator's
ability to continue in business.

V.

Conclusions of Law

1. Ben M. Hogan Company, Inc., and its Searcy Quarry and Mill have been
subject to the provisions of the 1977 Mine Act at all times relevant to this
proceeding.
2. Under the Act, the Administrative Law Judge has jurisdiction over
the subject matter of, and the parties to, this proceeding.

§

3. The violation charged in Citation No. 162921, June 23, 1978, 30 C.F.R~
56.9-37, is found to have occurred as alleged.

4. All of the conclusions of law set forth in Part IV of this decision
are reaffirmed and incorporated herein.

VI.

Proposed Findings of Fact and Conclusions of Law

The Petitioner and the Respondent submitted a memorandum and letter,
respectively. Such submissions, insofar as they can be considered to have
contained proposed findings and conclusions, have been considered fully, and
except to the extent that such findings and conclusions have been express
or impliedly affirmed in this decision, they are rejected on the ground that
are, in whole or in part, contrary to the facts and law or because they
are immaterial to the decision in this case.

VII.

Penal

Assessed

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

Date

30 C.F.R.
Standard

Penalty

162921

6/23/78

56.9-37

$300

ORDER
Based upon the stipulations of fact and the conclusions set forth above,
the Petitioner's motion is GRANTED to the extent that it is determined that the

llJU

Respondent is liable for a June 21, 1978, violation of mandatory safety standard 30 C.F.R. § 56.9-37. As relates to any other matters contained therein,
the motion is DENIED.
The Respondent is ORDERED to pay a civil penalty in the amount of $300
within 30 days of the date of this decision.

Distribution:
Gail M. Dickenson, Esq., and Eloise V. Vellucci, Esq., Office of the
Solicitor, U.S. Department of Labor, 555 Griffin Square Building,
Suite 501, Dallas, TX 75202 (Certified Mail)
Gus Albright, Safety Director, Ben M. Hogan, Company, Inc., P.O.
Box 2860, Little Rock, AR 72203 (Certified Mail)
Administrator for Coal Mine Safety and Health, U.S. Department of
Labor
Administrator for Metal and Nonmetal Mine Safety and Health,
U.S. Department of Labor
Standard Distribution

1131

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

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

v.
TOPEKA SAND COMPANY,
Respondent.

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B 9 APR 1981

CIVIL PENALTY ACTION
DOCKET NO. CENT 80-52-M
A.C. NO. 14-00546-05001

DOCKET NO. CENT 80-119-M
A.C. NO. 14-00546-05002 R
DOCKET NO. CENT 80-373-M
A.G. NO. 14-00546-05003

) TOPEKA SAND & GRAVEL PIT & PLANT
DECISION
Appearances:
Robert J. Lesnick, Esq., Office of the Solicitor
United States Department of Labor
Room 2106, 911 Walnut Street, Kansas City, Missouri 64106
for the Petitioner
Helen Winter
Topeka Sand Company
Route 4, Topeka, Kansas 66605, pro se
Before:

Judge Jon D. Boltz

The above cases, involving petitions proposing assessment of civil
penalties pursuant to provisions of the Federal Mine Safety and Health Act
of 1977 (hereinafter the "Act"), 30 U.S.C. § 801 et seri., were consolidated
and a hearing on the merits was held in Kansas City, Missouri, on March 17,
1981. Respondent was not represented by counsel, however, Helen Winter,
who jointly owns the sand and gravel business with her husband, appeared
and testified on behalf of the respondent.
At the conclusion of all of the evidence, the parties agreed to waive
the filing of briefs and
to have a decision rendered from the bench.
Accordingly, the decision was made from the bench disposing of all issues
in the consolidated cases.
The question of jurisdiction had been raised by the respondent in
correspondence contained in the hearing file. I included this correspondence as pleadings in the case since the respondent had not filed any formal
pleadings.

113;~

BENCH DECISION
The Bench Decision is as follows:
Jurisdiction
The business activities of the respondent in the mining and sale of
sand or gravel constitute "commerce" within the meaning of the Act.
Section 3 of the Act defines "commerce" as "trade, traffic, commerce,
transportation, or communication among the several States," et cetera.
The
word commerce is extremely broad and covers any transaction involving trade
or anything similar to traffi~.
I conclude that the activities conducted
by the respondent in the sale of sand or gravel and in the loading of the
material onto trucks on respondent's property constitutes "commerce" within
the meaning of the Act.
CENT 80-119-M
Citation No. 183375
The petitioner alleges a violation of section 103 (a) of the Act.
The
petitioner alleges in Citation No. 183375 that the owner of Topeka Sand
Company refused to allow an authorized representative of the Secretary
entry into the sand and gravel pit and plant for the purpose of conducting
an inspection pursuant to section 103 (a) of the Act.
The wording in section 103 (a) which would be pertinent to the evidence in this case is that "authorized representatives of the Secretary
shall make frequent inspections and investigations . . . in mines
" Then, going on to subparagraph 2 of that section, it states,
"gathering information with respect to mandatory health or safety
standards," which, of course, can mean gathering any information in regard
to the enforcement of these regulations.
It also states in the same
section, "in carrying out the requirements of this subsection, no advance
notice of an inspection shall be provided to any person . .
"
In this case, I find that the inspector was an authorized representative of the Secretary and that he did go to respondent's mine and was
refused entry.
This refusal was temporary, but nevertheless it constituted
a violation of section 103 (a) of the Act.
In regard to any penalty, I find that the respondent is a small
operator, has no outside employees, and is a family business that has been
operated by the respondent for approximately 20 years.
The respondent
also operated a junkyard in connection with this sand and gravel business.
Although the inspector testified that he considered that there was a lack
of good faith on the part of Mr. Winter, and I gather this may have been
because of a comment from Mr. Winter to the inspector stating that the
inspector could inspect the mine if he knew the difference between a junk
yard and a gravel and sand operation, I do not find that there was bad
faith on the part of Mr. Winter.
I must take into consideration in this
case that this is a small operator who may or may not have been totally
aware of the implications of the Act.
I realize that the mine inspector
explained the Act's requirements to him, but I have concluded that this was
a technical violation.
I am affirming the citation involved and assessing
a penalty of $10.00.

11 •)' ~
t.) \

CENT 80-52-M
Citation No. 183378.
This citation alleges a violation of 30 C.F.R. 56. 14-1. The cited
regulation states in pertinent part, "Mandatory . . . head, tail, and
takeup pulleys . . . which may be contacted by persons, and which may cause
injury to persons, shall be guarded." It is alleged in the cit at ion that
the tail pulley on the south stacker belt was not guarded. The exposed
pinch point was about 4 feet from the ground.
I find there was no guard on the take-up pulley.
However, the testimony that I find most persuasive in this case is
that of Mrs. Winter. She testified that the takeup pulley is located in an
area in which it would not be contacted by any person and thus a person
would not be subject to getting caught in the takeup pulley. The equipment
was never energized unless Mr. Winter turned it on, and, as owner of the
sand company, he was the only one in the area who could have been exposed
to the takeup pulley. I find under these circumstances that evidence is
lacking which would show that the takeup pulley might be contacted by
persons and that they might be injured thereby. Therefore, Citation
No. 183378 is vacated.
Citations No. 183379 and 183380.
These two citations al
a violation of 30 C.F.R. 56.12-8. The
regulation mandates that "power wires and cables shall be insulated
adequately where they pass into or out of electrical compartments. Cables
shall enter metal frames of motors, splice boxes, and electrical
compartments only through proper fittings. When insulated wires, other
than cables, pass through metal frames, the hole shall be substantially
bushed with insulated bushings . 11
The evidence is uncontradicted that the power cables or wires did not
have bushings. The cables themselves had deteriorated and the outer
jackets were not intact; but were hanging in pieces. In such an instance,
the metal frame could become energized, even if Mr. Winter was operating it
from a distant location. He_ might have come into contact with it himself
at some time or other and it did present a hazard.
I find that these violations were abated in good faith by Mr. Winter
and that the gravity was not
under the circumstances of this
particular case, this being an operation not involving any employees other
than the owner. There are no previous violations in the record. I affirm
Citations 183379 and 183380 and the penalty assessment is set at $20.00
for each of those violations.
Citation No. 183382:
This citation alleges a violation of 30 C.F.R. 56.12-2, which states
as follows:
"Mandatory. Electric equipment and circuits shal 1 be provided with
switches or other controls. Such switches or controls shall be of approved
design and construction and shall be properly installed."

1134

I conclude that the particular switch referred to by the mine
inspector did allow one area to still be energized even though the switch
had been turned off. However, the cited regulation uses the words
"switches or other controls." The testimony is undisputed that Mr. Winter
uses the controls at the generator for controlling the power and not the
switch referred to by the mine inspector. As a matter of fact, the
testimony was that the switches were always open. Mr. Winter controlled
the electricity directly from the power source itself. He followed this
method invariably and was the only person involved in the operation of the
equipment. Under the circumstances, I find that the electric equipment and
circuits were provided with controls in conformity with the cited
regulation. Consequently, Citation No. 183382 is vacated.

