JUNE 1991
COMMISSION DECISIONS
06-11-91
06-25-91
06-25-91

Lancashire Coal Company
Eastern Associated Coal Corporation
Southern Ohio Coal Company

PENN 89-147-R
WEVA 89-192
WEVA 89-278

Pg. 875
Pg. 902
Pg. 912

VA

Pg. 921

ADMINISTRATIVE LAW JUDGE DECISIONS
06-04-91
06-04-91
06-05-91
06-05-91
06-06-91
06-07-91
06-12-91
06-12-91
06-13-91
06-17-91
06-21-91
06-21-91
06-21-91
06-24-91
06-25-91
06-27-91
06-27-91

Sec. Labor on behalf of Amos Hicks v.
Cobra Mining, Inc., etc ..
Consolidation Coal Company
Sunny Ridge Mining Co., Inc.
Rochester & Pittsburgh Coal Co.
New Butte Mining Incorporated
Edwin E. Espey, Jr., emp. by Espey Silica Sand
Agipcoal USA, Inc.
Linda Lester v. Garden Creek Pocahontas Co.
Avis B. Perkins v. Morningside Development Corp.
Southern Ohio Coal Company
Homestake Mining Company
Larry E. Burns v. D.H. Blattner & Sons, Inc.
Consolidation Coal Company
Michael P. Damron v. Reynolds Metals Co.
Melvin Burkhart v. Fossil Fuel, Inc.
Sec. Labor on behalf of Louis C. Vasquez v.
Western Fuels-Utah, Inc.
Cyprus Empire Corporation

89-72-D

WEVA 91-47
KENT 91-1
PENN 90-188
WEST 90-168-M
CENT 90-122-M
KENT 90-207
VA
91-26-D
WEVA 91-23-D
WEVA 90-198
CENT 90-108-M
WEST 90-166-DM
WEVA 91-30
CENT 89-131-DM
KENT 90-184-D
WEST 90-271-D

Pg. 926
Pg. 928
Pg. 933
Pg. 939
Pg. 945
Pg. 949
Pg. 957
Pg. 958
Pg. 960
Pg. 988
Pg. 995
Pg. 1010
Pg. 1013
Pg. 1016
Pg. 1022

WEST 91-454-R

Pg. 1040

CENT 8~-162-DM

1051

ADMINISTRATIVE LAW JUDGE ORDERS
05-29-91
06-05-91

Donald Northcutt, Gene Myers & Ted Eberle v.
Ideal Basic Industries, Inc.
Don Fraze, Emp. by Liter 1 s Quarry of Indiana

LAKE 91-63-M

Pg. 1059

JUNE 1991
Review was granted in the following cases during the month of June:
Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. LAKE 91-11.
(Judge Melick, May 13, 1991)
Eagle Nest, Inc., v. Secretary of Labor, MSHA, Docket No. WEVA 91-293-R.
(Judge Weisberger, May 20, 1991)
Review was denied in the following case during the month of June:
Kentucky Carbon Corporation, et al. v. Secretary of Labor, MSHA,
Docket No. KENT 91-265-R, etc. (Judge Broderick, Interlocutory Review
of May 16, 1991 Order).

COMMISSION DECISIONS

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

20006

June 11, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos.

LANCASHIRE COAL COMPANY

BEFORE:

PENN 89-147-R
PENN 89-148-R
PENN 89-149-R
PENN 89-192-R
PENN 89-193-R
PENN 90-10

Backley, Acting Chairman; Doyle, Holen and Nelson
Commissioners

DECISION

BY:

Holen and Nelson, Commissioners

This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~· (1988)
(the "Mine Act" or "Act"), and involves the validity of three citations and
two withdrawal orders issued to Lancashire Coal Company ("Lancashire")
concerning conditions at its coal preparation plant at the Lancashire No. 25
Mine. The question before us is whether the Department of Labor's Mine Safety
and Health Administration ("MSHA") properly issued citations and withdrawal
orders to Lancashire under the Mine Act.
Commission Administrative Law Judge
George A. Koutras upheld the Secretary's action in proceeding against
Lancashire under the Mine Act.
12 FMSHRC 272 (February 1990)(ALJ).
Lancashire petitioned for review of that part of the judge's decision holding
that the cited working conditions were subject to Mine Act jurisdiction.
Lancashire did not petition for review of the judge's rulings with respect to
the merits of the withdrawal orders and citations. For the reasons that
follow, the judge's decision is affirmed. 1

1
The Commission's vote in this case is evenly split. Acting Chairman
Backley and Commissioner Doyle would reverse the judge's decision and
Commissioners Holen and Nelson would affirm.
For the reasons set forth in
Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 (August 1990), pet. for
review filed, No. 90-3636 (3rd Cir. Sept. 17, 1990), we conclude that the
effect of the split decision is to allow the judge's decision to stand as if
affirmed.

875

I.

Factual and Procedural Back&round
The parties stipulated to most of the key facts in this case. The
stipulations that are relevant to this review proceeding are as follows:
1.

The subject work site, Lancashire Coal Company
Preparation Plant ("the work site") is located in
Elmora, Cambria County, Pennsylvania and is owned
by the Inland Steel Company ("Inland"), which has
an office in East Chicago, Indiana.

2.

The work site is adjacent to a sealed mine
facility which is owned by Inland and which is
known as the Lancashire Coal Company No. 25 Mine
("Lancashire Mine 1/25
11

)

•

3.

No coal has been mined at Lancashire Mine #25 since
June 3, 1983.

4.

Until June 3, 1983, the tancashire Mine #25 was an
active, producing underground coal mine with surface
coal preparation facilities located adjacent to it on
the site ("the Lancashire Coal Company Preparation
Plant").

5.

On April 17, 1986, the underground mine shafts were
sealed by the operator. At that time, the mine
operator was Inland Steel Coal Company.

6.

Since the mine shafts were sealed, the surface
facilities have been inactive with the exception
of a small water treatment facility.

7.

On September 30, 1986, the MSHA classification of the
mine was changed to a surface facility as a result of
the underground openings being sealed.

8.

During fiscal years 1987 and 1988, the work site
was inspected by MSHA as a surface facility.
Prior to March 20, 1989, the last MSHA safety
and health inspection was April 1, 1988.

9.

On September 6, 1988, the Hastings Field Office of
MSHA declared the work site permanently abandoned
(Joint Exhibit 1).

10.

As a result of the action it took on September 6,
1988, MSHA ceased inspection activity at the work

876

site.
11.

After September 6, 1988, Lancashire took no action to
indicate that it intended to resume the extraction,
production, milling or processing of coal.

12.

In late 1988, Lancashire sought bids from contractors
to perform work dismantling and removing facilities
and structural materials from the work site and
reclaiming the area.

13.

K&L Equipment Co., Inc. ("K&L"), owned by Kenneth
Morchesky, was selected as the contractor and
commenced work the week of February 20, 1989.

14.

On March 20, 1989, a fatal accident occurred at the
work site. One of K&L's employees was killed during
operations to raze a silo at the site.

15.

On March 21, 1989, MSHA Inspector William D.
Sparvieri, Jr. arrived.at the work site to conduct an
inspection. As part of his activities at the work
site on March 21, 1989, Mr. Sparvieri issued the
following citations and orders:
a.
b.
c.

16.

Section 103(k) Order No. 2888399, 3:00 p.m.
Section 107(a) Order No. 2888400, 3:15 p.m.
Section 104(a) Citation No. 2891501, 3:30 p.m.

On April 17, 1989, Inspector Sparvieri returned to the
work site and served Citation Nos. 2891508 (1:55 p.m.)
and 2891509 (2:00 p.m.).

12 FMSHRC at 274-75 (Stipulation numbers changed).
Lancashire's No. 25 Mine and associated coal preparation facilities
stopped producing or preparing coal on or about June 3, 1983. Subsequently,
when Lancashire was unable to sell the mine, it sealed the mine's openings.
Lancashire decided to demolish its old concrete coal storage silo and old coal
p~eparation plant (screen house) in late 1988.
Under Pennsylvania law, a mine
operator is required to reclaim abandoned mine lands, including the lands upon
which former preparation facilities are located. The Pennsylvania Department
of Environmental Resources ("Pennsylvania DER") requires that surface
facilities be removed as part of the reclamation process. The coal
preparation facilities in question were built in the late 1950's and were not
used after 1971, because new coal preparation and storage facilities were
built in an adjacent area.
MSHA continued to inspect the surface facilities until September 1988,
at which time MSHA classified the mine as "permanently abandoned." The only
continuing activity at the mine site was the operation by Lancashire of a
water treatment facility required by the Pennsylvania DER. Only one

877

Lancashire employee worked at the mine site, supervisor Francis Falger.
Lancashire engaged an independent contractor, K&L Equipment Company,
Inc. ("K&L"), to demolish the old coal storage silo and old screen house. On
March 20, 1989, during the demolition of the old coal storage silo, an
employee of the independent contractor was killed when a portion of the silo
prematurely collapsed, crushing him under concrete, coal and other material.
Local fire and rescue authorities transported the victim to a local hospital.
MSHA started its investigation the following day. The record does not
reveal how MSHA learned of the accident. Francis Falger admitted the MSHA
inspectors onto the property but told them that MSHA was without jurisdiction
because the mine had been classified by MSHA as "permanently abandoned."
Kenneth Morchesky of K&L also told the inspectors that MSHA was without
jurisdiction. The MSHA supervisory inspector, John Kuzar, replied that he was
not sure if MSHA had jurisdiction but that MSHA was going to investigate the
accident. Falger and Morchesky fully cooperated with MSHA Supervisory
Inspector Kuzar and MSHA Inspector William Sparvieri, Jr., who was assigned to
investigate the accident.
After spending about an hour at the accident site, the inspectors
returned to the local MSHA~office so that Inspector Kuzar could call the MSHA
sub-district manager to discuss the jurisdiction issue raised by Lancashire
and K&L. Although the jurisdiction question was not resolved at that time,
the inspectors were authorized to return to the Lancashire site to secure the
area. Inspector Sparvieri issued an order of withdrawal under
section 103(k) 2 of the Mine Act, in order to secure the area, and an order
of withdrawal under section 107(a) 3 , because he believed that the structures
2

Section 103(k) of the Mine Act states:
In the event of any accident occurring in a coal or other
mine, an authorized representative of the Secretary, when present,
may issue such orders as he deems appropriate to insure the safety
any person in the coal or other mine, and the operator of such
mine shall obtain the approval of such representative, in
consultation with appropriate State representatives,
when
feasible, of any plan to recover any person in such mine or to
recover the coal or other mine or return affected areas of such
mine to normal.

or

30 u.s.c. § 813(k).
3

Section 107(a) of the Mine Act states in part:
If, upon any inspection or investigation of a coal or other
mine which is subject to this [Act], an authorized representative
of the Secretary finds that an imminent danger exists, such
representative shall determine the extent of the area of such mine
throughout which the danger exists, and issue an order requiring

878

to be demolished were in an unstable condition and presented an imminent
danger to anyone in the area. Additionally, he issued Lancashire a citation
pursuant to section 104(a) of the Act. Inspector Sparvieri also issued the
independent contractor citations and orders, which were not contested before
the Commission.
On March 23, 1989, MSHA District Manager Donald Huntley wrote a
memorandum to Jerry Spicer, MSHA Administrator for Coal Mine Safety & Health,
concerning MSHA's jurisdiction at this facility. The memorandum stated that
the MSHA district office "determined that both the mine operator and
contractor fell under MSHA's jurisdiction and all applicable provisions of the
Act and Title 30 Code of Federal Regulations applied."
On April 17, 1989, Inspector Sparvieri returned to the mine site to
issue two additional citations under section 104(a) of the Act. Apparently,
the MSHA sub-district office had received notification from MSHA's Arlington,
Virginia, headquarters that MSHA has jurisdiction over the Lancashire site.
In a memorandum to Jerry Spicer dated May 2, 1989, Edward Clair, Associate
Solicitor of the Department of Labor, concluded that MSHA had jurisdiction
and that "MSHA should plan to conduct appropriate inspection activities of
K&L' s activities at the Lancashire ..si.te."
In his decision, Judge Koutras concluded that "the mine site where the
reclamation or demolition work in question was taking place in this case is a
'mine' within the definitional language found in sections 3(h)(l) and 3(h)(2)
of the Act, and that at the time of the inspections in question MSHA had
enforcement jurisdiction and authority over that mine facility."
12 FMSHRC 295. The judge based his decision on an analysis of the text of the
Mine Act, the legislative history, and Commission precedent.
Relying on the language of section 3(h) of the Mine Act 4 and the
the operator of such mine to cause all persons, except those
referred to in section 814(c) of this title, to be withdrawn from,
and to be prohibited from entering, such area until an authorized
representative of the Secretary determines that such imminent
danger and the conditions or practices which caused such imminent
danger no longer exist ....
30 U.S.C. § 817(a).
Section 3(h) of the Mine Act states in part:
(1) "coal or other mine" means (A) an area of land from
which minerals are extracted in nonliquid form or, if in liquid
form, are extracted with workers underground, (B) private ways
and roads appurtenant to such area, and (C) lands, excavations,
underground passageways, shafts, slopes, tunnels and workings,
structures, facilities, equipment, machines, tools, or other
property including impoundments, retention dams, and tailings

879

legislative history, the judge concluded that the structures being demolished
were the result of the prior active mining of coal, including extraction and
processing, and therefore fit within the statutory definition of "coal or
other mine." 12 FMSHRC at 292. He concluded that since coal from the
previously active. underground mine was processed through these structures, one
could reasonably assume that a "nexus" existed between the coal that was
extracted from the underground mine and the coal that was prepared through
these structures. 12 FMSHRC at 293. He held that the fact that these
structures had not been used since 1971 was immaterial since the definition of
"coal or other mine" is not related to any time factor and since the
definition has consistently been given the broadest possible interpretation by
the courts as well as the Commission. Id. The judge relied upon the
Commission's decisions in Alexander Brothers, 4 FMSHRC 541 (April 1982), and
Westwood Energy Properties, 11 FMSHRC 2408 (December 1989), in reaching his
conclusion. The judge also rejected Lancashire's contention that MSHA's
decision to stop inspecting the mine site removed it from the statutory
definition of "coal or other mine." 12 FMSHRC at 291.
II.

Disposition of Issues
We conclude that the Secretary had jurisdiction to inspect Lancashire's
preparation plant under the Mine Act because this facility fits within the
Mine Act's definition of "coal or other mine." 30 U.S.C. § 802 (h)(l).
Our resolution of Mine Act jurisdiction in this case is governed by the
statute and our interpretation is further clarified by its legislative history
and by the Commission's decisions. Congress directed the Commission to "give

ponds, on the surface or underground, used in, or to be used in,
or resulting from, the work of extracting such minerals from
their natural deposits in nonliquid form, or if in liquid form,
with workers underground, or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation facilities ....
(2) For purposes of subchapters [titles] II, III, and IV of
this chapter [Act], "coal mine" means an area of land and all
structures, facilities, machinery, tools, equipment, shafts, slopes,
tunnels, excavations, and other property, real or personal, placed
upon, under, or above the surface of such land by any person, used in,
or to be used in, or resulting from, the work of extracting in such
area bituminous coal, lignite, or anthracite from its natural deposits
in the earth by any means or method, and the work of preparing the
coal so extracted, and includes custom coal preparation facilities.
30 u.s.c. § 802(h).

880

weight" to the Secretary's interpretation of the Mine Act. 5 For the reasons
set out below, we believe that the Secretary's reading here of the definition
of "coal or other mine" is correct, even if her reading were not entitled to
be given weight. We first set forth the basis for this conclusion and then
address other isaues raised by Lancashire and the dissenting opinion.
A.

Definition of "coal or other mine."

Lancashire argues that the only definition of a coal mine applicable in
this case is contained in section 3(h)(l) of the Mine Act.
30 U.S.C. § 802 (h)(l). Lancashire contends that the only relevant portion of
this definition is contained in part (C), which provides, in pertinent part:
"coal or other mine" means ... (C) lands ...
structures, facilities, equipment, machines, tools, or
other property ... used in, or to be used in ... the
work of preparing coal.
30 U.S.C. § 802(h)(l) (emphasis added).
Lancashire maintains that the
definition includes lands and facilities resulting from the work of extracting
minerals from their natural deposits but d.oes not include lands and facilities
resulting from the work of preparing coal. 6 Thus, it argues that because
the structures that were demolished and the land on which they were located
resulted from the work of preparing coal, rather than the work of extracting
minerals from their natural deposits, the work site was not a "coal or other
mine" and MSHA was without jurisdiction. It maintains that the definition of
"coal or other mine" evidences a Congressional intent to treat facilities
resulting from the extraction of coal differently from facilities resulting
from the preparation of coal.
Lancashire contends that Judge Koutras improperly supplemented the
definition of "coal or other mine" with the definition of "coal mine"
5

The legislative history of the Mine Act provides that "the
Secretary!s interpretation of the law and regulations shall be given weight
by both the Commission and the courts." S. Rep. No. 181, 95th Gong., 1st
Sess. 49 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95th Gong., 2nd Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977, at 637 (1978) ("Legis. Hist.").
6

Section 3(i) of the Mine Act provides:
"work of preparing the coal" means the breaking, crushing,
sizing, cleaning, washing, drying, mixing, storing, and loading of
bituminous coal, lignite, or anthracite, and such other work of
preparing such coal as is usually done by the operator of the coal
mine;

30 U.S.G. § 802(i).

881

contained in section 3(h)(2), which by its own terms is only applicable to
titles II, III and IV of the Mine Act. It argues that by incorrectly relying
on an inapplicable definition of coal mine, Judge Koutras made the "key
limitations" in Section 3(h)(l) "disappear." Lancashire Br. 16.
Lancashire also contends that by confusing the two definitions, the
judge improperly found a "nexus" between the extraction and preparation of
coal and treated the two activities as though they were one and the same. It
states that since the definition in section 3(h)(l) uses the disjunctive "or"
to separate the two activities, the definition affords the two activities
differing treatment.
The Secretary explains that the two definitions of coal mine in section
3(h) confer Mine Act jurisdiction over property, structures and facilities
used in, to be used in, or resulting from the work of extracting or preparing
coal. She states that this broad definition is consistent with Congress'
intent that the term "mine" be construed expansively as demonstrated by the
legislative history of the Act.
The Secretary argues that Lancashire's construction of the definitions
in section 3(h) is inconsistent with other provisions of the Mine Act, is
contrary to Congressional-intent, and is formalistic and at odds with the
obvious purpose of the Mine Act. She asserts that the definitions in section
3(h) must be read together. She maintains that the qualifying language of the
definition of "coal mine" contained in section 3(h)(2) evidences Congress'
recognition that titles II, III and IV of the Mine Act are applicable to coal
mines only and not to metal or other mines. She states that Congress did not
intend to create two conflicting definitions of coal mine in the same statute.
The Mine Act contains two definitions applicable to coal mines in
section3(h). The definition of "coal mine" contained in section 3(h)(2) is
identical to the definition that was in section 3(h) of the Coal Mine Health
and Safety Act of 1969 ("Coal Act") except for the addition of the qualifying
phrase "For purposes of titles II, III, and IV." The Mine Act amended the
Goal Act.
The definition of "coal or other mine" contained in section
3(h)(l) of the Mine Act is taken from the definition of the term "mine"
contained in section 2(b) of the Federal Metal and Nonmetallic Mine
Act
("Metal Act"), 30 U.S.C. § 721 (1976) (repealed). The Metal Act was repealed
by .the Mine Act.
The Metal Act definition was modified in section 3(h)(
as follows:

of the Mine Act

(A) an area of land from which minerals are extracted
in non-liquid form or, if in liquid form, are
extracted with workers underground, (B) private ways
and roads appurtenant to such area, and (C) land.&,
excavations, underground passageways, shafts, slopes,
tunnels and workings, structures, facilities,
equipment, machines, tools, or other property
including impoundments, retention dams, and tailings
ponds, on the surface or underground, used in, or to

882

be used in or resulting from, the work of extracting
such minerals from their natural deposits in nonliquid
form, or if in liquid form, with workers underground,
or used in, or to be used in, the milling of such
minerals, or the work of preparing coal or other
minerals, and includes custom coal preparation
facilities.
The underscored phrases in the above definition were not contained in the
Metal Act definition and were added by Congress when it passed the Mine Act.
The phrase "or to be used in, or resulting from" was added before the words
"work of extracting such minerals," while the phrase "or to be used in" was
added before the words "the work of preparing coal." It is this disparity
that is the crux of Lancashire's argument. Lancashire contends that since the
structures to be demolished in this case "resulted from" the work of preparing
coal, and were not "used in" or "to be used in" such work at the time of the
inspection, these structures do not fit within the Act's definition.
Section 4 of the Mine Act provides that each "coal or other mine"·that
affects commerce is subject to the Act. 30 U.S.C. § 803. Thus, if the
preparation plant at the Lancashire~ . No. 25 Mine is a "coal or other mine" that
ends the question because the Secretary has Mine Act jurisdiction over any
"coal or other mine."
The fact that the Mine Act contains two somewhat different definitions
of covered mining operations and that these definitions are somewhat complex
create enough ambiguity to warrant consideration of the legislative history in
interpreting these provisions. Burlington Northern R. Co. v. Okla Tax Comm'n,
481 U.S. 454, 461 (1987)("Legislative history can be a legitimate guide to a
statutory purpose obscured by ambiguity"). The legislative history,
particularly the Senate and House Committee reports, indicate that Congress
intended that the definition of the term "coal or other mine" be given a broad
interpretation and that any doubts be resolved in favor of inclusion of the
facility within the coverage of the Act. More specifically, both Committee
reports indicate that Congress intended to treat facilities resulting from the
preparation-of coal the same as facilities resulting from the extraction of
minerals. The legislative history provides no support for Lancashire's
position that Congress deliberately excluded from the definition of "coal or
other mine" surface structures resulting from the preparation of coal.
When the Senate version of the bill that became the Mine Act was
reported by the Committee on Human Resources, the Committee Report described
the definition contained in section 3(h)(l) as follows:
[T]he definition of "mine" is clarified to
include the areas, both underground and on the
surface, from which minerals are extracted (except
minerals extracted in liquid form underground), and
also, all private roads and areas appurtenant thereto.
Also included in the definition of "mine" are lands,
excavations, shafts, slopes, and other property,
including impoundments, retention dams, and tailings

883

ponds. These latter were not specifically enumerated
in the definition of mine under the Coal Act ....
Finally, the structures on the surface or underground,
which are used or are to be used in or resulting from
the preparation of the extracted minerals are included
in the definition of "mine." The Committee notes that
there may be a need to resolve jurisdictional
conflicts, but it is the Committee's intention that
what is considered to be a mine and to be re!?Jllated
under this Act be given the broadest possibl[e]
interpretation, and it is the intent of this Committee
that doubts be resolved in favor of inclusion of a
facility within the coverage of the Act.
S. Rep. No. 181, 95th Cong. 1st Sess 14, (1977), reprinted in Legis. Hist. at
602 (emphasis added). It is not clear why the Committee did not include the
language "or resulting from" when referring to the work of preparing coal as
it did in the Committee Report. This definition remained unchanged when it
passed the Senate. Legis. Hist. at 1109.
When the House version of the ...bill. was reported by the House Committee
on Education and Labor, the second definition of "coal mine" was added in what
is now section 3(h)(2), while the definition in subsection (h)(l) was similar
to the definition in the Senate bill. Legis. Hist. at 343-44. The House
Committee Report provided the following explanation:
Section 102(b)(2) amends the definition of
"Mine" to read "coal or other mine" and to include (1)
an area of land from which minerals are extracted in
non-liquid form, or if in liquid form are extracted
with workers underground; (2) private ways and roads
appurtenant to such area; and (3) lands, passageways,
facilities, etc., to be used in or resulting from the
work of extracting minerals, including custom coal
preparation facilities and milling operations ....

H. Rep. No. 312, 95th Cong. 1st Sess. 28 (1977), reprinted in Legis. Hist, at
384 (emphasis added). The Committee Report does not state why the Committee
did. not include the language "or resulting from" in the definition in section
3(h) (1) in reference to the work of preparing coal. The definitions of "mine"
in this bill remained unchanged when the bill passed the House. Legis. Hist.
at 1261-62.
The two bills were referred to a conference committee. This committee
adopted the House bill for purposes of section 3(h). The following
explanation is provided in the Conference report:
Both the Senate bill and the House amendment
modified the Coal Act to make it the single mine
safety and health law, applicable to all mining
activity. The Senate bill did this by deleting the
word "coal" where applicable in title I. The House

884

amendment did this by inserting the words "or other"
after the word "coal" where applicable. Thus, the
Senate bill referred to "mines," the House amendment
to "coal or other mines."
The conference substitute conforms to the House
amendment. The conferees note that the foundation for
the new Mine Safety and Health Act is the Federal Coal
Mine Health and Safety Act of 1969. In adopting the
provisions of that Act, titles II, III, and IV are
retained as exclusively applicable to the coal mining
industry. For this reason, it was the decision of the
conferees that the use of the term "coal or other
mine" in titles I and V, which are applicable to all
mining activity, would more clearly delineate the
distinction between those titles of the act applicable
to all mining and those applicable to coal mining
only.
S. Conf. Rep. No. 461, 95th Cong. 1st Sess. 37 (1977), reprinted in
Hist. at 1315.

Legis.

As discussed above, the Mine Act's definitions in section 3(h) are
patterned after the definitions in the Metal Act and Coal Act. It appears to
us that the definition of "coal mine" in subsection 3(h)(2) was included, in
major part, to make clear that titles II, III and V, which contain coal mine
safety and health standards and black lung provisions, are not applicable to
metal or nonmetal mines. The term "coal mine" is used in those titles but not
in titles I and V. When Congress was considering the bills that became the
Mine Act, a critical concern was whether the Secretary would attempt to apply
coal mine safety and health standards to noncoal mines, such as sand and
gravel pits. Much of the debate centered on this concern. See, ~. Legis.
Hist. at 999-1024, 1056-63, 1161-78, 1231-35. The restriction in the
definition of "coal mine" was intended to allay these fears. See Conference
Committee Report, supra. As a consequence the term "coal mine" rather than
the term "c.oal or other mine" is used in titles II, III and IV. It does not
appear, nor can we credit the contention, that Congress intended to provide an
inconsistent definition for coal mines applicable to titles I and V. "A
statute is passed as a whole and not in parts or sections and is animated by
on,e general purpose and intent." 2A Sutherland Statutory Construction, §
46.05, at 90 (Sands 4th ed. 1984 rev.) Consequently, the two definitions
should be construed in a way that harmonizes them. Id.
Lancashire admits that the definition of "coal mine" in section 3(h)(2)
of the Mine Act "covers structures resulting from the preparation of coal."
Lancashire Br. 16. With the exception of the introductory phrase, this
definition is the same definition that was in the Goal Act. Thus,
Lancashire's work site would have been subject to the jurisdiction of the Goal
Act. It is clear that Congress did not intend to reduce the scope of the
government's authority when it passed the Mine Act. Congress stated that
section 3(h) of the Mine Act "contains amendments to the definitions in the
Coal Act, which reflect ... the broader jurisdiction of the[e] [Mine] Act. 11

885

S. Rep. No. 181, supra, at 14, reprinted in Legis. Hist. at 602 (emphasis
added); Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1554 (D.C. Cir. 1984).
The dissenting opinion concludes that persons engaged in demolition at a
mine site such as Lancashire's are not miners. But, the term "miner" is
defined broadly in the Act, as "any individual working in a coal or other
mine." 30 U.S.C. § 802(g). The term "operator" is defined in the Act to
include those performing services or construction at mines. 30 U.S.C.
§ 802(d). Thus, a construction worker, elevator mechanic, laboratory
technician or clerk-typist working at a mine is a "miner" under the Act.
~' Otis Elevator Co. v. Secretary of Labor, 921F.2d1285 (D.C. Cir. 1990);
Martha Perando v. Mettiki Coal Corp., 10 FMSHRC 491 (April 1988). Further,
the Secretary has defined the term "miner" for purposes of hazard training
regulations for surface faci·lities as "any person working in a surface mine or
surface areas of an underground mine ... includ[ing] any delivery, office, or
scientific worker, or occasional, short-term maintenance or service worker
contracted by the operator, and any student engaged in academic projects
involving his or her extended presence at the mine." 30 C.F.R. 48.22(a)(2).
Based on the language of the Mine Act and the legislative history, we
conclude that the facilities at issu~ at the Lancashire No. 25 Mine fit
within the definition of "coal or other mine" as set forth in section 3(h)(l)
of the Mine Act. We reject Lancashire's attempt "to give the Mine Act a
technical interpretation at odds with its obvious purpose." Nacco Mining Co.,
9 FMSHRC 1541, 1546 (September 1987).
B.

Nature of the operation

Lancashire maintains that even if its work site fits within the
definition of "coal or other mine," MSHA was without jurisdiction to inspect
it because the nature of the operation was not similar to work usually
performed by a mine operator. It contends that the demolition and removal of
the structures in question from the abandoned mine site were not closely
associated with active coal mining. Lancashire argues that the Commission's
decision in Oliver M. Elam. Jr., 4 FMSHRC 5 (January 1982), recognizes that an
activity do~s not fall within the coverage of the Mine Act unless the nature
of the operation in question is similar to work normally performed by a mine
operator.
In
the question presented was whether a commercial dock facility
that arguably performed several of the functions included in the Mine Act's
definition of "work of preparing the coal" was subject to MSHA jurisdiction.
7

Consistent with the thrust of this legislative history, the
federal courts have uniformly recognized the extensive reach of the term "coal
or other mine." ~.Marshall v. Stoudt's Ferry Preparation Go., 602 F.2d
589, 592 (3rd Cir. 1979) ("the statute makes clear that the concept that was to
be conveyed by the word [ "minei•] is much more encompassing than the usual
meaning attributed to it"); Cyprus Industrial Minerals Co. v. FMSHRC, 664 F. 2d
1116, 1118 (9th Cir. 1981).

886

7

Having examined the activities carried out at Elam's dock, the Commission
concluded that "all of Elam's activities with respect to coal relate solely to
loading it for shipment." 4 FMSHRC at 6. The Commission held that "inherent
in the determination whether an operation properly is classified as 'mining'
is an inquiry not only into whether the operation performs one or more of the
listed work activities [in the definition of 'work of preparing the coal'],
but also the nature of the operation performing such activities."
4
FMSHRC at 7 (emphasis in original). 8
Elam is distinguishable from the present case. If the Lancashire
facilities being demolished were still in use, they would be the kind of
facilities at which activities within the definition of "work of preparing the
coal" would be performed and, as a consequence, would be within the definition
of "coal or other mine." Lancashire admits that the facilities in this case
"undeniably were designed for and used in the 'work of preparing the coal,' as
that term is defined in the Mine Act." Lancashire Br. 11. Thus, the work
performed at the facilities at issue at the time the mine was operating was
the "work of preparing ... coal as is usually done by the operator of the coal
mine." See section 3(i) of the Act. The physical setting in this case is
easily recognizable as a mine, while Elam's commercial dock on the Ohio River
is not.
Elam applies when an operation is performing some functions normally
associated with coal preparation, such as sizing and crushing, at a location
separate (and different) from a traditional mine site. See, ~.
Coal Sales. Inc., 7 FMSHRC 615, 619-20 (May 1985). The issue there is whether
such activities are sufficient to be deemed the "work of preparing the coal"
so that the operation should be considered to be a mine. In contrast, the
issue in the p~esent case is whether demolition activities in aid of
reclamation at a former preparation plant located on a mine site are within
the statute's coverage. Whether the demolition activities constitute the
"work of preparing the coal" is not an issue here.
Lancashire also refers to the judge's finding that the demolition of the
structures at issue was not closely related to activities normally associated
with active .. coal mining. The judge made this finding, however, in reaching
his conclusion that Lancashire was not required by 30 C.F.R. § 77.1712 to
notify MSHA that it was reopening the mine. The judge determined that in order
8

In the present case, the judge considered the Commission's decision
in Alexander Brothers in reaching the conclusion that Lancashire's work site
was subject to MSHA jurisdiction. 12 FMSHRC at 293. In Alexander Brothers,
the Commission applied
and concluded that the removal and screening of
coal and foreign debris from a refuse pile at an abandoned mine site
constituted the work of preparing the coal. 4 FMSHRC at 545. The judge noted
that although the work being performed by the operator in Alexander Brothers
differed from the work performed by "the ordinary preparation plant," the
Commission determined that it was subject to the jurisdiction of the Coal Act.
12 FMSHRC at 293. Thus, in applying Alexander Brothers to the facts of this
case, the judge analyzed the nature of Lancashire's operation and determined
that it was subject to MSHA jurisdiction.

887

to establish a violation of section 77.1712, there must be "some indicia of
active coal mining operations, or at least some evidence that a mine operator
intended to resume the active mining [or preparation] of coal." 12 FMSHRC at
303. As a consequence, he vacated the citation. The judge's finding in this
regard does not sµpport Lancashire's argument that MSHA was without
jurisdiction.
Other activities at a mine site that do not occur at the same time as
the extraction or preparation of coal are subject to MSHA jurisdiction. For
example, the construction of buildings or other structures at a mine site is
subject to MSHA inspection, even if the extraction of minerals has not yet
begun.
30 U.S.C. § 802(d); See also,~' Bituminous Coal Operators'
Association v. Secretary, 547 F.2d 240 (4th Cir. 1977). Nothing in the Mine
Act, the legislative history- or Elam suggests that MSHA is without
jurisdiction to inspect a particular activity at a "coal or other mine" simply
because such activity is not contemporaneous with the active extraction or
preparation of coal or other minerals.
Moreover, even applying Elam's "nature of the operation" test,
Lancashire's position is undercut by its acknowledgment that "operators have a
duty to tear down above ground structures as part of the state-mandated
reclamation of a permanently abandoned facility." Lancashire Br. 25, n.17.
As a consequence, Lancashire effectively concedes that the normal mining
process may include the demolition of surface facilities at a coal mine after
such mine. is closed. To borrow a phrase from section 3(i) of the Act, the
demolition of surface facilities at a coal mine constitutes work "usually done
by the operator of the coal mine" once the ore body is depleted or mining is
halted for other reasons. While demolition is not always associated with
active mining, it is related to the overall process of mining coal.
C.

Additional Issues

Lancashire contends that a memorandum written by Associate Solicitor
Edward Clair, referred to as the 11 Huntsville Gob memorandum" supports its
position that its reclamation activities were not subject to MSHA
jurisdiction.
In that memorandum, Mr. Clair determined that reclamation work
occurring at another site was not subject to Mine Act jurisdiction. He listed
a number of factors that should be evaluated when MSHA determines whether it
has_ jurisdiction over work occurring on previously mined lands.
The Huntsville Gob memorandum does not purport to be a statement of MSHA
policy nor does the Secretary state that it is. The contents of the
memorandum were not promulgated either as interpretative rules or enforcement
guidelines. Rather, the memorandum is an internal document that supports
MSHA's decision not to assert jurisdiction over a particular facility at a
particular time.
Indeed, Mr. Clair had determined that MSHA did have
jurisdiction over Lancashire's preparation plant in another memorandum,
referred to above, two weeks earlier. The Commission has previously
determined that resolution of the question of jurisdiction "is governed by the
statute, rather than by which of two conflicting interpretations by the
Solicitor is correct." Alexander Brothers, 4 FMSHRC at 543.
In any event,
the Commission has previously concluded that inconsistent enforcement policies

888

of the Secretary are not necessarily dispositive of whether a violation
occurred but bear on the degree of negligence of an operator and in assessing
a civil penalty. King Knob, 3 FMSHRC 1417, 1422 (June 1981).
Lancashire.and the dissenting Commissioners contend that Lancashire's
activities were covered by the Occupational Safety and Health Act of 1970, 29
U.S.C. § 651 et seq. (1988)("0SHAct"). The OSHAct applies to a workplace
unless another federal agency "exercise[s] statutory authority to prescribe or
enforce standards or regulations affecting occupational safety or health." 29
U.S.C. §§ 653(b)(l). When another federal agency has actually exercised its
statutory authority to regulate a workplace, the OSHAct does not apply. lL...\L.,
Southern Ry. Co. v. Occupational Safety and Health Review Comm., 539 F.2d 335,
336 (4th Cir. 1976). The Mine Act empowers an MSHA inspector to issue a
citation or order of withdrawal to any "operator" that violates the Mine Act
or a MSHA regulation. (The term "operator" is defined in section 3(d) of the
Mine Act as "any owner, lessee, or other person who operates, controls, or
supervises a coal or other mine or any independent contractor performing
services or construction at such mine." 30 U.S.C. § 802(d).) Thus, "with
regard to health and safety in the workplace, the Secretary regulates an
employer falling within the Mine Act definition of an
under that Act,
while she regulates an employer not- -so classified under the OSHAct." Otis
Elevator Co. v. Secretary of Labor, 921F.2d1285, 1287 (D.C. Cir. 1990). In
this case, the Secretary exercised her inspection authority under the Mine
Act. The Secretary has never attempted to regulate the safety and health
conditions at Lancashire under the OSHAct. 9
The dissenting Commissioners emphasize that Circuit Court holdings in
Southern Ry. Co. and in Columbia Gas of Pennsylvania v. Marshall, 636 F.2d 913
(3rd Cir. 1980) would require the issuance of explicit demolition regulations
to establish MSHA jurisdiction in this case. But under their rationale,
consequences would ensue that are at variance with Congressional intent.
OSHA, for example, would be given jurisdiction over demolition at a mine site
even when coal was being extracted at the same time, because MSHA would not be
able to show that it had promulgated specific demolition regulations.
Thes~ cases, moreover, may be distinguished.
In Southern Ry. Co., as in
other cases with similar holdings, the court required a showing of specificity

9

In Pennsylvania Electric Co., 11 FMSHRC 1875 (October 1989), and
Westwood Energy Properties, a majority of the Commission determined that
MSHA had jurisdiction over certain facilities but were unable to determine
whether the Secretary had, in fact, chosen to exercise her authority to
them under the Mine Act instead of the OSHAct. In each case, both
the Occupational Safety and Health Administration ("OSHA") and MSHA had
asserted jurisdiction over the operation in question. These cases were
remanded to the judge to determine whether the Secretary had properly
invoked Mine Act jurisdiction. As OSHA has never attempted to assert
jurisdiction over any facility associated with the Lancashire operation,
holdings in Pennsylvania Electric and Westwood are not applicable to this
case.

,

889

in an agency's regulations in order to establish grounds for preemption or
exemption from OSHA's residual regulatory authority. At issue in this case is
the Secretary's direct assertion of statutory authority for MSHA. This is not
a case where OSHA has asserted authority and where that authority is being
challenged. This is not a case where OSHA's residual regulatory authority
derives from a lack of exercise of regulatory authority by another agency.
Southern Ry. Co. and other cases with similar holdings may be further
distinguished in that the jurisdictional question at issue in those cases lies
between separate departments or agencies, rather than within a single cabinetlevel department, under a single Secretary, as in this case. A jurisdictional
question may be resolved with greater ease when it falls within the authority
of one Secretary. The Secretary of Labor, in regulating Lancashire's
demolition activities under·the Mine Act rather than the OSHAct, is "not
determining the outer limits of [her] own authority, but [is] merely
'adjusting the administrative burdens between [her] various agencies.'" Otis
921 F.2d at 1288 n. 1 (quoting Carolina Stalite, 734 F.2d at 1553).
Lancashire is "unquestionably subject to regulation by the Secretary under one
Act or the other."
921 F.2d 1288 n. 1.
Lancashire's final argument is that .. MSHA' s jurisdiction over its coal
preparation plant ceased when MSHA stopped inspecting it in September 1988.
It contends that MSHA stopped inspecting the facility because MSHA determined
that the facility was no longer a mine subject to its jurisdiction.
Lancashire maintains that it did not reestablish itself as a mine subject to
MSHA jurisdiction when it demolished the structures because it took no action,
after MSHA declared the mine to be "permanently abandoned," to resume the
extraction or preparation of coal.
Lancashire argues that MSHA has taken the position that such reclamation
activities at abandoned mines are not subject to the jurisdiction of the Mine
Act. Lancashire points to the testimony of MSHA Inspector Leroy Niehenke and
retired Inspector Thomas Simmers in addition to the Huntsville Gob memo. The
two inspectors stated that
have never known MSHA to attempt to exercise
jurisdiction over demolition work being performed as
of reclamation at a
"permanent1,y abandoned"
In addition, Morchesky (the independent
contractor) testified that he performed similar work at another abandoned mine
site in the area (Barnes & Tucker No. 20) with the knowledge of MSHA and that
MSff:A never attempted to assert jurisdiction over this work.
The Secretary responds that it is irrelevant whether the mine was
reopened to extract or prepare coal, or to demolish surface mine facilities.
She maintains that MSHA's "permanently abandoned" classification is for
administrative convenience to conserve inspection resources and that such
classification does not divest MSHA of jurisdiction if new work is commenced
at the site. We note that the inspection occurred less than seven months
after MSHA classified the mine as "permanently abandoned."
Neither party disputes that MSHA would have jurisdiction at a mine
previously classified as "permanently abandoned" if the operator took actions
to recommence the extraction or preparation of coal. What is contested is
whether MSHA has jurisdiction at a site previously mined when old surface coal

890

preparation facilities are demolished. Lancashire asserts with no
authoritative basis that MSHA's jurisdiction at a "permanently abandoned" mine
can begin again only if steps are taken to resume the extraction or
preparation of coal.
'We believe that the Mine Act's definition of "coal or other mine"
subjects Lancashire's preparation plant to Mine Act jurisdiction. The
Secretary cannot be prevented from asserting Mine Act jurisdiction at the
Lancashire operation simply because she may not have exercised such
jurisdiction at other locations. In resolving questions of jurisdiction, the
Commission must be guided by Congressional intent. Consistent policy and
enforcement, nevertheless, would advance the goals of the Mine Act, improving
workplace safety and health, while at the same time reducing unnecessary
burdens of compliance. Uncertain regulatory enforcement creates confusion and
instability for operators and workers, leading to higher costs of production
and reduced safety.
Finally, it is noteworthy that the essential thrust of Lancashire's
argument is to urge that no governmental oversight was appropriate for the
demolition activity involved in this case. MSHA had exercised jurisdiction
over this site while it wa~ a working operation. OSHA never had visited the
site and, so far as the record discloses, was unaware of the operation and the
demolition. Lancashire does not seek review of the judge's rulings upholding
validity of the citations and orders, but seeks review of the judge's decision
that the cited working conditions were subject to Mine Act jurisdiction. The
judge's decision is reasonable and adequately supported; the argument against
that ruling does not comport with the fundamental concern of the operator for
safety first, as required by the Congress in Section 2 of the Mine Act.
III.

