DECEMBER 1991
NO COMMISSION DECISIONS ISSUED
ADMINISTRATIVE LAW JUDGE DECISIONS
12-02-91
12-04-91
12-04-91
12-06-91
12-06-91
12-09-91
12-12-91
12-13-91
12-19-91
12-19-91
12-20-91
12-20-91
12-23-91
12-24-91
12-26-91

Michael D. Burton v. Arch of Kentucky, Inc.
Sec. Labor for Charles Scott Howard, II v.
South East Coal Company, Inc.
Peabody Coal Company
Zeigler Coal Company
Mustang Fuels Corporation
Kerr-McGee Coal Corporation
Conco-Western Stone Company
L. Kenneth Teel, President of California
Lightweight Pumice, Inc.
Old Ben Coal Company
Sec. Labor for John Van Allen v. IMC
Fertilizer, Inc.
UMWA for Dennis M. Blouir v. U.S. Steel
Mining Company
Nicholas Ramirez v. Joshua Industries, Inc.
Danaco Exploration International
Clifford Meek v. Essroc Corporation
The Pittsburg & Midway Coal Mining Co.

KENT 91-223-D Pg. 1853
KENT 91-1352-D Pg. 1881
LAKE 91-134
LAKE 91-485
KENT 91-100
WEST 91-84-R
LAKE 91-41-M
WEST 90-284-M

Pg. 1883
Pg. 1884
Pg. 1888
Pg. 1889
Pg. 1908
Pg. 1915

LAKE 91-15
Pg. 1930
SE
91-543-DM Pg. 1951
PENN 91-1395-D Pg. 1960
WEVA 91-1618-D Pg. 1961
CENT 90-173-M Pg. 1962
LAKE 90-132-DM Pg. 1970
Pg. 1982
CENT 91-106

DECEMBER

1991

There were no cases filed in December where review was either granted
or denied.

ADMINISTRATIVE LAW JUDGE DECISIONS

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

DEC 2 1991
DISCRIMINATION PROCEEDING

MICHAEL D. BURTON,
Complainant

v.

Docket No. KENT 91-223-D
BARB CD 90-31

ARCH OF KENTUCKY 1
INCORPORATED,
Respondent

Mine No. 37
DECISION

Appearances:

Susan Oglebay, Esq., UMWA District #28,
Castlewood, Virginia, for the Complainant;
Marco M. Rajkovich, Esq.u Wyatt, Tarrant & Combs,
Lexington, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
the complainant Michael D. Burton against the respondent pursuant
to section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. 815(c). The complainant filed his initial
complaint with the Department of Labor, Mine Safety and Health
Administration (MSHA), and after completion of an investigation,
Mr. Burton was advised that the information received did not
establish any violation of section 105(c) of the Act. Thereafter, Mr. Burton filed a complaint with the Commission, and a
hearing was held in Big Stone Gap, Virginia. MSHA filed a
posthearing brief, but the complaii'rant did not. However, I have
considered all of the oral arguments made in the course of the
hearing.
In his MSHA complaint of July 24, 1990, Mr. Burton stated
that at the start of the second shift on July 5, 1990, a routine
check of the mantrip used to transport miners underground
disclosed an inoperable sander. He alleged that shift foreman
Scott Johnson instructed the crew to walk to the underground
working section and refused their request for self-contained
self-rescuers (SCSR) and union representation. Mr. Burton stated
that Mr. Johnson "forced" the crew to walk the track entry
towards the .longwall section which was approximately 3 to 5 miles
away without SCSR's. Mr. Burton further alleged that Mr. Johnson
sent him home on July 13, 1990, without pay, because he had
previously complained about the defective mantrip sanders and
unsafe practices in sending the crew underground without SCSR's,

1853

and that he was charged with certain unexcused absences because
of his safety complaint to Mr. Johnson.
In his Commission complaint, Mr. Burton alleged that
following the initial filing of his discrimination complaint, the
respondent continued to harass him and discriminate against him
because he invoked his individual safety rights pursuant to the
Act. Although Mr. Burton did not specify the alleged acts of
additional harassment and discrimination, in the course of the
hearing he provided testimony concerning a visit to the dentist
on July 11, 1990, which the respondent initially treated as an
unexcused absence charged against his attendance record. He also
provided testimony concerning his placement in the respondent 1 s
chronic excessive absenteeism program sometime in late July,
1990, and a counseling session o.f August 1, 1990, concerning his
work attendance. Mr. Burton believed that all of these incidents
resulted from his July 5, 1990, complaint to foreman Johnson
about the defective mantrip sanders and the refusal by
Mr. Johnson to provide Mr. Burton and his crew with SCSR 1 s after
ordering them to walk to the working section. That incident
triggered a union safety grievance pursuant to section 103(g) of
the Act, with notification to MSHA, and a subsequently issued
violation by an MSHA inspector for an alleged failure by the
respondent to comply with its SCSR storage plano
The relief sought by Mr. Burton includes payment of backpay
with interest for the July 13, 1990·, day that he was sent home by
foreman Johnson, expungement from his personnel record of any
record of any alleged unexcused absences, including the July 13,
1990, incident, the removal of Mr. Johnson from his position as
second shift foreman, and a request that the respondent cease and
desist from taking any further discriminatory actions against him
for bringing unsafe conditions to its attention.
The respondent denied any acts of discrimination against
Mr. Burton as a result of the July 5, 1990, mantrip and SCSR
incident, and it maintained that any actions taken against
Mr. Burton were taken as a business.~ justification.
Issues
The principal issue presented in this case is whether or not
the incidents referred to by Mr. Burton following his initial
encounter with shift foreman Johnson on July 5, 1990, constituted
prohibited acts of discrimination, harassment, or retaliation
because of that event. Additional issues raised by the parties
are identified and disposed of in the course of this decision.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seq.

1854

2.

Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1),
( 2) and ( 3) •

3.

Commission Rules, 29 C.F.R.

§

2700.l, et seq.

Complainant's Testimony and Evidence
Michael Burton, the complainant, testified that he has been
employed by the respondent for 14 years, and he could not recall
having any prior work difficulties or disciplinary actions. He
stated that he was a longwall shear operator, and that on July 5v
1990, he was the designated mantrip driver responsible for
inspecting the mantrip before transporting the crew to the
working place. After finding that the sanders were inoperablep
he proceeded to clean them and he informed the second shift
foreman, Scott Johnson, about the situation. Mr. Johnson pointed
to two other mantrips and instructed him to use them. However,
one mantrip had inoperable brakes, and while he was checking the
sanders on the third mantrip, Mr. Johnson "got red faced and mad
and said walk in" (Tr. 5-8). Mr. Burton stated that the working
section was three miles away and when he asked for a selfcontained rescuer before starting to walkp Mr. Johnson said nnon
(Tr. 9). Mr. Burton stated that he had previously been exposed
to smoke during a motor fire and wanted to take a self-rescuer
with him. A certain number of self-rescuers are required to be
on each mantrip which the crew usually rides to the section.
However, since they were walking, he wanted to take one with him
(Tr. 10).
Mr. Burton stated that Mr. Johnson informed him that he did
not need a self-rescuer because the mine was on a storage plan
which required that self-rescuers be located at several strategic
underground locations. Mr. Johnson also informed him that after
the sanders were repaired, the mantrip would come in and pick up
the crew at the point where they had walked to (Tr. 10-12).
Mr. Burton stated that 14 men were walking into the section and
he later learned that four self-r.~scuers were kept at each head
piece location. He believed that there were eight head pieces
located along the three miles into the section (Tr. 13).
Mr. Burton stated that he and the crew began walking at
2:45 p.m., and that the mantrip picked them up at approximately
4:00 p.m. (Tr. 13).
Mr. Burton stated that he never refused to walk to the
section, and that other crew members also asked for selfrescuers. He requested to speak with a union safety
committeeman, but Mr. Johnson denied his request. A few days
later, union safety representative Bob Clay found out about the
matter and contacted an MSHA inspector who came to the mine for
an inquiry in response to a verbal section 104(g) complaint by

1855

Mr. Clay. The inspector interviewed some of the miners,
including Mr. Burton. As a result of the inquiry, a section
104(d) (1) citation was issued for an alleged violation of
mandatory standard section 75.1101-23, and the parties stipulated
that the citation was subsequently modified to a section 104(a)
citation (Exhibit AIJ-1; Tr. 18-20).
on cross-examination, Mr. Burton confirmed that he is
provided with a WO filter type rescuer and an SCSR when he is
underground and that he is trained to use them. He stated that
prior to the adoption of the SCSR storage plan, he was given an
SCSR and was responsible for it at all times while underground.
After the adoption of the plan, he no longer was responsible for
the SCSR and they were stored on the mantrips, other mobile
equipment, and at various locations throughout the mine, He
further confirmed that he was trained about the location and use
of escapeways and evacuation routes, and that company policy
required him to check the mantrips, including the sanders, to see
that they are operable (Tr, 45-49).
Mr. Burton confirmed that three supervisors and a longwall
engineer were also scheduled to ride the mantrip with the crew to
the section on July 5, 1990. After beginning work on the sanders,
and performing other duties assigned by foreman Johnson while
awaiting the repairs to the mantrips, Mr. Johnson then told the
crew, including the three foreman and the longwall engineer to
start walking. Mr. Burton confirmed that Mr. Johnson told him
that he did not need to take an SCSR with him because there was a
storage plan in effect underground. Mr. Burton confirmed that he
did not refuse to walk, and did not invoke his individual safety
rights, or refuse to continue walking when he encountered
slippery conditions (Tr. 49-53).
The dental visit of July 11, 1990
Mr. Burton stated that on July 11, 1990, he was experiencing
teeth and gum problems and did not go to wqrk. He visited his
dentist that day, and upon his return to work the next day he
submitted a doctor's excuse pursuant to standard company
procedure (Exhibit C-1). He gave the excuse to his immediate
foreman Hubert Boggs, and mine clerk Jim Waldron informed him
(Burton) that it contained insufficient information (Tr. 23).
Mr. Burton stated that he had turned in similar doctor 9 s slips in
the past and never had any problems with them, but that
Mr. Waldron told him to get another one within 24-hours and that
he wanted to know about his specific problem which required a
visit to the dentist. Mr. Burton then obtained another dentist
slip (Exhibit C-2), but Mr. Waldron would not accept it and told
him that it was late but that he would let mine superintendent
Dan Strickle look at it and determine whether to excuse the
absence (Tr. 24-25).

1856

Mr. Burton stated that his dentist informed him that the
respondent contacted him about his condition, but that no
decision was made as to whether the dental visit was considered
excused or unexcused. Mr. Burton stated that it was still
unexcused until a few months later after he filed his
discrimination complaint. At that time, he reviewed his work
records and found that his absence of July 11, 1990, had been
changed to an excused doctor's visit (Tr. 26). He confirmed that
he is not paid for any doctor's visit, regardless of whether it
is excused or unexcused (Tr. 28). However, an accumulation of
unexcused absences may lead to a suspension (Tr. 29). He stated
that no one ever informed him that his unexcused absence had been
changed to an excused absence (Tr. 29).
on cross-examination, Mr. Burton acknowledged that he knew
about the information which had to be included in a doctor's
excuse slip in order to establish an excused absence, and he
conceded that the first slip which he obtained did not contain
all of the required information. He believed that the second
slip was acceptable, but that the respondent would not accept it
and considered it as an unexcused absence. He confirmed that if
he were to work without an excuse, management would not know
about the problem requiring him to be off and would consider his
absence as unexcused. However, if he subsequently brings in an
excuse, the absence would be excusedu as it was in this caseu
albeit at a later date (Tr. 71).
The Grievance Meeting of July 13, 1990
Mr. Burton testified that the safety grievance meeting
concerning the SCSR incident of July 5, 1990, was scheduled for
12:00 noon.
He expected the meeting to last for an hour and he
believed he had adequate time to go home and return before his
work shift began at 2:15 p.m. He stated that he needed to go
home to eat lunch, and to obtain his work clothes and medicine.
When he realized that he would not have time to go home before
his shift began he spoke with foreman Scott Johnson at approxiapproximately 1:00 p.m., and told him that-he did not have his
work clothes and had not eaten.·· Mr. Johnson did not reply and
"never said no or yes" (Tr. 31). The grievance meeting ended at
2:42 p.m., and Mr. Burton stated that he went straight home and
returned to the mine as quickly as possible, arriving at
3 : 3 7 p • m. (Tr • 3 2 ) •
Mr. Burton stated that when he returned to the mine the crew
was "at the mantrip getting ready to get on 11 • Mr. Johnson was
standing at the ramp and said nothing to him as he walked by to
go and change into his work clothes. After changing into his
work clothes ten minutes later, Mr. Burton stated that "I asked
him what he wanted me to take in or if the other men had went in
or not. By then I didn't know" (Tr. 33). Mr. Johnson then told
him that 11 You 1 re too late. I can't let you go to work" and sent

1857

him home (Tr. 33). Mr. Burton stated that another miner, Bobby
Rogers, was permitted to go home and return to work, but he did
not know when Mr. Rogers may have returned to work. Mr. Burton
did not believe that there were any problems or inconvenience
with allowing him to go to work and he stated that "other people
has went in before that have been late" CT=. 32, 33). Mr. Burton
stated that the mantrip had not left when he returned at
3:37 p.m., but he was not sure whether it was still there
10 minutes later after he changed clothes (Tr. 34). He also
confirmed that he was not paid for that day and that this is the
basis for his back pay claim (Tr. 35).
On cross-examination, Mr. Burton acknowledged that some of
the miners who attended the grievance meeting came to the meeting
prepared to go to work after it was over, and that they did soo
Although no one from management gave him permission to go home,
he casually mentioned to Mr. Johnson his need to go home but
Mr. Johnson "never did reply back" and did not tell him to go
(Tr. 74). Mr. Burton then left the mine and went home, and upon
his return Mr. Johnson told him that he was tardy and sent him
home. Mr. Burton was charged with an unexcused absence and lost
eight hours pay (Tr. 76).
Mr. Burton stated that at 1:00 p.m., the grievance meeting
was still in session, but he could not recall whether he had
already testified. Assuming that he had, he believed he could
have gone home at that time (Tr. 76). He confirmed that he lived
seven to eight miles from the mine, and he explained that he did
not take his work clothes or equipment with him because "I was
late that day. I can't remember if I had to go get my allergy
shot that day and I had my wife's vehicle • . • Something came up
that day and I was running to get to the meeting that day at
12:00 11 (Tr. 82). When the grievance concluded at 2:43 p.m., he
told Mr. Johnson that he had to go home but that Mr. Johnson "was
kind of mad at the end of the meeting and he never would talk to
me" (Tr. 8 3 ) •
Respondent's chronic excessive abse~teeism program
Mr. Burton stated that a week or two after July 13, 1990, he
was on vacation, and that upon his return to work mine clerk
Waldron informed him that he was being placed under the
respondent's new chronic absenteeism program because of his
July 11 and July 13, 1990, absences when he visited the dentist
antl when he was sent home after the grievance meeting. Mine
superintendent Dan Stickle informed him that his vacation time
and the two absences which were counted against him placed him in
a "higher bracket" pursuant to the leave policy (Tr. 37).
Mr. Burton confirmed that he was subsequently removed from the
chronic excessive absenteeism list two months after he filed his
complaint in this matter (Tr. 39). A copy of the notification
letter removing him is dated October 29, 1990 (Exhibit C-3).

1858

on cross-examination, Mr. Burton stated that he was aware of
the respondent's tardiness policy, and although he recalled
hearing about such a policy notice (Exhibit R-4), he could not
recall seeing it posted on the mine bulletin board (Tr. 58).
Mr. Burton "guessed" that he knew that if he was late for work it
would be considered as tardiness, and he would be subject to an
unexcused absence. He stated that he was aware of others being
late for work, who were allowed to go to work, and that "I know
they had some kind of a tardiness program, but I wasn't aware of
how it works" {Tr. 60-61). He admitted that he knew that if he
were sent home after reporting to work late that his absence
would be considered unexcused (Tr. 62)o
In response to questions concerning the respondent's chronic
excessive absenteeism policy (Exhibit R-5)v Mro Burton stated
that he was aware of it "When I got put in it 19 (Tro 63)o When
asked if he were aware of it prior to that timev he replied nir
heard talk about itn v and that it 11 probably 11 and 11 might have
been" discussed by management with the employees! but that he did
not know because he could not remember (Tr. 63)o
Counseling session of August 1. 1990
Mro Burton confirmed that he had a counseiing session under
the excessive absenteeism program on August 1 9 1990r and that he
had a union representative with him (Exhibit R-6)0 He denied any
knowledge that ten other miners who were not involved with the
July 5, 1990, SCSR incident also received counseling at or about
the same time (Tr. 66-67). Mr. Burton could not remember being
told at the counseling meeting that it only pertained to the
months of April, May, and June, 1990, and that July was not
included. He confirmed that he was informed that his attendance
had to at least meet the mine average, that quarterly attendance
reviews would be made, and that his attendance would be monitored
for the next three months (Tr. 69).
Mr. Burton confirmed that he refused to sign the counseling
form because of union disagreement .. cwith the policy, and his
disagreement with the seven days of absences that he was charged
with in April, May, and June. He believed he was only absent
five days and not seven. He explained that he was off sick for
five days, that he attended a hydraulic class on June 29, and
while he was paid for that day, it was considered a leave day.
The remaining day was a contract "floating day" off with pay
which he had turned in ahead of time, and it was considered an
excused absence (Tr. 91). Mr. Burton stated that he spoke with
the mine clerk and mine superintendent Stickle about the matter
and that "it was cleared up later after August" {Tr. 96).
Robert Clay, Chairman of the mine safety committee,
testified that the SCSR incident of July 5, 1990, came to his
attention later that evening, or possibly the next day. Since he

1859

determined that there was a violation he was asked by the crew to
initiate a safety grievance under the union contract, and he did
so. MSHA was notified and called in and provided with names of
witnesses, including Mr. Burton. Mr. Clay stated that he and
Dickey Estep, the respondent's safety director, estimated that
the grievance proceeding would last about an hour and it came
"right in the middle of a longwall move, a crucial time at the
mine" (Tr. 101-102).
Mr. Clay stated that the meeting lasted considerably
longer, and that sometime after 1:00 p.m., he indicated to
foreman Scott Johnson that the meeting may go beyond the
2:15 p.m. start of the work shift and he asked Mr. Johnson if he
wanted the men to go to work, and Mr. Johnson "indicated to me
yes" and that "he wanted them to go to work" because people were
needed for the longwall move. Mr. Clay stated that 11 my
understanding was that when the grievance got through that he
would like for the people to go to work because he needed people
regardless of time" (Tr. 103-105) .
Mr. Clay stated that during one of the grievance breaks he
made Mr. Johnson aware that several of the men needed to go home
and that Mr. Johnson "indicated to me that he didn't have a
problem with that". Mr. Clay stated that Greg Adams, Bobby
Rogers, and Mr. Burton went home and returned to go to work and
that only Mr. Burton was sent back home and not allowed to work
(Tr. 106). Mr. Clay further confirmed that he specifically
identified the three individuals who wanted to go home to
Mr. Johnson, including Mr. Burton, and that Mr. Johnson indicated
that it was "okay" for them to go home after the grievance
meeting and then come back to work (Tr. 108).
Mr. Clay explained his understanding of the respondent's
absenteeism policy and he confirmed that a copy is posted on the
bulletin board. He could not remember whether any tardiness
policy was posted at the time Mr. Burton arrived for work after
the grievance meeting, and he confirmed that it is up to the
discretion of the work supervisor as to whether a miner who
arrives late for work will be allowed to go to work (Tr. 113).
On cross-examination, Mr. Clay stated that the respondent's
chronic excessive absenteeism policy has been upheld through the
grievance procedure, and that the tardiness policy is in effect
at the mine. In response to questions concerning how Mr. Johnson
indicated that Mr. Burton, Mr. Rogers and Mr. Adams could go home
after the grievance meeting and then return to work, Mr. Clay
stated as follows {Tr. 118-119):
Q.

(Mr. Rajkovich continues.) How did he
indicate that? You said he indicated he
didn't have a problem. What did he say?

1860

A.

He said, "Yes.

We need all the people we can get. 11

Q.

Did he give them permission to go home?

A.

I took it from that that was permission for
those people to go home and get their dinner
buckets and return to work.

Q.

Did he specifically give them permission to
go home and leave the mine premises?

A.

He told me.

Q.

What did he tell you?

A.

He told me, he said, "We need all the people
that we can get. 11

Q.

Did he tell you that he gave his permission
for those people to go home?

A.

I took that as being permission.

Q.

But did he say that?

A.

I took that as being permission.
Respondent's Testimony and Evidence

Joe Richard Estep, Safety manager, explained the
respondent's SCSR storage plan, and he confirmed that it was in
effect on July 5, 1990. He testified about the people walking
into the mine that day for a distance of approximately 4,000 feet
before they were picked up, and he believed the route of travel
was safe since he traveled it and inspected the longwall face and
working section on July 4 and 5, 1990, and he saw no hazards or
dangers (Tr. 124-131).
On cross-examination, Mr. Estep confirmed that he was not
involved with the matters concerning Mr. Burton's leave and that
he was not Mr. Burton's supervisor (Tr. 137).
Kenneth McCoy, superintendent of High Splint #1 Mine,
testified that he was superintendent of operations at the No. 37
Mine on July 5, 1990. With respect to Mr. Burton's absence to
visit his dentist on July 11, 1990, Mr. McCoy explained that
management had prior to that time received many doctor's slips
from employees which simply stated that they saw a doctor but did
not explain the reasons for the visit or whether or not the
employee was able to work. As a result of this, a policy was
instituted requiring the doctor's slip to state that an employee
was under a doctor's care and was unable to work, and an example

1861

of the type of slip required was posted and discussed at meetings
with the employees. In Mr. Burton's case, the initial slip
simply stated that he had gone to the dentist, but after he
brought in an acceptable slip, his absence was excused (Tr. 139140) .
Mr~ McCoy stated that he did not participate in the July 13,
1990, grievance meeting, but he was present on the surface at
approximately 2:30 p.m. when it ended. He stated that
Mr. Johnson came to his office and told him that Mr. Burton was
leaving because he had to take his wife's car home and he had to
go eat. Mr. Johnson asked Mr. McCoy "what do you want me to
do?", and Mr. McCoy stated that he instructed Mr. Johnson to send
Mr. Burton home (Tr. 142). Mr. McCoy explained further as
follows at (Tr. 143-144):

THE WITNESS: As I recall, Mike Burton said in the
meeting, perhaps, I don't know, to Scott Johnson, I 0 m
going home to take my wife 1 s car home and get something
to eat.
THE COURT:

Mr. Johnson told you that?

THE WITNESS~ No. See, Scott worked for
I was
superintendent of operations and he was the second
shift mine foreman. He come to me for direction. He
said, what do I do? He's going to come back in an hour
or -- he's going to come back. When he comes back what
do I tell him? I said, if you didn't give him
permission to leave, when he comes back you send him
home.
THE COURT:
THE WITNESS:

*

All right.
I made that decision.

*

*

*

*

"""'-

Q.

(Mr. Rajkovich continues.) And then
Mr. McCoy, when he did come back, did you
make that decision then not to allow him to
go to work?

A.

Well, I didn't see him.
I had already made
the decision. When Scott came and asked me
what do I do, I said you send him home.
If
you did not give him permission to leave,
when he shows up you send him home.

Q.

Did Scott Johnson ever tell you if he gave
him permission?

1862

*

*

A.

No. I asked him that. He said he did not
give him permission and that Mike just simply
stated, I'm leaving. I have to take my
wife's car home.
I have to go get something
to eat. I'll be back later.

Mr. McCoy stated that his decision to send Mr. Burton home
was based on the company's tardiness policy which provides that
an employee will be sent home and charged with an unexcused
absence if he reports for work late without prior approval or if
he asked for approval and had no legitimate reason to be late.
To do otherwise, he stated, "you would have your entire work
force coming to work when they wanted" (Tro 144)0 Mr. McCoy
identified Mro Larry Johnson as an individual who he suspended
with intent to discharge for violating the tardiness policy.
Mr. McCoy denied that his decision to send Mro Burton home and to
treat it as an unexcused absence was motivated at all by
Mr. Burton 1 s section 105(c) complaint. He also denied that his
decision was motivated by the July 5, 1990, SCSR incident
(Tr. 145). Mr. McCoy stated that even if Mr. Burton had a clean
record, he would still have given him an unexcused absence for
showing up late without prior approval.
On cross-examinationv Mr. McCoy denied that Mr. Johnson
informed him that two other employees were also going home after
the grievance meeting of July 13, and he stated that Mr. Johnson
told him that the two went to work. He then stated that he did
not remember who told him that they returned to work immediately,
and that Mr. Johnson "probably" told him, but that he was not
positive (Tr. 147).
Mr. McCoy stated that Mr. Johnson did not mention that 11 1
need all the men I can get" in response to a statement by
Mr. Clay that some of his men needed to go home. Mr. McCoy
stated that Mr. Johnson mentioned that Mr. Burton had to take his
wife's car home and get something to eat, but did not mention
anything about medication or work clothes,_ or the fact that the
meeting might end at 1:00 p.m. (Tr., 147). Mr. McCoy stated that
any permission by him to allow Mr. Burton to go home and return
to work would "depend on the circumstance". However, he would
not have granted Mr. Burton permission to go home 11 if it meant
coming back two hours into the shift", nor would he have granted
permission to the other two men to leave (Tr. 149).
Mr. McCoy stated that an example of an acceptable doctor's
slip was mailed to the employees, and he recalled that it was
discussed and posted. He did not know why it took "a
considerable amount of time" to approve the second slip and clear
the matter up with Mr. Burton. He stated that management's
contact with Mr. Burton's dentist was standard procedure and that
"we contact the doctor's on a regular basis" when there are

1863

questions and that he personally has visited doctors in this
regard. He did not know why the dentist was not called after
Mr. Burton brought in his first excuse rather than making him go
back again (Tr. 151). He explained that with 250 employees "the
updating of the cards sometimes lags behind", and that "when the
time clerk ultimately gets to it is when it's taken care of"
(Tr. 152) •
In response to further questions, Mr. McCoy stated that as
the superintendent, he would expect to know if someone other than
Mr. Burton left the property. He stated that it was conceivable
that Mr. Johnson may have allowed the two other employees to go
home, but that he (McCoy) would expect people to go underground
at the 2:15 p.m. shift starting time (Tr. 154). He stated that
he expects the mantrip to leave at starting time, and nwith 250
employees you don't hold their hand. You expect them to be
responsible adults and to be at work on time and work eight
hours" (Tr. 156) .
Mr. McCoy stated that he was not present during the mantrip
and SCSR incident of July 5, 1990, but after Mr. Johnson
explained what had happened "I told him he messed up in regard to
the self-rescuers". Mr. McCoy stated that he knew when
Mr. Johnson sent 14 people underground with only four scsRus
stored at strategic locations that he had violated the plan and
that he should have allowed the employees to take the devices
with them. Mr. McCoy stated that the next day Mr. Johnson met
with the crew and "told them that he screwed up and gave them bad
information" (Tr. 157).
Mr. McCoy stated that he was not aware that Mr. Burton
complained to Mr. Johnson about the SCSR's and sanding devices,
and that Mr. Johnson did not tell him that Mr. Burton had
complained. Mr. McCoy stated that it was not uncommon to have to
repair sanders at the start of the shift. He confirmed that he
was aware of the complaint filed with MSHA, and the citation
which followed, and that he was at the firs~ step prievance
meeting where the matter could not-be resolved. The union wanted
him to write a letter stating that there was a violation of the
law and Mr. McCoy would not agree to post such a letter
(Tr. 159). The union then stated that it would call MSHA and
Mr. McCoy stated that he replied "Well, call them" (Tr. 158).
Mr. McCoy stated that he was not aggravated with Mr. Burton
because of his involvement with the sanders and the SCSR matter,
and he indicated that sanders always need attention because of
moisture which stops them up. He stated that he wanted the
sanders repaired and would think less of Mr. Burton if they were
not repaired. Mr. McCoy confirmed that Mr. Waldron discussed the
first dentist slip supplied by Mr. Burton with him, and it

1864

contained incomplete information. Mr. McCoy stated that he was
not familiar with the second slip and could not recall seeing it
(Tr. 160).
James Waldron, Acting Labor Relations Manager, stated that
on July 5, 1990, he was the mine supervisor of human resources.
He is sometimes referred to as the "mine clerk". He stated that
the respondent's chronic and excessive absenteeism program is a
standardized attendance control program that has been in
existence for approximately 12 years, and he explained that it is
designed to maintain and correct an employee's attendance
behavior pattern, and it includes employee counselling
(Exhibit R-5, Tr. 161-167). Mr. Waldron confirmed that he was
familiar with Mr. Burton's attendance record through the records
maintain by the clerks in his department. He stated that
Mr. Burton was designated an "irregular worker" in 1989 because
of six days of unexcused absences, and he explained how those
absences were entered on his leave records (Exhibits R-llp R-12,
Tr. 168-171). He also confirmed that Mr. Burton received
counseling, as did other employees (Exhibit R-13, Tr. 174-178).
Mr. Waldron confirmed that he attended the grievance meeting
of July 13, 1990, and he identified the grievants as Mr. Burton,
Clifton Fox, Greg Adams, and Bobby Rogers. The meeting began at
12:15 p.m., and ended at 2:25 p.m. Mr. Waldron stated that to
his knowledge, Mr. Burton was the only person who left the mine
after the meeting ended, and :hat the others went to work
(Tr. 179). He observed Mr. Burton at the parking lot going to
his vehicle, and he confirmed that Mr. Johnson informed him about
Mr. McCoy's statements concerning Mr. Burton being sent home upon
his return to the mine at 3:50 p.m. (Tr. 180). Mr. Waldron
stated that Mr. Johnson told Mr. Burton that he could not work
and that this was consistent with the tardiness policy.
Mr. Burton would have been charged with an unexcused absence for
leaving the mine even if he had a "clean" attendance record
(Tr. 181-182).
On cross-examination, Mr. walQ..ron confirmed that he assumed
that no one but Mr. Burton left after the meeting because he did
not watch each employee and Mr. Johnson did not tell him that
anyone else left (Tr. 182). He further explained Mr. Burton's
leave records and the leave entries that resulted in his being
counseled, and he conceded that an error was made with respect to
an absence, but that it was later corrected (Tr. 181-187). He
also conceded that one of his clerks should have checked to
determine whether Mr. Burton had any "floating days" available,
and that vacation days should not have been counted in the
attendance formula (Tr. 188, 191).