CENT 80-373-M
Citation No. 183377.
This citation alleges a violation of 30 C.F.R. 56.12-8. I will not
reread the regulation since it has already been stated in this decision in
regard to the violation alleged in Citations No. 183379 and 183380.
I find the testimony of the inspector persuasive since the wiring
which entered the motor was not in conformity with accepted standards in
that there were no proper fitt
as required, it being a power wire or
cable. Although this motor was taken out of service at a later date,
nevertheless, at the time it was inspected there was a violation of the
regulation. The inspector testified that a junction box, or some· other
method, could have been used which would have satisfactorily accomplished
the purpose of bringing the equipment into conformity with the cited
regulation. There was also testimony in regard to the fact that this
violation was not abated for some time after the citation was issued and
that extensions were given in order to allow the owner to abate the
violation, As a matter of fact, the evidence is that the inspector used
considerable restraint in extending the time and
wasn't until several
months after the violation that the citation was abated. Mrs. Winter
testified that when the motor, which was subsequently taken out of service,
was purchased it did not have a junction box connected to it.
I find there was a violation of the cited regulation and affirm
Citation No, 183377 and assess a penalty of $72.00.
Prior to this hearing, there were two motions pending, one by the
respondent requesting a continuance and the other motion was by the
petitioner requesting an order allowing him to amend his petition. The
motion to amend the petition is granted and the motion for continuance is
denied.

1130

ORDER
The foregoing Bench Decision is hereby AFFIRMED. The respondent is
ordered to pay, within 30 days of the date of this decision, penalty
assessments as follows:
CENT 80-119-M, Citation No. 183375

- - - - - - - - - - -

$ 10.00

Citation No. 183379

--- - -- - - -

$ 20.00

CENT 80-52-M,

Citation No. 183380

- - - -

- - - -

$ 20.00

$ 72.00

CENT 80-373-M, Citation No. 183377

$122.00
Further, in regard to CENT 80-52-M, Citations No. 183378 and 183382 are
vacated.

Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor
United States Department of Labor
Room 2106, 911 Walnut Street
Kansas City, Missouri 64106
Mrs, Helen Winter
Topeka Sand Company
Route 4
Topeka, Kansas 66605

113b

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COL I AX AVENUE
DENVER, COLORADO 80204

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

v.
LYMAN-RICHEY SAND AND GRAVEL
CORPORATION,
Respondent.

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2 9 APR 1981

CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 80-166-M
A/O NO. 25-00556-05001
MINE:

Plant #10 Waterloo

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

DECISION
Appearances:
Eliehue Brunson, Esq., Office of the Solicitor
United States Department of Labor
911 Walnut Street, Suite 2106
Kansas City, Missouri 64106,
for the Petitioner.
John D. Hartigan, Esq., Kennedy,·Holland, Delacy and Svoboda
Suite 1900, One First National Center
Omaha, Nebraska 68102
Before:

Judge Virgil E. Vail

This proceeding was brought by the Secretary of Labor pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (hereinafter the Act), for assessment of a civil penalty for
an alleged violation of a mandatory safety standard. The case was heard
October 7, 1980 at Omaha, Nebraska. Both parties were represented by
counsel, who have submitted their proposed findings, conclusions and briefs
following receipt of the transcripts.
Citation no. 184644 was
sued by Inspector Marino M. Solano, Jr., on
September 12, 1979, pursuant to section 104(a) of the Act. He cited
30 C.F.R. § 55.12-13 and described the condition or practice as follows:
"Several splices were observed north of the reel racks leading to the
dredge with exposed energized wires, carrying 440 volts. The outer
jacket was barely replaced with rubber inner tubes with tape. Several
other joints were observed where a possible bad splice was installed,
signs of excess heat and boiling points were evident. Again inner
tube was used as outer jacket insulation."

1137

STIPULATION
The parties stipulated as follows:
1.

The operator, Lyman-Richey Sand and Gravel Corporation, is
owner and operator of the subject mine, Plant Number 10
Waterloo.

2.

The operator and the mine are subject to the Federal Mine
Safety and Health Act of 1977.

3.

The Administrative Law Judge, Virgil E. Vail, of the Federal
Mine Safety and Health Review Commission has jurisdiction
of this case.

4.

The inspector, Marino M. Solano, Jr., who issued the subject
citation, was a duly authorized representative of the Secretary.

5.

A true and correct copy of the subject citation was properly
served upon the operator.

6.

A copy of the subject citation is authentic and may be admitted
into evidence for the purpose of establishing its issuance but not
for its truthfulness or relevancy.

7.

The Lyman-Richey Sand and Gravel Company is a member of the
National Sand and Gravel Association. During 1979 Plant Site 10
at Valley, Nebraska was classified by that Association as a class
C plant site, which is a plant site which extracts between
225,000 and 549,999 metric tons of sand and gravel
during a year's operation and is considered to be moderate in
size.

8.

The record shows the respondent had no violations prior
to the inspection on September 12, 1979.
ISSUES

Although respondent apparently advances three arguments, there are
actually only two issues to be decided in this case.
1. Whether a violation of mandatory safety standard 30 C.F.R.
56.12-13 occurred at the time of the inspection on September 12, 1979 at
the Waterloo Plant, and

§

2. Whether the standard cited in this instance applies to temporary
splices in a power cable.

1130

DISCUSSION
The evidence shows that on September 12, 1979 Inspector Kenneth
McCleary conducted two inspect ions, one during the daylight and a second
11
illumination 11 inspection at night, at the respondent's Waterloo Plant No.
10 near Valley, Nebraska.
The plant involved herein is a sand and gravel extraction process
involving a dredge. The dredge is powered by electricity supplied by three
power cables which run through a reel rack to a transformer located on
shore. In this particular dredging operation, the dredge starts removing
or dredging materials from the property near the shore and as the material
is mined from the property it is replaced by water creating a lake. As the
dredge moves further away from the transformer on shore, power cable is
spliced in at a point in front of the reel rack located between the
transformer and the dredge.
During the daytime inspection, Inspector McCleary performed his duties
alone issuing citations involving areas not involved in this citation. He
testified that he did point out to Pete Reeves, the plant superintendent,
several places on the power cable south of the reel rack near the
transformer where the cable was "starting to get a little bit ratty" and
stated that he would 1 ike to have that fixed. This was not the part of the
power line involved in Citation no. 184644.
During the "illumination" inspection on the night of September 12,
1979, Inspector McCleary was accompanied by Inspector Solano who issued
Citation no. 184644 for the violations involved in this case. Inspector
McCleary testified that the citation was issued covering several splices in
the power cable between the reel rack and the dredge (Tr. 33). The section
of cable' where the splices were observed was approximately 60 feet in
length from the reel rack to the water's edge (Tr. 25). There was a path
or walkway 3 to 4 feet from where the cable lay on the ground. The path
was used by employees going to and from the dredge. A handrail constructed
of a wire cable separated the path or walkway from where the power cable
was located.
The petitioner argues that the inspectors observed and photographed
several splices in the power cable to the dredge which were in violation of
56.12-13 which states as follows:
Mandatory. Permanent splices and repairs made in
power cables, including the ground conductor where
provided, shall be: (a) Mechanically strong with
electrical conductivity as near as possible to that
of the original; (b) Insulated to a degree at least
equal to that of the original, and sealed to exclude
moisture; and (c) Provided with damage protection as
near as possible to that of the original, including
good bonding to the outer jacket.

113U

Inspector Solano was not available to testify at the hearing, but
Inspector McCleary testified that he observed the splices with inner tube
wrapped around them and the splicing wrapped with electrical tape (Tr. 21).
Regarding one splice, he observed one bare wire showing which was
photographed and appeared in exhibits 7 and 9 (Tr. 28). He stated that he
observed one splice smoking which was located approximately 25 feet from
the shore line over the water (Tr. 32). The evidence in the record shows
that the "Y" splice shown in exhibits 7 and 9 and described by the
inspectors as showing a bare wire is a "temporary splice" next to the reel
rack which is made in the power line as the cable is extended to allow the
dredge to proceed out onto the lake. As the power cable is extended, new
sections of cable are added ind the temporary splice is made into a
permanent splice (Tr. 54). The petitioner further argues in his brief that
the cable lay in an area which exposed workers to a potential shock hazard.
The respondent argues in his brief that the citation does not involve
a permanent splice or repair made to a power cable and therefore 30 C.F.R.
§ 56.12-13 does not apply, that no employee would be exposed to risk of
injury and that the evidence does not show a violation occurred due to the
method by which the splices in the power cable were made.
I find that the petitioner has failed to prove that a violation of
30 C.F.R. § 56.12-13 occurred in this case. The testimony of Inspector
McCleary was that the splices he obse.rved and. that appear in the
photographs admitted in evidence had inner tubes around the splices with
electrical tape around the inner tubes, which he believed to be improper
(Tr. 20). However, no evidence was presented to show that the splice under
the inner tube was defective. The inspectors did not remove the covering
on any of the splices to examine their exact condition. The respondent's
general superintendent testified that the common practice in the company in
splicing cables was to clear the insulation from the end of the cable,
apply a clamp to the two cable ends, and wrap the splice with two layers of
scotch tape number 22.10 and then at least two wraps of scotch tape number
88 for a permanent splice (Tr. 51-52). The procedure for wrapping the
temporary splice was to remove part of the insulation from the wire, place
it in a u'Kearny clamp" and wrap it with either paper, inner tube or
friction tape, and then generally put on two layers of scotch tape number
2210. After this is done, inner tube is wrapped around the tape and
friction tape applied to the inner tube to hold it in place (Tr. 52-53).
I find that 56.12-13 does not cover the requirements for making
u'temporary splices" in power cables. l t speaks only of permanent splices
and repairs. The particular splice described as near the reel rack and
shovm in exhibits 7 and 9 is of a temporary nature. No interpretation is
possible that this can be described otherwise. Webster's New Collegiate
Dictionary, 1973 edition, gives the following primary definition for the
word "permanent": "Continuing or enduring without fundamental or marked
change." The standard provides for the repair of power cable. However,
the splice or joint involved here is not a repair of a power cable
according to the definition of "repair" in the same dictionary which