Conclusion
For the foregoing reasons, we

wo~ th~~cision.
Arlene Holen, Commissioner

~/~

L. Clair Nelson, Commissioner

891

Acting Chairman Backley and Commissioner Doyle, dissenting:
Lancashire Coal Company ("Lancashire") ceased operations at its No. 25
Mine in 1983. The shafts were sealed in 1986, and, in 1988, MSHA classified
the work site as permanently abandoned. Subsequently, as part of its
reclamation effort, Lancashire contracted with K&L Equipment Co., Inc.
("K&L") to demolish the old coal silo and screen house on the property. On
March 20, 1989, during the demolition, one of K&L's employees was killed.
The following day, an inspector from the Mine Safety and Health
Administration ("MSHA") inspected the site (under protest from Lancashire
and K&L), and issued several citations to K&L. He also issued to Lancashire
two control orders and a citation, pursuant to 30 C.F.R. § 77.200, 1
alleging that Lancashire had failed to maintain the coal silo and screen
house in good repair. The inspector then consulted with his Subdistrict
Manager, and subsequently the District Manager sought clarification from the
MSHA Administrator "as to MSHA's jurisdiction and the operator's
responsibility to comply with the Act and Title 30 [C.F.R.] and the
jurisdiction over contractor activities at the mine site." Exh. R-36 at 1.
The Associate Solicitor, }n a memorandum dated May 2, 1989, advised that
K&L's activities were "mining activities within the meaning of the 1977
Act." Exh. R-37 at 3. In the meantime, the inspector had returned to the
mine and issued two additional citations, one pursuant to 30 C.F.R. §
45.4(b), 2 alleging that Lancashire had failed to keep required records
with respect to K&L in its office (name, address, telephone number, nature
1

Section 77.200 provides as follows:
Surface installations; general.
All mine structures, enclosures, or other
facilities (including custom coal preparation) shall
be maintained in good repair to prevent accidents and
injuries to employees.

30 C.F.R. § 77.200.
2

Section 45.4(b) provides as follows:
§ 45.4

Independent contractor register.

(b) Each production-operator shall maintain
in writing at the mine the information required by
paragraph (a) of this section for each independent
contractor at the mine. The production-operator
shall make this information available to any
authorized representative of the Secretary upon
request.
30 C.F.R. § 45.4(b).

892

of work to be done, etc.) and the second pursuant to 30 C.F.R. § 77.1712,
alleging that Lancashire had failed to notify MSHA "prior to reopening."

3

Lancashire challenged the citations and orders on the grounds that
MSHA did not have jurisdiction over the mine site. The administrative law
judge concluded, based on his reading of the legislative history and on the
Commission's decision in Westwood Energy Properties, 11 FMSHRC 2408
(December 1989), 4 that Lancashire's property was a "mine" as defined in
the Mine Act and that, therefore, MSHA had jurisdiction at the time of the
inspections. 12 FMSHRC at 291, 295, 303. He upheld the violation of 30
C.F.R. § 77.200, finding that Lancashire had failed to maintain the mine in
good repair, as required by that regulation. He also sustained the
recordkeeping violation charged under 30 C.F.R. 45.4(b). The judge vacated
the citation with respect·to section 77.1712, based on his conclusion that,
in order to establish a violation of that section, "there must be some
indicia of active coal mining operations, or at least some evidence that a
mine operator intended to resume the active mining of coal. 11 12 FMSHRC at
303. The Secretary of Labor ("Secretary") did not petition for review of
that determination.
Our two colleagues would affirm the judge's decision that Lancashire's
demolition project is subject to Mine Act jurisdiction. In doing so, they
state that they rely on the language of the statute, as "further clarified
by its legislative history and by the Commission's decisions" (slip op. at
6) but they refuse to apply the Commissions's earlier framework for
determining Mine Act coverage as set forth in Oliver M. Elam. Jr., Co., 4
FMSHRC 5 (January 1982). Slip op at 12-14. They refuse to consider the socalled Huntsville Gob Memorandum, which is part of the record, because it

3

Section 77.1712 provides as follows:
Reopening mines; notification; inspection prior to mining.
Prior to reopening any surface coal mine after
it has been abandoned or declared inactive by
the operator, the operator shall notify the
Coal Mine Health and Safety District Manager
for the district in which the mine is located,
and an inspection of the entire mine shall be
completed by an authorized representative of
the Secretary before any mining operations in
such mine are instituted.

30 C.F.R. § 1712.
4

Following the Commission's decision in Westwood, the Secretary filed
a Motion to Approve Settlement with the Commission, whereby MSHA agreed not
to "assert jurisdiction over Westwood in the future, as long as Westwood
does not materially change the manner in which it [operates]." Sec.'s
Motion to Dismiss in Westwood at 2.

893

"
does not purport to be a statement of MSHA policy .... " Slip op. at 14.
They further find that Lancashire's operations are exempt from coverage
under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et
.§.!19... (1988)("0SHAct") pursuant to section 4(b)(l) thereof.
29 U.S.C.
§ 653(b)(l).
Slip op. at 15-16. We disagree that Lancashire's demolition
project is subject to regulation under the Mine Act rather than under the
OSHAct.
In reviewing the Mine Act and its legislative history in an attempt to
glean precisely what Congress intended to regulate, our colleagues focus
exclusively on the definition of "coal or other mine" set forth in section
3(h)(l) and the definition of "coal mine" set forth in section 3(h)(2) and
the legislative history of those sections. That legislative history, which
has been widely quoted in advocating Mine Act coverage, indicates that the
definition of a mine is to be "given the broadest possibl(e] interpretation"
and that "doubts [should] be resolved in favor of inclusion .... '' S. Rep.
No. 181, 95th Cong., 1st Sess. 14 (1977) reprinted in Legis. Hist. at 602.
While that language is expansive, it is not without bounds and one must also
consider that the Mine Act was intended to establish a "single mine safety
and health law, applicable to all mining activity." (emphasis supplied) S.
Rep. No. 461, 95th Cong., 1st Sesi;:... 37 (1977) reprinted in Legis. Hist. at
1315. 6 More importantly, section 2(g) of the Mine Act makes clear that
"it is the purpose of [the Mine Act] ... to protect the health and safety of
the Nation's coal or other miners." 30 U.S.C. § 80l(g)(emphasis supplied.)
Nowhere in the Mine Act or in its legislative history is there any
indication that Congress intended the Mine Act, no matter how broadly it is
to be interpreted, to govern the building demolition industry or its
employees, any more than there is indication that Congress intended the Mine
Act to govern other industries engaged in reclamation or in post-reclamation
use of abandoned mines, as our colleague's decision would dictate. 7
We also view our colleagues's decision to be inconsistent with the

5

In the Huntsville Gob Memorandum, dated May 24, 1989, the same
Associate Solicitor who had supported Mine Act jurisdiction in this case
.opined that "[o]ther activities more remote from mining, such as reclamation
work occurring on previously mined abandoned lands are not subject to the Mine
Act." Huntsville Gob Memorandum at 1.
6
As noted by the D.C. Circuit, statutes "are not to be read overliterally" and must be interpreted in light of the spirit in which they were
written and the reasons for their enactment." General Serv. Emp. U. Local No.
73 v. N.L.R.B., 578 F.2d 361, 366 (D.C. Cir. 1978).
7
It should be noted that there were no Lancashire miners on the property
who could have been endangered or otherwise affected by K&L's activities.

89 4

5

Commission's holding in Elam, 4 FMSHRC 5. 8 In this case the judge
accepted joint stipulations which confirmed that, after September 6, 1988,
Lancashire took no action to indicate that it intended to resume the
extraction, production, milling or processing of coal. Stip. 13, Exh. AIJ1. September 6, 1988, was of course, the day MSHA officially declared the
subject work site permanently abandoned. Indeed, after reviewing all the
evidence, and in support of his decision to vacate the citation of 30 C.F.R.
§ 77.1712, the judge concluded:
On the basis of the facts and evidence adduced
in these proceedings, I cannot conclude that the
demolition and removal of the structures in guestion
from the abandoned mine site in guestion were
closely associated with activities normally
associated with active coal mining. It is
undisputed that active coal mining had not taken
place at the site for at least 6-years prior to the
demolition activities in question, and the underground shafts were permanently sealed in 1986, and
MSHA declared the mine permanently abandoned in
1988. Mr. Falger's unrebutted credible testimony
suggests that the structures which were being
demolished and removed from the site had not been
used in any mining activity for at least 18 years
prior to their demolition. There is no evidence
that Lancashire ever intended to resume any active
coal mining activities at the time the demolition
work was taking place. The site was dormant, and
t~ere is no evidence that Lancashire had taken any
action to resume the extraction or processing of any
coal after the site was declared permanently
abandoned. Further, the demolition work was being
done by K&L, and there is no evidence that any
Lancashire employees were performing any of this
work.

12 FMSHRC at 302.

(emphasis supplied.)

The foregoing determination of the judge provides compelling support
for Lancashire's argument that the principle enunciated by this Commission
in Elam, 4 FMSHRC 5, dictates a conclusion that, under the facts of this
case, MSHA did not have jurisdiction over Lancashire's work site.
In Elam, the Commission eschewed a mechanical, reflexive determination
8

While we do not disagree that the "'work of preparing the coal' is not
an issuen in this case (slip op. at 13) or that "Elam applies when an
operation is performing some functions normally associated with coal
preparation" (slip op. at 13), we disagree that its application is so limited.

895

of jurisdiction under the Mine Act. Notwithstanding the fact that Elam
actually performed many of the functions expressly included in the Mine
Act's definition of coal preparation, i.e., storing, breaking, crushing, and
loading, the Commission concluded that Elam was not "mining" but, rather,
was performing those functions incidentally to its business, which was the
commercial loading of coal and other material at a dock. Significantly, the
Commission held:
... inherent in the determination of whether an
operation properly is classified as "mining is an
inquiry not only into whether the operation performs
one or more of the listed work activities, but also
into the nature of the operation performing such
activities.
11

Elam, 4 FMSHRC at 7.
In deciding thusly, the Commission reconciled a broad jurisdictional
mandate in a way that was not obscured by the existence of superficial
conditions which could have been seized upon to support a contrary
conclusion. We seek to do no less
resolving the instant case.
Clearly the record in this matter establishes that Lancashire's
operation, at the time MSHA asserted jurisdiction, was exclusively
demolition. In our colleagues view, Lancashire's acknowledgement that
Pennsylvania state law mandates the demolition of above ground structures of
permanently abandoned facilities is a concession that such demolition is
part of "the normal mining process.
Slip op. at 14. Thus, they conclude
that, even under Elam, Lancashire is subject to the Mine Act. Id. We do
not agree. There are many activities incidental to the establishment and
winding down of a mining business that are not regulated by the Mine Act.
Certainly, the acts of leasing coal reserves, obtaining permits, securing
financing and insurance, purchas
mining equipment, obtaining electrical
power, and marketing the coal produced are all activities related to the
overall process of mining coal" but are all clearly not subject to Mine Act
jurisdiction. Moreover, in construing the breadth of the jurisdiction of
this federal statute, it is clearly error to rely upon the existence of a
particular state law. Obviously our holding today applies nationally,
irrespective of the provisions of a particular state's reclamation
requirements.
11

11

Proper application of the Elam test compels a determination that,
under the facts of this case, MSHA.erroneously asserted jurisdiction over
the demolition activities at the Lancashire work site.
The affirming Commissioners also conclude that Lancashire is exempt
from OSHAct coverage because the Secretary exercised her inspection
authority under the Mine Act and the "Secretary has never attempted to
regulate the safety and health conditions at Lancashire under the OSHAct. 11
Slip op. at 15. Evidently they are of the opinion that, anytime MSHA
conducts an after-the-fact inspection of an accident site, the operator of
that site becomes subject to a retroactive application of Mine Act
11

11

896

jurisdiction and regulations and is automatically exempted from the OSHAct
pursuant to the provisions set forth in section 4(b)(l) thereof.
The Secretary generally regulates safety and health under the OSHAct,
but regulation thereunder does not extend to "working conditions of
employees with respect to which other Federal agencies ... exercise
statutory authority to prescribe or enforce standards or regulations
affecting occupational safety or health." 29 U.S.C. § 653(b)(l). The court
in Southern Ry. Co. v. OSHRC, 539 F.2d 335 (4th Cir. 1976), cert. denied,
429 U.S. 999 (1976), relied on by the affirming Commissioners (slip op. at
14), emphasizes that the legislative history of the OSHAct clearly indicates
that it is not the mere existence of the authority of another agency to act,
but its adoption and enforcement of rules and rer;ulations that exempts
employees from coverage under the OSHAct. 539 F.2d at 336, 337. In that
case, Southern argued that all its employees were exempt from OSHAct
coverage because the Federal Railway.Administration ("FRA") had promulgated
regulations affecting the working conditions of railway employees. The
Secretary of Labor contended that, although FRA had authority to regulate
all areas of employee safety for the railway industry, section 4(b)(l) of
the OSHAct exempts only those areas of railway employee safety in which FRA
had actually exercised its authority. Finding that the safety regulations
of FRA were confined almost exclusively to over-the-road transportation
operations, and that FRA had not issued regulations with respect to offices,
shops and repair facilities, the court rejected both the broad "industry
wide".exemption urged by Southern, as well as the narrow "particular
discrete hazards" exemption urged by the Secretary. 539 F.2d at 338, 339.
Rather, it found that the exemption from OSHAct coverage applies where
another agency "has exercised its statutory authority to prescribe
standards" for the "environmental area in which an employee customarily goes
about his daily tasks." 539 F.2d at 339 (emphasis added). Accordingly, the
court found no exemption from the OSHAct for those areas of Southern's
operation with respect to which FRA had not issued regulations. 539 F.2d at
339-40. 9
Notwithstanding our colleagues' unsupported assertion to the contrary
(slip op. at 16), MSHA has not exercised regulatory authority. It has not
addressed either the "environmental area" or the "precise hazards" involved
with this demolition project as evidenced by the fact that MSHA could cite
Lancashire only for (1) its failure to maintain the mine in good condition,
when it was actually demolishing the structure in issue, (2) for its failure
to notify MSHA that it was reopening a mine, when it was actually taking
further steps to preclude ever reopening (a citation that was vacated by the
9

It is informative to note that the Secretary has maintained the
position asserted in Southern Ry. as recently as December, 1990, in a brief
filed in the pending case of Pennsylvania Electric Company v. FMSHRC, No. 903636, (3d Cir.). In that brief, she states that she "continues to maintain
that OSHA is preempted under section 4(b) (1) only if another agency has
addressed the precise hazard at issue." Sec. Br. in Pennsylvania Electric
Company at 40, n. 32. (emphasis supplied).

897

judge), and for (3) a recordkeeping violation. OSHA, on the other hand, has
issued specific regulations with respect to demolition, 29 C.F.R. § 1926.850
et seg. (1988). Included is a regulation requiring that an engineering
survey be conducted prior to the commencement of demolition to determine,
among other things, the possibility of unplanned collapse. 29 C.F.R. §
1926. 850(a). 10
The Fifth Circuit has also addressed this issue in Southern Pacific
Transportation Co. v. Usery, 539 F.2d 386 (5th Cir. 1976). Relying on the
legislative history of the OSHAct, the court found that the "Senate
proceedings clearly demonstrate that the Senate language [which was
substituted for the House version] was not intended to create an industrywide exemption." 539 F. 2d at 390-91. The court further found that
"interpretation of section·4(b)(l) as an industry-wide exemption becomes ...
an assertion inconsistent with an announced statutory purpose," i.e., "to
assure so far as possible to every man and woman in the nation, safe and
healthful working conditions." 539 F.2d at 391, 29 U.S.C. 65l(b).
The Third Circuit has also concluded that "section 4(b)(l) preemption
requires a two-part showing; first, that a coordinate federal agency has
'exercised' authority by promulgating regulations in the area and second,
that these concurrent regulations cover the specific 'working
conditions' .... " Columbia Gas of Pa., Inc. v. Marshall, 636 F.2d 913, 91516 (3d Cir. 1980). "The preempting agency must actually promulgate
regulations, mere declaration of authority is not enough." 636 F.2d at 916,
n. 7.
It appears that the affirming Commissioners have equated MSHA's post
accident inspection and shoe-horn attempts at citations with "regulation,"
and have ignored OSHA's final regulations in concluding that no attempts
have been made by OSHA to regulate this demolition project. However, the
Secretary herself recognizes, albeit in other cases, that "regulation"
sufficient to exempt an operator from OSHAct coverage does, in fact, require
the promulgation of regulations.
In rej
the third, fourth and fifth circuits' holdings in
Southern Ry. Co., Columbia Gas of Pa., and Southern Pacific Transportation
10

Section 1926.850(a) of the OSHA regulations provides, in relevant
part, as follows·
Preparatory operations.
(a)
Prior to permitting employees to start
demolition operations, an engineering survey shall be
made, by a competent person, of the structure to
determine the condition of the framing, floors, and
walls, and possibility of unplanned collapse of any
portion of the structure ....
29 C.F.R. § 1926.850(a).

898

Co., our colleagues state that, under such a rationale (requiring the
issuance of demolition regulations to establish MSHA jurisdiction),
"consequences would ensue that are at variance with Congressional intent."
Slip op. at 15. Obviously they are ignoring Congress' intent in enacting
the OSHAct, and in particular section 4(b)(l) thereof, i.e., to remove
jurisdiction from OSHA only when another agency with authority to regulate
safety in the workplace has actually taken steps in that direction by
issuing regulations.
In attempting to distinguish this case, our colleagues state that we
are dealing here with "the Secretary's direct assertion of statutory
authority for MSHA" as opposed to her defense of jurisdiction "where OSHA
has asserted authority and where that authority is being challenged." Slip
op. at 16. While we do not disagree with that statement, we do not see that
it provides a basis for a different interpretation of the same law. Nor do
our colleagues enlighten us as to why this should be the case. They also
assert, without support, that "[t]his is not a case where OSHA's residual
regulatory authority derives from a lack of exercise of regulatory authority
by another agency." Slip op. at 16. In fact, this is just such a case if
one recognizes, as have the courts as well the Secretary, that "regulation"
does, in fact, require the issuance, of regulations. In this case, no MSHA
regulations exist. 11
Our colleagues also seem to be of the opinion that MSHA is not a
separate agency from OSHA because they are "within a single cabinet-level
department, under a single Secretary." Slip op. at 16. Whether the preempting agency is within or without "a single cabinet level department under
a single Secretary" is totally irrelevant to the purpose of section 4(b)(l)
of the OSHAct', i.e., that protection of the OSHAct is not to be pre-empted
unless another agency has specifically regulated at least the "environmental
area" in question. 12
11

In our view, our colleagues misread the Commission's decision in King
Knob Coal Company, Inc., 3 FMSHRC 1417 (June 1981). That case does not deal
with "inconsistent enforcement policies of the Secretary" (slip op. at 14-15)
nor did the Commission "conclude[] that inconsistent enforcement policies of
the Secretary are not necessarily dispositive of whether a violation
occurred."
at 15. The issue in that case was whether the Secretary was
.estopped from enforcing a regulation as written because MSHA' s Manual set
forth a different interpretation of what the regulation required. 3 FMSHRC at
1417.
The Commission
ected King Knob's argument on the grounds that
"equitable estoppel generally does not apply against the government."
3
FMSHRC at 1421.

12

Even the Secretary has not advocated this approach, either in this
case or in Pennsylvania Electric Company, where she argues that her
promulgation of an MSHA a standard applicable to the working conditions in
issue triggers pre-emption of OSHAct jurisdiction. Sec. Br. in Pennsylvania
Electric Company at 37.

899

Finally, our colleagues assert that "the essential thrust of
Lancashire's argument is to urge that no governmental oversight was
appropriate for the demolition activity involved in this case." Slip op. at
17. A careful reading of Lancashire's Brief and its Supplemental Brief
prove otherwise. In its initial Brief, Lancashire states:
... While MSHA's expertise in the extraction,
milling and preparation of minerals may be of use
when dealing with an underground tunnel or even
possibly the construction of a structure that is to
be used in the mining process, it would be of little
use in connection with the demolition of above
ground structures at an abandoned mine site. The
proper demolition of a storage silo does not depend
on whether it used to be filled with coal or grain.
Thus, it makes perfect sense for the more general
agency, OSHA, and not MSHA, to have jurisdiction
over the demolition of such structures.
Lane. Brief at 12, n.10.
In its Supplementa~ Brief, Lancashire states:
... Thus, enforcement of health and safety standards
in connection with such demolition can and should be
carried out by the more generalized Occupational
Safety and Health Administration ("OSHA"), and not
by MSHA. Furthermore, as explained in Petitioner's
Brief at 12 n.10, exclusion from Mine Act coverage
for the demolition of these structures is entirely
consistent with the OSHA-MSHA interagency agreement.
Lane. Supplemental Brief at 5. The thrust of Lancashire argument is that
OSHA should regulate reclamation-oriented activities such as demolition at
abandoned mine sites.
In this case, there is no evidence that the safety of any miners (the
group Congress intended to protect when it enacted the Mine Act) was
involved. The Secretary has issued no regulations under the Mine Act that
&nhance
in the circumstances at issue, which is, after all, the goal
of both the Mine Act and the OSHAct. Had the engineering survey required
under the OSHAct been done, perhaps Lancashire and K&L would have been
alerted to the fact that the procedure being contemplated was unsafe.
(MSHA's regulations do not tell us what it would have required had
Lancashire advised MSHA that it was "reopening" the building it was planning
to demolish.) The Secretary's position here is not only inconsistent with
her position in other projects (as evidenced by the Huntsville Gob
Memorandum) and other cases (as evidenced by her argument in Southern Ry.
and her brief in Pennsylvania Electric), but the record is devoid of
evidence indicating any previous attempts to enforce the Mine Act in this

900

fashion. 13 In addition, the inspector, who was uncertain of whether MSHA
had jurisdiction, was apparently unable to get clarification from either his
Subdistrict or District Managers, as evidenced by the memo from the District
Manager to the MSHA Administrator requesting a determination.
In summary, we are of the opinion that Congress did not intend to
regulate the demolition industry under the Mine Act, that neither this
"hazard" nor "environmental area" is addressed in Mine Act regulations so as
to trigger the section 4(b)(l) preemption from the OSHAct, and that the
Secretary's assertion of jurisdiction under the Mine Act, even if entitled
to weight, is unreasonable in this case. Accordingly, we would reverse the
administrative law judge and vacate the citations and order

~/.
Richard V. Backley, Acting Chairman

13

In fact, the evidence of record is to the contrary. MSHA Inspector
,Sparvieri testified that once a mine site has been permanently abandoned,
MSHA's duty to inspect it ceases. Tr. 94. MSHA inspector Leroy Nienenre
testified that, although he had conducted at least one inspection at the
Lancashire site during the time of the demolition project, he had been told
by the supervisor not to inspect it. Tr. 234-37. He was not aware of any
time that MSHA had asserted jurisdiction at an abandoned mine because of
demolition work taking place. Tr. 237. The affidavit of retired MSHA
inspector Thomas J. Summers, received into evidence as Exhibit C-3, states
that in his eighteen years experience with MSHA he was unaware of any cases
in which a permanently abandoned mine was again inspected by MSHA except
where steps were taken by the operator that indicated the resumption of
production or processing of coal. Exh. C-3 at , 3.
•

901

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

20006

June 25, 199]
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 89-192

v.

EASTERN ASSOCIATED COAL CORPORATION

BEFORE:

Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et .§..fill. (1988) ("Mine Act" or "Act"). It
involves the validity of two orders of withdrawal issued for the same
violative condition to Eastern Associated Coal Company ("Eastern"), by the
Department of Labor's Mine Safety and Health Administration ("MSHA"), pursuant
to sections 104(d)(2) and 107(a) of the Mine Act. 30 U.S.C. §§ 814(d)(2) &
817(a). Commission Administrative Law Judge Avram Weisberger affirmed both
withdrawal orders. In an Order denying Eastern's Motion for Summary Decision,
he concluded that neither the Mine Act nor its legislative history prohibits
MSHA from issuing a section 104(d)(2) order of withdrawal in conjunction with
a section 107(a) imminent danger order of withdrawal. 11 FMSHRC 1868
(September 1989)(ALJ). On the basis of stipulated facts, the judge granted
the Secretary of Labor's Motion for Summary Decision, affirmed the withdrawal
orders and assessed a civil penalty of $1,500. Unpublished Decision dated
April 20, 1990. For the reasons set forth below, we affirm the judge's
decision.

I.

Factual and Procedural Background
Eastern operates a surface coal facility at the Federal No. 2 Mine in
Monongalia County, West Virginia. On January 26, 1989, MSHA Inspector Joseph
Migaiolo issued several withdrawal orders at the mine including Order
No. 3106731, under section 107(a) of the Mine Act, and Order No. 3106732,

902

under section 104(d)(2), for a violation of 30 C.F.R. § 77.400. 1 The
inspector issued the section 107(a) imminent danger order because he
determined that a guard for the tail roller of a conveyor belt had been
removed and that miners had cleaned spillage from both sides of the unguarded
tail roller while the belt was operating. The section 104(d)(2) order alleged
a violation of 30 C.F.R. § 77.400 for the same unguarded tail roller that was
described in the imminent danger order. The order also stated that "[t]his is
a repeat violation at this location identical in nature from a previous
inspection as well as repeated when observed at least twice by safety
committee inspections [sic]." Order No. 3106732.
The orders were issued at 8:21 a.m. The cited condition was abated at
8:45 a.m. on the same day, when Eastern installed the guards at the cited
locations and "presented education and training to the miners on safe work
procedures." Orders 3106731 and 3106732. Eastern contested both orders.
On August 21, 1989, Eastern filed a Motion for Summary Decision with the
judge on the basis that "as a matter of law, only a 104(a) citation may be
issued in conjunction with a 107(a) imminent danger order." Eastern asked the
judge to modify the section 104(d)(2) order to a section 104(a) citation. It
conceded that the conditions set fo:r;!;h .in. the orders existed but denied that
they were the result of its unwarrantable failure. Eastern contended that
section 107(a) of the Mine Act 2 allows an inspector to issue a citation
1

Section 77 .400 entitled "Mechanical equipment guards" provides,
pertinent
(a) Gears; sprockets; chains; drive, head,
tail, and takeup pulleys; flywheels; couplings;
shafts; sawblades; fan inlets; and similar exposed
moving machine parts which may be contacted by
persons, and which may cause injury to persons shall
be

*
(d)
shall be
operated.
2

*

*

Except when testing the machinery, guards
in place while machinery is being

Section 107(a) provides:
If, upon any inspection or investigation of a
coal or other mine which is subject to this [Act], an
authorized representative of the Secretary finds that
an imminent danger exists, such representative shall
determine the extent of the area of such mine through
out which the danger exists, and issue an order
requiring the operator of such mine to cause all
persons, except those referred to in section [104(c)]
of this [Act], to be withdrawn from, and to be

903

in

under section 104(a) along with an imminent danger order but prohibits him
from issuing another withdrawal order for the same condition.
Eastern further
argued that section 104(d)(l) of the Mine Act 3 also supports its position
that only a section 104(a) citation may be issued with an imminent danger
order because section 104(d)(l) expressly limits the issuance of a citation
under that section to circumstances in which "the conditions created by such
violation do not cause imminent danger." 30 U.S.C. § 814(d)(l).
Eastern
reasoned that because section 104(d)(2) of the Mine Act 4 is dependent upon

prohibited from entering, such area until an
authorized representative of the Secretary determines
that such imminent danger and the conditions or
practices which caused such imminent danger no longer
exist.
The issuance of an order under this subsection
shall not preclude the issuance of a citation under
section [1041 of this [Act] or the proposing of a
penalty under section [110] of this [Act].
30 U.S.C. § 817(a)(emphasis added).
3

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

30 U.S.C. § 814(d)(l)(emphasis added).
4

Section 104(d)(2) provides:
If a withdrawal order with respect to any area
in a coal or other mine has been issued pursuant to
paragraph (1), a withdrawal order shall promptly be
issued by an authorized representative of the
Secretary who finds upon any subsequent inspection the
existence in such mine of violations similar to those
that resulted in the issuance of the withdrawal order
under paragraph (1) until such time as an inspection
of such mine discloses no similar violations.
Following an inspection of such mine which discloses
no similar violations, the provisions of paragraph (1)

904

104(d)(l), the prohibition in (d)(l) against an inspector finding an imminent
danger in conjunction with
a section 104(d)(l) citation also applies
to (d)(2).
Eastern argued that "as only 'violations similar to those that
resulted in the issuance of the withdrawal order under paragraph (l)' may
result in a (d)(2) order, and as paragraph (d)(l) citations may be issued only
when there is no imminent
, it follow[s] that a (d)(2) order may not be
issued in conjunction with the 107(a) order." Memorandum of Law in Support of
Respondent's Motion for Summary Decision at 4 (emphasis in original).
In response to Eastern's motion, the Secretary stated that she is not
precluded from issuing a section 104(d)(2) unwarrantable failure order in
conjunction with a section 107(a) imminent danger order for two basic reasons.
First, she contended that the language of the Mine Act and the legislative
history do not preclude the conjunctive issuance of such orders.
Second, she
maintained that her position on this issue is based on a permissible
construction of the statute, is reasonable, and furthers the purpose of the
Act.
She concluded by arguing that "[o]ne order addresses the heightened
of the operator while the other addresses the heightened gravity of
the condition cited, and an
should not be made to choose which order
he will issue." Secretary's Response to Motion for Summary Decision at 12.
The judge rejected each of Eastern's arguments and denied Eastern's
motion.
11 FMSHRC at 1868. First, the judge stated that he could find no
support in the language of section 107(a) or the legislative history for
Eastern's argument that by expressly not precluding the issuance of a citation
under section 104(a), Congress intended thereby to preclude the issuance of a
section 104(d) order.
11 FMSHRC at 1868-69. Second, he determined that the
language referred to by Eastern in section 104(d)(l) was "insufficient to base
a conclusion that Congress intended that a section 104(d)(2) order may not be
issued in conjunction with a section 107(a) order." 11 FMSHRC at 1869. The
judge
with the Secretary that if Eastern's interpretation is adopted,
"it will result in the frustration of the statutory scheme embodied in section
104(d)(
and (2), as an inspector would be prevented from issuing orders
by section 104" whenever an imminent danger exists. Id. He
concluded that "it has not been established, that, as a matter of law, the
section 104(d)(2) order herein was improperly issued, and should be amended to
a section 104(a) citation." 12 FMSHRC at 1870.
Eastern petitioned the Commission for interlocutory review of the
judge's order (29 C.F.R. § 2700.74), and the Commission denied the petition on
October 26, 1989. Eastern's petition to reconsider the denial was also denied
by the Commission on November 30, 1989.
After the judge set the case for bearing, the parties
to the
following
facts:
(1) "An imminent danger as defined by Section 107(a) of
the Act existed at the belt roller;" (2) "A violation of 30 C. F. R. § 77. 400
existed at the belt roller;" (3) "The violation was of such a nature as to

shall again be applicable to that mine.

30 U.S.C. § 814(d)(2) (emphasis added).

905

and substantially contribute to the cause and effect of a mine
hazard;" and (4) "The violation was the result of an unwarrantable
failure on the part of [Eastern]." Stipulated Facts, filed March 27, 1990,
at 2.
The Secretary filed a Motion for Summary Decision, asserting that the
Stipulated Facts disposed of all issues except whether section 107(a) and
104(d)(2) orders can be issued for the same condition. She argued that since
the judge decided that issue in his Order of September 12, 1989, the judge
should issue a decision affirming the orders and assessing a penalty.
In an unpublished decision dated April 20, 1990, the judge held:
The Secretary ... on March 27, 1990, filed a
Motion for Summary Decision concerning Order Nos.
3106731 and 3106732. This Motion was not opposed by
Respondent. Accordingly, and based on the stipulated
facts filed along with the Motion, the Motion is
GRANTED.
The judge assessed a civil penalty ..of $1, 500.
II.

Disposition of Issues
Eastern's position before the Commission is essentially the same as it
was before the judge. First, it argues that the last sentence of section
107(a) prohibits the issuance of a companion section 104(d)(2) order of
withdrawal. It contends that the terms "order" and "citation" are not used
interchangeably in the Act because each has "a precise meaning and precise
ramifications." Eastern Br. 3. It maintains that a court may not insert
words or phrases into a statute and that if Congress had intended that section
104(d) orders could be issued in conjunction with 107(a) orders, it would have
so stated Eastern argues that because the language of section 107(a) is clear
on its face, the Commission cannot expand that section beyond its plain
and that resort to the legislative history to aid construction is
proper only where the language of the Mine Act is ambiguous.
Second, Eastern contends that the judge read section 104(d) in
isolation, without considering "the balance of the enforcement scheme
contained in 104" of the Mine Act. Eastern Br. 5. As an example, Eastern
offers the fact that conditions supporting the issuance of a withdrawal order
pursuant to section 104(b), 30 U.S.C. § 814(b), may also support the issuance
of a section 104(d) order. Eastern argues that "MSHA correctly makes no
effort to issue concurrent withdrawal orders at that point for the obvious
reason that they would be in derogation of the statutory scheme of
enforcement." Eastern Br. 6. Likewise, Eastern asserts that issuing
concurrent 107(a) and 104(d) orders would be "in derogation of the statutory
scheme of enforcement." Id. In addition, Eastern maintains that the only
explanation for the last sentence of section 107(a) is that it

enables the Secretary to propose a penalty should any violation be found.

906

Finally, Eastern argues that the statutory purpose of protecting the safety of
miners will not be frustrated if a 104(d)(2) order cannot be issued with a
107(a) order because a withdrawal of miners will be required by the imminent
danger order in any event.
The Secretary's position also is essentially the same as it was before
the judge. First, she argues that the language of the last sentence of
section 107(a) is permissive, not restrictive.
She argues that had "Congress
meant to restrict the type of enforcement action the Secretary may issue in
conjunction with a section 107(a) order, it would have stated that 'only'
section 104(a) citations may be issued, or that 'citations, but not orders'
may be issued." Sec. Br. 6.
She concurs with the judge's conclusion that
Eastern's interpretation is not supported by a plain reading of section 107(a)
or its legislative history.
She states that the disputed language in section
107(a) was included merely to make clear that the enforcement mechanisms
available under section 104 and 110 are available to the Secretary even when
the particular violation creates an imminent danger.
The Secretary maintains that "Congress could not reasonably have
intended that [an operator's unwarrantable] misconduct be removed from the
reach of section 104(d) sanctions ~~rely because of the happenstance that such
misconduct resulted in conditions that arose beyond merely 'significant and
substantial' and created an imminent danger." Sec. Br. 9.
She maintains
that, if an operator could evade the sanctions of section 104(d) on the basis
that the violation was so egregious as to result in an imminent danger, "the
incentive to improve conduct, which the 104(d) withdrawal order threat places
on an operator, would be lost." Id. Finally, she concludes that, because her
interpretation of the disputed language of section 107(a) is reasonable, the
Commission should hold that the issuance of a section 107(a) order does not
affect her ability to issue orders under section 104(d).
A.

Section 107(a)

Each party argues that the plain meaning of the last sentence of section
107(a) supports its respective position in this case. By its terms, the
disputed sentence permits an inspector to issue a section 104 citation in
conjunction with an imminent danger order. The language of this sentence,
however, does not address the issuance of other orders.
Consequently, we
believe that the language is sufficiently ambiguous to require a more thorough
analysis than that provided by the parties.
The legislative history of the last sentence of section 107(a) is
instructive.
The imminent danger provision of the Coal Mine Health and Safety
Act of 1969, 30 U.S.C. § 801 et gg_. (1976)(amended 1977) ("Coal Act"), was
contained in that statute's section 104(a). That provision was very similar
to section 107(a) of the Mine Act of 1977 but did not contain the language in
dispute in this case. 5 Section 104(b) of the Coal Act authorized an

5

Section 104(a) of the Coal Act provided:
If,

upon

any

inspection

907

of

a

coal

mine,

an

inspector to issue to an operator a notice of violation (the equivalent of a
citation) if he found a violation of a safety or health standard that did not
create an imminent danger. 6 Under the Coal Act, if an inspector found that
a violation created an imminent danger, he issued an imminent danger order
under section 104(a) and the same order also charged the operator with a
violation of a safety or health standard. A civil penalty was assessed for
the violation alleged in the order. Eastern Associated Coal Corp., 1 IBMA
233, 236, 1 BNA MSHC 1046, 1048-49 (December 1972). In such a case, a
separate notice of violation (citation) was not issued by the inspector.
The version of the Mine Act that passed the House in 1977 did not amend
the imminent danger provision of the Coal Act. 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 1260 et seq. (1978)("Legis.
=~_,_").
Thus, the House bill did not purport to change the above-described
method of charging operators with violations in imminent danger orders and
assessing civil penalties for such violations. The Senate bill, on the other
hand, moved the imminent danger provision to a separate section of the Act.
From the outset, the Senate bill contained the disputed language permitting
the issuance of a citation for a violation under what became section 104 of
the Mine Act. Legis. Hist. at 150,,_551 & 1121. In addition, the section of
the Senate bill that became section lOS(a) of the Mine Act, 30 U.S.C.
§ 815(a), provided for the assessment of a penalty "after ... the Secretary
issues a citation or order under section [104] .... " Legis. Hist. at 1118.
authorized representative of the Secretary finds that an
imminent danger exists, such representative shall
determine the area throughout which such danger exists,
and thereupon shall issue forthwith an order requiring
the operator of the mine or his agent to cause
immediately all persons, except those referred to in
subsection (d) of this section, to be withdrawn from,
and to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such imminent danger no longer exists.
30 U.S.C. § 814(a) (1976) (amended).
6

Section 104(b) of the Coal Act provided, in pertinent part:
[I]f, upon any inspection of a coal mine, an authorized
representative of the Secretary finds that there has
been a violation of any mandatory health or safety
standard but the violation has not created an imminent
danger, he shall issue a notice to the operator or his
agent fixing a reasonable time for the abatement of the
violation.

30 U.S.C. § 814(b) (1976) (amended) (emphasis added).

908

The Conference Report states:
Under both [the Senate and House] versions, the
issuance of an imminent danger withdrawal order would
not preclude the issuance of a notice (or citation) or
the proposal of a civil penalty assessment.
The conference substitute conforms to the Senate
bill ....
S. Rep. No. 461, 95th Cong., 1st Sess. 55 (1977)
Legis. Hist. at
1333. Thus, under the structure of the Mine Act, the Secretary's allegation
of a violation must be issued under section 104 rather than section 107(a)
because section 105(a) provides for the assessment of a penalty only after
"the
issues a citation or order under section 104 .... "
30 U.S.C. § 815(a).
Further analysis of the language of the disputed sentence in section
107(a) through intrinsic aids to construction helps explain its purpose. 2A
Sutherland Statutory Construction, § 45.14, at 70 (Sands 4th ed. 1984 rev.).
One frequently used principle of statutory construction provides that the
mention of one thing implies the exclusion of another; expressio unius est
73 Am Jur. 2d, Statutes, § 211, at 405. This principle
of construction provides that the [l]egislative prescription of a specified
sanction for noncompliance with statutory requirements ... exclude[s] the
application of other sanctions." Sutherland, supra, § 47.23 at 194. In
essence, Eastern relies upon this principle to support its view that Congress
knew the difference between citations and orders so that its failure to
include orders in the disputed language means that it intended to exclude
them.
11

11

11

This principle of statutory construction, however, "cannot apply when
the legislative history and context are contrary to such a reading of the
statute." U.S. v. Castro, 837 F.2d 441, 442-43 & n. 2 (11th Cir. 1988). I t
is also clear that this principle is not a rule of law. Loe. Union 2274 UMWA
10 FMSHRC 1493, 1502 (November 1988), aff'd sub. nom.
Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773 (D.C. Cir. 1990); Sutherland,
supra, § 47.23 at 194. As a consequence, it can be overcome by indications of
contrary legislative intent or policy. Id. In addition, when the word
"include" or "including" is used in a statute, "it is generally improper to
conclude that entities not specifically enumerated are excluded." Sutherland,
supra, § 47.23 at 194.
As a matter of statutory construction, we believe that the "shall not
"
is, as the Secretary maintains, permissive and not
restrictive. This language does not expressly exclude or otherwise address
the issuance of orders of withdrawal. Rather, this language is similar to
statutory provisions that contain the word "include" or "including," with the
result that "entities not specifically enumerated" are not to be excluded
unless such exclusion is warranted by the context or legislative history.

Nothing in the legislative history suggests that the purpose of the

909

disputed language was to restrict the authority of the Secretary. As noted,
this language was apparently added because section 105(a) provides a mechanism
for assessing civil penalties only for citations and orders issued under
section 104. Thus, at a minimum, this language was included to permit the
Secretary to allege violations of safety and health standards in conjunction
with imminent danger closure orders and to assess civil penalties for these
alleged violations. We conclude from the legislative history that Congress
did not intend the last sentence of section 107(a) to circumscribe the
Secretary's enforcement authority under section 104 of the Act.
we also conclude from the Mine Act's remedial purpose that the disputed
language should not be construed to limit the Secretary's enforcement
authority. The Act's enforcement scheme provides for "increasingly severe
sanctions for increasingly serious violations or operator behavior." Cement
Division. National Gypsum Company, 3 FMSHRC 822, 828 (April 1981). Congress
viewed section 104(d) as a key element in the overall attempt to improve
health and safety practices .in the mining industry. See S. Rep. No. 181, 95th
Cong., 1st Sess. 30-32, reprinted in Legis. Hist. 618-20. The threat of a
chain of section 104(d) orders "provides a powerful incentive for the operator
to exercise special vigilance in health and safety matters" because this
sanction is triggered by the unwarrantable conduct of the operator. Nacco
Mining Co., 9 FMSHRC 1541,~1546 (September 1987). A determination that an
operator's conduct in relation to a violation is unwarrantable is as relevant
to situations where the violation creates an imminent danger as to violations
involving lesser hazards. To read out of the Act the protections and
incentives of a section 104(d)(2) order on the basis that the hazard created
by the violation is so great that it creates an imminent danger would seem
peculiar on its face and would blunt the effectiveness of this sanction.
The importance of section 104(d)(2) orders stems from the fact that the
chain of withdrawal order liability continues under that section until broken
by an intervening clean inspection. UMWA v. FMSHRC and Kitt Energy Corp.,
768 F.2d 1477, 1479 (D.C. Cir. 1984). The fact that the section 104(d)(2)
order would not require the actual withdrawal of miners, inasmuch as they
would be withdrawn by the imminent danger order in any event, does not render
the unwarrantable failure order meaningless. The unwarrantable failure order
"would not be pointless, for it would serve to place or keep the mine operator
on the section 104(d)(2) probationary chain." Emerald Mines Go. v. FMSHRC,
863 F.2d 51, 57 (D.C. Cir. 1988)(footnote omitted).
Based on the legislative history, the remedial purposes of the Act and
the role of section 104(d) orders in the statutory scheme of enforcement, we
conclude that the Secretary is not prohibited by the disputed language from
issuing the two orders in this case.
B.

Section 104(d)

Eastern also argues that section 104(d) itself prohibits the issuance of
an imminent danger order in conjunction with a section 104(d)(2) order. The
judge held that neither the language nor the legislative history supports
Eastern's position. 11 FMSHRC at 1869. He further stated that he did not

find merit in Eastern's argument that "inasmuch as section 104(d)(l) citations

910

may be issued only where there is no imminent danger, it follows that
similarly a section 104(d)(2) order may not be issued in conjunction with a
section 107(a) order." Id. We agree with the judge.
We reach our conclusion based on the plain meaning of the text of the
Mine Act. Section 104(d)(l) provides, in pertinent part, that [1) if an
inspector "finds that there has been a violation of arty mandatory health or
safety standard, and [2) if he also finds that, while the conditions created
by such violation do not cause imminent danger, such violation is of such
nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and [3] if he finds
such violation to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he shall include such
finding in any citation given to the operator under this Act." (Emphasis and
bracketed numbers added). We read the language in clause [2] to mean that the
conditions created by an S&S violation "need not be so grave as to constitute
an imminent danger." National Gypsum, 3 FMSHRC at 828. Because a section
104(d)(2) order need not be S&S, we conclude that the "do not cause an
imminent danger" language contained in (d)(l) is not relevant to the issue of
whether a (d)(2) unwarrantable failure order can be issued in conjunction with
an imminent danger order.
III.
Conclusion

Accordingly, on the foregoing basis, the judge's decision is affirmed.

cd::~:ucd cv4,L..-c.,

Richard V. Backley, Acting Chairma~,

<J~t2-~£

J~ce A. Doyle, Commissioner ;?