1865

Posthearing testimony
Two miners who purportedly were allowed to go home and then
return to work, at the conclusion of the July 13, 1990, grievance
meeting (Greg Adams and Bobby Rogers), and foreman Scott Johnson
were not called by the parties to testify in this case. At the
conclusion of the hearing, the parties were advised that these
were critical witnesses and that I would consider ordering
posthearing testimony. I subsequently ordered the parties to
take the testimony by deposition or affidavit and to. file it with
me. The parties have done so.
Gregory W. Adams and Bobby Rogers gave the
following identical statement:
That on July 13, 1990, I attended the safety grievance
meeting; subsequently, I went home prior to reporting
to work; that as a result of returning home I was late
for my shift; that Mro Johnson was aware that I was
going to be late and approved it; and that he was aware
that I was late and took no disciplinary action.
Aff iant Scott Johnson 1 currently employed as a senior
planning engineer for Arch of Wyoming, Rock Springs 1 Wyoming
stated that he was employed as a shift supervisor at the No. 37
Mine on July 13, 1990. He stated that he attended a safety
grievance meeting on that day, and he confirmed that Mr. Burton,
Mr. Adams, and Mr. Rogers, as well as others, were present. He
identified these three individuals, and Mr. Clifton Fox, as the
"grievants". Mr. Johnson stated that the meeting began at
approximately 12:00 noon and was concluded by approximately
2:25 p.m. Since the meeting had extended beyond the shift
starting time of 2:15 p.m., and the four grievants missed the
mantrip into the mine, he arranged for another mantrip to
transport these individuals to their underground section.
Mr. Johnson stated that he was approached by Mr. Clay and
Mr. Burton at the conclusion of the..grievance meeting, and
Mr. Burton informed him that he was going home to eat and let his
wife have their vehicle. Mr. Johnson stated that he told
Mr. Burton, in the presence of Mr. Clay, that he should have come
prepared to go to work as Mr. Adams and Mr. Rogers did, and that
he would not be allowed to go to work if he left the mine and
returned later. Mr. Johnson stated that shortly thereafter, at
approximately 2:30 p.m., while making arrangements for another
mantrip, he walked through the bathhouse and observed Mr. Burton,
Mr. Adams, and Mr. Rogers having a conversation. Mr. Johnson
stated that at approximately 2:42 p.m., he saw Mr. Burton get
into his vehicle and leave the property.
Mr. Johnson stated that shortly after he observed Mr. Burton
leave the property, he informed superintendent of operations Ken

1866

McCoy that Mr. Burton had left and asked his advice as to what to
do about the situation. Mr. Johnson confirmed that he informed
Mr. McCoy that he had not given Mr. Burton permission to leave,
and Mr. McCoy concurred that Mr. Burton should not be allowed to
go to work that day and instructed him to send Mr. Burton home
when he showed up.
Mr. Johnson stated that at approximately 2:50 p.m., the
mantrip was readied, and Mr. Adams and Mr. Rogers got into the
mantrip and left for their assigned work section underground.
Mr. Burton returned to the property at approximately 3:50 p.m.,
and Mr. Johnson told him that he would not be allowed to work
that day.
Mr. Johnson stated that between the time the grievance
meeting ended and the time he saw Mr. Burton leave the property,
he saw none of the other individuals in question leave the
property, and to the best of his knowledge they did not leave.
He denied that he gave any of these individuals permission to
leave the property, or that he eve= stated directly or indirectly
that he had "no problem" with their leaving. He further denied
giving Mr. Burton permission to leave, and he stated that when
the subject was raised by Mr. Clay and Mro Burton, he informed
them that if Mr. Burton left he would not be
lowed to return to
work. Mr. Johnson stated that given the short time span between
the conclusion of the grievance meeting and the departure of the
underground mantrip, and based on his observations in the
bathhouse, he had no reason to believe that anyone other than
Mr. Burton left the property during that time.
Mr. Johnson stated that his initial conversation with
Mr. Burton when he informed him that he would not be allowed to
come to work if the left the property was based on his
interpretation of the company's leave policy and was in no way
intended to discriminate against Mr. Burton. Mr. Johnson stated
that he confirmed that interpretation with Mr. McCoy, who then
instructed him to tell Mr. Burton that he would not be allowed to
work upon his return.
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c} of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 {3d Cir.
1981}; Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 {1984) ; Secretary on

1867

behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other ground sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
way motivated by protected activity.
If an operator cannot rebut
the prima facie case in this manner it may nevertheless
aff irmately defend by proving that it was also motivated by the
miner's unprotected activities alone. The operator bears the
burden of proof with regard to the affirmative defense. Haro v.
Magma Copper company, 4 FMSHRC 1935 (1982). The ultimate burden
of persuasion does not shift from the complainant. Robinette,
supra. See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983) ~
and Donovan v. Stafford Construction Company; No. 83-1566 D.C.
Cir. {April 20, 1984) (specifically-approving the Commission°s
Fasula-Robinette test). See also NLRB v. Transportation
Management Corporation, ~~U.S.~~' 76 l.ED.2D 667 {1983),
where the Supreme Court approved the NLRBis virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive
rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd another grounds sub nom.
Donovan v. Phelps Doge Corp., 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965):
It would indeed be the unusual case in which the link
between the discharge and the [protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many case~ the discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence,
circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.

1868

In Bradley v. Belva coal Company, 4 FMSHRC 982, 993 (June
1982), the commission stated as follows:
As we emphasized in Pasula, and recently reemphasized
in Chacon, the operator must prove that it would have
disciplined the miner anyway for the unprotected
activity alone. Ordinarily, an operator can attempt to
demonstrate this by showing, for example, past
discipline consistent with that meted to the alleged
discrimiatee, the miner's unsatisfactory past work
record, prior warnings to the miner, or personnel rules
or practices forbidding the conduct in question. Our
function is not to pass on the wisdom or fairness of
such asserted business justifications, but rather only
to determine whether they are credible and, if so 1
whether they would have motivated the particular
operator as claimed.
Mr. Burtonvs Protected Activity
It is clear that Mr. Burton enjoys a statutory right to
voice his concern about safety matters or to make safety
complaints to mine management or a mine inspector without fear of
retribution or harassment by management. Management
prohibited from interfering with such activities and may not
harass, intimidate, or otherwise impede Mr. Burton's participation in these kinds of activities. Secretary of Labor ex rel.
Pasula v. Consolidation Coal co., 2 FMSHRC 2786 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary of Labor ex
rel. Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April
1981). Baker v. Interior Board of Mine Operations Appeals, 595
F.2d 746 (D.C. Cir. 1978); Chacon, supra.
The Alleged Acts of Discrimination
The SCSR incident of July 5, 1990
Mr. Burton's assertion that he and his crew "were forced" to
walk to their working section without their SCSR's suggests that
foreman Johnson somehow coerced or intimidated Mr. Burton to do
something against his will, thereby exposing him to a hazard,
because he informed foreman Johnson about the inoperative sanding
devices on the mantrip which the crew was scheduled to use to
transport them to the section. However, I am not convinced that
this was the case.
I have carefully reviewed Mr. Burton's testimony, and I
cannot conclude that he specifically lodged a safety complaint
with Mr. Johnson with respect to the inoperable sanding devices.
Mr. Burton's testimony reflects that while he was pre-shifting
the mantrip in compliance with Company policy he found that the

1869

sanders were clogged and he proceeded to clean them, thus
delaying the departure of the mantrip. Mr. Johnson then pointed
to two other mantrips and suggested to Mr. Burton that he should
use one of those. However, the second mantrip had inoperable
brakes and Mr. Johnson agreed that it should not be used.
Mr. Burton then discovered that the third mantrip also had some
clogged sanders, and while he was in the process of checking it
out in preparation of cleaning the devices, Mr. Burton stated
"walk in" .
Mr. Burton testified that Mr. Johnson was "red faced and
mad" when he made the statement "walk in 91 o This suggests that
Mr. Johnson was chagrined at Mr. Burton personally and was
somehow taking it out on him. However, quite the opposite could
also be true. As the shift foreman responsible for getting the
crew to work on time, Mro John~on may have been frustrated over
the lack of any operable mantrips, and reacted out of that
frustrationo I find no evidence that Mro Johnson harbored anv
ill will toward Mro Burton at the time in question 9 and
Mr. Burton was not the only person who began to walk to the
section. The entire crew, including several management
employees, began walking. No one, including Mr. Burton, voiced
any complaints about walking, and Mro Burton and the union miners
did not invoke their individual safety rights, did not refuse to
walk in, and apparently did not protest to Mro Johnsono I also
take note of the fact that Mr. Johnson informed Mr. Burton that
the mantrip would pick up the crew after the sanders were
repaired, and safety manager Estep testified the men were picked
up after they had walked approximately 4,000 feet, which is less
than a mile.
With regard to the self rescu~ devices, I find no evidence
to support any reasonable conclusion that Mr. Johnson 1 s refusal
to allow Mr. Burton to take one from the mantrip with him when he
began to walk was done to punish or harass Mr. Burton. Contrary
to Mr. Burton's assertion that he had complained about the unsafe
practice of sending the crew into the section without the
devices, I find nothing in his testimony to support any such
conclusion. The testimony shows that Mr. Burton simply asked
Mr. Johnson for a self-rescue device and was refused. Mr. Burton
confirmed that Mr. Johnson explained to him that he did not need
the device because the mine had a plan that required such devices
to be stored at strategic locations along the travelway taken by
the crew. The fact that Mr. Johnson was subsequently proved
wrong and conceded that he had erred is not relevant to his state
of mind on July 5, when he refused Mr. Burton's request.
Further, Mr. Burton conceded that he is provided with a personal
filter type rescue device at all times while underground and that
he is trained in its use. Although Mr. Burton testified that he
wanted to take the mantrip device with him because of a prior
experience when he was exposed to smoke from a motor fire, there
is no evidence that he told Mr. Johnson about this incident, and

1870

Mr. Burton admitted that no one invoked their individual safety
rights by refusing to proceed to the section without the SCSR's.
Superintendent McCoy candidly admitted that Mr. Johnson made
a mistake by not allowing Mr. Burton and the crew to take the
SCSR devices with them when they were directed to walk to the
section, and Mr. McCoy confirmed that Mr. Johnson met with the
crew the next day and conceded to the miners that he was in error
and had given them some bad information. Further, the July 5,
1990, incident concerning the miners walking without the SCSR's
was the subject of a grievance filed by the union, and it
resulted in a citation issued by MSHA for a violation of the SCSR
storage plan. Although the evidence reflects that Mro Burtonv as
well as others, were "witnesses" at the grievance meeting, that
particular event took place after July 5, 1909. Under the
circumstances, I cannot conclude that Mr. Johnson's actions on
July 5, 1990, standing alone, constituted illegal discrimination
within the parameters of section 105(c) of the Act. In my viewr
the union pursued the proper avenue of appeal in that matter when
it filed a grievance and requested MSHA to pursue the mattero
The Dental Visit of July 11, 1990.
The evidence establishes that the typewritten complaint
letter dated March 21, 1991 1 containing Mr. Burtonas signaturef
which was filed with the Commission, was in fact drafted and
typed by union safety committee chairman Robert Clay, who also
addressed the hand-written envelope (Tr. 45). As noted earlier,
the letter states in part that "Since my initial charge was
filed, Arch of Kentucky management has continued to harrass and
discriminate aginst its employees, namely me." I take note of
the fact that Mr. Burton's MSHA complaint was filed on July 24,
1990, after his dental visit of July 11, 1990, and I assume that
the "initial charge" referred to in the Commission complaint
letter is the grievance filed by the union concerning the July 5,
1990, incident. Mr. Burton and three other miners have been
characterized as the "grievants" in those proceedings.
Mr. Burton confirmed that an.employee is not paid for any
absences from work due to doctor or dentist visits regardless of
whether the absence is treated as excused or unexcused. However,
an accumulation of unexcused absences may adversely impact on his
attendance record pursuant to the company absenteeism program.
In this case, the parties stipulated that Mr. Burton's absence
from work because of the visit to his dentist was initially
recorded on his record as unexcused, but was eventually changed
to excused (Tr. 27). In the couse of the hearing, Mr. Burton's
counsel asserted that Mr. Burton believed that he was treated
unfairly with respect to the dental excuse matter and that his
treatment by the respondent "was harassing and an attempt to
harass him" (Tr. 196). Although not specifically alleged,

1871

counsel suggested that the respondent's follow-up telephone calls
to the dentist to verify Mr. Burton's visit was also harassment.
Mr. Burton acknowledged that he was aware of the information
required to be included on a doctor's excuse slip to support an
excused absence. Although he stated that he had previously
turned in slips similar to the one which he initally turned in to
his immediate foreman Hubert Boggs (exhibit C-1), he conceded
that the slip did not contain all of the required information.
Under the circumstances, I conclude and find that Mr. Waldron
acted correctly in rejecting the initial slip submitted by
Mr. Burton, and I find no credible evidence of any harassmento
With regard to the second dentist slip (exhibit C-2)u
Mr. Burton testified that he obtained that one after Mr. Waldron
instructed him to do so within twenty-four hours of his rejection
of the first one. Mr. Burton confirmed that Mr. Waldron rejected
the second slip because it was late, but informed him that
superintendent Strickle would make a determination as to whether
or not it was acceptable. Mr. Strickle did not testifiy, and no
testimony was elicited by the parties from Mr. Waldron concerning
the dental slips in question.
Superintendent McCoy explained the respondentQs policy
concerning doctorvs excuse slips and follow-up calls by
management to doctors to verify an employee's absence. Mr. McCoy
confirmed that Mr. Waldron discussed the first slip with him, and
that it contained incomplete information. Mr. McCoy testified
that he was not familiar with the second slip, and did not recall
seeing it, and he did not know why it took so long to ultimately
approve it as an excused absence. However, he explained that the
updating of the leave cards of 250 employees sometimes lags
behind, and that the time clerks ultimately take care of them.
I find no evidence of any involvement by foreman Scott
Johnson in the matter concerning Mr. Burton's dental leave slips.
As noted earlier, Mr. Burton's second leave slip was apparently
accepted and his records wer~ ultimately corrected to reflect an
excused absence. I find no evidence of any animus by management
towards Mr. Burton, and I find reasonably plausible Mr. McCoy's
explanation that with the number of employee records dealt with
by his clerks, the updating of individual cards is somewhat lax.
Indeed, Mr. Burton's counsel observed during the hearing that the
respondent's bookkeeping was "a little shaky", and she candidly
discounted any suggestion that management altered Mr. Burton's
leave records or that there was any management conspiracy against
him (Tr. 188-192). Under all of these circumstances, I cannot
conclude that management's handling of Mr. Burton's dental leave
slips amounted to discrimination or harrassment because of any
protected safety activity on his part.

1872

The Chronic Excessive Absenteeism Program and the Counseling
Session of August l , 1990.
As noted earlier, Mr. Burton's discrimination complaints did
not specify the particular acts of alleged management harassment.
In the course of the hearing however, Mr. Burton implied that his
placement in the respondent's chronic excessive absenteeism
program and his counseling session of August 1, 1990, resulting
from his placement in the program, were acts of harrassment or
retaliation because of his safety complaints. In addition,
Mr. Burton's counsel questioned "whether certain things occurred
because in retaliation for it that series of events that ended up
with the citation" (Tr. 204). counsel expressed confusion °1 about
the handling of the chronic absenteeism policy 11 and she
questioned the fact that Mr. Burton was unaware of certain
matters that were placed in his personnel records. Counsel also
asserted that 11 it 1 s a fair inference 11 that these events occurred
because Mr. Burton caused problems for the respondent
(Tro 205-206)
o

The parties stipulated that the respondent was free to
establish an additional chronic excessive absenteeism policy
beyond that covered by the Union/Management Agreement of 1988
(Exhibits R-3r R-4; Tr. 57). Mr. Burton testified that in late
Julyg 1990 1 Mr. Waldron informed him that he was being placed
under the respondent 1 s chronic absenteeism program because his
vacation time, coupled with his absences of July 11 and July 13,
1990, placed him in a "higher bracket" as compared to other
employees. However, Mr. Burton confirmed that he was subsequently removed from the chronic excessive absenteeism list.
The record reflects that Mr. Burton had been previously
designated an "irregular worker" on July 15, 1989, because of an
accumulation of six days of unexcused absences during May and
June, 1989. Mr. Burton's counsel indicated that she would
stipulate that the respondent designated Mr. Burton as an
irregular worker, but she contended that the designation was
improper, that Mr. Burton had·no notice that he was so
designated, and that several of the recorded absences were the
result of a general mine strike during which all union employees
were affected (Tr. 172).
Mr. Waldron confirmed that Mr. Burton was placed in the
chronic absenteeism program in July, 1990, because of his
attendance record during the months of April, May, and June.
Mr. Waldron denied that Mr. Burton's July absences were included
in the computations which resulted in his being placed in the
program (Tr. 174). Mr. Waldron stated that Mr. Burton, as well
as several other employees, were considered "pattern missers" or
"long weekend syndrome" workers who missed work on Fridays and
Mondays, and that this was one of the determining factors for
counseling him (Tr. 176-177). Mr. Waldron confirmed that in

1873

addition to Mr. Burton, ten other employees were also counseled
in late July and early August, 1990 (Tr. 176; exhibit R-13).
Mr. Waldron confirmed that Mr. Burton was no longer in the
chronic absentee program, and he candidly conceded that errors
were made in connection with some of the charged absences and
that the leave clerks should have checked more closely and not
counted Mr. Burton's vacation days or "floating days" against his
attendance records for purposes of the counseling program.
Mr. Waldron explained the different leave codes used in making
entries on an employee's leave cards, and he confirmed that at
the time he counseled Mr. Burton he relied on the leave entries
made on his records by his clerks. However, when he later
determined that Mr. Burton should have been credited with certain
excused, rather than unexcused. days, the appropriate corrections
were made to his records (Tr. 185-188).
As noted earlier, Mr. Burton is no longer under the
respondent's chronic excessive absenteeism programv and
Mr. Waldron candidly conceded that administrative errors were
made in designating some of Mr. Burton's absences as "unexcusedu,
but that corrective action was taken to correct the records. I
find no credible evidence to support any reasonable inference
that Mr. Burton was placed in that program because of the July 5,
1990, SCSR incident which eventually led to the grievance and a
citation being served to the respondent. As noted earlier, I
find no evidence of any animus by management against Mr. Burton,
and Mr. Mccoy agreed that Mr. Burton acted properly in bringing
the mantrip sanders condition to Mr. Johnson's attention and that
he would have thought less of him if he had not done so.
I also
find no evidence that Mr. Johnson had anything to do with
Mr. Burton's attendance record problems.
With regard to Mr. Burton's designation as an "irregular
worker" in July, 1989, that event preceded the July 5, 1990, SCSR
incident and I find no evidence that his designation was
motivated by an protected activity on his part. As for the
counseling session of August 1, 199..9, the respondent's evidence,
which I find credible, establishes that ten other employees were
also counseled at approximately the same time as Mr. Burton, and
none of those employees were involved in the July 5, 1990,
incident. Further, Mr. McCoy's credible and unrebutted testimony
establishes that he had previously disciplined another miner by
suspending him with intent to discharge for violating the
respondent's tardiness policy (Tr. 144). Under the circumstances
I cannot conclude that Mr. Burton was "singled out" for any
"special treatment" because of his involvement in the July s,
1990, SCSR incident, or because he saw fit to exercise his right
to file a discrimination complaint with MSHA.
In short, I find
no credible evidence to support any reasonable finding of
disparate treatment of Mr. Burton by management because of any
protected activity on his part. What the evidence does suggest

1874

is a rather inept and disjointed system of recordkeeping by the
respondent with respect to employee attendance records, and a
rather lax and untimely method of correcting records when errors
are discovered.
The tardiness incident of July 13. 1990.
According to the testimony of the various witnesses, the
grievance meeting ended sometime between 2:25 p.m. and 2:42 p.m.
Mr. Johnson stated that he observed Mr. Burton leave the mine to
go home at 2:42 p.m., and that he returned at 3:50 p.m.
Mr. Waldron, who also observed Mr. Burton at the parking lot
after the meeting ended, also placed his return at 3:50 p.m.
Mr. Burton testified that he returned at 3:37 p.m. All of the
witnesses agreed that the normal starting time for the shift was
2:15 p.m. In any event, regardless of the slight time
discrepancies, I find that Mr. Burton went home after the
grievance meeting ended and returned to the mine with the
intention of going to workv albeit after the normal shift
starting time.
The most significant part of Mr. Burton 1 s complaint is his
contention that Mr. Johnson sent him home and would not allow him
to work because he (Burton) had previously complained about the
defective mantrip sanders and Mr. Johnson's sending employees
underground without SCSR's. In support of this conclusionv
Mr. Burton maintains that Mr. Johnson allowed other employees to
go home after the grievance meeting was over and to return to
work late, and that they were not sent home without pay. In
short, Mr. Burton relies on this alleged disparate treatment by
Mr. Johnson to support a conclusion that Mr. Johnson retaliated
and discriminated against him because of their prior encounter of
July 5, 1990, concerning the mantrip sanders and SCSR's.
There are two critical issues presented here. The first is
whether or not Mr. Burton had foreman Johnson's permission to go
home and return to work late after the conclusion of the
grievance meeting, and the second is whether or not Mr. Johnson
gave other employees permission to go home at the conclusion of
the grievance meeting and allowed them to work late upon their
return to the mine. If Mr. Burton had permission to go home and
return to work late, then his unexcused absence would not stand
scrutiny under the respondent's tardiness program. If foreman
Johnson did in fact give other employees permission to go home
and return to work late, but denied the same privilege to
Mr. Burton, one could reasonably conclude that this disparate
treatment was the result of animus by Mr. Johnson towards
Mr. Burton and would support a reasonable inference that
Mr. Johnson retaliated against Mr. Burton because of the July 5,
1990, incident which prompted the union to file a grievance and
which resulted in the issuance of a citation to the respondent.

1875

Mr. Burton testified on direct examination that when he
realized he would not have time to go home before his work shift
was scheduled to begin, he talked to foreman Johnson during the
grievance meeting and told him that he had not eaten and did not
have his work clothes or mining hat with him. Mr. Johnson did
not reply, said nothing, and "never said no or yes" (Tr. 31-32).
Mr. Burton repeated this testimony during cross-examination, and
he conceded that no one in mine management gave him permission to
go home (Tr. 73-74). In response to several bench questions, he
admitted that he did not specifically ask Mr. Johnson for
permission to go home and that he simply casually mentioned to
him that he had a need to go home (Tr. 75). Mr. Burton also
confirmed that he had no knowledge that Mr. Johnson was asked if
he wanted the men to go to work even though they would be late
(Tr. 80). Mr. Burton also indicated that he again told
Mr. Johnson at the end of the meeting of his need to go home
and that Mr. Johnson did not reply (Tr. 83).
Mr. Clay testified on direct examination that after
realizing that the grievance meeting would likely extend beyond
the normal start of the working shift at 2:15 p.m., he mentioned
this to Mr. Johnson and Mr. Johnson indicated that he expected
and wanted the men to go to work after the meeting was over;
regardless of the time (Tr. 103-105). Mr. Clay stated that
during a break in the grievance meeting he told Mr. Johnson that
several of the men had to go home after the meeting and that
Mr. Johnson indicated that he had "no problem" with this and that
he needed everyone to work regardless if they first had to go
home (Tr. 106-107). Mr. Clay further testified that he
specifically identified Mr. Adams, Mr. Rogers, and Mr. Burton to
Mr. Johnson as the individuals who needed to go home at the
conclusion of the grievance meeting and that Mr. Johnson stated
that it was 11 0.k. 11 for them to do so and to return to work
regardless of the time they returned (Tr. 108).
1

On cross-examination, and when pressed to explain his
testimony that Mr. Johnson said that he had, 11 no problem" with
Mr. Burton, Mr. Adams, and Mr~ Rogers going home, Mr. Clay stated
that Mr. Johnson indicated "Yes. We need all the people we can
get" (Tr. 118). In response to several repeated questions
seeking a direct answer to the question of whether or not
Mr. Johnson specifically gave his permission for the three named
individuals in question to leave the mine after the grievance
meeting and to then return to work, Mr. Clay stated that he
construed Mr. Johnson's statement "we need all the people that we
can get" as permission for the three individuals to go home
(Tr. 119) .
After viewing Mr. Clay during the course of the hearing, and
upon careful examination of his testimony, I find him to be less
than a credible witness. I do not believe his direct testimony,
which was given in response to my bench questions, and I have

1876

given it little weight in support of any conclusion that
Mr. Johnson gave his permission for Mr. Burton, Mr. Rogers, and
Mr. Adams to go home after the grievance meeting and to then
return late to work. Indeed, Mr. Burton conceded that no one
from mine management, including Mr. Johnson, gave him permission
to go home after the grievance meeting and I take note of the
fact that Mr. Burton identified only Mr. Rogers as someone who
had gone home, and said nothing about Mr. Adams.
In their identical affidavits, Mr. Adams and Mr. Rogers
stated that they went home after the grievance meeting, and as a
result of going home, they were late for their work shift. They
do not state that Mr. Johns.on gave them permission to go home
after the meeting or that Mr. Johnson knew that they were going
home. Although they both asserted that Mr. Johnson was aware
that they would be late and approved of it, I construe this to
mean that Mr. Johnson had no objection to their going to work
late after the grievance meeting ended. Howeverv I reject their
assertions as credible evidence that Mro Johnson gave them
permission to go home, or that he even knew that they had gone
home.
In his affidavit Mr. Johnson stated that since the grievance
meeting had extended beyond the normal start of the work shift
and the four grievants {Burton, Adams, Rogersu and Fox) missed
the scheduled mantrip, he arranged for another mantrip to
transport these individuals underground. While in the process of
making these arrangements, Mr. Johnson observed Mr. Burton leave
the mine at approximately 2:42 p.m., and Mr. Adams and Mr. Rogers
left in the mantrip to go to work at 2:50 p.m. At no time did
Mr. Johnson see anyone other than Mr. Burton leave the property,
and to the best of his knowledge Mr. Adams and Mr. Rogers did not
leave the mine. Mr ..Johnson denied that he had given any of
these individuals, including Mr. Burton, permission to leave the
property, and he denied that he ever stated that he had "no
problem" with their leaving.
Safety committee Chairman Clay initially testified that
miners are aware of the respondent's tardiness and excused
absence policy and that it is posted on the bulletin board
(Tr. 110) • . He later stated that he could not remember whether
the policy was posted at the time Mr. Burton was sent home, but
he confirmed that there was an "oral policy" which vested
discretion in the work supervisor to send someone home if he
reported late for work (Tr. 112-113)). He further confirmed that
the policy has been upheld through the union grievance procedures
(Tr. 114) •
Mr. Burton was rather equivocal about his knowledge of the
mine tardiness policy. He initially testified that he was aware
of the policy but could not recall seeing it posted. He
"guessed" that he knew if he were late for work he would be

1877

considered tardy and charged with an unexcused absence. He also
indicated that he knew there was "some kind" of a tardiness
program, but denied any knowledge as to how it worked. Finally,
he admitted that he knew that if he were sent home after
reporting to work late his absence would be considered unexcused,
and he acknowledged that he would not be paid for such an
absence.
After careful consideration of all of the testimony and
evidence, I conclude and find that Mr. Burton was well aware of
the respondent's tardiness policy and that he knew if he were
sent home after reporting late for his work shift he would not be
paid. After viewing Mr. Burton during the hearing, and taking
into consideration the fact that he has worked for the respondent
for some 14 years, I remain unconvinced that he was ignorant of
his rights and responsibilities· with respect to timely reporting
for work, and I am not persuaded that he did not know about the
policy and rules in this regard.
The credible and unrebutted testimony of Mr. McCoy
establishes it was he, and not Mr. Johnson, who made the decision
to send Mr. Burton home and not allow him to work upon his late
return to the mine after going home at the conclusion of the
grievance meeting. I conclude and find that Mr. McCoy 0 s decision
in this regard was based on Mr. Johnson 1 s statement to him that
he had not given Mr. Burton permission to go home, and the
respondent's policy of treating tardy work starts where an
employee does not have permission to go to work late as unexcused
absences. I further conclude and find that Mr. Johnson was
simply carrying out Mr. McCoy's instructions when he informed
Mr. Burton that he would not be allowed to go to work and sent
him home.
Mr. Burton conceded that some of the miners who were at the
grievance meeting came to work that day with their work clothes
and other equipment prepared go to work after the meeting ended
(Tr. 72-73). Mr. Burton explained that he did not bring his work
clothes and equipment with him because he was late leaving his
home, had his wife's car, and was late for the meeting (Tr. 8182). These are matters within Mr. Burton's control, and in
hindsight, better planning on his part may have prevented the
situation which resulted in his arriving late for work after
going home and missing the mantrip which Mr. Johnson had arranged
for the other miners who were also late after the grievance
meeting. Under the circumstances, Mr. Burton has no one to blame
but himself for being sent home and not allowed to work that day.
I find that Mr. Burton made a unilateral decision to leave
the mine at the conclusion of the grievance meeting of July 13,
1990. I further find that Mr. Burton did not have the permission
of foreman Johnson or any other management official to leave the

1878

mine to go home and to return later to go to work. Mr. Burton's
contention that Mr. Johnson sent him home and would not allow him
to work because of the prior SCSR incident of July 5, 1990, is
rejected. As noted earlier, the decision to send Mr. Burton home
was made by Mr. McCoy, and it was carried out by Mr. Johnson.
Further, the decision not to allow Mr. Burton to work was based
on his leaving the mine without permission rather than reporting
to work immediately after the grievance meeting ended. By taking
it upon himself to leave without permission, Mr. Burton arrived
back at the mine later than the other miners who had also
attended the meeting but who were on their way to their working
section by the time Mr. Burton returned and got dressed and
presented himself to Mr. Johnson for further instructions.
I find no reasonably supportable credible evidence, either
direct, or circumstantial, to support any conclusion that
Mr. Johnson or Mr. McCoy, individually or collectively, were
motivated by a desire to retaliate against Mr. Burton, or to
harass him for any protected activity on his part when they would
not allow him to go to work when he reported back to the mine
after leaving without permission. To the contrary, I conclude
and find that management's decision to send Mr. Burton home
pursuant to company policy when he left the mine without
permission and returned later to report for work was a reasonable
and plausible management decision incident to its right to
control the work force. As previously noted by the Commission
Bradley v. Belva Coal Company, 4 FMSHRC 982 (June 1982), citing
its Pasula and Chacon decisions, etc., "Our function is not to
pass on the wisdom or fairness or such asserted business
justifications, but rather only to determine whether they are
credible and, if so, whether they would have motivated the
particular operator as claimed".
I further find no credible evidence of any disparate
treatment of Mr. Burton by mine management with respect to its
refusal to allow him to return to work and sending him home when
he arrived back at the mine after leaving without permission.
The available credible evidence establishes to my satisfaction
that Mr. Burton was the only indiv,idual known to Mr. McCoy and
Mr. Johnson who left the mine without permission to go home after
the grievance meeting ended, and their motivation in sending
Mr. Burton home was based on what I believe was a reasonable
belief that this was the case. Even if I were to accept as true
the fact that Mr. Adams and Mr. Rogers also went home after the
grievance meeting, I find no credible evidence to support any
reasonable conclusion that Mr. McCoy and Mr. Johnson knew that
they had gone home, or that Mr. Johnson had given them permission
to leave. Further, as noted earlier, both of these individuals
were ready to return to work timely following the grievance
meeting when Mr. Johnson made arrangements for a special mantrip
to take them to their work places, but Mr. Burton was not.