1140

states as follows: "repair-to restore by replacing a part or putting
together what is torn or broken: fix; to restore to a sound or healthy
state''. Although this definition more nearly describes the action taken in
the "temporary splice" involved herein, it cr1nnot be construed to have
given the respondent suf
ient notice that said standard would apply.
Judge Fauver in his decision Secretary of Labor, (MSHA), v. Evansville
Materials, Inc. Docket No. Lake 80-82-M (March 1981) stated as follows: "A
mandatory safety standard must be clearly worded and
rly administered so
that a reasonable prudent operator can understand and follow it. The
operator should not be subjected to varying and inconsistent
interpretations based on the subjective understanding of different
inspectors. Clear wording and consistent application of the standard are
required to avoid unfairness to the mine operator." I concur with his
reasoning here.
In Connally v. General Construction Company, 269 U.S. 385, (1925), the
Supreme Court said, "[A] statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application violates
the first essential of due process of law."
I conclude that the wording of the cited standard does not give the
respondent sufficient notice that the "temporary splice" involved here was
to be treated the same as "permanent" splices and "repairs" in power
cables.
The evidence shows al so that the inspectors failed to examine the
permanent splices sufficiently to prove that said splices were not
"(a) Mechanically strong with electrical conductivity as near as possible
to that of the original; (b) Insulated to a degree at least equal to that
of the original, and sealed to exclude moisture; and (c) Provided with
damage protection as near as possible to that of the original, including
good bonding to the outer jacket." I find that the testimony shows that
the concern of Inspector McCleary was over the splice that was smoking not
be
adequately wrapped and that this might be the inner tube burning
(Tr. 24). This type of statement lacks proof and appears to be pure
conjecture. Other splices were also found by the inspectors to be in
violation of the cited standard based upon being wrapped in inner tube
(Tr. 38). Here, again, no examination of the splice was performed to
determine what it consisted of. I find no basis upon which to conclude
that wrapping inner tube around a splice will make a proper splice become a
safe
hazard. The record does not support such a finding in this case.
The final argument of the respondent, that the location of the power
cable does not expose employees to a risk of injury, is moot by reason of
my find
s that no violations of the cited standard was proven. However,
I cannot agree with the respondent's argwnent as to this situation.

1141

The location of those power cables within 3 to 4 feet of a walkway used by
the respondents' employees presents a potential hazard of an injury which
would be most likely fatal. Such an exposurP requires a high degree of
care, which is not satisfied by the construction of a single cable along
the walkway.

CONCLUSIONS OF LAW
1. The Connnission and the undersigned Administrative Law Judge have
jurisdiction over the parties and subject matter of these proceedings.
2. The petitioner did not meet his burden of proving a violation of
30 C.F.R. § 56.12-13 as alleged in Citation no. 184644.
ORDER
Citation no. 184644 and the penalty therefor is hereby VACATED.

Admin~trative Law Judge
Virgi~.

Vail

Distribution:
Eliehue Brunson, Esq., Office of the Solicitor, United States Department
of Labor, Suite 2106, 911 Walnut Street, Kansas City, Missouri 64106
John D. Hartigan, Esq., Kennedy, Holland, Delacy and Svoboda, Suite 1900,
One First National Center, Omaha, Nebraska 68102

1142

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COL.FAX AVENUE
DENVER. COLORADO 80204

I 9 APR 1981

)

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

)
)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 79-376-M

)

v.

)

A/O NO. 1-00094-05002

)

J. R. SIMPLOT COMPANY,

)

MINE: Conda Mine & Mill

)

Respondent.

)
)

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

DECISION
APPEARANCES:
Ernest Scott, Jr., Esq., Office of the Solicitor, United States
Department of Labor, 8003 Federal Office Building, Seattle,
Washington 98174
for the Petitioner,
Blair D. Jaynes, Esq., Assistant General Counsel, J.R. Simplot
Company, One Capital Center, 999 Main St., Suite 1300, P.O. Box
27, Boise, Idaho 83707
for the Respondent.
Before: Judge V

il E. Vail

I. PROCEDURAL BACKGROUND
The above-captioned civil penalty proceeding was brought pursuant to
Section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(a).
The proposals for penalties allege fifteen violations of safety
standards,
Pursuant to notice, a hearing on the merits was held in Boise, Idaho,
on March 25 and 26, 1980. John M. Moore and Frank W. Clary, Jr., Federal
Mine Inspectors, testified on behalf of the petitioner. Lloyd Phelps,
Gayland Archibald and Paul Hooper testified on behalf of the respondent.
The parties waived filing post hearing briefs.
II, STIPULATIONS
During the course of the hearing, the parties entered into the
following stipulations:
1. That respondent operated a mine and mill, the products of which
affect Commerce.

2. That the Mine Safety and Health Review Commission has jurisdiction
of the proceedings identified as Docket No. WEST 79-376-M.
3. That between June 19th and 27th Mine Safety and Health
Administration inspectors, John M. Moore and Frank W. Clary, Jr., conducted
a series of inspections at respondent's mine and mill located at Conda,
Idaho. The inspectors had jurisdiction to conduct the inspections.
4.

Respondent does not have any previous violations.

5. Respondent has approximately 218 employees working 1n its mine and
mi 11 operations.
6. The imposition or assessment of the proposed penalties will not
effect the respondent's ability to continue in business.
7. The size of respondent's company is 791,399 production tons or man
hours per year.
8. The size of Conda Mine and Mill 1s 39,190 production tons or man
hours per year.
9. Respondent, J.R. Simplot, 1s a corporation with its principal
office located at Boise, Idaho.
10. Copies of the 15 citations issued in this case were received by
respondent, and respondent filed a timely notice of contest as to each of
the citations and proposed penalties.
11.

The citations were abated in good faith.

III. Counsel for the petitioner moved that Citation no. 351414 be
dismissed on the grounds that there is not sufficient evidence to establish
the violation charged by the citation. Said motion was unopposed by the
respondent and Citation no, 351414 was vacated. This left fourteen
citations remaining to be litigated.
IV, The issues in this case are ( 1) whether the respondent was "operating"
a mine at Condo, Idaho between June 19th and 27, 1979, when the inspection
was conducted by representatives of the Mine Safety and Health
Administration, and (2) did violations of safety standards occur and, if
so, what is the appropriate civil penalty for each violation.
The Legality of the Inspection
Respondent conceded that it "operates" a mine and mill at Condo,
Idaho, as defined by the Act. However, respondent argues that for three
(3) weeks prior to and during the inspection of this mine and mill, the
operation had been shut down for extensive maintenance and repairs and that
operations had not yet commenced when the subject citations were issued.

1144

Further, respondent contends that it was engaged in testing, adjusting and
modifying the equipment related to its operation of the mine and did not
attain full operation until one (l) day after the inspection was conducted.
The evidence supports the respondent's contention that prior to the
inspection the Condo mine and mill had been shut down for maintenance and
repairs and that during the inspection, it was in the process of starting
up. Section 103(a) of the Act provides in part:
"Authorized representatives of the Secretary* * * shall make
frequent inspections and investigations in coal or other mines
each year for the purpose of (1) obtaining, utilizing and disseminating information relating to health and safety conditions,
the causes of accidents, and the causes of diseases and physical
impairments originating in such mines, (2) gathering information
with respect to mandatory health or safety standards, (3) determining whether an imminent danger exists, and (4) determining
whether there is compliance with the mandatory health or safety
standards or with any citation, order, or decision issued under
this title or other requirements of this Act. In carrying out
the requirements of this subsection, no advance notice of an inspect ion shall be provided * * * .11
After a careful review of the pertinent parts of the Act relating to
inspections, I find no provisions which would prevent an inspection of a
mine during periods when it was shut down or in the process of starting
up. It must be recognized that such a situation does present special
problems for both the operator and the inspectors and those problems should
be considered in contemplating the issuance of a citation. A review of the
testimony presented at the trial indicates that the inspectors in this case
were aware of the situation and considered it when issuing their citations
(Tr. lllL However, the fact that the mine and mill were not in full
operation does not support Respondent's position that the citations sho~ld
be vacated. Rather, if the alleged violations occurred, the fact that the
mine and mill was in the process of starting up may be taken into account
in considering the gravity, negligence and good faith of abatement efforts
in assessing appropriate penalties under section llO(i) of the Act.
Secreta~y of Labor v. Van Mulvehill Coal Company, Inc., FMSHRC Docket No.
SE 79-127 (February 25, 1980).
Citation No. 350132
This citation involved an alleged violation of 30 C.F.R. § 55.9-7. 1 I
1 55.9-7 Mandatory. Unguarded conveyors with walkways shall be equipped
with emergency stop devices or cords along their full length.

