APRIL 2000

COMMISSION DECISIONS AND ORDERS
04-04-2000 BR & D Enterprises, Inc.
04-04-2000 Collier Stone Company
04-07-2000 Northern Kansas Rock, Inc.
04-14-2000 Anthony Saab v. Dumbarton Quarry Associates
04-28-2000 L & T Fabrication & Construction

KENT 2000-90
PENN 2000-88-M
CENT 2000-162-M
WEST 97-286-DM
EAJ 99-1

Pg.479
Pg.483
Pg.486
Pg.491
Pg. 509

PENN99-2-R
WEST 2000-24-M
PENN 99-307
LAKE 2000-25-DM
KENT 99-233
CENT99-272
CENT 97-24-DM
EAJ 96-3

Pg.519
Pg.523
Pg. 525
Pg. 535
Pg. 537
Pg. 544
Pg. 554
Pg. 561

CENT 2000-96-D
WEST 99-155-RM
WEST 99-196

Pg. 563
Pg. 568
Pg.572

ADMINISTRATIVE LAW JUDGE DECISIONS
04-04-2000 RAG Emerald Resources Corporation
04-14-2000 Florida Canyon Mining Inc.
04-14-2000 Rosebud Mining Company
04-18-2000 Donald L. Ribble v. T&M Development Co.
04-19-2000 Earl Begley employed by Manalapan Mining
04-20-2000 Justis Supply & Machine Shop
04-25-2000 Bryce Dolan v. F & E Erection Company
04-28-2000 Contractors Sand & Gravel, Inc.
ADMIN1STRATIVE LAW JUDGE ORDERS
04-04-2000 Sec. Labor on behalf of Royal Sargent v.
The Coteau Properties Co.
04-05-2000 Cox Transportation Corporation
04-06-2000 Plateau Mining Corporation

i

APRIL

2000

Review was granted in the following cases during the month of April:
Northern Illinois Supply Company v. Secretary of Labor, MSHA, Docket Nos.
LAKE 99-78-RlVI, LAKE 99-120-M. (Chief Judge Barbour, February 28, 2000)
Secretary of Labor, MSHA v. Virginia Slate Company, Docket No. VA 99-8-M.
(Judge Weisberger, March 3, 2000)
Secretary of Labor, MSHA on behalf of Grant Nor, Jr., v. J & C Mining, LLC, and
Manalapan Mining Company, Docket No. KENT 99-248-D. (Judge Melick, March 17, 2000)

There were no petitions filed in which Review was denied during the month of April

ii

COMMISSION DECISIONS AND ORDERS

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

April 4, 2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 2000-90
A.C. No. 15-18028-03513

v.

BR&D ENTERPRISES, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

ORDER

BY: Jordan, Chairman; Riley and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq. (1994) ("Mine Act"). On February 18, 2000, the Commission received from BR&D
Enterprises, Inc. ("BR&D"), a letter requesting that the Commission reopen penalty assessments
that had become final orders.of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). The Secretary of Labor does not oppose the motion for relief filed by BR&D.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary's proposed penalty assessment within which to notify the Secretary that it wishes to
contest the proposed penalty. If the operator fails to notify the Secretary, the proposed penalty
assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In the February 18 letter, Mr. Roan asserts that BR&D timely filed its hearing request on
December 27, 1999, via certified mail, but that for some unknown reason it was not successfully
delivered to the Civil Penalty Compliance Office at the Department of Labor's Mine Safety and
Health Administration ("MSHA"). Mot. BR&D claims that it never received the return receipt
for its mailing and that it is coordinating with the U.S. Postal Service to ascertain why it was
479

never delivered. Id. BR&D attached to its February 18 letter various documents, including a U.S.
Postal Service receipt for certified mail showing that BR&D mailed a package to MSHA's Civil
Penalty Compliance Office in Arlington, Virginia on December 27, 1999; a letter from MSHA to
BR&D dated January 4, 2000; MSHA's proposed penalty assessment and a delinquent payment
notice from MSHA; and a letter dated February 18, 2000 from BR&D to MSHA's Civil Penalty
Compliance Office. Attach. A-D. According to its February 18 letter to MSHA, BR&D mailed
hearing requests for the proposed penalty assessment it currently seeks to reopen, along with
another proposed penalty assessment in a separate case, on December 27, 1999. Mot.; Attach. A.
It received a letter from MSHA dated January 4, 2000 regarding the second case. Attach. C.
BR&D requests an opportunity to contest the proposed penalty assessments. Mot.
We have held that, in appropriate circumstances and pursuant to Rule 60(b), we possess
jurisdiction to reopen uncontested assessments that have become final under section 105(a).
Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim Walter Resources, Inc., 15
FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of adequate or good cause for the failure to timely
respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal
Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with Rule
60(b)( l ), we have previously afforded a party relief from a final order of the Commission on the
basis of inadvertence or mistake. See Kinross DeLamar Mining Co., 18 FMSHRC 1590, 1591-92
(Sept. 1996); General Chem. r;orp., 18 FMSHRC 704, 705 (May 1996); Drummond Co., 17
FMSHRC 883, 884 (June 1995).

480

On the basis of the present record, we are unable to eva11:late the merits of BR&D's
position.' The receipt for certified mail does not indicate wliat BR&D sent to MSHA's Civil
Penalty Compliance Office in Arlington, Virginia. In the interest of justice, we remand the matter
for assignment to a judge to determine whether BR&D has met the criteria for relief under Rule
60(b). If the judge determines that relief under Rule 60(b) is appropriate, this case shall proceed
pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. See
Western Aggregates, Inc., 20 FMSHRC 745 (July 1998) (remanding to ajudge where the operator
alleged that it mailed its request to the wrong MSHA office, attaching its correspondences with
MSHA and a Federal Express "sender activity summary" which failed to indicate what had been
sent).

1

In view of the fact that the Secretary does not oppose BR&D's motion to reopen this
matter for a hearing on the merits, Commissioners Marks and Verheggen conclude that the
motion should be granted.
481

Distribution
Michael Road, Administrative Assistant
BR&D Enterprises, Inc.
P.O. Box228
Middlesboro, KY 40965
Sheila Cronan, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

482

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

April 4, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 2000-88-M

V.

COLLIER STONE COMPANY

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

ORPER
BY: Jordan, Chairman; Riley and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On February 23, 2000, the Commission received from Collier
Stone Company ("Collier") a request to reopen penalty assessments that had become final orders
of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The
Secretary of Labor does not oppose the motion for relief filed by Collier.
Under.section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In its request, Collier asserts that the proposed penalties are excessive and unreasonable
in relation to the size and profitability of its operations, and the nature of the violations. Mot. It
also states that it is experiencing financial, operational, and emotional difficulties due to the
recent death of its co-founder and former quarry foreman, and that the proposed penalties would
have a severe financial impact on its operations. Id. Accordingly, Collier requests an
opportunity to contest the proposed penalty assessments. Id.

We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we
possess jurisdiction to reopen uncontested assessments that have become final by operation of
section 105(a). See, eg., Kenamerican Resources, Inc., 20 FMSHRC 199, 201 (March 1998);
Jim Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993). We have also observed that
483

default is a harsh.remedy and that, if the defaulting party can make a showing of adequate or
good cause for the failure to timely respond, the case may be r~opened and appropriate
proceedings on the merits permitted. See Coal Preservation Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). In accordance with Rule 60(b)( 1), we previously have afforded a party relief
from a final order of the Commission on the basis of inadvertence or mistake. See National Lime
& Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613, 161415 (Oct. 1997); Stillwater },;fining Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross
Delamar A1ining Co., 18 FMSHRC 1590, 1591-92 (Sept. 1996).
On the basis of the present record, we are unable to evaluate the merits of Collier's
position. 1 In the interest ofjustice, we remand the matter for assignment to a judge to determine
whether Collier has met the criteria for relief under Rule 60(b). See Tigue Cons tr. Co., 21
FMSHRC 9 (Jan. 1999) (remanding where the operator's vice-president, allegedly responsible
for handling MSHA-related matters, was hospitalized for quadruple bypass surgery); Wolf Creek
Sand & Gravel, 21 FMSHRC 1 (Jan. 1999) (remanding where the responsible employee was out
of the office for an extensive period of time due to her husband's hospitalization). If the judge
determines that such relief is appropriate, this case shall proceed pursuant to the Mine Act and
thP. Commission's Procedural Rules, 29 C.F.R. Part 2700.

James C. Riley, Commissione

1

In view of the fact that the Secretary does not oppose Collier's motion to reopen this
matter for a hearing on the merits, Commissioners Marks and Verheggen conclude that the
motion should be granted.

484

Distribution
Patrick F. McShane, President
Collier Stone Company
80 Noblestown Road
Carnegie, PA 15106
W. Christian Schumann. Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

485

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

April 7, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. CENT 2000-162-M
(A.C. No. 14-01488-05510)

NORTHERN KANSAS ROCK, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

ORDER

BY: Marks, Riley, and Verheggen, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On February 28, 2000, the Commission received from
Northern Kansas Rock, Inc. ("Northern Kansas") a request to reopen a penalty assessment that
had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30
U.S.C. § 815(a). The Secretary of Labor does not oppose the motion for relief filed by Northern
Kansas.
Under section 105(a) of the Mine Act, an operator has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that it
wishes to contest the proposed penalty. If the operator fails to notify the Secretary, the proposed
penalty assessment is deemed a ·final order of the Commission. 30 U.S.C. § 815(a).