1879

ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all of the credible testimony and
evidence adduced in this case, I conclude and find that
Mr. Burton has failed to establish a violation of section 105(c)
of the Act. Accordingly, his complain IS DISMISSED, and his
claims for relief ARE DENIED.

~lit~
Administrative Law Judge

Distribution:
Marco M. Rajkovich, Jr.Q Esq.u Wyatt, Tarrant & Combsu Lexington
Financial center, 250 West Main Streetu Lexingtonu KY 40507
(Certified Mail)
Susan Oglebayu Esq., UMWA District #28 0 PoOo Box 28u Castlewood,
VA 24224
(Certified Mail)

/ml

1880

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

DEC 4 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
CHARLES SCOTT HOWARD II,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 91-1352-D
No. 404 Mine

SOUTH EAST COAL COMPANY, INC.,
Respondent
DECISION APPROVING SETI'LEMENT
Before~

Judge Melick

This case is before me upon a Complaint of Discrimination in
which the Secretary has also filed a petition for assessment of
civil penalty under the Federal Mine Safety and Health Act of
1977. The Complainant, Secretary has filed a motion to approve a
settlement agreement and to dismiss the case. A reduction in
penalty from $1,500 to $400 and payment of damages of $327 to the
individual Complainant, Charles Scott Howard, is proposed. I
have considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement is
appropriate.
WHEREFORE, the motion for approval of-,ettlement is GRANTED,
and it is ORDERED that Respondent pay a civ 1 penalty of $400 to
the Secretary of Labor and damages of $327 o Charles Scott
Howard, within 30 days of this order.

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1881

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Distribution:
James W. Craft, Esq., Polly, Craft, Asher & Smallwood, P.O.
Box 786, 104 North Webb Avenue, Whitesburg, KY 41858
(Certified Mail)
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashvil , TN 37215
(Certified Mail)
Tony Oppegard, Esq., Appalachian Research and Defense Fund of
Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508
(Certified Mail)
Mr. Charles Scott Howard, P.O. Box 88, Roxana, KY 40336
(Certified Mail)
/fb

1882

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

OEC

4 1991
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 91-134
A.C. No. 11-00585-03787

v.
Mine No. 10
PEABODY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances~

Before:

Susan J. Bissegger, Esq., Office of the Solie
u.s. Department of Labor, Chicago, I
for
the Petitioner;
David R. Joest, Esq., Midwest Division Counsel,
Peabody Coal Company, Henderson, Kentucky, for the
Respondent.

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner has filed several
motions to approve a settlement agreement the latest at hearings
on November 26, 1991. A reduction in penalty from $1,200 to $600
is proposed. I have considered the representations and
documentation submitted in this case, and r conclude that the
proffered settlement is appr6pri~£i'under the criteria set forth
in Section llO(i) of the Act.
/

A

I,

WHEREFORE, the motion for apfrroval of settlement is GRANTED,
and it is ORDERED that Respondentvfpay\penalty of $600 within
30 days of this order.
!

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Gqry Melitk
\
Administr,tive Law JU.·dge

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1883

"-......_

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

DEC 6 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 91-485
A.C. No. 11-00586-03653

Vo

Murdock Mine
ZEIGLER COAL COMPANY,
Respondent

Docket Nao LAKE 91-498
A.C. No. 11-00612-03555
Spartan Mine
DECISIONS

Appearances~

Rafael Alvarez, Esq., U.So Department of Labor,
Office of the Solicitor, Chicago, Illinois, for
the Petitioner;
Gregory s. Keltner, Esq., Zeigler Coal Company,
Fairview Heights, IL, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These 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), seeking civil penalty assessments for
two alleged violations of certain mandatory safety standards
found in Parts 70 and 75, Title 30, Code of Federal Regulations.
The respondent filed timely answers denying the alleged
violations, and the cases were docketed for hearings on the
merits in st. Louis, Missouri, with two additional cases
concerning these same parties. Those cases were heard on the
merits, but the parties decided to settle the instant cases and
they were afforded an opportunity to present oral arguments on
the record in support of the proposed settlements, and bench
decisions were rendered.
stipulations
The parties stipulated to the following (ALJ-1) :
1.

The Commission has jurisdiction in these
proceedings.

1884

2.

The respondent owns and operates the subject
mines.

3.

The respondent's mines are underground mines
which extract bituminous coal, and the mines
affect interstate commerce.

4.

The respondent extracted 14,918,109 tons of
coal at all of its mines ending on
February 5, 1991.

5.

The respondent extracted 994,759 tons of coal
from the Murdock Mine from February 5, 1990 1
to February 5, 1991.

6.

The respondent had 183 violations in the
preceding 24 months ending on May 30, 1991 1
at the Murdock Mine.

7.

The payment of the full penalty assessment on
each citation will not impair the
respondent's ability to continue in business.

With respect to the respondentijs Spartan Mine, the parties
agreed that the mine produced 1,290,418 tons of coal from May,
1990, to May 1991. MSHA's counsel asserted that the mine had 56
violations during the 24 months preceding the issuance of the
contested citation in Docket No. LAKE 91-498. This history
includes five violations of 30 C.F.R. § 70.lOO(a}, (Tr. 7).
Discussion
Docket No. LAKE 91-485
In this case the respondent was served with a section 104(a)
non-"S&S" Citation No. 3537733, on March 18, 1991, charging an
alleged violation of mandatory safety standard 30 C.F.R.
§ 75.512. The cited condition or p.ractice ·states as follows:
The continuous miner was not being maintained in a safe
operating condition. Under test the emergency stop
(foot) switch failed to de-energize the tramming
circuit.
Petitioner's counsel asserted that upon further
investigation of this matter MSHA has determined that the cited
regulation does not apply to the facts presented and that the
citation was issued in error. Under the circumstances, counsel
moved to vacate the citation and to withdraw MSHA's proposed
civil penalty assessment. The motion was granted from the bench
(Tr. 6-7). My bench decision is herein reaffirmed, and the
citation IS VACATED.

1885

Docket No. LAKE 91-498
In this case the respondent was served with a section 104(a)
5&5 11 Citation No. 9941672, on April 2, 1991, charging an alleged
violation of mandatory health standard 30 C.F.R. § 70.lOO(a).
The cited condition or practice states as follows:
11

The results of five (5) respirable dust samples
collected by the operator as shown by computer message
No. 003-0(036) dated March 20, 1991, indicates the
average concentration of respirable dust in the working
environment of the designated occupation in mechanized
mining unit No. 003-0(036) was 2.3 mg/m3 which exceeded
the applicable limit of 2.0 mg/m3. Management shall
take corrective actions to lower the respirable dust
and then sample each production shift until five (5)
valid samples are taken.
The respondent did not dispute the fact of violation in this
case. The parties agreed to a proposed settlement requiring the
respondent to pay a civil penalty assessment of $75 for the
violation in question. In support of the reduced penalty
assessment the petitioner 1 s counsel asserted that although the
designated occupation which was tested exceeded the legal
respirable dust limit of 2.0 mg/m3 1 mine management has
constantly taken the necessary corrective measures to maintain a
dust-free working environment and that the mine has a traditional
history of compliance with the respirable dust requirements.
Further, counsel asserted that the violation was not the result
of aggravated conduct by ~he respondent, and that the cited
condition was timely abated in good faith (Tr. 8-10).
After careful consideration of the pleadings and arguments
presented in support of the proposed settlement of this case, and
taking into account the six statutory civil penalty criteria
found in section llO(i) of the Act, the proposed settlement
pursuant to Commission Rule 30, 29 C.F.R. §,2700.30, was approved
from the bench (Tr. 11). My decision in this regard is herein
reaffirmed.
ORDER
Docket No. LAKE 91-485. Section l04(a) Citation
No. 3537733, March 18, 1991, 30 C.F.R. § 75.512, IS VACATED. The
petitioner's proposed civil penalty assessment is WITHDRAWN AND
DISMISSED.
Docket No. LAKE 91-498. Section 104(a) Citation
No. 9941672, April 2, 1991, 30 C.F.R. § 70.lOO(a), IS AFFIRMED.
The respondent shall pay a civil penalty assessment of $75 in
satisfaction of the violation. Payment is to be made to MSHA

1886

within thirty (30) days of the date of this decision and order,
and upon receipt of payment, this proceeding is dismissed.

#~e:.~
Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Gregory So Keltner 1 Esq., Zeigler Coal Company,
Fairview Heights, IL 62208 (Certified Mail)
/ml

l.887

50

Jerome Lane,

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

DEC

6 1991

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 91-100
A. c. No. 15-16901-03502

v.

No. 1 Mine
MUSTANG FUELS CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before~

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 {the Act). The parties have filed a motion to
approve a settlement agreement and to dismiss the case. A
reduction in penalty from $450 to.$175 is proposed.
I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that respondent pay a penalty of $175 within
30 days of this order.

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Ms. Donna Johnson, Secretary/Treasurer, Mustang Fuels
Corporation, P. o. Box 134, Barbourville, KY 40906 (Certified
Mail)
dcp

1888

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

DEC
KERR-MCGEE COAL CORPORATION,
Contestant

9 1991
CONTEST PROCEEDINGS
Docket No. WEST 91-84-R
Citation No. 3242337: 10/25/90

v.
Docket No. WEST 91-85-R
Order Noa 3242340: 10/25/90

SFCRETARY OF LABOR,
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION,
Respondent

Jacobs Ranch

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 91-220
A.C. No. 48-00997-03513

v.

Jacobs Ranch

KERR-MCGEE COAL CORPORATION,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Respondent/Petitioner;
Charles w. Newcom, Esq., SHERMAN & HOWARD, Denver,
Colorado, for Contestant/Respondent.

Before:

Judge Lasher

These three consolidated contest/civil penalty proceedings
came on for hearing in Denver, Colorado, on July 23, 1991. KerrMcGee Corporation (herein 11 K-M 11 } in two contests challenges Citation No. 3242337 issued on October 25, 1990, by MSHA Inspector
Jimmie Giles 1 charging a violation of 30 c.F.R. § 40.4 and

1 The Citation, issued pursuant to Section 104(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et
seq. (herein "the Act 11 ) , describes the alleged violation in these
terms:
"The operator has failed to post a list of the representatives of the miners on the mine bulletin board." The Citation,
which was served on Ron Crispin, Manager of K-M's Jacobs Ranch
Mine, did not designate the infraction as "significant and
substantial."

1889

§ 104(b) "failure to abate" Withdrawal Order No. 3242340 2 issued
approximately 10 to 20 minutes after the Citation was issued.
The Secretary of Labor (herein "MSHA 11 ) in the related penalty
proceeding captioned seeks assessment of a penalty for the violation alleged in the citation.

Contentions of the Parties
The general issues are whether K-M violated 30 C.F.R. Part
40.4 and§ 103(f} of the Act by failing to post the designation
of representative of miners {in the record three times as Exhibits K-1, M-1, and A-1 to the stipulation) and, if so, the appropriate amount of penalty for such violation"
As MSHA points outr there is no question that K-M did not
post the "designation" and that it refused to abate the allegedly violative practice by posting it after being requested to do
so by MSHA--which resulted in MSHAus issuance of a n
ilure to
abate" withdrawal order"
The issue then is whether the def ens es
asserted by K-M r
ieve it from posting the designation and excuse the failure to abate.
K-M states the issues as:
1"
Can a union r or an employee of that union v uv representue
miners at a mine when the union does not represent the minevs
employees pursuant to the provisions of the Labor Management
Relations Act ("LMRA 11 )?

2.
Does MSHA's application to 30 C.F.R. Part 40 create an
unnecessary and improper conflict between MSHA's regulations and
the LMRA?
3.
Under Utah Power & Light Co. v. Secretary of Labor, 897
F.2d 447, 452 (10th Cir. 1990) is it an "abuse" for a union,
which does not represent employees at a mine pursuant to the
provisions

2 This "no area affected" Order, which did not close or
shut down any area of the mine or equipment, alleged "The operator has made no effort to post a list of the miners 1 representatives on the mine bulletin board, and refuses to do so."
In its
Notice of Contest, K-M contends that "No viola ti on can be found
because the designation of the United Mine Workers of America as
a representative of miners under 30 C.F.R. part 40 for Jacobs
Ranch Mine miners is improper."

1890

of LMRA to seek to become a 11 representative of miners" under 3 O
C.F.R. Part 40 to facilitate organizing efforts at the mine?
4.
If a union's use of 30 C.F.R. Part 40 would require a mine
operator to waive its rights under the LMRA, is such a use of Part
40 an "abuse?"
K-M's contentions then are:
1. Properly interpreted, 30 C.F.R. Part 40 requires that
before a labor union, or an employee of a union, can "represent"
miners and thus be a "Representative of Miners," under the Act the
union must be certified as a representative under the LMRA (To
33-34); 3
2. MSHA 0 s application of 30 C.F.R. Part 40 to K-M unnecessarily and impermissibly conflicts with the LMRA (To 43q 44);
3. The designation in this matter is for union organization
purposes and is thus an abuse of Mine Act regulations as applied to
K-M, and under Utah Power & Light, supra, K-M can take action
against the abuse (see T.37);
In this connectionQ KM alleges that 11 Both the UMWA" s at~
tempt to gain under Mine Act regulations what i t cannot acquire
under the LMRA (access to mine property and various mine recordsu
and a role in mine business as it relates to health and safety 000)
and MSHA's proposed application of Part 40 at K-M which aids the
UMWA in this organizing endeavor are an abuse."
4. K-M, in this litigation, does not raise the issue of
technical defects in the designation of miners (Te 49).
30 C.F.R. Part 40, headed "Representative of Miners" consists of
five sections which appear below.

3

K-M's Jacobs Ranch Mine employees have never been represented for collective bargaining purposes by UMWA or any other
union.
CT. 75).

1891

The Regulation
§

40.l

Definitions.

As used in this Part 40:
(a) "Act" means the Federal Mine Safety and
Health Act of 1977.
(b) "Representative of miners" means:
(1) Any person or organization which represents two or more miners at a coal or other mine
for the purposes of the Actu and
( 2) "Representatives authorized by minersu• v
miners or their representative" u 11 authorized
miner representative" u and other similar terms
as they appear in the Act.
11

§

40.2

Requirements.

(a) A representative of miners shall file with
the Mine Safety and Health Administration District
Manager for the district in which the mine is located the information required by § 40.3 of this
part.
Concurrently, a copy of this information
shall be provided to the operator of the mine by
the representative of miners.
Cb) Miners or their representative organization
may appoint or designate different persons to represet them under various sections of the act relating to representatives of miners.
(c) All information filed pursuant to this part
shall be maintained by the approp:r:iate Mine Safety
and Health Administration-District Office and shall
be made available for public inspection.

(Approved by the Off ice of Management and Budget
under control number 12190042)
(Pub. L. No. 96-511, 94 Stat. 2812 (44 U.S.C. 3501
et seq.))
[43 FR 29509, July 7, 1978, as amended at 47 FR
14696, Apr. 6, 1982]

1892

§ 40.3

Filing procedures.

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

1893

§ 40.4

Posting at mine.

A copy of the information provided the operator
pursuant to § 40.3 of this part shall be posted
upon receipt by the operator on the mine bulletin
board and maintained in a current status.
§ 40.5

Termination of designation as representative of miners.

(a) A rep:cesenta tive
miners who becomes unable
to comply with the requirements of this part shall
file a statement with the appropriate District Manager terminating his o.r her designationo
(b) The Mine Safety and Health Administration
shall terminate and ra~ove from its files all designations of representatives of miners which have
terminated pursuant to paragraph (a) of this section
or which are not in compliance with the requirements
of this parto The Mine Safety and Health Administration shall notify the operator of such terminationo
FINDINGS
A.

Stipulated Facts (Ex. M-7)

1. Kerr-McGee is the owner and opera tor of the Jacobs Ranch
Mine, located in Campbell County, Wyoming.
T.lere are no issues
of jurisdiction in this matter.
2. On or about July 24 and 25, 1990, seven miners enployed
at the Jacobs Ranch Mine signed Exhibit A to the Stipulation
which may be introduced into evidence in this case.
3. Exhibit A 4 lists the UMW a·s the miners' representative
and lists UMW representatives to represent miners at the Jacobs
Ranch Mine.

The stipulation refers to Exhibits "A", "B", and 11 cn,
which are described in the stipulation and are contained in the
Exhibits file as part of the record.
4

1894

4. Employees at the Jacobs Ranch Mine have never been
unionized by the UMW or any other union.
5. One of the UMW representatives, Dallas Wolf, resides in
Gillette, Wyoming, and is International ~eller/Organizer for the
UMW, who is living in Gillette for the purpose of unionizing the
coal miners in the Powder River Basin, including the miners at
the Jacobs Ranch Mine.
6.
~he second listed UMW representative, Bob Butero,
resides in Trinidad, Colorado, and is an international representative of the UMW"
7" After Exhibit A was signed by the seven employees listed
thereon, it was mailed by Dallas Wolf to the District Managerv
Coal Mine Safety and Health, District 9 in Denverv Coloradoo
8
Exhibit A was received by the Coal District 9 off ice and
returned to Mr. Wolf for further information
The additional information was provided and received by the Coal District 9 office
on or about August 30, 1990.
o

o

9. On or about September 6u 1990 the Coal District Manag~
erv District 9u mailed a letter to Mr" Wolf u acknowledging receipt of Exhibit A.
10. The letter to Dallas Wolf from William Holgate, dated
September 6, 1990, acknowledging receipt of Exhibit A is attached
as Exhibit B and may be admitted into evidence in this case.
11. Dallas Wolf mailed Exhibit A to K-M Jacobs Ranch Mine,
on or about August 30, 1990.
12. Exhibit A was received by the Jacobs Ranch Mine and
discussed by K-M management at the mine and at the office in
Oklahoma City, Oklahoma. It was determined by management that
the designation would not be posted at the time, or in any other
location because of the view of'K::..M, which MSHA disagrees with,
that Exhibit A is not proper under 30 C.F.R. 40.
13. On or about October 25, 1990, MSHA received a 103(g)
complaint regarding the Jacobs Ranch Mine.
The complaint alleged
that Exhibit A had not been posted at the mine as required by 30
C. F. R. 4 0. 4.
14. Upon receipt of the complaint, Coal Mine Inspector
Jimmie Giles proceeded to the Jacobs Ranch Mine and presented a
copy of the complaint to mine management, including Ron Crispin.

1895

15. Mr. Crispin informed Mr. Giles that Exhibit A had not
been posted. During the visit by Inspector Giles, Mr. Crispin
read a statement of position to Mr. Giles.
The statement of position is attached hereto as Exhibit C and may be introduced into
evidence in this case.
16. Thereupon, Inspector Giles issued a 104Ca} citation to
the Jacobs Ranch Mine for a violation of 30 C.F.R. 40.4, Citation
No. 3242337.
17. Inspector Giles informed the mine operator 1 through
Mr. Crispin, that they would have approximately 15 minutes to
abate the Citation by posting Exhibit A.
18. Mr. Crispin conferred with the Oklahoma City office and
determined that the opera tor would not post Exhibit A.
19. After about 20 minutes, Exhibit A had not been posted
and Inspector Giles had been notified that the mine would not
post it.
Inspector Giles the issued Order No. 3242340, a 104{b)
order for failing to abate a citation.
20. Mr. Giles then left the mine and returned to his office
in Sheridanv Wyomingo
21. As a result of the citation and order, K-M management
representatives traveled to McAlester, Oklahoma, for a conference
with MSHA sub-district manager, Joseph Pavlovich. No change was
made in the citation or order as a result of the conference.
22. On or about November 16, 1990, K-M filed a timely notice
of contest with regard to the citation and order issued in this
matter.
Thereupon, the Secretary of Labor filed a timely
response.
B.

Findings in Connection with Stipulation

Exhibit M-1 (Ex. A to the Stipulation entered into by the
parties) consists of a total of nine pages and

a.

designates Bob Butera, International Safety Representative and Dallas Wolf, International Teller, 5 of UMWA as

5

Exhibit K-36, page 11.

1896

"representatives" and seven employees as "alternate representatives" to serve as representatives of the miners
under the Federal Mine Safety and Health Act of 1977,
"for all purposes" (T. 32),
b.

was "submitted as requiredn by 30 C.F.R. 40.3, and

c.

prior to the submission of Exhibit M-1, there had been
no prior designations, i.e., no miners' representatives
under the Mine Act at the subject mine (T. 26-28, 54,
151) .

Exhibit C to the Stipulation, Respondentgs written statement
of position objecting to the designation referred to in paragraph
14 of the Stipulation which was read to the MSHA inspector who
issued the Citation, provides as follows~
Kerr-McGee does not believe it can lawfully be required to accept the designation of a non-~~ployee
walk-around representative at the Jacobs Ranch Mine
or to recognize any other action by a non-employee.
MSHA Inspectors are entitled to~ and encouraged tov
talk to Jacobs Ranch employees as a part of all inspections"
Inspections should proceed on that basis
without outside interferenceo 6
C.

General Findings

The subject coal mine is located in the Powder River Basin
of Wyoming. The UMWA, since the summer of 1990, has been actively seeking to unionize the subject mine as well as other mines in
the Powder River Basin. Dallas Wolf is an international representative of the UMWA who moved to Gillette, Wyoming, in April
1990, to engage in union organizing activities. The UMWA held

6
I find it significant that this was the reason K-M gave
at the time for its refusal to post the designation and that on
its face, the basis so asserted directly contradicts the fundamental holding of the landmark case, ~tah Power & Light Co.,
supra, that non-employee persons and organizations can serve as
miners' representatives for walk-around purposes. '!he emphasis
here is on opposition to 11 non-employee walk-around" representatives and "outside interference." Nothing is said about "abuse,"
even assuming arguendo that at this juncture recognizable abuse
was a viable legal concept.

1897

several meetings in Gillette which were attended by Jacobs Ranch
miners, which meetings were organized by Mr. Wolf.
In July 1990,
the UMWA sponsored several days of safety training, presented by
Robert D. Butero, International Health and Safety representative
residing in Trinidad, Colorado.
Issues discussed during the
safety training included safety and walk-around rights of miners.
At the end of the safety training sessions, July 24 and 25, 1990,
seven Jacobs Ranch miners signed the designation (Ex. M-1).
Mr. Wolf played a key role in the preparation, circulation, and
filing of the designation.
The use of 30 C.F. 'R. Part 40 and the
designation of miners' representatives was part of UMWA's organizing strategy and was an organizing "tool." 7
After the designation was signed, it was sent to MSHA and
was received on August 18, 1990. Concurrentlyu Mr. Wolf mailed a
copy to the mine.
Subsequently the designation was corrected by additional
information and completed forms were sent to and received by MSH..~
and K-M.
(Bxs. M-3 and M-4).
Upon receipt of the designation, KM by general managB~ent
decision determined not to post it even though it was familiar
with the UP&L decision granting walk-around rights to non-employees (T. 147). K-M's determination not to post was made several
months prior to the appearance of. MSHA Inspector Jimmie Giles at
the mine when the Citation and Order were issued. K-M made no
protest of the designation during this period and the testimony
of its Manager of Administration, Ronnie D. Crispin, in this and
related connections has considerable significance in this matter:

Q.

Okay.
In between the time you decided not to post
and the time Mr. Giles wrote his citation, did you
send any letters to MSF.A explaining why you didn't
want to post that designation form?

A.

No, we did not.

*

*

* * *

7
In this record K-M at best showed UMWA. used Part 40 as a
"tool" to create employee interest and to enhance its standing.
Beyond that K-M's fear as to UMWA.'s future action was
speculative.

1898

Q.

Mr. Crispin, is it your understanding that this
designation, Exhibit M-1, is somehow abusive or
something that was abused by the union? Is that
your understanding of M-1?

* * * * *
A.

Personally, I feel, yes, it's an abuse of intent
in that.

Q.

(My Ms. Miller) Will you explain why you think
that with regard to this document.

A.

Because it designates United Mine Workers as a
Representative.

Q.

What 1 s abusive about that?

A.

Because, obviouslyp they do not represent our
employees.

Q.

In the collective bargaining sense, they don't
represent your employees?

A.

That 1 s correct.

Q.

Is there anything else that you see that's abusive
about that document, anything else, or is that the--

A.

That's the issue. 8

CT. 148-149)

On or about October 25, 1990, MSHA received a Section 103Cg)
complaint stating that the Jacobs Ranch Mine had not posted the
designation of representative form as required by Part 40 regulations.
Inspector Giles then traveled to the mine on that day and
presented the complaint to mine management, i.e., Ron Crispin.
Mr. Crispin informed the inspector that, indeed, the designation
had not been posted and that it would not be posted. Crispin
told Inspector Giles that the two miners designated as walk-

8
In terms of K-M's intent and purpose in refusing to post
the designation, this testimony coincides with the written-out
reason given to Inspector Giles when the Citation and Order were
issued.

1899

a round representatives were union members and were not employed
at the Jacobs Ranch Mine.
Mr. Crispin further indicated that the
mine had not received a notification from MSHA that the designation was a valid one.
Inspector Giles then called his supervisor
and the Denver District Off ice to determine the status of the
designation form.
Giles learned that MSHA did not notify K-M
regarding a designation but that the representative of miners
provided a copy to the operator, as noted on the form.
He then
issued the 104(a) citation and, as shown in the stipulation,
i
armed K-M that he would allow them 15 minutes to post the
designation, and abate the decision. Mr. Giles herea£ter was
informed that the designation would not be posted and he then
issued the 104(b) order for a failure to abateo

On January 2, 1991, MSHA District Manageru William Holgateu
had a letter hand-delivered to K-M.
The letter informed K-M of
his intention to request that the asessment office begin a daily
penalty if the citation was not immediately abatedo
K-M was
given 24 hours to abate and it did so at that time.
Normally, the procedure for an inspection is for the inspector to be accompanied by a representative of the operator and
a representative of the minerso Upon arrival at the minef the
MSHA inspector will contact the operator to let him know that he
is at the mine and ask if there is a designated representative of
the miners available.
If so, the inspector will contact that
representative; if not, he may ask the miners present if they
would like to select someone to accompany the inspector.
CTr.
166). The inspector is supposed to control the inspection and if
the representative of the operator or the representative of the
miner who is accompanying the inspector does something inappropriate the inspector should interrupt the inspection and explain
that the representative is to only accompany the inspector and
assist him in the inspection.
CT. 167). The inspector would
stop a representative from engaging in any union organizing activity and if it persists would prohibit that representative from
participating in the inspection. . ( T. 168) ~
Based on many years of experience, MSHA subdistrict manager
Joe Pavlovich testified to the practical aspects of a walk-around
representative's duties:

A.

Basically, what the person does is just travel
with an inspector and assist him most of the
time. What we end up finding is, we probably
train the people in health and safety regulations, as much as anything, through their accompaniment and asking questions and showing
them what the correct interpretations of the
regulations are and the conditions that we find.
CT. 168-169).

1900

Q.

Is there a time when someone who is not employed at the mine might be valuable to the
inspector.

A.

Well, we have had people involved in accident
investigations who would not be familiar with
the mine, but they are valuable to the inspection work force at the time, usually in their
knowledge of accidents or accident types or
assistance in mine rescue or whatever we're involved in at the time.
CT. 169).

During the course of the inspection, the walk-around representative will have access to certain training records.
(See
for example, Exhibit M-17).
In spite of testimony to the contrary by Mro Crispin, that is the only non-public record that is
kept by the mine that the inspector and the representative might
view.
The other documents that would be accessible to a minersu
representative are accessible to the general public, and the
miners' representative thus does not see anything that he could
not otherwise see or review.
(T. 171-173).
DISCUSSION AND ADDITIONAL FINDINGS
The position of MSHA is found meritorious and is adopted.
Examinaton of the pertinent provision of the Act and the
regulations disclose no restrictions or qualifcations on "persons" or "organizations" in their inherent right to serve as representatives of miners. Specifically, there is no requirement of
prior certification by the National Labor Relations Board {see T.
34) nor any intimation of such to be found.
'I'he term "representative of miners" includes any individual or organization that
represents any group of miners at a given mine and does not require that the representative be ..a recogrii zed representative
under other labor laws.
(See Legislative History Conference
Report excerpt, Ex. M-6).
The language of the regulation is
express. It is concluded that UMWA was at material times an
11
organization" within the meaning of 30 C.F.R. 40.l(b}(l) and was
not barred from representing miners as authorized by MSHA's regulations. The interpretations of MSHA to this effect have been
consistent. Likewise precedent has been consistent, including
the Utah Power & Light decision mentioned previously.