The inspector issued the citation because a walkway alongside a conveyor
belt was unguarded on the portion outside the mill building. The conveyor
belt involved in this part of the operation was a reject conveyor belt
which carried oversized material from inside the grinding mill to the
outside. I t was the portion of the conveyor belt outside the building
which was allegedly unguarded. There was a walkway adjacent to the
conveyor belt which was constructed from the framework of the conveyor.
The respondent contended that the conveyor belt had been out of
service for a period longer than a year as the process of handling the
material had changed and this belt was no longer used. The respondent
abated the citation by placing a lockout device on the power switch to the
belt.
This citation should be vacated. The uncontradicted evidence shows
that the conveyor belts involved herein had been out of service for over a
year due to a change in the process of handling the material (Tr. 207-208).
Further, the evidence shows that the area of the conveyor that was
unguarded was a part of the belt outside the building approximately 20 feet
in length. The sole purpose of the walkway was for maintenance work,
involving the pulley at the end of the belt. I find that there was no
safety hazard here by reason of the conveyor belt having been out of
service for over a year. Further, the location of the unguarded walkway
was not a regularly travelled walkway but had been used only for servicing
the pulley by employees for maintenance purposes and therefore afforded no
risk of injury to employees in the area of this building should the
conveyor belt have become activated again. The standard violated in this
case requires that unguarded conveyors with walkways be guarded. It is not
that the walkway involved herein was used infrequently, which causes me to
vacate this citation, but rather that the equipment had been out of service
for such a long period of time so as to make
unlikely that the belt
would be started up without considering the safety factors.
Citation No. 350133
This citation involved an alleged violation of 30 C.F.R. § 55.
12-8. 2 / The inspector issued the citation alleging that the flexible
conduTt containing electrical wires to a motor was broken. The conduit
involved herein was located on top of storage silos at the respondent's
mine. The electric motor, served by the wiring in the conduit, operated a
shuttle conveyor that travelled back and forth to direct the discharge of
materials to the proper silo.

2/ 55 .12-8 Mandatory.

Power wires and cables shall be insulated adequately
Cables shall enter
metal frames of motors, splice 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 bushings.

~here they pass into or out of electrical compartments.

1140

The mine inspector testified that he observed that the conduit
containing the wiring to the motor was broken by being separated at a point
where it entered the junction box on the motor (Tr. 53). He further
testified that there was considerable vibration and stress involved here
and that the electrical wire contained in the conduit could sustain damage
to the insulation covering the wire and cause an electrical shock. The
inspector admitted that not many people go into this area where the
conveyor was located but that maintenance people do go to the area.
The respondent's safety coordinator, Mr. Archibald, testified that he
observed that the conduit was separated approximately three fourths to a
half an inch (Tr. 214). The respondent argued that the electrical w1r1ng
in the conduit was covered with insulation and that the insulation was not
damaged.
I find that there was a violation of the standard involved herein.
The standard, 55.12-8, requires that power wires be adequately insulated
where they pass into or out of electrical compartments. I find that the
broken conduit presented a potential hazard of an electrical short
occurring due to the movement occasioned by the operation of the shuttle
conveyor. The fact that the area was not frequented often by employees
does not diminish the potential for a serious injury should a short occur
to those employees who are required to visit this area from time to time.
This citation is affirmed.
·
Citation No. 350134
This citation involved an alleged violation of 30 C.F.R. §55.14-1. 3 /
The insvector issued the citation because the head pulley on the shuttie
conveyor belt located on top of the storage silos was unguarded. This is
the same area referred to in Citation no. 350133 and to which the testimony
of the inspector was to the effect that it is an isolated area where only
maintenance and clean up employees would go (Tr. 28).
The respondent's witness, Mr. Archibald, testified that he did not
know why the guard was off the head pulley but that no one was to go to
this area while the mill was operating due to dust exposure.
I find that the evidence is uncontroverted that the pulley was not
guarded and a violation of the mandatory safety standard occurred.
However, the gravity of the violation is not great in that it would be
unlikely an employee would be in the area while the belt is running. There
is a risk here, even though remote, in that maintenance people could be in
the area when the equipment is being operated or tested. This citation is
affirmed.
3/ 55.14-1 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, and
which may cause injury to persons shall be guarded.

Citation No. 350135
This citation also involved an alleged violation of 30 C.F.R. § 55.
14-1. The citation was issued because the calcinder feed head pulley
adjacent to a travelway was not provided with a guard. The inspector
testified that this is an induced belt near a walkway where a person could
be injured in a pinch point between the head pulley and the belt (Tr. 33).
He stated that there was framework around the belt, but that a gap existed
where a person could be injured if drawn into the pulley. The inspector
stated that the walkway along the belt was also induced and that a dusty
condition existed in the area. That condition could contribute to a fall
or injury due to a person walking by slipping and falling into the belt and
being drawn into the pinch point. The inspector conceded that the company
had considered the framework of the conveyor around the area of the pulley
as an adequate guard, but stated that he disagreed with this and believed
someone could be drawn into the pinch point (Tr. 35). The evidence,
particularly a photograph admitted as Exhibit 17, showed that the actual
pinch point on the head pulley is located behind a plate which would
protect this area from direct contact by a person. However, the inspector
indicates that he issued a citation on this alleged violation believing
that someone could fall, trip, or slip and place his hand on the belt and
be drawn into the pulley (Tr. 68).
I find that the inspector's observations and concerns regarding this
pulley are persuasive and that his decision that a person might have
suffered an injury in this area meets the description of what is intended
by the standard involved herein and that a violation occurred. The
gravity was slight as there was some protection and all the inspector
required was for additional protection to be applied in the form of a
screen. This citation is affirmed.

Citation No. 350136
This citation involved an alle
violation of 30 C.F.R.
4
§ 55.11-1.
; The inspector issued the citation because a safe access
was not provided to the valve on the slurring line located approximately 10
feet above the floor. This was abated by removal of the slurry line valve.
The evidence established that this was part of a new installation and that
none of the respondent's employees accompanying the inspector on his
inspection knew how often the valve would be used and how a person would
to the valve to turn it off or on. It was subsequently learned that
the valve would be used to remove the rod mill from the system which could
be once every three or four months. (Tr. 223). The testimony of the
respondent's safety coordinator was that the valve had been operated from a
step ladder, which in his opinion was adequate for the number of times the
valve was operated.
I find that this citation should be vacated.
It is apparent from the
evidence that the valve was not operated on a regular basis and that a
ladder would constitute a safe access to the valve on occasions when it was
used.

4/ 55.11-1 Mandatory.

Safe means of access shall be provided and

~aintained to all working places.

1146

Citation 351404
This citation also involved an alleged violation of 30 C.F.R. 55.14-1.
The citation was issued because there was approximately one-half inch
clearance between the skirting and conveyor belt on a continuous conveyor
belt from the rod mill which needed guarding. The inspector testified that
he found no negligence on the part of the respondent. Additionally, he
stated that he did not believe a serious accident would occur, but that
someone could get their finger in the pinch point during clean up (Tr. 84).
The respondent's safety coordinator did not view the pinch point as a
safety hazard. He felt anyone catching a hand in this area would not be
pinched, but rather the belt would go up and over the pulley due to the
flexibility of the belt (Tr. 232-233).
The evidence indicates that the reason for possible injury here is due
to the stiffness of the belt. In viewing the photographs (Exhibits 8, 9,
10 and 11) and other evidence relating to this violation, I find a danger
existed in this area but that if an injury would occur it would be minor as
testified to by the inspector. The citation is affirmed.
Citation 351405
This citation al.so involved an alleged violation of 30 C.F.R.
55.14-1. The citation was issued because the return troughing idler for
the rod mill feed belt was not guarded. This return idler was
approximately 5 feet high and in an area not usually travelled, but where
clean up and maintenance people would be, The inspector testified that
there wa~ no negligence involved on the part of the respondent, but if
someone was caught in this belt the injury could be serious.
§

The respondent's witness did not refute the fact that it would be
possible to get caught in the return idler involved herein, but wasn't sure
the guard applied would prevent such an occurrence. Further, it was felt
that this was not a travelway or area used by persons, as a crossover
existed here to cross the belt (Tr. 240).
I find that a violation of the standard occurred. There was little or
no negligence but that an injury, if it occurred, could be
serious, The citation is affirmed.
Citation 351406
This citation involved an alleged violation of 30 C.F.R.
55.14-6. 5 ; The inspector stated the citation was issued because the
head pulley guard for the number 275 conveyor belt was removed to replace a
bearing and was not replaced. The inspector testified that the pulley
§

5/ 55.14-6 Mandatory. Except wnen testing the machinery, guards shall be
securely in place while machinery is being operated.