In her February 18 Jetter, Bobbie Goebel states that she and her husband are owners of
Northern Kansas and claims that it is a "Mom & Pop company." Mot. She asserts that Northern
Kansas' failure to file a hearing request to contest the proposed penalties was due to their
absence as a result of her husband's illness. Id. Mrs. Goebel explains that Mr. Goebel was
unable to work because of knee pain, and that Mr. and Mrs. Goebel went on vacation from
December 11, 1999 to January 23, 2000. Id. She states that when they returned, Mr. Goebel
underwent knee surgery, and that she was ill following the surgery. Id. Mrs. Goebel asserts that
while she and Mr. Goebel were on vacation, their son signed the return receipt for the subject
486

proposed-penalty assessment on January 11 , but because of the course of events that took place,
they were unable to file the hearing request prior to the 30-day deadline for filing. Id. As a
result, the proposed penalty assessment became a final order of the Commission on February 10,
2000. Attached to the request to reopen is a copy of the hearing request dated February 17, 2000.
Mrs. Goebel requests an opportunity to contest the proposed penalties. Id.
We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we
possess jurisdiction to reopen uncontested assessments that have become final by operation of
section 105(a). See, e.g.·, Rocky Hollow Coal Co., 16 FMSHRC 1931, 1932 (Sept. 1994); Jim
Walter Resources, Inc., 15 FMSHRC 782, 786-89 (May 1993). We have also observed that
default is a harsh remedy and that, if the defaulting party can make a showing of adequate or
good cause for the failure to timely respond, the case may be reopened and appropriate
proceedings on the merits permitted. See Coal Preparation Servs., Inc., 17 FMSHRC 1529,
1530 (Sept. 1995). In accordance with Rule 60(b)(l), we have previously afforded a party relief
from a final order of the Commission on the basis of inadvertence or mistake. See National Lime
& Stone, Inc., 20 FMSHRC 923, 925 (Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613, 161415 (Oct. 1997); Stillwater Mining Co. , 19 FMSHRC 1021 , 1022-23 (June 1997); Kinross
Delamar Mining Co. , 18 FMSHRC 1590, 1591-92 (Sept. 1996).
Here, it appears that Northern Kansas intended to contest the proposed penalty
assessments in this matter and that, but for the medical condition of Mr. and Mrs. Goebel, it
would have timely submitted the hearing request and contested the proposed assessments. In
these circumstances, Northern Kansas' failure to timely file a hearing request qualifies as
"inadvertence" or "mistake" within the meaning of Rule 60(b)(l). See Tigue Construction Co.,
21FMSHRC9, 10-11 (Jan. 1999) (granting operator's request where serious illness ofvicepresident resulted in operator' s failure to timely file); Kenamerican Resources, 20 FMSHRC
199, 201 (Mar. 1998) (granting operator's motion to reopen when operator' s failure to timely file
hearing request was due to recent surgery performed on its safety director).

487

Accordingly, in the interest of justice, we grant Northern Kansas' unopposed request for
relief and reopen these penalty assessments that became final Commission orders. This case
shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part
2700.

Marc Lincoln Marks, Commissioner

---

-· .

ames C. Riley, Commissioner

Theodore F. Verheggen, Co

488

Chairman -Jordan and Commissioner Beatty, dissenting:
On the basis of the present record, we are unable to evaluate the merits of Northern
Kansas' position and would remand the matter for assignment to a judge to determine whether
Northern Kansas has met the criteria for relief under Rule 60(b). See Wolf Creek Sand & Gravel,
21 FMSHRC 1, 1-2, 3 (Jan. 1999) (remanding to judge to determine whether operator's claim
that it failed to timely file due to secretary's absence as a result of husband's health problems met
criteria for relief under Rule 60(b)); lvfiller employed by Mid-Wisconsin Cntshing Co., 16
FMSHRC 2384, 2385 (Dec. 1994) (remanding where the movant claimed he failed to timely file
his hearing request due to secretary's absence because of her mother's terminal illness). We also
note that Northern Kansas has failed to provide any affidavits or other sufficiently reliable
documents to substantiate its allegations.

Robert H. Beatty, Jr., Comm1sS10ner

489

Distribution
Bobbie Goebel, Executive Director
Northern Kansas Rock, Inc.
P.O. Box 157
Phillipsburg, KS 67661
W. Christian Schumann, Esq.
Office of the Solicitor ·
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N. W., Suite 600
Washington, D.C. 20006

490

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

April 14, 2000

ANTHONY SAAB
Docket No. WEST 97-286-DM

v.

DUMBARTON QUARRY ASSOCIATES

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

DECISION

BY: Jordan, Chairman; Riley and Verheggen, Commissioners
Jn this discrimination proceeding, Administrative Law Judge Richard Manning concluded
that Dumbarton Quarry Associates ("Dumbarton") did not violate section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1994) ("Mine Act" or "Act"), when it
laid off employee Anthony Saab on March 18, 1997, and April 4, 1997. 20 FMSHRC 508, 517
(May 1998) (ALJ). The Commission granted Saab's petition for discretionary review
challenging the judge's determination. For the reasons that follow, we affirm.
I.

Factual and Procedural Background
Dumbarton operates a gravel pit in Fremont, California that makes aggregate and asphalt.
20 FMSHRC at 508. Saab was hired on June 20, 1995 from Teamsters Local 291 to drive a haul
pack' and a water truck. Id. He complained in late July or early August 1995 that a loader
operator was slamming other employees' vehicles with the bucket of his machine. Id. at 509; Tr.
I 10. On or about October 22, 1996, Saab sent a letter to Clay Buckley, the production operations
manager at the quarry, complaining that loader operator Steve Hamblin used his loader to pick up

1

Haul packs are large off-road dump trucks used to transport material from the pit to the
crusher. 20 FMSHRC at 508.
491

Saab's haul pack. 20 FMSHRC at 509; Tr. I 14; Ex. C-1. The company's safety officer spoke to
employees at the pit after the letter was sent and told Saab that that activity would never happen
again. 20 FMSHRC at 509; Tr. I 14, 16. The unsafe equipment operator was later given a "write
up,, for other unsafe behavior. Tr. I 19.
On March 5, 1997, Saab called the Department of Labor's Mine Safety and Health
Administration ("MSHA") to complain that the highwall had become too high and steep, and
about the lack of berms on some of the haul roads. 20 FMSHRC at 509; Tr. I 19-21, 23-24, 58.
On March 10-12, 1997, MSHA inspected the quarry. 20 FMSHRC at 509; Ex. C-2. At the time
of the inspection, Saab raised safety issues about mobile equipment at the quarry with MSHA
inspectors. 20 FMSHRC at 509; Tr. I 31. MSHA issued 17 citations during the inspection,
including one citation concerning the condition of the highwall, one citation due to the lack of
berms on a roadway, and several citations for violative conditions on mobile equipment. 20
FMSHRC at 509; Ex. C-2. On March 18, the day Dumbarton cleaned the highwall benches with
a crane to abate the highwall violation, Saab and Larry Meyer, the other haul pack driver at
Dumbarton, were laid off for the day. 20 FMSHRC at 509; Ex. R-1; Tr. I 38, II 66-70.
On March 25, Saab complained to Buckley that Mike Grant, an independent contractor,
threw a rock at him from behind. 20 FMSHRC at 510. Buckley spoke with Grant about the
incident, and Grant denied throwing the rock. Id. Buckley prepared an incident report with a
safety officer stating that, "due to the lack of eyewitnesses, 'the event could not be proven as
stated by Saab."' Id. (quoting Ex. C-4). On March 26, Saab videotaped Grant at work to try to
elicit an admission that Grant threw a rock at him. Id. Grant did not make any statements
concerning the incident, but told Saab that he should start looking for another job. Id. On April
3, Saab observed an unidentified person in a van photographing him, which he considered to be
harassment in retaliation for his complaints to MSHA. Id. (citing Tr. I 53-54, II 32); Tr. II 55.
On April 2, Dumbarton began making arrangements to move the spare water truck to
another mine o\\'.ned by its parent company, DeSilva Gates, in response to a memorandum from
DeSilva Gates stating, inter alia, that Dumbarton must remove all excess equipment from the
mine site by August 1. 20 FMSHRC at 512. On the afternoon of April 3, the operator of the
primary water truck complained that the truck was not operating properly, and later that
afternoon the truck broke down. Id. Dumbarton immediately arranged for delivery of a rental
truck to perform necessary watering work. Tr. II 84-85. On April 4, when Saab arrived at the
quarry, an independent contractor hired by Dumbarton was watering the roads with his own
truck. 20 FMSHRC at 511. Buckley informed Saab that Randy Heuvel, a more senior Teamster
at the quarry, had bumped him off the haul pack onto the water truck, and that Saab was laid off
effective that day. Id. at 510. Also on April 4, the spare water truck was moved from
Dumbarton to Curtner Quarry, another facility owned by DeSilva Gates. Id. at 511. The same
day, Grant prepared an estimate stating that repairing the primary water truck would cost the
company nearly $16,000. Id. at 513. DeSilva Gates' chief financial officer advised Buckley not
to repair the primary water truck. Id. On April 7 or 8, Buckley also told Saab that the primary
water truck would not be usable for a few weeks. Id. at 511; Tr. I 62. Saab believed that he
492

would be called back to work once the water truck was repaired, but the water truck was never
repaired and Saab was not called back to work on a full time bas"is. 20 FMSHRC at 511.
Dumbarton offered Saab work for a few days in June, 1997, but Saab turned these offers down
because he was employed elsewhere. Id. at 513. At some point after April 4, Dumbarton
decided not to repair the primary water truck, and permanently subcontracted its watering work.
Id. Within six months, all ofDeSilva Gates' quarries subcontracted their watering work. Id.;
Unpublished Order Den. Recons. at 1 (June 12, 1998).
On April 10, 1997, Saab filed a discrimination complaint with MSHA pursuant to section
105(c)(2) of the Mine Act, asserting that his one-day layoff on March 18 and his layoff on April
4 were discriminatory. 2 In a September 10, 1997 letter, MSHA informed Saab and Dumbarton
that, based upon its investigation, there had been no violation of section 105(c). On September
19, Saab brought the instant proceeding under section 105(c)(3) of the Act.3
The judge determined that Saab's one-day layoff on March 18 was not in retaliation for
his safety complaints. He credited Buckley's testimony that Dumbarton laid off Saab and the
other haul pack driver because Buckley did not want anyone working in the pit on the day a crane
was used to abate the highwall violation. The judge rejected Saab's contention that he should
have been allowed to bump into a water truck operator position. He further found that, even if
proven to have occurred, neither Grant's alleged rock throwing nor the photographing of Saab by
an unidentified individual in a van was attributable to Dumbarton. 20 FMSHRC at 515.
Regarding Saab's layoff on April 4, the judge found that "Saab presented evidence that
his termination was motivated at least in part by his protected activity." Id. at 514-15. However,
he determined that Dumbarton successfully rebutted the prima facie case. Id. at 515-17. The
judge rejected Saab's suggestion that Dumbarton planned events in order to lay him off in
retaliation for his discussions with MSHA. Id. at 516. He also found that, although Buckley and
Grant had a close working relationship, Saab did not prove that they conspired to harass him or
cause him to b'e laid off. Id. at 515. Rather, the judge credited Buckley's version of events: that
Dumbarton removed the spare water truck from the mine site due to Dumbarton's new policy of
removing excess equipment from the mine; that Dumbarton removed its primary water truck
from the mine site after its cfiief financial officer refused to pay the high cost of repair; that the
operator of the primary water truck bumped Saab; and that Saab was laid off because he had the

2

Section 105(c)(2), 30 U.S.C. § 815(c)(2), provides, in pertinent part: "Any miner ...
who believes that he has been discharged, interfered with, or otherwise discriminated against by
any person in violation of this subsection may, within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination."
3

Section 105(c)(3), 30 U.S.C. § 815(c)(3), provides, in pertinent part: "If the Secretary,
upon investigation, determines that the provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the Secretary's determination, to file
an action in his own behalf before the Commission .... "
493

least seniority of the three Teamster employees at the mine. Id. at 511, 513, 516. The judge also
rejected Saab's contention that Dumbarton's decision to use an independent contractor to water
the roads did not make economic sense. Id. at 516.
Finally, the judge issued an order denying Saab's motion for reconsideration, in which he
acknowledged that his finding that DeSilva Gates' other facilities had already subcontracted their
watering work by the time Dumbarton decided to do so may have been erroneous. Order Den.
Recons. at 1. However, the judge concluded that, even if De Silva Gates' other facilities
subcontracted their watering work after Dumbarton, he would nonetheless have dismissed Saab's
complaint. Id.