1901

In Secretary of Labor v. Benjamin Coal Company, 9 FMSHRC 17,
51-52 (January 1987), Judge George Koutras stated" ••• it seems
clear to me that in addressing the very concerns raised by the
respondent [Benjamin Coal] with respect to the application of the
collective bargaining provision of the National Labor Relations
Act with respect to the definition of the term "representative,"
the Secretary, in promulgating Part 4 0 clearly distinguished the
NL'RB law and the Mine Act purposes and rejected any notion that a
representative of miners can only be based on any 'majority
rule.'
• . • I conclude • . • that the fact that the UMWA. may not
represent the respondent's miners for puposes of NLRB or NLRA
collective bargaining purposes does not foreclose its representation of the miners who designated it to act as their representative in the exercise of their rights under the Mine Act o 11
I find merit in MSHA 8 s position that there is no conflict
between the Mine Safety and Health Act and the Labor Management
Relations Act in their application here. Although K-M uses the
term "representative" in discussing both Acts, the term does not
have the same meaning in both Acts. Under the LMRAP a representative is elected by a majority of the workersu pursuant to LMRA
regulations.
The purpose of the representative is to present the
needs of the employees to the employer, concel:'ning terms and conditions of employmento Pursuant to the LMRA nRepresentatives
designated or selected for the purposes of collective ba.rgaining
by the majority of the employees in a unit appropriate for such
purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, or other
conditions of employment .•• " 29 u.s.c. § 159(a). The representation, under the Labor Management Relations Act, is pervasive;
it covers virtually all aspects of the labor-management relationship, and for a long term.
The requirements of the LMRA that
both sides are obliged to meet are extensive, and have been the
subject of a long legal history. By contrast, under the Mine
Safety and Health Act, a representative can be chosen by only two
or more miners, pursuant to regulation, solely for the purpose of
accompanying the mine inspector dur_ing his' inspection. 9

9
MSHA seeks a representative of miners at each mine for
the purpose of assisting the mine inspector and accompanying the
inspector to point out any problems tha miners may have noticed.
The representative remains with the inspector during the investigation and his only allowed activity is that of advising and observing the mine inspector.
Should the representative engage in
any other activity, he will be asked to leave and another representative will join the inspector. In MSHA terms, this person is
a "walk-around representative."

1902

"Representative of Miners" is defined at 30 C.F.R. § 40.l(b) as
"Any person or organization which represents two or more miners
at a coal or other mine for the purposes of the Act."
MSHA has determined that any person qualified to be on a
mine site may act as miner's representative.
~1e representative
need not be an enployee of the mine, nor a member, or nonm~~ber,
of any labor or other organi za ti on. Because the Secretary is
charged with administering the Mine Act, a remedial statute, the
Secretary's construction of the Act "is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act.
In order to sustain construction by the
agency that administers the statute, a Court need only find that
the agency's interpretation is reasonable. Unemployment Compensation Corrun'n v. Aragon, 328 U.S. 143, 154-154 (1946).
The Court
"need not find that [the administering agency 1 s] construction is
the only reasonable one, or even that it is the result [the
court] would have reached had the question arisen in the first
instance in judicial proceeding." Id. at 153. Accord: Udall Va
Tallman, 380 U.S. 1, 16 (1965); Chevron U.S.A., Inc. v. NRDC,
Inc., 467 U.S. 837, 843 (1984). As the Tenth Circuit states in a
case dealing with the Secretary's interpretation of the similar
Occupational Safety and Health Actg
tt[The] interpretation given a statute by the administrative
agency charged with carrying out the mandate of the statute of
the statute should be given great weight.
Indeed, the interpretation given a statute by the administrative agency charged with
its enforcement should be accepted by the courts, if such interpretation be a reasonable one. .~nd this is true even though
there may be another interpretation of the statute which is itself equally reasonable." Brennan v. OSHRC, 513 F.2d 553, 554
(10th Cir. 1975).
In this regard, the Mine Act Senate committee report states:
"Since the Secretary of Labor is charged with responsibil ty for
implementing this Act, it is the in ten ti op of the Cammi ttee,
consistent with generally accepted precedent, that the Secretary's interpretation of the law and regulations shall be given
weight by both the Commission and thecourts. s. Rep. No. 95-181,
95th Cono, 1st Sess. 49 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th Cong., 2d Sess.
Legislative History of the Federal Mine Safety and Health Act of
1977 at 637 (1978).
The Secretary's interpretation of the statute and regulation
is actually supported by the Tenth Circuit's decision in Utah
Power & Light Company v. Secretary of Labor, supra. In that

1903

case, miners at the Deer Creek Mine in Utah designated as a representative of miners for walk-around purposes a member of the
United Mine workers who was not employed at the Deer Creek Mine.
Although the Deer Creek Mine also recognized the UMW as a representative for collective purposes pursuant to the LMRA, the Court
focused on the meaning of "representative" as used in the Mine
Act in determining that "the Act clearly spells out the purpose
of a miners' representa ti:ve·• s participation in an inspection."
That participation is solely to aid the inspector in this investigation.
The Court did not compare a walk-around represen tative to a collective bargaining representative for purposes of
i::.he LMRA.
The statements made by the Court with regard to the
meaning of "representative" were in the context of addressing the
issue raised by the mine operator, that if non-e..11ployees of the
mine were allowed to act as walk-around representativesv it may
open the door for unions to participate at mines not represented
by a labor organization.
The Court found no merit in the operatorv s contention that would cause it to limit walk-around rightso
Instead, the Court determined that the Mine Act and the regulations place no limits on who may be chosen as a walk-around representative and hence it is logical to inf er that the "no limitation" aspect of the designation extends to members of labor and
other organizationso
The Court noted that the Secretaryus position was amply supported by the history of the Mine Actv and that
the Secretary 1 s interpretation of the Act was uureasonable and
supportable."
(See T. 174).
The Court, in passing, merely noted the argument of the mine
operator regarding possible abuse, and dismissed the argwnent
with the one sentence that K-M relies on here.
That sentence,
when read in the context of the decision, does not give K-M the
right to ignore the posting requirements and to ignore an order
issued by MSHA.
The Court stated:
UPL's argument ignores the fact that, as with a
federal inspector, the Act clearly spells out the
purpose of a miners' representative's participation in an inspection.
S..ection 103 Cf) provides
that an authorized miner's representative shall
have the opportunity to accompany a federal inspector during the inspection of a mine "for the
purpose of aiding such inspection." While we recognize UPL's concern that walk-around rights may be
abused by non-employee respresentatives, the _E2tential for abuse does not require a construction
of the Act that would exclude non-e..11ployee representatives from exercising walk-around rights altogether.
The solution is for the operator to take

1904

action against individual instances of abuse when
it is discovered.
(Emphas.is added.)
'K-M has shown no individual instance of abuse in this case.
Nor has it shown, beyond speculation, that UMWA's organizing
strategy, or for that matter the purposes of any of those signatory to the designation, contemplated misuse of Part 40 rights by
ther "outside" or fifth-column type infiltration of working
areas to enlist menbers, distribute literature, purloin confidential K-M records, etc., under the facade of Mine Act walk-around
participation.
I am unable to conclude, absent clearer basis and
authority to do so, that the exercise of important safety rights
granted under one Act of Congress can per .se be abusive because
such exercise is either controlled or influenced to some degree
by an organization engaged in union organizing the rules for
which are set forth by an agency created by another Act of Congress.
One would reasonably expect that both parties 1 having
various rights under various laws and regulationsf would exercise
them.
The exercise of rights under the Mine Act by certain K-M
employees to desgna te UMWA as their "representative of miners 19 is
found not to be an 11 abuse 11 even though UM~'A has not been cert
fied as collective bargaining representative for K-Mis employees
or appropriate units of then.
CONCLUSIONS
1. The exercise of a right given under one law, the Mine
Safety and Heal th Act, as part of a labor organization 1 s program
to organize miners under another labor law, is not per .se an
11
abuse."
If, in exercising the right, 11 in di vi dual instances"
occur where a union engages in improper conduct, then the question of specific abuse arises and must be determined on a case by
case basis.
·
2. In the process of designation of- miners' representatives
under the Act the subjective intent of the union, organization,
or person does not determine whether there is an abuse. The
right to designate miners' representatives exists under the Act
independent of whether union organizing is ongoing (and is an
ulterior motive), and "abuse" thereof must be something beyond
the exercise of the right.
3. Conversely, depriving a union, other organization, or
person of their full rights under the Mine Act to designate a
representative under the Act by failing to post the designation,
while being part of a mine operator's own opposition to organizing efforts can at the same time be a violation of the Act.

1905

In conclusion, no merit is found to the defenses and contentions raised by K-M which have been specified previously herein
and analyzed.
~he fact that it refused to post the designation
is admitted.
Accordingly, the violation as charged in the
Citation and Order is found to have occurred.
ssessment of
K-M is a large mine operator {265-270 employees in 1990);
(T. 135) with a history of eight prior violations during the
pertinent two-year period preceding the instant violation.
(Ex.

M-5) o

The violation is found to have occurred as a result of a
well-deliberated decision by K-M to challenge the validity of the
regulation requiring posting of the miners 1 designation of representatives made in the background of its resistance to the UMWA
organizing campaign.
In gauging culpabilityv whether negligence
or deliberate action, the reason originally assigned by K-M for
refusing to post the designation appears to rest on thin legal
ground, and the failure to post did deprive miners of rights
guaranteed in the Act and irnplamenting regulations.
The infraction was of a moderate degree of seriousness since
it deprived the miners of their rights (T. 55) including their
right to know who th r representatives were and the scope of
their authority so that safety concerns could be communicated to
then in advance of inspection. 10
Finally, it does not appear that K-M, upon notification of
the violation, proceeded to promptly abate the same.
In mitigation, it is noted that K-M established that it has
a favorable safety record.
Upon consideration of the foregoing, a penalty of $300 is
found appropriate for this violation and such is here
ASSESSED.

10
As the Tenth Circuit Court stated in Utah Power & Light
Co., supra, " ••. knowledge on the part of the miners of the
identity, whereabouts, and scope of responsibility of their
representatives promotes the purposes of the Act."
(See T.
53-54).

1906

ORDER
1. Contestant K-M's Notices of Contest in the two Contest
Proceedings are DENIED: Citation No. 3242337 and Withdrawal
Order No. 3242340 are AFFIRMED; the two Contest proceedings
a re DISMISSED.
2.
Respondent K-M shall, within 30 days from the date of
this decision, pay to the Secretary of Labor the sum of $300 as
and for the civil penalty above assessed .

.if:u~-/d ~~&< cft·~
Michael Ao Lasher u Jr o
Administrative Law Judge

Distribution:
Charles W. Newcom, Esq., SHERMAN & HOWARD, 633 17th Streetu Suite
3000, Denver, CO 80202
(Certified Mail)
Curtis B. Hendricks, Esq., KERR-MCGEE Corp., P.O. Box 25861,
Oklahoma City, OK 83125 (Certified Mail>
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294
(Certified Mail)
Robert D. Butero, UMWA, 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

ek

1907

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

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

22041

DEC 12 1991
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 91-41-M
A. C. No. 11-00040-05507

v.
Aurora Quarry Mine
CONCO-WESTERN STONE COMPANY,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 91-52-M
A. C. No. 11-00040-05508-A
Aurora Quarry Mine

ROSS CAMPBELL, EMPLOYED BY
CONCO-WESTERN STONE COMPANY,
Respondent

DECISION
Appearances:

Before:

Miguel J. Carmona, Esq., Office of the Solicitor,
U. S. Department of Labor, Chicago, Illinois, for
the Secretary;
Joseph c. Loran, Esq., Murphy, Hupp, Foote, Mielke
and Kinnally, Aurora, Illinois, for the
Respondents.
·

Judge Maurer

These consolidated cases are before me upon the petitions
for civil penalties filed by the Secretary pursuant to
sections llO(a) and llO(c), respectively, of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., the
"Act'', seeking civil penalty assessments for alleged violations
of certain mandatory safety standards found in Part 56, Title 30,
Code of Federal Regulations.
The issues presented herein are whether the respondents
have violated the standards as alleged in the petition for
assessment of civil penalties, whether the violations were
"significant and substantial," and the appropriate civil
penalties that should be assessed based on the civil penalty
criteria found in section llO(i} of the Act.
An additional issue
in the section llO(c) case is whether Ross Campbell, as the agent

1908

of the corporate mine operator, knowingly authorized, ordered or
carried out the cited violations of the mandatory safety
standards alleged in the petition for civil penalty.
These issues were tried before me on June 28, 1991, in
Aurora, Illinois, and all parties have filed posthearing briefs
which I have duly considered in making the following decision.
Citation/Order No. 3259899 was issued by MSHA Inspector
Arthur J. Toscano on February 6, 1990, and alleges violations of
30 C.F.R. § 56.14100(c), 30 C.F.R. § 56.1410l(a) (1), and
30 C.F.R. § 56.1410l(a) (2).
From February 5 through February 7, 1990, Inspector Toscano
had conducted an inspection of Conca-Western Stone Company 1 s
Aurora Quarry.
On February 6, he encountered a 11 beat-up" green
Ford pick-up truck parked on a ramp in front of the main garage
and repair building at the quarry site. He observed that the
parking brake was permanently wired up in the off position, the
doors did not close or latch, the seat of the truck was bare coil
springs with only a piece of rubber covering over it, and there
was a large hole in the floor of the truck where the floor pan
area had rusted through.
The truck also had no muffler.
The
exhaust pipe ended at the hole in the floor.
The inspector next
attempted to conduct a service brake check. When he pushed on
the brake pedal, it went right to the floor.
When he attempted
to pump it up by pushing on the pedal two or three more times, it
came up a little bit.
At this time the radiator was also out of the truck.
My
impression is that this truck was probably taken out of service
de facto on an economic basis with or without the inspector's
action, but the fact remains that it wasn't tagged out of service
or placed in a designated area posted for that purpose prior to
the inspection.
Furthermore, Foreman Randy Brey, standing in for
the Superintendent, Ross Campbell, who was on vacation, told the
inspector that when and/or if a replacement radiator was
purchased, the truck would be xet,urned to service.
Brey further
informed him that the truck had been used in the condition the
inspector found it in until the radiator was removed.
In fact,
the truck had been used up until the day before the inspection in
all likelihood.
Respondents, however, admit only that the parking brake was
inoperative.
They contest the existence of the violation with
respect to the service brakes and also deny that the truck's
"defects" made its continued operation hazardous to persons in
the area and further deny the degree of negligence alleged and
the inspector's finding of a "significant and substantial"
violation.
They affirmatively assert that the vehicle had been
taken out of service prior to the inspection.

1909

Respondents also argue that the inspector failed to follow
his own regulations for testing the service brakes. He declined
to do so because he claims it wouldn't have been safe to move the
truck, let alone perform a 15-20 m.p.h. brake test on it. I
cannot find any fault with the inspector's reasoning here,
especially since he could visually observe that the front service
brake system was disconnected and totally inoperable. The truck
was designed with a four wheel braking system and he determined
that it would be hazardous to operate the truck without service
brakes on all four wheels.
I concur.
Randy Brey also testified. On the day of the inspection, he
was "acting like a foreman" because Ross Campbell was on
vacation. He states that it was Ross Campbell, the
superintendent, who was responsible at the quarry site for the
safety and health of the miners.
Brey is very familiar with the truck in question. It has
been in service at the quarry for the 17 and 1/2 years that he
has worked there.
It was used as a maintenance vehicle and
carried tools, parts, welding equipment, etc.
It was driven for
short distances mostly, generally no more than a half-mile at a
time and never off the site.
This witness was aware of and corroborated the inspector 1 s
testimony concerning the generally poor condition of the truck;
i.e., the doors that wouldn't close, the hole in the floorboard,
loud engine exhaust into the truck, and "bad" brakes. However,
he insisted that he was not aware that it had 11 no 11 brakes, he
had only heard that it had "bad" brakes. This he learned from
the men that drove it every day, since he had not driven it in
6 months or so at the time of the inspection.
Inspector George Lalumondiere testified that after
Citation/Order No. 3259899 was written, he was assigned to do a
special investigation into a possible "knowing violation" (a
section llO(c) investigation). Based on the information he
gathered from the quarry employees qJ1.d from 'Ross Campbell
himself, he felt that although Campbell denied having actual
knowledge of it, had he (Campbell) used prudent care, he had
every reason to know of the condition of the truck because he was
the superintendent and the person responsible for the safety and
health of the employees, and he saw the truck daily in operation
around the mine site.
A sampling of some of these witness statements taken from
miners during the section llO(c) investigation provide a basis
for his opinion. John Raue relates that the truck was in
terrible shape; no brakes, no windows in the doors or back of the
truck, doors that wouldn't stay shut and floorboards that were
rusted completely out of the truck (Petitioner's Exhibit No. 2).
Mike Mertens related that the truck had no brakes, no

1910

floorboards, doors that wouldn't stay closed, worn out ball
joints and tie rod ends and was just in terrible shape. When he
complained to Ross Campbell about it, Campbell told him it was
better than walking (Petitioner's Exhibit.No. 5).
Campbell himself admits that the exhaust system was bad,
there was a hole in the floor, the door wouldn't latch, and the
parking brake was not working. He also admits that all of these
things should have been fixed. He does, however, dispute that he
was aware of any problem with the truck's service brakes. As far
as he was concerned, they worked.
After the inspection and citation of February 6, 1990, the
truck was discarded.
It was never repaired or used again after
that.
Basically, with the exception of the disagreement over the
status of the service brakes, the evidence is unrefuted and
really undisputed that the truck had myriad other safety-related
discrepancies.
It looked like the inspector, Brey and the other
miners, including even Superintendent Campbell say it looked.
With regard to the service brakes, my impression is that they
were probably marginally operative; but only by pumping the brake
pedal and then since only the rear set of brakes was even
connected, they were most likely not effective in stopping the
vehicle once it had any momentum. It is also my impression that
but for the radiator being out of the vehicle, they would have
been using it in just the condition it was in on the day of the
inspection. I therefore find and conclude that the truck had not
been taken out of service, except for the absence of the radiator
necessarily shutting it down for the time being. The truck was
not marked or tagged out for repairs. It was also not in any
designated area set aside for equipment that had been taken out
of service.
Because of the totality of circumstances involving the
truck, I concur with the Secretary that the truck presented a
safety hazard to the miners.whodF:ove or rode in or on it as well
as to the miners who were pedestrians in the quarry site area all
in violation of 30 C.F.R. § 56.14100(c).
Specifically with regard to the brakes on the vehicle, I
conclude and find that the credible testimony of the inspector
establishes that the front service brakes were disconnected and
therefore inoperable and the parking brake was admittedly
inoperable, all in violation of 30 C.F.R. § 56.1410l(a) (l)
and (2). I conclude and find that any reasonable interpretation
of the intent of this standard requires that the brakes perform
the function for which they are normally designed when they are
on the truck. This truck was designed by the Ford Motor Company
to operate under normal conditions with wheel brakes on all four
wheels and a parking brake. Moreover, the inspector tested the

1911

remaining rear service brakes by pumping the brake pedal and
found them to be in his opinion inadequate to stop the vehicle.
I therefore find that it was not necessary and would in fact have
been imprudent on his part to risk the life and limbs of anyone
else conducting a diagnostic braking test with this truck.
Respondent's argument that he should have performed the testing
described in 30 C.F.R. § 56.1410l(b) is without merit and is
rejected.
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation 11 of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designa~ed
significant and substantial "if, based upon the particu~ar 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." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
With the exception of the violation of 30 C.F.R.
56.1410l(a) (2), the parking brake violation, I find all the
remaining violations (the other two) to be of a significant and
substantial nature. That finding is deleted from the parking
brake violation and the ordered civil penalty will reflect that.
The lack of adequate service brakes (by itself a significant and
substantial violation) combined with all the other admitted
safety-related deficiencies of this vehicle seriously compromised
the safety of all those who had to operate the vehicle or be in
the vicinity where it was being operated.
I conclude and find
therefore that its operati.on on the quarry site presented a
reasonable likelihood of an accident which would reasonably and
likely be expected to result in at least injuries to the driver
as well as any other occupants or pedestrian quarry personnel
exposed to the hazard. Mathies Coal Co., 6 FMSHRC 1, 3-4
(January 1984) .
§

Turning now to the individual respondent, the evidence in
this case clearly supports the char"Cjes that the respondent, Ross
Campbell, was an agent of a corporate mine operator and that he
knowingly authorized the violations of the mandatory standards
discussed herein. The condition of the truck was so obvious that
he should have known of it and I find he did know of it. He
observed rhe truck daily in use and even used it himself on
occasion. Miners had complained to him about the truck's
condition and in any event it was his own responsibility as
superintendent ~o keep the truck in compliance with the pertinent
mandatory standards.
The Commission has defined the term "knowingly, 11 in Kenny
Richardson v.
, 3 FMSHRC 8 (1981), 689 F.2d 632
(6th Cir. 1982), cert g~nieQ, 461 U.S. 928 (1983) as follows:

1912

"Knowingly", as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent.
Its meaning is rather that used in contract
law, where it means knowing or having reason to know.
A person has reason to know when he has such
information as would lead a person exercising
reasonable care to acquire knowledge of the fact in
question or to infer its existence . • . We believe
this interpretation is consistent with both the
statutory language and the remedial intent of the coal
Act. If a person in a position to protect employee
safety and health fails to act on the bas
of
information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute.
3 FMSHRC 16.
The facts of this case clearly meet this definition.
These "S & S" violations were also serious because by
allowing this piece of equipment to deteriorate to the extent it
had by the time the inspector found it, the miners had been
permitted to work in the presence of serious safety and health
hazards for quite some time. These conditions could have led to
reasonably serious injuries. On the other hand 1 I consider the
violation involving the parking brake to be neither 11 significant
and substantial" nor serious.
I concur in the inspector's original finding of "moderate"
negligence.Considering all the applicable criteria contained in
section llO(i) of the Act, I find the following civil penalties
to be appropriate:
Docket No. LAKE 91-41-M
STANDARD VIOLATED

PENALTY

30 C.F.R. § 56.14100(c)
30 C.F.R. § 56.14101(a) (1)
30 C.F.R. § 56.14101(a) (2)

$500
$500
$100

Docket No. LAKE 91-52-M
STANDARD VIOLATED
30 C.F.R.
30 C.F.R.
30 C.F.R.

§
§
§

PENALTY

56.14100(c)
56.1410l(a) (1)
56.1410l(a) (2)

1913

$300
$300

$ 50

ORDER
Cenco-Western Stone Company is ORDERED to pay civil
penalties of $1100 within 30 days of the date of this decision.
Ross Campbell is ORDERED to pay civil penalties of $650
within 30 days of the date of this decision.

Law Judge
Distribution~

Miguel Jo Carmonau Esqou Office of the Solicitoru Uo So
Department of Laboru 230 South Dearborn Streetu 8th Flooru
Chicago, IL 60604 (Certified Mail)
Joseph Co Loran, Esq., Murphy, HUPPu Foote, Mielke and Kinnallyu
North Island Centeru Po Oo Box 5030u Aurorau IL 60507 (Certified
Mail)
dcp

1914

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

DEC 13 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket Noo WEST 90-284-M
A.C. No. 04-04602-05527 A
Docket No. WEST 90-326-M

Vo

A.Co No. 04-04602-05539 A
L. KENNETH TEEL, PRESIDENT OF
CALIFORNIA LIGHTWEIGHT
PUMICE, INC.,
Respondent

Docket No. WEST 90-356-M
AoCo NOo 04-04602-05536-A
Battle Mountain Mine

SEC RETA RY

OF LABOR,

CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)v
Petitioner

Docket No. WEST 90-325-M
A.C. No. 04-04602-05526 A
:

v.

Battle Mountain Mine

GEORGE W. WEINBECK, EMPLOYED
BY CALIFORNIA LIGHTWEIGHT
PUMICE I INC. I
Respondent
DECISION
Appearances:

J. Phillip Smith, Esq., Office of the Solicitor,
U.S. Department of La·bor, Arlington, VA,
for Petitioner;
L. Kenneth Teel, Pro Se,
for Respondent - Teel.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration ("MSH_~") alleges Respondents, as employees
of California Lightweight Pumice, Inc. ("CLP") violated Section
llO(c) of the Federal Mine Safety and Health Act, 30 u.s.c.
§ 801, et seq. the ("Act").
A hearing on the merits was held in San Bernardino, California, on October 30, 1991.

1915

The parties waived closing arguments and the filing of post
trial briefs.
Threshold Issues
Prior to the hearing, CLP filed a notice of its filing of a
petition under Chapter 11 of the Bankruptcy Code, Title 11, U.S.C.
The corporation asserts that under 11 u.s.c. § 362, it is entitled to an automatic stay of the instant cases.
As a threshold matter, the motion of CLP for a stay is without merit. CL~ is not a party to these cases. The Secretary is
proceeding under Section llOCc) of the Act against L. Kenneth
Teel as an employee and President of CPL. Further, the Secretary
is proceeding against George W. Weinbeck as Production Manager
and Supervisor of CPL.
Section llO(c), 30 u.s.c. § 820(c) of the Act provides as
fallows:
Cc) Whenever a corporate operator violates a
mandatory health or safety standard or knowingly violates or fails or refuses to comply with
any order issued under this Act or any order
incorporated in a final decision issued under
this Act, except an order incorporated in a
decision issued under subsection (a) or section
105(c) any director, officer, or agent of such
corporation, who knowingly authorized, ordered,
or carried out such violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment that may be imposed
upon a person under subsections (a) and (d).
In addition, Section 362(b) of the Bankruptcy Code specifically provides this exception:
(b) The filing of a petition urider section
301, 302, or 303 of this title does not operate as a stay(4) under subsection (a)(l) of this section,
of the commencement or continuation of an action or proceeding by a governmental unit to
enforce such governmental unit's police or regulatory power;

1916

If CLP had been a party herein, an automatic stay would not
have been appropriate since CLP would be within the above exception. Shippers Interstate Service, Inc. v. National Labor Relations Board, 618 F.2d 9, (7th Cir. 1980), Heiney v. Lion Coal
~o., 4 FMSHRC 572, 574-575 (1982).
A further threshold issue is the proof required in a case
arising under Section llO(c) of the Act.
In construing this section, the Commission has stated that
the word "knowingly" as used in this portion of the _Z\ct does not
have any meaning of bad faith or evil purpose or criminal intento
Its meaning is rather that used in contract lawv where it means
knowingly or having reason to know" .A person has reason to know
when he has such information that would lead a person exercising
reasonable care to acquire knowledge of the fact in question or
to infer its existenceo United States Vo Sweet Briarv Incov 92
Fo Suppo 777v 779 (DoSoCo 1950v quoted approvingly in Secretary
v. Kenny Richardson, 3 FMSHRC 8 (198l)p affirmedv Richardson Vo
~ecretary of Labor and FMSHRC, 689 F. 2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983)0
It is accordingly appropr te to analyze the evidence as it
relates to whether the individuals her n 11 knowingly 11 violated
the regulations.
A further predicate for an agent's liability under section
llO(c) is a finding that the corporate operator violated the Act.
Kenny Richardson, supra, 3 FMSHRC at 9.
~ final threshold issue, raised by Respondent Teel, is whether these cases should be dismissed because of "double jeopardy".
Specifically, Mr. Teel argues the company paid almost $20,000 in
fines and the Secretary should not be permitted to proceed
against employees.

I reject Respondent's argumer,i_ts. In-a civil proceeding such
as involved here Congress can fashion such remedies it deems
necessary and they need only be rationally related to a legitimate governmental interest.
Richardson, supra, 689 F.2d at 633.
Further, double jeopardy (Fifth Am~ndment) relates to criminal
trials. It is not involved in these cases.

1917

Docket No. WF.ST 90-326-M
In this case, Citation No. 3069893 alleges L. Kenneth Teel
violated 30 C.F.R. § 56.11001. 1
The citation reads as follows:
Safe access was not provided into the
parts trailer in that the company was using a pallet for stairs into the trailer.
The unsafe access was being used by employees on a daily bases (sic). Management was aware that this condition existed.
Photo number 11 shows the violation and
the hazard.
ARLE \•L BROWN, an MSHA inspector for 16 yearsv identifi
the legal identity report subnitted by CLP to MSHA (Tro 19-21~
Ex. P-1). ~he report indicates Kenneth Teel is president of CLP
and George Eugene Weinbeck is a supervisor.
(Tre 21).

The Company produces a lightweight aggregate used in building materials.
It eventually enters interstate commerce.
(Tr.
2 2)

0

Mr. Brown issued Citation No. 3069893 under section
104(b)(2) of the Act and served it on Gale Ashley, CPL's manager.
(Tr. 2 3) •
During the regular inspection, Mr. Brown went into the ba.ck
part of the mine where the company stored parts and time cards.
Instead of a stairway, they used a leaning unsecured 4 foot X 4
foot pallet to provide access to the trailer.
The trailer was a
working place as time cards were stored there.
(Tr. 24, 26: Ex.
P-4). CLP aba.ted the violation by constructing a regular stairway.
(Tr. 26). Someone might stumble on the pallet and break an ankle.
(Tr. 28). From talking to people, the inspector learned Mr. Teel
knew the trailer was there.
Ih addition, Mr. Teel had used the
pallet himself to climb into the trailer.

1

§ 56.11001 Safe access.