1143

was approximately 4 to 5 feet above the floor near a walkway and that when
the belt was observed it was moving, but there was no material being
carried on it (Tr. 89-90). The inspector stated that he knew the plant was
in the process of being "started-up" after repairs had been made, but that
in his opinion the guard should have been on this pulley to protect anyone
coming into the area and contacting the pulley.
The respondent's safety coordinator testified that the guard was off
this pulley and standing against the wall while the newly replaced bearing
was being tested. The standard provides that guards shall be in place
except during testing. The inspector confirmed that he had been told that
the guard had been removed to replace a bearing by the maintenance
superintendent and that this was part of the start up of the plant (Tr.
131-132).
I believe the evidence here supports the respondent's contention that
the guard was -removed for testing the new bearing, and falls within the
exception in the standard that guards shall be in place on moving machinery
except when testing. The preponderance of the evidence shows that the
plant had been down for repairs and was being put back into operation 'When
the inspection was conducted. For the reasons stated above, I vacate this
citation.
Citation 351407
This citation involved an alleged violation of 30 C.F.R.§ 55.14-1.
The inspector testified he issued the citation because the pinch point on
the head pulley for the calcinator mill feed conveyor belt was not fully
guarded: The pulley was guarded by a 6 inch piece of metal with
approximately an 18 inch gap exposing .a switch gear assembly. The
inspector stated that there were steps near this location 'Where a person
going by could trip and fall, putting his ann in the pinch point of the
pulley. The guarding of the pulley in this location was similar to the
pulley in Citation no. 350135 and respondent argued that the guard utilized
in this location was adequate.
I find the evidence supports the inspector's position that additional
guarding was needed at this conveyor as it was near a walkway with steps
near the pulley, A possibility of a fall created a condition that
warranted a further guarding of the area where a person 1 s arms or clothing
might come in contact with the belt. There was little negligence here as
the pulley was guarded to some extent and the respondent apparently thought
this was adequate. However, the inspector's observations and views in this
case persuade this writer that the pulley was not fully guarded and the
citation is affirmed.

1150

Citation 351408
This citation involved an alleged violation of 30 C.F.R.
The inspector issued the citation because dry wooden
platforms,-insulated mats, or other non-conductive materials were not
provided for the power control switch gear located in the pump house. The
inspector testified that upon entering the pump house containing electrical
equipment switches he observed one to two inches of water standing on the
floor (Tr. 96).

§55.12-20. 6 /

The respondent's safety coordinator testified that when the pumps
controlled by these switches are operating the area is normally dry
(Tr. 267).
I find a violation of the mandatory safety standard occurred.
Although it may not be normal for the area to be wet, the possibility of
such an occurrence is always present and anyone who is required to go into
this area to operate the switches is exposed to a danger of an electrical
shock. The citation is affirmed.
Citation 351409
This citation involved an alleged violation of 30 C.F.R.
55.11-1. The inspector issued the citation because a safe means of
access was not provided to the number ten ( 10) calcinder fresh water valve
located in the pump house. The testimony was that this was in the same
pump house as described in the prior citation and that the valve was
approximately nine feet above the pump floor. From foot prints on an
electrical motor below the valve, the inspector concluded that someone had
stood or had been standing on the electrical motor to operate the valve
(Tr. 99h The inspector testified that there was water on the floor in
this area and that an electrical hazard exis~ed to anyone standing on the
motor, besides a possible slip and fall condition in reaching to operate
the valve (Tro 100). The respondent argues again, as he did in the
situation involving the overhead valve in the slurry line, that it was not
frequently used and that safe access was provided with portable ladders.
§

I find that the same condition does not exist here as in citation
330136, as the access is apparently more difficult, as displayed in a
photograph of the area (Exhibit 21). Citation no. 351409 is affirmed.
Citation 351412
This citation involved an alleged violation of 30 C.F.R.
55.4-33. 7 / The inspector stated he issued the citation because there
was a compressed gas cylinder on a portable truck located on the third
§

6/ 55.12-20 Mandatory.

Dry wooden platforms insulating mats, or other

~lectrically non-conductive material shall be kept in place at all

switchboards and power-control switches where shock hazards exist.
However, metal plates on which a person normally would stand and which are
kept at the same potential as the grounded, metal, noncurrent-carrying
parts of the power switches to be operated may be used.
7/ 55.4-33 Mandatory. Valves on oxygen and acetylene tanks shall be kept
°Zlosed when the contents are not being used.

1 lfiJ

floor landing in the mill that had the valves opened on the cylinder while
not in use. He stated the hoses were strung down the stairs to the second
floor landing with the torch assembly hung on a hand rail. It was
explained that the valves in question control the passing of oxygen and
acetylene through two separate hoses which terminate at the torch to become
mixed into a highly volative and explosive gas (Tr. 103-104).
The respondent's safety coordinator testified that this is one of the
areas which the respondent has stressed in their safety training. However,
he stated that it is difficult to achieve compliance even though the
employees are warned that continued violations could jeopardize their jobs
(Tr. 2 5 9) •
It is apparently a common violation often found in safety inspections
throughout the industry inspite of the efforts on the part of safety
trainers to have employees comply with the standard. However, the Act
imposes a duty upon the operators to see that the employees comply with all
mandatory safety and health standards and the citation is affirmed.
Citation No. 351413
The citation also involved an alleged violation of 30 C.F.R. § 55.14The citation was issued because
the guard for the dryer trunnion roller had been left off after starting
the dryer up. The inspector testified that he realized that periodic
adjustments had to be made to the dryer. However, during the two hours he
was on the property, prior to the start up, no adjustments had been made.
He felt that the guard should be replaced between the times when
adjustments had to be made (Tr. 106). He testified that there was an
elevated work platform around the dryer trunnion roller and with the guard
off a person's arm could get caught in the pinch point located there
(Tr. 108),

6, which is similar to citation 351406.

Again, the respondent's safety coordinator testified, as in the case
of the prior violation described in Citation no. 351406, that the plant was
1n the process of "starting up" after a complete shut down, that it was
necessary to remove the guard here in order to make periodic adjustments on
the bearing; that the platform around this area is only used by maintenance
employees, and for the purpose of working on this specific equipment (Tr.
263-264). The inspection involved herein occurred during the night shift
and that there was not a maintenance or mill superintendant on that shift.
Again, the question presents itself as to whether there was a
violation of the safety standard when the guard was left off or was this
within the exception providing that guards shall be securely in place exept
when testing. The evidence does not support the respondent's position in
this instance as there were no present "testing" such as "adjusting" the
roller being done here. Further, apparently the guard had been off for
sometime and it cannot be argued with any degree of logic that safety
guards can be removed and left off for extended periods of time while the
plant is being started up. The negligence here is not great, nor is the
gravity, as the area is rot frequented by employees other than maintenance
personnel. However, good safety practice would dictate that the guard be
on while this potentially dangerous equipment is running, except when
actual work is being performed on it. The citation is affirmed.

1152

Citation No. 351415
This citation also involved 30 C.F.R. § 55.14-6. The citation was
issued because half of the guard was left off of the classifier screw
located on the upper floor of the mill. The inspector testified that this
involved an auger type screw approximately 20 feet long and located 3 to 3
1/2 inches off a walkway. The upper half of the guard covering this screw
was off (Tr. 109-110).
The respondent's safety coordinator testified that he was in the
inspect ion party and ob served the guard off in th is location and that he
didn't know exactly why it was off. However, he again stated that the
plant was in the process of starting up after being shut down and he
assumed that the guard was off for some. "val id reason" relating to the
start up (Tr. 265-266).
Although guards may be removed under the safety standard for purposes
of testing, there
no evidence here that this is what was occurring when
the inspection was made at this location. The inspector stated that there
was a man described as the upper floor operator on the inclined walkway
adjacent to the screw looking into the exposed area. The inspector
testified that he realized it was start up time and asked questions if any
adjustments were being made. Apparently he was not given a satisfactory
answer (Tr. 109). With this uncontradicted testimony the only conclusion
is that the guard was removed and allowed to remain off in violation of the
standard. The inspector further testified that there was reason to believe
a persons clothing could be caught in the moving screw drawing a person
in and could cause an injury (Tr. 110). The citation is affirmed.

CONCLUSIONS OF LAW
1. The undersigned Administrative Law Judge has jurisdiction over the
parties and subject matter of the proceeding. At all times relevant,
Respondent was subject to the provisions of the Federal Mine Safety and
Health Act of 1977.
The inspection of Respondent 1 s mine and mill was a proper and
legal inspection under section 103(a) of the Act.
2.