Arlene Holen, cfullllliSSiOner

\._// /I
I

I

'

L,

I

I

(j~/~
L. Clair Nelson, Commissioner

911

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

June 25, 1991

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

v.

Docket No. WEVA 89-278

SOUTHERN OHIO COAL COMPANY

BEFORE: Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)(the "Mine Act"). The issue
is whether Southern Ohio Coal Company ("SOCCO") violated 30 C.F.R.
§ 77.404(a), a mandatory safety standard applicable to surface coal mines and
surface work areas of underground coal mines. 1 Also at issue
whether the
alleged violation was of a significant and substantial nature and whether it
was caused by SOCCO's unwarrantable failure to comply with the cited standard.
Conm1ission Administrative Law Judge George Koutras determined that SOCCO
violated section 77.404(a), that the violation was of a significant and
substantial nature, and that it was caused by SOCCO's unwarrantable failure to
comply. 12 FMSHRG 1627 (August 1990)(ALJ). The Commission granted SOCGO's
Petition for Discretionary Review. For the reasons set forth below, we affirm
the judge's decision.

1

30 G.F.R. § 77.404(a) provides:
(a) Mobile and sta~ionary machinery and
equipment shall be maintained in safe operating
condition and machinery. or equipment in unsafe
condition shall be removed from service immediately.

912

I.

Factual Back~round and Procedural History
The focus of the proceeding is on a D-7 Caterpillar bulldozer ("dozer")
that SOCCO operated with two broken cat or track pads between May 15, 1989 and
May 19, 1989, at the surface refuse dump of its Martinka No. 1 Mine in West
Virginia. SOCCO operated the dozer during the day and at night to move waste
product at the dump.
The dozer, which is approximately 13 feet long, moves on two crawler
tracks (often called caterpillars) consisting of metal plates called track
pads. There are 38-42 pads on each track and each pad is 32 to 36 inches
wide. Four bolts attach each pad to the track. The top portion of the loop
formed by the crawler tracks is often used as a walkway by the dozer operator
to enter and exit the cab. This walkway is estimated to be 32 to 34 inches
above the ground.
The dozer cab may be entered or exited from either side. Normally, the
operator climbs onto the dozer from the back and walks on one of the crawler
tracks to the cab. The distance from the back of the dozer to the cab door is
approximately eight feet. _There is"a fender along each side of the cab, which
acts as a platform above the track and may be used to step into the cab. The
fender covers part of the track pads along the cab. It is also possible to
reach the cab by climbing up onto one of the crawler tracks from either side
of the dozer or by climbing up the front and walking on one of the crawler
tracks to th~ cab. Travel on the dozer's left track is necessary to check the
oil, transmission fluid, and water level. Similarly, travel on the dozer's
right track is necessary to check the fuel.
The two broken track pads on the dozer had been reported to SOCCO
management on Monday, May 15, 1989. Dozer operator Bill Jones reported in the
"operator's check list of vehicle condition," dated May 15, 1989, that two
pads were broken and needed replacement and SOCCO acknowledges that it first
became aware of the defective cat pads on that day. Sec. Exh. 1 (SOCCO's
Answer to Interrogatory 11). On May 16, 1989, dozer operators Delbert Barnett
and Jones again reported in the operator's check list that two pads on the
left side track of the dozer were broken. That same day Barnett tripped on,
and almost fell through, one of the broken pads but was able to catch himself.
Replacement pads were ordered on May 15 and were received on or about May 17.
Other operators reported the broken pads in the operator's check list on May
18th and before the replacements were installed, on May 19th.
Mine Safety and Health Administration ("MSHA") Inspector Bretzel Allen
arrived at the mine site on May 23, 1989, to investigate a complaint made by a
representative of miners under section 103(g), 30 U.S.C. § 813(g), which
alleged that SOCCO had been operating a D-7 Caterpillar dozer with two broken
pads on the left track.
Allen did not personally observe the violation
because the track pads had been repl~ced before his inspection. Allen
verified the accuracy of the compla'i;;t through discussions with SOCCO' s
equipment operators, Jim Richards (a SOCCO foreman), and Wesley Dobbs (SOCCO's
accident prevention officer). He also reviewed SOCCO's daily "operator's

913

check list," which contained the notation dated May 16, 1989, that Barnett had
reported to mine management that two track pads on the left track of the dozer
were broken. Allen determined that a broken pad would leave an opening
approximately 9-1/4 inches wide by 12 inches long, based on the assumption
that the pads normally break off at the bolts. Allen further found that
several months earlier, on March 2, 1989, dozer operator Bill Bice, while
exiting from a dozer cab, had stepped into a hole created by a broken pad,
strained his back and lost one day of work.
As a result of his investigation, Allen issued a section 104(d)(2)
withdrawal order charging a violation of section 77.404(a). The withdrawal
order alleged that the D-7 dozer had been operated from May 15, 1989, to May
19, 1989, with two broken track pads, that these pads were part of a platform
on which the machine operators walked to mount and dismount the machine, and
that this condition had been known by Richards, the foreman in charge, and had
been recorded in the operator's check list on May 16, 1989. Allen determined
that the violation was significant and substantial, relying, in part, on
Bice's March 2, 1989, accident. Allen also determined that the violation was
the result of SOCCO's high negligence, because SOCCO's management knew that
the pads were broken but nonetheless continued to operate the dozer.
Before the judge, SOCCO argued that it did not violate section 77.404(a)
because the two broken track pads did not render the dozer unsafe to operate.
SOCCO emphasized that the primary purpose of the track pads is to provide
traction and the dozer's traction was not affected by the two broken pads.
SOCCO argued that section 77.404(a) did not apply to a stumbling or tripping
hazard created by the broken pads. In challenging the withdrawal order, SOCCO
also contested Allen's significant and substantial and unwarrantable failure
findings.
Judge Koutras found that SOCCO violated section 77.404(a) because the
dozer tracks, including the pads, are an integral and functional part of the
machine, and that the tracks were used by dozer operators to mount and
dismount the machine and to service the machine as required. 12 FMSHRC at
1648, 1649. He concluded that these uses could not be divorced from the
safety requirements found in section 77.404(a). Id. He also found that the
testimony of three of SOCCO's equipment operators, including Barnett and Bice,
established that the broken pads on the cited dozer rendered it unsafe to
operate, requiring its immediate removal from service. 12 FMSHRC at 1648-49.
Judge Koutras also determined that the violation was of a significant and
substantial nature. He credited the testimony of Inspector Allen and the
dozer operators concerning the hazards created by broken track pads and their
testimony about previous incidents involving broken pads. 12 FMSHRC at 165556. With respect to the unwarrantable failure issue, Judge Koutras found that
the violation was caused by SOCCO's aggravated conduct. 12 FMSHRC at 1659.
He found that the broken pads were reported by Barnett to Richards, SOCCO's
foreman, on May 16, 1989, that SOCCO continued to use the dozer with the
broken pads and that the dozer was not repaired until May 19, 1989. 12 FMSHRC
at 1658. He also relied upon the fact that SOCCO was aware of Bice's March 2,
1989, injury and Barnett's "near mrs's." Judge Koutras concluded that, under
such circumstances, inunediate action was necessary to fix the broken pads.
12 FMSHRG at 1658-59.

914

II.

Disposition of Issues
On review, SOCCO contends that: (1) it did not violate section
77.404(a); (2) the alleged violation was not significant and substantial; and
(3) the alleged violation was not the result of SOCCO's unwarrantable failure.
We consider each of these contentions in turn.

A.

"Whether there was a violation of section 77.404(a)

SOCCO takes the position that "the condition of two-half broken cat or
track pads on the D-7 dozer does not render the machine inoperable." SOCCO
Br. at 5-6. (emphasis in original). Hence, "the machine's condition
would not render this equipment unsafe to operate and, therefore, would not
require SOCCO to remove it from service under 30 C.F.R. 77.404(a)." Id. at 6.
SOCCO asserts that citing a "stumbling and tripping hazard under 30 C.F.R.
77.404(a)," is an "inappropriate and incorrect utilization of said standard."
Id.
Focusing on the word "operat:lng" in the standard, SOCCO contends that,
for section 77.404(a) to apply, the unsafe condition must render the equipment
unsafe to operate. Since use of the tracks as a walkway does not involve the
"operating condition" of the dozer any stumbling or tripping hazard created by
broken pads is not within the scope of section 77.404(a).
In the Secretary's view, substantial evidence supports the finding that
the broken track pads created a safety hazard. Citing Ideal Cement Co.,
12 FMSHRC 2409 (November 1990), the Secretary asserts that SOCCO's use of the
equipment in such condition created a slip and fall hazard for miners using
the track 'walkway' when mounting to or dismounting from the operator's
compartment, and that such hazards are within the purview of the standard. We
agree.
As the Commission observed in Ideal Cement "[t]he integrity of a machine
is not defined solely by its proper functional performance but must also be
related to the protection of miners' health and safety." 12 FMSHRC at 241415. (emphasis in the original). If a machine cannot be used safely by
miners, the machine is not in "safe operating condition." Thus, a dozer is
not in "safe operating condition" if miners are unable to enter and exit the
dozer's cab without risking injury. Because the dozer's tracks serve as the
only walkway for the operator to mount and dismount the dozer and to check the
fuel, oil, transmission fluid and water level, we conclude that the dozer's
track pads were within the scope of section 77.404(a) and that the dozer was
not in "safe operating condition.n In so concluding we find that a "stumbling
and tripping hazard" is covered by the standard.
Substantial evidence supportr:ic:_-Fhe judge's finding that the two broken

915

track pads presented an unsafe condition. 2 Inspector Allen testified that
the condition was unsafe. ·Tr. 28. Dozer operator Barnett testified that
missing track pads pose a safety risk. Tr. 67, 93-94. Barnett also testified
that sometimes the pads are so full of mud that the pads cannot be seen. Tr.
68. Bill Kincell, also a dozer operator, testified that a missing pad poses a
safety risk and that when mud from the refuse area adheres to the tracks, he
would be unaware of a broken pad unless he stepped on it or the mud fell out
of it. Tr. 101. Dozer operator Bice testified that a broken track pad
presents a risk or hazard. Bice also testified that sometimes it is not easy
to see whether a track pad is broken when the dozer is covered with gob. Tr.
134.
We further note that Bice was injured on March 2, 1989, as a result of a
broken track pad. Tr. 128. In response to his injury, SOCCO's safety
department set forth a policy (not observed in this case) that dozers were not
to be operated if a pad was broken, and that broken pads would be fixed before
the dozer was put back into service. Tr. 61, 89, 99-100, 107, 131-32.
Accordingly, we affirm the judge's conclusion that SOCCO violated
section 77.404(a).
B.

Whether-the violation was significant and substantial

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
National Gypsum Co., 3 FMSHR.C 822, 825 (April
1981).
6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:
In order to establish that a violation of a
standard is significant and substantial
under
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
2

The Commission has held that equipment is "unsafe" under 30 C. F. R.
75.1725(a), which is identical to section 77.404(a), when a "reasonably
prudent person familiar with the factual circumstances surrounding the
allegedly hazardous condition, including any facts peculiar to the mining
industry, would
a hazard warranting corrective action within the
purview of the
regulation." Alabama By-Products Corp., 4 FMSHRC
2128, 2129
1982). Although the judge did not analyze this case
using the
prudent person", analysis, we conclude that a reasonably
prudent person familiar with the facLs would recognize that the broken pads
presented an unsafe condition.
11

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. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988),
aff'g, 9 FMSHRC 2015, 2021 (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, 12
(January 1986).
At the outset, SOCCO argues that Allen did not satisfy MSHA's Program
Policy Letter No. P89-I-3 for determining S&S violations.
SOCCO raised this
issue for the first time in its petition for review. Under the Mine Act ·and
the Commission's regulations, "[e]xcept for good cause shown, no assignment of
error by any party shall rely on any question of fact or law upon which the
administrative law judge ha[s] not been afforded an opportunity to pass."
Section 113(d)(2)(A)(iii) of the Mine Act,30 U.S.C. 823(d)(2)(A)(iii); see
also 29 C.F.R. 2700.70(d)~ SOCCO has not proffered any reason why it did not
present the argument before the judge. We therefore decline to consider
whether Allen satisfied MSHA's Program Policy Letter No. P89-I-3. See Midwest
Minerals. Inc., 12 FMSHRC 1375, 1378 (July 1990); Ozark-Mahoning Co.,
12 FMSHRC 376, 379 (March 1990).
SOCCO also argues that the significant and substantial finding cannot
stand because the inspector did not personally observe the alleged violation.
In Nacco Mining Co., 9 FMSHRC 1541, 1546 (September 1987), the Commission
found that an inspector can issue a section l04(d)(l) citation notwithstanding
the fact that the violation was not personally observed by the inspector. A
section 104(d)(l) citation requires, as one of its elements, that the
violation be of a significant and substantial nature. An inspector's personal
observation is therefore not a predicate to a significant and substantial
finding.
We now turn to the four elements of the Commission's significant and
substantial analysis. With respect to the first Mathies element, we have
concluded that the judge properly found that SOCCO violated section 77.404(a).
The second element, that a measure of danger to safety was contributed to by
SOCCO's violation, is also established. The hazard of tripping or falling
through a broken pad has been amply demonstrated. The testimony of the
inspector and the dozer operators, discussed above, confirms the hazard.
With respect to the third Mathies element, SOCCO argues that there was
only one injury at this mine associated with this type of alleged violation,
which occurred three to four years earlier to Bice. The record establishes,
however, that on March 2, 1989, Bic.e. ..,a.lso suffered a strained back when he
stepped through a hole created by a-partially broken pad. Tr. 23, 56; Sec.
Exh. 4-D. Bice lost one work day as a result of the accident. On May 16,
1989, Barnett also tripped on and almost fell through one of the broken pads

917

but caught himself before going over the dozer.

Tr. 64-65; Sec. Exh. 4-E.

The judge determined that the partially broken pads in question
constituted a condition that would be reasonably likely to contribute to an
injury, and that it was reasonably likely that the injury would be one of a
reasonably serious nature. 12 FMSHRC at 1656. We find that substantial
evidence supports the judge's conclusions.
In reaching those conclusions the judge relied, in part, upon the
testimony of Inspector Allen, which he found to be credible. 12 FMSHRC at
1655. Allen testified that the presence of caked mud could fill the hole
created by a missing pad to the point that one would not notice that it was
missing. Tr. 21. The inspector analogized the hazard as similar to that
created by removing steps from a stairwell. Tr. 19. Allen referred to the
back injury incurred by one of SOGCO's employees in just such a track pad
incident and believed that serious injuries such as sprains, strains and
fractures could result. Tr. 22-23. The judge also found credible, and relied
upon, the testimony of dozer operators Bice and Barnett that a broken pad
exposed them to hazards. 12 FMSHRC at 1656.
With respect to the fourth Mathies element, the severity of Bice's
recent accident provides substantial evidence to support the judge's finding.
As previously indicated, Bice strained his back and lost one day of work. . The
inspector also testified that strains, sprains or fractures could result if
someone slipped or fell because of a broken pad. As stated above, the judge
credited the inspector's testimony. 12 FMSHRC at 1655.
we have considered other evidence in the record relied upon by SOCCO
that mitigates the degree of danger created by the violation. we conclude,
however, that substantial evidence supports the judge's finding that the
violation was of a significant and substantial nature.
C.

Whether the violation was unwarrantable failure

In Emery Mining Corporation, 9 FMSHRC 1997, 2004 (December 1987) and
Youghiogheny & Ohio Goal Company, 9 FMSHRC 2007, 2010 (December 1987), this
Commission held that "unwarrantable failure means aggravated conduct,
constituting more than ordinary negligence, by a mine operator in relation to
a violation of the Act." The Commission stated that while negligence is
conduct that is "inadvertent," "thoughtless," or "inattentive," conduct
constituting an unwarrantable failure is conduct that is "not justifiable" or
"inexcusable." Emecy, supra, 9 FMSHRC at 2001.
SOCGO argues that it had a good faith belief that it was not prohibited
from using the dozer and that it attempted to replace the cat pads without
undue delay. We reject SOCCO's arguments.
SOCCO's first argument is premised on the ground that an ambiguity in
the regulation justifies its conduct. However, we conclude that a reasonably
prudent person familiar with the mining industry and the protective purposes
of the standard would have recognized the specific requirement of the
standard. See Ideal Cement Co., supra, 12 FMSHRC at 2416; n.2, supra.

918

The Commission has recognized that if an operator reasonably believes in
good faith that the cited conduct is the safest method of compliance with
applicable regulations, even if it is in error, such conduct is not aggravated
conduct constituting more than ordinary negligence. Utah Power and Light
Company, 12 FMSHRC 965, 972 (May 1990); Florence Mining Co., 11 FMSHRC 747,
752-54 (May 1989); Helen Mining Co., 10 FMSHRC 1672, 1675-77 (December 1988);
Southern Ohio Coal Co., 10 FMSHRC 138, 142-43 (February 1988). SOCCO's
actions here, however, do not manifest safety consciousness. To the contrary,
SOCCO knowingly permitted the dozer to continue operating from May 15, 1989, 3
to May 19, 1989, with the two broken pads, even though it knew that, in
addition to an earlier accident, there had been one recent accident caused by
broken pads on March 2, 1989, and one close call on May 16, 1989.
We find that substantial evidence supports the judge's unwarrantable
failure finding and that the violation was the result of SOCCO's aggravated
conduct. SOCCO knew of the two defective cat pads on May 15, 1989. The
record also shows that five reports ("operator's check lists"), dated May 15
through May 19, 1989, made by at least three different operators, advised
SOCCO that the pads were broken. SOCCO also knew of Bice's March 2, 1989,
injury caused by a broken pad and Barnett's May 16, 1989, near miss.
Replacement pads were received on o_:i;:about May 17, 1989. Nevertheless, SOCCO
continued to operate the dozer with knowledge of the two broken pads through
the day shift on May 19.
Finally, the record establishes that replacement of the broken pads was
not a complicated or time consuming operation. Tr. 72, 104-05. A mechanic
could change a pad in three-quarters of an hour. Tr. 72, 104-05. SOCCO's
witness Ware stated "[a]nybody can bolt on a track pad" and that "[t]here is
nothing to it." Tr. 203. We therefore reject SOCCO's argument that it
attempted to replace the track pads without undue delay.

3

The judge found that Barnett reported the broken pads to his foreman,
Richards, on May 16, 1989. 12 FMSHRC 1658. However, SOCCO acknowledges that
it knew about the broken pads on or about May 15, 1989, and the record
establishes that the broken pads were reported in the "operator's checklist"
for the afternoon shift on May 15. ,.socco PDR at 8; SOCCO Br. on Rev. at 9;
SOCCO Post H. Br. at 5; Sec. Exh. 1~ (SOCCO's Answer to Interrogatory ll(a));
Sec. Exh. 4E.

919

III.

Conclusion
Accordingly, the judge's decision

rs affirmed.

J

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

Distribution

Rebecca J, Zuleski, Esq.
Furbee, Amos, Webb & Critchfield
5000 Hampton Center, Suite 4
Morgantown, West Virginia 26505
Eva Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd. , Suite 400
Arlington, VA 22203
Administrative Law Judge George A. Koutras
Federal Mine Safety & Health Review Commission
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, VA 22041

920

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

JUN 4 1991

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
AMOS HICKS,
Complainant

DISCRIMINATION PROCEEDING
Docket No. VA 89-72-D
MSHA Case No. NORT CD-89-18

v.
COBRA MINING, INC.,
JERRY K. LESTER and
CARTER MESSER,
Respondents
DECISION ON REMAND
Before:

Judge Weisberger

In a decision in this matter, (Amos Hicks v. Cobra Mining,
Inc., Docket No. VA 89-72-D, 13 FMSHRC
I
April 1, 1991),
the Commission, pursuant to Complainant's petition for
discretionary review, vacated and remanded my decision which had
been issued March 22, 1990. The bases for the Commission's
decision are set forth in its analysis of two issues presented in
this case i.e., the timing of Complainant's (Hick's) complaints,
and Respondent's affirmative defense.
I.

The Timing of Hick's Complaints.

On remand, the Commission directed me to reconsider all
areas of Hick's complaints as motivating factors in his
discharge. The Commission further directed me to reconsider this
issue in light of the principles expressed in Secretary o.b.o.
Chacon v. Phelps Dodge corp., 3 FMSHRC 2508, 2510, (November
1981), rev.don other grounds sub !1Q!!l· Donovan v. Phelps Dodge
Corp., 709 F.2d 86 (D.C. Cir. 1983), and Donovan v. Stafford
Construction Co., 732 F.2d 954 (D.C. Cir. 1984).
In Chacon, the Commission listed various indicia of
discriminatory intent including "coincidence in time between the
protected activity and the adverse action" (3 FMSHRC 2510). In
this connection, the D.C. Circuit Court of Appeals in Stafford,
supra, took notice of the fact that 2 weeks had elapsed between

the alleged protected activity and the adverse action and held
that "[T]he fact that the company's adverse action against [the
miner] so closely followed the protected activity is itself
evidence of an illicit motive." (732 F.2d at 960).
Upon reconsideration I find, for the reasons previously
stated in my initial decision, that a week before his discharge,
Hicks had complained to Sutherland about the failure to use
safety jacks. I do not accept Hick's testimony that he
complained to Sutherland about loose rock 2 days before he was
fired. As stated in my previous decision, neither Ray nor
Lester, who rode the mantrip along with Hicks, corroborated his
testimony that he had made a complaint about the loose rocks
2 days before he was fired. Both Hicks and Sutherland
essentially indicated that an incident had occurred when Hicks,
who had complained to Sutherland about loose rock, was told by
the latter to get off a mantrip and pull the rock down. Hicks
did not specifically indicate when this occurred, but Sutherland
said in essence that it was about a month before Hicks was fired.
I conclude that the firing oJHicks occurred approximately a
month after he complained to Sutherland about loose rock.
Hicks indicated on direct examination that he complained
about improper ventilation a week before he was fired. I do not
accord much weight to this testimony because, upon crossexamination, it was elicited that in his responses to
interrogatories taken on October 16, he did not say that he had
made such complaints a week before he was fired. Also, although
Ray indicated she heard Hicks complain about ventilation to
Sutherland a couple of times, she did not pinpoint when these
complaints were made.
The Commission further indicated that an error was made in
assessing Complainant's prima facie case by adhering to "" "
an
overly restrictive time frame in deciding whether certain of
Hicks' complaints were 'within close proximity to his
discharge."' (13 FMSHRC, supra, slip op., at 9). In addition,
the Commission found error in assessing complaints about safety
jacks, loose rock, ventilation, and riding in the scoop bucket,
isolation with regard to proximity in time between
complaint and the adverse action and that "under the
circumstances, it would have been appropriate to consider
complaints as a whole in order to establish whether a pattern
protected conduct existed that might have provided suf
motivation for the May 11, 1989, discharge." (13 FMSHRC,
slip op., at 9).
Q

Being guided by the Commission's directives, I note that
Hick's complaints about jacks were made a week before his
discharge, and complaints about loose rock were made
approximately a month before the discharge. Further, Sutherland
indicated that Hicks had complained about rocks one or two times,

922

and Ray indicated that he had made complaints 2 to 3 times a
week. Payne indicated that Hicks made such complaints "several
times" (Tr. 140). Ray in corroborating the testimony of Hicks
that he had complained about ventilation problems to Sutherland,
indicated that he made such complaints "a couple of times" (Tr.
204). In this connection, further, it is significant to note
that with regard to complaints about the safety of riding in the
scoop, Hicks indicated that he made such complaints whenever he
rode the scoop, which was up to five times a week, and indicated
that he complained on a "consistent" basis (Tr. 201). Ray
indicated that she heard Hicks making these complaints to
Sutherland more than just a couple of times. Sutherland
acknowledged Hick's complaints in this regard, and did not rebut
the testimony of Hicks and Ray with regard to the numerous times
these complaints were made.
Hence, upon reconsideration, I take into account the
totality of the circumstances presented herein, i.e., the fact
that complaints were made about jacks a week before Hicks was
fired, the fact that complaints were made about loose rock about
a month before complainant was·fired, and the fact that numerous
complaints were made aoout the loose rock, ventilation, and the
riding in the scoop bucket. I find that due to the proximity of
complaints to the adverse action, and the repetitive nature of
these complaints, there was a pattern of protected conduct that
did establish that the firing of complainant was motivated in
some part, by the safety complaints that he had made.
II.

Respondent's Affirmative Defense

In its decision, the Commission directed that an evaluation
of Respondent's affirmative defense be made in terms of the
criteria set forth in Bradley v, Belva Coal Co., 4 FMSHRC 982
(June 1983)p and Secretary o.b.o. John Cooley v. Ottawa Silica
Corpo, 6 FMSHRC 516.
In Bradley, supra, the Commission set forth general
principles for evaluating an operator's affirmative defense, and
indicated that proof that the operator would have disciplined the
miner in any event but for the unprotected activity alone, can be
established by showing "past discipline consistent with that
meted out to the alleged discriminatee, the miner's
unsatisfactory past work record, prior warnings to the miner or
personnel rules or practices forbidding the conduct in question."
(4 FMSHRC at 993).
The Commission in its decision (13 FMSHRC, supra, slip op.,
at 10), referred to certain factors set forth in Cooley for
determining whether the use of profanity "in and of itself," was
grounds for dismissal as follows: "Had there been previous
disputes with the miner involving profanity? Had anyone ever
been discharged or otherwise disciplined for profanity? Was

923

there a company policy prohibiting swearing, either generally or
at a supervisor?"
In its decision, the Commission, in indicating that it was
unable to determine "at. this state," whether substantial evidence
supports my initial conclusion that Hick's use of profanity
warranted discharge in any event, commented as follows: "This is
particularly true in view of the testimony as to widespread use
of profanity in Cobra's No. 1 Mine, management's general
tolerance of that profanity, and the lack of discipline meted out
to Hicks for an earlier incident of profanity . . . . "
(13 FMSHRC; supra, slip op., at 11).
Upon reconsideration, considering these comments by the
Commission, I give considerable weight to the fact that the
record herein contains corroborated testimony that swearing was a
common occurrence, and that some of it was directed at
supervisors. Further, I note that the record does not indicate
that there was any published oral or written policy prohibiting
swearing either in general or directed to a supervisor. Also, I
take cognizance of the fact that Sutherland indicated that in a
prior incident Hicks ~directed an obscene comment to him, and he
"shrugged it off" (Tr. 272).
The Commission further directed me to resolve the
conflicting testimonies of Hicks, Douglas Lester and Sutherland
with regard to whether the use of profanity by Hicks occurred in
the process of defying Sutherland's order to return to work as
Sutherland testified, or whether it was made after he had already
boarded his shuttle car and had started back to the face as Hicks
and Lester testified. I find the version testified to by Hicks
to be credible in light of the fact that it was corroborated by
Lester.
Commission, (13 FMSHRC, supra, Slip op., at 10),
indicated that my original finding that complainant's discharge
for use of profanity was not pretextual because Sutherland had
previously fired Ray for swearing, "needs to be explained
further." The Commission elaborated as follows: "First, the
record discloses that Ray's discharge was quickly rescinded on
the instructions of Payne. Second, the Ray incident could also
be viewed as an aberration rather than as a precedent in support
of the adverse action taken against Hicks. Given the context of
wide spread use of profanity in the No. 1 Mine, the severe
disciplinary action taken against both Ray and Hicks could be
viewed as disparate treatment insofar as swearing was neither
prohibited nor, apparently, discouraged."
In light of the Commission's concerns, and its evaluation of
the record, I am constrained to conclude, upon reconsideration,
that reliance upon Ray's discharge for swearing as evidence that
complainant's discharge was not pretextual, is unwarranted given

924

the fact that Ray's discharge was rescinded and given evidence of
widespread use of profanity in the mine at question. Hence, upon
reconsideration, and addressing myself to the concerns raised by
the Commission in its decision, I conclude that respondent has
not established that it would have dismissed Hicks based on the
unprotected activity i.e., swearing, alone. Hence, I conclude
that respondent has not-rebutted complainant's prima facie case.
ORDER
1. Complainant shall file a statement within 20 days of
this Decision indicating the specific relief requested. This
statement shall show the amount he claims as back pay, if any,
and interest to be calculated in accordance with the formula in
Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042 (1984). The
statement shall also show the amount he requests for attorney's
fees and necessary legal expenses if any. The statements shall
be served on Respondent who shall have 20 days from the date
service is attempted to reply thereto.
2. This.decision_is not 'final Until a further order is
issued with respect to Complainant's relief and the amount of
Complainant's entitlement to back pay and attorney's fees.

£\~

Avram Weisberger
Administrative Law Judge

Distribution:
Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of
Labor 9 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Kurt J. Pomrenke, Esq., White, Elliott & Bundy, P.O. Box 8400,
Bristol, VA 24203-8400 (Certified Mail)
/fb

925

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

22041

JUN 4 1991
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-47
A. C. No. 46-01455-03812

v.
Osage No. 3 Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION

Appearances:

Page H. Jackson, Esq., Office of the Solicitor,
U. s. Department of Labor, Arlington, Virginia,
for the Secretary of Labor {Secretary) ;
Walter J. Scheller III, Esq., Pittsburgh,
Pennsylvania, for Consolidation Coal Company,
{Consol) .

Before:

Judge Broderick

The above case was called for hearing in Morgantown,
West Virginia, on April 17, 1991. Counsel for the Secretary
proposed on the record that a settlement be approved for one of
the two violations alleged in this docket, namely a violation of
30 C.F.R. § 75.1105 alleged in Order No. 2711965. The settlement
provided that Consol would pay the full amount of the assessment,
$1,000.
A hearing was had on the other violation, that charged in
Order No. 2712041. This order alleged a violation of 30 C.F.R.
§ 75.303 because of an inadequate preshift examination.
The
order charged that the violation resulted from Consol's
unwarrantable failure to comply with the mandatory standard.
Inspector Richard Jones testified on behalf of the Secretary.
Todd McNayer and Richard Conrad testified on behalf of Consol.
After the parties rested and the case was submitted for
decision, the Secretary filed a motion to approve a settlement
with respect to the violation involved. The motion proposes an
order modifying the 104{d) (2) Order to a 104{a) Citation, °'and the
payment by Consol of the penalty originally proposed, $1,200.

926

The motion states that the Secretary agrees to drop the
unwarrantable failure finding because the evidence introduced at
trial did not clearly establish that the violation resulted from
aggravated conduct constituting more than ordinary negligence.
I have considered the motion in the light of the evidence
introduced at the trial and the criteria in Section llO(i) of the
Act, and conclude that it should be approved.
Accordingly, IT IS ORDERED:
1. Order No. 2712041 issued under Section 104(d) (2) of the
Act is MODIFIED to a 104(a) Citation.
2.
Consol shall, within 30 days of the date of this
Decision, pay the following civil penalties:
CITATION/ORDER

30 C.F.R.

AMOUNT

2711965

75.1105

$1,000

2712041

75.303

1,200
Total

i'

J

·' •·.

$2,200

'l

'
I

'

/

:,AA' J'.-! /q.f:.fv?XU,t/l£({__
1

James A. Broderick
Administrative Law Judge

Distribution:
Page Ho Jackson, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 14241~1421 (Certified
Mail)
dcp

927

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

JUN 5 1991
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 91-1
A. C. No. 15-16151-03507

v.

No. 1 surface Mine

SUNNY RIDGE MINING COMPANY,
INC.,
Respondent

DECISION
Appearances:

Anne T. Knauff, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor;
Reed D. Anderson, Esq., Pikeville, Kentucky, for
Respondent Sunny Ridge Mining Company, Inc.,
(Sunny· Ridge).

Before:

Judge Broderick

STATEMENT OF THE CASE
The secretary seeks a civil penalty for an alleged violation
of 30 C.F.R. § 48.26(a) because 11 miners had not received newly
employed experienced miner training. The citation charging the
vid.tation was issued in conjunction with a 104(g) withdrawal
order directing the employees to be removed from the mine site
until the training is provided.
Pursuant to notice; the case was called for hearing in
Prestonsburg, Kentucky, on April 9, 1991. Federal Mine Inspector
Prentiss o. Potter testified on behalf of the Secretary. Hobert
Potter, co-owner of Sunny Ridge was called for cross-examination
by the Secretary and testified on behalf of Sunny Ridge.
Both
parties were given the opportunity to file post-hearing briefs.
Sunny Ridge filed a brief; the Secretary did not.
I have
considered the entire record and the contentions of the parties
in making the following decision.

928

FINDINGS OF FACT
I

Sunny Ridge was at all pertinent times the owner and
operator of a surface coal mine in Pike County, Kentucky, known
as the No. 1 surface Mine. The mining method followed at the
subject mine was mountain top removal. Explosives were used to
loosen the coal and the overburden, and it was removed using
bulldozers and end loaders. As of September 6, 1990, Sunny Ridge
produced approximately 214,121 tons of coal annually.
It was
therefore of moderate size•· During the 24 month period from
August 28, 1987 to August 27, 1989, 14 violations were assessed
and paid by sunny Ridge. Eight of these were violations of the
regulations having to do with miner training.
Because of the
number of training regulation violations, this history is such
that a penalty otherwise appropriate will be increased because of
it.
II

On August 28, 198~, Federal Coal Mine Inspector Prentiss
Potter issued a citation charging a violation of 30 C.F.R.
§ 48.26(a) because 11 of the 17 miners at the mine site had not
received the newly employed experienced miner training required
by the regulation.
The citation charged a significant and
substantial violation •.. ~he inspector also issued an order of
withdrawal under Section 104(g) ordering the named miners to be
removed from the mine site until provided with the required
training. Sunny Ridge had a training plan in effect and a
designated MSHA approved instructor. The plan showed an 8 hour
course of training for newly employed experienced surface miners.
I find as a fact that the 11 miners named in the citation
were newly employed experienced miners, and had not received the
tra~ning prescribed in the regulation and in Sunny Ridge 1 s plan.
The citation and order were terminated on August 29, 1989, when
the listed employees received the newly employed experienced
miner training by an MSHA approved instructor.

REGULATION
30 C.F.R.

§

48.26(a) provides as

follows~

(a)
A newly employed experienced miner shall receive
and complete training in the program of instruction
prescribed in this section before such min.er is
assigned to work duties.
(b)
The training program for newly employed
experienced miners shall include the following:

929

(1) Introduction to work environment. The
course shall include a visit and tour of the
mine. The methods of mining or operations
·Utilized at the mine shall be observed and
explained.
(2) Mandatory health and safety standards.
The course shall include the mandatory health
and safety standards pertinent to the tasks
to be assigned.
{3) Authoritv and responsibility of
supervisors and miners• representatives. The
course shall include a review and description
of the line of authority of supervisors and
miners• representatives and the
responsibilities of such supervisors and
miners' representatives; and an introduction
to the operator's rules and the procedures
for reporting hazards.
(4) Transportation controls and
communication systems. The course shall
include instruction on the procedures in
effect for riding on and in mine conveyances;
the controls for the transportation of miners
and materials; and the use of the mine
communication systems, warning signals, and
directional signs.
(5)
Escape and emergency evacuation plans;
firewarning and firefighting. The course
shall include a review of the mine escape
system1 escape and emergency evacuation plans
in effect at the mine; and instruction in the
f irewarning signals and firefighting
procedures.
(6)
Ground controls; working in areas of
highwalls, water hazards, pits, and spoil
banks; illumination and night work. The
course shall include, where applicable, an
introduction to and instruction on the
highwall and ground control plans in effect
at the mine; procedures for working safely in
areas of highwalls, water hazards, pits, and
spoil banks, the illumination of work areas,
and safe work procedures for miners during
hours of darkness.

930

(7)
Hazard recognition. The course shall
include the recognition and avoidance of
hazards present in the mine, particularly any
hazards related to explosives where
explosives are used or stored at the mine.
(8)
Such other courses as may be required by
the District Manager based on circumstances
and conditions at the mine.

ISSUES
1. Whether the evidence establishes a violation of the
cited standard?
2.

If so, what is the appropriate penalty?

CONCLUSIONS OF LAW
I

Respondent is subject to the provisions of the mine act in
the operation of the subject mine, and I have jurisdiction over
the parties and subject matter of this proceeding.
II

The operator does not seriously contest the violation
charged. The evidence clearly establishes that the listed miners
did not receive the prescribed training.
I conclude that a
violation of 30 C.F.R. § 48.26(a) was shown.
III

Failure to provide the training prescribed by the
regulations isu in my viewu a serious violation. However, the
evidence presented in this case does not establish that the
hazard contributed to by the violation is reasonably likely to
result in a serious injury. Mathies Coal Co., 6 FMSHRC 1 (1984);
United States Steel Mining Company, Inc.p 7 FMSHRC 1125 (1985)"
The miners here were experienced" The mine environment is,
according to the evidence, not particularly dangerous or
threateningo
I conclude that the finding in the citation that
the violation was significant and substantial is not supported by
the evidence.
Sunny Ridge had been cited on a number of prior occasions
for training regulation violations. Seventeen miners were on the
job site; six had received tha.·required training; 11 had not.
These facts indicate that the violation resulted from a high
degree of carelessness on sunny Ridge's part.

931

The citation was abated promptly and in good faith.
Respondent stipulates that the proposed penalty will not affect
the ability of sunny Ridge to continue in business.
Based on the criteria in Section llO(i} of the Act, I
conclude that an appropriate penalty for the violation is $2200.
This amounts to a basic penalty of $100 for each miner not
properly trained, which I increased to $200 because of the
history of similar violations.
ORDER

Based on the, above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citation 3364393 is MODIFIED to a nonsignificant and
substantial violation and, as modified, is AFFIRMED.

2. sunny Ridge shall, within 30 days of the date of this
Decision, pay to the Secretary a civil penalty in the amount of
$2200 for the violation found····herein.

..,

' 11_, ! l'Li4?

/

-

/fl-13(/{}~

James A. Broderick
Administrative Law Judge

Distribution:
Anne T. Knauff, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Reed Do Anderson, Esqo, Harris & Anderson, 230 College Street,
P, O, Box 279 1 Pikeville, KY 41502 (Certified Mail)
dcp

932

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

JUN 5 1991
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 90-188
A. C. No. 36-02402-03805
Greenwich Collieries

ROCHESTER & PITTSBURGH COAL
COMPANY,
Respondent
DECISION

Appearances:

Thomas Brown, Esq., U. S. Department of Labor,
Office of the Solicitor, Philadelphia,
Pennsylvania, for the Secretary of Labor
(Secretary);
Joseph A. Yuhas, Esq., Ebensburg, Pennsylvania,
for Rochef;ter & Pittsburgh Coal Company (R&P).

Before:

Judge Broderick

STATEMENT OF THE CASE
In this proceeding, the Secretary seeks civil penalties for
four alleged violations of mandatory health and safety standards.
on November 26, 1990, the Secretary filed a motion to approve a
pa:f'tial settlement with respect to three of the citations. The
first involved a violation of 30 C.F.R. § 75.1704 because two air
lock doors were permitted to remain open. A penalty of $247 was
originally assessed. The parties proposed a reduction to $125
because further investigation revealed that miners had
coincidentally moved equipment through the area, using the two
doors. The violation was inadvertent and had not existed for a
significant period of time. The parties agreed further to delete
the significant and substantial finding.
The other two citations involved violations of 30 C.F.R.
75.1107-l(a) (3) because two items of electrical equipment were
left unattended within 2 feet of the coal rib.- They were
originally assessed at $112 each. The parties requested a
reduction to $50 each because the likelihood of a fire was found
to be less than originally believed. The parties also agreed to
delete the significant and substantial findings.
I stated on the
record that I approved the motion.
§

933

The case involving the remaining alleged violation was
called for hearing in Johnstown, Pennsylvania, on March 7, 1991.
Samuel Brunatti testified on behalf of the Secretary. William
Shaner and Dennis Homady testified on behalf of R&P.
I granted
the Secretary's motion to permit the submission of a posthearing
deposition of Anthony Turran. However, the deposition was not
filed and is not a part of this record.
Both parties have filed
Posthearing Briefs.
I have considered the entire record and the
contentions of the parties in making the following decision.
FINDINGS OF FACT
1. Rochester & Pittsburgh is the owner and operator of an
underground coal mine in Cambria County, Pennsylvania, known as
Greenwich Collieries No. 2 Mine.
2o The mine produces more than one million, five hundred
thousand tons of coal annually. Rochester & Pittsburgh produces
more than 8 million tons annually.
It is a large operator.
3.
In the 24 months pri.or to the citations involved in this
proceeding, the mine had 958 violations in 1,293 inspection days;
42 of the violations were of 30 C.F.R. § 75.1704. This history
shows approximately .75 violations of all standards per
inspection day, and 1.25 violations each month of the standard
involved in this case.
I consider this an unfavorable history of
prior violations, and will increase any penalty assessed herein
because of it.
··
4. Rochester & Pittsburgh demonstrated good faith in
attempting to achieve rapid compliance after the citation was
issued.
5o
Federal Coal Mine Inspector Samuel Brunatti conducted a
Section 103(i) spot inspection of the subject mine on May 1,
199~"
He found that the alternate escapeway track entry for the
MllK Section of the subject mine was not being maintained so as
to permit miners to escape quickly to the surface in the event of
an emergency, in that the clearance from supply cars to rib in
several locations was 3 feet, 5 feet and 4.5 feet.
He issued a
citation charging a violation of 30 C.F.R. § 75.17040 The
original citation stated that "these areas are to be maintained
at a width of at least 6 feet."
(G. Ex 2, p. 1). The citation
was modified on May 1, 1990, to delete references to the
reduction in width and to the requirement that a 6 foot width be
maintained. (G. Ex. 2, p. 4).