II.
Disposition
Saab argues that the judge erroneously placed on him the burden of affirmatively
defending against the prima facie case. S. Supp. Br. at 2-5.4 Saab also contends that undisputed
record evidence mandates overturning several factual findings crucial to the judge's dismissal of
Saab's claims. PDR at 1-2, 11. Saab submits that the judge improperly restricted testimony
regarding Dumbarton's history of adverse treatment of employees who make safety complaints.
S. Supp. Br. at 5-6. Saab further asserts that other employees affected by Dumbarton's
abatement of the highwall violation on March 18, 1997 were offered work in other areas of the
quarry. Id. at 6-7. Finally, Saab challenges several of the judge's factual findings, and maintains
that Dumbarton's claim that it laid him off on April 4 because all its water trucks were
unavailable is pretextual. PDR at 2-3, 7-11.
Dumbarton responds that the judge correctly determined that Saab engaged in protected
activity but that his layoff was in no part motivated by that activity. D. Resp. Br. at 7.
Dumbarton disputes Saab's assignments of error related to the judge's findings, and maintains
that Saab has fail~d to set forth adequate reasons to overturn the judge's determination that
neither Saab's one-day layoff on March 18 nor his layoff on April 4 violated section 105(c) of the
Mine Act. Id. at 9-18.
A complainant alleging. discrimination under the Mine Act establishes a prima facie case
of prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Secretary ofLabor on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2799 (Oct. 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on
behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The

4

Pursuant to Commission Procedural Rule 75(a), 29 C.F.R. § 2700.75(a), Saab
designated his PDR as his brief. Saab also filed a supplemental brief.
494

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 protected activity. See Robinette, 3 FMSHRC
at 818 n.20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by proving that it also was motivated by the miner's unprotected activity
and would have taken the adverse action for the unprotected activity alone. See id. at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,
642-43 (4th Cir. 1987) (applying Pasula-Robinette test).
A.

Exclusion of Evidence

Saab contends that the judge erroneously placed the burden of affirmatively defending the
case on him. S. Supp. Br. at 2-5. However, the judge's conclusion of his analysis at the rebuttal
phase of the Commission's discrimination framework foreclosed any affirmative defense
analysis. 20 FMSHRC at 517. At the rebuttal phase of the Commission's discrimination
analysis, the burden remains on the complainant. See Robinette, 3 FMSHRC at 818 n.20.
Accordingly, we affirm the judge's allocation to Saab of the rebuttal phase burden.
We decline to consider Saab's allegation (first raised in his supplemental brief) that the
judge improperly limited Saab's testimony regarding Dumbarton's alleged pattern of "failing to
respond to and adversely treating employees who exposed safety violations." S. Supp. Br. at 5.
Under the Mine Act and the Commission's procedural rules, review is limited to the questions
raised in the petition. 30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(g); see Broken Hill
Mining Co., 19 FMSHRC 673, 678 n.9 (Apr. 1997). Saab did not raise the issue of the judge's
limitation of his testimony in his petition for discretionary review, nor did the Commission direct
review of this question sua sponte. Therefore, Saab's challenge to the judge's limitation of his
testimony is not properly before the Commission. Contrary to our dissenting colleague, we do
not consider Saab's generalized plea that the judge's decision was not based on an "accurate set
of facts" to even implicitly raise the evidentiary question which Saab subsequently addressed in
his brief. Nor do ~e share the concern of our concurring colleague that our holding here may
appear to be at odds :with the broad reading we have accorded petitions filed in Fort Scott
Fertilizer-Cul/or, Inc., 19 FMSHRC 1511, 1514 (Sept. 1997) and Rock ofAges Corp., 20
FMSHRC 106, 115 n.11 (Fel5. 1998), aff'd in relevant part, 170 F.3d 148 (2d Cir. 1999). Unlike
those cases, the question of the exclusion of evidence does not follow analytically from the
sweeping language in Saab's peti~ion.
B.

March 18 Layoff

We are not persuaded by Saab's challenges to the judge's determination that Saab's layoff
on March 18 did not violate section 105(c) of the Act. We find meritless Saab's argument that
the judge erred in finding that Buckley's decision to switch Heuvel to the water truck in February
was unrelated to Saab's complaints. PDR at 8. Heuvel's February move to the water truck
preceded Saab's March safety complaints, and Saab conceded that no events prior to those
complaints motivated his layoffs by Dumbarton. Tr. I 11-17. Thus, Buckley's decision to switch
495

Heuvel to the water truck could not possibly have been motivated by Saab's safety complaints.
Accordingly, we affirm the judge's finding that Saab' s complaints and Heuvel 's move to the
water truck were unrelated.
Regarding Saab's claim that the collective bargaining agreement entitled him to bump
Heuvel, a more senior Teamster, off the water truck on March 18 (PDR at 8), we conclude that
substantial evidence5 supports the judge's rejection of Saab' s claim. The judge found no
evidence that junior employees are contractually entitled to bump senior employees. 20
FMSHRC at 515. The union contract on its face permits senior Teamsters to bump junior
Teamsters from positions for which the senior Teamster is qualified, not vice versa. Ex. R-6 at 9.
Thus, Saab, as the least senior Teamster at Dumbarton, was not entitled to bump anyone. 20
FMSHRC at 515-16. Accordingly, we affirm the judge's finding that Saab was ineligible to
bump on March 18, the day of his one-day layoff.
We are also not convinced by Saab's suggestion that Dumbarton's provision of work to
other employees on March 18 was discriminatory. The judge found that Dumbarton laid off Saab
on March 18 because he was a haul pack operator and there was no available work for haul pack
operators that day due to the operator's abatement of the highwall violation. Id. at 515. It is
undisputed that haul pack drivers at Dumbarton work beneath, and come within ten feet of, the
highwall. Tr. I 23, 113. Because it would have been dangerous for employees to work beneath
the area of the highwall being abated on March 18, that area was bermed off and other equipment
operators were assigned to other areas of the facility. 20 FMSHRC at 512; Tr. I 113, 143, II 6970. Buckley also testified that loader and dozer operators have other duties which do not
necessitate being near the pit. Tr. II 70-71. In fact, Meyer, the other haul pack operator,
conceded that the loader and dozer operators may also have been affected by the March 18
highwall abatement, but that Dumbarton "probably had something else for them to do." Tr. I
114. Buckley added that, when enough material is stockpiled - as was the case on March 18 haul packs are not needed. Tr. II 69.6 Accordingly, substantial evidence supports the judge's
finding that'Durnbarton laid off Saab on March 18 solely because there was no available work for
haul pack drivers .that day.

5

When reviewing an administrative law judge' s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '" such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
6

Meyer and Saab admitted that neither was at the quarry on March 18 and that neither
knows what happened there that day. Tr. I 143-44, II 52.
496

C.

April 4 Layoff

Saab submits that the primary water truck could have been partially repaired to operative
condition without great expense, and that Dumbarton decided "to not repair the truck which
broke down and to get rid of the spare truck, so it would have an excuse to fire [Saab]." PDR at
5; S. Reply Br. at 2-3 (citing Ex. C-2). Dumbarton states that its primary water truck had a
cracked frame, and that it would have been unreasonable for it to engage in only a partial repair,
particularly given the recent MSHA inspection. D. Resp. Br. at 13, 17.
The Commission's "function is not to pass on the wisdom or fairness of [an operator's]
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." Bradley v. Belva Coal
Co., 4 FMSHRC 982, 993 (June 1982). Here, while the judge made no specific finding regarding
Saab's claim that Dumbarton improperly declined to partially repair the primary water truck, his
finding that the operator's actions related to the primary water truck were in no part motivated by
Saab's complaints implicitly rejected Saab's contention. 20 FMSHRC at 517.
The judge found that Buckley was aware of the numerous mobile equipment citations
MSHA had recently issued to Dumbarton. Id. at 516. He also found that MSHA advised
Dumbarton that cracked frames would be cited and that anything that was installed by the
manufacturer of equipment had to be operational. Id. at 513 (citing Tr. II 87). Buckley testified
that several factory items on the primary water truck were inoperative and required repair. Tr. II
87. While Saab testified that there were no defective items other than the pump, the judge stated
that "a lot of the [items requiring repair] could be things that an operator of a piece of equipment
wouldn't even be aware of." Tr. I 70. The judge also credited Buckley's testimony regarding the
events which preceded Saab's termination, including that repairing the primary truck to comply
with MSHA standards would cost nearly $16,000, and that Dumbarton did not repair the primary
water truck because Ernie Lampkin, its chief financial officer, did not authorize the money
necessary to make the repairs. 20 FMSHRC at 516; Tr. II 81. Finally, we note that Lampkin told
Buckley that Dumbarton had to make many purchases to secure renewal of the conditional use
permit allowing Dumbarton to continue operating, and that rep.airing the primary water truck was
not a high priority. Tr. II 81, 88-89.

In essence, Saab asks the Commission to overturn the judge's decision to credit Buckley's
testimony related to Dumbarton's reasons for declining to repair the primary water truck. A
judge's credibility determinations are entitled to great weight and may not be overturned lightly.
Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co.,
3 FMSHRC 2767, 2770 (Dec. 1981). The Commission has recognized that, because the judge
"has an opportunity to hear the testimony and view the witnesses[,] he [or she] is ordinarily in the
best position to make a credibility determination." In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729
F.2d 713, 719 (1 lth Cir. 1984)).