3. The Respondent did not violate the regulations cited 1n Citations
nos. 351414, 350132, 350136 and 351406.
4. The Respondent violated the regulations cited in Citation nos.
350133, 350134, 350135, 351404, 351405, 351407, 351408, 351409, 351412,
351413, and 351415.

ORDER

Citation nos. 3511+14, 350132, 350136 and 351406 are hereby VACATED.
Based upon the criteria set forth in section llO(i) of the Act, the
penalt
determined proven are as follows:
CITATION NUMBER

AMOUNT

350133
350134
350135
351404
351405
351407
351408
351409
351412
351413
351415

$ 34.00
40.00
40.00
40.00
40.00
40.00
90.00
40.00
44.00
40.00
90.00
$538.00

is further ordered that the respondent pay the above penalties in the
total amount of $538.00 within 30 days from the date of the decision.

It

/ /',,,--

<-

,,.··· '

- . .,/ ../ r:,·..
0:.:{ ;: cl ( ( (~ ' r:>;:"( ( /

'---""' /

)

..

Virgil f.i Vail
Adminitt'rative Law Judge
Distribution:
Ernest Scott, Jr., Esq., Office of the Solicitor, U.S. Department of
Labor, 8003 Federal Office Bldg., Seattle, Washington 98174
Blair D. Jaynes, Esq., Assistant General Counsel, J.R. Simplot Company,
One Capital Center, 999 Main St., Suite 1300, P.O. Box 27, Boise, Idaho
83707

115 i
1

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

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

3 0 APR 1981

Civil Penalty Proceeding
Docket No. VA 80-145
A.O. No. 44-00294-03039

v.

No. 1 Mine

EASTOVER MINING CO.,
Respondent
DECISION AND ORDER
This matter is before me on the parties' motion to approve settlement or, in the alternative, on the operator's motion for summary decision.
For the reasons set forth below, the motion to approve settlement is denied.
The motion for summary decision is granted.
The undisputed facts show that the "coalbed" or height of the coal
seam at the lowest point on the section of the mine in question was 38
inches. I find this measurement rather than that of the actually extracted
height, 53 inches, was the controlling height for determining the requirement
for canopies under Section 317(j) of the Act, 30 C.F.R. 75.1710, 1710-1,
and therefore no violation existed at the time the instant citation was
written. J:../

1./ In Co-Op Mining Company, 2 FMSHRC 34 75 (1980), the Commission held
that as a matter of policy a settlement should not be approved where no
violation has been shown.
2
Effective July 1, 1977, MSHA determined that in coalbed heights
below 42 inches the use of canopies diminished the safety of the miners and
were not technologically or anthropometrically feasible. 42 F.R. 34876.
The Secretary's Annual Report to Congress for FY 1978 noted that "Progress
in installing cabs and canopies has been substantial for equipment used
in coalbed heights of 42 inches or more; however, based on research as
well as experience
in the course of MSHA enforcement, certain
human engineering problems had not been solved, particularly in coalbed
heights below 42 inches . . • Because of these unsolved engineering
problems the Secretary suspended indefinitely the time period for operators
to design and install cabs and canopies on self-propelled electric face
equipment used in underground coal mines where coalbed heights are less
than 42 inches.", Report pp. 11-12. While counsel for MSHA contends that
(footnote 2 continued on page 2)

115Z.

MSHA, of course, denies the correctness of this conclusion. MSHA
argues that when the initial administrative implementation of the statutory
standard 3/ was published in 1972 4/ MSHA legislatively added the term
"mining height" to the standard and perhaps inadvertently but nevertheless authoritatively changed the plain meaning of the statutory term
"coalbed height" to that of "actual height" or "actually extracted height".
The difficulty with this is that there is nothing in the record
of the legislative rulemaking proceeding of 1972, at least as reported in
the Federal Register, 37 F.R. 20689, to show that the industry was apprised
or put on notice of the fact that the plain meaning of the statutory term
"coalbed height" was being revised and amended. Adequate notice of the
issues to be resolved is an essential of a substantive rulemaking proceeding.
Wagner Electric Co. v.
466 F.2d 1013 (3d Cir. 1972).
(footnote 2 continued)
a requirement exists for canopies where the coalbed or mining height
after
ustement for roof support is 36 inches, this is clearly erroneous.
The elusiveness of HSHA's position is shown
a January 1981 Report of
the U.S. Regulatory Council which states that "While local MSHA officials
have agreed that canopied equipment in coal seams under 50 inches is
'impractical' MSHA officials in Washington require continued experimentation" at seam heights as low as 36 inches.
Section 317(j) of the Act, 30 C.F.R. 75.1710.
!±_/

30 C.F.R. 75.1710-1.

5/ The plain meaning of the statutory term is "a bed or stratum
of coal". BuMines, Dictionary of Mineral Terms (1968). In response to
the pretrial order of January 8, 1981, counsel for MSHA assured the
trial j
that the term 11 mining height" as used in 30 C.F.R. 75.1710-1
was the equivalent of the term 11 coalbed height 11 as used in the mandatory
standard. It was not until the significance of the difference in the
two meanings was disclosed at the prehearing conference that counsel
claimed that Congress always intended what MSHA later invented. The
crux of the matter is whether MSHA's invention, if such it is, has
the force and effect of law and can be the basis for applying civil
and criminal sanctions. In its response to the show cause order MSHA
argues that "'Mining height' as i t is used in 30 CFR 75.1710-1 . . .
was intended by the Secretary to have the same meaning as that Congress
intended by 1 where the height of the coalbed permits. 111 (Response, p.5).
The
ive history shows Congress intended the phrase to mean
"where the height of the coal
the installation of"
H. Rpt. 91-563, 9lst Cong., 1st Sess. 57 (1969).

To the contrary, as counsel admits, in September 1973, MSHA for
the first time disclosed that its concept of the term "mining height"
included the "thickness of the roof rock taken". This instruction to
enforcement personnel was not the subject of either a formal or an informal
rulemaking proceeding, however, and was not promulgated as either a
substantive or interpretative rule in accordance with the provisions of
either section 101, 30 U.S.C. § 811, of the Mine Safety Law of section
553 of Title 5, section 4 of the APA.
For these reasons, I conclude the plain meaning of the statutory
term "coalbed" height" was not revised or amended in accordance with
the substantive or procedural requirements of the law at the time the
improved standard, 30 C.F.R. 75.1710-1 was promulgated in 1972. !!../
I further find that neither the bulletin to enforcement personnel
of September 20, 1973, nor the suspension action of July 7, 1977, 42
F.R. 34876, were promulgated in accordance with section 101 of the Act
or section 4 of the APA, 5 U.S.C. §§ 553(b), (c). Consequently, none
of these actions effected a legally binding change in the statutory
limitation on MSHA's authority to require canopies in the section of the
coal mine involved in this proceeding. ]_/
fl_/ When MSHA published the statutory standard together with its
administrative implementation in 1972 simultaneously and without further
explanation it must be taken to have ascribed the same meaning to the
term "mining height" as Congress had ascribed to the term "coalbed height".
This is underscored by the fact that MSHA is without authority to require
operators to take top or bottom rock so as to provide space for the
installation of canopies where the coalbed height alone does not permit
their use. As the record shows, MSHA recognizes that taking top and
bottom results in contamination of the coal with noncombustihle matPrial
that reduces the b.t.u. content and. the value of the product. It also
creates added health hazards in the form of silica or quartz dust that
increases air pollution contaminates in the form of respirable dust. Another
consideration that militates against MSHA's claim that by necessary
implication the term "coalbed height" includes the thickness of top and
bottom rock taken is the fact that operators calculate their capital needs
for equipment on the basis of what the core boringsshow with respect to
the thickness of the coal seam. Thus, where, as here, the core samples
indicated a thick seam and the operator invested in high profile production
equipment the imposition of a requirement to buy low profile equipment
to meet a transient condition is seen not only as unfair and unreasonable
but as arbitrary and capricious. As Cardozo noted, "Law as a guide to
conduct is reduced to the level of futility if it is unkown and unknowable.n
]_/ The distinction between legislative and interpretative rules is
basic. Chrysler Corp. v. Brown, 441 U.S. 208, 301-304, 313-316 (1979);
General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Batterton v.
432 U.S. 416 (1977); Skidmore v.
, 323 U.S. 124. When Congress
(footnote 7 continued on page 4)

115~i

In enacting the Mine Safety Law Congress made a conscious judgment
that notions of fairness require that informed legislative rulemaking
be made only after affording interested persons notice and an opportunity
to participate. It is obvious that the interepretation contended for
by MSHA was not the product of procedures prescribed by Congress as
a necessary prerequisite to give it the binding effect of law.
See cases cited in Parts I, II, and III of the Show Cause Order issued
March 17, 1981, attached as an appendix hereto.
The premises considered, therefore, I find that (1) there is no
genuine issue as to any material fact, and (2) that the operator is
entitled to sununary decision as a matter of law.
Accordingly, it is ORDERED that the
be, and hereby is, DISMISSED.