6.
From the end of the track outby for a-distance of
approximately 200 feet, supply cars were parked along the track.
The width of the entry from the supply cars to the rib varied
from 3 feet to 6 feet:
at some points it was 3 feet, at some
4 feet, 4-1/2 feet, 5 feet, and 6 feet depending on the rib,

934

which was not regular. These distances were measured by
Inspector Brunatti. ~he inspector was uncertain as to the extent
of the narrowed areas. He stated that the area of the 3 feet
width extended only 4 or 5 feet (Tr. 30), but that he would "be
guessing" at the other narrowed areas because of the irregularity
of the rib. (id.)
The cars were 2-1/2 feet to 3 feet high but,
when loaded, could with their contents reach the roof.
7. There is a dispute as to the height of the entry.
Inspector Brunatti testified that it was approximately
4 or 4-1/2 feet. William Shaner, UMWA Representative on the Mine
Accident and Violation Reduction Program, estimated the height of
the entry to be "over five foot. 11
(Tr. 51.) The mine safety
inspector for R&P, Dennis Homady testified that the average
height of the coal seam varied from 48 inches to 60 inches, but
that the track entries were cut slightly higher than average.
The entry height was not measured at the time the citation was
issued or afterwards. The entry no longer exists. Inspector
Brunatti is 6 feet, 1 inch, or 6 feet, 2 inches tall. He weighs
about 280 or 290 pounds. He testified that he walked through the
cited area bent over at about.~ 45 degree angle. Shaner is
approximately 5 feet, ~ inches tall. He testified that he had to
bend his head to walk in the entry. Considering all the
testimony, I find that average height of the cited portion of the
entry was approximately 5 feet.
8. The stretchers .used at the subject mine were 18 inches
to 22 inches wide. These were measured by Inspector Brunatti
after he issued the citation. The stretchers are 7 feet long.
9. Respondent conducted a test on March 5, 1991, in an
underground area of the mine where the entry height ranged from
5 feet, 8 inches to 6-1/2 feet, and the distance from supply cars
to ribs ranged from 34 inches to 6 feet, for a distance of
approximately 150 feet.
Four people were carrying another person
ans~ stretcher and experienced no delays in carrying the
stretcher through the area. The stretcher was 20-1/2 inches wide
and 7 feet long.
REGULATION

30 C.F.R.

§

75.1704 provides in part as follows:

. . . at least two separate and distinct
travelable passageways which are maintained
to insure passage at all times of any person,
including disabled persons, and whicq are to
be designated as escapeways . . • shall be
provided from each working section continuous
to the surf ace escape drift opening or
continuous to the escape shaft or slope
facilities to the surface, and shall be

935

maintained in safe condition and properly
marked • • • • Escape facilities approved by
the Secretary or his authorized
representative, properly maintained and
frequently tested, shall be present at or in
each escape shaft or slope to allow all
persons, including disabled persons, to
escape quickly to the surface in the event of
an emergency.
ISSUES
1. Whether the standard requires that the entire escapeway
be maintained so as to allow all persons, including disabled
persons, to escape quickly to the surface in the event of an
emergency?
2. Whether the escapeway involved in this proceeding was
maintained in accordance with the standard?
3.
If a violation is established by the evidence, what is
the appropriate penalty?
CONCLUSIONS OF LAW
I

Rochester & Pittsburgh is subject to the provisions of the
Mine Act in the operation of the subject mine, and I have
jurisdiction over the parties and subject matter of this
proceeding.
II

The standard in question requires in its first sentence that
designated escapeways be maintained to insure passage of any
person including a disabled person. The third sentence provides
that escape facilities, approved by the Secretary and properly
maintained and frequently tested, from the shaft or slope to the
surf ace shall be present to allow all persons including disabled
persons to escape quickly to the surface in case of an emergency,
The secretary argues that "escape facilities" include the entire
escapeway from the working section to the surface, and therefore
the adverb nquickly" must be taken to modify the phrase "to
insure passage" used in the first sentence of Section 75.1704.
The wording of the standard will not permit such a construction.
The third sentence obviously refers to mechanical facilities,
such as elevators, lifts, etc., designed to bring miners to the
surfaceo See Utah Power & Liaht Company, 11 FMSHRC 1926, 1930
(1989)

0

936

The question remains, however, whether on May 1, 1990, the
alternate escapeway track entry was being maintained so as to
insure passage of a disabled person in case of an emergency. The
travelable passageway between the supply cars and the rib was
from 3 to 6 feet wide. The stretchers were from 18 inches to
22 inches wide.
Thus, there was a minimum clearance of
14 inches, or 7 inches on each side.
Inspector Brunatti has had
experience evacuating people on a stretcher from an underground
mine. He testified that if a disabled person were evacuated
through the passageway involved herein it would be necessary to
put the stretcher down and readjust it in the narrowed areas, and
valuable time might be lost in an emergency. He stated that the
height of the entry would dictate that four persons would be
necessary to carry a disabled person on a stretcher, because the
carriers would have to carry the stretcher while bent over.
Inspector Brunatti conceded that the 3 foot wide area was
"passable" by four people carrying a disable person on a
stretcher, but 11 they 1 d have to probably set the stretcher down or
shift around, come to a complete stop and maybe get an individual
on each end to shift the stretcher through."
(Tr. 45.)
The height of th~ passageway in the entry where R&P
simulated a rescue was significantly higher (5 feet, 8 inches to
6-1/2 feet), although of approximately the same width as the
cited area.
For this reason, I discount the testimony that the
rescuers experienced no difficulty or delay in transporting a
person on a stretcher.
Inspector Brunatti's testimony must also be discounted
because he significantly understated the height of the escapeway,
and relied on the reduced height in concluding that rescuers
would have difficulty in transporting a disabled person on a
stretcher. He also relied on the MSHA policy that escapeways
must be maintained at a width of at least 6 feet.
Finally, he
conceded that the areas involved were passable, but not rapidly
(Tr o

4 6) o

I conclude that the weight of the evidence does not
establish that the cited escapeway was not maintained to insure
passage at all time of any personu including a disabled person.

ORDER

Based on the above findings of fact and conclusions of law,
and relying on the motion to approve a partial settlement, IT IS
ORDERED:
1. Citation Nos. 3302406, 3302407, and 3302408 are MODIFIED
to delete the findings that tr9 violations are significant and
substantial, and as modified, are AFFIRMED.
2.

Citation No. 2892777 is VACATED.

937

3. Rochester & Pittsburgh shall, within 30 days of the date
of this decision, pay the following civil penalties:

CITATION

30 C.F.R.

AMOUNT

3302406

75.1704

$125

3302407

75.1107-1.(a) (3)

50

3302408

75.1107-l(a) (3)

50

Total

$225

...,

I(iA/IA~f:~{, ./J--!J
,

)
•

.

I

/

'

'

YJ/{f_C:,'t,1-t/...
James A. Broderick
Administrative Law Judge

Distribution:
Thomas A. Brown, Jr./ Esq., Office of the Solicitor, u. s.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Joseph Yuhas, Esq., Rochester & Pittsburgh Coal Company,
P. o. Box 367, Ebensburg, PA 15931 (Certified Mail)
dcp

938

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

JUN 6 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

:
:
:
:

CIVIL PENALTY PROCEEDING

.:
..•

Lexington Mine

.

v.
NEW BUTTE MINING INCORPORATED,
Respondent

Docket No. WEST 90-168-M
A.C. No. 24-01841-05507

DECISION
Appearances:

Susan J. Eckert·1 Esq., Office of the Solicitor,

u.s. Department of Labor, Denver, Colorado,
for Petitioner1
Mr. David w. Kneebone, Esq., Consultant, New Butte

Mining, Butte, Montana,
for Respondent.
Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration CMSHA), charges Respondent, New Butte Mining, Incorporated C"New Butte") with violating a safety regulation promulgated under the Federal Mine Safety and Health Act, 30
UoSoCo § 801 et seq., (the "Act") o
A hearing on the merits was held in Butte, Montana, on
April 23, 1991.

The parties filed post-trial briefs.
STIPULATION
At the commencement of the hearing the parties filed a written stipulation providing as follows:

lo New Butte is engaged in the mining of gold in the United
States, and its mining operations affect interstate commerce.
2. New Butte is the owner and operator of the Lexington
Mine, MSHA I.D. No. 24-01841.

3. New Butte is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. §§ 801, et~
(the "Act").

9 39

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
admitted into evidence for the purpose of establishing their
issuance, and not for the truthfulness or relevancy of any
statements asserted therein.
6. The 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.
7. The proposed penalty will not affect respondent's ability to continue in business.
8. The operator demonstrated good faith in abating the
violation.
9. New Butte i~ a small. operator of a gold mine with
106,950 control hours in 1989.

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 citations.
11. On June 27, 1989, David Kneebone contacted Darrel Woodbeck, MSHA inspector, to report the accident. After that, Darrel
Woodbeck contacted Jack Petty, former MSHA Assistant District Director, who directed Darrel Woodbeck and Siebert Smith to investigate the company because of the accident.
THE EVIDENCE
On June 27 0 1989u Darrell Woodbeck, an MSHA inspector experienced in mining, issued Citation No. 2650622. The citation alleged a violation of 30 C.F.R. § 57.1101. On the same date, in a
subsequent modification, the citation was modified to allege a
violation of 30 C&FeRo § 57-110080 1 (Exhibit P-2)o

1

The cited regulation provides as follows:
§

57.11008.

Restricted clearance.

Where restricted clearance creates a hazard to
persons, the restricted clearance shall be conspicuously marked.

940

The uncontroverted evidence shows that on June 26, 1989u
miner Rick A. Walter was swamping 2 for Dana Lentz, the assigned
motorman. The two miners in this conventional stope mine were
joined by miner Conda Sluga. The men were spotting ore cars under the #3 chute. In the process, a one·-inch air hose had become
entangled in the rail cars. Messrs. Sluga and Walter proceeded
to untangle the hose. In the process, Mr. Walter and the train
moved slowly backwards. Mr. Walter backed into the rib. At that
point, he was pinched by the ore car and sustained injuries to
his neck, chest, and back. Mr. Lentz saw that something was
wrong and he immediately pulled the train forward.
Mr. Walter
was hospitalized for his injuries.
The company took photographs (Exs. P-3 through P-7). Copies
of the photographs were later given to the MSHA investigators.
However, the photographs were given to MSHA in a spirit of cooperation and the inspector at the scene had indicated there was no
reason to write a citation. Subsequently, a citation was issued.
It is agreed the restricted clearance was not marked with
any reflectors or warnings. 'At the most restricted point, as a
ground control device, the protrusion of the granite slab had
been overlaid by a steel mat. The mat showed evidence that, at
times, it had been struck by the ore cars. At this point, there
was no clearance between ore cars and the wall.
DISCUSSION
The Commission in Ideal Cement Company, 11 FMSHRC 2409 at
2416 (Nov. 1990), stated that in interpreting and applying
broadly worded standards, the appropriate test is whether a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard 6 citing Canon
Coal COou 9 FMSHRC 667u 668 (April 1987)u Quinland Coalu Incou 9
FMSHRC 1614u 1617-1618 (Sept. 1987)0
The requirements of 30 C.F.R. § 57.11008 are clear. Restated6 it requires that restricted clearance shall be conspicuously marked under two circumstanceso These are where the clearance is restricted and a hazard exists due to the restrictiono

2
A swamper directs the movements of the underground ore
haulage train.

941

As a threshold matter, it is uncontroverted that the area of
restricted clearance was not marked in any manner. The restricted space went to zero distance between the ore cars and the wall.
A ground control mat at this point showed evidence that it had
been struck by the ore cars. The hazard was apparent: the
swamper backed against the rib and was struck by the side of the
ore car.
(Exs. P-3 through P-7).
New Butte raises several defenses. New Butte objects to
MSHA using the company's photographs which were originally given
in a "spirit of cooperation." New Butte's objections are without
merit. MSHA legally acquired the photographs and may use them as
evidence in a later hearing.
The operator objected to the Secretary's proceeding under 30 C.F.R. § 57.11008 when the company
had been originally cited under § 57.11001. 3 Such amendments
are permitted under the Federal Rules of Civil Procedure. See
Rule 15(a), Fed. R. Civ. P.
The operator also argues the area of this stope was not a
travelway. Therefore, by virtue of the headnote of the regulation, Subpart J does _not apply.
I disagree, 30 C.F.R. § 5.7.2 defines a travelway as "a passage, walk, or way regularly used and designated to go from one
place to another." On this issue I credit the inspector's testimonyo New Butte, in fact, recognized this area as a travelway
since a walkway existed on the side away from the side of the
protrusion.
In short, the passage from wall to wall constituted
the travelway.
New Butte also contends the accident was not thoroughly investigated by MSHA. The company is not in a position to complain
that the inspectors did not go underground.
It is uncontroverted
that the company blasted the protruding rib before the inspectors
arrived to conduct their inspection. MSHAQs investigation (Ex.
P-2) may contain some errorsu but I find it is a thorough outline
of the accident&
Further, an inspector does not have to observe
a violation to issue a citation, Emerald Mines Co. v. Federal
.Mine Safety and Health Review, 863 F.2d 51 CD.Co Cir. l988).

3

The standard reads as follows~
§ 57$11001

Safe access.

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

942

New Butte also contends, and its evidence supports the argument, that the primary cause of the accident could have been
miner Sluga's activities in distracting the ore train operator
and giving him unauthorized signals.
This case is not a hearing to balance the causes of the accident. Even if miner Sluga or the crew's negligence contributed
to the accident, the ultimate issue is whether New Butte violated
the regulation.
New Butte also contends it did not receive a copy of MSHA's
investigation although it requested that information. However,
it is uncontroverted that New Butte received the report. While
there was some delay, the operator did not establish any prejudice by reason of the delay. New Butte's contentions are without
merit and for the foregoing reasons, Citation No. 2650622 should
be affirmed.
CIVIL PENALTIES
The statutory crJteria to assess civil penalties are contained in Section llO(i) of the Act, 30 u.s.c. § 820(i).
The operator's history is favorable, inasmuch as the company
has only been assessed eight violations in the two years ending
June 26, 1989. The company had no violations before October 15,
1987.

It is stipulated that the company is r.;:mall and the proposed
penalty will not affect its ability to continue in business.
The company was negligent inasmuch as a protrusion was apparento A mat had been placed at the protrusion as a ground
control deviceu hence the company should have known of ito
The injuries sustained by Rick Walter are indicative of the
gravity of this violation&
The operator blasted the protrusion before the MSHA inspectors arriveda Howeveru this action generally falls under the
broad umbrella of ngood f ai tho nn
On balanceu I consider the proposed penalty to be
appropriateo
For the following reasons, I enter the following:

943

ORDER

Citation No. 2650622 and the proposed penalty of $750 are
AFFIRMED.

Law Judge

Distribution:
Susan Jo Eckertu Esq. 0 Office of the Solicitorf U~So Department
of Labor 0 1585 Federal Office Buildingu 1961 Stout Street 0
Denveru CO 80294 (Certified Mail)
Mr. David w. Kneebone, Consultant, NEW BUTTE MINING, P.O. Box
188u Butte, MT 59703 (Certified Mail)

ek

944

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

22041

JUN 71991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 90-122-M
A.C. No. 41-02319-05511-A

v.
Espey Pit and Plant
EDWIN E. ESPEY, JR.,
EMPLOYED BY ESPEY SILICA
SAND COMPANY,
Respondent
DECISION

Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, VA, for the
Petitioner:
Mr. Edwin E. Espey, Jr., San Antonio, Tx, for
Respondent.

Before:

Judge Fauver

The Secretary seeks a civil penalty under § llO(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq.
This case was heard in San Antonio, Texas, on May 22, 1991.
Having considered the evidence, oral arguments, 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 additional findings in the
Discussion below:
FINDINGS OF FACT

1.
Espey Silica Sand Company, Inc., a corporation, owns
and operates an open pit mine and plant, known as Espey Pit and
Plant, in San Antonio, Texas, where it produces silica sand for
sales in and affecting interstate commerce.
2.
Respondent, Edwin E. Espey, Jr., is vice president and
superintendent of the subject mine and plant.
3.
The mine and plant, at all times relevant, employed
about four employees.

945

4.
On April 26, 1989, Federal Mine Inspector Joseph P.
Watson inspected the mine and plant. In the dry screen tower, a
four-story building, he found holes and openings in the upper
floors that were unguarded and not dangered off. He also found,
on the second floor, a wooden purlin (a support beam for a large
part of the floor) that was broken and bowed. The floor
supported by the purlin was not dangered off. Based on these
conditions, the inspector issued a combination imminent danger
order and citation, known as Order/Citation No. 3280352, charging
a violation of 30 C.F.R. § 56.11001, which provides:
§

56.11001 Safe access.

Safe means of access shall be provided and
maintained to all working places.
The unguarded holes, openings, and broken purlin
5.
presented an imminent danger of persons or material falling
through a floor and causing permanently disabling or fatal
injuries.
6.
The conditi-0ns observed and cited by the inspector were
obvious and evident by the exercise of ordinary attention. The
purlin break and bow were obvious. All of the cited conditions
were known by the respondent or, by the exercise of reasonable
care, should have been known by him, substantially long before
the inspection on April 26, 1989.
7.
Respondent's father, Edwin E. Espey, who is President
and majority stockholder of the corporation, interfered with
inspector Watson's performance of his official duties on April
26, 1989, by preventing him from posting a red tag forbidding
access to the dry screen tower. As a result of such interference
an injunction action was brought in the united states District
Court for the Western District of Texas (Secretary of Labor v.
Edwin E. Espey, and Edwin E. Espey, Jr., Individually and Espey
Silica Sand Co., Inc., a corporation, Civil Action No. SA 89 CA
1416), resulting in a consent decree enjoining defendants from
interfering with the Secretary or her agents in carrying out the
provisions of the Act.
8.
Respondent in this proceeding did not aid his father in
interfering with inspector Watson on April 26, 1989, and in
general has demonstrated a cooperative attitude toward MSHA
inspectors.
DISCUSSION WITH FURTHER FINDINGS

Section llO(c) of the Act provides that:
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

946

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).
The word "knowingly" as used in this section does not have
any meaning of bad faith or evil purpose or criminal intent.
"It's 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 informations would lead a person exercising
reasonable care to acquire knowledge of the fact in question or
to infer its existence." United States v. Sweet Briar, Inc., 92
F. Supp. 777,779 (D.s.c. 1950), quoted approvingly in Secretary
v. Kenny Richardson, 3 FMSHRC 8 (1981), affirmed, Richardson v.
Secretary of Labor and FMSHRC, 689 F.2d 632 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983).
The facts show that Respondent knew or should have known the
existence of the conditions cited by the inspector, and should
have corrected them, long before the inspection on April 26,
1989.
In reaching this finding, I have not found it necessary to
resolve the conflict in the testimony between Respondent and his
nephew, John Espey McDaniel. I find that McDaniel's testimony
does not show greater weight than Respondent's testimony and
therefore does not preponderate in establishing any fact disputed
by Respondento
Howeveru the inspector's testimony and the
physical facts observed by him preponderate to show that
Respondent knew or should have known the cited conditions before
the inspection.
I therefore find that Respondent knowingly permitted the
violation as alleged by the Secretary.
Considering the Respondent's overall cooperative attitude
toward MSHA inspectors, and the fact that the corporation was
assessed a civil penalty of $600 for the same violation as that
charged against Respondent, and considering all of the criteria
for civil penalties in § llO(i) of the Act, I find that a civil
penalty of $450 is appropriate for the violation found herein.
CONCLUSIONS OF LAW

1.

The judge has jurisdiction in this proceeding.

2.

Respondent knowingly authorized, ordered or carried out

947

a violation of 30 C.F.R. § 56.11001 as alleged in the Petition
for Assessment of civil· Penalty.
ORDER

Respondent shall pay a civil penalty of $450 within 30 days
of the date of this decision.

/, J. j ;/

::;-tfUAt/f/\_

~auver

Administrative Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203
(Certified Mail)
Mr. Edwin E. Espey, Jr., Plant Manager, Espey Silica Sand
Company, Route 7, Box 500, San Antonio, TX 78221 {Certified
Mail)
fas

948

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

JUN 12 1991
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-207
A.C. No. 15-06268-03538

v.
Pevler Preparation Plant
AGIPCOAL USA, INC.,
Respondent
DECISION
Appearances:

Before:

Joseph B. Luckett, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee, for
the Petitioner ~
c. Gregory Ruffennach, Esq., Smith, Heenan &
Althen, Washington, D.C., for the Respondent.

Judge Maurer
STATEMENT OF THE CASE

This civil penalty case is before me, initiated by the
petitioner against the respondent pursuant to the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., the
00
Act" o Respondent is contesting both a section 104 (a) citation
and a related, subsequent section 104(b) order of withdrawal
issued by the Mine Safety and Health Administration (MSHA).
Pursuant to notice, a hearing on this matter was held in
Paintsville, Kentucky, on January 17, 1991. The parties have
both filed posthearing briefs and I have considered their
respective arguments in the course of my adjudication of this
case.
STIPULATIONS
The parties stipulated to the following (Govt. Ex. No. 1):
1. The operator processes approximately 1.35 million tons
of coal per year at the preparation plant.
2.

The operator employs 16 active hourly employees.

3. The civil assessment will not affect the operator's
ability to.continue in business.

949

4. citation No. 3365153 and Order No. 3365158 were issued
by an authorized representative of the Secretary.
5. The presiding administrative law judge has jurisdiction
to hear and decide this case.
The Underlying Section 104{a) Citation
Section 104(a) Citation No. 3365153, issued on December 21,
1989, charges a violation of the mandatory standard found at
30 C.F.R. § 77.202 and alleges:
The No. 3 dump has an accumulation of loose coal and
float coal dust up to about 1/2" in depth on the floor,
wall stringers, motors, electrical cabinets, and
conduits, which can create a fire/explosion hazard in
the event of an electrical defect or short.
The facts surrounding the·issuance of this citation are
essentially undisputed. On December 21, 1989, Inspector Reed,
accompanied by John Dillon, the Plant Superintendent, inspected
the No. 2 and 3 Coal Dumps as a part of his regular Triple A
inspection at the Pevler Preparation Plant Complex. After
inspecting the dumps, the inspector cited both as violating the
standard at 30 C.F.R. § 77.202. He found the violative
conditions throughout the entire dump on all three floors of the
facility (in this case, however, we are concerned with the No. 3
Dump only) •
The No. 3 Dump is a raw coal dump large enough for two 10wheel coal trucks to dump simultaneously.
It holds 500 to 550
tons of coal and it is primarily a bypass dump to run coal into
the Noo 3 silo bypassing the preparation plant.
Inspector Reed testified that all three floors of the dump
had loose coal and float coal dust on the floors and walls, as
well as on the motors and electrical conduits. Further, the most
significant accumulations were found in the breaker room of the
dump.
In his opinion 1 these accumulations presented two hazards;
a stumbling and tripping hazard, which I discount, and a danger
of explosion.
The breaker room at the dump contained a great deal of
electrical equipment, such as motor controllers, circuit breakers
and contactors. The inspector was particularly concerned with
the contactors. They constantly open and close each time a piece
of equipment is energized or deenergized and thereby create a
danger of igniting the float coal dust by the arcing and sparking
that is produced.

950

The company essentially admits the basic violation existed
on December 21, 1989. The plant superintendent himself conceded
the dump was dusty, but he didn't perceive any immediate danger
to anyone. He maintains that there is a lot of ventilation
throughout the dump and that none of the employees are physically
in the dump when it is operating. Mr. Dillon also opined that a
fire or explosion hazard was unlikely since there are no exposed
sources of ignition. The greatest potential source of ignition
was the contactors in the breaker room, but they were all sealed
inside metal boxes in order to minimize contact between any
potential source of ignition and any existant float coal dust.
Furthermore, all the wiring to the various motors and starter
components in the breaker room is enclosed in metal conduit.
The company, therefore, contests Inspector Reed's
"significant and substantial" finding in the original section
104(a) citation.
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. § 814(D) (1). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature.". 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 its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
(1)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inco, 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August

951

1984). We have emphasized that, in accordance with the
language of section 104(d} (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984};
steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
There is no doubt that there was a violation of the
mandatory safety standard cited, 30 C.F.R. § 77.202, and I concur
with the existence of an enhanced measure of danger to safety
caused by the dust accumulations. However, the Secretary must
also establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an
inJury. This latter she has failed to do. The No. 3 Dump is an
unmanned facility. It is remotely controlled from an operator's
room on the side of the No. 2 Dump some 100-150 feet away. There
are no employees needed in the dump while it is operating and
indeed the employees are instructed not to enter them while they
are in operation. I therefore find that the instant violation
does not meet the "S&_S" criteria because it is unlikely that any
injury to anyone would occur as a result of this violation, and
the citation will be so modified.
In assessing a civil penalty in this case, I have considered
the foregoing stipulations, findings and conclusions and the
requirements of section llO(i) of the Act. I concur with the
inspector's negligence finding of "moderate". Under these
circumstances, I find that a civil penalty of $100 is
appropriate.
The Subsequent Section 104(b) Order
Section 104{b) Order No. 3365158u was issued on January 2u
1990 and alleges:
The cited float coal dust is still present on the
electrical conduits & tops of the electrical component
cabinets. Additional cleaning is still required on the
cabinet faces, wall beams & the floor.
The original citation set a date of December 24, 1989 as the
time when the violation was to be abated. On January 2, 1990,
Inspector Reed returned to the preparation plant to inspect and
terminate the citations written for both the No. 2 and No. 3
Dumps. He found the No. 2 Dump cleaned to his satisfaction and
abated the citation. The instant problem, however, arose in the
No. 3 Dump.
Although the majority of the No. 3 Dump had been cleaned to
the inspector's satisfaction, he was not satisfied with the
cleanup of.the breaker room. The breaker room is the electrical

952

room for the No. 3 Dump and is approximately 8 feet by 12 feet
(96 square feet) in area located on the second level of the dump.
It constitutes a small but significant portion of the total area
originally cited.
The breaker room contains the electrical components for the
machinery in the Dump. At the center of the breaker room are
metal cabinets which enclose the breakers and starters. The
breakers and starters are thus enclosed and covered by metal
doors with two lock-in type screws. These cabinets are designed
to minimize the amount of coal dust entering the metal cabinets
from the outside and to contain the arcing or sparking of the
breakers and starters inside. There is virtually no potential
for an ignition in the breaker room when these cabinets are clean
and closed.
All the wiring to the motors and to the starter components
in the breaker room is enclosed in conduit. These conduits are
located near the ceiling of the breaker room approximately 10
feet high.
The greater part of the accumulations of coal dust which the
inspector found on January 2, 1990 were located on top of these
cabinets and conduits.
When Inspector Reed returned on January 2, he was
accompanied by Mr. Don Hall, the company safety director and
Mr. Fannin, the union representative. After Inspector Reed
indicated that the breaker room needed additional cleaning,
Mr. Hall left the dump and went to find Mr. Cantrell (the Mine
Manager) to inform him that the area had not been cleaned to
Inspector Reed's satisfaction. Cantrell went to the No. 3 Dump
to meet with Inspector Reed. When he arrived, Inspector Reed
indicated to him at that time that he was going to shut down the
Noo 3 Dump because the breaker room needed additional cleaning"
In an attempt to avoid the threatened "b" order, Hall, Cantrell
and Fannin quickly cleaned up the coal dust which the inspector
had found in the breaker room. It took the three men about
fifteen minutes to clean it to his satisfaction, and involved
wiping the dust off the top of the conduits and cabinets and
sweeping the floor of the breaker room.
The company had previously made a considerable effort to
abate the citation. A contractor's cleaning crew worked
approximately 19 man-hours to clean the No. 3 Dump on December
23, 1989. At this time, Mr. Cantrell inspected the dump and
specifically inspected the breaker room and in his opinion, as of
December 23, 1989, the breaker room was sufficiently cleaned to
abate the citation.
On the next regularly scheduled cleanup day, December 31,
1989, after another week of operation, the No. 3 Dump was cleaned

953

again. On December 31, 1989, the cleanup crew worked
approximately 18 hours. Cantrell again inspected and was
generally satisfied that the breaker room was clean. However, he
did find some dust inside the electrical cabinets where the
breakers and starters are located. He ordered the cleanup crew
to turn off the power and blow the dust out of the cabinets and
reseal the doors.
The coal dust later found by the inspector on top of these
cabinets and on top of the overhead conduits was above eye level
and was admittedly missed by the clean up crew as well as by Mr.
Cantrell.
It is the operator's position that Inspector Reed, in these
circumstances, should have extended the abatement period to allow
them a quick clean-up rather than issue the section 104(b) order.
Section 104 of the Mine Act provides in relevant part:
(a) If, upon inspection or investigation, the
Secretary ... believes that an operator •.. has violated
this Act, or any mandatory health or safety standard,
rule, order, or regulation ••• he shall .•. issue a
citation .... The citation shall fix a reasonable time
for the abatement of the violation ....
(b) If, upon any follow-up inspection •.. an authorized
representative of the Secretary finds (1) that a
violation described in a citation ..• has not been
totally abated within the period of time as originally
fixed therein or as subsequently extended, and (2) that
the period of time for the abatement should not be
further extended, he shall ... promptly issue an order
requiring the operator ... to immediately cause all
persons ... to be withdrawn from, and to be prohibited
from entering, such area ....
The inspector is thus required to make a finding as to
whether or not the abatement period should be extended prior to
issuing a section 104(b) withdrawal order. The reasonableness of
his actions must be determined on the basis of the facts
confronting him at the time he issued the order. United States
Steel Corporation, 7 IBMA 109 (1976).
Three factors are generally considered or at least should
have been considered by Inspector Reed to determine whether the
abatement period should have been extended:
(1)
The degree of danger that any extension would have
caused to miners;

954

(2) The diligence of the operator in attempting to
meet the time originally set for abatement; and
(3)
The disruptive effect an extension would have had
upon operating shifts.
Of these, the first two are the most pertinent to the case at
bar.
I have already found and concluded earlier in this decision
that the condition cited by Inspector Reed in the original
section 104(a) citation was not a "significant and substantial"
violation of the mandatory standard and I now find that the
"left-over" condition he found on January 2, 1990, did not pose
any particular hazard to miners. In this case, the additional
cleanup to fully abate the citation to his satisfaction took only
fifteen minutes and since no miners actually work in the No. 3
It appears
Dump, no miners were in fact withdrawn by the order.
to me that the inspector issued the order for record purposes
only.
In assessing the'company's good faith in attempting to abate
the original citation it is necessary to take into account the
totality of the company's efforts. The original citation, as
issued, applied not only to the breaker room but also to the
entire No. 3 Dump. Moreover, the original citation was issued in
conjunction with another Section l04(a) citation issued for
accumulations in the No. 2 Dump.
The company's efforts in abating these citations, set out
earlier, within the prescribed abatement period were substantial
and, with the exception of the breaker room, Inspector Reed was
satisfied with the company's abatement efforts. The employees
assigned to clean the breaker room apparently missed the coal
dust on top of the conduit and cabinets. And although
Mro Cantrell personally inspected the breaker room afterwards he
also did not notice these accumulations of coal dust. The tops
of the conduit and cabinets are obscured from view by their
position above eye level, and although this is no excuse for not
cleaning up thereu
I believe it was the reason these
accumulations were left behind.
I therefore find that the accumulations remaining in the
breaker room on January second did not represent a lack of
diligence on the part of the company's cleanup effort but rather
were an understandable 11 oversight 11 , that was capable of being
corrected in a mere fifteen minutes without causing any
particular hazard to miners.
Inspector Reed himself testified that if he had believed
that a truly diligent effort had been made to clean the room he
would have extended the time for abatement of the citation.

955

After reviewing the evidence in this case, I do believe the
company made a truly diligent effort to clean the breaker room
and I also believe that Inspector Reed failed to give due and
serious consideration to their efforts to abate or to extending
the period for abatement.
Furthermore, I find that his failure to extend the period
for abatement was unreasonable and contrary to section 104(b) of
the Act. Accordingly, the subject order will be vacated herein.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED THAT:
1. Citation No. 3365153 IS AFFIRMED as a non-S&S
violation of 30 C.F.R. § 77.202.
2.

Section 104(b) Order No. 3365158 IS VACATED.

3. The respondent IS HEREBY ORDERED TO PAY a civil penalty
of $100 within 30 days of the date of this decision.

urer
s rative Law Judge
Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
C. Gregory Ruffennach, Esq., Smith, Heenan & Althen, 1110 Vermont
Avenue, N.W., Suite 400, Washington, DC 20005-3593
(Certified

)
/ml

956

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

JUN 12 1991
DISCRIMINATION PROCEEDING

LINDA LESTER,
Complainant

Docket No. VA 91-26-D

v.

NORT CD 90-14

GARDEN CREEK POCAHONTAS
COMPANY,
Respondent

Virginia Pocahontas #6 Mine

ORDElt OF DISMISSAL

Appearances:

Before:

Susan Oglebay, Esq., Castlewood, Virginia, for
the Complainant;
Charlie R. Jessee, Esq., Yeary, Tate, Lowe &
Jessee, P.C., Abingdon, Virginia, for the
Respondent.

Judge Maurer

At the hearing in Abingdon, Virginia, on April 25, 1991,
Complainant, by counsel, moved to withdraw her complaint, with
prejudice, and dismiss this case. Respondent does not object.
Accordingly, the Motion is GRANTED, and this proceeding is
DISMISSED, with prejudice.

Rb~~
k~~i~~ttative

Law Judge

Distribution~

Susan Oglebay, Esq., P.
(Certified Mail)

o. Box 28, Castlewood, VA 24228

Charlie R. Jessee, Esq., Yeary, Tate, Lowe, & Jessee, P.C.,
P. O. Box 1685, 161 E. Main Street, Abingdon, VA 24210 (Certified
Mail)
dcp

957

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

JUN 13 1991
AVIS B. PERKINS,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. WEVA 91-23-D
MSHA Case No. MORG CD 90-12

MORNINGSIDE DEVELOPMENT
CORPORATION,
Respondent

Little Falls Mine
ORDER

On April 25, 1991, an order was issued directing Complainant
to file a statement indicating the specific relief requested. It
was further provided in the order that Respondent shall have
20 days from the date service of the Statement is attempted, to
reply to the statement. Complainant's statement was received by
the Commission on May 17, 1991. In its statement, Complainant's
counsel certified that he mailed Respondent a copy of the
statement on May 14, 1991. Respondent has not filed any response
to Complainant's Statement.
Complainant seeks the imposition of punitive damages in the
amount of $10,000. The complaint in this case was filed pursuant
to Section 105 of the Federal Mine Safety and Health Act of 1977
(the Act). Neither section 105, supra, nor the Rules of the
Commission, 29 C.F.R. § 2700 et seq., provide for the imposition
of punitive damages. Further, such relief is not proper in this
case. The record does not contain any evidence surrounding the
alleged discriminatory acts, as there was no evidentiary hearing
in this matter, because Respondent had defaulted in not filing an
Answer. Hence, there are no facts before me to support the
imposition of punitive damages.
The balance of relief sought by Complainant is proper under
the Act.
Accordingly, it is ORDERED that, within 30 days of this
Order, Respondent shall pay Complainant the following sums:
(1)
(2)
(3)

Backpay from July 13, 1990 totalling
Attorney Fees
Travel expenses in seeking employment

958

$24,000.00
$
950.00
$
286.50
$25,236.50

It is further ORDERED that Respondent shall, within 30 days
of this Order reinstate Complaint to his prior position.

Avram
isberger
Administrative Law Judge
(703) 756-6210
FAX (703) 756-6201
Distribution:
Harley E. Stollings, Esq., Breckinridge, Davis, Sproles &
Stollings, 509 Church Street, Summersville, WV 26651
(Certified Mail)
Mr. J. Douglas Crane, President, Morningside Development
Corporation, 153 Walnut Street, Morgantown, WV 26505
(Certified Mail)
/fb

959

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

22041

June 17, 1991

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-198
A.C. No. 46-03805-03978

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Glenn M. Loos, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the
Petitioner;
Rebecca J. Zuleski, Esq., Furbee, Amos, Webb &
Critchfield, Morgantown, West Virginia, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns 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 Part 75, Title 30, Code of Federal Regulations. The
respondent filed an answer contesting the alleged violations, and
pursuant to notice, a hearing was held in Morgantown,
West Virginia. The parties filed posthearing briefs, and I have
considered their arguments in the course of my adjudication of
this matter.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the standards as alleged in the proposal
for assessment of civil penalty, (2) whether the violations were
"significant and substantial," and (3) the appropriate civil
penalties that should be assessed based on the civil penalty
criteria found in section llO(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.

960

Applicable statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

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

3.

Commission Rules, 20 C.F.R.

§

2700.l et seq.

Discussion
Section l04{a) "S&S" Citation No. 3118460, issued on
March 14, 1990, by MSHA Inspector Virgil M. Brown, Jr., cites an
alleged violation of mandatory safety standard 30 C.F.R.
§ 75.508, and the cited condition or practice is described as
follows:
The elect (sic) map of the DC trolley system is not
accurate in that trolley knife blade switches with
handles are used where dead block insulators are shown.
Section 104(a) "S&S" Citation No. 3312067, issued on May 1,
1990, by MSHA Inspector Virgil M. Brown, Jr., cites an alleged
violation of mandatory safety standard 30 C.F.R. § 75.1403, and
the cited condition or practice is described as follows:
The short circuit protection for the trolley wire outby
#30 blopk was not set properly and was not in
compliance with the 75% safeguard. The 18 left rect.
(sic) was set on 47/or 2834 amps. Load drop tests
revealed that the rect. (sic) outby end should have
been set on 37/or 2224 amps.
In issuing the citation, Inspector Brown relied on a
previously issued safeguard Notice Nao 2258189, dated
November 14v 1983, and he included this information in the
appropriate places on the face of the May 1, 1990, citation.
Discussion
Citation No" 3118460
After the completion of the testimony of Inspector Brown,
the petitioner 1 s counsel was granted a short recess. He then
advised the court that the parties had settled the alleged
violation and that based on the testimony of the inspector, the
petitioner decided to vacate the citation. The respondent raised
no objection, and the petitioner's disposition of the alleged
violation was approved from the bench {Tr. 146-148).
Citation No. 3312067

961

Petitioner's Testimony and Evidence
MSHA Inspector Virgil M. Brown, Jr., testified that he is an
electrical specialist with prior mine experience as a mine
manager, foreman, fire boss, and maintenance person, and that he
holds a bachelor's degree in mining engineering and has attended
the MSHA Academy at Beckley, West Virginia, which included
2 weeks of electrical trai'ning. He has also taken electrical
correspondence courses (Tr. 15-16). He confirmed that he
conducted an electrical inspection at the mine on May 1, 1990,
and that he inspected the short circuit protection for the DC
trolley system. He confirmed that he performed a load drop test,
and he explained the results of his test (Tr. 159-162). He also
identified exhibit P-8 as a copy of his inspection notes, exhibit
P-9 as a copy of the citation he issued, and exhibit P-10 as the
prior safeguard notice issued by Inspector Wayne Fetty on
November 14, 1983.
Mr. Brown stated that the results of his load drop test
indicated that the fault protection for the circuit in question
was set "nearly at 100 percent setting or just a little bit below
100 percent setting,'" and he explained that the slight
discrepancy in the test results recorded in his notes and those
shown on the citation were due to the fact "that 37 is the
closest thumb wheel setting to that value, and, you're either
going to go 60 below this value or 60 above this value 11 (Tr.
161) •
Mr. Brown stated that the respondent had conducted prior
load drop tests on April 10, 1990, as reflected by exhibit P-11,
and he confirmed that he based his low negligence finding on the
fact that the respondent did not ignore the tests and was trying
to maintain the required circuit protection settings on their DC
trolley system (Tro 165). He further confirmed that the
respondent was in violation of the previously issued safeguard
because the circuit protection setting was at 100 percent, rather
than the 75 percent required by the safeguard.
If the setting
were over 100 percent there would have been a violation of
mandatory safety standard section 75.1001, rather than the
safeguard (Tr. 165).
Mr. Brown explained what was required under the safeguard
issued by Inspector Fetty, and he believed that a trained
electrician who has worked around a DC trolley system would be
familiar with the requirements of the safeguard notice and the
load drop tests. Mr. Brown confirmed his belief that the
conditions he cited constituted a violation of the requirements
of the safeguard notice (Tr. 168).
Mr. Brown stated that the hazards created by the cited
conditions included the probability and likelihood of a bolted
short circuit, and a fire caused by arcing which could ignite the

962

combustible materials used in the roof support system. He
explained that wooden header boards or planks are within inches
of the trolley wires, and that a prior fire had occurred in the
mine when a head board caught fire and he and Inspector Fetty
came upon a motorman trying to extinguish the fire over the motor
which had caused the fire (Tr. 50-51). He was aware of a trolley
wire which fell on another section and did not trip the circuit
breaker, indicating that it was not set appropriately. He was
also aware of approximately 22 accidents over a 7-year period
that resulted in 11 lost time injuries and 12 fatalities, as
reported in an MSHA study (Tr. 168-169). He believed that "the
situation and the mining methods and the settings that the
rectifiers are • . • its likely for a problem to occur that would
bes and S 11 (Tr. 169).
Mr. Brown further explained how a fire could start as a
result of inadequate short circuit protection, and he indicated
that the 75 percent setting required by the safeguard notice came
from an MSHA report and studies which were done showing that
arcing faults could occur and not open any circuit interrupting
devices. He also explained ~he difference between an arcing
fault and a bolted fault, and he believed it was reasonably
likely that a fault would occur because of the metal overcast
arches used for roof support. He confirmed that he has observed
at least three occurrences, including a recent incident, where
the insulation was melted off the trolley wire. He believed that
a bolted fault would definitely trip if the circuit protection
were set at 100 percent, but that an arcing fault would not trip
and would remain open until it was cleared or burned far enough
so that the flame path is extinguished or someone saw it and
repaired it. He confirmed that he has personally observed six or
eight mine fires caused by arcing faults, including one at the
subject mine, over the past 20 years (Tr. 171-177).
Mro Brown stated that the issuance of a 11 75 percent
safeguard notice" such as the one he relied on to support the
violation is not based on any MSHA district wide policy at mines
with trolley systems. He confirmed that he inspects five mines
with trolley systems and that the Martinka and Robinson Run mines
are the only ones with safeguard notices (Tr. 177). Mr. Brown
confirmed that he was familiar with the requirements of mandatory
safety standard section 75.1001 and 75.1001-(b), and he explained
his understanding of these regulations. He stated that if he
finds any short circuit protection settings over 100 percent, he
will cite section 75.1001, but if the setting is between 75 and
100 percent he will cite the safeguard notice (Tr. 179, 183-184).
He explained that the 100 percent setting requirement is based on
section 75.1001, and it is an industry standard based on the load
drop test. The 75 percent safeguards lower the mandatory
100 percent setting based on special mine conditions (Tr. 185186) •

963

on cross-examination, Mr. Brown stated that he normally
selects a mine area which has advanced the furthest to conduct
his load drop tests because such an area would be the likely area
to be out of compliance or have a problem which the mine
electrical department would be aware of. He agreed that loose
trolley wire "fish plates" could cause the rectifier settings to
be set at less than the 2,224 amps required by the safeguard
notice, and that this does occur in a mine, and if it does, it
would result in a change in the load drop tests (Tr. 190). He
confirmed that the 22 accidents which he previously referred to
did not occur at the Martinka Mine, and he stated that "those
were just separate safeguards" (Tr. 191). He also confirmed that
the melted trolley wire guard fire caused by arcing was not a
reportable fire because it was extinguished in less than
30 minutes, and that he was not personally aware of any
reportable fires at the mine (Tr. 192).
Referring to section 75.1001-l(b), Mr. Brown explained his
understanding of the testing and calibration language found in
that regulation (Tr. 192-195). He confirmed that under MSHA's
guidelines and policy manuals, it is appropriate for an inspector
to issue a safeguard ~o addres-sspecific conditions or problems
that have resulted in, or could result in, lost time accidents
(Tr. 195-196). He confirmed that any safeguard issued by an
inspector must go through the district manager in order to avoid
"blanket covering" mines, and that he was so instructed by a
supervisor during several meetings (Tr. 197). He confirmed that
mine safeguard notices are a matter of record in the uniform mine
file that he is required to review, and that such information can
be retrieved on a computer at the district or sub-district
office. However, he did not know how many safeguards have been
issued at the subject mine. He stated as follows with respect to
the safeguard he relied on in support of the citation (Tr. 200201) ~
Qo Mro Brown, do you know the reason that safeguard
2258189 which was issued by Inspector Wayne Fetty to
Martinka Mine, do you know why it was issued?
Ao
It was issued I guess after he did a look at the
study that was done on the arcing faults and the
after a study was done of what was there at that mine,
of the conditions there as specific to that mine.
Qo And you 1 re just getting this information by reading
the actual safeguard; is that correct?
Ao Out of the safeguard and the actual printout and I
also talked with the inspector.
Q. Mr. Brown, would you agree with the statement that
a duly authorized representative of the Secretary such

964

as yourself, may issue a safeguard if it addresses
hazards related to the transportation of men and
materials?
A.

Definitely.

Yes, ma'am.

All right. And that a safeguard would be issued on
a mine by mine basis?'

Q.

A.

Mine by mine.

Q. Due to a peculiar or particular circumstance at
that particular mine?

A.

That's right.