497

We find no compelling reason to overturn the judge's credibility determination.
Accordingly, we conclude that substantial evidence supports the judge's finding that
Dumbarton's decision not to repair the primary water truck was based on valid business
considerations, not Saab's protected activity.
Saab also challenges the judge's finding that the spare water truck was removed because
of a memorandum from DeSilva Gates stating that all excess equipment must be removed. PDR
at 7. Dumbarton maintains that the spare water truck was "essentially non-operational," and was
removed as excess equipment. D. Resp. Br. at 5 n.1.
the judge credited Buckley's testimony that the spare water truck needed significant
repairs and was removed as excess equipment pursuant to a memorandum from its parent
company. 20 FMSHRC at 516. Buckley further testified at the hearing that Heuvel told him that
the spare water truck had "serious rear end problems" and would not pass inspection. Tr. II 7980. Buckley further explained that both the spare water truck and a third truck needed repair, and
that they. were "red tagged" before the inspection to prevent MSHA from inspecting them. Tr. II
80, 114. .
As with the judge's disposition related to the primary water truck, we find no basis for
overturning his decision to credit Buckley's testimony regarding Dumbarton's reasons for
removing the secondary water truck from the mine site. Accordingly, we conclude that
substantial evidence supports the judge's finding that the secondary water truck was removed
pursuant to the memorandum from Dumbarton's parent company.
We are also unconvinced by Saab's argument that, in light of the judge's erroneous
finding that DeSilva Gates' other mines subcontracted their watering work before Dumbarton,
the judge erred in finding that Dumbarton's decision to subcontract its watering work was not
motivated by Saab's safety complaint. The judge based his dismissal of Saab's complaint on
record evidence; his crediting of Buckley's testimony regarding the events of April 3 and 4, and
his discrediting of Saab's alternative explanations for his termination. 20 FMSHRC at 516.
Furthermore, in his denial-0f Saab's motion for reconsideration - where Saab raised the same
argument he now raises before the Commission - the judge stated that his decision "is not
affected by the order in which various quarries affiliated with DeSilva Gates began using
independent contractors to water down roads." Order Den. Recons. at 1.
Dumbarton does not dispute that, at the time it contracted its watering work, the other two
DeSilva Gates facilities had not yet done so. D. Resp. Br. at 14. Rather, it explains that DeSilva
Gates subcontracted the watering work at its La Vista quarry after the engine broke on its water
truck, and subcontracted the watering work at its Curtner quarry on the day that facility opened.
Tr. II 118. Thus, evidence in the record undermines Saab's suggestion that DeSilva Gates
subcontracted the watering work at its other facilities to "cover its tracks to try to make the
excuses for the layoff look legitimate," (PDR at 5), and supports the judge's decision to place

498

little weight on the order in which DeSilva Gates' facilities subcontracted watering work.
Accordingly, we find that the judge's error in chronology is harmless.
We are also not persuaded by Saab's claim that subcontracting the watering work was
more costly than awarding this work to Teamster employees. Id. at 8-9. The judge discredited
Saab's testimony regarding the cost of subcontracting, finding Saab's testimony "not very
convincing because it was rather simplistic and did not consider all of the costs borne by an
employer." 20 FMSHRC at 516. Buckley testified that the $60 per hour rate at which
Dumbarton initially contracted watering work included costs of maintenance and repair of
equipment, insurance, fuel, tires, and union benefits to the driver. Tr. II 91. Buckley also stated
that Dumbarton pays approximately $42 per hour straight time for Teamster water truck labor,
including benefits and social security, but that when the other costs borne by the company including repair, maintenance, depreciation, fuel, tires, and vehicle insurance - are considered,
the cost rises to approximately $53 to $60. Tr. II 108-11. Buckley testified that, while he agrees
that the cost ofrenting water trucks was "exorbitant," all the water trucks were busy at the time
the decision to subcontract was made, and that only later was he able to negotiate a more
favorable rate. Tr. II 90-91, 110. Moreover, Saab does not dispute that Dumbarton's continued
use of its employees to water the roads would have required that the operator pay the cost of
repairing the primary water truck. Thus, substantial evidence supports the judge's rejection of
Saab's claim that Dumbarton's decision to subcontract its watering work did not make economic
sense.
Saab next claims that the judge disregarded Grant's bias towards Dumbarton and his
motivation to retaliate against Saab. S. Supp. Br. at 7. Saab testified that Grant called him
demeaning names and threw a rock at him. Tr. I 47-48. Saab also testified that Grant told him
approximately one week prior to his layoff that he "better hope the hall has some work down
there" and that he believed that this statement indicated that Grant knew Saab would be laid off
imminently. Tr. I 60. Saab believes that Grant's actions are attributable to Dumbarton because
Grant frequently went into Buckley's office, and because Grant had "made it known to everyone
that he was tight with Clay, and ifhe didn't get along with you, you wouldn't get along with
Clay." Tr. I 60-61, II 54. ·
As the judge stated, the endeavor Saab contends Dumbarton undertook to discriminatorily
terminate him would have required at least the cooperation of Buckley and Grant. 20 FMSHRC
at 516. The judge found that, while Buckley and Grant had a close working relationship, there
was no showing of collusion between them to discriminatorily terminate Saab. Id. at 515.
Buckley testified that Grant does not speak for him and that "Grant doesn't tell [him] how to do
[his] job or how to run [his] operation. He's just a mechanic who works on the site." Tr. II 101.
Buckley further testified that discussions between himself and Grant mainly concerned
scheduling and paying for repair and maintenance of equipment. Tr. II 101-02. Regarding
Grant's statement to Saab that he should be prepared to find other work, this statement was made
during a discussion videotaped during work hours by Saab on the day after Saab complained to
Buckley that Grant threw a rock at hin1. Tr. I 60. While Grant's reasons for making this
499

statement are unclear, Saab offered ~o other evidence that Gn1nt possessed any knowledge that
Saab would be bumped. Accordingly, substantial evidence supports the judge's finding that no
collusive relationship existed between Grant and Buckley.7
On appeal, Saab attempts to weave his various assignments of error into a claim that
Dumbarton's stated reasons for laying him off on April 4 were a pretext for his discriminatory
layoff, PDR at 3, challenging the judge's finding that he was laid off due to lack of work and lack
of seniority. 20 FMSHRC at 517. It is not our role to reweigh the evidence or to enter findings
based on an independent evaluation of the record. Island Creek Coal Co., 15 FMSHRC 339, 347
(Mar. 1993). Furthermore, as we have recently recognized, "[t]he possibility of drawing two
inconsistent conclusions from the evidence does not prevent ... [a] finding from being supported
by substantial evidence." Secretary ofLabor on behalfof Baier v. Durango Gravel, 21
FMSHRC 953, 958 n.6 (Sept. 1999) (citation omitted).
Accordingly, since we have affirmed the challenged findings on substantial evidence and
credibility grounds, we thus conclude that substantial evidence supports the judge's
determination that Saab's April 4 layoff did not violate section 105(c) of the Act.

7

From our affirmance of the judge's finding that Dumbarton's decisions related to the
primary and secondary water trucks were not motivated by Saab's protected activity, together
with his supported finding that no collusive relationship existed between Grant and Buckley, it
follows that we find no merit in Saab's allegation (S. Reply Br. at 2) that Grant's repair estimate
was inflated as.part of a scheme to terminate Saab.
500

III.
Conclusion
For the reasons set forth above, we affirm the judge's determination that neither
Dumbarton's one-day layoff of Saab on March 18, 1997, nor its layoff of him on April 4, 1997,
violated section 105(c) of the Mine Act.

James C. Riley, Commissioner

501

Commissioner Beatty, concurring:
I concur in the result reached by the majority and in all aspects of the majority's decision
with the exception of Section II.A, concerning Saab's claim that the judge improperly excluded
evidence concerning his p1ior protected conduct and Dumbarton 's response thereto. Based on
my review of the cmTent Commission case law on this issue, it appears that the majority's
holding is seemingly at odds with the broad reading this body has accorded petitions fil ed
pursuant to Rule 70 of the Commission's procedural rules, 29 C.F.R. § 2700.70. See, e.g., Fort
Scott Fertilizer-Cullar, Inc., 19 FMSHRC 1511, 1514 (Sept. 1997) and Rock of Ages Corp., 20
FMSHRC 106, 115 n.11(Feb.1998), ajf'd in relevant part, 170 F.3d 148 (2d Cir. 1999). 1 In this
respect, I share the concerns raised by Commissioner Marks, in his dissent.
As a practical matter, I do not think it is appropriate for the Commission to engage in the
practice of broadly interpreting petitions for discretionary review in determining whether issues
have been properly raised before the Commission under Rule 70(d). 2 This position is seemingly
at odds with the plain language set forth in Rule 70(d) which states in relevant pa1i that " [e]ach
issue shall be separately numbered and plainly and concisely stated, and shall be supported by
detailed citations to the record, when assignments of error are based on the record, and by
statutes, regulations, or other principal authorities relied upon." 29 C.F.R. § 2700.70(d)
(emphasis added).
Clearly, Rule 70(d) mandates that paiiies filing petitions for discretionary review before
the Commission must do so with particularity. Unfo1tunately, it appears that in recent years we
have not monitored this situation closely enough to assure that parties adhere to this fundamental
requirement. The Commission's decision in Fort Scott is a perfect example of how this
phenomenon has become all too commonplace. In order to insure objectivity in our decision
making process, we must eliminate the need to second-guess the parties in determining the issues
being appealed.

I would reject Saab's argument based upon the judge's exclusion of evidence on
alternative grounds because I believe that Saab's counsel waived the right to have the evidence
concerning his client's prior safety complaints considered by the trier of fact as evidence o[
discrimination. At the hearing, Saab's attorney attempted to elicit testimony from him regarding
how Dumbarton treated him after he made complaints in late July or early August 1995 and on
October 22, 1996 about a fellow equipment operator's unsafe actions. Tr. I 10-17. After an

1

Both the Fort Scott and Rock ofAges cases were decided prior to my tenure with the
Commission.
2

The only exception to this should be when a party appears pro se before the
Commission. In these types of cases, the Commission should continue its practice of granting
some leeway to the prose litigant in interpreting the language of the petition for discretionary
review.
502

objection by Dumbarton, Saab's attorney stated that the proposed testimony regarding these
events was offered as background to establish Saab's "prior history of reporting to his supervisor
what he considered unsafe conditions at the quarry" and for purposes of "credibility," and that no
claim was being made that Saab "was laid off in retaliation for these [pre-March 5, 1997]
complaints." Tr. I. 11, 17.
Moreover, Saab's attorney elected not to pursue further direct examination of him
regarding the 1995 incident. Tr. I 10-12. The judge did permit testimony as to Saab's October
1996 safety complaint "strictly as background." Tr. I 10, 13-16. Saab's counsel then attempted
to clarify his intention in adducing the testimony related to his client's prior complaints: "It's
credible ifthere were actions in the past taken against [Saab] in retaliation for making safety
complaints, it's more credible that later on there was action taken in retaliation for him making
safety complaints.'' Tr. I 17. The judge then sustained Dumbarton's objection when Saab's
attorney asked him if he suffered adverse action after his October 1996 complaint. Tr. 17-18. By
characterizing this evidence solely as "background" with respect to Saab's credibility, and not
relevant to Dumbarton's motivation for laying off Saab, his counsel essentially waived the right
to have the evidence considered for anything other than the judge's credibility determinations.3

Robert H . Beatty, Jr., Commissio

3

r

To the extent that the judge credited the version of events provided by Dumbarton's
witnesses over that of Saab, he obviously determined that Saab's testimony in this regard was not
entitled to dispositive weight on credibility questions. As the majority notes in its decision, a
judge's credibility dete1minations are entitled to great weight and may not be overturned lightly.
Slip op. at 7, and cases cited. I find no compelling basis for overturning the judge's credibility
determinations in this case.
503