petition for penalty

Administrative Law Judge
(footnote 7 continued)
has delegated to an agency the authority to make rules having the force
of law and the agency acts reasonably and within its delegated legislative power, a reviewing tribunal has no more power to substitute its
judgment for that of the agency than it has to substitute its judgment
for that of Congress. But to be legislative in character a rule must
not only be rooted in a grant of such power by Congress but must be
promulgated in conformity with the procedural requirements imposed by
Congress. Morton v.
415 U.S. 199, 232 (1974). Rules that are not the
product of legislative rulemaking are interpretative. As the Supreme
Court observed in
v. Francis, ~l!Era, 432 U.S. 425, n. 5 "A court
is not required to give
to an interpretative regulation. Varying
degrees of deference are accorded to administrative interpreations,
based on such factors as timing and consistency of the agency's position
and the nature of its expertise." It is not necessary to decide whether
the instructional bulletin of September 20, 1973 and the suspension action
of
7, 1977 are properly characterized as "interpretative rules",
because these regulations were not properly promulgated as substantive
or
lative revisions of the definition of "coalbed height" and therefore do not have the force and effect of law. Chrysler Corp. v. Brown,
441 U.S. at 315-316. Compare, VW v. Federal Maritime Commission,
390 U.S. 261 (1968), in which Justice Stewart delivered the opinion of
the Court: "The construction put on a statute by the agency charged with
administ
it is entitled to deference by the courts, and ordinarily
that construction will be affirmed if it has a 'reasonable basis in law'.
(footnote 7 continued on page 5)

115h

Distribution:
Karl S. Forester, Esq., Forester & Forester, Forester Bldg., First Street,
Harlan, KY 40831 (Certified Mail)
Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

(footnote 7 continued)
. . . But the courts are the final authorities on issues of statutory
construction . . . and 'are not obliged to stand aside and rubberstamp
their affirmance of administrative decisions that they deem inconsistent
with a statutory mandate or that frustrate the congressional policy
underlying a statute. 1 • • • 'The deference owed to an expert tribunal
cannot be allowed to slip into a judicial inertia.'''. See also
Federal Maritime Commission v.
411 U.S. 726
(1973).

1153

ATTACHMENT TO DECISION AND ORDER -- VA 80-145

FEDERAL MINE SAFETY AND HEALTH REVIE'N' COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

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

March 17, 1981

SECRETARY OF LABOR,
MINE SAFETY A...~D HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. VA-80-145
Petitioner

A.C. No. 44-00294-03039

v.
Mine:

No. 1

EASTOVER :HNING CO.,

Respondent
ORDER TO SHOW CAUSE r/

A review of the record in this proceeding shows:
Section 317(j) of the Mine Safety Law, 30 C.F.R. § 75.1710, provides

1.

that wherever !!the height of the coalbed permits 11 MSHA may require an operator to install "substantially constructed canopies 11 on electric face equipment.

The legislative history shows Congress intended this authority to be

exercised where "the height of the coal permits the installation of such 11
canopies.

H. Rpt. 91-563, 9lst Cong., 1st Sess. 57 (1969); Legislative
~1ine

His

Safe

Law, Senate Cammi ttee on Labor, 94th Cong., 1st Sess.

~~~-"--"----~~~~~-"--~-

Part 1, 1087 (1975).
2.

After consultation with the industry, MS!l<\ issued an "improved"

safety standard in October 1972, that established a timetable, based on mining
r was in prepara
at t
time of receipt of the operator's
parallel motion for a summary decision. MSW\.' s response to this order may
include its response to the operator's motion.

llt.>O

heights, for installation of canopies.

30 C.F.R. § 75.1710-l(a).

The term

"mining height" as used in the improved standard was intended to mean "coalbed
height" as used in the statutory standard.
3.

Difficulties in meeting the original timetable necessitated a post-

ponement in the times for compliance.

To accomplish this without republishing

the schedule, a bulletin issued on September 20, 1973.

In this bulletin,

~1SHA

undertook to make a special definition of the term "mining height" as used in
the schedule for compliance set forth in 30 C.F.R. § 75.1710-l(a).

Thus, it

was provided that:
The mining height as used in Section 75.1710-1 will be interpreted as being the distance from the floor to the finished
roof less 12 inches. In those areas where the roof is taken
in the normal mining cycle, the mining he ht shall include
the thickness of the roof rock taken * * *·
For example, if the distance from the floor to the finished
roof is 72 inches less 12 inches, then the effective date
for that mine to install cabs or canopies is the one for
mining heights 60 to 72 inches which would be July 1, 1974
and not January 1, 1974.
The interpretive bulletin made clear that the special definition was to be
used only to deter~ine the effective date for compliance in any particular
section of a mine and "not if [canopies] are required."

With the exception

of this bulletin, I can find nothing in the "improved" standard or its subsequent history that warrants a finding that the statutory limitation to
"coalbed height" was lawfully revised or amended to require cano

es wherever

the "extracted hei.;ht", including the thickness of the roof taken, permits the
use of a canopy.

Even where the coalbed height permits, the requirement for

the use of canopies is dependent on the availability of practical technology,

1.181

.!.·~··canopy

designs and hardware that meet the requirements for structural

strength and operational safety, including more particularly those design
factors affected by human engineering. 2/
4.

37 F.R. 20689.

It is MSHA's policy to determine the requirement for canopies on a

section-by-section basis with the controlling vertical measurement being that
taken at the lowest point on the section.
5.

Between October 1972, and July 1977, progress was made in installing

canopies on electric face equipment including continuous miners where such
equipment was used in coalbed heights of 42 inches or more.

Based on research

as well as experience gained in the course of :v!SHA's enforcement, however, it
was found that in coalbed heights below 42 inches certain human engineering
problems such as impaired operator vision, operator cramping and operator
fatigue had not been solved.

For these reasons, the requirement for canopies

on sections where the coalbed height was less than 42 inches was first extended
and, effective July 1, 1977, entirely suspended.
6-0

42 F.R. 34876.

In this case, the parties are agreed that on the date the violation

in question was written, April 10, 1980, the minimum extracted height on the
2/ As recently as January 1981, the United States Regulatory Council
reported coal operators complained that:
"Retrofitting existing equipment [with canopies] has proven impractical.
They assert that the requirements to do so have resulted in new problems,
including reduced visibility and increased 'out of service' time for repairs
and maintenance. The operators assert that the standards were written without sufficient flexibility and do not allow the use of improved eq~ipment
which they feel would not pose the same problems."
tion and Conflict
Regulatin~ Coal Production, January 1981, 23.

1162

2 Right 001 Section of the mine was 53 inches, which included the thickness
of roof and bottom rock taken.

They are also agreed that the coalbed thick-

ness was 38 inches.

I.

MSHA points to the determination of July 7, 1977, 42 F.R. 34876, as indicating an intent to require canopies wherever the 11 actual height from bottom
to top" is 42 inches or more as support for the view that regardless of the
coalbed height the canopy requirement is triggered wherever a mine section has
an actual extracted height of 42 inches.

The difficul

with this is that the

suggested revision or amendment of the statutory limitation on MSHA's authority
to require canopies was not accomplished in accordance with the rulemaking
procedures provided under section 101 of the Mine Safety Law, 30 U.S.C. § 811.
In United States v. Finley Coal Company, 493 F.2d 285, 290 (6th Cir.
1974), cert. denied, 419 U.S. 1089 (1974), the court held that a revision,
amendment or modification of a statutory standard that has the effect of
sing an additional requirement is invalid and ineffective as an improved
standard where the revision, although cast in interpretative or definitional
language, was promulgated without compliance with the mandatory consultation
procedures set forth in sections lOl(a) and (c) of the A"ct.
§§

8ll(a) and (c).

30 U.S.C.

Here there is little doubt that the requirement for

canopies in sections where the extracted height exceeds the coalbed height
is substantive in nature and adds significantly to the individual operator's
potential civil and criminal liability.
441

u.s. 281, 301-304 (1979).

Chrysler Corporation v.

Brown~

MSHA's interpretation may not be upheld therefore as a mere administrative implementation of the statutory standard.

As the court of appeals noted,

in such a case what is at issue is not just the agency's authority to interpret or implement the statutory standard but "the very power of the agency to
promulgate" a substantive addition to the conduct mandated by the statutory
standard.

493 F.2d 290.

The considerations which underlie this construction of the agency's
authority to create administrative crimes was further spelled out in United
States v. Consolidation Coal

477 F. Supp. 283, 284 (S.D. Ohio 1979):

If the regulations are so significant that a violation amounts
to a crime, then their promulgation would warrant the Section 8ll(d) formalities. First, common sense dictates that
regulations, which if violated, amount to crimes, should be
promulgated only after the most serious consideration and an
opportunity for those affected for consultation with the
rulemakers. It is hard to imagine any rules which are more
demanding of pre-promulgation formalities than those which if
violated subject persons to criminal sanctions. Moreover,
if such a procedure is followed it will have the effect of
clearly apprising those concerned of its criminal provisions.

*

*

*

*

*

*

*

The bothersome aspect of the government's position is that it
sounds a retreat from an important and traditional philosophical principle: that criminal statutues must be strictly construed and that if a crime is to be established the statute
or regulation must reasonably apprise reasonable persons that
a failure to obey will amount to a basis for a conviction. We
must be mindful that in this case we are not dealing with
r
ations which carry merely a civil penalty, but rather a
criminal sanction for their violationo
As the Court of Appeals for the District of Columbia has observed, the
mandatory standard concept evolved to deal with a dilemma perceived by those

116(.i

most directly affected by the Mine Safety Law, namely, concern "by representatives of both industry and labor that a freely exercised power of [agency]
amendment might result in an unpredictable and capricious administration of
the statute, which would redound to the benefit of no one."
Company v. Kleppe, 536 F.2d 398, 402 (D.C. Cir. 1976).

Zeigler Coal

The resolution was

the adoption of the elaborate consultative procedures set forth in section
101.

Compliance with these procedures is a condition precedent to any sub-

stantive revision of a mandatory standard.
493 F.2d 290.

Finley Coal Company, supra,

They operate as a legislative check on the arbitrary exercise

of administrative discretion.
I conclude, therefore, that any reliance on the suspension action of
July 7, 1977, as a modification of the substantive coverage of the statutory
standard is misplaced and that unless the Secretary can find some other support for the claim that the term "coalbed height" was, by valid administrative action, revised or amended to read "extracted height 11 I shall be
constrained to conclude that the improved standard as applied to the facts of
this case is invalid,

For this conclusion, I need only rely on the principle

that administrative rulemaking in disregard of procedural requirements is
ultra vires.

Finley Coal Company, supra, 493 F.2d 291.

I need not and do not consider whether the suspension action of July 7,
1977, is properly characterized as an 11 interpretative rule" because such rules
do not have the force and effect of law unless promulgated in accordance with
the statutory procedural minimums of notice and opportunity for comment prescribed by sect,ion 4 of the APA, 5 U.S. C.

§,§

553(b) and (c).

Chrysler

Corporation v. Brown, supra, at 312-316; Morton v. Ruiz, 415 U.S. 199 (1974);
United States v. Allegheny-Ludlum Steel, 406 U.S. 742, 758 (1972).
did not occur.

Here that

See, 42 F.R. 34877.
II.

A subsidiary question is whether assuming the legal efficacy of the
claimed definitional change the operator had fair warning of HS!:ll\.'s intention
to abandon the 12-inch tolerance from the actually extracted height as the
basis for determining when compliance was due.

TI-le record shows that since

the minimum extracted height was only 53 inches the operative ":nining height"
under the September 23, 1973, bulletin was 41 inc.hes.
TI-le ~line Safety Law is remedial and therefore to be liberally construed.
But because it is also penal, the due process clause precludes the imposition
of sanctions without fair warning of the acts and conduct prohibited.

The

vagueness doctrine generally requires that a statute or standard having the
force and effect of law be precise enough to give fair warning to actors that
contemplated conduct is criminal and to provide adequate standards to enforcement agencies, factfinders, and reviewing courts.

Impermissible vagueness

occurs whenever such a provision states its proser

tions in terms so

indefinite that the line between innocent and conder:med conduct becomes a
matter of guesswork.

Connall

v. General Construction Company, 269 U.S. 385,

391 (1926); Lanzetta v. New Jersey, 306 U.S. 451 (1939); Papachristou v. Ci
of Jacksonville, 405 U.S. 156, 162 (1971); Grayne<l v. Cit

of Rockford,

408 U.S. 104, 108 (1972); Colton v. Kentucky, 407 U.S. 104, 107 (1972).

l.160

In the case of purely economic regulation, the Supreme Court has usually
insisted that a statute be evaluated not only on its face but in the context
of the conduct with which a defendant is charged.

Boyce Motor Lines v. United

States, 342 U.S. 337 (1952); United States v. National

Products