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

1918

The inspector did not know who owned the storage trailer.
(Tr. 28). He further agreed he didn't.see any employee enter,
leave or punch a timecard in the trailer.
(Tr. 29).
L. KENNETH TEEL, President of CLP, testified. He indicated
the trailer was used to store filters and parts. Further, the
van was owned by Capistrano Bulk Transport. In addition, only
the production manager and Mr. Teel had keys and access to the
trailer.
In Mr. Teel's opinion, the use of the pallet to provide
access was not unsafe.
The trailer was not used to house time
cards.
(Tr. 31-34) • Mr. Teel agreed that he personally had used
the parts trailer many times. The company paid a civil penalty
in this matter.
(Tr. 33)o
Discussion
The safe access regulation, § 56.llOOlu has been previously
construed to the effect that each means of access to a working
place must be safe. The Hanna Mining Company, 3 FMSHRC 2045,
2046 (1981}~ Homestake Mining Company, 4 FMSHRC 146u 151 (1982)0
It is apparent that an unsupported pallet leaning against a
trailer for support is not safe.
(See photograph Exa P-4)a
It
is further uncontroverted that both Messrs. Teel and Ashley had
access to the trailer.
The evidence establishes that Respondent Teel violated this
regulation. Further, Mr. Teel, CPL's president, knew of the
violative condition since he used the pallet to enter the trailero
Accordingly, Citation 3069893 should be affirmed and a civil
penalty assessed.

1919

Docket No. WF.ST 90-284-M
In this case, Citation No. 3463959 alleges L. Kenneth Teel
violated 30 C.F.R. § 56.3131. 2
The order reads as follows:
The pit wall perimeter had loose and unconsolidated material
and rocks that had not been stripped back for a distance of 10
feet nor was it sloped to the angle of repose. Several rocks
were directly above a haulage road.
(The rocks were about 2 feet
in diameter). This is an active pit exposing employees to the
hazards of falling rocks and material. The pit wall is about 50
feet high.
ARTHUR L. ELLIS, a MSHA inspector experienced in miningv
issued Order No. 3463959 under Section 104(a) and 107(a) of the
Mine Act.
(Tr. 37v 38L
When the inspector arrived at the mine site, a loader was
across the road. A sign stated the mine had been closed. After
a short time, George Weinbeck arrived and explained that the
BLM 3 had closed down the mine. Mr. Ellis advised Gene Ashley
that he desired to make a regular inspection.
(Tr. 39)
Ashley
explained they had been working until the afternoon of the day
before. At that time BLM had closed it down and locked the
gates.
o

Mr. Ashley stated he would accompany the inspector but he
left and did not return. Mr. Ellis again attempted to make his

2

§

56.3131 Pit or quarry wall perimeter.

In places where persons work or travel in performing their assigned tasks, loose or unconso1 ida ted material shall be sloped to the angle of
repose or stripped ba.ck for at least 10 feet
from the top of the pit or quarry wall. Other
conditions at or near the perimeter of the pit
or quarry wall which create a fall-of-material
hazard to persons shall be corrected.
3

aureau of Land Management manages the property for the
U.S. Government. The land is leased by CPL.

1920

inspection and his supervisor advised him to obtain a key from
BLM and proceed with the inspection.
(Tr. 40, 41).
Mr. Ellis observed the pit and the plant. He issued a
104(a) and a 107(a) order to be sure that no one would work the
pit until the hazard was correct~d.
(Tr. 41). Mr. Ellis talked
to Mr. Teel who told him he was aware of the rocks and it would
take 5 to 10 minutes to remove them. Mr. Teel also told him· to
mail the company his enforcement documents.
(Tr. 42).
The pit
wall was about 50 feet high.
(Tr. 43). Mr. Ellis issued a termination order on July 6, 1989.
The rock and loose material had
been removed about 10 feet around the perimeter of the pit wallso
(Tr. 44).
Mr. Bllis agreed Mr. Teel was at the office in Capistrano
Beach when he talked to him by telephone o
(Tr o 4 5 v 4 6) o
L. KENNETH TEEL testified the material in this particular
pit was wet and fineo
The entire surrounding pit and high wall
area was unstable.
(Tr. 46, 47).
The company had terraced back
but the native soil was unstable.
He indicated the soil was like
"hour-glass. 11 It was a daily thing to attempt to remove and keep
the benched area cleano Once a dozer was up there, the rocks
would continue to fall down. According to Mro Teelu when the
citation was issued, Mr. Ellis saw some large rocks but an
equipment operator in an enclosed cab could not have been injured.
(Tr. 47, 48).
Mr. Teel did not feel this was an unsafe condition&
Further, it was something that was corrected on a daily basis.
(Tr. 47).
The miners do not have to get out of their trucks when
they enter the pit.
(Tr. 49). Mr. Teel testified he was only
aware of the condition after the citation was issued. Mr. Teel's
office is in Orange County and the mine site is in Ingo County
Ccalifornia). According to Mr. Teel it is 200 miles from the
mine site to his office in Orange County. He vaguely remembered
talking to Mr. Ellis by telephone.
CLP was closed down by BLM because they had not met all the
terms of their mining and reclamation plan.
(Tr. 50). Mr. Teel
indicated the haul truck drivers would normally drive in a circle
around the pit and position their trucks to drive forward out of
the pit.
(Tr. 5).
ARTHUR L. ELLIS (recalled) indicated the company had been
working the afternoon before the inspection.
The inspector felt the situation had to be corrected before
anyone traveled under the highwall along the highway. A boulder

1921

could come down and crash through one of the trucks.
The hazard
here was caused by rocks and unconsolidated material falling on
the workers.
{Tr. 53). Mr. Ellis had seen a loader operator
mingling or walking around underneath the pit area.
(Tr. 54).
Mr. Ellis agreed this was the only time he had seen an unsafe
condition in this pit. However, he had written citations for the
same thing at a different pit in this mine.
(Tr. 56). When Mr.
Ellis talked by telephone with CPL's President, Mr. Teel, he
indicated very clearly that he was aware of the condition that
had been cited.
After BLM closed the mine, it remained closed when Mr. Ellis
issued his termination order. At that time, Mr. Ellis did not
observe any employees. Howeverv he saw a loader and a haul truck
in the pit area but not in the pit itself.
(Tr. 57u 58).
In Mr. Ellis' opinion, the described condition had ~isted
for several days and they would have been working while this condition existed.
(Tr 58, 59). Gale Ashley and George Weinbeck
said they had worked the pit the previous afternoon.
(Tr. 60)0
Discussion
The regulation, § 56.3131 requiresu in effect, that in
places where persons work or travel, loose material shall
sloped to the angle of repose or stripped back 10 feet from the
top of the pit or quarry wall.
Mr. Teel states he was in his office some 200 miles from the
pit and, therefore, did not know of the condition described by
Mr. Ellis.
I reject Mr. Teel's asserted lack of knowledge of the
hazardous condition. Mr. Teel agrees Mr. Ellis saw "a couple of
large rocks." Mr. Ellis when recalled as a witness described the
hazard as the falling of rocks and loose unconsolidated material
on workers below. Further, he stated it would be very possible
for these boulders to come down and crash through one of the
trucks.
(Tr. 53). I further reject Mr. Te~l's testimony since he
himself describes this pit and high-wall as being more or less in
a continuing state of flux.
He described it as "wet," "awfully
fine," "unstable," "hour-glass sand."
{Tr. 47).
In short, the
record establishes that the violation § 56.3131 was "knowingly"
authorized by Mr. Teel.
The mine was closed before the 107{a) order was issued.
However, Mr. Ellis issued the 107(a) order in order to be sure no
one would work in the pit until the hazard was corrected.
<Tr.
41). His actions properly addressed the hazardous conditions.

1922

V'IBST

90-356-M

In this case, Citation No. 3463076 alleges L. Kenneth Teel,
an employee of CPL, violated 30 C.F.R. § 56.3200 4
The citation, issued under§ 104Ca) and 107(a) of the Act,
provides as follows:
A hazardous condition has developed in the
Phase I pit in that a bench failure has created
an approximate 80' highwall with loose unconsolidated material along the face. Additionally numerous large boulders were along the
outer edge of the crestline. Employees were
working and traveling near the bottom of the
highwalL
RODRIC M. BRELANDu a MSHA Assistant District Manager 9 is
experienced in mine safetyo
On August 28, 1989, Mr. Breland issued a 107 (a> imminent
danger order alleging a violation of 30 C.F.R. § 56.3200.
The
order, served on Gene Ashleyv alleges a bench failure exis
on
an 80-foot high wall.
There was loose unconsolidated material
along the face. Also, numerous large boulders were along the
outer edge of the crestline. Employees were working and traveling near the bottom of the high wall.
(Tr. 61-63).
On August 28, Mr. Breland received a call from BLM representatives.
They were concerned about hazardous activity at the
site.
They were particularly concerned about equipment and
material going over the edge. MSH~ has a history of problenIB at
this operation with the maintenance of high walls"
(Tr" 64).

4

§

56.3200 Correction of hazardous conditions.

Ground conditions that create a hazard to
persons shall be taken down or supported before other work or travel is permitted in
the affected area. Until corrective work is
completed, the area shall be posted with a
warning against entry and, when left unattended, a barrier shall be installed to impede unauthorized entry.

1923

The order described this as a Phase I pit, which is the same one
described by Mr. Ellis in his previous testimony.
Mr. Breland was 250 miles from the pit and in a telephone
call Mr. Ashley acknowledged that the conditions existed.
Namely, they were working on a high wall 80 to 100 feet high.
Also, there was equipment above and below the high wall.
(Tr.
65). Mr. Breland then issued a 107(a) order over the telephone
and drove to the site, arriving the morning of August 29.
When Mr. Breland arrived, he found a good-looking face in
the pumice area but the alluvium above it was very "sandy likeo ui
(Tr. 66-67). The material had sloughed in several areas to the
edge of the pumice wall. Also there were large unconsolidated
boulders a.11 along the face. You could see where a loader had
been operated directly beneath it. You could also see where a
cat had worked that area on the edge of the upper part of the
wall.
(Tro 67v Ex. P-8u P-9).
It is not uncommon for operators to get out of their vehicles.
The boulders, by their sizeu could do substantial damage to
a piece of equipment below or a fatality could result if a boul~
der struck a minero
(Tra 70)a
A termination order was issued on August 20, 1989. The pit
had been benched down from the top and no hazard existed at that
time.
<Tr. 71, Ex. P-10).
Mr. Breland was sure that Mr. Teel was aware of the condition.
There had probably been at least three violations of the
same standard. MSHA's Denver Tech Support had looked at the property and made some recommendations.
'l'he company was advised that benches were required.
In Mr. Breland's opinion, a ·condition of imminent danger
with a high degree of negligence existed.
There was also aggravated conduct.
(Tr. 72).
The order was not terminated until August 20, 1991, two
years later, because it took that long to establish a bench face
that was sa f e • ( Tr • 8 0 ) •
L. KENNETH TEEL indicated that nearly every day they clean
off the bench areas with a dozer. Later the loader operator

1924

would come in at the bottom of the pit and remove any of the material that had fallen into it. At that point the pumice would
be removed. (Tr. 83).
In Mr. Teel 1 s opinion, the pit was not in an unsafe condition. (Tr. 84;. This pit was the only one approved for mining
at the time.
The company paid a civil penalty for this violation.

CTr.

84) •

Mr. Teel became aware of the condition of this pit when
Mr. Ellis issued his citation.
In Mr. Teel's view, the inspections by MSHA and BLM came
about because of an argument in Bankruptcy Court over CPLus
mineral lease. (Tr. 86). Furtherv the pumice is stable once the
overburden is removed. (Tr. 87)o The loose unconsolidated material in Phase I pit was caused by earthquake faults. The bench
failure was caused by nature.
BRELAND (recalled) the bench in this particular
high/wall had not been properly constructed. The angle of repose
discussed by Mr. Teel had nothing to do with the sandy materialo
(Tr. 87) •
~ODRIC

Discussion
The hazardous condition described by Mr. Breland is virtually uncontroverted. Workers were exposed to the described hazardous conditions.
Mr. Teel testified he knew of the condition of the Phase I
pit when Mr. Ellis issued his order in the prior case. The
evidence shows the order by Mr. Ellis was issued July 6, 1989.
(Ex. P-5). The order by Mr. Breland was issued more than a month
later on August 28, 1989.
The foregoing evidence establishes Mr. Teel "knowingly"
authorized the violation.
Citation No. 3463076 should be affirmed and a penalty
assessed.

1925

Citation No. 3463783
This citation, issued under Section 104(d)(2) of the Act,
alleged a violation of 30 C.F.R. § 56.3130. 5
The citation reads as follows:
The pit walls were not being mined in a manner
to maintain the walls and bench stability.
The walls were about 80 to 100 feet high with
no benches except at the crest line.
The
bench at the crest line on the east wall had
sloughed and filled with loose materialo
The
entire pit must have benches that are maintained.
This pit is known as the Phase I pita
This is an unwarrantable violationo
ARTHUR L. ELLIS, a previous witness, observed the bench
failure on the crest line on the east wall.
'fue bench had filled
with material and was slipping over down into the bottom of the
pit.
The pit was 80-100 feet deep. Mr. Ellis also noticed loader tracks down at the bottom of the pito There were no other
benches in the pit.
(Tr. 96).
The hazard here involved the fall of loosev unconsolidated
material on the people below. The citation was modified to per(Tr. 97). The citation was terrninamit benches to be developed.
ted on August 20, 1991.
(Tr. 100) •
The witness indicated Mr. Teel was aware of the need for
benching.
(Tr. 100, 101).
This was a serious violation which
Mr. Teel disregarded.
Possible injury or death could occur.
(Tr. 101) •

5

§ 56.3130

Wall, bank, and slope stability.

Mining methods shall be used that will maintain wall, bank, and slope stability in places
where persons work or travel in performing
their assigned tasks. When benching is necessary, the width and height shall be based on the
type of equipment used for cleaning of benches
or for scaling of walls, banks, and slopes.

1926

Mr. Ellis agreed Mr. Ashley is the manager of the mine and
makes all of the decisions regarding employees, type of equipment
and type of mining.
He was hired to manage the mine in a safe
condition. However, Mr. Teel, as President of CPL, was totally
in charge.
(Tr. 102, 103).
The parties stipulated that the company paid a civil penalty
in connection with this violation.
(Tr. 104).
Mr. Teel offered a list of the amount of fines it paid.
(Ex. R-1).
Mr. Teel indicated that he had not had a salary from
the company for six months.
(Tr. 106, 107).
Discussion
The evidence establishes the corporate operator violated the
contested citation.
Furtherv the evidence is uncontroverted that
Mr. Teel, President of the company, was aware of the need for
benching.
Citation No. 3463783 should be affirmed and a civil penalty
should be assessed.

WEST 90-325-M
In this case the Secretary of Labor is proceeding on Order
No. 3069865 against George w. Weinbeck.
The Secretary alleged
that at all times involved herein Respondent Weinbeck was acting
as Production Manager and Supervisor of CPL.

Respondent Weinbeck was advised by certified mail of the
hearing scheduled in San Bernardino, California.
The return
receipt is attached to the notice of hearing in Docket No. WEST
90-284-M.
'Respondent Weinbeck failed to appear at the hearing and a
default was entered against him for failure to prosecute his
contest.
(Tr. 92, 93).
·
Accordingly, MSHA Order No. 3069865 and the proposed penalty
therefor should be affirmed.
Civil Penalties
The statutory criteria to access civil penalties are contained in Section llO(d), 30 u.s.c. § 820(i).

1927

The initial criterion is the operator's history of previous
violations.
CPL has an excessive prior adverse history but this
proceeding is against Kenneth Teel.
It is not shown that, as an
individual, Mr. Teel has a prior history.
All of the citations and orders herein indicate Mr. Teel
knew of the violative conditions.
He was accordingly negligent
in failing to remedy the condition.
The record indicates Mr. Teel has not received any salary
from the bankrupt corporation for the last six months. CPL is
his sole source of income. However, there is no showing of the
precise effect the assessment of penalties will have on Mr. Teel.
The gravity concerning Citation No. 3069893 was low.
pallet was only minimally used.

The

The remaining citations involve high gravity.
The circum~
stances were such that a fatality could have occurred. With the
exception of Citation No. 3463076, Mr. Teel rapidly abated the
violative condition and has thereby demonstrated good faith.
The Judge believes the penalties set forth in the order of
this decision are appropriate for Mr. Teel as President of CPL.
For the foregoing reasons I

enter the

following~

ORDER
1. WEST 90-326-M ( L. Kenneth Teel): Ci ta ti on No. 3069893
is AFFIRMED and a civil penalty of $75 is ASSESSED.
2. WEST 90-284-M ( L. Kenneth Teel): Ci ta ti on No. 3463959
is AFFIRMED and a civil penalty of $150 is ASSESSED.
3. WEST 90-356-M ( L • Kenneth Teel): Ci ta ti on No. 3463076
is AFFIRMED and a civil penalty of $150 is ASSESSED.
Citation No. 3463783 is AFFIRMED and a civil penalty
of $150 is ASSESSED.
4. WEST 90-325 (George E. Weinbeck):
Citation No. 3069865
and the proposed penalty of $400 are AFFIRMED.

Law Judge

1928

Distribution:

J. Philip Smith, Esq., James B. Crawford, Esq.,

Office of the
Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite
501, Dallas, TX 75202
(Certified Mail)

Mr. L. Kenneth Teel, President, CALIFORNIA LIGHTWEIGHT PUMICE,
INC., 35541 Camino Capistrano, Capistrano Beach, CA 92624
(Certified Mail)
Mr. George E. Weinbeck, c/o 209 West French Streetv Ridgecrestu
CA 93555
(Certified Mail)

sh

1929

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

22041

DEC 1 9 1991
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 91-15
A.C. No. 11-00590-03802

v.
Docket No. LAKE 91-16
A.C. No. 11-00590-03803

OLD BEN COAL COMPANY,
Respondent

Docket No. LAKE 91-58
A. C. No. 11-00590-03814
Docket No. LAKE 91-59
A. C. No. 11-00590-03815
Docket No. LAKE 91-70
A. C. No. 11-00590-03816
:

Docket No. LAKE 91-109
A.C. No. 11-00590-03822
Mine No. 26
Docket No. LAKE 91-88
A. C. No. 11-02392-03822
Docket No. LAKE 91-107
A. C. No., 11-02392-03824

Mine No. 25
Docket No. LAKE 91-57
A. C. No. 11-00589-03769
Docket No. LAKE 91-87
A. C. No. 11-00589-03771
Docket No. LAKE 91-99
A.C. No. 11-00589-03773
Docket No. LAKE 91-112
A.C. No. 11-00589-03775

1930

Docket No. LAKE 91-426
A.C. No. 11-00589-03781
Mine No. 24
DECISION

Appearances:

Before:

Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago 1 Illinois for
Petitioner;
Gregory s. Keltner, Esq., Old Ben Coal Company,
Fairview Heights, Illinois for Respondent,

Judge Weisberger

These cases were consolidated for purposes of hearing, and
subsequent to notice, the cases were heard in St. Louisv
Missouri, on October 16-17, 1991. At the hearing, Robert Stamm,
James Holland, Arthur Wooten, and Mark Eslinger 1 testified for
Petitioner; Jerry Lane Bennett, Roger Griffith, Jerry Conner,
Alfred Lynch, Robert Allen McAtee, and George Dawe testified for
Respondent.
The parties waived their right to submit posthearing findings of fact and briefs, and in lieu thereof
presented closing oral argument.
Docket No. LAKE 91-15
A.

Citation No. 3220508
I.

On August 22, 1990, Robert Stamm an MSHA inspector asked the
union escort who accompanied him on an inspection of the 12 CM2
working section to check the brakes of a battery powered vehicle
{golf cart) used to transport miners to and from the working
section. Stamm asked the escort 1:;9 pull the brake handle and he
said that there was no resistance on the handle.
Stamm said that
he observed that the parking brakes"··· would not secure the
vehicle for motion when parked" (Tr.16). Upon examination, he
observed that the linkage for the parking brakes was not
connected. He said that it did not appear that the golf cart was
out of service, and no one told him that it was out of service.
Also, Stamm indicated that there was nothing blocking the wheels
of the golf cart.
Stamm issued a Citation alleging a violation
of 30 C.F.R. § 75.1725(a).

1931

II.

Section 75.1725(a) supra provides as follows:
"Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment
in unsafe condition shall be.removed from service immediately 11 •
Respondent argues that section 75.1725(a) supra does not
specifically require that vehicles be provided with parking
brakes, and that, in either event, the vehicle in question was
safe, inasmuch, as when observed by Stamm, it was parked in a
crosscut that was "more or less close to being level"
(Respondent's Exhibit R-A, Page 13), and was perpendicular to the
ribs. Thus, Respondent argues that should the vehicle have
rolled, it would have been stopped by one of the ribs.
Also, Jeffrey Lane Bennett, Respondent 1 s safety inspector,
indicated that with the exception of underpasses, the terrain of
the mine is level. He indicated that there are not more than 6
or 8 underpasses where a parked vehicle can roll.
In essence he
opined that a vehicle parked in an area of an underpass would not
roll excessively, as in each of these areas there is a 20 foot
incline, a 20 foot level area, followed by another 20 foot
incline. He further opined that a vehicle would not parked in
such an area,
as it would block the main travelway.
I find
Respondent's arguments without merit for the reasons that follow.
In essence, Section 75.1725(a), supra requires that
equipment in "unsafe condition" be removed from service. There
is no evidence in the record that the golf cart in question was
not removed from service. Hence, in order to ascertain whether
Section 75.1725(a) supra has been violated, it must be determined
whether or not the golf cart was in an "unsafe condition".
In making this determination reference is made to the common
usage of the term "safe". Webster's Third New International
Dictionary, (1986 edition) ("Webster's") defines "safe" as 11 2.
Secure from threat of, danger, harm or loss:", Webster's defines
"free from" as "(a) lacking: without. 11 "danger" is defined in
Webster's as 11 3.
liability to injury, pain, or loss: PERIL,
RISK . . . . " Since the parking brakes did not work due to the fact
that the linkage was disconnected, the vehicle would immediately
drift or roll if the operator of the vehicle would take his foot
off the brake pedal when the vehicle is on an incline.
Although there was no immediate risk of injury inasmuch as
the golf cart was parked in a level area, it is clear that should
the golf cart be parked in an area of the mine that is not 100
percent level, it might roll by itself or be hit by another
vehicle and then roll, possibly causing a ninjury to persons in
the area. Hence, the golf cart being operated without parking
brakes, was not free from risk, as its operation, in some

1932

circumstances, could have led to an injury. Accordingly I find
that Section 75.1725(a) supra has been violated by Respondent.
III.
According to Stamm, in essence, should the golf cart in
question be parked in an area that is not level, it would be
reasonably likely that a miner getting out of the vehicle would
be injured by the vehicle rolling over him.
Stamm stated, in
essence, that, accordingly, should the parking brakes not be
repaired, an injury could result with continued operation of the
golf cart. Stamm said that he has read reports of investigations
of accidents wherein injuries, including a fatality, have
occurred when parking brakes have been inoperable in golf carts,
and scoop cars. He indicated ~n cross-examination that, in
evaluating the likelihood of an injury as a consequence of
parking brakes not being operable, he was 11 speaking ... in terms
of possibilities".
(Tr. 36)
In analyzing whether the facts herein establish that the
violation was significant and substantial, I take note of the
recent decision of the Commission in Southern Ohio Coal Company,
13 FMSHRC 912, (1991), wherein the Commission reiterated the
elements required to establish a significant and substantial
violation as follows:
We also affirm the judge's conclusion that the
violation was of a significant and substantial nature.
A. violation is properly designated as significant and
substantial "if, based on 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." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6
FMSHRC 1, 3-4 (January 1984), the Commission explained:
In order to establish that, a violation
of a mandatory standard"'is significant and
substantial under National Gypsum the
secretary must prove:
(1) the underlying
violation of a mandatory safety standard;
{2) a discrete safety hazard -- that is, a
measure of danger to safety -- contributed to
by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood
that the injury in question will be of a
reasonably serious nature.
See also Austin Power Co. v.
, 861 F.2d
99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021

1933

(December 1987) (approving Mathies criteria). The
third element of the Mathies formula "requires that the
Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which
there is an injury" (U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984)), and also that the likelihood
of injury be evaluated in terms of continued normal
mining operations (U.S. Steel Mining co., Inc. 6 FMSHRC
1573, 1574 (July 1984); see also Halfway, Inc., 8
FMSHRC 8 1 12 (January 1986) . 11 (Southern Ohio, supra at
916-917).
Petitioner has established a violation of Section 75.1725(a)
supra as discussed above, II. infra. Also, it is clear that the
violation herein i.e., the lack of an operative parking brake,
did in some measure contribute to the hazard of a miner being
injured by being hit or run over by the vehicle in question.
However, the record fails to establish that the third element set
forth in Mathies, supra i.e. a reasonable likelihood that the
hazard contributed to will result in an injury, as it has not
been established that there was a "reasonable likelihood that the
hazard contributed to would result in an event in which there
injury", U.S. Steel Mining Co., 6 FMSHRC 1834-1836 (August
1984).
In this connection I note that, when cited by a Stamm,
the golf cart was parked perpendicular to the ribs in a dead-end
cross-cut. Also the grade of the floor was level"
Petitioner
did not contradict the testimony of Bennett that in the mine in
question, the floor is level except for 6 or 8 areas containing
underpasses. There is no evidence that in the normal course of
mining the vehicle in question would have been stopped or parked
in terrain that would have allowed it to drift or roll. Hence I
conclude that the violation herein was not significant and
substantial.
IV.
Stamm opined that the violation herein resulted from
Respondent's moderate negligence, as, had the brakes been checked
before the golf was placed in operation, Respondent would have
known that the brakes were not in safe operating condition.
In
essence, Stamm said that, in questioning management, "it did not
come out" that the brakes were checked.
(Tr. 20)
Respondent did
not rebut or impeach the testimony of Stamm in this regard, nor
did it introduce in evidence the existence of any mitigating
circumstances.
I thus find that Respondent was negligent, in
that it should have known of the lack of parking brakes and
should have fixed them or taken the vehicle out of operation.
Also, I find that should an injury have occurred as a result of
the violation herein, it could have been of a reasonably serious
nature.
However taking into account the relatively level of
terrain of the mine in question, I conlcude that the possibility
of the vehicle rolling and causing injury was somewhat remote.

1934

considering the other statutory factor of Section llO(i) of the
Act stipulated to by the parties, I conclude that a penalty
herein of $75 warranted.
B.

Citation Nos. 3220561, 3220562, 3220565

Petitioner indicated that it vacated No. 3220561, 3220562,
and 3220525 on the ground that, upon review, it was determined
that each of the vehicles in question, which had initially been
cited in violation 75.1725(a) supra, did have a braking system.
Based on Petitioner's representations, I find that the vacation
of these citations is proper.
Docket Nos. LAKE 91-426, LAKE 91-59, and LAKE 91-16
A.

Docket No. LAKE 91-426
I.

On February 11, 1991, James Holland an MSHA Inspector,
conducted an inspection of the face of the first north entry, at
Respondent's No. 24 mine. Holland indicated that he did not see
any warning device after the last row of roof boltsu and that
inby that point there was approximately 15 feet of unsupported
roof. Holland also indicated that there were no physical
barriers installed, and Respondent has not challenge this
testimony.
He issued a citation alleging a violation of 30
C.F.R. § 75.208 which provides as follows:
"Except during the
installation of roof supports, the end of permanent roof support
shall be posted with a readily visible warning, or a physical
barrier shall be installed to impede travel beyond permanent
support".
Roger Griffith, a safety inspector employed by Respondent
accompanied Holland on February 11, 1991. He stated that as he
was approaching the face, he saw a tag with a piece of reflecting
tape attached to the last row of roof bolts on the right side,
inby a curtain which had also. been hung on the right side at the
next to last row of bolts. He indicated that the height of the
bolted roof was approximately 8 feet, and he observed the tag
when he was approximately 6 to 10 feet away.
According to Respondent's counsel the whereabouts of
specific tag in question, is not known. However, according to
Griffith the words "unsupported top", the initials of an
examiner, and a date had been placed on the specific tag in
question, but otherwise it was the same as exhibit R-3.
He also
indicated that the specific tag in question had a piece of
reflecting tape on it that was "somewhat similar" in size to that
found on exhibit R-3.
(Tr.125)
However, he indicated that in
the mine atmosphere a tag such as exhibit R-3, gets dirty and
turns dark in color.

1935

Griffith stated that, at the No. 24 Mine, tags such as
exhibit R-3 are used to provide a warning of unsupported top or
other hazardous conditions. He indicated that tags with
reflective tape are "readily visible".
(Tr.124)
Griffith also
indicated in this connection that a union walkaround who
accompanied him and Holland on February 11, 1991, asked him "how
can he (Holland) go ahead and issue a citation even though we had
an examiner's tag hanging there" (Tr.102).
It is clear that, in the area in question, these was no
physical barrier installed to impede travel beyond permanent
support. Hence the issue for resolution is whether the end of
permanent supports were, as required by Section 75.208 supra,
"posted with a readily visible warning''·
"Post" as a transitive
verb including its use with the suffix ed is defined in
"Webster's" as follows:
(1) to affix (as a paper or bill) to a
post, wall, or other usual place or public notices: PLACARD ...
[signs are
ed throughout the state] .•. uu The record
indicates that there was some physical evidence present which
would alert a miner to the presence of unsupported roof e.g., the
curtain, the last row of volts, the contrast in color between
areas that were hand rock dusted and the ribs and roof in the
unsupported area that was not dusted, and the presence of gob
material on the floor under. the unsupported roof.
However, these
are insufficient to comply with section 75.208 supra, which
requires that a warning be affixed to some portion of mine. This
language clearly contemplates the use of some device, as opposed
to the reliance on evidence of the physical conditions in the
mine.
Further, Section 75.208 supra mandates that the warning
device, must be "readily visible". Although Griffith saw the
device in question from a distance 6 to 8 feet, Holland, who has
approximately 16 years experience inspecting mines, and in
addition, a total of approximately 6 years experience working in
mines, testified that he did not see the tag in question. There
is nothing in the record to impeach the credibility of Holland,
or to question the veracity of his testimony that he did not see
the device. Since the device was not seen by an inspector
trained to observe conditions in a mine, I conclude that it was
not "readily visible".
In this connection I do not place much
weight on Griffith's testimony that the walkaround asked him how
Holland could issue a citation "even though we had an examiner 1 s
tag hanging there" (Tr. 102). Inasmuch, as the declarant did not
testify in person, his demeanor could not be observed.
Hence,
this hearsay testimony is inherently unreliable.
For the above reasons I conclude that the Respondent herein

1936

did violate Section 75.208 as alleged. 1
II.