Commissioner Marks, dissenting:
I disagree with the majority (slip op. at 5), and believe that Saab's petition for
discretionary review adequately raised the issue of whether the judge erred in preventing Saab
from testifying on other instances in which Dumbarton had shown hostility to complaints about
safety violations. Furthermore, I agree with Saab that the judge incorrectly excluded this
evidence. Accordingly, I would vacate and remand the judge's decision to permit Saab to present
his testimony on this matter.
During the hearing, Saab's counsel asked him whether any adverse action was taken
against him after he sent a letter to the operator complaining about certain safety issues. Tr. I 16.
The operator's attorney objected to the question, on the ground that it had not been alleged that
those events were directly connected to the layoff at issue in this case. Tr. I 16-17. Saab's
attorney argued that "[l]t goes to credibility.... [I]fthere were actions in the past taken against
[Saab] in retaliation for making safety complaints, it's more credible that later on there was
action taken in retaliation for [Saab] making safety complaints.,, Tr. I 17. The judge nonetheless
sustained the objection, on the ground that Saab was not alleging that his April 4, 1997, layoff
was in retaliation for the earlier safety complaints. Tr. I 17-18.
The judge ultimately concluded that Dumbarton successfully rebutted Saab's prima facie
case, because he found that although the evidence showed that Saab had engaged in protected
activity, his termination was not motivated by that activity in any part. 20 FMSHRC at 515. In
concluding that the operator had successfully rebutted the prima facie case, the judge relied
heavily on Buckley's testimony regarding the events of April 3 and 4, explicitly crediting it and
finding it more persuasive than Saab's. Id. at 516. Because he made this credibility
determination without hearing evidence of prior adverse actions taken against Saab- evidence
which conceivably could affect that credibility determination - the judge erred.
Of course we do not know the specific evidence of past adverse action that Saab would
have offered had the judge permitted the line of questioning Saab's counsel attempted to pursue.
I therefore will not speculate as to whether these actions allegedly taken by the operator after
Saab wrote his letter containing safety complaints would have demonstrated its animus towards
Saab's protected activity to such an extent that the judge no longer would have believed
Buckley's testimony that he decided to use a contractor to water the roads simply because of
1
problems with his water trucks. Nonetheless, I
reluctant to affirm the judge's finding 0 f no
discrimination, based in large part on this testimony, when the judge did not take the opportunity
to consider the evidence of Dumbarton's animus to Saab's previous safety complaints which he
excluded and factor it into his decision as to whether to believe Buckley.

am

While this evidentiary issue was not as clearly stated in Saab's petition for review as it
could have been, there is more than enough in that petition to find that the issue is implicit in,
and related to, the issues that the petition plainly raises, so therefore the issue is properly before
us. See Fort Scott Fertilizer-Cullar, Inc., 19 FMSHRC 1511, 1514 (Sept. 1997) (construing

504

Secretary of Labor's petition to reach three other issues implicit in single issue that was expressly
raised); Rock ofAges Corp., 20 FMSHRC 106, 115 n.11 (Feb. 1998) (reaching three issues not
expressly raised by operator but sufficiently related to other issue that was only generally raised),
a.ff'd in pertinent part, 170 F.3d 148 (2d Cir. 1999). I do not believe that we should hold
individual miners to a higher standard than we hold the Secretary of Labor or large mine
operators in fashioning their PDRs.
According to his p~tition, Saab seeks to have the judge's decision "overturned," asserting
that it was not based on "an accurate set of facts." PDR at 2, 11. He argues that "it is only fair
that [he] be granted the opportunity to have the decision reviewed by the Commission and
decided based on conclusions that can reasonably be made from the correct set of facts." Id. at
11. Implicit in his request that the decision be based on a correct and accurate set of facts is
Saab's contention that the judge's evidentiary ruling prevented development of a record of those
facts. Consequently, I believe Saab sufficiently raised the evidentiary issue in his PDR for
purposes of our review.

As for the merits of the issue, the question is one of whether the judge abused his
discretion when he refused to permit Saab to offer evidence about the operator's prior adverse
actions against him after an earlier safety-related complaint. See General Elec. Co. v. Joiner, 522
U.S. 136, 141-43 (1997) (confirming that the abuse of discretion standard is the appropriate
standard of review of a district court's evidentiary rulings); In re: Contests ofRespirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1843-44, 1853-54, 1864, 1881-82 (Nov. 1995),
aff'd 151F.3d1096 (D.C. Cir. 1998) (applying abuse of discretion standard in reviewing trial
judge decisions involving the qualification and crediting of expert witnesses and the exclusion of
trial testimony). With regard to the exclusion of testimony, it has been stated that a trial court
abuses its discretion in so doing when its decision is based on, among other things, '"an
erroneous view of the law."' Lewis v. Telephone Employees Credit Union, 87 F.3d 1537, 1557
(9th Cir. 1996) (quoting Beech Aircraft Corp. v. United States, 51 F.3d 834, 841 (9th Cir. 1995)).
A review of r~levant case law quickly reveals that the judge erroneously applied the law of
evidence in prohibiting Saab from testifying on Dumbarton's previous reactions to his safety
complaints. Many of the federal appellate courts in recent years have overturned trial judge
rulings that evidence of a defendant's prior discriminatory behavior is inadmissible where those
actions, while not the central cause_of action, were offered to prove the defendant's discriminatory
motive in subsequently discriminating against a plaintiff. See, e.g., Robinson v. Runyon, 149 F.3d
507, 512-14 (6th Cir. 1998) (finding abuse of discretion in excluding evidence intended to show
circumstantial case of discrimination because reviewing court was "firmly convinced that a
mistake" was made). Courts have done so despite acknowledging that "a trial court's exclusion of
evidence is entitled to substantial deference on review." Hawkins v. Hennepin Technical Ctr.,
900 F.2d 153, 155 (8th Cir.), cert denied, 498 U.S. 854 (1990) (citation omitted).
A leading case on the question of the admissibility of prior discriminatory acts is Estes v.
Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988), in which a black employee brought a race
505

discrimination clrum after he was discharged from a car dealership. At trial, the jury ruled
against him, and on appeal he argued, among other claims, that the trial court had improperly
excluded evidence of other discriminatory acts of the dealership. Id. at 1102. The Eighth Circuit
held that the judge had erred in excluding evidence of prior acts of discrimination against black
customers. Id. at 1104. The court stated that "[i]t defies common sense to say ... that evidence
of an employer's discriminatory treatment of black customers might not have some bearing on
the question of the same employer's motive in discharging a black employee." Id. The court
also ruled that the judge improperly excluded evidence that a Ford manager had made racist
remarks. Id. While acknowledging that the plaintiff was not claiming relief for having been
insulted, the court reasoned that he was trying to prove by a preponderance of the evidence that
he was discharged because of his race, and testimony that his supervisors occasionally used racial
insults was probative of his claim. Id.
The Eighth Circuit criticized the trial court for limiting the plaintiff to proving the
dealership's discriminatory intent solely from the facts of his own termination. According to the
Court, evidence of the prior discriminatory acts could have provided evidence of discriminatory
animus. Id. at 1105. The court emphasized that:
The effects of blanket evidentiary exclusions can be
especially damaging in employment discrimination cases, in which
plaintiffs must face the difficult task of persuading the fact-finder
to disbelieve an employer's account of its own motives....
Circumstantial proof of discrimination typically includes
unflattering testimony about the employer's history and work
practices - evidence which in other kinds of cases may well
unfairly prejudice the jury against the defendant. In discrimination
cases, however, such background evidence may be critical for the
jury's assessment of whether a given employer was more likely
than not to have acted from an unlawful motive.

Id. at 1103. 1 These evidentiary rulings, along with other trial court errors, were the basis of the
Court's decision to remand. the case for a new trial. See also Robinson, 149 F .3d at 513-14
(relying on Estes to find admissible evidence which made existence of employer's discriminatory
motive more probable, because.even though by itself it could not prove motive, it was "a possible
link"); Abrams v. Lightolier Jnc., .50 F.3d 1204, 1214 (3rd Cir. 1995) ("discriminatory comments
by nondecisionmakers, or statements temporally remote from the decision at issue, may properly
be used to build a circumstantial case of discrimination") (citations omitted).
1

Admissibility of such evidence is even more appropriate in Commission discrimination
cases, because they are the subject of bench, not jury, trials. In reaching their decisions, trial
judges, unlike juries, are expected to be able to exclude from their minds improper inferences
from the evidence. See GulfStates Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir.
1981).
506.

Equally instructive is the decision in Hunter v. Allis-Chalmers C01p., Engine Div., 797
F.2d 1417 (7th Cir. 1986), where an employer appealed a trial court verdict finding that it had
discriminated against an employee by harassing him because of his race and then firing him in
retaliation for complaining of the harassment. Rejecting the employer's appeal of the judge's
ruling permitting evidence of harassment against other black workers besides the plaintiff, the
Seventh Circuit recognized that,
[g]iven the difficulty of proving employment discrimination - the
employer will deny it, and almost every worker has some
deficiency on which the employer can plausibly blame the worker's
troubles - a flat rule that evidence of other discriminatory acts by
or attributable to the employer can never be admitted without
violating [Federal] Rule [of Evidence] 403 would be unjustified.
Id. at 1423. The Court held that the evidence of harassment at issue was relevant in rebutting the
employer's defense that it fired the plaintiff for cause. Id. The Court noted that the evidence
increased the probability that the reasons given by the defendant (that the plaintiffs job
performance was deficient) was "merely the pretext for the harsh discipline meted out to him by
a management irritated by this complaints about racial harassment." Id. at 1424.

In light of these rulings and others, I believe it was clear error for the judge to prohibit
Saab from testifying on Dumbarton's previous reactions to his safety complaints, particularly in
light of the judge's acceptance of Dumbarton's claim that it laid off Saab for cause. See
Hawki.ns, 900 F.3d at 155-56 ("Because an employer's past discriminatory policy and practice
may well illustrate that the employer's asserted reasons for disparate treatment are a pretext for
intentional discrimination, this evidence should normally be freely admitted at trial.") (citing
McDonnell Douglas v. Green, 411 U.S. 792, 804-05 (1973)); Mullen v. Princess Anne Volunteer
Fire Co., 853 F,2d 1130, 1133 (4th Cir. 1988) (evidence of discrimination unrelated to alleged
discriminatory action admissible because of value of evidence in showing employer's true state
of mind). It has been recognized that where, as here, the complainant is relying heavily upon
circumstantial evidence to carry his or her burden of proof of discrimination, the absence of even
one piece of such highly relevant evidence may make the difference in the factfinder's mind as to
the employer's true motivation in taking adverse action against the complainant. See Robinson,
149 F.3d at 515. Consequently, I would remand this case to the judge so that Saab can fully and
fairly testify regarding his experiences with Dumbarton and its reaction to his previous safety
complaints.