~~~~~~~....____~~~~-

29, 31-33 (1963).

372 U.S.

.

Thus, unlike a finding of facial vagueness, which results

in a standard being declared unenforceable against all operators, a finding
that an interpretation urged renders the standard impermissibly vague as
applied to a particular violation results only in a vacation of the citation.
Secretary v. Peabody Coal Company, 3 FMSHRC

, Docket No. CENT 80-293,

decided February 5, 1981.
The question presented here is whether the suspension action of July 7,
1977, gave the operator fair warning that henceforth the 12-inch tolerance
from the actually extracted height would no longer apply.

I find that it did

not because the suspension notice is susceptible not only of the meaning
ascribed to it by MSHA but also of meaning that canopies are required only
where the actually extracted height less 12 inches exceeds 41 inches.

Because

of the serious consequences not only to the operator but also to miners forced
to work with canopies in mining heights insufficient to accommodate them, I
conclude that as a matter of law the latent ambiguity in MSHA's rule or policy
must be construed against it.

A rule or policy "which either forbids or

requires the doing of an act in terms so vague that men of common intelligence
must necessarily ~uess at its meaning and differ as to its application, violates the first essential of due process."

Connally v.

Construction

Company, 267 U.S. 233 (1925); Jordan v. DeGeorge, 341 U.S. 223 (1951).

116~,

For these reasons, I conclude that even if the suspension notice of
July 7, 1977, were found to be a valid revision or amendment to the statutory standard

see Part I, supra), it may be impermissibly vague and

unenforceable as applied to the violation charged.

III.

Substitution of an "actually extracted height" for the ncoalbed height"
standard results in remarkably disparate treatment of the requirement for
canopies on electric face equipment irr sections of coal mines with the same
coalbed height.

The record shows that in this case no requirement for a

canopy would have been imposed if the operator had confined his extraction
in the three left entries to the coalbed height of 32 to 38 inches, regardless
of the extracted or coalbed height on the three right entries.

It lras only

because the operator had to balance his ventilation system and mine coal from
the three high entries on the right, 75 to 80 inches, that he claims he was
faced with the necessity of mining through the low coal roll on the left with
an oversized, 45-inch machine in order to be in a position to rob the three
high seams on the right in a safe and economical manner.

It was the taking

of top rock and bottom to accommodate the oversized machine that resulted in
triggering the requirement for a canopy under the "actually extracted height"
rule"

At the same time, the parties agree that insufficient top wo.s taken to
t use of a canopy that would provide a safe seat.

The obvious answer--

take more top--both parties disavow as a solution, MSHA because it disclaims
authority to require the taking of top to accommodate canopies and the operator because of the health hazard created by rock dust.

116h

Declaring irrelevant

the operator's claim that interchange of the oversized miner with a piece of
low profile equipment was impractical as a matter of sound mining practice and
business judgment,
equipment int

~!SHA

argues that the solution was either to effect an

or utilize a full floater canopy technology allegedly

known to the operator and available from the Clinchfield Coal Company.
Without at

ting at this time to resolve these di

, the

threshold issue is whether application of the "actually extracted height" as
the tr

for compliance results in treatment of operators with sections
are less than 42 inches in a manner so unequal or

where the coalbed

inequitable as to result in a deprivation of due process.
HSHA contends that it does not because while it has no authority to
require the use of existing technology to take top or bottom in order to permit use of canopies in sections where the coalbed height is less than
42 inches, it has authority to impose heavy monetary

ties on any oper-

ator who fails for any reason to utilize canopy technology available anywhere
throughout the industry in sections where the actually extracted height is
42 inches or more.

If there is a rational explanation for the disparate

treatment of those operators who take top and thereby
ap

trigger

ication of the canopy requirement and those who do not, the inequality of

treatment does not of fend due process.

See

----~

v. Kenny Richardson,

3 FMS•mc 8, 18-28 (1980).
MSl~

claims that the disparate treatment is rational because it may result

in greater safety for miners working in those sections where the actually
extracted height exceeds 41 inches.

What appears to be questionable if not

116B

irrational is MSHA's refusal to afford this protection to miners who work on
sections where the coalbed height is less than 42 inches but where top or
bottom could be taken in so as to provide an actually extracted height that
would permit the use of canopies.
Thus, what bothers me is not so much the disparate treatment of the operators but the disparate treatment or safety afforded the miners.
I

Consequently,

find that because MSHA's disparate treatment of the operators results in

what appears to be a self-imposed and irrational limitation on its authority
to enforce the canopy standard, the discriminatory enforcement policy presently in effect is violative of this operator's right to equal treatment under
the law.
Accordingly, it is ORDERED that on or before Wednesday, April 15, 1981 0
the Secretary SHOW CAUSE WHY the
be DISMISSED.

capt:~7·n·~civil penalty···proceeding should not

Ill _j A7rf:::J.

r

£i~w\.,,~:
~
Jos~ph B. Kennedy

(r

/vr---.

V

Administrative Law Judge
Distribution:
Karl S. Forester, Esq., Forester & Forester, Forester Bldg., First Street,
Harlan, KY 40831 (Certified Mail)\
\

Stephen P. Kramer, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Hail)

*U S GOVERNMENT PRINTING OFFICE: 1981 341-638/4355

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