Holland indicated that in his opinion the violation herein
was significant and substantial. In reaching this determination
the only factor he considered was that he was awa~e of 6 injuries
including a fatality that had occurred in face areas inby
·
unsupported roof.
He opined that in the absence of a readily
visible warning, a miner by accident, either in a scoop, or on
foot to take a methane reading at the face,
go beyond
permanent support, and thus
get seriously injured.
On
cross-examination, he was asked to describe the analysis he went
through in concluding that the violation was significant and
substantial.
He answered as follows:
"The condition that exists
where soembody could get seriously injured before it can be
corrected". (Tr.80). [sic]
I do not place much weight on the opinion of Holland,
inasmuch as
was not based on the proper evaluation to be used
in determinating whether the violation was significant and
substantial {See Mathies, supra).
The absence of either a
physical barrier, or a posted readily visible warning impeding
travel beyond permanent support violated section 75.208 supra,
and also contributed to the hazard of a person inadvertently
going under unsupported roof, and thus being subject to the-risk
of becoming injured from a roof fall.
However, due to the
presence of various clues providing notice to a miner of the end
of the supported roof area and commencement of unsupported roof
e.g., the last row of roof bolts, the presence of the curtain,
and the contrast between rock dusted and non rock dusted areas, I
conclude that it has not been established that there was a
reasonable likelihood that the hazard herein contributed to by
the violation would have resulted in an injury producing event
(U.S. Steel, supra)
According I conclude that it has not been
established that the ·Jiolation herein was significant and
substantial.
(See Matii.ies,
U. S. Steel supra) .

1

I ascribe no merit to Respondent's argument that section
75.208
does not require certain dimensions of a warning
device, nor does it require that such a device contain or be made
of reflectable material.
I find that the basis of the violation
herein was not that the device was not of a sufficient size nor
that it was not reflectable,
but rather that the device that was
used was not "readily visible".

1937

III.
The gravity of the violation herein i.e. that as a
consequence thereof a person might have been inadvertently
subjected to a hazard of being injured by a roof fall, and the
negligence of the Respondent in committing this violation are
mitigated somewhat when taking into account the fact that a
warning device had been posted that was visible at least to
Griffith. Also there were other physical clues present to warn a
person of the demarcation between the end of the supported roof
and the commencement of unsupported area.
I find that a penalty
of $100 is appropriate for this violation.
B.

Docket No. LAKE 91-59
1.

Citation No. 3538629

On November 2 1990 Inspector Stamm conducted an inspection
of in Mine No. 26 and found that a visible warning or physical
barrier was not posted at the end of permanent roof supports
outby the working face of the 47th south entry of the 12CM-2(0070) working section. A cut had been extracted 17 feet inby the
last row of roof bolts. The inspector issued Citation No.
3538629 alleging a violation of 30 C.F.R. 75.208.
Respondent does not contest the violation. Also taking into
account the facts concerning this citation as set forth in the
parties' stipulations (paragraph 9-A, Joint Exhibit 1), and the
facts testified to by Stamm in a deposition taken September 25,
1991, (Exhibit R-E}, I conclude that Respondent did violate
section 75.208 supra.
According to Stamm, in essence, the violation is to be
considered significant and substantial inasmuch as a person "may
possibly" go inby the last row of bolts and thus be subject to
unsupported roof (Exhibit R-E page 9). He indicated that once a
person is under unsupported roof, there is a reasonable
likelihood of a serious injury in tb~ event"of a roof fall.
I find that Stamm did not use the proper standard in
evaluating whether the violative condition herein was significant
and substantial. Consistent with my decision in Docket
No. LAKE 91-46 infra A., I find the violation was not significant
and substantial. Also consistent with the decision in LAKE 91426, infra A., I find a penalty of $100 appropriate for this
violation.

1938

2.

Citation No. 3538761
I.

On November 2, 1990, Arthur Wooten, an MSHA inspector,
conducted an inspection at Mine No. 26, and found that a readily
visible warning device or a physical barrier was not installed to
impede travel beyond permanent roof support at the 53 north o
point face area of the 12-8 working section. According to
Wooten, an area of approximately 10 feet by 15 feet containing 46 inches of loose cap coal was unsupported. The inspector issued
citation No. 3538761 alleging a violation of 30 C.F.R. 75.208.
Respondent's does not contest th
violation. Based on the
testimony of Wooten, who indicated that when he examined the area
in question there was no visible warning to impede travel beyond
permanent roof support, I find that Respondent herein did v
ate
section 75.208
IL

Wooten opined that the violation herein was significant and
substantial. He indicated in his deposition, of September 25,
1991, in essence, that in order for a violation to be significant
and substantial the violation must be one that 11 could cause 11
serious injury if it isn't corrected, people have to be in the
area, and there has to be a reasonable likelihood an injury.
(Exhibit R-C, Page 14). According to Wooten, the situation
presented herein will cause an injury of a reasonably serious
nature. He indicated that these was a possiblity that someone
could go into the area of unsupported roof and thus be exposed to
cap coal, and an injury of a reasonably serious nature. He
indicated that there were 6 to 8 people in the area.
Jerry Conner, a safety inspector employed by Respondent,
accompanied Wooten. Conner indicated that the entry in question
was rock dusted 2 feet outby the last row bolts, and there was a
curtain on the right side on the J,.ast bort. On cross-examination
he indicated that the purpose of rock dusting is not to warn
miners of the last open crosscut but rather to seal coal from
air. He also indicated that the purpose of a curtain is to blow
air to the face, and that it is not used as a warning device to
keep miners away from the face.
Alfred Linch, Respondent's manager of safety, indicated that
prior to 1988 when section 75.208
was promulgated, he
trained employees to recognize unsupported face by the presence
of gob on the floor, and by the end of ventilation controls. He
said that rock dusting is not normally done inby the last set of
roof bolts. Accoringly,
a clue is this provided as to where the
unsupported portion of the roof begins. He said that the last
definite indicator of supported roof
the last row of bolts,

19 39

and that beyond that point it is dangerous. He also indicated
that miners were taught that the face is inby the last open
crosscut.
The presence of significant amounts of cap coal in the
unsupported roof increased the hazard of a person being seriously
injured should he go under this unsupported roof.
However, in
evaluating whether the violation herein was significant and
substantial, it must be determined whether there was a reasonably
likelihood that this hazard contributed to by the violation would
have resulted in an injury i.e. whether there was a reasonable
likelihood that, as a consequence of the lack of a barrier or
posted visible warning, that a miner would have entered the
unsupported area.
My determination in this regard is the same as
I set forth above in Docket No. LAKE 91-426r infra A. 1 for the
reasons stated there.
Consistent with my Decision in LAKE 91-426 infra A., I find
that a penalty of $100 is appropriate for the violation found
herein.
C.

Docket No. LAKE 91-16

The parties stipulated as

follows~

On August 31, 1990 Inspector Wolfgang Kaak
conducted an inspection in Mine No. 26 and found the
face of the 9th W entry of working section 12cm-8, I.D.
005, was not posted with a readily visible warning
device.
The last row of permanent supports, roof
bolts, was about 15 feet inby the 5815 survey tag and
the face was then an additional 10-12 feet without any
permanent supports.
The section was idle at this time
but, two repairmen and one examiner were on the
section.
The inspector issued Citation No. 3538909 for
a violation of 30 C.F.R. 75.208.
(Joint Exhibit 1,
Par.10)
Based on the facts set forth in paragraph 10 of the parties'
stipulations (Joint Exhibit 1), and based on the fact that
Respondent does not contest Citation No. 3538909, I find that
Respondent did violate Section 75.208 A, supra.
I find,
consistent with my decision in LAKE 91-426, infra, A., and find
that the violation was not significant and substantial, and that
a penalty of $100 is appropriate.

1940

Docket Nos. LAKE 91-57 (Citation Nos. 2819363, and 2819364),
LAKE 91-99, LAKE 91-107, and LAKE 91-109
A.

Docket No. LAKE 91-57,
2819364)

(Citation Nos. 2819363 and

The parties stipulated as follows:
On October 16, 1990, Inspector Mark Eslinger
conducted an inspection in Mine No. 24 and found that a
golf cart was being charged at the 12CM3 intake
escapeway. Two repairmen were working on the section
and Steve Vercellina, (Marcilleno) Underground mine
manager, was also present on the section (sic). The
golf cart was located in the 7th west entry off the 110 main north. The inspector issued citation No.
2819363 for an alleged violation of 30 C.F.R. 75.1105.
(Joint Exhibit 1, Par. 17)
B.

Docket No. LAKE 91-99
The parties stipulated as follows:

on December 12~ 1990 Inspector Robert Cross
conducted an inspection in Mine No. 24 and found that
battery powered golf cart No •. 18 was being charged at
no. 43 crosscut into the no.2 north belt drive
transformer. The inspector issued Citation no. 3536795
for an alleged violation of 30 C.F.R. § 75.1105.
C.

Docket No. LAKE 91-109

The parties stipulated as follows:
"On January 3, 1991
Inspector Michael Pike conducted an inspection on mine no. 25 and
found that battery powered gofer located in proximity to "E"
shaft was being charged. The inspector issued Citation No.
3537125 for an alleged violation of 30 C.F.R. § 75.1105. 11 (Joint
Exhibit 1, Par. 15)
D.

Docket No. LAKE 91-107

The parties stipulated as follows:
On January 3, 1991 Inspector Michael Pike
conducted an inspection on mine no. 25 and found that
golf cart no. 1 located at no. 26 crosscut on the 14th
east travelway of the longwall no. 4 (ID 004) was being
charged. The inspector of the longwall no. 3538804 for
an alleged violation of 30 C.F.R. § 75.1105.
(Joint
Exhibit 1, Par. 16)

1941

Respondent and Petitioner further stipulated that the only
issue to be decided in Docket Nos. LAKE 91-99, 91-109, 91-107 and
91-57 (Citation Nos. 2819363 and 2819364), is whether 30 C.F.R. §
75.1105 is applicable, and further whether the vehicles involved
in these citations were charging stations. The parties do not
contest the facts that arose during the conduct of the
inspection.
The parties, in addition, stipulated as follows:
Petitioner and Respondent stipulate that Citation
No. 2819363, LAKE 91-57, is representative of the cases
before this court and the parties are bound by the
courts decision on LAKE 91-57 for LAKE 91-99, LAKE 91109, LAKE 91-107 and LAKE 91-57. The parties do not
waive their right to appeal the courts decision on
whether 30 C.F.R. § 75.1105 is applicable.
{Joint
Exhibit 1, Par.20).
E.

citation No. 2819363
1.

(Docket No. LAKE 91-57)

Introduction

Mark Eslinger, a supervisory engineer for MSHA 1 testified
that when he observed the golf cart in question on October 16,
1990, a charger located on the golf cart and "enclosed in metal"
(Tr. 218), was plugged into an outlet which was located in a
crosscut off the intake escapeway. The golf cart's batteries,
located under the seat of the cart, were plugged into the
charger. Eslinger tested the air current, and it was revealed
that air was flowing down the intake, and was not being vented
directly to the return.
According to Eslinger, hydrogen gas which it was released in
the charging process is "very explosive" (Tr.207). Thus,
according to Eslinger, if the air in the area where batteries are
being charged is not vented to the return, in the event of an
electrical short, a fire could result endangering persons inby.
The mine in question has designated battery charging station
where batteries, removed from equipment, are charged by chargers
located at the station. Batteries that are charged at the
station and the chargers at the station are larger than the
chargers and batteries located on the golf cart.
Eslinger issued Citation No. 2819363 alleging a violation of
30 C.F.R. § 75.1105.

1942

2.

Regulation
30 C.F.R.

§

75.1105, as petinent, provdes as follows:

Underground transformer stations, battery-charging
stations, substations, compressor stations, shops, and
permanent pumps shall be housed in fire-proof
structures or area. Air currents used to ventilate
structures or areas enclosing electrical installations
shall be coursed directly into the return.
3.

The golf cart as a battery charging station.

In essence, according to Robert Allen McAtee 1 Respondent's
safety manager for the Old Ben Division, and not contradicted by
Eslinger, the installations referred to in the first sentence of
Section 75.1105 supra are primarily permanent in nature. Hence,
Respondent argues that accordingly the term "battery charging
stations 11 1 is limited to those that are permanent in nature.
However, there is no indication in the legislative history of
Section 3ll(c) 2 of the Federal Mine Safety and Health Act of
1977 (the 1977 Act) of any intent to limit the term "battery
charging station" to only those that are permanent.
The wording of Section 3ll(c) of the 1977 Act is identical
to that found in Section 3ll(c) of the Federal Coal Mine Health
and Safety Act of 1969 ("the 1969 Act"). The Report on the
Committee on Labor and Public Welfare which accompanied S.2917,
the Senate version of the bill that subsequently became the 1969
Act, in the section by section analysis of the bill's provisions,
evidences congressional intent with regard to section 212(c) 3 to
" •.. reduce the possible fire hazards with accompanying inherent
dangers to human life and property."
(S. Rep. No. 91-411, 9lst
Cong., 1st Sess. (1969), reprinted in Legislative History Federal
Coal Mine Health and Safety Act at 78). ("Legislative History''))
Further, the explicit Congressional concern with regard to the
specific hazard section 31l(c) supra is to guard against is
11 In the event a fire should occur in one
expressed as follows:
of these installations the type or equipment enclosed is of such
a nature that considerable smoke and fumes are emitted and
therefore should be coursed directly into the return aircourse
before endangering human life." (Legislative History, supra at
78) •

2section 75.1105 supra contains the same language as section

31l(c) of the 1977 Act
3

Section 212(c) contains language identical to that found at
section 3ll(c) of the the 1969 Act.

1943

Hence, the gravamen of congressional concern was not for the
hazards encountered in permanent installations, but rather the
need to vent air directly into the return from the type of
equipment whose nature is such that "considerable smoke and fumes
are emitted." This concern would clearly encompass the situation
presented herein, i.e., a battery being charged on a mobile
vehicle. According to Eslinger, such a procedure emits hydrogen,
an explosive gas, in the same fashion that such gas is released
when batteries are charged at a "permanent station". There is
insuff ient evidence in the record to permit a conclusion that
·the hazard of such an emission is less when batteries are charged
on a vehicle, than when batteries are charged at a perG~nent
station.
F-urther, the Conference Report on the 1969 Act in
section by section analysis, states with regard to Section 3ll(c)
that it '' ... provides for fire-proof structures or areas that
house certain underground equipment.
It also requires that all
other underground structures be of a fire-proof construction.
Also, air c~rrent use to ventilate these structures 0r areas
shall b.:; coursed directly into the return."
(Legislative History
supra at 1134). Hence the expressed Congressional concern is for
those structures or areas that house certain equipment"
Webster 1 s defines "house" as follows~
ii" • • 3 ~
to serve as a
shelter, 4: CONTAIN".
Hence the common meaning of the term house
does not have any connotation of permenance. Thus, I conclude
that there is an absence of any Congressional i~tent to limit the
scope of Section 311(c) to only permanent installations.
The first sentence of Section 75.1105 supra requires as
pertinent, that "battery-charging stations" be housed in fire
procf structures or areas. Neither the 1977 Act, nor the 1969
Act, nor the regulations set forth in volume 30 of the Code of
Federal R.2gulations, define any of the relevant terms of section
75.1105 sutira such as "battery charging stations 11 , or "electrical
installations". Hence, reliance is placed on the common meaning
of these terms.
Webster~ defines "station" as ... 2:
the place
or position in which something or someone stands or is assigned
to stand or remain." "Standu··is defined as:
" ... (9b) to occupy
a place or location." Nebster's defines "occupy" as ... 2a: to
fill up (a nlace or extent)." Hence the common usage of the term
"station" does not include a connotation of permanence. Thus, I
conclude tha~ a golf cart, when parked, i.e., standing in a
certain place and having its battery charged,
considered a
"station", and as such is within the purview of the first
sentence of Section 75.1105 supra.
4.

The qolf cart was an area enclosing an electrical

The second sentence of Section 75.1105 supra requires, that
"air currents used to ventilate structures or areas enclosing

1944

electrical installations shall be coursed directly into the
return."
The Senate Report, Legislative History supra at 78, in its
analysis of 212(c) of the Senate bill which became Section 3ll(c)
of the 1969 Act states as follows:
This section provides for certain underground
equipment that could cause fires if not functioning
properly to be placed in fireproof structures. Air
that is used to ventilate the structure and which might
contain noxious fumes must be passed directly to the
return air.
Experience has shown that such a requirement will
reduce the possible mine fire hazards with accompanying
inherent dangers to human life and property.
In the
event a fire should occur in one of these installations
the type of equipment enclosed is of such a nature that
considerable smoke and fumes are emitted and therefore
should be coursed directly into the return aircourse
before endangering human life.
Thus, as explained in the Senate Report, Legislative
History, supra, at 78, the 11 installations 11 that were of a concern
to Congress are those that enclose the type of equipment that are
of "such a nature that considerable smoke and fumes are
emitted ..• " Hence, since hydrogen, an explosive gas, is released
when batteries are hooked up to a charger on the golf cart, it is
consistent with Congressional concern to hold that the smoke and
fumes thus produced should be coursed directly to the return.
It next must be analyzed whether the golf cart in question,
when parked for the purpose of having its batteries charged by
the charger on the cart, is considered an "electrical
installation" within the purview of the second sentence of
Section 75.1105, supra. Reliance is placed on the common usage
of the term "installation".
"Installation" is defined in
Webster's as follows: "··· 2(a): something that is installed for
use".
"Install 11 is defined in Webster's as follows:
"··· 3: to
set up for use or service".
"Set up" is defined in Webster's as
follows:
" .•. 5(b): to assemble the parts of an erect position
for use or for operation." Hence, once the golf cart in question
is set up to be used to facilitate the charging of batteries
i.e., the cart is parked and the on-board charger, is hooked-up
to and charging the batteries, it is clearly an installation.
An alternative analysis, is that the second sentence of
Section 75.1105, supra is to be read in connection with first
sentence (See, Clinchfield Coal Co., 4 FMSHRC 465, at 467 (Judge
Melick, 1982), and that the term "electrical installations" in
the second sentence refers to those set out in the first
sentence. Hence, air currents ventilating an area enclosing an

1945

electrical installation i.e., a battery charging station, shall
be coursed directly into the return.
(See
, 5 FMSHRC
1577, at 1579 (Judge Broderick) (1983). Thus, since the golf
cart in question was being used as a battery charging station
(See E, (2)
, the air currents in the area in which it is
located shall be coursed directly to the return (Section 75.1105,
supra). Since
is not contested that the air in the air
currents in the area where the golf cart was parked was not being
coursed to the return it is clear that section 75.1105 has been
violated.
I find that a penalty of $20
appropriate for each of the
two citations in Docket No. LAKE 91-57, and for each of the
violative conditions cited in Docket Nos. LAKE 91-99, LAKE 91107, and LAKE 91-109.
R.gcket Nos. LAKE 91-57 {Citation No. 3538517), LAKE 91-70.
(Citation No. 3220619) and LAKE 91-87 (Citation 3220799)
A.

Docket No. LAKE 91-57
The parties stipulated as

follows~

On October 2, 1990 Inspector Robert Montgomery
conducted an inspection in mine No. 24 and found that
the oxygen content in the No. 1 West Bleeder entry from
the No. 3 crosscut inby to the upper corner was less
than 19.5 volume per centum. The lowest measurement
18.2 volume per centum at the No. 9 crosscut an air
sample bottle was collected. There are air operated
pumps in this entry. This
the active bleeders for
the long wall P 16 off the North entries. The
inspector issued Citation No. 3538517 for an alleged
violation of 30 C.F.R. § 301.
(sic) (Joint Exhibit 1,
Par.21)
B.

Docket No. LAKE 91-87

The parties stipulated as follows:
On November 27, 1990 Inspector Robert Cross
conducted an inspection in the No. 24 Mine and found
that the 1st west bleeder off the 2 main north entry
was not being ventilated by a direct current of air
containing not less than 19.5 per centum of oxygen. At
No.6 crosscut the oxygen content measured 18.8 per
centum. An air samples was collected to substantiate
this citation. The inspector issued Citation No.
3220799 for an alleged violation of 30 C.F.R. § 75.301.
(Joint Exhibit 1, Par.22)

1946

C.

Docket No. LAKE 91-70

I.
The parties stipulated as follows:
On September 14, 1990 Inspector Robert Stamm
conducted an inspection in Mine No. 26 and found that
the 16 north active longwall 2 bleeder entry was not
being ventilated by a direct current of air containing
not less than 19.5 per centum of oxygen. At a location
60 feet outby survey station 710 feet the oxygen
content measured 18.6 per centum. The inspector issued
Citation No. 3220619 for an alleged violation of 30
C.F.R. § 301.
(Joint Exhibit 1, Par.23)
The cited standard, 30 C.F.R.
follows:

§

75.301, provides in

as

All active workings shall be ventilated by a
current of air containing not less than 19. volume per
centum of oxygen, not more than 0.5 volume per centum
of carbon dioxide, and no harmful quantities of other
noxious or poisonous gases . . . .
Essentially, it is not contested that the various oxygen
readings cited in the citations at issue, were obtained in
bleeder entries which are part of the bleeder system. The
readings obtained are not at issue, and the only issue for
resolution is whether the area in which readings were taken i.e.
within a bleeder entry is to be considered, "active workings".
The parties further stipulated as follows:
Petitioner and Respondent stipulate that
LAKE 91-87 and 91-70 are representative of all the
cases involving whether 30 c..,F.R. § 75.301 is
applicable. The parties further stipulate that the
courts decision shall be applicable to LAKE 91-57,
Citation No. 3538517, LAKE 91-87 and LAKE 91-70. The
parties reserve the right to appeal the courts decision
on whether 30 C.F.R. § 75.301 is applicable.
II.
Testimony adduced by petitioner's witness Robert Stamm, and
Respondent's witness Jeffrey Bennet tends to establish that, once
a week, at least one of the bleeder entries is traversed by a
miner in order to obtain methane readings at an evaluation point
located in bleeder entry. Also, one of the bleeder entries in
question contained water pumps. Eslinger indicated that one of

1947

Respondent's pumpers had told him that he went into the entry
daily to check the pumps. Thus, it is Petitioner's position that
the entries in question should be considered active workings, as
miners are required, on a regular basis, to traverse them in
order to work.
Petitioner further argues that, accordingly, if
these entries are not to be considered active workings, and the
quality of the air is not to be checked, then the miners
traversing these entries would be subject to the hazards of
exposure to inadequate oxygen or, harmful gases. Also,
Petitioner argues that if miners do not go into these entries to
maintain water pumps, then accumulated water might not be pumped
out. Accordingly, there is a risk that water in the entries
might accumulate to the point where the water would be of such a
quantity as to prevent methane gas from escaping from the gob,
thus creating a potentially explosive atmosphere.
The issue raised in this case has already been litigated
before three of the Commission judges.
In U.S. Steel Corp., 6
FMSHRC 291 {1984), Judge Koutras was presented with the issue as
to whether carbon dioxide readings an excess 0.5 percent taken at
a bleeder evaluation point were violative of of Section 75.301,
supra. Judge Koutras, concluded that the Operatoris argument was
sound and logical that"··· when read together with the other
standards found in part 75, a bleeder entry is not active
workings . . . . 11 (6 FMSHRC, supra at 307)
Further, Judge Koutras
found, in essence, that the fact that a certified examiner must
travel to the bleeder evaluation points once a week to make an
inspection, does not place these point within the purview of
Section 75.301 supra.
In Rochester and Pittsburgh Coal Co., 11
FMSHRC 1318 (1989), I was presented with the same issue and
concluded that Judge Koutras' decision was well founded, and
chose to follow it, concluding that a bleeder system is not a
part of the active workings of a mine.
In Rusthon Mining Co., 11
FMSHRC 1506 (1989), this same issue was presented to Judge Melick
who decided to follow U.S. Steel, supra, and Rochester and
Pittsburgh Coal Co., supra and found that"•·· bleeder evaluation
point No. 9 here cited is notwithiff the [active workings] of the
subject mine". (Rusthon, supra at 1507).
I choose to follow my previous decision in Rochester and
Pittsburgh Coal Co., supra, inasmuch as it was based on the well
founded decision of Judge Koutras in U.S. Steel Corp., supra and
was followed by Judge Melick in Rusthon, supra.
I do not find
Southern Ohio Coal Co. v. FMSHRC, (Civ. No. 90-1827, unpublished
decision, August 14, 1991, 4th Cir.) cited by Petitioner to be
relevant to a disposition of the issues at bar.
In Southern Ohio
Coal Co., supra the issue presented was whether the operator
violated 30 C.F.R. § 75.400 which precludes an accumulation of
coal in "active workings".
The Court, in Southern Ohio, supra,
analyzed the evidence of record, and found that there was
substantial evidence to support the finding of the Commission

1948

that the area cited was one where miners regularly work or
travel, and was thus in an "active working".
In Southern Ohio,
supra the Court was not presented with the specific issue herein
i.e. whether a bleeder entry is to be considered within the
purview of "active workings." Hence it is not relevant to a
disposition of the issues presented herein.
Inasmuch as areas cited for non-compliance with section
75.301 supra, were in bleeder entries and not within active
workings, Respondent herein did not violate Section 75.301 as
charged. Therefore, in Docket No. LAKE 91-57, Citation No.
3538517 is to be VACATED, in Docket No. LAKE 91-70, Citation No.
3220619 is to be VACATED, and in Docket No. LAKE 91-87, Citation
No. 3220799 is to be VACATED.
Docket No. LAKE 91-58 (Citation Nos. 3538568 and 353856<:D_
At the hearing Petitioner moved for approval of the parties 1
agreement to settle the issues raised by the issuance of these
citations by having them amended to cite a violation of 30 C.F.R.
§ 75.1714-3(a), and affirming the proposed penalty of $20 for
each violations cited in these citations. The motion is granted
based on the representations made by counsel at the hearing on
the motion.
It is concluded that the parties 1 settlement and the
penalties agreed upon are appropriate under the Act.
Docket No. LAKE 91-88
At the hearing, Petitioner indicated that Citation Nos.
3539422 and 3539428 were VACATED. Based upon the representations
of counsel, I conclude that the vacation of these citations was
proper, and accordingly Docket No. LAKE 91-88 is to be DISMISSED.
Docket No. LAKE 91-112
At the hearing, Petitioner indicated -that the parties had
agreed to settle this case by reducing the proposed penalty from
$345 to $75.
Based on the representations and documentation
submitted at the hearing, and considering the specifics of the
violation set forth in the issued citation, I conclude that the
proffered settlement is appropriate under the terms of the Act.
Accordingly the motion to approve settlement is GRANTED.

1949

ORDER

It is ORDERED that Citation Nos. 3220508, 3539435, 3538629,
and 3538761, be amended to reflect that the violations alleged
therein were not significant and substantial. It further ORDERED
Citation Nos. 3538517, 3220619, 3220799, 3539422, and 3539428 be
VACATED..
It is further ORDERED that Docket Nos. LAKE 91-70,
LAKE 91-87, LAKE 91-88 be DISMISSED. It is further ORDERED that
Citation No. 3538909 be amended to reflect the fact that the
violation alleged therein was not significant and substantial.
It is further ORDERED that Respondent pay $690 within 30 days of
this decision as civil penalty for the violations found herein"

~·~ L'-/

Avram Weisberger
Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the SolicitorQ U.S. Department of
Labor, 230 South Dearborn Street, 8th Floor, Chicagov IL 60604
(Certified Mail)
Gregory S. Keltner, Esq., Old Ben Coal Company, 50 Jerome Lane,
Fairview Heights, IL 62208 (Certified Mail)
nb

1950

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

DEC 19 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JOHN VAN ALLEN,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 91-543-DM
Noralyn Mine & Mill

Vo

IMC FERTILIZER, INC.,
Respondent
DECISION

Appearances:

Glenn M. Embree, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia for the
Complainant;
Daintry E. Cleary, Esq., Holland & Knight, Tampa,
Florida, for the Respondent.

Before:

Judge Melick

This case is before me upon the complaint by the Secretary
of Labor on behalf of John Van Allen, pursuant to section
105(c) (2) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the "Act," alleging that IMC Fertilizer,
Inc., (IMC) suspended Mr. Van Allen on February 9, 1990, in
violation of section 105(c) (1) of the Act. J; More particularly
1/

Section 105(c) (1) of the Act provides as follows:
"No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against
or otherwise interfere with the exercise of the 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 mine-rs or
applicant for employment has instituted or caused to be

1951

it is alleged that Van Allen, employed by IMC as an electrician,
refused on February 9, 1990, to install a NEMA Type 1 electrical
junction box in an unsafe location. 2/ Van Allen maintains that
as a result of such refusal he was unlawfully suspended from work
for 35 hours. He seeks expungement from his employment records
of reference to this suspension and back pay and interest for
lost wages. The Secretary also seeks a civil penalty of $1,500
for the alleged violation.
Van Allen has had several years of vocational training
including a 2-year program at a technical school in electrical
subjects. He is a licensed electrician in Polk County, Florida 1
and in the City of Lakeland, and has been performing electrical
work for about 9 years. As an electrician for IMC, he was sent
on February 9, 1990, to install a junction box on a high voltage
motor in the Noralyn Mill Flotation Plant. A junction box is an
enclosure that provides mechanical protection for electrical
connections.
In this case it was used to enclose a capacitor and
wire leads exiting the motor and connecting with the conduit and
wiring.
In the flotation plant impurities are separated from the
phosphate producto It is a five to six story structure with open
and partially steel grated floorso
The mine product enters the
plant at an upper level and sand and other impurities settle to
the bottom of the flotation tanks while the phosphate ore floats
to the top. When the plant is in operation large volumes of
water are used and water pours through the gratings to the area
below -- including the area in which the junction box was to be
installed. The area is also periodically cleaned with water from
high pressure hoses. There seems to be general agreement that
the area is therefore usually wet.
On February 9, 1990, the plant was on a maintenance day and
not in operation. At the assigned location the motor was also
locked out by Van Allen so that it could not have been accidently
energized. Van Allen then removed the existing NEMA Type 4
junction box. He then noticedthat·the replacement box he was
provided was not what he deemed to be of the correct NEMA
classification. It was a NEMA Type 1 box having openings in its
fn. 1 (continued}
instituted any proceeding under or related to this Act or has
tes~ified 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. 11
2
/

NEMA (National Electrical Manufacturers Association}
classifications explained in Exhibit C-2 provide a uniform
industrywide system of classification for electrical enclosures.