•
Marc Lincoln Marks, Commissioner
501 ·:

Distribution
Paul H. Melbostad, Esq.
Goldstein, Gellman, Melbostad, Gibson & Harris, LLP
100 Van Ness Avenue, 2l51 Floor
San Francisco, CA 94102
Robert D. Peterson, Esq.
3300 Sunset Boulevard, Suite 110
Rocklin, CA 95677
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

508

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

April 28, 2000
SECRETARY OF LABOR,
MINE SAFETY AND .HEALTH
ADMINISTRATION (MSHA)
Docket No. EAJ 99-1

v.
L & T FABRICATION &
CONSTRUCTION, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

DECISION
BY THE COMMISSION:
This proceeding arises under the Equal Access to Justice Act, 5 U.S.C. § 504 ("EAJA"),
and involves an application for attorney fees and expenses by L & T Fabrication & Construction,
fuc. ("L & T"). L & T filed its application following the decision in L & T Fabrication &
Constr., Inc., 21FMSHRC71 (Jan. 1999) (ALJ), a proceeding under the Federal Mine Safety
and Health Ayt of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), in which
Administrative Law Judge T. Todd Hodgdon assessed a penalty of $20,000 for a violation of30
C.F.R. § 77.203. The Department of Labor's Mine Safety and Health Administration ("MSHA")
had proposed a penalty of $~0,000. L & T based its EAJA application on the grounds that the
proposed penalty was substantially in excess of the penalty assessed by the judge and
unreasonable when compared to his decision. Judge Hodgdon denied L & T's application. 21
FMSHRC 607 (June 1999) (ALJ). For the reasons that follow, we affirm the judge's decision.

I.
Factual and Procedural Background
A.

The Mine Act Proceeding

Cordero Mining Company retained Production fudustry Corporation ("PICOR") to
remove old coal silo loading facilities at its Cordero Mine in Campbell County, Wyoming, and

509

replace them with a new batch weighing system. 21FMSHRC71; Tr. 84. PICOR, in turn,
subcontracted with L & T to do the structural portion of the work. 21 FMSHRC 71. L & T,
which was wholly owned by Edward and Catherine Crain, had a work force of 12 to 15
employees and was primarily involved in construction work at mine sites. Id.; Tr. 29, 77.
On the morning of August 6, 1997, L & T employees at silo number 2 at the Cordero
Mine installed metal flooring on an elevated deck approximately 18Y2 feet above the floor in the
north half of the silo. 21 FMSHRC at 71. After the flooring had been put in place, L & T
foreman Glen Belt began installing a section of hand rail along the edge of the deck while the
flooring was being welded. Id. at 71-72. The section of hand rail was approximately four feet
high and five feet long, and weighed between 60 and 90 pounds. Id. at 72. Ironworker Shayne
DeGaugh, who had been employed by L & T for 3 weeks and was assisting Belt, went to get
bolts to attach the handrail to the deck. Id. at 72.
Belt set the handrail on a barricade at the top of the stairs leading up to the deck. Id. As
Belt was crossing the barricade, the handrail slipped and fell to the floor below just as DeGaugb
was returning to the deck with the bolts. Id. The falling handrail struck DeGaugh on the head,
breaking his neck and permanently paralyzing him from the neck down. Id.
MSHA subsequently investigated the accident and issued a citation charging L & T with
violating 30 C.F.R. § 77.203, which provides:
Where overhead repairs are being made at surface installations and
equipment or material is taken into such overhead work areas,
adequate protection shall be provided for all persons working or
passing below the overhead.work areas in which such equipment or
material is being used.
The citation alleged that "(a]dequate protection was not provided in silo number 2 where people
were working on an elevated walkway 18.5 feet above the concrete floor. A section of handrail
... fell and struck a person_walking underneath the elevated platform." 21 FMSHRC at 72. The
MSHA inspector who issued the citation determined that the violation was significant and
substantial ("S&S") 1 and resulted from high negligence and the operator's unwarrantable failure2
to comply with the regulation. Id. Less than 3 months earlier, on May 21, 1997, L & Thad been
cited for a violation of the same regulation. Id. at 72 n.3.

1

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.

§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
2

The unwarrantable failure terminology is taken from section 104(d)(l) of the Act,
which establishes more severe sanctions for any violation that is caused by "an unwarrantable
failure of [an] operator to comply with ... mandatory health or safety standards."
510

At the hearing, the only issue contested was the amount of the proposed penalty. Id. at
73. L & T and the Secretary stipulated to the violation and the events surrounding the violation.
Id. at 72. Jn addition, L & T stipulated that the violation was significant and substantial S&S,
caused by high negligence, and the result of its unwarrantable failure to comply with the
regulation. Id.
With regard to the proposed penalty, the parties also stipulated at the hearing that L & T
had acted in good faith in abating the violation. Id. at 73. L & T put on evidence to show that it
had few prior violations, including two during the last 2 years (including the one at issue and
another citation issued for a violation of the same regulation), and a total of six citations over 18
years (including three citations that were vacated). Id. L & T's primary defense to the proposed
$40,000 penalty was that it would adversely affect L & T's ability to continue in business. Id. In
support of this position, L & T submitted financial statements, and Edward Crain, its president,
testified concerning the financial burden that the proposed penalty would purportedly create. See
id. at 73-74; Tr. 28.
The judge rejected L & T' s defense that the proposed penalty would affect its ability to
continue in business. 21 FMSHRC at 74. The judge concluded that the operator had not carried
its burden of proof because it had presented unaudited financial statements. Id. Further, the
judge found that even the statements L & T submitted did not establish that its ability to continue
in business would be adversely affected if it had to pay the full $40,000. Id. The judge found
that the gravity of the violation and L & T's high negligence in committing a violation for which
it had been cited several months earlier justified a $40,000 penalty. Id. However, he found that
the company' s very good record of prior violations, its rapid abatement of the violation, and its
small size mitigated the penalty. Id. Therefore, the judge concluded that a penalty of$20,000
was appropriate. Id.

B.

. The EAJ A Proceeding

On March 30, 1999, L & T filed an BAJA application for fees and expenses of
$14,809.82. The Secretary o_pposed the application because, inter alia, the proposed penalty was
not substantially in excess of the judge's award and the proposed penalty was not unreasonable
when compared to the judge' s decision. Following the submission of pleadings, the judge
concluded that L & T was an eligible party and addressed its entitlement to fees and expenses.
21 FMSHRC at 608.
In his decision, the judge stated that the burden was on L & T to establish that the
Secretary' s demand was substantially in excess of the penalty approved by the Commission. Id.
After reviewing the underlying facts and the legislative history of the BAJA amendments, the
judge concluded that L & T had failed to show that the proposed penalty was substantially in
excess of the penalty finally assessed. Id. at 608-09. Jn addressing L & T's contention that a 50
percent reduction in the proposed penalty met the substantially-in-excess test, the judge stated
that he rejected a mechanical, mathematical comparison approach. Id. at 609. Relying on floor

511

comments accompanying the passage of the amendments, however, the judge stated, "[c]learly, a
·
greater discrepancy is required." Id.
The judge further addressed whether the proposed penalty was reasonable. The judge
noted that the Secretary had considered all six of the statutory penalty criteria under section
11 O(i) of the Mine Act. Id. at 610. The judge stated that the fact that he gave "greater weight" to
some criteria than the Secretary did not indicate that the Secretary's position was unreasonable.
Id. In this regard, the judge noted the statutory obligation of the Commission to assess penalties
de novo. Id. Finally, the judge found that there was no evidence that the Secretary proposed the
$40,000 penalty to pressure L & Tinto a quick settlement - one of the primary reasons given
for amending the EAJA to protect small entities from the pressures of the federal government.
Id. at 610 n.5 (citing the Joint Managers Statement ofLegislative History and Congressional
Intent, 142 Cong. Rec. 83242, S3244 (Mar. 29, 1996) ("Joint Statement")). The judge therefore
denied L & T's EAJA application. Id at 610.
II.
Disposition
L & T contends that, contrary to the judge's conclusion, the Secretary's proposed penalty
was excessive. PDR at 4.3 L & T asserts that the judge failed to consider all the facts and
circumstances of the case and instead focused only on the gravity of the violation and the
operator's negligence. Id. at 5-6. L & T further argues the judge erred when he concluded that,
based on the legislative history of the EAJA amendments, a 50 percent reduction in a proposed
penalty was not excessive. Id. at 7. L & T also argues that courts have found that disparities of
less than 50 percent were excessive in analogous circumstances. Id. at 8-9. L & T argues that
the proposed penalty was excessive under the facts and circumstances of this proceeding. Id. at
9. See also~ & T Reply Br. at 1-5. L & T asserts that the Secretary's proposed penalty was
unreasonable because she did not consider all the penalty criteria under section 11 O(i) and, even
if she did consider all the criteria, she did not carry her burden of proving that the penalty was
reasonable. PDR at 10-12: Finally, L & T argues that no special circumstances or any
willfulness associated with the underlying violation made an EAJA award unjust. L & T Reply
Br. at 8.

The Secretary responds that the judge properly found the proposed penalty was not
excessive when compared to the final award. S. Br. at 7. Relying on floor statements that
accompanied passage of the EAJA amendments, the Secretary argues that "excessive" must
mean more than a 50 percent disparity. Id. at 7-9. The Secretary also argues that, based on
numerous facts and circumstances of the case she sets forth in her brief, the proposed penalty was
not unreasonable when compared to the judge's decision. Id. at 10-14. The Secretary further
contends that she took into account the criteria in section l lO(i) of the Mine Act, 30 U.S.C.
3

L & T designated its petition for discretionary review as its opening brief.
512

§ 820(i), and properly followed her penalty assessment proced~res and criteria set forth in 30
C.F.R. Part 100, in proposing the penalty. S. Br. at 14-18 & n.12. Moreover, the Secretary
continues, because of the judge's statutory duty to review proposed penalties de novo under
section 11 O(i), it should not be surprising that the judge arrived at a different penalty from that
proposed by the Secretary. Id. at 19-22. Finally, the Secretary argues that the judge's conclusion
that the proposed penalty was reasonable is supported by substantial evidence. Id. at 22.
The 1996 amendments to EAJA expanded the basis for recovering fees and expenses to
include certain claims against private parties who did not prevail against the government. EAJA
Amendments of 1996, Pub. L. No. 104-121, 110 Stat. 862. The pertinent portion ofEAJA, as
amended, provides:
If, in an adversary adjudication arising from an agency action to
enforce a party's compliance with a statutory or regulatory
requirement, the demand by the agency is substantially in excess of
the decision ofthe adjudicative officer and is unreasonable when
compared with such decision, under the facts and circumstances of
the case, the adjudicative officer shall award to the party the fees
and other expenses related to defending against the excessive
demand, unless the party has committed a willful violation of law
or otherwise acted in bad faith, or special circumstances make an
award unjust.
5 U.S.C. § 504(a)(4) (emphasis added). The term "demand" is defined as "the express demand
of the agency which led to the adversary adjudication." 5 U.S.C. § 504(b)(l)(F).
The legislative history of the 1996 EAJA amendments is meager. The committee report
published following the passage of the amendments provides a one-paragraph explanation for the
new category of EAJA claims:
This subtitle.amends the EAJA to allow small entities to recover
the fees and costs attributable to a demand by the agency which is
excessive and unreasonable under the facts and circumstances of
the case. The small entity would not be required to prevail in the
underlying action; the final outcome must be, however, to require
payment of an amount substantially less than what the agency
sought to recover.
H.R. Rep. No. 104-500, at 2 (1996). Floor comments accompanying the passage of the EAJA
amendments provide the following guidance in evaluating the government's demand:
This test should not be a simple mathematical comparison. The
Committee intends for it to be applied in such a way that it