Mr. Brown stated that he has inspected approximately
45 mines in district three, and that approximately 10 percent of
them are trolley powered mines. He indicated that safeguards
have been issued at mines with large amp capacities, and these
mines are "more apt to have arcing faults and their settings
would be higher," and-they have combustibles close to the trolley
wire and associated switching gear. He also indicated that the
Martinka Mine uses trolley haulage on the longwalls with rather
large motors that pull the trolleys on the trolley wire and that
11
they're more apt to have a fault at Martinka" (Tr. 202).
Referring to the respondent's pre-trial discovery requests and
replies by t~e petitioner (exhibits R-2-A), Mr. Brown confirmed
that 11 of the 17 listed mines in his district have been issued
75 percent safeguard notices (Tr. 203-205).
Mr. Brown confirmed that he did not cite a violation of
section 75.1001-l(b), "because it was in compliance with this as
far as the 100 percent setting goes" (Tr. 207). In response to a
question as to whether MSHA is holding the respondent to a higher
standard of care under section 75.1001, by requiring a safeguard
setting of 75 percent, Mr. Brown responded "I guess you can see
it as that if that 9 s the way you want to look at it. I view it
as a violation of a safeguard" (Tr. 208). The parties stipulated
that at a 100 percent setting, the mine was within the "plus or
minus 15 percentgu language found in section 75.1001-l(b) (Tr.
217). Mr. Brown confirmed that the difference between the
75 percent safeguard requirement and section 75.1001-l(b), is the
percentages (Tr. 218).
Mr. Brown confirmed that he based his low negligence finding
on the fact that the respondent had performed the load drop test,
and he did not believe that there was any intent to place the
setting beyond 75 percent. He believed that the violation was an
oversight resulting from driving and advancing so far and that
"it just slipped by them" and "they were trying to do a good job"
(Tr. 219).

965

on re-direct, and after further review of the listing of
mines with and without safeguard notices (exhibits R-2-A),
Mr. Brown stated that 23 of the mines listed do not have
safeguard notices, and that two do (Tr. 225-226).
MSHA Inspector Edwin w. Fetty testified that he is an
electrical inspector, has worked for MSHA for 16 years, and has
25 years of mining experience. He has also attended the MSHA
mine academy and periodically assists in electrical retraining
and conducting mine hoisting classes. He is familiar with the
subject mine and was initially assigned there to conduct
electrical inspections when he was hired as an inspector. Based
on a review of his files, he confirmed that he conducted an
electrical spot inspection at the mine on November 14, 1983, and
issued a section 104(a) Citation No. 2258188 at 11:00 a.m., after
conducting a voltage drop test at the diagonal track haulage
switch in the 025 section. He also issued safeguard Notice
No. 2258189 at 1:00 p.m. that same day (exhibit P-10) (Tr.
227-231).
Mr. Fetty stated that he ... iss\led the citation on November 14,
1983, after finding that a device on a 500 KW rectifier was set
at approximately 2,800 amps, which was 100 percent in excess of
the 1,700 amps required by section 75.1000-1. Mr. Fetty
explained that during a previous electrical spot inspection on
September 22, 1983, he found the same condition in another area
of the mine and issued a section 104(a) citation. Upon his
return to the mine in November, 1983, and after finding the same
condition existing again, he decided that he was justified in
issuing the safeguard notice. He confirmed that due to problems
involving accidents and fatalities associated with trolley
circuits and mine fires, district manager Ron Keaton authorized
the issuance of safeguard notices, on a mine-by-mine basis,
requiring settings of 75 percent in lieu of 100 percent. The
specific conditions that warranted the issuance of the safeguard
were those stated in Citation No. 2258188, namely, the setting of
the breakers ui in the neighborhood of 100 percent above the
compliance of 75.1000-1 11 (Tr. 234).
Mr. Fetty stated that at the time he issued the citation and
safeguard he believed that an unplanned roof fall or a piece of
mining equipment contacting a trolley wire could cause an arcing
fault to occur and this could cause a mine fire, with resulting
smoke inhalation, asphyxiation, or burns.
In those mine areas
where wooden boards are used above the trolley or feeder wires to
keep rock and debris from falling down on the track haulage, a
fire would be likely (Tr. 234). Mr. Fetty explained the
requirements of the safeguard notice which he issued as follows
at (Tr. 235-236):
A. The way the safeguard is written it is required
that the automatic circuit interrupting device

966

installed on a 300 volt DC track haulage system shall
be provided with devices to detect short circuits which
are at least 75 percent of the minimum voltage short
circuit current available as determined by periodic
voltage current load drop test.

Q. Okay. In layman's terms, something that I'd
understand, what does' that require?
A. That requires that you go out and put the amount of
current on your DC trolley system and whatever your
value is at 100 percent what is available, reduce it to
75 percent of the available fault current.

Q.

Okay.

Reduce what to 75 percent?

A. The available fault current. Like if it was 1,000,
reduce it down 25 percent of 1,000.

Q.

And what purpose does that serve?

A. That would ba an increase --- a better safety
factor and should something happen it would detect and
cause the device to trip quicker.

Q.

Okay.

A.

The interrupting device on the trolley circuit.

Q.

Short circuit protection?

A.

Right.

What device?

Q. Nowv would you say the requirements of that
safeguard are readily understandable to a person
experienced on trolley systems?
A. Someone that has been given proper training at the
mine to go out and conduct and perform these required
voltage drop tests, yes, but an average run-of-the-mine
electrician 1 I would have to do it to say no.
Mr. Fetty confirmed that he has reviewed the citation issued
by Inspector Brown and he agreed that the condition cited

violated the requirements of the contested safeguard notice (Tr.
237). He further confirmed that there are approximately 28 to 30
mines in his district that have trolley systems, and he guessed
that nine or 10 of these mines were covered by a 75 percent
safeguard. He stated that three of the safeguards which he
issued were issued at different times, but were based on
basically the same condition, and he explained the reasons for
the safeguards which were issued at the Consolidation Coal

967

company's Loveridge No.. 22 Mine, the Robinson Run No. 95 Mine,
and an Island Creek Coal Company mine (Tr. 238-240).
Mr. Fetty stated that section 75.1001-l(b) requires the
testing of automatic circuit breaker devices at intervals not
exceeding 6 months, and also provides that the devices "be in
calibration to plus or minus 15 percent with the associated relay
to that circuit and if the authorized representative feels that
more tests are required" (Tr. 241). He did not believe that this
standard has any bearing on the safeguard, and he confirmed that
he issued the safeguard because it was justified in light of the
problems that he encountered (Tr. 241).
On cross-examination, Mr. Fetty explained the problems he
had encountered at the mine with respect to section 75.1001-1 and
the trolley short circuit protection. He stated that "after
issuing the violations and running through that pattern that I
had ran through and reading and making more in-depth studies and
seeing what the conditions was, I figured that the 75 percent,
which I had permission to issue the safeguard, shouldn't be
reduced.
It should be maintained g.t that setting" {Tr. 244).
Mr. Fetty stated tha"t there is no i'blanket coverage" for issuing
safeguards, but if anything is not spelled out under section
75.1403, an inspector must request permission from the district
manager to issue a safeguard under the "other safeguards"
language found in that section (Tr. 245). Mr. Fetty confirmed
that he was not familiar with all of the safeguard notice
guidelines set out in the National Gypsum case, but indicated
that prior to that decision, he encountered compliance problems
at the mine with respect to sections 75.1001, 75.516, and
energized trolley wires contacting wooden materials. Although
these problems did occur at other mines, they were more frequent
at the Martinka Mine (Tr. 248).

Mro Fetty confirmed that based on his review of MSHA
accident and fire reports concerning problems with trolley wires
he believed that a way to prevent these occurrences at the
subject mine would be to reduce the circuit protection from
100 percent to 75 percent, and even though accidents or fires may
not have occurred at the mine, he believed that the safeguard was
a preventive measure to preclude those events at the mine
(Tro 25l)o He believed that he was justified in issuing the
safeguard to gain a higher margin of safety by lowering the
circuit protection device by 25 percent and establishing a 75
percent requirement (Tr. 253).
Mr. Fetty stated that the 75 percent short circuit
protection setting was established from information he obtained
through district manager Keaton, and seminar materials and
information which he (Fetty) obtained. Mr. Fetty "guessed" that
the value setting of 75 percent was established by Mr. Keaton and
"whomever made the request to have the permission to issue the

968

safeguard on a mine by mine basis" {Tr. 256). Mr. Fetty
confirmed that those mines which do not have the 75 percent
safeguard must comply with sections 75.1001 and make the tests
mandated by section 75.1001-l{b) (Tr. 259). He also confirmed
that the respondent "learned to live with the 75 percent"
safeguard with additional feeder and ground wire, and he has
inspected other mines where the available fault current is
maintained at 50 percent (Tr. 265). He further explained the
establishment of a 75 percent value as follows (Tr. 266):
A. Because the people in our meetings, my supervisor,
other people, prudent engineers, which I'm not, I'm not
an engineer, they felt that this safety factor of
25 percent would greatly be in aid and assistance to
the health and safety of the miners and to prevent
fires in the coal mines and that's why they came up and
went with the 75 percent.
Mr. Fetty confirmed that section 75.1001 relates to the
circuit device trip setting ma·rgin of plus or minus 15 percent,
and that mines without the 75 percent safeguard must comply with
this section. He sti1i believes that the safeguard which has
been in effect for 7 years is still valid because the conditions
that prompted him to issue it are still occurring at the mine
(Tr. 269, 271-272). He further confirmed that there have been 14
violations of section 75.1001, issued at the mine since 1985, and
while he did not know the details, he indicated that they would
all pertain to trolley circuit short circuit and overcurrent for
various reasons (Tr. 273-274). He stated that these violations
could also have been issued under the safeguard notice if the
circuit setting was in excess of 100 percent and not in
compliance with the 75 percent requirement (Tr. 278).
In response to further questions, Mr. Fetty confirmed that
he issued the safeguard notice in question as "a preventative
measureuin as well as the previously stated mine conditions and
problems which he had encountered, and the information and
studies pertaining to trolley wire fires (Tr. 276-77, 281).
Respondent's Testimony and Evidence
John R. Cooper testified that he has been employed with the
respondent for over 15 years, and has served at the Martinka Mine
for over 2 years as the general maintenance superintendent. His
duties include the maintenance of all mine equipment and support
systems for the mine, ventilation plans, the DC track trolley
system, and the safety of all equipment and mine personnel. He
is a magna cum laude graduate of the Ohio University, with a
Bachelor of science degree in electrical engineering, and his
prior experience includes 3 years as an associate professor of
electrical engineering at the Decry Institute of Technology in
Columbus (Tr. 286).

969

Mr. Cooper stated that he reviewed the citation issued by
Mr. Brown and discussed it with him briefly after it was issued.
He informed Mr. Brown of his belief that the violation was not
"S&S" because the actual rectifier setting was below the
available short circuit currents, and if a short circuit were to
develop any place on the line, the overcurrent devices would
recognize the fault condition and trip the circuit breaker offline, and there would be no safety concern whatsoever. Since
there was no possibility or probability of any unsafe condition
or injury, Mr. Cooper did not believe that the "S&S" finding was
justified (Tr. 287).
Mr. Cooper stated that he did not discuss his belief that
the condition cited was not a violation under the 75 percent
safeguard notice with Mr. Brown, but that he always had a
question about it because it was "something new to me . . . that
I had inherited here at Martinka since I was transferred over"
(Tr. 288). He explained that in his prior 14 years experience at
the Meigs Division, no safeguards of the type issued by Mr. Brown
ever pertained to the DC track trolley system {Tr. 288).
Mr. Cooper did not believe that the safeguard was valid, and he
explained his reasons_ for this conclusion as follows at {Tr.
289-290):
A. Well, there are many stipulations I understand that
should be addressed or be satisfied before a safeguard
is issued. I'm not fully familiar with all the legal
stipulations of that but a lot of them have to do with
being a mine specific type requirement which I was
never clear on why that was --- this was a mine
specific type situation. I really wasn't clear on
where this 75 percent limitation was arbitrarily set
and where that came from. I was never familiar with
any policy memorandum issued from any of the MSHA
districts or headquarters or division offices saying
that this is something that should be done or what the
guidelines were for issuing it. So I had a lot of
questions really that were never answered why we had
this safeguard saying that we could only set our
protection to 75 percent of the indicated value.
Qo
Did you ever try and find out from any of the MSHA
people why the safeguard was issued?

Ao

Not to any great length.

I mean, was that just because there wasn't a
violation issued in connection with the safeguard or
what was the reasoning?

Q.

A. Well, the violation that was issued at the time,
the one that we're discussing here, I believe is the

970

first time that this was issued under a safeguard
condition and not a 75.1001.
Q. When you were a general maintenance superintendent
at Martinka?

A. That's correct. And so when this came up, that's
when I started having' the questions on where did this
come from and why did we have it, what are we
accomplishing by looking under the safeguard as opposed
to what is set forth with that 75.1001.
Mr. Cooper explained the operation of the DC trolley haulage
system and he confirmed that it is operated by 11 300 volts DC,
being conducted down a bare trolley wire conductor," and that the
"power is picked off by a sliding carb or shoe arrangement" (Tr.
291). The system is an underground mine railroad with large high
force power equipment which moves on rails and smaller personnel
carriers with lower horsepower requirements (Tr. 290). He
sketched out the system and stated that "the whole trick of the
system is keeping it properly protected so that if there's a
fault on the line, or short circuit, that the protection devices
in the rectifier will recognize that and open up under a fault
condition but yet will still allow you to have the proper amount
of power to operate these large horsepower pieces of equipment in
the mine" (Tr. 292).
Mr. Cooper explained the electrical track system and he
stressed the concern with protecting the system or limiting the
current under a fault condition, and the importance of knowing
the resistance of each feedline on the system and the available
short circuit current that will flow so that the trip devices can
be set accordinglyo He confirmed that circuit breakers are
located at every rectifier in the mine, and he explained how they
functionedo He explained that a bolted fault could occur if
there were a roof fault which took the trolley wire down onto the
rail, or a jackknifed piece of equipment into the wire could also
be touching the rail and creating a short circuit (Tr. 296).
Mro Cooper explained how a load drop test is conducted in
order to nset the thumb wheels on the rectifier" with the
appropriate overcurrent amps setting (Tr. 296-299). Referring to
the load drop tests conducted within a month prior to the
issuance of the citation by Mr. Brown, Mr. Cooper stated that the
load drop measured by the respondent was 3,779 amps, and the
rectifier was set at 2,834 amps. Mr. Brown's test showed a short
circuit of 2,965 amps, and a 75 percent setting would be
2,224 amps. Since Mr. Brown's test indicated an available fault
current of 2,965 amps, and since the respondent's system was set
on 2,834 amps, Mr. Cooper concluded that the mine setting was
under the available short circuit current, and that any bolted
fault would have been recognized and the relay would have tripped

971

"as soon as we passed the 2,834" (Tr. 300). He confirmed that
certain factors could ~ff ect a load drop test by changes which
occur to the resistance of the system, and the resistance could
be affected by atmospheric conditions, the mechanical integrity
of the "fish plates" used to join the rails together, and the
electrical connections in these devices (Tr. 302).
Mr. Cooper stated that during his years at the Meigs
Division, his standard practice and instructions to the
electrical department was to set the overcurrent protection at
15 percent below the indicated short circuit current values, and
that this was accepted by the local mine inspectors. This
instruction was in compliance with section 75.1001, and although
the standard allowed a plus or minus of 15 percent of indicated
value, his policy was to set the trip protection devices at the
lower side to insure a margin of safety in the event of any
loosened connections or if the system resistance increased (Tr.
304). He explained the computation for the trip device setting
made by the respondent, and he concluded that under the "worse
case scenario," at the setting of 2,834, which was in the middle
of the allowable setting under section 75.1001-l(b), the circuit
device would have tripped before reaching the 2,965 setting
established by Mr. Brown's test (Tr. 305).
Mr. Cooper was of the opinion that the safeguard notice in
question is not valid because section 75.1001-l{b) establishes
the range of acceptable rectifier tripping settings for
overcurrent protection, and even without a safeguard, the thumb
wheel rectifier settings must comply with this standard. He did
not believe that there was any need for any additional 75 percent
setting and stated that "I don't know why 75 percent is some
magical number or where it came from" (Tr. 306). He confirmed
that the mandatory standard section in question provides for load
drop tests every 6 months to measure the system resistance, and
this is the only way to validly establish this. He confirmed
that he conducts such tests on a more frequent basis, and the
trip relay is set to trip within plus or minus 15 percent of the
indicated load drop value. He believed that the mine was in
compliance with section 75.1001-l(b) because the rectifier
settings were essentially at the mid-point of the regulatory
range, and it would have tripped at the same level. He did not
believe that any injury would have occurred because the rectifier
trip setting was at 2,834 amps (Tr. 306-309).
Mr. Cooper confirmed that he was unaware of any injury or
illness to any miner attributable to the Martinka Mine trolley
system, or any reportable mine fire associated with the system
short circuit protection (Tr. 309). The cited condition was
abated "by setting our thumb wheeling setting to the 75 percent
setting of 2,965 amperes, which was the 2,224 • . . it was
immediately abated by reducing our trip current setting," which
then complied with the 75 percent safeguard. In his opinion, the

972

mine was already in compliance with section 75.1001-l{b)
310).

{Tr.

On cross-examination, Mr. Cooper confirmed that although
other safeguards were issued at the Meigs Mines, none of them
pertained to the 75 percent short circuit protection setting for
the trolley system. He further confirmed that he was not working
at the Martinka Mine when the 1983 safeguard notice was issued,
and he did not observe the conditions which prompted Mr. Fetty to
issue it (Tr. 311). He explained that an "arcing fault" could
occur where there is no "dead metal on metal contact" and current
is jumping across an air gap, creating a spark or an arc. Such
an event could occur on the trolley system by poor connections,
or by damaged or open "knifeblades," but he has seen very few
actual arcing faults. He confirmed that the trolley wire hangers
have faulted and grounded and could cause an arc for a brief
period of time. However, it is unlikely that such an arc would
occur at the roof because the wires are secured on insulators,
but it could occur on the hangers connected to metal arches and
to the rail (Tr. 312-313).
Mr. Cooper stated that his "worse case scenarion testimony
pertained to voltage faults, and not arcing faults, and that it
is difficult to measure or simulate arcing faults.
He confirmed
that wood is used for timbering and cribbing, but that the mine
roof is not generally beamed with wooden posts or timbers (Tr.
314)
0

In response to further questions, Mr. Cooper stated that the
"overcurrent protection 11 referred to in section 75.1001, in this
case is the relay incorporated inside the rectifier and it senses
the current that is being pulled from the rectifier at all times.
After making a load drop test, an inspector would then take
75 percent of that result to establish the required tripping
setting pursuant to the safeguard notice.
In the absence of the
safeguard, the setting could be plus or minus the results of the
load drop test formula (Tr. 315-317).
Mr. Cooper stated that the "testing language" found in
section 75.1001-l(b), specifically the phrase "calibration of
such devices shall include adjustments of all associated relays
to plus or minus 15 percent" is intended to refer to the setting
of the rectifier trip device.
If this phrase were interpreted to
apply only to the calibration of the testing device, there would
be no restrictions as to settings of the rectifier, in the
absence of a safeguard. Since section 75.1001, makes no
reference to any required specific setting, he has always
understood section 75.1001-1 to require a setting of plus or
minus 15 percent of the indicated value, namely, the load drop
results. He agreed that subsection (a) of section 75.1001-1,
only requires circuit interrupting devices, and does not mention
setting percentages or how the devices are to be tested or set,

973

and that subsection (b) establishes the calibration frequency and
the degree to which the circuit interrupting devices will be set
or activated (Tr. 320).
MSHA's Arguments
MSHA asserts that the plain wording of section 314(b) of the
Act evidences Congress' intent that MSHA inspectors have broad
authority to issue safeguards relative to the transportation of
men and materials. MSHA points out that the instant case does
not involve a "mine-by-mine" criteria-based safeguard such as
those provided for in section 75.1403-2 through 75.1403-11, and
that the safeguard issued by Inspector Fetty is based on the
"other safeguards may be required" language found in section
75.1403-l(a). MSHA maintains that the only specific limitation
placed by Congress on the "other safeguards" language found in
section 314(b) is that they address hazards relating to the
transportation of men and materials, and that an inspector's use
of such safeguards are not restricted to only those transportation hazards which are mine-unique--i.e., hazards which
generally do not exis.,ts at other mines.
MSHA takes the position that Judge Weisberger's decision in
Secretary of Labor v. Rochester & Pittsburgh Coal Co., 11 FMSHRC
2007 (October 1989), invalidating a safeguard notice because it
was not mine specific and not promulgated pursuant to the
rulemaking provisions found in section 101 of the Act is
incorrect.
In support of this conclusion, MSHA argues that
section 314(b) does not require MSHA to engage in notice and
comment rulemaking before issuing a safeguard of general
applicability.
By choosing not to place safeguards under
section 101 rulemaking, and allowing an individual inspector to
issue safeguards on a mine-by-mine basis, MSHA concludes that
Congress made a deliberate choice in permitting a more informal,
and flexible approach for identifying and remedying mine
transportation hazards. MSHA further concludes that to hold that
safeguards which address specific hazards at a mine are invalid
solely because similar hazards exist at other mines would be to
preclude an inspector from issuing safeguards designed to remedy
transportation hazards, no matter how obvious or dangerous the
hazard, and regardless of the lack of care exercised by the
operator 1 if that hazard exists at other mines. MSHA believes
that had Congress intended this result, it would not have written
section 314(b) as broadly as it did and it would have placed the
11
other safeguards" provision where Judge Weisberger did in
Rochester & Pittsburgh Coal Co., i.e., in section 101.
Citing the Commission's decision in Southern Ohio Coal Co.,
7 FMSHRC 509, 512 (April 1985), MSHA asserts that at most, a
safeguard need only identify the nature of the hazard at which it
is directed and the conduct required of the operator to remedy
the hazard.
In the instant case, MSHA believes that the

974

safeguard notice issued by Inspector Fetty meets these
requirements in that it states that the hazard presented concerns
arcing faults which will not deenergize the circuit, and that the
conduct required of the operator is that all circuit interrupting
devices be set at 75% of the bolted short circuit current
available. MSHA further points out that both Inspector Fetty and
Brown testified that the language found in the safeguard notice
would be readily understandable to a trained electrician who is
knowledgeable of trolley systems.
MSHA concludes that the conditions cited by Inspector Brown
clearly fit within even the narrowest construction of the
language of the safeguard issued by Inspector Fetty. MSHA points
out that Mr. Brown cited the respondent because the short circuit
protection for the trolley system outby the #30 block of the
18 Left Section was not in compliance with the 75% safeguard, and
he obviously felt that the safeguard applied to this situation.
Further, Mr. Fetty reviewed Mr. Brown's citation and agreed that
the conditions cited violated the requirements of the safeguard.
Under these circumstances, MSHA concludes that the safeguard was
validly issued and in force when Mr. Brown issued his citation,
and that they were both valid.
MSHA asserts that Mr. Fetty's safeguard addresses mine
hazards specific to the Martinka No. 1 Mine and is valid even
under the strict test set forth in Rochester & Pittsburgh Coal
Co., supra. In support of this conclusion, MSHA points to the
testimony of Mr. Fetty concerning the conditions which he
observed at the mine when he issued the safeguard. MSHA asserts
that these conditions include combustible head coal and wooden
structures above the trolley wires, with little or no clearance
between the trolley wire and mine roof (Tr. 234, 280), grounded
metal support arches which are in close proximity to both the
trolley wire and the combustible materials over the trolley wire,
and combustible materials and metal arches contacting the trolley
wire at times due to roof falls, sagging roof, and accidents
involving the track haulage equipment (Tr. 255, 276). Mr. Fetty
also noted "an ongoing problem" regarding the trolley system
short circuit protection (Tr. 231-232, 243, 276).
MSHA further asserts that Mr. Fetty testified that the
Martinka No. 1 Mine is the only mine in his area that has the
strata and roof conditions it has (Tr. 280), including head coal
and wooden structures in close proximity above the trolley wire
(Tr. 280-281). MSHA also makes reference to Mr. Petty's
testimony concerning "unique repeated and frequent violations and
other problems" with the trolley system which he does not have at
other mines, the fact that he issued the safeguard in part
because of a. violation concerning a "burnt up line switch",
(Tr. 248, 233, 276), and his statement that he did not find this
same combination of conditions in any other mine he had inspected
(Tr. 233, 248, 276-277).

975

MSHA maintains that the disputed safeguard does not "impose
general requirements of a variety well-suited to all or nearly
all coal mines ..• ", and that the evidence and testimony in this
case clearly shows that only a small percentage of coal mines in
MSHA District 3 have a safeguard similar to the one issued by
Inspector Fetty. MSHA points out that only 11 of the
approximately 130-140 mines in the district are under a safeguard
notice similar to the one issued by Mr. Fetty, and that the
respondent's own witness (Cooper) admitted that there are "many,
man mines in this country that do not operate under a safeguard
of this type" (Tr. 318-319). MSHA also points out that only 11
of the approximately 28 to 30 mines in the district which utilize
trolley wire systems have a safeguard which was issued on a mineby-mine basis due to specific conditions noted at those mines
(Tr. 177-178, 201, 238-240). MSHA points to the fact that these
safeguards were issued over a large period of time, beginning in
1983, and ending in 1990, and that the wide disparity in dates
tends to indicate that each safeguard was issued due to
particular circumstances arising in each mine. Finally, based on
these numbers, MSHA concludes that it seems clear that no MSHA
district wide policy exists ~equiring such a safeguard at all
mines or even at mines with trolley systems.
MSHA maintains that the contested safeguard is not preempted
by mandatory safety standard section 75.1001-l(b), because the
safeguard and the standard refer to different concerns. MSHA
asserts that the safeguard requires that the short circuit
protection on the trolley system be set at 75% of the maximum
short circuit current available, while the regulation requires
that the "calibration of such devices shall include adjustment of
all associated relays to + - 15 percent of the indicated value".
In short, MSHA concludes that the safeguard refers to the value
at which the thumb wheel on the rectifiers must be set (or the
indicated value), and that section 75.1001-1, refers to the
calibration of the rectifier or the amount of mechanical error
allowed at that setting. Since the calibration refers to the
amount of error present in the setting mechanism of the rectifier
and has no affect on what setting is required by the safeguard,
MSHA concludes that the regulation does not preempt the
safeguard.
MSHA concludes that the uncontradicted testimony of
Inspector Brown establishes that the respondent violated the
requirements of the safeguard when it allowed the short circuit
protection in question to be set at 100 percent of the maximum
short circuit current available. MSHA further concludes that the
violation was significant and substantial within the guidelines
established in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
In support of this conclusion, MSHA asserts that a discrete
safety hazard was contributed to by the violation in that the
failure to properly set the short circuit protection presented a
fire hazard (Tr. 169), and that the uncontradicted testimony of

976

Inspectors Brown and Fetty show that a reasonable likelihood
existed that a fire would occur at the Martinka No. 1 Mine in the
course of normal mining operations if this violation was left
uncorrected, and that this fire would result in reasonably
serious injuries to at least one miner.
MSHA points out that Inspector Brown testified that an
arcing fault was likely to' occur along the trolley wire between
the wire, the metal roof support arches, and the metal wire
hangers in close proximity near the roof of the mine (Tr. 57, 58,
167 1 169, 173-174), and that such an arcing fault would not
deenergize the circuit with the rectifiers set at 100% (Tr. 172,
175). MSHA further points out that Inspectors Brown and Fetty
testified that flame or arc from the fault would likely ignite
the combustible materials including wood and head coal on the
roof of the Martinka No. 1 Mine, because the combustible
materials are in close proximity to, and at times even touching,
the trolley wire (Tr. 50-51, 57-58, 167, 169, 175, 202, 234,
280). Both inspectors also testified that the mine fire
resulting from this ignition is reasonably likely to result in
serious injuries, including burns and smoke inhalation, to at
least one miner (Tr. 58, 168-169, 234; Exhibit P-9).
Respondent's Arguments
During the course of the hearing, the respondent argued that
existing mandatory safety standard section 75.1001, adequately
covers the short circuit hazard situation which prompted
Mr. Fetty to issue the disputed 1983 safeguard notice. The
respondent took the position that since an existing mandatory
standard has already been duly promulgated after rule-making
pursuant to the Act, MSHA is without authority to refine or
modify the existing standard by issuing a safeguard. Respondent
maintained that by requiring it to adhere to the safeguard, MSHA
is attempting to hold it to a higher standard than that required
by the existing applicable standard.
Respondent asserted that in
order to hold it to a higher standard of care and compliance than
that required by the existing standard, MSHA must do so through
rulemaking, rather than simply issuing a safeguard that
effectively imposes a greater burden than that required by the
existing standard (Tr. 208-212).
The respondent further argued that since it was in
compliance with the existing standard as duly promulgated by
MSHA's rulemakers, MSHA should be preempted from enforcing the
safeguard issued by Mr. Fetty. Respondent argued that it has
been adversely affected by the safeguard because it is forced to
deal with two different requirements for maintaining short
circuit protection on its track trolley system. The respondent
pointed out that its rectifier thumb wheel settings were
correctly fixed pursuant to section 75.1001, since the settings
fell within the plus or minus 15 percent requirement found in

977

section 75.1001-l(b), and that its track equipment would not
"drop out" at this higher short circuit protection level.
However, by lowering the level to 75% pursuant to the safeguard,
the respondent pointed out that the equipment would "drop out"
(Tr. 264-265).
In its post-hearing brief, the respondent argues that the
safeguard is invalid because section 75.1403 does not
specifically provide for short circuit protection on the cited DC
trolley system; that section 75.1000, which is found in Subpart K
of MSHA's mandatory regulatory standards, specifically
incorporates "Trolley Wires and Trolley Feeder Wires"; that the
safeguard is preempted by section 75.1001-l(b), which
specifically addresses trolley wire overcurrent protection; and
that the safeguard does to meet the guidelines discussed by chief
Judge Merlin in his decision of March 29, 1982, in United States
Steel Mining Co., Inc. 4 FMSHRC 526, 530 {March 1982).
The respondent asserts that it is undisputed that on the day
Mr. Brown issued his citation, the mine's previous load drop test
was in compliance with the plus or minus fifteen percent of the
indicated value according to section 75.1001-l(b), and that the
trip setting was set lower than the fault current, and set safely
(Tr. 165, 308). The respondent points out that although
Inspector Brown agreed that the respondent was in compliance with
section 75.1001, he nonetheless believed that the respondent was
not in compliance with the 75 percent safeguard, and issued the
citation for this reason (Tr. 165). The respondent asserts that
according to Mr. Brown's interpretation, sections 75.1001 and
75.1001-l(b), refer to "the calibration of the interrupting
device", but that in the event the short circuit is over 100
percent Mr. Brown would cite a violation of section 75.1001-l(b),
rather than the safeguard. Respondent points out that although
Mro Brown is an electrical inspector he does not hold an
electrical engineering degree and interprets the standard on the
basis of his MSHA training"
The respondent further points out that its electrical
engineering expert Cooper is a magna cum laude graduate in
electrical engineering 1 has taught this subject, and has 15 years
of experience in electrical engineering. Mr. Cooper was of the
opinion that section 75.1001-l(b), specifically addresses the DC
trolley system short circuit protection, and he confirmed that
during his 15-year tenure with the respondent it has been a
standard practice to set the overcurrent protection at minus 15
percent below the indicated short circuit current values in
compliance with section 75.1001-l(b). Mr. Cooper also testified
that section 75.1001-l(b), establishes the acceptable rectifier
tripping ranges for the coal mining industry. Under the
circumstances, he believed that the additional restriction
imposed by the arbitrary 75 percent safeguard is invalid and
preempted by section 75.1001-l(b).

978

Respondent maintains that MSHA has failed to establish that
the alleged violation was significant and substantial in that
Inspectors Fetty and Brown, as corroborated by Mr. Cooper, both
testified that there were no reportable mine fires at the mine,
nor were there any injuries or accidents relating to any such
fires.
~espondent further argues that there is no substantive
evidence in this case to establish that the Martinka No. 1 Mine
has any mine-specific or peculiar hazards relating to the
transportation of men and materials, and that the alleged
conditions described by Inspector Fetty were not mine-specific to
the mine and were present in other mines. The respondent does
not dispute the fact that section 314(b) of the Act grants the
Secretary a unique authority to create what are in effect
mandatory safety standards on a mine-by-mine basis without
resorting to otherwise required rulemaking procedures. However,
in the instant case, respondent takes the position that the
conditions which MSHA claims justified the issuance of the
contested safeguard in question are specifically addressed by
mandatory safety stangard 75.1001 and§ 75.1001-l(b), and are not
mine specific. Respondent further argues that the safeguard is
of general application and was not issued to minimize specific
mine hazards connected with the transportation of men and
material and that the safeguard may not serve to hold it to a
higher standard than that required by section 75.1001-l{b).

Findings and Conclusions
30 C.F.R. § 75.1403 repeats section 314(b) of the Act and
provides as follows: "other safeguards adequate, in the judgment
of an authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and materials shall
be provided vu
0

Section 7501403-1 provides:
(a) Sections 75.1403-2 through 75.1403-11 set out the
criteria by which an authorized representative of the
Secretary will be guided in requiring other safeguards
on a mine-by-mine basis under section 75.1403. Other
safeguards may be required.
(b) The authorized representative of the Secretary
shall in writing advise the operator of a specific
safeguard which is required pursuant to section 75.1403
and shall fix a time in which the operator shall
provide and thereafter maintain such safeguard. If the
safeguard is not provided within the time fixed and if
it is not maintained thereafter, a notice shall be
issued to the operator pursuant to section 104 of the
Act.

979

(c) Nothing in the sections in the section 75.1403
series in this Subpart o precludes the issuance of a
withdrawal order because of imminent danger.
The Commission has examined the safeguard provisions found
in section 314(b) of the Act and 30 C.F.R. 75.1403, and has noted
with approval that the broad language of this provision
"manifests a legislative purpose to guard against all hazards
attendant upon haulage and transportation in coal mining". Jim
Walters Resources, Inc., 7 FMSHRC 493, 496 (April 1985).
Although the mandatory safety standards found in Title 30, Code
of Federal Regulations, normally are developed and promulgated in
accordance with section 101 of the Mine Act and the rule-making
provisions contained in the Administrative Procedure Act,
5 u.s.c. 551
., the Commission has observed that section
314(b) of the Act grants the Secretary extraordinary authority to
essentially create mandatory safety standards on a mine-by-mine
basis without resorting to the normal rule-making procedures, and
it has approved the issuance of safeguards without rule-making
for a particular mine, Southern Ohio Coal Co., 7 FMSHRC 509
(april 1985). However, the'coitunission went on to state as
follows at 7 FMSHRC 512:

* * * We believe that in order to effectuate its
purpose properly, the exercise of this unusually broad
grant of regulatory power must be bounded by a rule of
interpretation more restrained than that accorded
promulgated standards. Thus, we hold that a safeguard
notice must identify with specificity the nature of the
hazard at which it is directed and the conduct required
of the operator to remedy such hazard. We further hold
that in interpreting a safeguard a narrow construction
of the terms of the safeguard and its intended reach is
required"
, ~v Consolidation Coal Co.", 2 FMSHRC
202lv 2035 (July 1980) (ALJ)' Jim Walter Resources 1 1
FMSHRC 1317v 1327-28 (September 1979) (ALJ)" See also
Secretary's Brief to the commission at 11 n. 1.
("Accordingly, while the language of safeguard notices
should be
construed, the Secretary's issuance
authority must be interpreted broadly").
It seems clear to me from several Commission decisions that
adequately written safeguards are mandatory standards or
requirements which are enforceable on a mine-by-mine basis. See:
Southern Ohio Coal Company, 7 FMSHRC 509 (April 1985); U.S. steel
Mining Company, Inc., 4 FMSHRC 526, 529-530 (March 1982); Jim
Walter Resources, Inc., 6 FMSHRC 1815 (July 1984); Mathies Coal
Company, 4 FMSHRC 1111 (June 1982); Jim Walter Resources, Inc., 8
FMSHRC 220 (February 1986).
Several Commission Judges have invalidated citations and the
supporting safeguard notices on the ground that the safeguards

980

were of a general, rather than mine-specific, application. See:
Rochester & Pittsburgh Coal Co., 11 FMSHRC 2007 (October 1989)
(Judge Weisberger); Southern Ohio coal Company, 10 FMSHRC 1564
(November 1988) (Judge Weisberger); Beth Energy Mines, Inc.,
11 FMSHRC 942 (May 1989) (Judge Melick); Southern Ohio Coal
Company, 11 FMSHRC 1991 (October 1989) (Judge Maurer) ; Mettiki
Coal Corporation, 12 FMSHRC 92 (January 1990) (Judge Fauver);
u.s. Steel Mining company,' Inc., 4 FMSHRC 526 (March 1982) {Chief
Judge Merlin) • The "mine specific" issue in these cases is now
pending on appeal before the Commission for decision in the
October 1989 Rochester & Pittsburgh Coal Co., and Southern Ohio
Coal Company, decisions rendered by Judge Weisberger and Judge
Maurer.
In the case at hand, the respondent is charged with a
violation of section 75.1403, for failing to adhere to the
requirements of a safeguard notice issued by Inspector Fetty on
November 14, 1983. The safeguard states as follows:
The automatic circuit interrupting device installed on
the 300 volt DC trolley track haulage system between
the track haulage switch and spad station 20 + oo was
not set to deenergize the trolley system during arcing
fault. This mine has head coal incorporating
combustible material and the construction of steel roof
support structure.
All protecting circuit interrupting devices installed
on the 300 volt DC trolley haulage system shall be
provided with devices to detect short circuits which
are at least 75 percent of the minimum bolted short
circuit current available as determined by periodic
voltage current (load drop) test.
The safeguard in question required that the automatic
circuit interrupting devices installed on the mine 300 volt DC
trolley track haulage system to be provided with devices to
detect and interrupt short circuits which are at least 75 percent
of the minimum bolted short circuit current available as
determined by periodic voltage/current (load drop) tests.
Inspector Brown testified that he conducted a load drop test on
the cited trolley system circuit during the course of his
electrical inspection on May 1, 1990, and found that the fault
protection on one of the rectifier relays was set "nearly at 100
percent setting or just a little bit below 100 percent setting".
Since this circuit protection setting exceeded the 75%
requirement mandated by
Mr. Petty's previously issued safeguard notice, Mr. Brown issued
the citation •.
Mr. Fetty testified that as a result of accidents and
fatalities associated with mine fires on trolley circuits,
district manager Ronald Keaton authorized the issuance of

981

safeguards, on a mine-by-mine basis, requiring short circuit
protection settings at 75% of the settings required by
section 75.1001. Mr. Fetty confirmed that when he issued the
1983 safeguard he relied in part on certain information and
knowledge which he obtained at safety seminars and conferences
concerning trolley wire system accidents and fires which occurred
in mines in general. He believed that a way to prevent these
incidents at the Martinka Mine was to reduce the short circuit
protection requirements found in section 75.1001-1 to 75 percent
(Tr. 250, 254). He conceded that the reports of prior accidents
and fires which he had reviewed concerned incidents which had
taken place "country wide" in mines other than the Martinka Mine,
and he was not aware of any reportable mine fires at the Martinka
Mine (Tr. 254) .
Mr. Fetty confirmed that he also based the safeguard in part
on the "numerous problems at that mine" with respect to
section 75.1001-1 violations associated with short circuit
protection for the trolley service. He stated that during
electrical spot inspections which he conducted in September and
November, 1983, he fqund that certain rectifier short circuit
devices were set at approximately 100% above the settings
required by mandatory safety standard 30 C.F.R. 75.1001-1, and
after issuing two section 104(a) citations for these violations,
he concluded that he was justified in issuing the safeguard
requiring all future rectifier settings to be set at 75 percent.
When asked why he issued a safeguard when non-compliance was
already addressed by promulgated standard section 75.1001-1,
Mr. Fetty responded as follows (Tr. 266):
A.
Because the people in our meetings, my supervisor,
other people, prudent engineers, which I'm not, I'm not
an engineer 1 they felt that this safety factor of 25
percent would greatly be in aid and assistance to the
health and safety of the miners and to prevent fires in
the coal mines and that 1 s why they came up and went
with the 75 percent.
Mr. Fetty identified the prior violations of section
75.1001-1, as the specific "mine conditions" which prompted him
to issue the safeguard (Tr. 232-234). However, he conceded that
any continued non-compliance problems with respect to
section 75.1001-1, could have been addressed by issuing
section 104(d) {l) and (d) (2) citations and orders (Tr. 252).
In
my view, simply because an inspector finds repeated violations of
a mandatory safety standard does not ipso
justify or
warrant the issuance of a safeguard.
If this were the case, an
inspector could effectively amend any existing trolley wire
standard found in Subpart K of the regulations simply by issuing
a safeguard based on one or more prior violations of these
standards.