1952

corners and was not waterproof. According to Van Allen if water
and feed material were to accumulate around the open lugs and if
a ground should become broken, an employee touching the motor or
box could be electrocuted.
Van Allen testified that he had been trained in the NEMA
classifications and observed that a NEMA Type 1 box is an indoor
box which should not be exposed to rain, dust, or water
conditions. A NEMA Type 4 box on the other hand is designed for
outdoor use and for wet conditions. Concerned about the use of a
NEMA Type 1 box under the circumstances, Van Allen contacted
electrical foreman Rainer Theiss, and advised him that the NEMA
Type 1 box was not suitable for the noted location and that he
needed a NEMA Type 12 box. 3 /
Theiss did not then order Van
Allen to install the Type 1 box but told him only to continue to
prepare the box for installation.
Subsequently, when Van Allen went to the electrical shop for
parts, he met with Steve Davis, the IMC maintenance
superintendent in Davis 1 nearby office. After explaining the
problem to Davis, Davis agreed that Van Allen could use anything
to make the NEMA Type 1 box safe in Van Allen's opinion,
apparently suggesting the use of tape and a sealant. Van Allen
admits that he could thereby have made the box waterproof but
agreed to do this only on a temporary basis until such time as a
NEMA Type 4 or Type 12 box could be obtained and installed.
According to Van Allen, he would thereby "give them the
opportunity to get their plant back into operation and a correct
box [could] be later installed." Van Allen refused to do this
however, when Davis purportedly stated that it would have to be
on a permanent basis.
Curtis Wilson, an electrician's helper, was assisting
Van Allen when the issue arose. After Van Allen refused to
install the NEMA Type 1 box, he told Wilson to locate electrical
foreman Theiss. According to Wilson when Theiss later arrived,
Theiss told Van Allen that it was the correct box and ordered him
to install it. van Allen refused ....and aske-d for a "safety man,"
3/

It is not disputed that a NEMA Type 12 box, just as a
NEMA Type 4 box, would provide water protection under the NEMA
classifications. See Exhibit C-2. None of the classifications
would appear on their face to be applicable to the enclosure at
issue herein since it was for a 2300 volt motor and the cited
standards are limited to enclosures for electrical equipment of
"1000 volts maximum." It is also noted that compliance with NEMA
standards is not required at this plant, that the Federal Mine
Safety and Health Administration (MSHA) does not enforce the NEMA
standards and nothing in the cited standards prohibits the
installer of a Type 1 enclosure from providing his own sealant
and waterproofing.

1953

purportedly a procedure under the union contract. Van Allen then
agreed to "prep" the box but still refused to install it.
Wayne Scott, another IMC electrician, accompanied Theiss to
this meeting with Van Allen. He overheard Van Allen state that
he would perform any other work but would not install the NEMA
Type 1 box. Jim Mathis, another IMC electrician, also heard the
conversation between Van Allen and Theiss. Mathis added that Van
Allen also stated during the conversation that if Theiss insisted
that he install the box, he wanted a "safety man." Theiss then
told Mathis to leave the area and he did.
on February 22, 1990, Harry Verdier, an inspector for the
Federal Mine Safety and Health Administration (MSHA), examined
the NEMA Type 1 junction box that had later been installed at the
location at issue and observed that it had been caulked in an
apparent attempt to waterproof it. He cited the box under the
mandatory standard at 30 C.F.R. § 56.12030 because he thought in
a curious shift in the burden of proof, that it could not be
proven to be waterproof. 4 /
Even though he apparently believed
the box not to have been waterproof he nevertheless did not
believe that the cited box created either an "imminent danger" or
a "significant and substantial" hazard but rather concluded that
an injury or illness was 11 unlikely 10 (See Exhibit C-5A). 5 /
IMC Maintenance Superintendent Steve Davis is a graduate
electrical engineer and has significant experience in electrical
installations and maintenance. According to Davis, a junction
box is merely an enclosure for the leads from the motor and to
the conduit from the electric starter. It provides mechanical
protection for the wires. According to Davis, there was no need
for a waterproof NEMA Type 4 or 12 box at the cited location and
he noted that in any event whatever type box was used it would be
mounted onto the motor with only a sealant for waterproofing.
Thus it is implied that if a sealant was adequate for mounting,
it should also be adequate to waterproof the box itself-- as was
done here. Davis also opined that the cited box was satisfactory
in any event since it was caulked,,~ealed and watertight. He
also noted that if water should accumulate in a junction box
nothing would happen in any event because the connections inside
were protected with waterproof tape.

4
/

30 C.F.R. § 56.12030 provides that "[W]hen a potentially
dangerous condition is found it shall be corrected before
equipment or wiring is energized."
5
/

The citation was subsequently settled by agreement in
which IMC neither admitted nor denied the violation (Exhibits R-6
and R-7).

1954

Davis testified that around 11:00 a.m., on February 9,
Theiss called advising him that Van Allen was refusing to install
a junction box and had become belligerent insisting that he would
not install "this piece of shit." Davis testified that before
making a decision on the issue, he wanted to talk to Van Allen
and determine for himself what the problem was. Subsequently
Van Allen came into his off ice and restated his refusal to
install the NEMA Type 1 box. Davis testified that he told
Van Allen that with their taping standards, it would be weather
proof and told him to therefore go ahead and install the box.
Van Allen continued in his refusal and asked for the "third step
of the grievance procedure." Davis then conferred with
electrical superintendent Jim Adair, also an electrical engineer.
Adair suggested that Van Allen be permitted to make the box
watertight to his own satisfaction.
Davis then returned to his· office and presented Van Allen
the option that "if you feel like it needs to be a watertight
box, I'll buy you the materials or whatever you want to make this
a watertight box. 11 According to Davis, Van Allen responded that
"he did not know if that was good enough" and continued his
refusal to install the box. According to Davis, both Jim Adair
and Bob Myers, another electrical engineer he consulted 7 found
that using the NEMA Type 1 box would be safe under the
circumstances. Davis testified that after obtaining these
additional opinions, he again met with Van Allen and told him
that he was being suspended for his refusal to install the
junction box.
Rainer Theiss, IMC electrical foreman testified that
February 9, was a scheduled repair day and that the electrical
power was accordingly disengaged. According to Theiss, van Allen
first contacted him by telephone advising him in reference to the
Type 1 box that "I don't mount that piece of shit." When they
later met, Van Allen told him that it was not the right box and
that he would not mount it. Theiss acknowledged that Van Allen
expressed that it was a safety concern and admitted that he did
not know the difference between the NEMA Type 1 and NEMA Type 4
classifications.
Marvin Wolgast the IMC industrial relations manager
testified that Van Allen was given six points for discipline as a
result of his refusal to install the junction box and, as a
result of a three-point prior disciplinary record, was subject to
suspension.
In order to establish a prima facie violation of section
105(c) (1) the Complainant must prove by a preponderance of the
evidence that he engaged in an activity protected by that section
and that his suspension was motivated in any part by that
protected activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (1980) rev'd on other

1955

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd Cir. 1981); Secretary on behalf of Robinette v. United
castle Coal co., 3 FMSHRC 803 (1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was not motivated by the
protected activity. Failing that, the operator may defend
affirmatively against the prima facie case by proving that it was
also motivated by unprotected activity and would have taken the
adverse action in any event for the unprotected activity alone.
Pasula, supra; Robinette, supra, (the so-called Fasula-Robinette
test). See also Donovan v. Stafford Constr. Co., 732 F.2d 954,
958-59 (D.C. Cir. 1984); Baich v. FMSHRC, 719 F.2d 194, 195-96
( 6th Cir . 19 8 3 ) .
Within this general framework, it is also well-established
that in certain circumstances a miner's refusal to work
constitutes protected activity. Fasula, supra, Robinette, supra
Miller Vo FMSHRC, 687 F.2d 1994 (7th Cir. 1982); Simpson Vo
FMSHRC, 842 F.2d 453 (D.C. Ciro 1988)0 The genesis for the
recognition of certain work refusals as protected activity
the
Senate Report on the 1977 Act, which endorsed a miner's right to
refuse "to work in conditions which are believed to be unsafe or
unhealthful." So Rep. No. 91, 95th Cong., 1st Sess. 35 (1977).
In order to be protected, work refusals must be based upon
the miner's "good faith, reasonable belief in a hazardous
condition." Robinette, 3 FMSHRC 812; Gilbert v. FMSHRC, 866 F.2d
at 1439. The complaining miner has the burd.en of proving both
the good faith and the reasonableness of his belief that a hazard
existed. Robinette, 3 FMSHRC at 807-12; Secretary on behalf of
Bush v. Union Carbide Corp., 5 FMSHRC 993. A good faith belief
"simply means honest belief that a hazard exists." Robinette at
810. This requirement's purpose is to "remove from the Act's
protection work refusals involving frauds or other forms of
deception." Id. The Commission has rejected a requirement that
miners who refuse to work must objectively prove that hazards
existed. The miner must simply show that his perception was a
reasonable one under the circumstan.~es. Haro v. Magma Copper
co., 4 FMSHRC 1935 (November 1982); Robinette, supra. In
determining whether the miner's belief was reasonable under the
circumstances, the judge is to look to the.miner's account of the
conditions precipitating the work refusal, and to the operator's
response in order to evaluate the relevant testimony as to
"detail, inherent logic and overall credibility." Robinette,
3 FMSHRC at 812. The perception of a hazard must be viewed from
the miner's perspective at the time of the wo.rk refusal.
Secretary on behalf of Pratt v. River Hurricane Coal Co.,
5 FMSHRC 1529 (September 1983); Haro, supra. The Commission has
eschewed the setting of a bright line threshold of severity in
determining 11 how severe a hazard must be in order to trigger a
miner's right to refuse work" Pratt v. River Hurricane Coal Co.
at 1533, instead it has preferred to resolve.that issue on a

1956

case-by-case basis. Id., See also, Price v. Monterey coal Co.,
12 FMSHRC 1505 (1990).
At issue herein is a work refusal based on an asserted
safety hazard to miners other than the complainant himself. In
secretary on behalf of Philip Cameron v. Consolidation Coal Co.,
7 FMSHRC 319 (March 1985), aff'd sub nom. Consolidation Coal v.
FMSHRC, 795 F.2d 364 (4th Cir. 1986), the Commission held that
"in certain limited circumstances," the protection of section
105(c) of the Mine Act does attach to a work refusal premised on
hazards to others:
Therefore, we hold that a miner who refuses to
perform an assigned task because he believes that to do
so will endanger another miner is protected under
section 105(c) of the Mine Act, if, under all the
circumstances, his belief concerning the danger posed
to the other miner is reasonable and held in good
faith. Bjes v. Consolidation Coal Co., 6 FMSHRC 1411;
1418 {June 1984), citing Secretary on behalf of
Robinette v. United Castle Co., 3 FMSHRC at 807-12. We
emphasize, however, the need for a direct nexus between
performance of the refusing miner 1 s work assignment and
the feared resulting miner 1 s work assignment and the
feared resulting injury to another miner. In other
words, a miner has the right to refuse to perform his
work if such refusal is necessary to prevent his
personal participation in the creation of a danger to
others. Of course, as with other work refusals, it is
necessary that the miner, if possible, "communicate, or
at least attempt to communicate, to some representative
of the operator his belief in the • . • hazard at
issue," Sammons v. Mine Services Co., 6 FMSHRC 1391,
1397-98 (June 1984) (emphasis added), quoting Secretary
on behalf of Dunmire and Estle v. Northern Coal Co.,
supra, 4 FMSHRC at 133, and that the refusal not be
based on "a difference of opinion -- not pertaining to
safety considerations --over-the proper way to perform
the task at hand." Sammons, 6 FMSHRC at 1398.
I find, under the circumstances of this case, that while Van
Allen could otherwise have properly asserted a work refusal
premised on a hazard to others, his work refusal was not a
reasonable one nor one made in good faith and therefore was not
protected by section 105(c) of the Act. Consequently, IMC did
not violate the Act by suspending Van Allen under the terms of
its disciplinary policy. I reach this conclusion initially on
the basis that the "hazard" presented to Van Allen was not
sufficiently serious or imminent to support the credibility of a
reasonable and good faith belief in a hazard sufficient to
warrant his continued refusal to comply with orders to install
the NEMA Type 1 junction box.

1957

While the Respondent's experts denied there would have been
any hazard the Complainant himself described what appears to be
an unlikely scenario necessary to create a hazard in the
following colloquy:
THE COURT: And what would happen if water got into the
box during operation of the plant?
THE WITNESS: A mixture of water and feed on a delta
system, it could build up to one side of the capacitor
that was mounted -- would be mounted inside of it.
THE COURT:
THE WITNESS:

You say feed, f-e-e-d?
Yes, sir, phosphate feed.

THE COURT: That's the material that you say is
dripping down from the upper parts of the structure?
THE WITNESS:

Correct.

THE COURT:

All right.

THE WITNESS:

Correct.

THE COURT:

All right.

And it's mixed with water?

And that could do what?

THE WITNESS: It could cause it to wash into the box,
build up to one side, and hit the open lugs of the
capacitor.
THE COURT:
THE WITNESS:
THE COURT:

Open lugs, did you say?
Yes, sir.
What would happen then?

THE WITNESS: At that point.as_ long as the frame ground
was good in the motor, really nothing, as long as it
only had one leg.
If somebody came and broke that frame ground for
any reason, then he would become the potential. He
would get between the 2300 and go to ground. And it
could -- I would say would -Q.

(By Mr. Embree).

It would do what?

A.
It would do a lot of damage to him, if not kill
him. It would probably become fatal to him.
(Tr.
52-53).

1958

The necessary combination of events to create a hazard is
even more remote when considering the credible testimony of IMC
expert, electrical engineer Davis.
Davis testified that any
water dripping into the Type 1 box would drain right through
because of its holes and that the leads inside would customarily
be sealed with waterproof tape.
Indeed even the MSHA inspector
called as a witness by the Complainant, who cited the
subsequently installed Type 1 box as not being waterproof,
concluded that the condition was not "significant and
substantial" and that injuries were "unlikely."
However, even assuming, arguendo, that Van Allen initially
entertained a good faith and reasonable belief in a potential
hazard, upon communicating such information to IMC officials the
perceived danger was addressed by IMC.
According to Van Allen
himself, he could have made the NEMA Type 1 box waterproof and
presumably safe to his satisfaction in order to enable the plant
to resume operations.
Indeed Maintenance Superintendent Davis
offered Van Allen the opportunity to get whatever supplies he
deemed necessary to make the box safe. Van Allen's refusal to do
this shows clearly that his continued work refusal then was
neither reasonable nor made in good faitho
The Commission has
made clear that a work refusal cannot be based on a mere
difference of opinion not pertaining to safety considerations
over the proper way to perform the task at hand i.g. providing a
water proof junction box.
Sammons, 6 FMSHRC at 1398.
Under the circumstances, it is clear that Van Allen did not
then entertain a good faith or reasonable belief in a hazard to
warrant his continued work refusal. Accordingly, the Complaint
herein must be dismissed.

ORDER
The Complaint of Discrimination is disJissed.
£

'

'

t

,.

\
I1

Distribution:
Glenn M. Embree, Esq., Office of the Solicitor, U.S. Department
of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA
30367 (Certified Mail)
William B. deMeza, Jr., Esq., Holland & Knight, 400 North Ashley,
P.O. Box 1288, Tampa, FL 33601 (Certified Mail)
/fb

1959

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

22041

DEC 2 0 1991
UNITED MINE WORKER OF AMERICA,
ON BEHALF OF DENNIS M. BLOUIR
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 91-1395-D

v.

PITT CD 91-08

U.S. STEEL MINING COMPANY,
INCORPORATED,
Respondent

Cumberland Mine

ORDER OF DISMISSAL
Before~

Judge Weisberger

Complainant has filed a statement in which he indicates his
intention to withdraw the complaint. Accordingly, pursuant to
29 C.F.R. § 2700.11, this case is DISMISSED .
. f I, ,
(. ,\....\... \,\.
f',

,

;

f

·~

-----

Avram Weisberger
Administrative Law Judge
Distribution:
Thomas D. Shumaker, UMWA, District 4, 32 South Main Street,
Masontown, PA 15461 (Certified Mail-)Billy M. Tannant, Esq., Employee Relations 600 Grant Street, Room
1580, Pittsburgh, PA 15219-4776 (Certified Mail)
nb

1960

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

22041

DEC 2 O1991
DISCRIMINATION PROCEEDING

NICHOLAS RAMIREZ,
Complainant

v.

Docket No. WEVA 91-1618-D
MSHA Case No. HOPE CD 91-07

JOSHUA INDUSTRIES,
INCORPORATED,
Respondent

No. 32 Mine

DECISION AND FINAL ORDER
Before:

Judge Melick

By decision dated November 25, 1991, the Respondent herein
was held to be in default. Accordingly, if it has not already
done so, Respondent is directed within 30 days of the date of
this decision, to pay complair.ant $3,123.62 in back pay plus
interest in accordance with this Commission's decision in
Clinchfield Coal Co., 10 FMSHRC 1493 \(1988).
I:

J

!

\

i .

\

;

i

I

i Gary Melick

'

\. · · \
..

\

\
Administrative Law 'Judge
703-756-6261
I

I

Distribution:

"·~.! ...
;

I

I

Mr. Nicholas Ramirez, Box 39, Holden, WV 25625 (Certified Mail)
Joshua Industries, Incorporated, No. 32 Mine, P.O. Box 1816,
Logan, WV 25601 (Certified Mail)
/fb

1961

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

DEC 2 3 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

Docket No. CENT 90-173-M
A.C. No. 34-01477-05504

v.

Corbin Mine

EXPLORATION
INTERNATIONAL,
Respondent

DANACO

DECISION
Appearances~

Vo Denise Duckworth, Esq.,

Before~

Judge Morris

Office of the Solicitoru
U.S. Department of Labor, Dallas, TX 75202
for Petitioner;
Donald Cook, Pro Se,
for Respondent.

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration C "MSHA 11 ) charges Respondent, Danaco Exploration International ( 11 Danaco") with violating safety regulations
promulgated under the Federal Mine Safety and Health Act, 30
u . s . c . § 8 01 et s eg • C " the Act" ) •
A hearing on the merits was held in Oklahoma City, Oklahoma,
on October 23, 1991. The parties waived the filing of post trial
briefs.
Stipulation
Danaco agrees the Administrativ.e Law Judge has jurisdiction
to hear the case.
(Tr. 78).
Citation 3447756
This citation alleges Danaco violated 30 C.F.R. § 56.12001.1

1

§

56.12001 Circuit overload protection.

Circuits shall be protected against excessive
overload by fuses or circuit breakers of the correct type and capacity.

1962

DANIEL R. LAMBERT, is an MSHA inspector experienced in electrical matters.
On June 18, 1990, he inspected Danaco.
The
quarry operated three conveyors and a rock breaker.
(Tr. 7-11,
40). Mr. Lambert found the fuse for the 7 1/2 horsepower air
compressor was too large.
This determination was made by ref erring to Article 430-51 of the National Electrical Code (NEC).
(Ex. C-5). The NEC, used by the mining industry, sets forth the
proper size device to put in the circuit for the size of the motor. A 30-amp time-delay fuse was being used and a 19.25-amp
would have been proper. A maximum size fuse of 24.75 could be
used in accordance with the NEC.
(Tr. 11-13). As a result, the
circuits were not protected against excessive overloado A short
circuit from a ground fault could create a fire, burnsu shock and
an electrocution hazard existed.
CTro 14).
Donald E. Cook, an owner of Danaco, confirmed that the fuse
for the motor to the air compressor was too large as it was a 30
amp fuse.
(Tr. 77). For this reasonu the citation should be
affirmed since the circuits were not protected against excessive
overloads as required by § 56.12001.

A portion of Mr. Cook's evidence deals with the fact that
this equipment was equipped with Cll~3B heaterso
If the heater
which acts as a thermostatv is subject to excessive current it
will heat up and automatically shut off the equipment o
(Tr o 71
72, 77).

[!

Mr. Cook argues it is better to have the equipment shut off
than to deal with the whole circuit with "live juice" in it.
(Tr. 77).
The regulation § 56.12001 requires "fuses" of the "correct
type."
The effect of the heaters is not relevant when considered
in relation to the contested regulation.
Since the circuit was not protected against overload, the
citation should be affirmed and a civil penalty assessed.
Citation No. 3447757
In examining the long conveyor belt, Inspector Lambert found
a fuse that was too large.
Instead of the 30 amp time-delay
fuse, a 19.25 amp fuse (or the closest round number of 20-amp)
should have been used.
The largest size fuse permitted would
have been 24.75.
(Tr. 17-20).

1963

In Mr. Lambert's opinion, the circuits were not protected
against excessive overload in violation of 30 CFR § 56.12001. 2
DONALD COOK, Danaco's owner, indicated he had Cll.3Bs in the
equipment. Its 10.4 amps was adequate for the equipment's size
and safe.
(Tr. 77).
The situation here is similar to the previous citation. A
30 amp fuse was in place whereas Danaco should have used a 20-amp
fuse.
The circuits were not protected against excessive overload
and I reject Mr. Cook's contrary opinion. Mr. Cook's use of the
heaters as a safer means of protection cannot prevail as a defense as to the violation of this regulation.
Citation No. 3447757 should be affirmed and a civil penalty
assessed.
Citation No. 3447758
This citation alleges a violation of 30 CFR § 56.12041. 3
Mr. Lambert issued this ci ta ti on when he detennined that the
starter switch was too small for the size motor being used for
the hydraulic pump of the rock cutter.
(Tr. 22-28). The starter
was rated at 25 horsepower and it was being used on a 30 horsepower motor. Printed on the starter was 11 25 H.P. 11 and size number 2. Printed on the motor name plate was "3 0 H.P."
The starter makes and breaks the electrical circuit to the
motor. Danaco 1 s failure to comply with the limitations on the
equipment violates custom and practice in the industry.
By way of a defense Mr. Cook denied the starter was inadequate. He indicated he is familiar with Danaco's electrical
equipment. He was using a GE No. 2 magnetic starter. It is rated for a maximum of 45 amps and goes to a 25 horsepower motor.

2

Cited supra fn 1

3

§ 56.12041 Design of switches and starting

boxes.
Switches and starting boxes shall be of safe
design and capacity.

1964

GE recommends it and the NEC will accept it.
The part number is
C21.4B heaters.
That is a 20 amp heater.
If there is an excess
of 20 amps being put through the starter, the heaters will warm
up, expand like a thermostat and shut the entire heater off.
This makes the circuit safe without dealing with live current.
(Tr. 71, Exh. R-1).
Inspector Lambert indicated the starter switch was too small.
But GE recommends it up to 45 amps. Any GE No. 2 starter on the
front reads "maximum amps 45."
(Tr. 72).
Mr. Cook believed he had half the capacity left after he
used 20 amps.
(Tr. 73).
I credit Mr. Cook's testimony as he should be familiar with
Danaco's electrical equipment. Furtheru his testimony as to the
GE No. 2 starter is uncontradicted.
Finallyr I concluded such GR
equipment capacity was of a 11 safe capaci ty 11 as required by
§ 56.12041.
Citation No. 3447758 should be vacated.
Citation Noo 3447760
This citation alleges Danaco violated 30 CoF.R. § 56.120320
Mr. Lambert issued this citation when he observed a missing
cover plate for a 120 volt lighting outlet.
The missing cover
plate was located in a circuit breaker panel.
The missing plate
exposed wiring associated with the circuit breakers.
The cover plate prevents a person from contacting exposed
wires.
The circuit breakers were similar to those found in most
homes but the voltage here was higher.
OONALD E. COOK testified the electrical panel with 6 or 8
circuit breakers is similar to those found in most homes today.
If too much current goes through·them, they automatically kick
off.
The wires were not exposed.
The circuit breaker was measured at 3 1/2 inches by 2 1/2 inches.
(Tr. 68, 70 >.

4

§

56.12032 Inspection and cover plates.

Inspection and cover plates on electrical
equipment and junction boxes shall be kept in
place at all times except during testing or
repairs.

1965

Mr. Cook agrees the cover plate was missing and technically
a cover is required, but it was unlikely anyone would stick a
finger on anything "hot." If a miner reached up high to flip the
switch he would be standing on a rubber mat.
(Tr. 69).
All of the circuit breakers were exposed.

CTr. 7 0) •

The witnesses both agree there was no cover plate on the
panel.
These facts establish a violation of § 56.12032.
At the hearing, Mr. Cook produced an electrical plug used in
the panel.
He demonstrated that only a minimal hazard would be
involved since it would be difficult to touch the live wires when
the electrical plug was in the panel. Danaco 1 s evidence does not
excuse the violation. However, it is a factor to be considered
in assessing a civil penalty since the uncontroverted evidence
reduces the gravity.
Citation No. 3447761
This citation alleges a violation of 30 C.F.R. § 56.12004. 5
Mr. Lambert issued this citation when he found the conductor
(wiring) size was insufficient in accordance with NEC 430-210
(Tr. 33-40u Ex. C-7).
In Mr. Lambert's opinion, the NBC perrni ts full load current
plus 125% to determine the necessary amperes.
(Tr. 34-35).
Mr. Lambert knew the horsepower of the motor by looking at
the nameplate on the motor.
In Mr. Lambert's view, the electrical wiring was insufficient.
(Tr. 36).

5

""•'-.

56.12004 Electrical conductors.
Electrical conductors shall be of a sufficient
size and current-carrying capacity to ensure
that a rise in temperature resulting from normal
operations will not damage the insulating materials. Electrical conductors exposed to mechanical damage shall be protected.

1966

According to Mr. Cook, the inspector assumed the motor was
30 horsepower. However, Mr. Cook measured the amperage 6 at full
load.
The ampersneter indicated it was a 20-horsepower motor.
As a result it was well within the limits of the equipment.
{Tr.
73, 74).
Mr. Cook used an amper6neter to determine what the motor was
drawing.
(Tr. 74).
~le tag on the motor showing the horsepower
at 30 was incorrect as the motor had been rebuilt by W.W. Electric in Oklahoma City.
{Tr. 75).
If it was a 30-horsepower
motor it could have a 40-amp full load.
If it was a 20-horsepower motor, a full load would be 27 according to the NECa
The
amperemeter showed Mr. Cook that all of his connections, starters and wires were legal.
Mr. Cook checked the motor with an amperemeter when he
installed it two years ago.
He and Inspector Lambert also
checked it with an amper&neter on the day of the inspectiono
(Tro 74, 78).
The pivotal issue presented here is the horsepower of the
motor.
Inspector Lambert relied solely on the motor nameplate
which showed "30 horsepower.u
While Mr. Cook did not unequivocally know the horsepower of
the motor he relied on the ampersneter measurement which indicated the motor was 20 horsepower. Mr. Cook checked the motor with
an amperemeter when it was installed two years ago, as well as at
the time of the inspection.
A motor plate of 30 horsepower would apparently be a contradiction with a designation of "full load amp 27."
Mr. Cook's testimony is unrebutted that the motor had been
rebuilt.
Further, the ampereneter showed 27 or 28 amps when it
was installed two years ago and again at the time of the
inspection.
(Tr. 78, 79).
In short, I conclude the motor was a 20 horsepower. As a
result, the electrical conductors were of "a sufficient size and
current-carrying capacity" for the motor as required by
§ 56.12004.
Citation No. 3447758 should be vacated.

6
Amperage:
the strength of a current of electricity
expressed in amperes. A dictionary of Mining, Mineral and
Related Terms, 1968, page 36.

1967

Civil Penalties
Section llOCi) of the Act mandates consideration of six criteria in assessing civil penalties.
Danaco, described as a quarry and a rock breaker with three
conveyors, appears to be a small operator and the penalties provided in this order are appropriate.
Inspector Lambert testified the proposed penalties would not
affect Oanaco's ability to continue in business.
The parties agreed Danaco had a low incidence of prior adverse history.
(Tr. 5, 6).
Danaco was negligent in that the incorrect fuses and the
missing cover plate in the electrical panel were obvious conditions. Further, the operator should have observed these defects.
The gravity involving the missing fuses was high since an
excessive overload could be placed on the electrical system. If
a short circuit occurred, fire, shock and electrocution could
resulto
The gravity involving the missing cover plate is low since
it is unlikely that anyone could contact any exposed energized
wires.

The operator abated the violative conditions.
accordingly entitled to statutory good faith.
~or

the foregoing reasons I

Danaco is

enter the following:

ORDER

1. Citation No. 3447756 is AFFIRMED and a penalty of
$20 is ASSESSED.
2. Citation No. 3447757 is AFFIRMED and a penalty of
$20 is ASSESSED.
3.

Citation No. 3447758 is VACATED.