51:3

identifies and corrects situations where the agency's demand is so
far in excess of the irue value ofthe case, as demonstrated by the
final outcome, that it appears the agency's assessment or
enforcement action did not represent a reasonable effort to match
the penalty to the actual facts and circumstances ofthe case.
Joint Statement at S3244 (emphasis added). Finally, as the judge noted (21 FMSHRC at 608),
Commission EAJA Ru.le 105(b) provides that "[t]he burden of proof is on the applicant to
establish that the Secretary's demand was substantially in excess of the Commission's decision;
the Secretary may avoid an award by establishing that the demand was not unreasonable when
compared to that decision." 29 C.F.R. § 2704.105(b).

This case presents us with our first opportunity to intexpret the 1996 EAJA amendments. 4
We find that the amendments set forth a two-part test for determining whether fees should be
awarded. The first prong is largely quantitative, focusing on whether, in the context of Mine Act
cases, the Secretary has proposed a penalty that is "substantially in excess of' the penalty
ultimately assessed by the Commission pursuant to section 11 O(i). Consistent with the intent of
the drafters of the amendments, we view this test as more than merely "a simple mathematical
comparison." Joint Si'atement at 83244. Instead, whether an applicant meets the "substantially
in excess" test will depend on the facts and circumstances of each case.5
While the first prong of the test is quantitative, the second prong is qualitative, and
presents the issue of whether the Secretary has acted reasonably in proposing a particular penalty.
Again, any determination of reasonableness will depend on the facts and circumstances of each
case. For the Secretary to prevail, a penalty she proposes must "represent a reasonable effort to
match the penalty to the actual facts and circumstances of the case." Id. Finally, we note that the
two prongs of the test set forth in the 1996 EAJA amendments are conjunctive (i.e., joined by the
word "and") .. Thus, for an applicant to prevail, both prongs of the test must be met.
Turning to the instant case, although the judge recognized that Congress did not intend
the "substantially in excess" test to be "a simple mathematical comparison," he nevertheless
found that "[c]learly, a greater discrepancy [than 50%] is required" to meet this test. 21
FMSHRC at 609. "I do not find," the judge wrote, "as a general proposition, that a fifty percent

4

At issue in all our prior EAJA cases has been whether the Secretary's position was
substantially justified. See Black Diamond Constr., Inc., 21 FMSHRC 1188 (Nov. 1999); James
Ray, empl'd by Leo Journagan Constr. Co., 20 FMSHRC 1014 (Sept. 1998); Contractor's Sand
and Gravel, Inc., 20 FMSHRC 960 (Sept. 1998), rev'd, 199 F.3d 1335 (D.C. Cir. 2000).
5

Contrary to L & T's argument (L & T Reply Br. at 3-5), we conclude that
"substantially," when used in the phrase "substantially in excess," means "'[c]onsiderable in
amount, value or the like; large."' See Pierce v. Underwood, 487 U.S. 552, 564-65 (1988)
(citation omitted).
514

reduction demonstrates that the original penalty was [substantially in excess of the penalty he
ultimately assessed]." Id. We find that the judge's reasoning on this point represents application
of a per se greater-than-fifty-percent rule, which we do not accept. 6
We also note that in support of its position that the Secretary's demand was substantially
in excess of the Commission's decision, L & T cites (PDR at 8-9) U.S. v. 101.80 Acres ofLand,
716 F.2d 714 (9th Cir. 1983), a land condemnation case, which addresses whether an applicant
was a "prevailing party"·under EAJA. Land condemnation cases and the resolution of whether
an applicant is a "prevailing party'' under EAJA, however, are not determinative of whether a
proposed penalty is substantially in excess of the final determination in a Mine Act proceeding.
We need not reach.the merits of the judge's determination on this prong of the test,7
however, because we find his conclusion that the Secretary's penalty proposal was reasonable
amply supported by substantial evidence. 8 We begin by noting that MSHA' s Petition for
Assessment of Penalty, filed in the underlying merits proceeding, included narrative findings for ·
a special assessment under 30 C.F.R. § 100.5. MSHA stated that it had considered the
inspector's findings with regard to the violation, recited the penalty criteria in 30 C.F.R.
§ 100.3(a), and concluded by stating that, based on the penalty criteria and information available
to it, the agency was proposing a civil penalty of $40,000.9 Pet., Attach. at 5. In particular,
MSHA noted the operator's high negligence, a prior similar violation, and the severe injury
sustained by DeGaugh when he was hit by the falling rail. Pet., Narrative Findings for Special
Assessment. Clearly, the Secretary made "a reasonable effort [here] to match the penalty to the

6

qiairman Jordan and Commissioner Marks note that, although their colleagues reject,
in dicta, the judge's "fifty-percent rule," they see no need to reach this issue, as this case is
ultimately decided on an entirely separate ground, the reasonableness of the proposed penalty.
See infra at 8. ·
7

Commissfoner Verheggen believes that in the case Unique Electric, 20 FMSHRC 1119
(Oct. 1998), the Secretary's proposed penalty of $8,500 against an unincorporated sole
proprietorship with no employees or assets was clearly substantially in excess of the $400 penalty
ultimately assessed in that case by the judge on remand. See Unique Electric, 21 FMSHRC 91 ,
97 (Jan. 1999) (ALJ).
8

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
9

· The highest penalty amount permitted was $55,000. See 30 C.F.R. § 100.3 (Penalty
Conversion Table).

515

actual facts and 'circumstances of the case." Joint Statement at S3244.
As for L & T's assertion that the proposed penalty would have adversely affected its
ability to stay in business, we find supported by substantial evidence the judge's conclusion that
"the company has the capacity to absorb the penalty and still remain in business.'' 10 21 FMSHRC
at 74. We note, for example, that L & T "absorbed a loss of $85,000.00 on a project in 1996 and
still remained in business." Id. We also agree with the judge as a matter oflaw that the
reduction in the penalty after hearing "does not establish that the Secretary's assessment was
unreasonable," but rather "only that the judge viewed it differently based on the hearing
evidence." 21 FMSHRC at 610. After all, section 1 lO(i) delegates to the Commission sole
"authority to assess all civil penalties provided in [the] Act," 30 U .S.C. § 820(i), and in fulfilling
this statutory mandate, our judges must assess penalties de novo, "based upon the statutory
penalty criteria and the record evidence developed in the course of the adjudication." Wallace
Bros., Inc. , 18 FMSHRC 481, 484 (Apr. 1996). Thus, we do not find it at all unusual that the
judge, in reducing the penalty proposed by the Secretary, determined to give greater weight to
some of the other penalty criteria under section 11 O(i) - the company's good history of prior
violations, its small size, and its rapid abatement of the violation. 21 FMSHRC at 61 O; see 21
FMSHRC at 74.
In sum, the record supports the judge' s determination that the Secretary's proposed
penalty of $40,000 was not unreasonable when compared with the $20,000 penalty fmally
assessed. 11

10

We thus need not reach the judge's holding that L & T failed to meet its burden of
proof on this issue because it relied on unaudited financial statements. See 21 FMSHRC at 74.
We also do not reach L & T's argument that MSHA's proposed penalty posed a financial
hardship on Edward and Catherine Crain, made for the first time on review (PDR at 9), and thus
not properly before us. 30 U.S.C. § 823(d)(2)(A)(iii) ("[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 [ALJ]
had not been afforded an opportunity to pass").
11

The Secretary also argues the exclusion in EAJA for awards in situations in which
"willful violations, bad faith actions and in special circumstances that would make such an award
unjust" is applicable to the facts of this proceeding. S. Br. at 23 (citation omitted). In light of the
disposition of this case, the Commission will not address this argument.
516

III.

Conclusion
For the foregoing reasons, we affirm the decision of the administrative law judge denying
the EAJA application for fees and expenses filed by L & T.

•
Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Com

Robert H. Beatty, Jr., Commissioner 7

517

Distribution
David M. Arnolds, Esq.
Jackson & Kelly, PLLC
1660 Lincoln Street, Suite 2710
Denver, CO 80264
Jack Powasnick, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

518

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

April 4, 2000
RAG EMERALD RESOURCES CORP.,
Contestant
v.

CONTEST PROCEEDING
Docket No. PENN 99-2-R
Citation No. 7013288; 9/29/98

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

Emerald No. 1 Mine
Mine ID No. 36-05466
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 99-201
A. C. No. 36-05466-04136

v.

RAG EMERALD RESOURCES CORP.,
Respondent

Emerald No. 1 Mine

DECISION
Appearances:

R. Herny Moore, Esq., Buchanan Ingersoll Professional Corporation,
Pittsburgh, Pennsylvania, on behalf of RAG Emerald Resources Corp.;
Andrea J. Appel, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Philadelphia, Pennsylvania, on behalf of the Secretary of Labor.

Before:

Judge Melick

These cases are before m~ pursuant to Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801, et seq., the "Act," to challenge Citation No. 7013288 and
the civil penalty assessed for the violation charged therein. The general issue before me is
whether RAG Emerald Resources Corp. (RAG) violated the cited standard as alleged and, if so,
what is the appropriate civil penalty to be assessed considering the criteria under Section 11 O(i)
of the Act.
Citation No. 7013288 was issued on September 29, 1998, pursuant to Section 104(a) of
the Act. It alleges a violation of 30 C.F.R. § 75.360(b)(l0) and charges as follows:
Certified persons were assigned to perform work in areas that did not have
a pre-shift examination performed. The work was scheduled to the examiners
prior to the mine being pre-shifted examined for the oncoming shift. These areas
519

generally involved people being assigned to perform work in return air courses,
escapeway and bleeder entries.
The cited standard, 30 C.F.R. § 75.360(b)(10), provides as follows:
(b) The person conducting the pre-shift examination shall examine for hazardous
conditions, test for methane and oxygen deficiency and determine if the air is
moving in its proper direction at the following locations.