982

Mr. Fetty also believed that an unplanned roof fall or a
piece of mining equipment contacting a trolley wire were
additional "hazards" which could have occurred in the area where
he issued a citation at the same time the safeguard was issued
(Tr. 234). He believed that these conditions could result in a
mine fire and that the likely source of the fire would be the
head coal or wooden boards located above the trolley wire to keep
rock and other debris from' falling on the track haulage.
However, he indicated that these wooden head boards would only be
at "some locations" and not throughout the mine (Tr. 234).
Mr. Fetty also alluded to violations of other standards,
such as section 75.516, which prohibits energized trolley wire
contacting combustible wooden materials, as examples of other
"problems" he found at the mine at the time he issued the
safeguard. Although conceding that these "problems" occurred at
other mines, he believed that "they repeated and occurred more
frequently in those days at Martinka Mine more than they did
anywhere else", and he felt justified in issuing the safeguard
(Tr. 247-248; 253).
Mr. Fetty agreed~that roof falls, dislodged roof arches, and
DC trolley accidents have occurred at other mines, and he
conceded that he issued the safeguard as a preventive measure to
preclude such occurrences at the Martinka Mine (Tr. 249-251;
255). However, I find no credible evidence to establish the
existence of any roof falls, dislodged roof arches, or trolley
accidents affecting the transportation of men or equipment at the
Martinka Mine at the time the safeguard was issued.
Indeed, Mr.
Fetty confirmed that his prior knowledge of any accidents or
other such incidents pertained to mines other than the Martinka
Mine (Tr. 251).
Mro Fetty alluded to one non-reportable fire which he and
Inspector Brown found when a motorman caused some combustibles to
ignite. Mro Brown confirmed that the fire occurred two or three
years ago, well after the safeguard was issued by Mr. Fetty, and
that it was quickly extinguished and was not considered a
reportable fire (Tr. 169, 176, 192). Mr. Brown alluded to an
additional "hearsay fire" at the mine, but no evidence was
forthcoming to confirm or document this event.
Further, although
Mr. Brown indicated that he has observed 6 or 8 mine fires caused
by arcing faults in the past 20 years, only one occurred at the
Martinka Mine, and it was the non-reportable one which he and Mr.
Fetty found (Tr. 176). Mr. Brown also mentioned an unspecified
study which reported 22 accidents over a seven-year period which
resulted in 11 or 12 lost time injuries and fatalities, but he
confirmed that none of these incidents occurred at the Martinka
Mine (Tr. 169, 191).
Mr. Brown stated that MSHA's policy manual guidelines
authorize the issuance of a safeguard if an inspector "should

983

find they have a problem at that mine that specifically addresses
the conditions at the ·mine that have resulted or could result in
a lost time accident" (Tr. 195). Mr. Brown confirmed that the
safeguard in question came from an MSHA report which concluded
that arcing faults could occur and not open any circuit
interrupting devices {Tr. 172). However, the report was not
further identified or offered in evidence, and Mr. Brown
"guessed" that Mr. Fetty issued the safeguard after reviewing
"the study that was done on the arcing faults" (Tr. 200).
Respondent's maintenance superintendent Cooper, a magna cum
laude graduate electrical engineer, was of the opinion that the
safeguard issued by Mr. Fetty is invalid because section 75.1001l(b), properly and appropriately establishes a range of
acceptable rectifier settings for overcurrent protection on the
mine trolley system (Tr. 306). Mr. Cooper further testified that
during his 15 years of employment with the respondent he was not
aware of any reportable mine fires or injuries associated with
the short circuit protection on the trolley system (Tr. 309). He
confirmed that the trolley wires are supported by insulated belt
hangers suspended from metal 'hangers which are attached to metal
pipes anchored into the mine roof (Tr. 313). He also confirmed
that as a general practice wooden posts or timbers are not used
as beams to support the roof (Tr. 314).
Mr. Cooper further testified that the respondent's Meigs No.
31 and 2 mines, which are also in the same district as the
Martinka Mine, and which have underground trolley systems, have
never been subject to the kind of safeguard issue by Mr. Fetty
and that those mines are subject to the load drop test and short
circuit protection requirements found in section 75.1001-1
(Tr. 310-311).
I agree with the aforementioned decisions of the Commission
judges who concluded that a safeguard notice must be minespecific and based on hazardous conditions peculiar or unique to
the mine where it is issued and enforced. On the facts of this
case, and after careful review of Inspector Petty's testimony, I
cannot conclude that MSHA has established that the safeguard
issued by Mr. Fetty was based on any mine conditions or hazards
peculiar to the Martinka No. 1 Mine, or conditions that could not
have been addressed or remedied by reliance on other existing
standards. I am convinced that Mr. Fetty issued the safeguard as
a general preventive measure to address possible arcing faults
which may or may not occur, rather than to address any unique or
inherently hazardous mine conditions, and Mr. Fetty tacitly
conceded that this was the case.
It seems obvious to me that Mr. Fetty was also influenced by
the fact that the Martinka Mine had received citations or
violations of sections 75.1001-1, and section 75.516, the
standards applicable to trolley wire short circuit protection and

984

power wires contacting combustible materials, and he admitted
that this was the case when he identified these violations as the
specific "mine conditions 11 which prompted him to issue the
safeguard. However, as noted earlier, I do not believe that such
prior violations can justify the issuance of a safeguard. Those
particular standards address the hazardous conditions which
resulted in the issuance of the violations, and coupled with the
civil penalty assessments which followed, provided an adequate
enforcement tool for MSHA. In addition, as Mr. Fetty readily
conceded, an inspector may also resort to the use of
section 104(d) citations and orders in appropriate cases to deal
with a recidivist mine operator.
In addition to the existing requirements found in
sections 75.516, and 75.1001.1, I take note of the fact that
section 75.1003 requires the insulation and guarding of trolley
wires at certain mine locations, and that sections 75.1003-1 and
75.1003-2, require certain precautions and procedures to prevent
equipment being moved along haulageways from contacting trolley
wires, and to insure that proper short circuit protection exists
on the associated aut-0matic circuit interrupting devices.
I also
take note of the fact that MSHA's Section 75.1003 Policy Manual
guidelines require trolley wires to be guarded with wood,
plastic, or other nonductive material.
Mandatory safety standard 30 C.F.R. § 75.1001 states as
follows:
"Trolley wires and trolley feeder wires shall be
provided with overcurrent protection".
Mandatory safety standard 30 C.F.R. § 75.1001-1, states in
relevant part as follows:
(a) Automatic circuit interrupting devices that will
deenergize the affected circuit upon occurrence of a
short circuit at any point in the system will meet the
requirements of § 75.1001.
(b) Automatic circuit interrupting devices described
in paragraph (a) of this section shall be tested and
calibrated at intervals not to exceed six months.
Testing of such devices shall include passing the
necessary amount of electric current through the device
to cause activation. Calibration of such devices shall
include adjustment of all associated relays to ±15
percent of the indicated value. An authorized
representative of the Secretary may require additional
testing or calibration of these devices.
I find merit in the respondent's contention that existing
section 75.1001-1, adequately covers the short circuit
protection requirements for the mine trolley wire system. Based
on ttte testimony of Inspectors Brown and Fetty, and the credible

mand~tory

985

testimony of respondent's witness Cooper, I conclude and find
that MSHA's contention that section 75.1001-1 and the safeguard
issued by Mr. Fetty address different concerns is not well taken
and it is rejected. Based on the evidence and testimony of the
witnesses, I conclude that section 75.1001-1, addresses short
circuit protection for trolley wires, and copies of some of the
prior citations issued for violations of this section
specifically refer to improper "thumbwheel" settings for the
cited trolley wire circuit interrupting devices (Exhibit R-2B).
The parties stipulated that at the 100 percent short circuit
protection setting found by Inspector Brown, the respondent was
in compliance with the plus or minus 15 percent requirement found
in section 75.1001-l(b), but that it was not in compliance with
the 75 percent safeguard issued by Inspector Fetty (Tr. 217).
Mr. Fetty confirmed that those mines which do not have the
safeguard are required to comply with sections 75.1001 and
75.1001-1, and he indicated that as long as a mine is in
compliance with these standards there is no reason for any
safeguard (Tr. 259, 2fa7).
MSHA's section 75.1001-1 Program Policy Manual guidelines,
July 1, 1988, at page 88 contain the following statement:
The setting of an automatic circuit-interrupting device
should not exceed 75 percent of the minimum available
short-circuit current in the protected circuit to
compensate for inaccuracies in the setting and the
voltage drop across arcing faults. This safety factor
is consistent with accepted engineering practice;
however, in determining whether a violation of this
Section exists, the safety factor shall not be used.
MSHA's section 75.1001-1, policy guidelines language with
respect to the 75 percent setting of an automatic circuitinterrupting device is practically identical to the language
found in Mr. Fetty's safeguard notice. Although the statement
goes on to state that the 75 percent setting is a safety factor
consistent with accepted engineering practice, I find the
admonition that such a safety factor should not be used in
determining whether a violation exists to be inconsistent, and it
remains unexplained.
In view of the foregoing findings and conclusions, I
conclude and find that the safeguard notice issued by Mr. Fetty
was not based on any mine specific conditions or hazards, and
that any transportation hazards associated with the trolley wires
which may have existed in the mine were adequately covered by
existing mandatory safety standard sections 75.1001 and 75.10011. Accordingly, I further conclude and find that the safeguard
is not valid and IT IS VACATED. Since I have concluded that the
safeguard is invalid, the citation issued by Inspector Brown,

986

which is based on the safeguard, cannot stand, and it too IS
VACATED.
ORDER
on the basis of the foregoing findings and conclusions, IT
IS ORDERED THAT:
1.

Section 104(a) "S&S Citation No. 3118460,
March 14, 1990, citing an alleged violation
of 30 C.F.R. § 75.508 IS VACATED.

2.

Section 75.1403 safeguard Notice No. 2258189,
issued on November 14, 1983, IS VACATED.

3.

Section 104{a) "S&S" Citation No. 3312067,
May 1, 1990, citing an alleged violation of
30 C.F.R. § 75.1403, IS VACATED.

4.

MSHA's proposed civil penalty assessments for
the citations which have been vacated ARE
DISMISSED.

Distribution:
Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of
Labor, Ballston Towers #3, 4015 Wilson Blvd., Suite 516,
Arlington, VA 22203 {Certified Mail)
Rebecca Jo Zuleski, Esq., Furbee, Amos, Webb & Critchfield,
Suite 4, 5000 Hampton Center 1 Morgantown, WV 26505
(Certified
Mail)
/ml

987

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

JUN 21199\

.
.
:

HOMESTAKE MINING COMPANY,
Contestant
v.

CONTEST PROCEEDING
Docket No. CENT 90-108-RM
Citation No. 3632346; 4/19/90

:

.
.

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

Mine I.D. 39-00055
Homestake Lead Mine

DECISION
Before:

Judge Lasher

Respondent, MSHA seeks dismissal of this matter, and on
May 30, 1991, has withdrawn its answer opposing the Notice of
Contest in this matter. In so doing, it has specifically vacated
the subject Citation, No. 3632346, by virtue of a "SUbsequent
Action" dated May 30, 1991, stating:
This citation is vacated at the direction of the
Office of the Solicitor with the position that
future enforcement of this standard at this mine
site is not waived and enforcement action will
continue, if necessary, after appropriate MSHA
policy is established concerning the application of mandatory safety standard, 30 C.F.Ra
§ 570110020 l
In both its 11 Notice of Vacation and Motion to Withdraw and
Dismiss 11 filed by Fax on May 30, 1991, and its "Response in Opposition to Contestant's Motion for Declaratory Relief or in the
.A.lternative to Dismiss with Prejudiceu" the Secretary of Labor
(MSHA) indicates that its proposed withdrawal of prosecution of
the citation does not constitute in any way a waiver of future
enforcement actions (applications) under the subject safety
standard at the subject mine site or any other mine site.

l

Section 57.11002 provides:

Handrails and toeboards.
Crossovers, elevated walkways, elevated ramps,
and stairways shall be of substantial construction, provided with handrails, and maintained in
good condition. Where necessary, toeboards shall
be provided.
988

Within the 24-hour period after the Secretary issued its
"Subsequent Action" and moved to withdraw its answer in this proceeding, Contestant Homestake Mining Company (Homestake) filed
its "Motion for Declaratory Relief, etc." 2 It is apparent that
when this latter motion was filed by Contestant, the exact terms
of the MSHA "Subsequent Action" document were not known to it,
nor was some of the thinking later reflected in MSHA's "Response
in Opposition to Contestant's Motion for Declaratory Relief"
within its knowledge. The question remains for resolution, however, whether MSHA's motion to withdraw its answer under Commission Procedural Rule 11 (29 C.F.R. 2700.11) or whether Contestant's responsive motion for declaratory relief should be granted.
Contestant apparently seeks at this juncture to resolve
whether it is vulnerable to future 30 C.F.R. § 57.11002 citations
rather than acquiesce in MSHA's abandonment of its prosecution of
the subject citation. 3 We note these facts. There is no allegation by Contestant, or other indication, that it took measures
to abate the condition cited, or that MSHA issued any withdrawal
order, including a Section 104 Cb) "failure to abate" order in
this matter. 4 There is no indication .that Contestant Homestake
is presently charged with a violation of 30 C.F.R. § 11002 in
connection with the pertinent area of the mine referred to in
Citation No. 3632346.

2

This motion again makes various unilateral assertions of
fact which would be in litigation should the matter proceed
to hearing on the substantive merits of the issues raised by
the violation charged in the Citation. Contestant's prior
motion to dismiss and/or for summary decision was denied by
my Order dated May 23u 1991 0 and to the extent that such
ssues are raised again in its present motion for Declaratory Rel!ef u such motion is denied.

3

It alleges~ "None of the elevated walkways, located around
RBC 0 s (rotating biological concentrators) 0 at the water
treatment plant were provided with handrails to prevent employees from falling to surfaces below. Walkway measurements varied from five feet to seven feet wide and the
height varied from 20 inches to 43 inches .. "
In its 9'Response in Opposition to Contestant's Motion "MSHA
points out that "No undue abatement expense has occurred
here since the abatement time has been extended for this
citation."

989

Preliminarily, it is noted that the action of the Secretary
in vacating the citation does not automatically moot the substantive issues extant in the contest proceeding by depriving the
Commission of jurisdiction. Once a mine operator contests a citation before the Commission, the Secretary cannot by vacating
the citation itself deprive the Commission of jurisdiction.
Climax Molybdenum Company v. Secretary of Labor and Oil, Chemical
and Atomic Workers' International Union, 2 FMSHRC 2748 (October
1980). Motions by MSHA to vacate citations are granted only
where adequate reasons to do so are present. Kocher Coal Co.,
4 FMSHRC 2123, 2124 {December 1985)1 Secretary v. Youghiogheny &
Ohio Coal Company, 7 FMSHRC 200, 203 (February 1985). 5 As shown
subsequentlyr MSHA has in apparent good faith presented such
"adequate reasonso 11
Likewise, Commission Procedural Rule 11, permitting "a
party" to withdraw a pleading at any stage of a proceeding, is
not absoluteu since such must be accompanied by the "approval of
the Commission or the Judge." Thus, Commission discretion is
invoked here by both rule and precedent.
If, of course, Contestant is entitled to declaratory relief,
such would constitute reason for not granting MSHA's motion to
withdraw its answer and to vacate the citation.
TUrning- now to Contestant's various contentions, we first
take up its alternative plea to declaratory relief, i.e., "dismissal with prejudice." MSHA's initial motion, in seeking to
withdraw its answer did not specifically deal with the concept of
"with prejudice," but simply qualified the withdrawal to the
extent of not waiving future enforcement of the safety standard.
Howeverq in its Response in Opposition on May 31, the Solicitor
clarifi
its motion to withdraw by stating it "is intended to
request a
smissal with prejudice of the subject citation •• o o~
This would be the usual meaning attributable to the idea of dismissal
th
judice and I conclude that MSHA gs agreement not to
seek future action on the subject citation is reasonable and a
proper adjunct to its abandonment of the instant prosecution by
withdrawal
its answero
Contestant does not specify if it has
some other purpose in mind in seeking "dismissal with prejudiceqllll

5

The ultimate determination to be made is whether "adequate
reasonsn1 do exist, and/or whether Contestant is entitled
to declaratory relief.

990

such as (1) enjoining MSHA from future use of Section 57.11002,
or (2) preventing MSHA from applying this standard to the same
mine area described in the subject Citation. Expanding "with
prejudice" to these latter concepts would in effect be Ca> granting the Contestant's declaratory relief request (b) without benefit of due process, hearing, and normal adjudication processes.
To the extent that Contestant's contention may be so intended, it
is denied.
The Commission, in Secretary of Labor v. Mid-Continent Resources, Inc., and UMWA, 12 FMSHRC 949 (May 1990), has provided a
thorough and superbly-crafted statement of the principles governning invocation of declaratory relief, stating inter alia:
The Commission has noted that "the primary
purpose of declaratory relief is to save parties from unnecessarily acting upon their own
view of the law." Beaver Creek, supra, 11
FMSHRC at 2430, quoting Climax, supra, 2 FMSHRC
at 2752. Additionally, for any grant of Commission declaratory rel·ief, the complainant must
show that there is an actual, not moot, controversy under the Mine Act between the parties,
that the issue as to which relief is sought is
ripe for adjudication, and that the threat of injury to the complainant is real, not speculative.
While the language of the first sentence of this holding is
found applicable to this proceeding, it also could apply to the
majority of the proceedings before the Commission. What is meant
by it is a preamble or introductory statement setting forth the
"purpose" in a grant of declaratory relief. The second sentence
is the one which sets forth the prerequisite showing to be made
by a contestant for actually obtaining declaratory relief. It is
concluded that Contestant Homestake has not carried its burden of
establishing any of these prerequisites in this mattero
The Secretary CMSHA) on May 31 specified the reasons for
withdrawal of the answer and its prosecution of the Citation:
The Secretary vacated this citation because
information obtained during discovery revealed
various opinions of MSHA staff as to what constitutes an 11 elevated walkway or travelway 11 under standard 30 C.F.R. § 57.11002. 6 The Secretary recognizes that MSHA policy relating to
01
elevated walkways" needs (to be) clarified and
therefore decided that this citation should be
vacated on that basis. This is similar to the
"feasibility" question in the Climax Molybdenum
Company, 2 FMSHRC 2748 (October 1980) at 2753.

991

e•• And, there is no 'substantial likelihood of recurrence of the claimed enforcement
harm or the imminence of repeated injury' to
the Contestant, Homestake Mining Company (Homestake). Mid-Continent Resources, Inc., 12 FMSHRC
at 956. As indicated in MSHA's action to vacate,
enforcement of mandatory safety standard 30
c.F.R. § 57.11002 will continue after MSHA policy is established concerning the standard's
applicatione No undue prejudice or harm will
occur to Homestake because of this action to
vacate.

The Secretary's recognition of the need for clarifying its
policy as to application of the standard and the fact that no
subsequent enforcement of the standard as to the mine area described in Citation No. 3632346 has been initiated are found to
be "adequate reasons" for the vacation of the Citation.
Since the enforcement agency is re-evaluating its position
wth respect to enforcement 6£ the standard and applying it to
Contestant's aqueducts, it is first concluded that this issue is
not ripe for adjudication. Contestant contends: "declaratory
relief is appropriate because 30 C.F.R. § 57.11002 is unconstitutionally vague and, in this case, did not give fair notice that
it was applicable. In short, Homestake faces a continuing legal
dilemma in being forced to act at its peril in light of MSHA's
inconsistent interpretation of this provision." Both these contentions are directly addressed by MSHA's admitted recognition of
"various opinions" existing among its staff, intended re-evaluation and clarification of its policy in enforcing the standard,
and vacation of the citation issued to the mine operator involving application of the standardo I find no basis established by
Contestant that the standard is unconstitutionally vague on its
face o The vagueness contention would have raised both questions of fact and law insofar as its application to the mine area
specified in the citation is concerned--had not the citation been
vacated and MSHA withdrawn its prosecution thereof. In view of
MSHA 1 s actionsu howeverv I conclude the general question of
vagueness of the standard also is now moot in this proceedingo
11

11

The Secretary concedes the essence of the information contained in Contestant's "Supplement to Memorandum of Points
and Authorities 11 which was received by the undersigned on
June 4, 1991, and considered in the formulation of this
decision.

992

To paraphrase the United States Court of Appeals, Tenth
Circuit in Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d
447, 451 (1985), the government's vacation of the citation eliminated the prospect that Homestake would be held liable for the
charged violation and rendered moot the specific issues that this
administrative proceeding was intended to adjudicate, including
unconstitutional vagueness. As a result, this case "has lost its
character as a present, live controversy." The prospect of future citations for the same condition or practice is purely conjectural at this time. See Beaver Creek Coal Company, 11 FMSHRC
2428 (December 1989). Again, as the Court also noted in Climax,
supra, there is no indication in the record that MSHA has made a
practice of citing Homestake or other companies for safety violations, only to subsequently vacate the citations. More specifically, there is no indication of bad faith on the enforcement
agency's part in this proceeding in withdrawing its prosecution.
Finally, it is noted that Contestant Homestake has obtained the
remedy originally sought in its Notice of Contest, extension of
abatement time, and finally, vacation of the Citation itself. 7
Accordingly, Contestant'm motion for declaratory relief is found
to lack merit.
Contestant also seeks set-off of its litigation expenses
"against future penalties." Application of the set-off principle
in general could have deleterious consequences to mine safety enforcement since it would diminish - if not vitiate - the deterrent effect of the Act's most prominent deterrent, civil fines.
Contestant has achieved its original objectives in this proceeding. To in effect insulate it from future mine safety penalty
imposition would undermine the enforcement system envisaged by
Congress. This remedy, being discretionary, and the stated
rationale for rejecting it being "acceptable," 8 Contestant's
petition therefor is also found to lack merit.

7

Vacation of the Citation negates the possibility that the
violation charged will become part of Contestantgs history
of previous violationso
Climax Molybdenum Co. Vo Secretary, 703 F.2d 447 at 453.
See also Climax Molybdenum v$ Secretary, 2 FMSHRC 2748 at
Po

2753.,

993

ORDER
1. Contestant Homestake's motion for declaratory relief and
prayer for set-off of litigation expenses are DENIED.
2.

Citation No. 3632346 is VACATED.

3. Respondent MSHA's motion to withdraw its answer pursuant
to Rule 11 is GRANTED, and this proceeding is DISMISSED WITH
PREJUDICE to Respondent MSHA to renew its prosecution of Citation No. 3632346.

~/tu4<~~f ~ p{Jrdt-1/
Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Henry Chajet, Esq., JACKSON & KELLY, 1701 Pennsylvania Ave.,
20006 (Certified Mail)

NoWo 0 Suite 650u Washington, D.C.

James Bo Crawfordu Esq.u Office of the Solicitoru U9S. Department of Laborf 4015 Wilson Blvd.u Arlingtonu VA 22203 {Certified
Mail)
'
Mra Roland Vo Wilson, Director, Safety & Health, HOMESTAKE MINING
COMPANY 0 PoOa Box 875u Leadu SD 57754 (Certified Mail)
Ms& Cathy Hawley 0 V.Pou Local 7044, USWA, c/o Roland Wilson,
Directoru HOMESTAKE MINING CO.u P.Oe Box 875u Lead, SD 57745
(Certified Mail)

ek

994

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

JUN 21199\
LARRY E. BURNS,
Complainant

.

DISCRIMINATION PROCEEDING
Docket No. WEST 90-166-DM
89-118

v.

MD

Basin Creek Mine

D.H. BLATTNER & SONS, INC.v
Respondent
DECISION
Appearances~

Eula Compton, Esq., Bozeman, M::>ntana,
for Complainant1
Thomas Ee Hattersley III, Esq., Michaels. Ia.ttier,
Esq., GOUGH, SHANAHAN, JOHNSON & WATERMAN, Helena,
Montana,for Respondent.

Before~

Judge Lasher

This proceeding arises under Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~
(1982) (herein the Act). Complainant's initial complaint with
the Labor Department's Mine Safety and Health Administration
(MSHA) under section 105Cc)(2) of the Act was dismissed.

Complainant contends that he was discharged on August 13,
1989 0 for refusing to drive an unsafe truck.

(I-T. 72-73).

Respondent contends inter alia that Complainant did not make
safety complaints and was discharged for abuse of equipment and
unacceptable behavior.
Complainant contends that he infonned his foreman Ted Roberts of three separate safety concerns he had with respect to the
~nAnn model truck: Noo 583 (with 3-speed automatic transmission)
which he was directed to drive on the day he was discharged
(August 13u 1989) involving the transmission, the canopyq and
exhaust fumes. {I-To 42).
Respondent (1) denies that any safety concerns were communicated by Complainant Burns to any of Respondent's management personnel on the day he was tenninated CI-T. 26) and (2) contends
that he was discharged primarily for abuse of equipment (II-T.
104 8 ll4u 126u 130 0 176) together with his belligerent conduct
toward supervisors and his unexplained refusal to drive Truck No.
583 (II-T. 104, 126, 130, 150, 176-177, 202-203, 214)&

995

Order Substituting Estate.
The Complainant, Larry E. Burns, passed away subsequent to
the hearing in the matter. 1 It appears that his estate was
opened on April 1, 1991, under a special administrator who has
requested an order substituting the estate for the decedent as a
party in this matter.
Respondent, having no objection (see
Complainant's motion received April 12, 1991), the Estate of
Larry Burns is hereby substituted as complainant in this section.
See Secretary of Labor v. Metric Constructors, Inc., 4 FMSHRC
791, 808 (April 1982). Rule 25(a) F.R.C.P.
It is well-established that the Act is remedial and
clothed in the public interest. Since the remedy provided for a
discriminatee represents reimbursement of a lost property right,
i.e., back pay, it is found to survive his death and to be subject to an award in an action brought by the appropriate government agency on his behalf. See Secretary of Labor v. Metric
Constructors, Inc., 4 FMSHRC 791, 808 (April 1982).

1

The Federal Mine safety and Health Act contains no provision
with respect to whether the claim of an employee for back
pay and other monetary remedies survives his subsequent
death. With some few exceptions, the federal statutes contain no express provisions for survivability of causes of
action in the federal courts (1 Amo Juro 2d, Abatement, Survival and Revival 0 S 112u Po 128)u and where no specific
provision for survival is made by federal law, the cause
survives or not according to the common law. At common lawu
the basic principle of survivability is that survivable actions are those in which the wrong complained of affects
principally property and property rights, including monetary
interestsv and in which any injury to the person is incidentalu whereas nonsurvivable actions are those in which the
injury complained of is to the person and any effect on
property or property rights is incidental. Pierce v. Allen
Bo Du Mont Laboratories, Inc., 297 F.2d 323 (3d Cir. 1961)~
l Amo Jur. 2d Abatement, Survival and Revival, S 51, Pe 86.

996

FINDINGS 2

A. GENERAL
Respondent at material times was a Minnesota corporation engaged in highway, mining, and heavy construction and was the mining contractor for the Basin Creek open pit gold mine engaged in
constructing roads, leach pads, pad extensions and ponds, and excavating and hauling ore from pits.
Complainant Burns was hired by Respondent on July 10, 1989,
as a haul-truck driver CI-T. 57) and was discharged on August 13,
19 8 9 ( I-T. 7 4) .
In August 1989, Respondent's management personnel at the
mine site were Superintendent Lance Power, overall operational
Foreman Rusty Giulio, Head Mechanic Randolph R. "Randy" Wiener,
and Ted Roberts Cwho served as acting foreman when Rusty Giulio
was absent).
(I-T. 57, 58, 60; II-T. 6, 19, 140).
On August 13, 1989, Comi;>_~ainant Burns was assigned to drive
truck No. 583, a spare truck CI-T. 215). His normally assigned
truck was No. 589 (I-T. 32) which had "broken down" and was
"being worked on."
(I-T. 215). 3 His work assignment was first
to haul overburden (common excavation) from the leach pad extension to a dump one-half mile away.
(I-T. 32, 215, 218).
On August 13, 1989, Complainant's immediate supervisor was
leach pad foreman Ted Roberts.
CI-T. 57, 214; II-T. 140). The
hours of his shift were 6 a.m to 4:30 p.m. CI-T. 147, 214) seven
days a week. On this day, when Mr. Roberts assigned Mr. Burns to
drive Truck 583, Mr. Burns made no complaint about driving it.
(I-To 84v 85u 216)0 Mr. Burns had operated the truck on two or
three prior occasions (I-T 35-36u 75)o When Mro Roberts made
'che assignment" he told Mr o Burns that 583 was an older truck and
was the
one available., and thus Mr o Burns iucould take it

2

The hearing was held on two hearing daysu January 30 and 3lu
19910 For both days of hearing there is a separate transcript beginning with page oneo Accordingly, the transcript
tations will be prefaced with "I" and a "II" for January 30 and January 3lu respectivelyo

3

No o 58 3 was an 11 Awu model with a three-speed automatic transmissionv Noa 589u a "B" model, was equipped with an automatic seven-speed transmission.
(I-T. 32, 76, 215; II-T. 152).

99 7

easy" and didn't have to "cycle," i.e., keep up with another
trucko After Mr. Burns had been making his runs on a fairly regular schedule, at some point he did not show up, and Mr. Roberts
got in his pickup and drove up the haul road looking for along
his route. ( I-T. 217-218).
After hauling overburden for one and one-half hours, Complainant parked the truck allegedly because "the canopy on the
truck was unsafe" (I-T. 32) and he was due to start working in a
more dangerous area called the PPD. (I-T. 85).
Before Mr. Roberts found Complainant, a significant incident
happened resulting in a conversation between Complainant and Head
Mechanic Wiener.
Mr. Wiener was on the haul road near the maintenance department and saw Complainant pull off the road and talk to another
truck driver. After finishing the talk, Complainant "let the
truck roll back ••• revved the engine up and dropped it into
first gear and took off." When he dropped it into first gear,
the front of the truck raiseg_up on the suspension approximately
six inches. CII-T. ~9, 24-27). The truck had a full load at the
time. Complainant then drove off. On what appears to be the
Complainant's next load, Mr. Wiener stopped him and told him that
(Mrb Weiner) didn't want him to do that again, and that if it
happened again, Complainant would be sent home, to which Cominant responded, "Do me a favor." Mr. Wiener gave this
accountg
A.

He told me, do him a favor.

That was his words.

Qo

Did he say anything else to you?

Did he say anything about why he started the truck that
wayu why he revved it up and put it into gear?

Did he say anything to you about problems or concerns
that he had with the safety of the truck?

Did he say anything to you about a hole in the canopy
or problems with the exhaust?

998

Q.

So the only thing he said to you was, "Do me a favoro 51 ?

A.

Yes.

Q.

What did he do after that?

A.

What did I do or what did he do?

Q.

What did Larry do after that.

A.

He drove off, yes.

Did he drive off?

CII-T. 21).

On August 13, 1989, Mr. Wiener was not aware of problems
with Truck 583 and in his conversation with Complainant on that
date, Complainant made no safety complaints or reference to problems with the truck CII-T. 35, 42, 75-79, 83}. Mr. Wiener did
not authorize Complainant to park the truck (II-T. 49).
Later in the day in a conversation with Mr. Roberts,
Mr. Wiener learned that Mr. Roberts had sent Complainant home,
and that evening Mr. Wiener received a call from Rusty Giulio
CII-T. 48) inquiring if he had observed Complainant abuse the
truck. 4 At this point, Mr. Giulio had not made up his mind
about discharging Complainant. CII-T. 23) 5
At approximately 7:30 a.m. CI-T. 220}, Mr. Roberts came upon
Mr. Burns approximately midway along the one-half mile route between the leach pad and the dump--near a junction of haul roads
and near the employee parking lot. CI-T. 218, 222). Mr. Roberts
remained in this pickup and Mr. Burns approached him in agitated
fashion, stating as he came up, "I am not driving that piece of

Complainant•s action in revving up the engine of the truck
a.real high" and throwing it into gearu as observed by
Mro Wieneru is found to constitute severe abuse of the power
train (I-To 224; II-T. 20, 24-32) which could have resulted
in repair costs of $5,000 to $15,000.
CII-T. 31, 32).
5

The record is clear that Mr. Robertsv sending Complainant
home earlier did not constitute a discharge.

999

s
anymore." Mr. Roberts credibly denied that Mr. Burns expressed any safety problems or concerns with truck 583 in this
conversation.
CI-T. 219, 220, 228). 6
Mr. Roberts replied to Mr. Burns that "If you are not going
to drive the truck, then you'd just as well take your stuff and
go home." Mr. Burns made no offer to do other work.
CI-T. 220).
Mr. Roberts had no other work for Mr. Burns to do.
CI-T. 120,
214, 215, 220, 222, 223).
Complainant, whose testimony I have found unreliable, testified that he gave Mr. Roberts three reasons for not driving the
truck, i.e., "the canopy, the transmission, and the smoke from
the exhaust."
CI-T. 42). 7

6

7

Mr. Roberts explained the reasons for his certainty in this
connection:
Q.

You have stated that Larry Burns just described this
truck in general terms, and you have stated that he
did not tell you about any of the problems with the
truck.

A.

No, he didn't.

Q.

Are you sure that he didn't, or do you not recall him
doing so?

Ao

I am sure he didn 1 t 9 and the reason that I am sure is
because it was brought to my attention the first thing
the next morningo

Qo

Who was that brought to your attention by?

Ao

Lance Power asked me what had taken placeu and he wanted
to know word for word of what he saidu because an MSHA
inspector was coming up on the jobo
CI-To 228)0

Of the three reasons allegedly given to Mro Robertsu the
hole in the canopy was the most serious. After being discharged in the evening of August 13u 1989u Complainant made
a complaint to MSHA and the following day (August 14) two
citations were issued on the canopy and transmission, and on
August 16, a citation was issued on the exhaust CExs. C-1
through 9). It is found that Truck 583 was in unsafe condition on August 13, 1989.

1000

After Mr. Burns left, two other employees (oilers> approached
Mr. Roberts and asked him what had happened. Mr. Roberts told them
that he had sent Larry Burns home and they informed Mr. Roberts
that Head Mechanic Randy Wiener had, just previously, "jumped"
Mr. Burns about abusing the truck. CI-T. 221). As above noted,
later in the day Mr. Roberts discussed the matter with Randy Wiener
who confirmed "he had said something" to Mr. Burns about abusing
the truck, i.e., revving it up and dropping it into gear. CI-T.
2 23).

That evening Mr. Roberts called Rusty Giulio and advised him
of the problem he had with Mr. Burns, of what Mr. Wiener had told
him, and that he had sent Mr. Burns home "because he refused to
drive the old truck." (I-T. 224). Mr. Roberts also mentioned
the language Complainant used in referring to the truck (II-T.
147). Mr. Giulio then contacted Randy Wiener and discussed the
truck abuse incident. He also called Superintendent Lance Power
and told him what he heard about the incident. Mr. Power advised
Giulio to do "whatever was necessary." CII-T. 149).
Giulio then telephoned Complainant to discuss the matter,
and get Complainant's "side of the story." (II-T. 149, 168). 8
Giulio recounted the conversation as follows:
A.

I said I had heard there was a problem on the job
today, and he said, "Yeah, there was, I'm not going
to run that piece of s__ ."

Q.

He used the same language as with Mr. Roberts?

A.

That's correct.

Q.

What did you reply?

Ao

said v 06 If you' re not going to run a trucku then I
guess we don 1 t have any use for youe 11
I

Giulio specifically testified that at this juncture he had
not made up his mind what action to take regarding Complainnant. (II-T. 150, 167, 168, 169, 177).

1001

Q.

Did you discuss the abuse he had done to the equipment?

A.

No, he hung up on me then. 9

* * * * *
Q.

Was he hostile in talking with you?

A.

Yes, he got a little heated.

Q.

At any time during your discussion with Mr. Burns o o •
did he raise any concerns to you at all about the condition of the truck or any safety and mechanical problems whatsoever?

A.

No. At no time that Larry worked on the mine site did
he ever raise questions concerning safetye
(II-T. 149-150).

Mr. Giulio, whose testimony I credit over that of Complainant Burns for the reasons indicated in this decision, also indicated that Complainant did not, during his conversation, tell him
anything to justify his actions (II-T. 150), and that his impression was that Complainant simply was not going to drive the
truck.
Thus, on cross-examination he gave these answers~

9

While Mro Giulio subsequently added to his testimony that he
also told Complainant that 9'we couldn°t handle equipment
abuse.w
(II-To 150, 167, 168, 169, 177)0
I do not consider
this an inconsistency in his testimony since discussion of
equipment abuse was cut off by Complainant~s hanging up the
phone. Complainant's accounts of this conversation are essentially the same as Mro Giulioijs 0 other than when testifying as a rebuttal witness Complainant did not mention
it was
safety reasons that he refused to drive the truck
I-T" 44u 71 0 , II-To 214-215)0 On the issue of whether Complainant voiced safety complaints concerning Truck 583 0
is also observed that the accounts of Messrso Giul
u
Weiner 0 and Roberts, are relatively steady throughout,
whereas Complainant engaged in a major n1 perfectingva of his
testimony on rebuttal (II-T. 213-214) from that on his case
in chief.
( I-T. 42, 71).

1002

Q.

Had he agreed to drive the truck, would he have come
in the next day?

A.

He wasn't going to drive it. As far as I could get out
of him, he wasn't going to drive the truck anyway.

Q.

My question is, if he agreed to drive the truck, would
you have said, "Show up at 6:00 tomorrow?"

A.

Yes.

Q.

You didn't inquire what his complaints were at all as to
the truck?

A.

No, we didn't get that far.

CII-T. 168-169).

Mr. Giulio denied ever giving Complainant authority to rev
up the truck and drop it into.gear. CII-T. 151). Mr. Giulio's
primary reason for terminatin_g Complainant was for "abuse of
equipment (II-T. 150-151). He also took into consideration Complainant's "conduct toward the other supervisors and personnel
and his attitude basically was smart and belligerent, and also
for the refusal to drive a truck." CII-T. 150-151).

Truck No. 583 on August 13, 1989, was unsafe. 10 (I-T. 175176: Ex. c-1· to C-9; II-T. 129). On August 13, 1989, supervisorial personnel Roberts, Wiener, and Giulio were unaware of the
unsafe condition of Truck 583.
(I-T. 216, 220, 229, 231; II-T.
9-10, 13, 35, 184).

10

Nevertheless 6 as noted elsewhere in this decision, this does
not excuse Complainant's abuse of the truck, neutralize the
legal effect of the failure of Complainant to communicate
safety concerns to his supervisorsu or justify his belligerent0 provocative behavior toward supervision. There is
considerable evidence in the record overall that Complainant us essential motivation in refusing to drive the truck
was less of a safety concern than it was for some personal,
subjective resentment and desire to terminate employment.
It is ultimately concluded herein that Respondent's motivation in discharging Complainant was not due to anti-safety
motivation or other discriminatory intent cognizable under
the Acto

1003

B.

RESPONDENT'S POLICIES AND PROCEDURES

Respondent at material times had no 11 formal step" disciplinary procedure or structured termination policy.
CII-T. 135).
Respondent relies to a considerable extent on so-called
"bitch slips" (shift tickets) to identify problems with equipment.
Equipment operators, including truck drivers, are required to
fill out bitch slips after each shift whether or not a truck has
problems, and a lack of problems is indicated by checking a box
thereon labeled "satisfactory." CI-T. 76, 103-104, 109-110;
II-T. 11-12). The majority of bitch slips which were turned in
contain no request for repairs.
CII-T. 97).
Under Respondent's maintenance program, approximately 50
percent of equipment problems are detected through inspection.
Significantly, the rest are discovered through the participation
of equipment operators and drivers who either fill our shift
tickets, inform their supervisor, or bring equipment directly to
Chief Mechanic Randy Wiener and his personnel.
(I-T. 76, 109,
112; II-T. 7-14, 87-88). 11
Complainant, a short time prior to August 13, 1989, had
brought his regularly assigned truck (No. 589) directly in to the
maintenance shop for repairs and, at that time, referred to it as
11
a piece of s
• " It was repaired irrunediately.
( II-T. 16-18).
It is inferred from this and other evidence (I-T. 55, 77) that
(a) Complainant knew he could have had the canopy on No. 583 repaired on August 13, 1989, by taking the truck directly to the
maintenance shop, and (b) Complainant, in conversations with management personnel, repeatedly referred to the equipment he was
assigned to drive as a "piece of s
," or other disparaging way.
In this connectionv it is noted that Complainant conceded at
hearing that he was not aware of a single person who was ever
fired by Respondent because of having made a safety complaint
about equipment.
(I-To 76)o
C.

RESOLUTION OF CREDIBILITY

have generally credited the testimony of Respondent 1 s witnesses over the testimony of Complainant with respect to whether
Complainant made a safety complaint to Leach Pad Foreman Roberts
I

11

During Mr. Wiener's three-year tenure as head mechanic,
there were no accidents at the mine due to unsafe equipment.
CII-T. 13).

1004

on August 13, 1989, and whether supervisors Rusty Giulio and
Randy Wiener were aware of any safety problems with Truck 583.
Specifically, I have credited the denials of Roberts, Wiener, and
Giulio (1) that Mr. Burns made safety complaints about the truck
on August 13, 1989, and (2) that they were aware of safety problems, including the hole in the canopy, at the time Complainant
Burns was discharged.
Based on observation at the hearing of the demeanor of the
witnesses, the various reasons appearing in this decision, and
the convincing testimony of Respondent's witnesses, the accounts
of Complainant Burns have been determined not to carry the same
degree of reliability as those of Respondent's primary witnesses, Roberts, Giulio, and Wiener.
Additional factors weakening Complainant's testimonial
trustworthiness follow.
Respondent established prior instances where Complainant had
quit a number of jobs when he had "cash in hand" and was dissatisfied with working condition,f:?. Thus, he quit one truck-driving
job after three months because he felt the trucks were "junk."
He quit another truck-driving job after five months because he
was unhappy with his tax burden while his sister was on welfare.
He quit another job partly because of what appears to be problems
with other persons and threats.
(I-T. 80-85). 12
Although Complainant testified that being assigned to work
in the PD-44 area Can hour or so after he had commenced work on
August 13, 1989) increased the danger of driving thf! truck, (I-T.
32, 78), he thereafter saw Randy Wiener and made no safety complaint to Mr. Wiener, much less asking that the truck be repaired--a procedure he accomplished previously and which, I infer
from this recordg would have been feasible for him to have followed on the day he was discharged had he had genuine safety
concernso
(I-To 83-87Q II-To 16-18)0
Complainant considered refusing to drive Truck 583 the first
time he was assigned to do so in July 1989.
CI-T. 69). He also
considered complaining about it another time before August 13u
1989 Che only drove the truck two or three times during his 31day employment) but alleged he thought he might be discharged if

12

Complainant was employed by Respondent only a total of 34
days.
CI-T. 80).

1005

he did. (I-T. 69, 76). Yet, he admitted he was not aware of
anyone being discharged for making a safety complaint about
equipment.
(I-T. 76>. 13 ·
DISCUSSION AND ADDITIONAL FINDINGS
In order to establish a prima facie case of mine safety discrimination under Section 105Cc) of the Act, a complaining miner
bears the burden of production and proof to establish Cl) that he
engaged in protected activity, and (2) that the adverse action
complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2797-2800 (October 1980), rev'd on other grounds sub nom.r
and Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-818 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
pretected activity. If an operator cannot rebut the prima facie
case in this manner, it may nevertheless affirmatively defend by
proving that Cl) it was also motivated by the miner's unprotected
activities, and (2) would have taken.the adverse action in any
event for the unprotected activities alone. The operator bears
the burden of proof with regard to the affirmative defense. Haro
v. Magma Copper Co., 4 FMSHRC 1935, 1936-1938 (November 1982).
The ultimate burden of persuasion does not shift from the Complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Donovan v.
Stafford Construction Co., 732 F.2d 954, 958-9~CD.C. Cir. 1984)
(specifically approving the Commission's Pasula-Robinette test)J
and Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860
(December 1986).

l

Complainant 1 s own witness 0 Project Office Manager Opal Holsworthv also conceded this major point in Respondentis favor
in the following colloquy~
Qo

Would you believe any employee who refused to drive
a piece of equipment or a truck because it was unsafe would be
red?

Ao

I don t believe that any employee would have been
f ired 0 because sometimes employees did more severe
ings than refused to drive a truck and got firedu
and other people didngt do hardly anything and got
f iredo
It just deRended on the person that was bein taken into consideration. (I-Tc 140).

1006

The disposition of this case turns on whether Complainant's
refusal to drive the truck was based on a belief (and reasonable
communication) that the truck was unsafe or whether it was due to
some subjective reasons and attitude, and whether Complainant
communicated any safety concerns to management personnel prior to
being discharged and, assuming that he did, whether he was discharged for this protected activity or for the reasons assigned
by Respondent, meaning his non-protected activities, abuse of
equipment, insubordinate conduct, 14 and unexplained refusal to
drive the truck.
Under the Mine Safety Act, discriminatory motive may not be
presumed but must be proved. Simpson v. Kenta Energy, Inc. and
Jackson, 8 FMSHRC 1034, 1040 (1986).
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-2511 (November 1981), rev'd on other grounds sub nom
Donovan v. Phelps Dodge, 709'·F.2d (D.C. Cir. 1983); Sammons v.
Mine Services Co., 6 FMSHRC 1391, 1398-1399 (June 1984). The
instant record contains no reliable direct evidence that Respondent was illegally motivated nor does it support a reasonable inference of discriminatory intent.
In reaching the conclusion that Complainant failed to establish a prima facie case by failing to establish that his discharge was discriminatorily motivated, consideration also has
been given to the fact that the instant record does not reflect a
disposition on the part of Respondent's management personnel, individually, or collectively, to engage in such conduct. A history of v or contemporary action indicating antagonism or retaliatory reaction to the expression of safety complaints was not
shown o

Although not elaborated on hereinv Respondent established in
this record that it has at least a reasonable approach to safety
and that operators and drivers are encouraged to bring safety

14

The use of profanity in the belligerent context Complainant
used it in on August 15 can itself be an unprotected activity sufficient upon which a discharge can be legitimately
based. Hicks v. Cobra Mining, Inc., 18 FMSHRC 623, 532
(April 1991).