1968

4. Citation No. 3447760 is AFFIRMED and a penalty of
$15 is ASSESSED.
5•

Citation No . 3 4 4 7 7 61 is VACA TED •

Law Judge

Distribution~

V. Denise Duckworth, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Donald Cook, DANACO EXPLORATION INTERNATIONAL, Post Office
Box 277, Pittstown, OK 74842
(Certified Mail)

sh

1969

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

22041

December 24, 1991

DISCRIMINATION PROCEEDING

CLIFFORD MEEK,
Complainant

Docket No. LAKE 90-132-DM
MSHA Case No. UC MD-90-06

v.

ESSROC CORPORATION,
Respondent
DECISION

Appearances:

Robert J. Tscholl, Esq., Canton, OH,
for Complainant;
John c. Ross, Esq., canton, OH, for
Respondent.

Before:

Judge Fauver

This is a discrimination complaint under section 105(c) (1) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
~

Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and further findings in the Discussion below:
FINDINGS OF FACT

Respondent, Essroc Corporation, 1 has a cement division
known as Essroc Materials, Inc., which owns and operates a grinding
plant in Stark County, Ohio (hereafter the "Middlebranch Plant")
where it grinds mined materials such as limestone and clay, and
stores and ships cement, for sales in or substantially affecting
interstate commerce.
This plant was purchased by Essroc from
United States Cement Company on or about February 27, 1990. Upon
acquisition, with minor exceptions Essroc used the same plant,
equipment, facilities, workforce, management personnel, line of
products, etc., as U.S. Cement had used.
Only two Middlebranch
Plant employees of U.S. Cement were not employed by the Essroc
Middlebranch Plant: John Bickel, an injured employee who remained
with use, and the Complainant, Clifford Meek, who was the only use
1.

1

Hereafter "Essroc" refers to
Essroc Corporation acting
through its subsidiary Essroc Materials, Inc.

1970

Middlebranch Plant employee whose application for employment with
Essroc was denied.
2.
Essroc's acquisition of the Middlebranch Plant was part
of its purchase of approximately 70% of the assets of use,
including USC plants in Bessemer, Pennsylvania, Lowellville, Ohio,
Toledo, Ohio, and Middlebranch, Ohio.
3.
USC's Middlebranch Plant Manager, Marvin Bragg, and
Plant Supervisor, Dale Lewis, became the Plant Manager and Plant
Supervisor of the Essroc Middlebranch Plant.

In
mid
1989,
Coplay
Cement
Company
(Essroc 1 s
2
predecessor) began acquisition negotiations with USC.
By
January, 1990, it was evident that the acquisition of selected
assets of USC would take place.
4.

5.
Michael Roman, USC's Vice President of
1
Relations, who was to become Essroc 1 s Manager of Human Resources
for the Great Lakes Division, directed USC plant managers at
Bessemer, Pennsylvania, Lowellville, Ohio, Middlebranch, Ohio, and
Toledo, Ohio to evaluate their hourly employees on forms provided
by Essroc.

Marvin Bragg, Plant Manager of the USC 1 s Middlebranch
Plant, who was to become Essroc vs Middlebranch Plant
,
filled in the evaluation forms on his hourly employees and sent
them to Roman.
The forms are dated January 26, 1990.
Bragg's
evaluation form on Meek rated him "Poor" on "Attitude Toward Work
& Company," with the following comments:
6.

This employee has ability to do a lot but is
unwilling,
his
attitude is very close to being
insubordinate,
also cannot get along with other
employees.
7.
On January 31, 1990, USC's Middlebranch Plant hourly
employees were requested bymanag~ment to attend a safety meeting
with MSHA Inspector Richard L. Jones, around 7:00 a.m. Jones had
asked management to arrange the meeting. About 10 or 11 employees
attended. Jones said the purpose of the meeting was to discuss any
safety or heal th concerns.
A number of employees were nervous
about raising such matters, for fear that their remarks would get
back to management. The inspector assured them that their remarks
would be protected by the Mine Act, and that the company could not
retaliate against them. Several employees raised safety concerns,
including safety defects in the crane and dust control problems.
2

Coplay Cement created Essroc as its subsidiary to own and
operate the facilities acquired from use.

1971

Meek pointed out some electrical hazards. At one point, Meek asked
the inspector why the company appeared to know in advance when the
inspector was coming for an inspection. As an illustration, Meek
described a recent event that gave him concern about prior
knowledge of inspections.
The inspector became upset at Meek' s
question and took it as an accusation that he was violating the
law.
He raised his voice in anger and verbally confronted Meek.
Meek decided to leave the meeting at that point. As Meek and his
helper were leaving the building, Meek saw the Plant Supervisor,
Dale Lewis, and stated, referring to the inspector, "That guy's
nuts. " Tr. 3 5.
8.
Later that morning, Inspector Jones went to Dale Lewis 0
office, where he saw Lewis and the Plant Manager, Marvin Bragg"
They asked him how the meeting went and he said it was fine with
the exception of one employee. The inspector went on to complain
about Meek, saying that he accused him of taking a bribe and that
he had a bad attitude. After Meek filed a discrimination complaint
for not being hired by Essroc, the inspector wrote an account of
his meeting with the employees and his conversation with the
supervisors.
The
inspector's
written
statement
differs
substantially from the testimony of a number of witnesses in this
case.
The inspector was subpoenaed by Complainant to testify at
the hearing of this case, but MSHA, contrary to the Act, refused to
comply with the subpoena.
Rather than await enforcement of the
subpoena in a United States District Court, Complainant offered in
evidence the inspector's written "notes" about his meeting with
employees and his later conversation with plant management.
The
inspector's statement was not contemporaneous with his inspection,
was not under oath, and was not subject to questioning under oath.
His statement is not convincing to me as compared to the testimony
of witnesses at the hearing who were subject to examination and
cross-examination.
9.
I find that the inspector became angry at Meek and
communicated his anger to Meek's supervisors, Lewis and Bragg, in
criticizing Meek for his complaint about possible prior knowledge
of MSHA inspections.
10. Bragg was concerned about the inspector 1 s angry reaction,
and called Michael Roman, USC• s Vice President of Industrial
Relations. Roman also became concerned, and sent Jim Clark, a USC
safety director, to the Middlebranch Plant, to see if he could help
assuage the inspector and see that the inspector was not
retaliatory toward USC because of Meek's alleged remarks.
11. The inspector conducted an inspection and issued 15
citations. One was a "significant and substantial" citation, which
resulted in the crane being shut down for repairs for about a day
and a half.

19 7 2

12. After the citations were issued, Dale Lewis, the Plant
Supervisor, contacted James Gallentine, an hourly employee, on or
about January 31, 1990.
He asked him what Meek had said to
Inspector Jones at the employees' meeting with the inspector.
Lewis told Gallentine that Lawrence Ousky, USC's President, was
upset about Meek's remarks to the inspector and wanted to have Meek
fired for making the inspector angry.
13. That night, when Meek began his shift, Gallentine took
him aside and warned him: "Watch your back. LarryOusky wants you
fired."
Tr. 35.
Meek asked him "How do you know this?" and
Gallentine replied, "Dale Lewis told me. I ain't supposed to tell
you so don't say anything. Just watch your back." Tr. 35.
14. Based on Gallentine's warning, Meek started carrying a
concealed tape recorder to record any contacts with management. He
recorded four of these.
Two recordings he found irrelevant, and
erased, two he found relevant and retained
They were put in
evidence as Sides A and B of a tape cassette, Exhibit C-lo
o

15. One of Meek's recordings (Side A and the beginning of
Side B of Exhibit C-1) is USC Plant Manager Bragg's meeting with
hourly employees on February 27, 1990.
Bragg told the employees
that Essroc was purchasing the plant from use, that they were being
terminated by USC and would have to file a job application with
Essroc if they wanted to work at the plant.
They were told to
apply for the same job they had with USC, if they wanted to work
for Essroc, and to return for a meeting the next day.
16. Early the next day, Bragg telephoned Meek and told him it
was not necessary for him to come to the February 28 meeting,
because Essroc was not going to approve his job application.
17. Meek decided to attend, anyhow, and again carried a
concealed tape recorder.
When Roman and Bragg saw him in the
meeting room (before the meeting), they asked him to talk with them
privately, in the foyer. Meek secretly taped this conversation, on
Side B of Exhibit C-1, ~tran§pribed ~t pages 54-59 of the
transcript. I incorporate Sides A and B of Exhibit C-1 as Findings
of Fact as to the statements made by the persons recorded.
18. In mid February, 1990, a team of three Essroc supervisors
(David J. Coale, Director of Human Resources, David Repasz, a plant
manager of a Coplay Cement plant, and Joseph Gaffney) met with two
USC supervisors (Michael Roman and Marvin Bragg) to review the
evaluations at the Middlebranch Plant and to select the USC
employees to be hired by Essroc at that plant.
19. By the time of the above meeting, it was known by Bragg
and Essroc that Bragg would be Essroc' s Plant Manager of the
Middlebranch Plant, and it was known by Roman and Essroc that Roman
would be Essroc's Manager of Human Resources for the Great Lakes

19 73

Division, which would include the Middlebranch Plant.
20. Marvin Bragg and Michael Roman were key figures in
Essroc's selection of Middlebranch Plant hourly employees, since
Bragg would be Essroc's Middlebranch Plant Manager, and Roman would
be Essroc's Manager of Human Resources over a multi•plant region
that would include the Middlebranch Plant.
21. The key recommendations concerning Essroc's rejection of
Clifford Meek's application for employment were those of Marvin
Bragg, who told the Essroc supervisors that Meek had repeatedly
stated publicly that he could not work for Bragg and who, in
Bragg's opinion, had a poor attitude, and of Michael Roman, who
supported Bragg's negative recommendation.
Bragg and Roman
supported their recommendation not to hire Meek with four documents
selected from Meek's personnel file and the written evaluation form
Bragg had filled out for Essroc.
22. Two of the documents that Bragg and Roman presented at
the mid February meeting, selected from Meek's personnel file, are
Separation Notices signed by Andy Coccoli, a former USC Plant
Manager of the Middlebranch Plant, dated February 13, 1987, and
April 24, 1987.
These documents contain the following checked
items:
From the February 1.3, 1987, form:
RaUng (Check ONE opposite EACH Item)
SKILL:
APPLICATION:
CONDUCT:
PRODUCTION:

Good O; Fair O; Poor 0
Good Q Fair O; Poor 0
Good O; Falt Q Poor Gr'
Good O; Fair Q PoorO

From the April 24, 1987, form:
Rating (Check ONE opposite EACH Item)
SKILL:
Good Q Fair Q PoorO
APPLICATION: Good Q Fair Q Poor~
CONDUCT:
Good Q Fair O; Poor la"
PRODUCTION: Good O; Fair O; Poor 0

.. J

23. Andy Coccoli testified that he did not check these items
on Meek's separation notices and, to the contrary 1 he found Meek to
be an excellent employee in all areas,
including skills,
performance, attitude, cooperativeness, etc., and would not have
marked anything "poor" concerning Meek.
Each form has a printed
question, "Would you re-employ?
(Give reason)." The February 13
form has a typed answer, "Yes." The April 24 form has no answer.
I credit Coccoli's testimony, and find that the above separation
notices were check-marked "Poor" by someone other than Coccoli, in

19 74

an effort to disparage Meek.
This tampering with a supervisor's
signed documents raises a serious cloud over the integrity and
credibility of USC's evaluation of Meek.
24. A third document that Bragg and Roman presented at the
mid February meeting, selected from Meek's personnel file, is an
Employee Evaluation Report on Meek prepared by Bragg and concurred
in by his subordinate Dale Lewis, Plant Supervisor, dated January
18, 1989.
This report rates Meek as 11 Poor 11 on "Cooperation,"
11
"Attitude,
and "Initiative" and "Good" on "Work Habits" and
"Attendance."
It gives him a qualified~ recommendation for
"Continued employment," stating:
Must improve. This empl'Oyee has made statements to other
employees that he is not afraid to go to jail for assault
referring to Dale Lewis and myself [Marvin Bragg].
25. The last document that Bragg and Roman selected from
Meek's personnel
le to present at the mid February meeting is a
Separation Notice, September 25, 1989, signed by Bragg which rated
Meek as follows:
Rating (Check ONE opposite E.ACH Item)
SKILL:
Good O; Fair lil(Poor 0
.. ·
APPLICATION: Good O; Fair O; Poor~
CONDUCT:
Good D; Fair D;.f6or i f
PRODUCTION: Good D; Fair~ Poor 0

The printed question on this form: "Would you re-employ? (Give
reason)" was left blank by Bragg.
26. In the case of the four USC personnel documents referred
to above, USC retained Meek in its employment or reemployed him
after layoff after the date of each document, and did not
discipline him, reprimand him, or caution him in any way because of
such documents. use did not present any of the documents to Meek
while he was employed by use, and did not advise him he was being
evaluated.
DISCUSSION WITH FURTHER FINDINGS

Successor in Interest
The evidence shows continuity of the business operations of
the Middlebranch Plant from USC to Essroc with Essroc 1 s use of the
same plant, equipment, and essentially the same workforce and
supervisory personnel.
Al though 30% of USC's assets at other
locations were not included in the acquisition by Essroc, the
Middlebranch Plant was virtually a 100 percent takeover by Essroc.
Based upon these factors,
I find that Essroc, through its
subsidiary Essroc Materials, Inc., is a successor in interest to
use as the owner and operator of the Middlebranch Plant. Secretary

1975

of Labor on Behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394
(1987), aff'd. sub nom. Terco, Inc., v. FMSHRC 839 F.2d 236 (6th
Cir. 1987); Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (1980),
aff'd in relevant part sub nom.
Munsey v. FMSHRC, 701 F.2d 976
(D.C. Cir. 1983), cert. denied, 464 U.S. 851 (1983).
scope of Protected Activity
Section 105(c) (1) of the Act 3 protects miners and applicants
for mining employment from retaliation for exercising rights under
the Act, including the right to complain
to MSHA :::ir a mine
supervisor about an alleged danger or violation of the Mine Act.
The basic purpose of this protection is to encourage miners
"to play an active part in the enforcement of the Act 11 recognizing
that, "if miners are to be encouraged to be active in matters of
safety and health, they must be protected against any possible
discrimination which they might suffer as a result of their
participation."
S. Rep. No. 95-181, 95th Cong. 2d Sess. 1977,
reprinted in the Legislative History of the Federal Mine Safety and
Health Act of 1977 at 623 (Senate Subcommittee on Labor, Committee
on Human Resources 1 95th Cong., 2nd Sess. (1978)).
This provision is a key part of remedial legislation, which is
3

Section 105(c) (1) provides:

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 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 of applicant for employment on behalf of
himself or others of any statutory right afforded by this
Act.

1976

to be liberally construed to effectuate its purposes.
Meek's complaint to an MSHA inspector that the mine operator
appeared to have advance knowledge of MSHA inspections was a
protected activity under this section. Advance knowledge could be
coming from an inspector or sources other than the inspector, e.g.,
a supervisor, clerk, or other person in the inspector's office, so
that a miner's report of actions by the mine operator that appear
to show advance knowledge could lead to disclosure of a violation
of the Act if the complaint were properly investigated. Miners are
entitled to raise such concerns with MSHA or their employer without
fear of retaliation, in the plain interest of helping to assure the
efficacy and integrity of mine inspections of their safety and
health work conditions.
Did Essroc Discriminate Against Complainant?
Having found that Complainant was engaged in a protected
activity, I turn to the question whether Essroc' s denial of
employment was motivated in any part by his protected activity.
To establish a prima facie case of discrimination under §
105{c) of the Act 1 a miner or applicant for mining employment has
the burden to prove that he or she was engaged in protected
activity and that the adverse action complained of was motivated
any part by that activity.
Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (1980), rev'd on
other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.
2d 1211 {3rd Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (1981).
"Direct evidence of motivation is rarely encountered; more
typically, the only available evidence is indirect. * * * 'Intent
is subjective and in many cases the discrimination can be proven
only by the use of circumstantial evidence. 111 Secretary on behalf
of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (1981), rev'd
on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d
86 (D.C. Cir. 1983), guotingNLRBC v. Melrose Processing Co., 351
F. 2d 693, 698 (8th Cir. 1965) •
In "analyzing the evidence,
circumstantial or direct, the [adjudicator] is free to draw any
reasonable inference" (id.).
The reasons given by Essroc for not hiring Meek are the
recommendations of Bragg and Roman at the meeting in mid February,
1990, based upon Bragg's representation that Meek had stated that
he could not work for Bragg and that Meek had a poor attitude,
negative evaluations from his personnel file,
and Bragg's
evaluation form filled out for Essroc.
At the time of that meeting, Bragg, Roman, and Essroc knew
that Bragg would soon become Plant Manager of Essroc's Middlebranch
Plant and that Roman would soon become Essroc's Manager of Human

1977

Resources for the Great Lakes Division which would include the
Middlebranch Plant.
Under its "team approach," Essroc relied on
Bragg and Roman to pick their own team to work in the Middlebranch
Plant. I find that Bragg and Roman were
facto management agents
of Essroc in
evaluating USC's Middlebranch Plant employees who
applied for employment with Essroc and in recommending to Essroc
who should be hired and not hired. Their role as
facto agents
of Essroc, and Essroc's successorship to USC, found above, serve to
impute to Essroc any motivation of Bragg or Roman toward
Complainant in their recommendation, at the February meeting, that
Essroc not hire Meek at the Middlebranch Plant.
The issue of discrimination by Essroc thus
question of the motivation of Bragg and Roman.

turns

on

the

Bragg stated in an affidavit (he did not appear a witness)
that, on February 23, 1990, at a meeting with the plant employees 7
Meek stated that 11 he could not work for me [Bragg]. n I credit
Meek 1 s testimony that he did not make such a statement.
Bragg 9 s
subordinate Dale Lewis, Plant Supervisor, was at the meeting, and
he testified that he never heard Meek say "that he didn't want to
work for Marvin [Bragg]." Tr. 365.
Bragg 9 s affidavit further stated thate on February 27 1 1990,
at a meeting with USC plant employees, Meek 11 again made the
statement that if the same manager was in place for Essrocf he
could not work at the Middlebranch facility because I would be in
charge." This statement is contrary to fact, as demonstrated by
Meek's tape recording of the meeting.
At that meeting, Meek was
cordial to Bragg, showed.a clear desire to work for Essroc at the
plant supervised by Bragg, and made no statement indicating that he
could not or would not work for Bragg.
Bragg's affidavit also states that, on February 28, 1990, at
a meeting among Bragg, Roman and Meek, "Mr. Roman asked Mr. Meek if
he had said he would not work for me (Bragg] for Essroc. Mr. Meek
replied that he had made such a statement."
The tape of this
meeting is contrary to Bragg's affidavit. Meek did not state that
he had ever said he could not or would not work for Bragg, or any
words to that effect.
I find that Bragg's affidavit is contrary to fact, and I
credit Meek's testimony as to what Meek stated at the meetings on
February 23, 27, and 28, 1990. I do not credit Bragg's statement
in his affidavit that the MSHA incident had nothing to do with the
decision not to hire Meek.
Roman testified that the MSHA incident was not discussed at
the meeting with the Essroc supervisors (mid February, 1990) and
was not a factor in the decision not to hire Meek. He also signed
an affidavit, stating that, on February 28, 1990, at the meeting
referred to in Bragg's affidavit, "I [Roman] asked Mr. Meek if he

1978

had stated that he would not work for Marvin Bragg and he replied
that he had said this."
The tape recording of this meeting is
contrary to Roman's affidavit.
I find that Roman's affidavit on
this point is contrary to fact, and I credit Meek's testimony as to
what he said at the February 27, 1990, meeting.
I do not credit the affidavits of Bragg and Roman or the
testimony of Roman as to what was said by Meek at the February 23,
27, and 28, 1990, meetings.
To the contrary, I find that
Complainant did not state that he could not work for Marvin Bragg,
or any words to that effect, and that Bragg manufactured an
allegation of such statement to induce Essroc not to hire
Complainant
Roman participated in this misrepresentation
supporting Bragg's recommendation to Essroc.
They used this
opportunity to persuade Essroc not to hire himo
0

I find that use management, including Bragg, Roman and Ousky,,
wanted to fire Complainant because of his protected activity
complaining to Inspector Jones.
Bragg and Roman carried out this
intention by recommending to Essroc not to hire Complainant. They
knew, at the time they heard of Meek' s complaint to the MSHA
inspector, that all USC employees would shortly be terminated by
USC and considered by Essroc.
Bragg 1 s and Roman vs discriminatory motivation toward Meek
because of his protected complaint to the MSHA inspector is imputed
to
Essroc.
Essroc' s
adverse
action
motivated
by
this
discriminatory motivation
(rejecting his
application
for
employment) was a violation of § 105(c) of the Act.
Did Essroc Establish an Affirmative Defense?
An operator may rebut a prima facie case by showing either
that no protected activity occurred or that the adverse action was
not motivated in any part by the protected activity. Failing that,
the operator may defend affirmatively against the prima facie case
by proving that it was also motivated by ~nprotected activity and
would have taken the adverse -action in any event for the
unprotected activity alone. In a "mixed motive" case, although the
miner must bear the ultimate burden of persuasion, the operator, to
sustain its affirmative defense, must prove by a preponderance of
the evidence that the adverse action would have been taken even if
the miner had not engaged in the protected activity.
Baich v.
FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983).
Essroc has not shown that, had Marvin Bragg and Michael Roman
not known of Meek's complaint to Inspector Jones, they would still
have recommended that Essroc not employ him at the Middlebranch
Plant.
The record shows that, over the years, any negative
evaluations in Meek's file at use did not result in discipline of
him, even a reprimand or caution to him, or any action not to
reemploy him after layoffs.
The reliable evidence does not show

19 79

that, independent of Meek' s complaint to Inspector Jones, his
application for employment by Essroc would not have been accepted
as were the applications from all other USC Middlebranch Plant
hourly employees.

CONCLUSIONS OF LAW

1. The judge has jurisdiction in this proceeding.
2. Essroc is a successor in interest to USC in its acquisition
and operation of the Middlebranch Plant.
3. Essroc violated § 105(c) of the Act by refusing to employ
Complainant at its Middlebranch Plant because of his activity
protected by that section.
4. Complainant is entitled to employment by Essroc at its
Middlebranch Plant with back pay, interest, 4 and litigation costs,
including a reasonable attorney fee.
ORDER

1. Respondent shall, within 30 days of this decision, employ
Complainant at its Middlebranch Plant with the same position, pay,
seniority, and all other conditions and benefits of employment that
would apply had Respondent employed Complainant at such plant when
the other USC Middlebranch Plant hourly employees were employed by
Respondent following its acquisition of the plant from use in
February, 1990.
2. Within 15 days of this decision, the parties shall confer
in an effort to stipulate the amount of Complainant's back pay,
interest, and litigation costs including a reasonable attorney fee.
Such stipulation shall not prejudice Respondent's right to seek
review of this decision.
If the parties agree on the amount of
monetary relief, Complainant sha11 · ftie a stipulated proposed order
for monetary relief within 30 days of this decision.
If they do
not agree, Complainant shall file a proposed order for monetary
relief within 30 days of this decision and Respondent shall have
ten days to reply to it. If appropriate, a further hearing shall
be held on issues of fact concerning monetary relief.

4

Interest is computed at the IRS adjusted prime rate for each
quarter.
See Arkansas-Carbona Company, 5 FMSHRC 2042, 2050-2052
(1983).

1980

3.
This decision shall not be a final disposition of this
proceeding until a supplemental decision is entered on monetary
relief.

lJ~~aM~
William Fauver
Administrative Law Judge
Distribution:
Robert J. Tscholl, Esq., Roetzel & Andress, 220 Market Avenue,
South, suite 502, Canton, OH 44702 (Certified Mail)
John

c.

Ross, Esq., Ross & Robertson, P.O. Box 35727, Canton, OH

44735 (Certified Mail)

nb

1981

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

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

DEC 2 6 1991

CIVIL PENALTY PROCEEDING
Docket No. CENT 91-106
A.C. No. 29-00095-03559

v.

York Canyon Underground Mine

THE PITTSBURG & MIDWAY COAL
MINING CO-YORK CNYN
COMPLEX 0
Respondent

DECISION
Appearances:

Ernest Burford, Esq., Office of the Solicitoru
U.S. Department of Labor, Dallas, Texasu
for Peti tioner9
John w. Paulu Esq., Englewood, Coloradou
for Res pond en t.

Before:

Judge Cetti

This case is before me upon a petition for assessment of
civil penalties under Section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et s.eg. the "Act." The
Secretary of Labor, on behalf of the Mine Safety and Health Administration, (MSHA), charges the operator of the York Canyon
Underground Mine with six 104(a) S&S, violations of mandatory
regulatory standards found in 30 C.F.R. Part 77.
The operator filed a timely answer contesting the alleged
104(a) S&S violations and the appropriateness of the proposed
penalties.
····
Pursuant to notice, a hearing on the merits was held before
me on September 18, 1991, along with other cases involving the
same parties and attorneys.
Stipulations
At the hearing, the parties read into the record the following stipulations:
1. The Pittsburg and Midway Coal Company has engaged in the
mining and selling of coal in the United States and its mining
operations affect interstate commerce.

1982

2.
Pittsburg Midway Company is the owner and operator of
the York Canyon Mine, MSHA ID number 29-00095.
3. Pittsburg Midway Coal Company is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30

u.s.c. § 801 et~

4.
matter.

The Administrative Law Judge has jurisdiction in this

5.
The subject citations were properly served by a duly
authorized representative of the Secretary upon an agent of Respondent on the date and place stated therein, and may be admit=
ted into evidence for the purpose of establishing their issuance
and not for the truthfulness or relevancy of any statements
asserted therein.
6.
'l'he exhibits to be offered by Respondent and the Secretary are stipulated to be authentic, but no stipulation is made
as to their relevance or the truth of the matters asserted
therein.
7o
The proposed penalty will not affect the operator 0 s
ability to remain in businesso
8.
The operator demonstrated good faith in abating the violations.
9. Pittsburg & Midway Coal Company is a large operator of a
coal mine with at least one million tons of production in 1990.

10. The certified copy of the MSHA assessed violations history accurately reflects the history of this mine for the two
years prior to the date of the citation.
ISSUES
'J'he primary issues presented--by the parties were whether or
not the six 104(a) citations were properly designated significant
and substantial violations and the appropriateness to the proposed penalties.
Citation No. 3242500 -

(Back-up alarm)

In this citation MSHA charges Respondent with a 104Ca) S&S
violation of 30 C.F.R. § 77~410.
The violative condition alleged
reads as follows:

1983

The #631D Caterpillar Scraper in operation outby the coal prep plant was not equipped with
an adequate automatic device that when such
equipment is put in reverse will give audible
alarm.
At the hearing, the Respondent withdrew its contest to Citation No. 3242500 including its designation as a significant &
substantial violation of 30 C.F.R. § 77.410 and to MSHA's proposed civil penalty of $112.
Based upon the record, it is found that there was a violation of this mandatory safety standard1 that a discrete safety
hazard existed and that there was· a reasonable likelihood, evaluated in terms of continued normal mining operation, that the
hazard contributed to would result in serious injuryo
Accordinglyu it is found the violation is a significant and
substantial violation and the full amount of MSHA 1 s $112 proposed
penalty is assessed.
Citation No. 3242463 (Berm on service road)
After taking considerable testimony from the witnesses on
Citation No. 3242463 (berm on service road) the parties agreed
the violation was not S&S and Petitioner moved to withdraw the
S&S designation. The motion was granted since it was clear from
the evidence presented that there was no reasonable likelihood
that the hazard contributed to, evaluated in terms of continued
normal mining, would result in an event in which there would be
serious injury.
Citation Nos. 3242494, 3242496, 3242496 (Circuit breakers)
At the hearing, the Petitioner also modified the three citations involving failure to properly identify circuit breakers
from S&S to non-significant and substantial-violations as there
was insufficient evidence to estahlTsh a reasonable likelihood
that the hazard contributed to would result in serious injury.
Citation No. 3242493 (Guarding on pump shaft)
Considerable testimony was taken on this citation, particularly on the issue of whether this violation was properly designated S&S. During the time allowed for filing of post-hearing
briefs, the Secretary was permitted to amend the citation to delete the S&S designation and to change paragraph lOA of the citation pertaining to "gravity" from "reasonably likely" to "unlike-

1984

ly." This amendment was permitted in light of the evidence adduced at the hearing. The preponderance of the evidence established that there was not a reasonable likelihood that the hazard
contributed to, evaluated in terms of continued normal mining,
would result in serious injury.
Assessment of Penalty
Section 110 ( i) of the Act mandates consideration of six criteria in assessing civil penalties.
This statutory criteria has
been considered in assessing the penalties assessed in the Order
below.
Pittsburg & Midway Coal Company is a large operator of a
coal mine with at least one million tons of production in 1990"
The certified copy of the MSHA assessed violations history received with evidence accurately reflects the history of this mine
for the two years prior to the da. te of the citation, The operator demonstrated good
ith in abating the violations.
Exposure to the hazard caused by the violations was very
low, the gravity was low and the violations resulted from the
operator's negligence which was low to moderate in degree"
The penalties assessed below will not affect the operator's
ability to remain in business.
ORDER

Citation No. 3242500 including the finding that the violation is significant and substantial, is AFFIRMED and a civil
penalty of $112 is ASSESSED.
Citation Nos. 3242463, 3242493, 3242494, 3242496, and
3242498 are MODIFIED to delete the S&S designation and a
penalty of $100 is ASSESSED for each of the violations.
Respondent is ordered TO PAY·to the Secretary of Labor a
civil penalty in the sum of $612 within thirty (30) days of the
date of this Decision and, upon receipt of payment, this matter
is dismissed.

Au st F. Cetti
Administrative Law Judge

1985

Distribution:
Ernest A. Burford, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
John W. Paul, Esq., PITTSBURG & MIDWAY COAL MINING COMPANY, 6400
South Fiddler's Green Circle, Englewood, CO 80111-4991
(Certified Mail)
Mr. Robert Butera, International Health and Safety Representative
for UMWA District 13, 228 Lea Street, Trinidad, CO 81082
(Certified Mail)

sh

1986