1007

problems into its repair shop immediately and directly for repair.
(I-T. 16, 108-110, 112-114, 131-132, 140, 224-226; II-T. 7-10,
13, 36-37, 87, 88).
Further, I have credited the version of the facts of Respondent's supervisorial witnesses with respect to the question
of whether Complainant made safety complaints concerning Truck
No. 583 on Au~ust 13, 1989, and find that no such complaints were
registered. 1
Thus, in this respect also, Complainant failed to
establish the prerequisites of a prima facie case under the Act,
since the unexplained work refusal is not an activity protected
under the Act. Dillard Smith v. Reco, Inc., 9 FMSHRC 992 (June
1987).
Finally, even assuming for the sake of argument that such
complaints were made, Respondent established by a preponderance
of credible and reliable evidence that its reasons for discharging Complainant were his abuse of equipment together wih his
hostile conduct and approach to driving Truck No. 583. 16 Stated
another way, Respondent carried its burden--even under the hypothesis that a safety complaint had been made--that it was motivated by Complainant's unprotected activities and that it had
good reasons and would have taken the adverse action in any event
for such.
It is concluded that Complainant Burns was discharged for
the reasons assigned by Respondent, abuse of equipment, together
with his accompanying belligerent attitude and conduct toward his
supervisors and the circumstances of his refusal to drive Truck
No. 583. It is further found that Respondent's management had

15

Since Complainant 0 at the time he refused to drive the
truck 0 did not communicate his alleged safety concerns to
Mro Roberts (or later to Mr. Giulio) Respondent had no
opportunity to understand the basis for the refusal and to
take any corrective action. See Conatser v. Red Flame Coal
CompanyQ InCov 11 FMSHRC 12 (January 1989)0

16

Rather than taking the truck to the maintenance department
for repair 0 Complainant parked it, refused to drive it, was
insubordinate 9 and this attitude and conduct precipitated
his dischargeo By analogy to the concept of a mine operator vs constructive discharge of an emloyee, Complainant's
actions approached being a constructive resignation. In
this case, it appeared that Complainant forced the issue,
that is, he forced the adverse action taken against him.

1008

sufficient basis in terms of both business and disciplinary
reasons to justify the discharge of Complainant.
As the Commission stated in Bradley v. Belva Coal Company,
4 FMSHRC 981, 991 (June 1982): "Our function is not to pass on
the wisdom or fairness of such asserted business justifications,
but rather only to determine whether they are credible and~ if
so, whether they would have motivated the particular operator as
claimed.Di
The record in this matter is convincing that Respondent was
motivated for the reasons and justifications it claims. Complainant vs evidence was not found to be persuasive that his discharge was due in any way to any alleged expression of safety
complaints"
CONCLUSIONS
Respondent's motivation in discharging Complainant was for
his unprotected activities and the decision to take such adverse
action was justified.~ This adverse action was not wholly or in
part discriminatorily motivated. Thus, Complainant has failed to
establish a prima facie case of discrimination under Section
105(c) of the Mine Act.
Even assuming arguendo, that it was established by a preponderance of the reliable probative evidence, that Complainant's
discharge was motivated in part by protected activities, Respondent established by a clear preponderance of such evidence that it
was also motivated by Complainant's unprotected activities and
that it would have taken the adverse action in any event for such.
Gravely v. Ranger Fuel Corpo, 6 FMSHRC 729 (1984).
ORDER
Complainant 0 having failed to establish Mine Act discrimination on the part of Respondent, the Complaint herein is found
to lack merit and this proceeding is DISMISSED.

/!F-6ct7
£'. ~~~f_l- Michael A. Lasheru Jr.
Administrative Law Judge
st:cibutiong

Thomas Eo Hattersley IIIu Esqe, GOUGH, SHANAHAN, JOHNSON &
WATERMANu 301 First National Bank Building, P.O. Box 1715,
Helenau MT 59624-1715 {Certified Mail)
Eula Compton,
Mail)

Esq~,

214 So Willson, Bozeman, MT 59715 (Certified

ek

1009

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

22041

JUN 211991

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 91-30
A. C. No. 46-01436-03825

v.

Shoemaker Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION

Appearances:

Page H. Jackson, Office of the Solicitor, u. s.
Department of Labor, Arlington, Virginia, for the
Petitioner;
Walter J. Scheller III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Weisberger

Statement of the Case
This case
before me based on a petition for assessment of
civil
filed on November 5, 1989, alleging a violation of
30 CoF.R" § 75.1403" Subsequent to the filing of an Answer and
pursuant to notice, the case was heard in Pittsburgh,
Pennsylvania, on February 20-21, 1991. Joseph Yudasz, Louis Paul
Jones, Nelson Thomas Blake, Thomas Dale Updegraff, and Dennis
O'Neil
ied for the Secretary (Petitioner). Edward Roy
, II, Michael Blevins and James A. Deems testified for
Operator (Respondent).
Subsequent to the hearing on May 30, 1991, Petitioner filed
a Motion to Approve Settlement. In its motion, counsel for
Petitioner asserts that the language in the notice to provide
safeguard, which provided the basis for the issuance of the
citation at issue herein, "· •• may not provide Consol with
sufficient notice of what is required to comply with the
safeguard under the various mining conditions encountered at the
Shoemaker Mine." This assertion is consistent with the evidence
that was adduced at the hearing.

1010

The motion seeks an order vacating the safeguard and
citation at issue, and· ordering Respondent to issue instruction
for safe travel, and conduct a safety meeting concerning these
instructions. Based on the record before me, I conclude that
such an order fairly disposes of the issues in this case, and is
consistent with the purposes of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. Accordingly, the
motion is granted.
It is ordered that:
(1) Consol shall issue at the Shoemaker
Mine, within thirty (30) days of the date of the order, the safe
work instruction attached as Exhibit l; (2) Consol shall conduct
a safety meeting, which concerns the contents of the safe work
instruction attached as Exhibit 1, with all miners working on the
longwall section at the Shoemaker Mine within thirty (30) days of
the date of the order; and (3) Notice to provide Safeguard No.
3326026, and section 104(a) Citation No. 3326035 shall be
vacated.

Distribution:
Page H. Jackson, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Walter Scheller III, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
/fb

1011

A

......

rt

!-'·

I-'

:~

I-'
0
I-'
IV

Hoving Shields

"' ·9

~·LE~
..............

Ul.QUJ I
-=_

I
(C) >lo•Lmg Paet Shields

I

. . . . . . . . .H

ff~J

.... ~

'

ry

,,...,~~'{-

...

;:>= .v

flllillllfJC.... ..

J

T

LonJ;Wall
•

-

•.

••

,

6 \

'
~

\.(1

·-~H
N·

6

• i·

aware of naterials being
t~an&~urt~ by Lhe wuving
face conveyor chain.

All perfmln"' l'T,.v... Ifng ~!".'!'!:?;
the loogwall face must be

I

~

f•J

f\l

'lJ

Cf•

4
1£1
,_.

I

w
,_.

(0

~~

(G) tf Che travelway beoomes rest~icced
tl.e fullowin~ precaucions should
be taken.
(a) Crawl a:hrough the area 1f
neoessary or
(b} 'WaLt for the face conveyor to
be adv•nce., for adecviate
ttave1"Yay or
{-::) ! f the event cf .ti= e:crgcnc;;
use the pu11 cord t:o deactivate the face conveyor.

I

(F)

................ .......,.....,.,.,, ........

________________
,____________________________________
"*'·=··~ . . .- - c:~·>~~
... t/-//-fj ~,~

t'W

~
.,.,.......
. L

011 •n· 1

AliaS*

....,. i S1!,°emaker Mine

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

22041

JUN 24 199\
DISCRIMINATION PROCEEDING

MICHAEL P. DAMRON,
Complainant

v.

Docket No. CENT 89-131-DM
MD 89-04

REYNOLDS METALS COMPANY,
Respondent

Sherwin Plant
DECISION ON REMAND
Appearances:

Before:

R. Michael LaBefie, Esq., Powers & Lewis,
Washington, D.C., for Complainant;
Jean w. Cunningham, Esq., Richmond, Virginia,
for Respondent.

Judge Broderick

on April 16, 1991, the Commission remanded the case to me,
(1) for further findings and analysis of the testimony of
Complainant Michael Damron and his foreman Arlen Boatman
concerning Boatman's order to operate the mill on September 7,
1988; and (2) for an explanation of my finding that General
Supervisor Glenn Reynolds on September 5, 1988, authorized Damron
to run the mill from a safe distance.
13 FMSHRC 535 (1991).
Following the remand counsel for Complainant and Respondent filed
briefs which I have carefully considered in making this decision
on remand.
I will first address the question of the DamronReynolds conversation.
I

When the protective shelter was torn down, Damron protested
the action to Reynolds, the general supervisor in the precipitation and calcination areas of the plant. A safety procedure
meeting was called and convened on September 2, 1988, which
addressed some of the safety complaints advanced by Damron and
the Union. On September 5, Damron approached Reynolds and stated
that the company had agreed to erect an overhead plywood shelter
for the ball mill. Reynolds denied that such an agreement had
been made.
On page 4 of my Cj.P9ision I quoted Reynolds' testimony
that he told Damron that "if he had any real safety concerns
regarding the operation of the belt line, without that temporary
shed, that he should go outside the'building, down the tunnel,

1013

and operate the belt standing in that position." On rebuttal
Damron denied that Reynolds had given him the "option of working
down in the pit next to the conveyor belt." 12 FMSHRC 417-418
(1990).
Neither of these statements is inherently incredible.
Because they are contradictory, however, only one can be
credited. I chose to credit the testimony of Reynolds.
It
seemed (and still seems) highly unlikely that he would manufacture out of the whole cloth a rather detailed conversation
including the phrase "down the tunnel." I therefore reiterate my
finding of fact that Reynolds on September 5, 1988, gave Damron
permission to operate the mill away from the building.
II

There is no dispute that Foreman Boatman, who was not at the
safety meeting, told Damron on September 6, that he could operate
the mill by turning the belt switch on, and stepping back to
monitor the belt from a distance where he would not be subject to
the possible hazards 9f falling objects. Damron protested that
metal objects could get by the metal detector and damage the
hammer mill.
"If one of them things would have gotten by, gone
into the hammer mill, it would have tore that whole thing
up . • • so that was not a very acceptable way for me to run my
job properly" (Tr. 225). Boatman told Damron (and I find as a
fact that he did tell him) "that should anything go through the
detector, if for any reason it failed and we did not get metal in
the mill, that it would be my responsibility" (Tr. 352). Damron
did not work on the mill on September 6, because of problems in
the tray area.
In my original decision, I found that Respondent
erected a guardrail on the upper floor and agreed to erect a
metal shed over the area where the magnet was located.
When Damron reported for work on September 7, Boatman
directed him to run the ball mill. Boatman did not change or
revoke the authorization given the previous day permitting Damron
to monitor the belt from a distance. His testimony, which I
quoted on page 5 of my decision, that "· .
I gave him the
direct order to operate the facility under normal conditions,
standing where needed to, if he needed to stand at the metal
detector, if he needed to clean conveyor belts, tail pulleys or
whatever, it would be the general operator, the regular operation
of the facility 11 must be considered together with the testimony
concerning the conversation on the previous day, which I quoted
above. Taking into consideration the two conversations, I
conclude that Boatman's order to run the mill included his
authorization to monitor the belt from a position away from the
building, and that Damron unde":stood this. His refusal to comply
with the order resulted more from his belief that the mill could
not properly be operated in that fashion, rather than because of
any safety concerns. This conclusion is reinforced by my finding
o

1014

above that Reynolds authorized Damron to operate the belt away
from the building. On the basis of these findings, I conclude
that Damron's work refusal was not reasonable, nor did it result
from a good faith belief that the work he was ordered to perform
was hazardous.
I conclude therefore that Respondent's action in discharging
Complainant for refusal to obey an order to perform on work
September 7, 1988, was not in violation of Section 105(c) of the
Act.

Accordingly, the complaint and this proceeding are
DISMISSED.

)1u~ .lv16nJdt1/~1ilL
,·.

""

James A. Broderick
Administrative Law Judge

Distribution:
R. Michael LaBelle, Esq., Powers & Lewis, 4201 Connecticut
Avenue, NW, Suite 400, Washington, D.c. 20008 (Certified Mail)
Jean W. Cunningham, Esq., Reynolds Metals Companyp P. Oo
Box 27003, Richmond, VA 23261 (Certified Mail)
dcp

1015

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

22041

JUN 251991
DISCRIMINATION PROCEEDING

MELVIN BURKHART,
Complainant

Docket No. KENT 90-184-D

v.

BARB CD 90-13

FOSSIL FUEL, INC.,
Respondent

No. 2 Mine
DECISION

Appearances:

Before:

Mr. Melvin Burkhart, Kenvir, Kentucky, pro se;
Otis Doan, Jr., Esq., Harlan, Kentucky, for the
Respondent.

Judge Maurer
STATEMENT OF THE CASE

This proceeding concerns a discrimination complaint filed by
the complainant, Melvin Burkhart, against the respondent pursuant
to Section l05(c) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801
seq. Mr. Burkhart filed his initial
complaint with the Secretary of Labor, Mine Safety and Health
Administration (MSHA) . Following an investigation of his
complaint, MSHA determined that a violation of Section 105(c) had
not occurre'd 1 and Mr. Burkhart then filed his pro se complaint
with the Commission. A hearing was conducted in London? Kentucky
on February 14, 1991.
Essentially, the complainant maintains that he was hired to
operate the continuous miner machine and that the respondent's
request for him to go and muck the mainline belt was in
retaliation for him making safety-related complaints about
conditions in the mine. Mr. Burkhart quit his job rather than
perform this admittedly "dirty" job. He now seeks reinstatement
and back pay.
Mr. Burkhart's discrimination complaint states as follows:
I operated the miner at Fossil Fuel, Inc.
During the
last three (3) months, I have complained numerous times
about failure to take CH4 checks, cutting without line
curtains, roof control plan not being conformed to, and
methane monitor being bridged out during operating.
These were safety hazards to myself and fellow

1016

employees. These hazards was not corrected. On
January 31, 1990, I complained to Tony Bailey about the
above mentioned conditions. I was then instructed to
go muck the main belt heading and the miner helper was
going to operate the miner. I was told he could cut
cleaner coal. The miner helper has approximately
12 hrs. experience operating the miner. I then stated
I would just go home. Therefore, I feel I have been
discriminated against for complaining about my rights
to a safe work area.
I request my job back.as a miner operator, and any
backpay due me.
The complainant testified at length at the hearing. He
began work at Fossil Fuel as a miner operator in April of 1989.
Between then and January 31, 1990, he alleges there was no effort
made on the part of mine management to fix anything. Things just
kept building up and building up until finally on January 31,
1990, the situation had gotten to the point where he complained
to Tony Bailey, the assistant superintendent, about the
conditions he felt were unsafe. More specifically, he testified
he had complained about loose and inadequate {short) roof bolts,
cutting coal without line .curtains to get fresh air to the face,
a malfunctioning methane monitor, and basically his feeling is
that management thought he was instigating trouble and holding up
production. And that i.s. the reason he believes he was told to go
and muck the belt line ...
As further evidence of this, he points out that the man who
was going to replace him on the miner, while he went to muck the
mainline belt, had only 12 hours of experience running this type
of continuous miner.
In a nutshell, complainant felt he was being punished
because he wanted a decent place to work. He maintains that an
assignment to muck the belt line is well recognized in the coal
mining industry as a punishment tour, and he feels in this
particular case, it constitutes harassment.
After complainant balked at mucking the belt linep
Mr. Bailey then offered him a chance to run the roof-bolting
machine instead, but Mr. Burkhart didn't feel like he was
qualified to do that so he declined. At that point he quit and
never went back.
It was his last day working for Fossil Fuel.
In order to establish a prima facie case ~f discrimination
under Section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity, and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,

1017

1981); secretary on behalf of Robinette v. United Castle Coal
company, 3 FMSHRC 803 .(1981): Secretary on behalf of Jenkins v.
Hecla-Day Mine Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom.
Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut 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
affirmatively defend by proving that it was also motivated by the
miner's unprotected activities and would have taken the adverse
action in any event for the unprotected activity 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, however, 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 Pasula-Robinette test).
See also NLRB v. Transportation Management Corporation, 462
U.S. 393, 76 L.Ed.2d 667 (1983}, where the Supreme Court approved
the NLRB's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act.
It is clear that Mr. Burkhart has a right to make safety
complaints about mine conditions which he believes present a
hazard to his health or well-being, and under the Act, these
complaints are protected activities which may not be the
motivation by mine management for any adverse personnel action
against him; 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
(Jd Ciro 1981), and Secretary of Labor ex rel. Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (April 1981) o Safety
co~~laints to mine management or to a section foreman constitute
protected activity 1 Baker v. Interior Board of Mine Operations
Appeals, 595 F.2d 746 (D.C. Cir. 1978); Chacon, supra. However,
the miner 1 s safety complaints must be made with reasonable
promptness and in good faithr and be communicated to mine
management MSHA ex rel. Michael J. Dunmire and James Estle v.
Northern Coal Company, 4 FMSHRC 126 (February 1982); Miller v.
FMSHRC, 687 F.2d 194, 195-96 (7th Cir. 1982) i Sammons v. Mine
Services Co. 1 6 FMSHRC 1391 (June 1984).
Mr. Bailey testified that Mr. Burkhart was hired by Fossil
Fuel on April 24, 1989, at a starting pay of $~.oo per hour. He
was hired primarily to run the continuous mining machine, and he
did run it until January of 1990, when he quit. At that point in
time, he had progressed to making $12.00 per hour.

1018

Mr. Thomas J. Davis owns a coal business associated with
Fossil Fuel. They contract mines from him. There came a time in
January of 1990, when he had a problem with quality control of
the coal they were producing. He wanted "blockier" coal and he
discussed this with Tony Bailey. Mr. Bailey then decided to try
an "experiment." He would put a different operator on the mining
machine. He and Mr. Davis happened to notice that on January 29,
1990, a day that Mr. Burkhart was off, the coal run that day was
"blockier." It was more lumpy. Ed Napier and Terry Wells were
running the miner that day. So, on January 31, 1990, the
decision was made to have Terry Wells run the miner that day and
Mr. Burkhart was asked to go to the No. 2 belt head, service it,
service the tailpiece, and then start mucking the mainline belt.
Bailey states he fully explained the reason for this job
change to Burkhart at the time, and told him they were merely
trying something new to try to improve the quality of the coal
for Mr. Davis. If it didn't work after 2 or 3 days, he might put
Burkhart back on the mining machine. There was no loss of pay
involved. His same rate of pay ($12.00 per hour) applied to
either job.
Mucking the belt line is a disagreeable, dirty job in the
mine. There is no dispute about that. But even Mr. Burkhart
admits that "somebody had to do it. 11 Mr. Bailey testified that
he has done it himself. "Everyone does," he added.
In any event, when Bailey saw that Burkhart was getting
upset about the mucking assignment, he offered him something
else. As Mr. Davis testified at Tr. 117-118:
Q. Did you hear Tony [Bailey] offer Mr. Burkhart the
job on the roof bolter?
JL

I sure dido

Qo

And what did Mro Burkhart say?

A.

He said, "No, I ain't no bolting machine man."

Qo

Did he offer him any other job?

Ao

Yes. He said, "Why don't you be a helper?" He
said, nNo, they don't like my kind of work. 11

Q.

What kind of helper?

A.

Bolt machine helper.

Q.

Okay.

A.

Yes, he was.

He was offered the bolt machine helper job?

1019

Q.

Did he turn that down?

A.

Yes, he did.

Q.

Did he ever say he quit?

A.

No. He said he believed he was going to the house.
That's what he said.

Q.

Why did he say he was going to the house?

A.

He said something about if they didn't like the way
he was running the miner or didn't like his work,
he'd just go to the house.
I told him--I said,
"Melvin, why don't you thirik about it before you quit?"
He said no, he'd just go home.

Q.

Did Mr. Bailey also ask him to stay?

A.

Yes, of course he did.

Importantly, if Mr. Burkhart had done the mucking of the
belt or running the roof bolter or being a roof bolt helper, his
pay would have remained the same as if he were operating the
miner.
Even more importantly to his case here, I believe that
Mr. Burkhart brought up the majority of his complaints to Bailey
after he was told to go and muck the belt line.
I believe his
pride was wounded and he was hurt by what he perceived to be
"harassment." However, even giving him the benefit of the doubt
as to the existence of some prior protected activity, as the
complainant in this case, Mr. Burkhart has the burden of
establishing by a preponderance of the evidence that he not only
communicated safety complaints to mine management 1 or that
management knew or had reason to know about safety complaints to
MSHA, but that the adverse action he complains of was the result
of the complaints and therefore discriminatory.
In essence,
Mr. Burkhart must prove a connection between the com-Plaints and
the adverse action complained of.
I conclude that the required connection has not been proven.
I find the testimony of Bailey and Davis to be credible on the
••quality of the coal" issue and furthermore, the Company's offer
of other coal mine employment at no loss of pay demonstrates good
faith in my opinion. Complainant was not given a "take it or
leave it 11 ultimatum to muck the belt line. He was offered not
one, but two alternatives to mucking the belt line. He chose to
avail himself of neither and ~~it his job.

1020

Whether the respondent wisely chose to replace a more
experienced miner operator with a less experienced one is not an
issue properly before me in this case. My jurisdiction is
limited to considering whether the respondent discriminated
against the complainant for activity protected under the Federal
Mine Safety and Health Act of 1977. I conclude that the evidence
before me establishes that it did not. An employee's mere
conjecture that the employer's explanation is a pretext for
intentional discrimination is an insufficient basis upon which to
base a successful claim of discrimination.
ORDER

In view of the foregoing findings and conclusions, and after
careful consideration of all of the ·evidence and testimony
adduced in this case, I conclude and find that the complainant
here has failed to establish a prima f acie case of discrimination
on the part of the respondent. Accordingly, the Complaint is
DISMISSED, and the complainant's claims for relief are DENIED.

~
Law Judge
Distribution~

Mr. Melvin Burkhart, P. O. Box 292, Kenvir, KY 40847 (Certified
Mail)
Otis Doan, Jr., Esq., 119-A First Street, Harlan, KY 40831
(Certified Mail)
dcp

1021

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

JUN 27 \99l
SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION
(MSHA),
ON BEHALF OF LOUIS C. VASQUEZ, :
Complainant

.

v.

DISCRIMINATION PROCEEDING
Docket No. WEST 90-271-D

Deserado Mine

WESTERN FUELS-UTAH, INC.,
Respondent
DECISION
Appearances:

Before:

Susan J. Eckert, Esq., Office of the Solicitor,
U.S. Department,_of Labor, Denver, Colorado,
for Complainant;
Richard S. Mandelson, Esq., Baker & Hostetler,
Denver, Colorado, for Respondent.

Judge Cetti

This discrimination proceeding is before me upon the Complaint of the Secretary of Labor on behalf of Louis C. Vasquez
under Section 105(c)(2) of the Federal Mine Safety and Health Act
of 1977,,30 U.S.C § 801 et~ the "Act".
~he complaint alleges
that Louis c. Vasquez, an underground coal miner was unlawfully
transferred from the crew he had been working with to a differ1.:0nt
crew on another shift at the same mine in retaliation for his
safety complaints in violation of Section 105(c)(l) of the Acto l
Section 105(c)(l) of the Act provides as

follows~

No person shall discharge or in any manner
discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any minerv representative of
miners or applicant for employment in any coal
or other mine subject to this Act because such
mineru representative of miners or applicant
for employmentu 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 trans-

1022

The complaint requests a finding that Mr. Vasquez's transfer
was the result of unlawful discrimination because he exercised
his statutory rights under the Act and requests reinstatement,
back pay plus interest, and the expungement of all matters relating to the transfer from Mr. Vasquez's employment records.
The
Secretary proposes a civil penalty of $2,000 for the alleged violation of Section 105(c} of the Act.
Western Fuel contends that the transfer complained of was
not motivated in any part by Complainant's protected activity and
that, even had the Complainant established a prima facie case,
a preponderance of the evidence established that Western Fuel had
a valid business reason for transferring Complainant and for this
reason alone transferred Complainant to the other crew.
The hearing was held before me at Glenwood Springs, Colorado, on the merits of Mr. Vasquez's complaint. Helpful post-hearing briefs were filed by both parties which I have considered
along with the entire record in making this decision.
Stipulations
At the hearing, the parties stipulated to the following:
1. Western Fuels-Utah, Inc. is engaged in mining and selling of coal in the United States and its mining operations affect
interstate commerce.
2. Western Fuels-Utah, Inc., is the owner and operator of
Deserado Mine, MSHA I.D. No. 05-03505.
3. Western Fuels-Utah, Inc. is subject to the jurisdiction
of the Federal Mine Safety and Health Act of 1977u 30 u.s.c. §§
801 et seg. ("the Act 11 )
o

cont'd fn.l
fer under a standard published pursuant to
section 101 or because such representative of
miners or applicant for employment has instituted or caused to be instituted any proceedings
under or related to this Act or has testified or
is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or others of any statutory right
afforded by this Act.

1023

4.
matter.

The Administrative Law Judge has jurisdiction in this

5. The 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.
6. The proposed penalty will not affect respondent's ability to continue business.
7. Western Fuels-Utah, Inc., is a large operator of a coal
mine. The total production tons of the controlling company are
1,375,174 tons per year. The total production tons of the mine
are 1,375,174 tons per year, and it has 177 production workers.
Complainant's Case
Messrs. Louis Vasquez, Gary Belveal, Stanley Kretoski, and
Roland Heath (as an adverse witness) were called to testify by
the Complainant~
Mr. Louis Vasquez testified substantially as follows:
LOUIS VASQUEZ began working for Western Fuels on December 13, 1985, as a continuous mine helper. Five or six months
later, he became a continuous mine operator, and became a shear
operator approximately seven months after that.
(Tr. 13-15).

In December 1988, Norm Wallace became the section boss or
foreman on Vasquez's crew. To Vasquez's knowledge, Norm Wallace
did not have any prior experience on the longwall, and at that
time the crew was having problems with the methane gas on the
wallo Beginning in August 1989u Vasquez and his fellow crew
members began checJ<:ing for methane gas every 20 minutes during
their shift because they were having more gas problemso These
gas problems continued from August 1989 to December 1989u when
Vasquez was transferred to a different crew on another shift.
(Tro 19-20, 24-26)e
Between August and December 1989, Vasquez talked to Rick
Kendallu Norm Wallace 1 s immediate supervisor 1 nearly every day
about the gas problems. Vasquez reported the gas problems to
Roland Heathu the mine superintendent in early December 19890
(TL 28-29) o
On December 18, 1989, Rick Kendall picked Vasquez up in a
company truck approximately an hour before the end of his shift.
Kendall told Vasquez that he was being transferred to a different
crew on another shift. Vasquez asked why he was being moved in-

1024

stead of someone else, and Kendall replied that there were problems on the crew. Vasquez asked whether it was because he was
causing trouble on the crew or on the shift. Kendall simply said
that he was doing what the superintendent Roland Heath told him
to do, and Vasquez would have to take up the details with Roland
Heath. Vasquez believes that he had complained about gas problems that day at the beginning of the shift. {Tr. 31).
The next day, Vasquez talked to Roland Heath because he did
not want to be moved off of his shift, as a transfer would interrupt his carpool arrangements. Vasquez also asked Roland Heath
why he was the one being transferred instead of someone else.
Heath replied that there were problems on the crew and that he
had to solve the problems. Vasquez asked whether he had been
causing any problems. Vasquez testified that Heath stated that
Vasquez was the problem and that was why he and Norm Wallace, the
foreman, were being transferred off the shift. {Tr. 34).
On the same day, Vasquez complained to Gary Belveal, the
Union president in his district. Gary Belveal went to speak to
Roland Heath on Vasqu~z's benalf, but the situation was not
changed. Then Vasquez called the MSHA and spoke to Stanley
Kretoski, because he did not think that the transfer was fair to
him. Vasquez believed that he had been transferred off his shift
"just because" he was following his "work procedures as operator"
of shutting the wall down when the methane readings required it.
(Tr. 3 5-3 6) •
Vasquez remained a shear operator after he was transferred,
and received the same rate of pay. However, he did not receive
as much overtime on his new shift. (Tr. 36-38).
Prior to the transfer he worked five days at the wall"
the transfer he worked three days at the wall and two days
1n the unminersu section 11
CTro 35-36L
0

Because of his transfer, Vasquez rotated to the graveyard
shift instead of to the day shift with his old crew. As a resultu he had to drive himself to work the next two week period
because he only had a carpool when he was on the day shift" (Tr"
39L

Vasquez stated that he is also claiming damages for wear and
tear on his car based on oil changes and other things that he had
to do himself" He is also requesting reimbursement for long distance telephone calls he made to the Bureau of Mines in December
19890
{Tro 44)"

1025

Norm Wallace, Vasquez's former foreman, was transferred to a
different "miner section" at the same time Vasquez was transferred. A man named John Claybaugh, who had a temporary shear
bid at the time, replaced Vasquez on his old crew. Scott Nepp
replaced the foreman Norm Wallace.
(Tr. 45).
Jon Hawkins, the other shear operator on Vasquez's former
crew, shut down the longwall for gas problems more frequently
than Vasquez did. Vasquez received training in MSHA regulations,
and one of the items covered in the training is that continuous
miners and shear operators are expected to shut down the longwall
if there is a gas build-up. Vasquez was instructed to shut down
the longwall anytime he had methane in tailgates or headgates-1 percent on the returns and 2 percent on the bleeders. Vasquez
was never disciplined under the collective bargaining agreement
for reporting a gas build-up which resulted in shutting down the
face. There were six people on his crew who had responsibility
for gas readings. To Vasquez's knowledge, no member of his crew
was disciplined for shutting down because of a gas build-up.
(Tr. 50-53) •
There is a 40-cent differential per hour for working the
graveyard shift, and a 30-cent differential per hour for working
the swing shift. Vasquez believes that he was told about his
transfer the week before Christmas, and that he started working
on his new crew the first week in January 1990. Under a normal
rotation process, he would have been on the day shift the first
two weeks of January 1990, but after his transfer he was on the
graveyard shift instead. Because of the transfer, Vasquez received a 40-cent differential per hour for working the graveyard shift the first two weeks in January 1990, although he lost
his carpool arrangements for those two weeks. Vasquez does not
recall taking off the 40 cents extra per hour when he did the
damage calculations on his damage report.
(Tr. 56-63)0
Vasquez had problems with Norm Wallace when he first became
his crew foreman. Vasquez thought that Wallace was not doing his
job, that he was not keeping a constant gas watch on the tailgates and bleeders, and that Wallace got upset whenever someone
tried to explain anything to him. Vasquez believes the first
time he talked to Norm Wallace about gas problems was in August
or September 1989. Wallace did not write Vasquez up for complainingu nor did he consider Vasquez 8 s complaints to be insubordinationo The gas problems occurred from August to November
1989v because a borehole that ventilates gas on the face of the
longwall was not operating properly.
(Tr. 64-70).

1026

Between June and December 1989, three other people asked to
be transferred off Vasquez's old crew. One man, Dewey King,
asked to be transferred because Vasquez gave him a hard time.
Vasquez testified "we were on his (Mr. King's) case because he
had the smell of liquor on his breath."
(Tr. 74-76).
Vasquez admitted he has no knowledge or information that
Roland Heath used any criteria other than seniority in deciding
whom to transfer off his old crew. Jon Hawkins had more seniority than Vasquez on his old crew.
(Tr. 78).
Vasquez had carpool arrangements during 1989 with a man who
worked only day shifts. Thus, Vasquez only drove his car one
week out of two when he was on the day shift. However, he drove
by himself every day when he worked the swing and graveyard
shifts.
(Tr. 79-82).
Petitioner's Exhibit P-1, showing Vasquez's damages, was
prepared by Stanley Kretoski. Vasguez does not have copies of
phone bills to substantiate the amount claimed for long distance
telephone calls. Vasquez's c'laim for lost overtime is based
solely on what another miner on Vasquez's old crew told him about
how much overtime he was getting.
(Tr. 83-84).
Vasguez worked the swing shift during the middle two weeks
of December 1989$ The mine was closed for Christmas week, and
Vasquez began working the graveyard shift the first two weeks in
January 1990. Vasguez worked the swing shift January 15 through
January 28, 1990, (Tr. 89-92), and after that rotated back to the
day shift.
Vasquez's problem with his transfer to the new crew is the
way the company went about doing itv and that Roland Heath called
Vasquez a troublemaker" The transfer also cost Vasquez travel
expenses when he lost his carpool for two weeks and a loss in
overtime pay. Vasquez did not think he received as much overtime
on his new crew assignmento
(Tro 93-94).
Mro Gary Belveal testified substantially as follows:
GARY BELVEAL runs a roof bolter at the Deserado Mine and
is President of Local 1984 of the United Mine Workers. He has
been involved with the safety committee at the mine since mid1987"
(Tro 99-100)" Belveal believes that Vasquez talked to him
about gas problems on the longwall, but could not recall any specific conversations with Vasguez on this subject before he was
transferred. Belveal refreshed his recollection about conversations with Vasguez by looking at his handwritten notes from

1027

December 1989. (Tr. 102-03). Belveal became aware that Vasquez
was being transferred the week of December 20, 1989, when Vasquez
spoke to him about the transfer. Vasquez told Belveal that he
thought he was being transferred because of safety issues he had
brought up on his old crew, and thought it was unfair that he was
being singled out for the transfer. Other members of
Vasquez's former crew, including Jon Hawkins, told Belveal that
they felt Vasquez was being transferred because of his complaints
about gas problems on the wall. (Tr. 104-05).
Belveal testified that he spoke to Roland Heath about
Vasquez's transfer, and Heath told him (Belveal) that the whole
crew was insubordinate and that Vasquez was the cause, which was
why he was being transferred. Belveal then went back to see
Heath again with Al Payne, another miner's representative on the
safety committee. Heath again stated that the entire crew had
been insubordinate and that transferring Vasquez would take care
of the problem. Belveal then .asked Roland Heath if the code-aphone call had anything to do with Vasquez's transfer, and
Heath's response was "No, pa~_tly. " Bel veal had heard through
word of mouth at the -mine that a code-a-phone call had occurred
on December 8, 1989. (Tr. 106-08).
Belveal discussed the situation with Jon Hawkins and Harold
Putney after his conversations with Roland Heath. The first week
in January 1990, Belveal called Stanley Kretoski to see if Vasquez had a justifiable discrimination complaint. (Tr. 109-lO)e
Under Article 13 of the Collective Bargaining Agreement,
Belveal understands that seniority and ability to do work govern
who is transferred when a transfer needs to be made. Belveal
feels that the company has a broad range in choosing who is
transferred under these guidelines 0 and he did not raise
Article 13 with Roland Heath when discussing Vasquez 0 transfero
As far as Belveal knowsu vasquezvs transfer was made on the basis
of seniorityo
CTre 114-17)0
Belveal's handwritten notes from December 1989 did not
reflect that Roland Heath said "No, partlyu" in response to the
question as to whether the transfer was based on the code-a-phone
callo Al Payne, who was with Belveal at the time of Roland
Heathvs statement, wrote that response in his noteso
CTro 117)0
Belveal remembers speaking to Bob Hanson, Director of Safety
at the mine, and stating that they needed to do something about
Vasquez's crew and its supervision prior to December 8, 1989u
when the code-a-phone call occurred. (Tro 123).

1028

Belveal again told Bob Hanson that something had to be done
about the crew and supervisor situation on Vasquez's crew after
December 8, 1989.
(Tr. 123-24).
Belveal also talked to Mike Weigand, his manager, about the
fact that Vasquez's crew and supervision needed to be changed.
(Tr. 128).
Although Vasquez complained to Belveal about gas problems on
the longwall, the most vocal person on this subject was Jon
Hawkins. Jon Hawkins is a member of the Safety Committee. No
safety grievance was filed when the gas problems became acute in
August 1989.
(Tr. 129-31).
MR. STANLEY KRETOSKI, a federal Coal Mine Inspector
headquartered in Denver, Colorado, testified substantially as
follows:
Vasquez first called Kretoski in early January 1990 to discuss his transfer, and Kretoski told Vasquez that he had a right
to file a discrimination claim. Kretoski conducted the actual
investigation at the beserado mine. He spoke to Vasquez, Mike
Yocum, Jon Hawkins, Roland Heath, and Rick Kendall during the
investigation.
(Tr. 137, 151, 152, 154).
During his investigation, Kretoski learned that Vasquez had
been transferred to a different crew and that he had a discrimination claim against management. This conclusion was based
solely on a statement made by Heath to Belveal and Al Payne that
the transfer was "partly" based on the code-a-phone call.
(Tr.
138-39). However, Kretoski did not interview or talk to Al
Payne. He did not completely interview or take a statement from
Gary Belveal. He did not ask Roland Heath or Rick Kendall
whether the transfer was based on the code-a-phone call.
(Tr.
152v 154).
Kretoski prepared Petitioner 1 s Exhibit 1, which itemizes
Vasquez 1 s damages. Vasquez told him that his damages were the
expenses of traveling to and from work four times a week, $200
for wear and tear on his caru and $20 for long distance phone
calls" Vasquez also said that he had lost overtime when he was
transferred. Kretoski calculated the lost overtime based on five
hours lost per pay period. He has no documentation for using
five hours per pay period. Vasquez claims that during the first
three quarters of 1990u the total lost overtime and interest
totals $225.57.
(Tr. 141-146).

1029

Kretoski did not look at any records from the Deserado Mine
in compiling the overtime figures delineated in Petitioner's
Exhibit 1. He is aware that management keeps records of overtime, but did not request to see these records when he was conducting his investigation at the mine, or in preparation for his
hearing testimony. Kretoski spent one afternoon at the Deserado
Mine in making his investigation. (Tr 155-56, 157).
Respondent's Case
MR. ROLAND HEATH the Mine Superintendent at the Deserado
Mine for approximately one and one-half years testified substantially as follows:

Heath was aware that there were gas problems in one section
of the mine beginning approximately in August 1989. He does not
specifically recall talking to Vasquez about the gas problems,
but does recall discussing concerns about gas buildups with some
of the crew members. He spoke to Norm Wallace many times about
this problem--especially from late September to mid-November 1990.
(Tr. 161-63).
'·· .
...
Heath testified he thought that Norm Wallace was having problems with his crew from August through December 1989. Heath
felt that Norm Wallace was generally ineffective with the crew in
getting things accomplished. However, Heath left Norm Wallace on
the crew for four months because he wanted Wallace to have the
chance to work with the crew and solve the problems on his own.
(Tr. 164-65).
Both Rick Kendall and Norm Wallace mentioned to Heath that
Vasquez's crew was giving them problems. The crew was not doing
what it was toldu it was taking over and directing other workers 1
and generally causing problemso The crew heckled Dewey King 8 and
eventually it came to a point where King asked to be transferred
to another crewo (Trs 165)0
Vasquez and two other members of the crew, Jon Hawkins and
Mike Yocum, were called the "cartel" by management because of the
problems they were causingo
(Tro 178)0 Heath testified that
00
these three guys were pushing people around 11 o They were VI doing
things and kind of pushing Norm (their foreman) out of the way."
They "bullied everybody else around and paid little attention to
the foreman.~ (Tro 161).
On December 12, 1989, there was a meeting between Roland
Heath, Gary Belveal, Mike Weigand, Harold Putney (another member
of the safety committee) and possibly a few others to determine

1030

what to do about the personnel problems on Vasquez's crew. Gary
Belveal, UMW local 1984 President, made a strong push for changes
on the crew because of the personnel problems. CTr. 166-67).
After this meeting, Roland Heath spoke to Mike Weigand, his
boss, and they decided to make some moves on the crews. They
decided that the problems on the crew centered on the foreman
Norm Wallace, Mike Yocum, Jon Hawkins and Louis Vasquez.
Roland Heath met with his three shift supervisors (including
Rick Kendall) on Monday, December 18, 1989, to decide what
changes to make. (Tr. 167).
The first decision made was to transfer Norm Wallace onto
another crew. Roland Heath and the shift supervisors then decided to break up the "cartel" by transferring one of the members
onto the other longwall crew. There are only two longwall crews
in operation, so it made sense to transfer only one member of the
"cartel," since two members of "cartel" would still end up together in any event. CTr. 169).
Asked by the Solicitor "Why did you only move one man if you
wanted to split up the crew?" Mr. Heath replied as follows:
I'll go through it again. You got two crews
that are very essentially all bid positions, in
except for a few positions. But the guys that
we're talking about have bid positions. Okay?
You got three guys, you got two crews. All
right? The only thing you can do, effectively
--I mean you can 1 t--you 1 re moving two of them
is crazy, so, because you got more people to
move around. So really, the best thing to do
is move one guyv leave the other two together.
So itis--we just want a logical thing that
helped to break this group upe We needed to
move them. We can only move one. Now, we
didn't go on discipline or anything like this.
It was how to do this thing so that the foreman
coming in donut have to contend with this group
of three guys.
(Tr 17 9) •
o

Heathis first choice was to move Mike Yocum, but he was the
papered man 11 on the shift and had to remain there to take over
if the foremen were sick or there was an emergency. Having a
papered foreman on each production shift is required by statute.
(Tr. 168-69, 183-84).
00

1031

Because Mike Yocum could not be transferred, the only two
other choices were Jon Hawkins and Louis Vasquez. From a seniority standpoint, Jon Hawkins had more seniority, and thus Vasquez
was transferred to the other crew.
(Tr. 168-69).
A few days after Rick Kendall told Vasquez about his transfer, Belveal and another miner came in to speak to Heath. Heath
explained that Belveal had already been aware that they were going to change the foreman and change the crew from the meeting on
December 12, 1989. Sometime during this discussion, Vasquez
stuck his head in the door and asked why he had been transferred.
Heath tried to explain to him that he was not being singled out,
but they were trying to split up the crew so that things would
work out with the new foreman coming in. Heath did not tell
Vasquez that he was the problem on the crew. He also did not say
that Vasquez was transferred because of the code-a-phone call.
(Tr. 175).
After the transfer decisions were made, Heath wrote a letter
to Norm Wallace explaining what he needed to do to improve his
management skills. In this l~tter 1 Heath said that it was evident things weren't going very well down on the longwall face,
and mentioned various problems which had been brought to his
attention, including the code-a-phone call.
(Tr. 177-78).
Heath is aware that there was a code-a-phone call on
December 8, 1989, but he does not know who made the call.
185-86}.
crew.

(Tr.

Vasquez has never asked to be transferred back to his former
(Tr. 187).

Heath had no objection to Vasquez's shutting down the longwall because of gas problems on his old crewo This was part of
job and in accordance with company policyo Howeveru Vasquez
would double check Norm Wallaceis safety checks as soon as
Wallace had finished. This amounted to distrust of the foreman
and this lack of respect and trust was one of the problems on the
old crew.
CTr. 193).
It was part of Vasquez gs job as a shear operator to monitor
and shut down the machine when it reached too high a methane gas
levelo Vasquez was never disciplined for carrying out this portion of his job.
(Tr. 195-96).
GARTH CONDIE, Human Resources Director at the Deserado
Mine, testified substantially as follows:

1032

Part of Candie's job is to maintain overtime turnsheets in
order to try and equalize overtime among the employees in a particular department. The Collective Bargaining Agreement requires
the mine to split up overtime among the workers. (Tr. 197-198,
207).
Condie's testimony was based upon the mine's records of
overtime worked (or offered and refused by workers) from November
1989 through the end of the third quarter of 1990. These overtime records were admitted as Respondent's Exhibit 4. (Tr. 205).
The overtime worked (or offered to and refused) by Jon Hawkins
and Vasquez is as follows:
Period Ending

Overtime Hours

November 30, 1989

82
72

Hawkins
Vasquez

First Quarter, 1990

110
96

Hawkins
Vasquez

April 30, 1990

123.75
107

Hawkins
Vasquez

June 22, 1990

18.5
12.5

Hawkins
Vasguez

September 28, 1990

38
71.5

Hawkins
Vasguez

FINDINGS AND CONCLUSIONS
In order to establish a prima facie case of discrimination
under Section 105(c) of the Act 1 a complaining miner bears the
burden of proving by a preponderance of the evidence that (1) he
engaged in activity protected under the Act1 and (2) the adverse
action complained of was motivated in any part by the protected
activityo Secretary on behalf of Pasula v. Consolidation Coal
Co.u 2 FMSHRC 2786u 2797-2800 {1980), rev'd on other grounds, sub
nomo Consolidation Coal Co. v. Marshall 663 F.2d 6 1211 (3d Cir-o~
1981)9 Secretary on behalf of Robinette v. United Castle Coal
Companyu 3 FMSHRC 803ff 817-818 (April 1980)u
The mine operator may rebut a prima f acie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity. If the
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was

1033

motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected activity. Pasula, supra, Robinette, supra; see also Eastern Associated
Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan
v. Stafford Construction Co., 732 F2d 954 CD.C. Cir. 1984); Baich
v. FMSHRC, 719 F2d 194 (6 Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test). See NLRB v. Transportation
Management Corporation, 462 U.S. 393 (1983}, approving a nearly
identical test under the National Labor Relations Act.
At the relevant time beginning about December 1988, Norm
Wallace was the section boss or foreman of Complainant's crew.
Complainant Louis C. Vasquez was the shear operator in that crew
consisting of six underground miners working on a longwall face
in the mine. Roland Heath, the mine superintendent, became aware
of problems on the Complainant's crew when workers on that crew
began complaining about personnel problems after Norm Wallace
became the foreman.
CTr. 160-61). These workers told Heath that
there was a group of guys on the crew (including Complainant) who
bullied crew members and pushed the foreman around. (Tr. 160-61).
Three crew members asked to be Cand were) transferred off this
crew after the personnel problems began. The personnel problems
became so bad that mine management began calling Complainant and
two of his co-workers, Jon Hawkins and Mike Yocum, the 11 cartel 11
because of the problems they were causing. (Tr. 178). The "cartel" would double check the procedures and directions of their
foreman as soon as he had finished. This showed a distrust of
the foreman.
Management also had another personnel problem on this crew.
Superintendent Heath regarded foreman Norm Wallace as ineffective
when it came to getting things accomplished with his crew. (Tr.
163)0 Although Superintendent Heath became aware of escalating
problems on the crew in August 1989q he left Norm Wallace on the
crew for four more months in order to give him a chance to work
things out and solve the problemso
The personnel problems on Complainant's crew were also well
known to the Union officials at the mine. Gary Belveal, president of Local 1984, discussed the problems on the crew with Bob
Hansonf the Director of Safety at the mine on at least two occasions in early December, 1989. Belveal stated that they needed
to do something about Complainant's crew and its supervision.
(Tro 123)0 Belveal also told Mike Weigand, his manager, that
something needed to be done to change the workers on Complainant 1 s crew and the supervisor.

1034

During the same time period as the personnel problems on
Complainant's crew, there were also problems with methane gas on
the section of the longwall where the crew was working.
(Tr.
24-5, 162-3). Complainant, in accordance with the operator's
policy of complying with the methane safety regulations, would
when the methane gas readings required it ask for all power on
the longwall face to be shut down several times during his shift.
Jon Hawkins requested shutdowns of the long wall because of this
problem even more often than Complainant did. Neither was reprimanded or disciplined for doing this. It was a part of their job.
From August to December 1989, Complainant talked to Rick Kendall,
Norm Wallace's immediate supervisor, every day concerning the gas
problems on the longwall. Jon Hawkins spoke to Gary Belveal, the
Union president, about these gas problems during the fall of
1989, but Belveal cannot recall Complainant's talking to him on
this subject prior to December 18, 1989. No one on Complainant's
crew was ever reprimanded for complaining about the gas problems
to their foreman or other members of mine management.
On December 12, 1989, Roland Heath decided to solve the personnel problems on Complainant's crew by transferring two people,
the Complainant and foreman Norm Wallace, to different crews.
(Tr. 166). The first decision was to transfer Norm Wallace to
another crew because he had never overcome his problem in dealing
effectively with Complainant's crew. The next decision centered
on breaking up the "cartel" so that the new foreman would not
have to walk into the same situation that Norm Wallace could not
control.
(Tr. 167). There are only two longwall crews, so the
only solution was to move one of the three workers onto the other
crew (because in any event, two members of the so-called cartel
would still be on the same crew).
Roland Heath and the shift supervisors wanted to move Mike
Yocumv but Yocum was the 1'papered man" on the crew (the only one
who could take over for the foreman in case of illness or an
emergency
Thusv the only candidates for transfer were Jon Hawkins and the Complainant, and Complainant was chosen because he
had less seniority than Hawkins.
o

On December 8v 1989u someone from the mine made an anonymous
"code-a-phonen call to MSHA to report a safety violation. Although Complainant alleges that members of the mine management
connected him with the phone call, the uncontroverted evidence at
the hearing established that Roland Heath did not, and still does
not know who made the phone call and there is no evidence that
anyone in management knows to this day who made the call.
Complainant, as a result of the transfer, remained a shear

1035

operator at the same rate of pay.
(Tr. 37). Although he claims
to be getting less overtime than he did on his old crew, this
claim is not entirely accurate. The overtime records for the
mine (Respondent's Exhibit 4) indicate that although Complainant
had slightly less number of overtime hours on his new crew
through the third quarter of 1990 as Jon Hawkins had on the old
crew (Tr. 203-05) during the period from May 5, 1990, through
September 28, 1990, Complainant received 71.5 hours of overtime,
while Jon Hawkins received only 38. It is also noted that Complainant has never requested, and is not now requesting, a
transfer back to his former crew.
(Tr. 208).
On careful review of the evidence, I find there is no credible evidence linking the decision to transfer Complainant to another crew and any safety complaints or other protective activity
in which he may have engaged.
There is no reliable or credible evidence in the record to
establish that Complainant was transferred to another crew because of protected activity ,§uch as complaining about gas problems on the longwall or because anyone thought that he may have
made the code-a-phone call. I find no persuasive evidence on
which to base an inference that Complainant's transfer was motivated by any protected activity.
I credit the testimony of Superintendent Heath who made the
decision to ,transfer Mr. Vasquez. He testified that the transfer
was a business decision which had no relation to Complainant's
safety complaints. The uncontroverted evidence at the hearing
established that Mr. Heath did not know who made the code-a-phone
call when he made the decision to transfer Complainant and still
does not know who made the code-a-phone call.
The sole reference to a possible connection between Complainant 0 s transfer and the code-a-phone call occurred when Gary
Belveal used notes allegedly taken by another miner, Al Payne
(who was not present at the hearing and did not testify), following a discussion between Belveal, Al Payne, and Roland Heath.
However, these notes were not offered into evidence, and Gary
Belveal did not testify that he had an independent recollection
of what Roland Heath said at that meeting.
I find Mr. Vasquez has failed to establish a prima facie
violation of§ 105(c). He has not shown that his transfer was
motivated in part by his safety complaints or other protected
activity. There is no reliable evidence tending to show that
Complainant was ever harassed or punished for his safety concerns, which everyone who testified agreed were part of his job

1036

duties. It is also noted that the uncontroverted evidence established that Jon Hawkins <who was not transferred) and not the
Complainant, was the most vocal safety complainer on the crew.
II

Once a complainant has established a prima facie case of a
violation of§ 105Cc), an employer may affirmatively defend by
proving that although part of the motive in the discrimination
was unlawful: (a) the employer was also motivated by the miner's
unprotected activities: and Cb) the employer would have taken the
same adverse action against the miner in any event for the unprotected activities alone. Pasula v. Consolidation Coal Co., 2
MSHC at 1010. This affirmative defense must be established by a
preponderance of the evidence and is known as the "mixed motive"
test. Chacon v. Phelps Dodge Corp., 2 MSHC 1505, 1509 (1980).
Once an employer establishes that it had a valid business reason
for the alleged discrimination, then the court reviews only the
credibility of the business decision--not its fairness. Id. at
1511; Johnson v. Scotts Branch Mine, 4 MSHC 1631, 1632 (1987).
Thus, the narrow issu~ is whe'ther the proffered reason was enough
to have legitimately motivated the employer to have disciplined
or as in this case transferred the miner. Chacon, 2 MSHC at
1511.
In Johnson v. Scotts Branch Mine, 4 MSHC 1631 (1987), a
miner alleged he had been transferred to a less favorable position in retaliation for making safety complaints. Although safety complaints are obviously a protected activity under the Act,
the Judge held that there was no evidence that the miner had been
transferred for making them. In contrast, the evidence established that the miner was transferred as a part of a larger plan
to eliminate problems on his former areas of complaints and lagging productiono The Judge dismissed the complaint, holding that
the miner~s transfer was "well within the managerial and discretionary authority of mine management," and that mine management
had sustained its burden of proof on its affirmative defense by
establishing a valid business reason for the transfer.
Like the Johnson case, mine management in the instant case
had a valid business reason for transferring the Complainant.
The evidence at the hearing established that mine management made
a business decision to transfer the Complainant in order to solve
the personnel problems on his crew. Further, Complainant was not
singled out in any way--his foreman was also transferred to another (different) crew. These two transfers were made only after
management decided that they were the best way to solve serious

1037

personnel difficulties on the crews (Tr. 166-69). In fact, the
evidence also established that Complainant was not the first candidate for transfer-- but he was the final choice because the
first choice was the "papered man" on the crew who had to remain
because he alone could take over for an absent foreman, and the
other member of the "cartel" had more seniority than Complainant.
Because of this factual situation, Mr. Vasquez was the logical
member of the cartel who could be transferred and the transfer
would have occurred whether or not Complainant had made safety
complaints or engaged in other protected activity. Thus, the
transfer of Vasquez plus that of a supervisor was clearly part of
a larger plan to solve a bad working situation on Complainant's
former crew.
western Fuels made a valid business decision in transferring
the Complainant to another crew. Western Fuels has met its burden of proof under the mixed motive test by establishing that the
transfer was based upon a valid legitimate, business decision.
It was not a mere pretext. In Secretary of Labor/Chacon v.
Phelps Dodge Corp. supra, the Commission in reversing the Administrative Law Judge's_ finding' of discrimination stated as
follows:
Once it appears that a proffered business justification is not plainly incredible or implausible, a finding of pretext is inappropriate.
We and our judges should not substitute for the
operator's business judgment our views on "good"
business practice or on whether a particular adverse action was "just" or "wise."
ORDER

Based on the foregoing findings and conclusions, and on the
basis of a preponderance of all of the credible testimony and
most reliable evidence adduced in this case, I conclude and find
that the Complainant has failed to establish that his transfer to
another crew was discriminatory, or was motivated by the Respondent 1s intent to prevent him, discipline him or retaliate against
him for exercising any protected rights with respect to his employment as a miner. Even had the Complainant established a
prima facie case, I conclude that it was rebutted by the Respondent 1 s credible evidence which established that the transfer constituted a reasonable and plausible business-related and non-discriminatory effort by management to solve longstanding concerns

1038

about personnel problems on Complainant's former crew. It was a
valid business decision. Accordingly, the complaint is
DISMISSED.

st F. Cetti
nistrative Law Judge

Distribution:
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>
Richard S. Mandelson, Esq., WESTERN FUELS-UTAH, INC., 303 East 17
Avenue, Suite #1100, Denver, CO 80203 (Certified Mail)
Mr. Louis c. Vasquez, 628 Ft. Uncompahgre Street, Grand Junction,
CO 81504 (Certified Mail)

sh

1039

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

JUN 271991
CYPRUS EMPIRE CORPORATION,
Contestant

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION,
Respondent
UNITED MINE WORKERS OF
AMERICA (UMWA)
Intervenor

:

CONTEST PROCEEDINGS

.
:
.

Docket No. WEST 91-454-R
Citation No. 3410886; 6/3/91

.

.

Docket No. WEST 91-455-R
Citation No. 3410887; 6/3/91
Docket No. WEST 91-456-R
Citation No. 3410889; 6/4/91
Eagle No. 5 Mine

05-01370

DECISION
Appearances:

R. Henry Moore, Esq., Buchanan Ingersoll Professional corporation, Pittsburgh, Pennsylvania,
for Contestant;
Margaret A. Miller, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Respondent;
Robert L. Jennings, Representative of United Mine
workers of America, Price, Utah,
for Intervernor.

Beforeg

Judge Morris

This is a contest proceeding arising under the Federal Mine
Safety and Health Actq 30 U.S.Co § 80lu et~ (the "Act")o
An expedited hearing on the merits was held in Denver,
Coloradou on June 11, 1991.
The parties waived receipt of the complete transcript but
filed post-trial briefs and further requested an expedited
decision"
ISSUE
Whether striking employees who selected Dean Carey to represent them as a walk-around representative are considered to be
"miners" as defined in § l03(f) 1 of the Act.

1

Section 103(£) of the Act provides as follows:
"Cf> Subject to regulations issued by the
Secretary, a representative of the operator
1040

Enforcement activities: on June 3, 1991, MSHA Inspector
Ervin St. Louis issued Citation No. 3410886 for a violation of
§ 103Cf) of the Act.
The text of the citation is set forth in
paragraph 5 of the stipulation, infra.
On the same day, approximately 40 minutes later, the inspector issued Order No. 3410887. The text of the order is set forth
in paragraph 6 of the stipulation, infra.
On June 4, 1991, the inspector issued Order No. 3410889.
The text of the order is set forth in paragraph 11 of the stipulation, infra.

fn. 1 continued
and a representative authorized by his miners
shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical inspection of any coal or other
mine made pursuant to the provisions of subsectiort Ca), for the purpose of aiding such inspection and to participate in pre- or post-inspection conferences held at the mine. Where there
is no authorized miner representative, the Secretary or his authorized repesentative shall
consult with a reasonable number of miners concerning matters of health and safety in such
mine. Such representative of miners who is also an employee of the operator shall suffer no
loss of pay during the period of his participation in the inspection made under this subsection
To the extent that the Secretary or authorized representative of the Secretary determines that more than one representative from
each party would further aid the inspection,
he can permit each party to have the equal
number of such additional representativeso
Howeverq only one such representative of miners
who is an employee of the operator shall be
entitled to suffer no loss of pay during the
period of such participation under the provisions of this subsection. Compliance with
this subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of this Act.
a

1041

The inspector later modified the order to state that Order
No. 3410887 had not been modified, vacated, or terminated (with
the exception of a time correction).
STIPULATION
At the hearing the parties stipulated as follows:
1. Empire operates Eagle Number 5 Mine, I.D No. 05-01370,
located in Craig, Colorado. It is an underground bituminous coal
mine and is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977.
2. The administrative law judge has jurisdiction over these
proceedings under Section 105Ca) of the Act.
3. The citations, orders, and modifications thereto were
properly served by a duly authorized representative of the Secretary upon an agent of Empire at the dates and places therein, and
may be admitted into evidence for the purpose of establishing
their issuance.
4. Citation No. 3410886 was issued on June 3, 1991, at 6:05
a.m., pursuant to Section 104(a) of the Act, 30 u.s.c. 814(a),
and alleged a violation of 103Cf) of the Federal Mine Safety and
Health Act of 1977.
5. Under the heading and caption, condition, or practice,
Citation No. 3410886 alleges as follows:
The representative of the miners requested at
the mine off ice the right to accompany an MSHA
authorized representative of the Secretary during an MSHA Triple A inspection. Mine management refused entry to the mine property. The
miners are on strike and have pickets on the
road to the mine outside of the mine property.
Mine management denied the representative of
the miners entry on mine property to accompany the authorized representative during the
inspection conferenceo The citation was not
designated significant and subtantial and the
time for abatement was set of 6:45 a.m.
6. The contest of Citation No. 3410886 is docketed at
number WEST 91-454-R. After Citation No. 3410886 was issued,
Order No. 3410887 was issued pursuant to Section 104(b) of the
act for failure to abate Citation No. 3410886. Under the heading
and caption, condition, or practice, Order No. 3410887 alleges as
follows:

1042

Mine management would not allow the representative of the miners to accompany the authorized
representative of the Secretary during the Triple
A inspection of the mine. Cyprus Empire Corporation management refused admittance of the United
Mine Workers of America, Local 1799, members to
be present as miners representatives in the course
of the Triple A regular inspection, and any MSHA
discussion of actions during this period UMWA
memberships is on strike.
7. The miners on the job have elected Mr. Jim Shubin as
their representative.
8. A subsequent modification was issued, modification number 3, to the order amending the body of the order and putting
the words at the beginning of the second paragraph. The company's position is that the miners on the job have elected Mr. Jim
Shubin as their representative.
9. The contest of Orde·r No., 3410887 is docketed at WEST
91-455-R.
10. Citation No. 3410889 was issued on June 4, 1991, pursuant to Section 104(b) of the Act for a failure to abate Citation No. 3410886.
11. Under the heading and caption, condition, or practice,
Citation No. 3410889 alleges as follows:
The operator, Cyprus Empire Corporation, continues to refuse the miners' representative
the right to accompany authorized representative of the Secretary during the Triple A
inspection being conducted at the Eagle No.
5 Mineu I.Do 05-013700 The operator continues to maintain the mine in operable condition
and operates the long wall when needed to protect the tailgate and the long wall itself
from adverse conditions.
The inspector subsequently issued a modification and added
that Order Noa 3410887 had not been modified, vacated, or terminated (with the exception of the time correction}"
12. The contest of Citation No. 3410889 was docketed at
WEST 91-456-R.

1043

13. On May 12, 1991, the collective bargaining agreement between Empire and its hourly employees expired. The hourly employees are represented by the United Mine Workers of America for
the purpose of collective bargaining. There is presently no collective bargaining agreement in effect. The hourly employees
commenced the strike on or about May 13, 1991, related to the negotiatons over a new collective bargaining agreement. Thereafter, Empire resumed mining operations utilizing its salaried
employees.
14. The mining operations include operation of the longwall
mining equipment in order to move the long wall face forward to
avoid adverse mining conditions. Other mining activities include
mine maintenance-type work, including pumping and building of
ventilation control.
15. The employees working at the Eagle No. 5 Mine on June 3,
1991, selected James A. Shubin as their representative for the
purpose of accompanying MSHA inspector Irvin St. Louis during his
AAA inspection of the Eagle No. 5 mine on those days and all
subsequent days. Mr. Shubin accompanied Mr. St. Louis on his
inspections.

16. Prior to May 13, 1991, the following hourly employees,
who are members of the United Mine Workers and who worked at the
mine, were designated pursuant to 30 C.F.R. § 40.30 as representative of the employees: Dean carey, Eugene Vezie, and Chencho
Salazar. such persons are currently on strike and, moreover, the
persons who designated such persons as their representatives are
currently on strike.
170 On Monday, June 3, 1991, Inspector St. Louis arrived at
the Eagle No. 5 Mine for the purposes of conducting a regular
quarterly inspection. At that time he indicated that Dean Carey
wished to accompany him as a walk-around.
180 Empire refused to permit Dean Carey or any other UMW
official or representaive to enter the mine and accompany Inspector St. Louis during the inspection.

19. At the time of his inspection on June 3u 199lv Inspector
St. Louis was informed of Empire 1 s position and that conversations with MSHAas District 9 office had been conducted
previously.
200 On June 3, 1991, Solicitor Margaret Miller informed
Counsel for Empire, R. Henry Moore, that if Empire contested the
citation, and requested an expedited hearing, MSHA would not
implement Section llO(b) of the Act nor propose a civil penalty
of up to $5,000 for each day that a failure to correct occurred.

1044

THE EVIDENCE
The evidence is uncontroverted:
IRVIN ST. LOUIS of Craig,
Colorado, has been an MSHA inspector for 11 years. He is
experienced in mine safety.
On June 3, 1991, Inspector St. Louis intended to conduct an
AAA inspection at Eagle No. 5 Mine. This was the first inspection since the miners, represented by UMWA, had gone on strike at
the mine.
On June 3, 1991, the inspector met Dean Carey of the UMWA
and Bill Ivy, Mine Manager. Mr. Carey requested the right to
travel with the inspector, but Mr. Ivy refused. Mr. Ivy stated
that the miners had elected Jim Shubin as the miners' safety
representative. 2 On previous occasions, Carey, Shubin, and Ivy
had traveled with the MSHA inspector.
After some discussion, the inspector wrote a 104Ca) citation.
When the Company did not agree to let Mr. carey travel with him,
a Section 104Cb) was issued~ (See Exs. S-1, S-2, S-3).
Mr. Ivy gave no indication the Company would comply and the
original citation remains in effect at the time of the hearing.
On May 30, 1991, a UMWA picket line had been set up at the
mine.
Inspector St. Louis conducted his normal inspection on
June 3, 4, and 5, 1991.
DEAN CAREY, a person experienced in mining, is currently
5 Mine.

on strike at the Eagle Noo

Mro Carey is a bargaining representative of the UMWA and the
chairman of the Mine Safety Committee. He has accompanied federal inspectors and has been the walk-around representative at
the mine of nine years.
The entire bargaining unit of the UMWA went on strike at the
mine on May 130 No UMWA member has crossed the picket line.
Mro Carey learned from the picket line that Mr. St. Louis
was to conduct an inspection. He requested permission from
Mro Ivy to accompany the inspector. Mr. Ivy refused the requesto

2

Mr. Shubin is a safety inspector for Empire.

1045

The mine has been a strike four weeks and one day. The last
bargaining session was May 10, 1991. Mr. Carey expects further
bargaining sessions; further, he expects to resume work.
A strike six years ago lasted 79 days. The striking miners
receive compensation from the union strike fund.
Mr. Carey wants to do a walk-around inspection to be sure
the mine is safe when the miners return. As a miners' representative, Mr. Carey can request a Section 103Cg) inspection.
JOHN CAYLOR, a person experienced in mining and safety,
works for Empire's parent company, Cyprus Coal.
After the citation and order were issued, Mr. Caylor contacted William Holgate, MSHA's District 9 manager. He was attempting to avoid additional failure to abate orders. He further
advised Mr. Holgate that Empire intended to challenge the
citations.
The company has had good,"relations with MSHA and, if possible, he hoped that litigation could be avoided.
The witness believed there was a principle involved. The
safety of the miners was not at risk since they were not underground. Further, he felt a failure to abate order would indicate
Empire was a recalcitrant operator. The company wanted to avoid
such an impression.
Mr. Caylor acknowledged that Mr. Carey had been designated
as a walk-around representative by the UMWA. Mr. Shubin had been
so designated before Inspector St. Louis and Mr. Carey arrived at
the mine off ice.
DALE IVYv the mine general managerv has been engaged in
mining since 1969.
The collective bargaining agreement expired on May 12, 1991.
Since then, coal has been mined on a limited basis, one shift a
day. The salaried workers underground are not members of the
UMWA. The hourly employees have not been replaced.
The underground workers have rock-dusted, conducted weekly
examinations, and run the longwall once a week to prevent adverse roof conditiions from developing.
On June 3, Mr. Ivy talked to Inspector St. Louis. He further read Section 103(f) of the Act and stated that Jim Shubin of

1046

the safety department had accompanied the MSHA inspector.
He
further decided Mr. Carey should not accompany the inspector because the UMWA was on strike. On June 3, and 4, Mr. Shubin in
his walk-around was representing both the miners and the
operator.
When the citation was issued, Mr. Ivy told the inspector the
company was complying with the Act.
JERRY TAYLOR, an engineering coordinator for MSHA,
processes all of the requests submitted to MSHA that require
approval.
In Mr. Taylor's opinion, Inspector St. Louis gave the
operator a reasonable time to abate the citation. Abatement
could be accomplished by the company's agreeing to Mr. Carey's
request to accompany the inspector.
For various reasons, MSHA does not allow a hearing on the
merits before issuing a failure to abate order.
The paperwork supporting Mr. Shubin as a walk-around representative was receivd by MSHA on June 10, 1991.
It is MSHA's view that Mr. Shubin does not represent the
miners. He represents the operator since he was chosen by
salaried management employees and not miners.
MSHA's policy manual and publications do not address situations where the miners are on strike. At the time of the hearing, the striking employees are not doing anything at the mine.
DISCUSSION
The issuev as set forth above 1 can be simply restated:
Are striking employees entitled to walk-around rights under
Section 103(f) of the Act?
There is no exact precedent controlling in this factual
situation but several cases have considered closely related
issueso
As a threshold matter:
Section 3(g) of the Act defines a
as ~000 any individual working in a coal or other mine.H
It is further uncontroverted that no union miners had worked
underground since the strike had begun.
~miner~

In Westmoreland Coal Company, 11 FMSHRC 960 (1989), the Commission reviewed the issue of whether individuals who obtained

1047

training at their own expense during a layoff were entitled to
reimbursement. The Commission held that individuals in a layoff
status are not miners. 11 FMSHRC at 964.
In Emery Mining Corporation v. Secretary of Labor, 783 F.2d
155 CC.A. 10 1986), the operator refused to compensate its miner
employees for training they received before they were hired.
In
ruling that the company's policy did not violate the Act, the
Court noted that none of the Complainants therein were miners or
employed by the operator at the time they took the training.
If
they were not "miners," they were not entitled to compensation,
783 F.2d at 159.
In Brock on behalf of Williams v. Peabody Coal Company, 822
F.2d 1134 (D.C. Cir. 1987), the operator, in rehiring laid-off
employees, passed over some individuals at the top of the list
because they had not received safety training.
In ruling against
the Secretary's position, the Court determined that the miners
were on layoff and not working in a coal mine.
In sum, individuals in layoff status are not miners. See also the recent final
decision of Commissiqn Judge'"Avram Weisberger involving miners on
strike in Aloe Coal Company, 12 FMSHRC 2113 (October 1990).
In support of their positions, the Secretary and the Intervenor rely on an oral order of Commission Judge James A. Broderick in Clinchfield Coal Company, 3 Va 89-67-R.
In Clinchf ield the operator was contesting an MSHA closure
order. Over the operator's objections, Judge Broderick permitted
the UMWA to intervene as a representative of miners under Section
3(g) of the Act.
By way of analogyu Judge Broderick observed thatv under the
Labor Management Actv striking employees are nevertheless treated
as employees and are entitled to the protection afforded by the
Labor Acto

3

Judge Broderick 1 s decision, published at 11 FMSHRC 1568
Cl989)u does not discuss his prior oral order.
Further, the
Commission in its review did not discuss the issue, 11
FMSHRC 2120 Cl989)o The reference to the rights of the
striking miners arises from a transcript containing Judge
Broderick's order. The transcript was attached to Petitioner's brief.

1048

The Judge further observed in Clinchf ield that the UMWA and
the company were engaged in bargaining efforts. In addition, a
settlement of the strike could result in miners' returning to
work.
Judge Broderick distinguished those cases involving individual rights, claims for compensation, and training provisions.
He indicated such cases are essentially different from those situations where miners are entitled to participate in challenges to
closure orders.
Judge Broderick's statement as to "training provisions"
appears to be a reference to Emery Mining Corporation, supra.
However, the training of miners can be just as critical as
walk-around rights under Section 103(f) of the Act.
On the basis of Clinchf ield, the Secretary presents a strong
argument to distinguish five established cases. However, the
Commission and the Appellate Court have not gone beyond the plain
meaning of the statutory words in Section 3Cg).
In short, the miners involved in this case were "not working
in a coal or other mine." Hence, they do not qualify as miners
under Section 103Cf).
For the foregoing reasons, I enter the following:

ORDER
1. The contest of Citation No. 3410886 is SUSTAINED and
the citation is VACATED.
2o The contest of Order No. 3410887 is SUSTAINED and
the order is VACATEDo
3o The contest of Order Noo 3410889 is SUSTAINED and
the order is VACATED.

Law Judge
Distribution:
R. Henry Moore, Esq., BUCHANAN INGERSOLL, P.C., USX Tower 57th
Floor, 600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)

1049

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 L. Jennings, Representative of UMWA, P.O. Box 84501,
Price, UT 84501 (Certified Mail)

ek

1050

ADMINISTRATIVE LAW JUDGE ORDERS

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

May 29, 1991

DONALD NORTHCUTT, GENE MYERS,
AND TED EBERLE,
Complainants

DISCRIMINATION PROCEEDING
Docket No. CENT 89-162-DM
Ada Quarry & Plant

v.
IDEAL BASIC INDUSTRIES, INC.,
Respondent
ORDER

The Commission, after granting interlocutory review, has
remanded the above ca;ie and drrected ·the Judge to consider the
present Section 105(c)C3) complaint in light of the principles
set forth in the Commission decision of Bradley v. Belva Coal
Company, 4 FMSHRC 982 (June 4, 1982), ·2 MSHC 1729. The order
of remand appears at 13 FMSHRC 327 (March 1991).
The parties filed .briefs on the issues raised by the order
of remand.
It is necessary to analyze the question of whether the dismissal of the Northcutt, Myers, and Eberle counterclaim in the
U.S. District Court (Case No. 88-186-C) precludes litigation of
their Mine Act claim or issues arising under that claim.
Since. this case arises under a federal statuteu the federal
la;w of preclusionu rather than state law, must provide the criteria for analysis. Maher v. City of New Orleansv 516 F.2d 1051,
1056 (5th Cir. 1975), cert. denied, 426 U.S. 905 (1976).
Under the federal doctrine of ~ judicata, a judgment by a
court of competent jurisdiction on the merits in a prior suit
bars a second suit involving the same parties or their privies
based on the same claim. Lawlor v. National Screen Service
Corp., 349 U.S. 322, 326 (1955); Commissioner v. Sunnen, 333 U.S.
591, 597 (1948). ~ judicata also forecloses litigation in a
second action of grounds for, or defenses to, the first claim
that were legally available to the parties, even if they were not
actually litigated in the first action. Brown v. Felsen, 442
U.S. 127, 131 (1978). Res judicata may be applied to the decision of administrative agencies acting in a judicial capacity.
In this case, the crucial ~ judicata question is whether Complainants• state and federal claims action are identical; if they
are not, ~ judicata is inapplicable. See Newport News Ship
Building & Dry Dock v. Director, 583 F.2d 1273, 1278 <4th Cir.
1978), cert. denied, 440 u.s. 915 <1979).

1051

ISSUES
As specified in the Commission's order of remand, it appears
that the Complainants' surviving allegations are that they were
illegally discharged because they had engaged in two protected
activities: 1) filing workers' compensation claims based on disabilities allegedly caused by hazardous conditions at the Ada
Quarry and Plant; and 2) making safety complaints to supervisors
and agents of Ideal, 13 FMSHRC at 329.
The order of remand directed the Judge to analyze the issue
of res judicata and its impact on matters arising under the Mine
Act.
RES JUDICATA
Bradley v. Belva outlines the legal requirements necessary
to support the doctrine.
In part, Bradley requires the following:
1. The party asserting the doctrine must prove all of the
elements necessary to establish it.
2. There must be an identity of claims or of issues. The
Commission further defines a claim for res judicata purposes as
one that looks not only to the operative facts, but also to the
substantive legal protection that may be afforded a miner under
different statutes.
3. In cases of overlapping federal and state regulation,
federal supremacy may, in effect, bar proceedings under a state
law that conflicts with a federal statute.
Exceptions to the applicability of. the preclusion doctrine
include situations where there are reasons to doubt the qualityu
extensiveness, or fairness of procedures followed in prior
litigation.
Section 105(c)(l) of the Federal Mine Act statute provides
as

follows~

No person shall discharge or in any manner discriminate against or cause to be discharg~d 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

1052

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 saf~ty or health violation in a
coal or other mine, or because such miner, representative or 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 miner 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, repesentative or miners or applicant for employment on behalf of himself or others of any statutory right afforded by this Act.
The counterclaim filed by Complainants in the U.S. District
Court, and later dismissed, alleged as. follows:
1. The Defendants incorporate by reference the
jurisdictional allegations contained in the Complaint of Ideal Basic Industries, Inc., paragraphs
1, 2 , 3 , and 4.
2. The individual Defendants in this case have
filed workers' compensation claims against the Plaintiff under the Workers' Compensation Act for the State
of Oklahoma before the Workers' Compensation before
Workers' Compensation Court.
3o
The Plaintiff, Ideal Cement Company, Inc.u
has conducted a pattern of harassment and intimidation against the individual Defendants because they
have maintained workers 1 compensation claims.

4. The individual Defendants were employed by
the Plaintiff corporation at cement plant in Ada,
Oklahoma; a) that the Defendants, in good faith,
have filed workers 6 compensation calims against the
Plaintiff; b) that the Defendants retained a lawyer
to represent them in the workers' compensation claims;
c) that the Defendants instituted in-good faith a
proceeding under Title 85 of the Oklahoma Statutes;
d) that the Defendants have testified before the
Workers 1 Compensation Court of the State of Oklahoma.
Because of this, Defendants' employment with the
Plaintiff has been terminated. The Plaintiff terminated the employment of the Defendants in violation
of 85 o.s. Section 5, 6, 7.

1053

5. The Defendants, who have been wrongfully discharged in violation of the Workers' Compensation Laws
of the State of Oklahoma, are entitled to a sum of
money equal to the Defendants' loss of earnings, both
past and future.

6. Discharging the Plaintiffs [sic] in violation of
the Workers' Compensation Laws of the State of Oklahoma, the Plainti.ff subverted the purpose of the Workers' Compensation Laws and has been guilty of oppression and malice for which the Defendants are entitled
to punitive damages in the amount of $400,000.00.
7. As a result of the discharge of the Defendants
from the employment of the Plaintiff in violation of
the Workers• Compensation Law of the State of Oklahoma,
the Defendants have been caused pain, embarrassment,
humiliation, and mental anguish, and have been damaged
in the sum of $4,000,000.00.
The counterclaim_ in the'U.S. District Court was dismissed on
June 2, 1989.
The Court's order.. :of dismissal provided as follows:
2) Defendants Eberle, Myers, and Northcutt (the
only Defendants with any presently pending counterclaims against the Plaintiff Ideal) voluntarily
dismiss with prejudice their counterclaims heretofore raised and outstanding in this lawsuit against
Plaintiff Ideal under 85 o.s. Sections 5, 6, and 7
for workers' compensation retaliation wrongful dischargeo By this voluntary dismissal pursuant to
Rule 4l{a) FoR.C.Po contained herein, Defendants
Eberlyu Myersu and Northcutt make no admissions
whatsoever regarding liability under, or regarding
the validity of any claims heretofore raised or outstanding in ths action or hereby dismissed.
The Oklahoma statute 85 O.S. § Su 6u and 7u under which the
counterclaim was brought, provided as follows~
No person, firm, partnership or corporation
may discharge any employee because the employee
has in good faith filed a claim, or has retained
a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith,
any proceeding under the provisions of Title 85
of the Oklahoma Statutes, or has testified or is

10 54

about to testify in any such proceeding. Provided no employer shall be required to rehire or
retain any employee who is determined physically
unable to perform his assigned duties.
Section 6 of Chapter 85 relating to damages provides as
follows:
§

6.

Penalties-~Damages

Except as provided in Section 29 of this act,
a person, firm, partnership or corporation who violates any provision of Section 5 of this title
shall be liable for reasonable damages, actual and
punitive if applicable, suffered by an employee as
a result of the violation. An employee discharged
in violation of the Workers' Compensation Act shall
be entitled to be reinstated to his former position.
Exemplary or punitive damage awards made pursuant
to this section shall not exc.eed One Hundred Thousand Dollars ($100,(:f0.00). The burden of proof
shall be upon the employee.
Section 6.1 of· Chapter 85 of the Oklahoma Statutes addresses
the liability of the State of Oklahoma and Section 7 thereof
vests jurisdiction on the district courts of the State of
Oklahoma.
As the Commission noted in its order of remand, it is necessary to examine both the facts and the substantive legal protection afforded a miner under both statutes.
DISCUSSION
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 in establishing that (1) he
engaged in protected activity and (2) the adverse action complained of was motivated in any part by that protected activityo
Secretary on behalf of Pasula Vo Consolidation Coal co., 2 FMSHRC
2786u 2797-2800 (October 1980), rev 1 d on other grounds sub nom.,
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Secretary on behalf of Robinette v. United Castle Coal co., 3
FMSHRC 817-818 (April 1981).
In examining the respective statutes, I find there are
several areas of difference in the legal protection afforded
miners.

1055

A comparison of the Federal Mine Act and the Oklahoma stat~
utes indicates that under the Federal Act miners who make safety
complaints to a company's supervisors and agents are generally
protected in that activity. In its order or remand the Commission noted that the allegations by Messrs. Northcutt, Myers, and
Eberle of such complaints survived in the instant case. 13
FMSHRC at 329.
On the other hand, the relevant Oklahoma statutes, cited
above, deal with the filing of Workman's Compensation proceedings.
The Oklahoma statutes and the cases annotated thereunder do not
indicate that safety complaints are an activity protected under
Oklahoma law. In enacting the Federal Mine Act, Congress considered the protection of miners making safety complaints to be an
important facet of the Act.
Ideal vigorously argues that the filing of the Workman's
Compensation cases were not independent from the safety complaints. Rather, "their safety complaint was their Worker's
Compensation claim. 11 I reject Ideal's. argument. There is no
evidenciary record in, this case and as presiding judge, I must
necessarily deal with the allegations of Complainants.
A further dif f·erel}ce lies in the respective burdens of proof.
The requirements for a miner to establish a prima facie case are
outlined above. By way of a defense:
The operator may rebut the prima f acie case by
showing either that no protected activity occurred
or that the adverse action was in no part motivated
by protected activity. If an operator cannot rebut
the prima facie case in this manner it may nevertheless affirmatively defend by proving that (1) it was
also motivated by the miner 1 s unprotected activities,
and (2) it would have taken the adverse action in any
event for the unprotected activities alone. The operator bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper co., 4
FMSHRC 1935u 1936-1938 (November 1982). The ultimate
burden of persuasion does not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also
Baich v. FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983);
Donovan v. Stafford Const. Co., 732 F.2d 954, 958-159
(D.C. Cir. 1984) (specifically approying the Commission1 s Pasula Robinette test); and Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (December
198 6) •

On the other hand, the Oklahoma burden of proof was described in Buckner v. General Motors Corp., 760 P.2d 803 (Okla.

1056

1988). The Court stated, in reference to the rebuttal of a prima
f acie case:
the employer need not persuade the Court that it
was actually motivated by the proffered reasons.
The employer's burden is a burden of production
of relevant and credible evidence, not a burden
of persuasion . • • • if the employer carries this
burden of production, the presumption raised by
the prima facie case is rebutted and the factual
inquiry proceeds to a new level of specificity.
760 P.2d at 807.
A further difference lies in the remedy of temporary reinstatement of a miner.
See Commission Rule 44, 29 C.F.R.
§ 2700.44. The Oklahoma law contains no such remedy.
A further difference lies in the remedy of attorney's fees.
The Federal Mine Act authorizes such award but the Oklahoma statutes lack such a provision.
,

For the foregoing reasons, I conclude that the remedies
under the Federal Mine Act are substantially different from those
under the Oklahoma Statute.
Ideal contends that the controlling case in this situation
is the Supreme Court decision of Kremer v. Chemical Construction
Corp., 456 U.S. 461 (1982) and on the basis of Kremer its motion
to dismiss should be granted.
I do not find Kremer to be controlling. Specifically, the
Supreme Court decided that a federal court in a Title VII case
snbuld give preclusive effect to a decision in a state court upholding a state administrative agency 1 s rejection of an employment discrimination claimo
The EEOC complainant did not prevail in the state proceedings and he thereafter brought a Title VII action claiming discrimination on the basis of national origin and religion.
In Belvav the Commission distinguished Kremer, 4 FMSHRC at
987 fn, 5,
It is not necessary for the undersigned to further
restate the Commission ruling.
For the reasons stated herein, the motion of Respondent to
dismiss on the basis of res judicata is DENIED.

1057

The hearing will commence as scheduled on June 25, 1991, in
Tulsa, Oklahoma.

o-71-,..._.--N

~

rris
rative Law Judge

Tel. (303) 844-3912
FAX (303) 844-5268

Distribution:
Ben_A. Goff; Esq. 0 GOFF & MEADOR, 6301 Gaston Avenue, Suite 725u
DalYasu TX 75214-6206 (Federal Express)
Michael Towersu Esq." FISHER & PHILLIPS, 1500 Resurgens Plaza,
945 East Paces Ferry Road, Atlanta, GA 30326 <Federal Express)
J. Warren Jackmanu Esg.u PRAY, WALKER, JACKSON, WILLIAMSON &
!'1ALLAR 0 Ninth Floor 9 Oneok Plazaw Tulsa, OK 74103 (Federal
Express)

ek

1058

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

22041

JUN 05 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 91-63-M
A.C. No. 12-00004-05530-A

v.
Atkins Plant
DON FRAZE, Employed by
LITER'S QUARRY OF INDIANA,
INCORPORATED,
Respondent
SECRETARY OF.LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 91-73-M
A.C. No. 12-00004-05529-A

v.
Atkins Plant
RANDEE LANHAM, Employed
LITER'S QUARRY OF INDIANA
INCORPORATED,
ORDER DENYING MOTIONS FOR SETTLEMENT
On April 19 1991, these cases were scheduled for hearings
to commence on June 12, 1991. On June 4, 1991, the Secretary
filed a pleading captioned "Motion to Approve Settlement and to
Dismiss'' regarding both cases. The Secretary seeks to waive the
proposed civil penalty of $600 for Mr. Lanham's "knowing"
violation of the cited standard based upon undisclosed
"information received that he is no longer in the mining business
and has serious financial problems." Without any factual support
for the bald allegations however, they cannot provide a basis for
any reduction in penalty. The Secretary is without authority,
moreover, to "waive" a civil penalty for violations of a
mandatory health or safety standard. See section 110 Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et seq.
The Secretary also seeks a 50 percent reduction for the $500
penalty proposed against Mr. Fraze. The unchallenged assessment
notice states in part as follows:

1059

on March 26, 1990, Section 107(a) Order 3441990 was
issued to Liter's Quarry of Indiana, Incorporated, at
the Atkins Plant. The mine operator was cited for a
violation of 30 C.F.R. § 56.11001 because safe means of
access was not provided for travel around the primary
crusher or to its booth. The flooring had been removed
and persons were required to work or travel near the
opening around the crusher.
The gravity of the violation was serious, and the
violation could have contributed to a fall-of-person
accident.
Evidence developed during an MSHA investigation of the
circumstances surrounding the issuance of the 107(a)
Order indicates that you had been aware of the opening
created by the removal of the flooring around the
crusher but did nothing to prevent persons from working
near the area while the crusher was in operation.
In attempting to_ justify· the proposed reduction in penalty
the Secretary does not deny that Mr. Fraze knew of the violative
condition and that he did nothing to protect employees required
to work in the area from falling into the operating crusher but
states only that Mr. Fraze "wanted to observe how . . . new
bearings were working before putting back the flooring."
I
cannot accept this rationale for any reduction in penalty.
If
anything it is an aggravating circumstance.
Accordingly, the Motion for Settlement is denied and the
hearings previously set will proceed as sched~led.
Secretary v.
Wilmot Mining Co., 9 FMSHRC 684 (1987); Knox ctount Stone

Ga y Melick
ActIDinis5rative 1\· aw Judge
103-756 16261
!

\I

1

Distribution:

V

"

Robert Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203
(Certified Mail)
Mr. Randy Miller, Mr. Don Fraze, Liter's Quarry, Inc., 6610 Haunz
Lane, Louisville, KY 40241 (Certified Mail)
/fb

1060