***
(10) Other areas were work or travel is scheduled prior to the beginning of the
pre-shift examination.
The specific issue before me then is whether the areas that were the subject of the citation
had to be pre-shift examined under 30 C.F.R. § 75.360(b)(10).
Stipulated Facts
The parties have reached multiple stipulations, the following of which are relevant to this
issue:
The areas that are at issue in this proceeding, the work that was done and the dates on
which it was performed are as follows:
August 27, 1998

218 left return

mopped float dust

August 27, 1998

H panel belt

set two posts

August 27, 1998

H panel belt

set two posts

September 2, 1998

218 right return

set post

The persons who performed the above-described work were certified mine examiners
who conducted supplemental examinations before they began the work. Certified
examiners are authorized to perform examinations under 30 C.F.R. § 75.360, § 75.361
and § 75.362.
Mine management did not have preshift examinations performed for such work.
Mine management was aware, prior to the start of the pre-shift examinations on the shifts
in question, that the above-described work needed to be done. Such conditions had
previously been reported during the weekly mine examinations conducted under 30
C.F.R. § 75.364.
520

Prior to the start of the specific shifts in question, Respondent's mine management
expected this work to be performed during these shifts, provided that sufficient hourly
personnel reported for work in the shifts.
Sufficiently hourly personnel to accomplish the specific work in question did report for
work on the two shifts on August 27, 1998 and September 2, 1998.
On the dates and shifts at issue, management had pre-shift examinations perfom1ed of the
active working sections and other areas of the mine where miners work or travel on a
regular basis on each shift. Such examinations are done regularly every eight hours seven
days a week.
If a hearing were held in this matter, Emerald would offer evidence that it did not perform
pre-shift examinations of the areas in questions for two reasons:

(a) it did not believe it was required to do so; and
(b) it did not want to interrupt the regular schedule of pre-shift examinations
because it believed that any disruption in the schedule might result in a pre-shift examiner
overlooking an area of the mine that was regularly scheduled to be pre-shift examined and
it would reduce the amount of the time for the regularly scheduled pre-shift examinations
in areas where miners work or travel on a regular basis on a particular shift.

In agreeing to this stipulation, the Secretary agrees only that Emerald would offer
evidence at hearing as it is described herein. The Secretary does not agree as to the
validity of Emerald's rationale and the Secretary does not stipulate to the relevancy of this
paragraph with regard to the existence of a violation as the Act is a strict liability statute.
The issue in this proceeding is whether the areas that were the subject of the Citation had
to be pre-shift examined under 30 C.F.R. § 75.360.
Analysis
Under the standard at 30 C.F.R. § 75.360(a) a certified examiner must conduct a pre-shift
examination within three hours before "the beginning of any shift and before anyone on the
oncoming shift ... enters any underground area of the mine ... " Section 7 5 .360(b)(10), cited
herein, specifically requires that a pre-shift examination be performed in areas where work or
travel during the oncoming shift is scheduled prior to the beginning of the pre-shift examination.
It has been stipulated in this case that RAG knew before the commencement of the pre-shift
examination for the shifts in question that the specific work identified in the stipulations needed
to be performed and that RAG management expected this work to be performed during the shifts
at issue. It has been further stipulated that rather than conduct a pre-shift examination in those
areas in which work was expected to be performed during the oncoming shift RAG had the same

521

-

persons who performed the work, who were also certified mine examiners, conduct supplemental
examinations before they commenced their work.
It is the well established law that if a regulation's meaning is plain on its face, the
regulation cannot be construed to mean something different from that plain meaning. Udall v.
Talbnan, 380 U.S. I, 16 (1965); Exportal LTDA v. United States, 902 F.2d 45, 50 (D.C. Cir.
1990); Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984). I find from the clear and
unambiguous languag~ of the cited standard that indeed, a pre-shift examination must be
performed in areas "where work or travel is scheduled prior to the beginning of the pre-shift
examination." Accordingly, no further analysis is necessary and RAG's failure in this case to
have performed a pre-shift examination in those areas constituted a violation as charged.
In light of the agreed stipulations I conclude that RAG is large in size, has a substantial
history of violations, that the civil penalty in this case would have no effect on RAG's ability to
remain in business, that RAG's negligence was low and that an injury or illness was unlikely and
therefore the violation was of low gravity. There is no dispute that the violation was abated
appropriately. Under the circumstances the Secretary's proposed civil penalty of $55.00, is
appropriate.
ORDER

Citation No. 7013288 is affirmed, Contest Proceeding Docket No. PENN 99-2-R is
dismissed and RAG Emerald Resources Corp., is directed to pay a civil penalty of $55.00 within
40 days of the date of this decision.

i
Gary
,
Admini trative Law Judge
Distribution:
R. Henry Moore, Esq., Buchan.an Ingersoll, P.C., One Oxford Centre, 301 Grant Street,
201h Floor, Pittsburgh, PA 15219-1410 (Certified Mail)

Andrea J. Appel, Esq., Office of the Solicitor, U.S. Dept. of Labor, 3535 Market Street,
Room 14480, Philadelphia, PA 19104 (Certified Mail)
\rnca

522

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

April 14, 2000
FLORIDA CANYON MINING,
INCORPORATED,
Contestant

CONTEST PROCEEDING

Docket No. WEST 2000-24-M
Order dated August 10, 1999

v.

Florida Canyon Mine
Mine ID No. 26-01947

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

ORDER OF DISMISSAL
Before:

Judge Barbour

On October 12, 1999, the Commission received the operator's notice of contest of
MSHA's notices to terminate an Agreement to Abate Violative Health Conditions (the Agreement) which was given the above-captioned docket number. The operator is contesting an
August 10, 1999, letter from MSHA notifying the operator that MSHA was terminating the
Agreement within 30 days and a September 10, 1999, letter from MSHA confirming that the
operator must be in full compliance by October 10, 1999.
The Agreement between the operator and MSHA was entered into on October 17, 1997,
and provided the time for abatement of certain citations would be extended so that the operator
could address the problem of exposure of miners to dust at the mine. In particular, the Agreement set forth the abatement-actions and schedules for the various areas affected by the citations
and the manner in which the time for abatement would be extended.
On February 11, 2000, I issued an order denying the parties' request for stay and directing
the parties to address the issue of jurisdiction. The parties have now filed their responses to the
February 11 order. Both parties agree that the Commission has jurisdiction under section 105(d),
(30 U.S.C. § 815(d)), which provides that an operator can contest the reasonableness of the
length of the abatement period. However, the Secretary contends that jurisdiction no longer
exists because MSHA has terminated all of the citations associated with the Agreement. The
operator on the other hand asserts that jurisdiction exists because the Agreement itself is a
modification of the citations and that the Commission retains jurisdiction over terminated
citations. In addition, the operator argues that review of this matter furthers the purposes of the
Act because the Agreement is an innovative approach to resolving a problem and is efficient in
implementing p~otective measures.

523

Section 105(d) provides the Commission with the authority to hear operators' contests of
the reasonableness of the time set for the abatement of citations. Here, the Agreement and the
associated letters address the manner and time for abatement with respect to the citations. The
Agreement and letters are not modifications of the citations. Jurisdiction exists, but it is limited
to the issue of whether the abatement time was reasonable.
As the Secretary points out, the citations associated with the Agreement have been
terminated. The Commission has held that termination of a citation is meant only to convey that
a violative condition has been abated and to inform the operator that it will not be subject to a
section 104(b) failure to abate withdrawal order involving that citation. (Wyoming Fuel Co., 14
FMSHRC 1282, 1289 {August 1992); See AW, Nacco Mining Co., 11 FMSHRC 1231, 1236
(July 1989); Cyprns Tonopah Mining Corp, 15 FMSHRC 367, 378 (March 1993); Brauntex
Materials Inc., 20 FMSHRC 778, 779 (July 1998)). Because the citations have been terminated,
the Agreement and letters, which pertain to the abatement of the citations are no longer in effect
since by definition termination means the citations have been abated. Moreover, there is no need
to extend the abatement time because no other enforcement actions, such as 104(b) order, are
going to flow from the abated citations. Therefore, the issue ofreasonableness of the abatement
time is moot, and the operator's contest must be dismissed.

In light of the foregoing, it is ORDERED that this case is DISMISSED.

Chief Administrative Law Judge

Distribution: (Certified Mail)
Laurence S. Kirsch, Esq., Geraldine Edens, Cadwalader, Wickersham & Taft, 1333 New
Hampshire Avenue, N.W., Washington, DC 20036
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203

/gl

524

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454 ·
T elecopier No.: 202-653-5030

April 14, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 99-307
AC. No. 36-08719-03511

v.
ROSEBUD MINING COMP ANY,
Respondent

Josephine # 3 Mine

DECISION
Appearances:

John M. Strawn, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for Petitioner;
Joseph A Yuhas, Esq., Northern Cambria, Pennsylvania, for
Respondent.

Before:

Judge Barbour

This civil penalty proceeding arises under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (30 U.S.C. § 815(d)) (Mine Act or Act). The Secretary of Labor (Secretary),
on behalf of her Mine Safety and Health Administration (MSHA), seeks the assessment of a civil
penalty against Rosebud Mining Company (Rosebud) for an alleged violation of 30 C.F.R.
§ 75.523-2(c)~ a mandatory safety standard for underground coal mines that pertains to
deenergizing devfoes (frequently referred to as "panic bars") on self-propelled electric face
equipment. The standard is a subpart of 30 C.F.R. § 75.523. Section 75.523 states that the
Secretary "may require ... that electric face equipment be provided with devices that will permit
the equipment to be deenergized quickly in the event of an emergency." The first subpart of
section 75.523, 30 C.F.R. § 75.523-1, requires the time-sequenced installation of the devices on
self-propelled electric face equipment. Section 75.523-2 specifies how the devices must perform
and requires, among other things, that if panic bars are used, the "movement of not more than 2
inches of the ... bar ... resulting from the application of not more than 15 pounds of force upon
contact with any portion of the equipment operator's body at any point along the length of
the ... bar shall cause deenergization of the tramming motors of the ... equipment."
The Secretary alleges that on July 21, 1999, at Rosebud's Josephine No. 3 Mine, a MSHA
inspector needed more than 15 pounds of force to cause a panic bar on a mobile bridge carrier
(MBC) to deenergize a continuous mining machine. In addition, the Secretary charges that the
condition was a significant and substantial contribution to a mine safety hazard (S&S), and she
525

proposes the assessment of a civil penalty of $184 for the alleged violation. In response, the
company argues that section 75.523-2(c) does not apply to the MBC or, in the alternative, that
the proposed penalty is not based upon proper legal and factual findings.
The case was tried in Indiana, Pennsylvania. Following the trial the parties submitted
helpful briefs.

THE STIPULATIONS
The parties stipulated as follows:
1. [T)he Josephine Number Three [M]ine is owned and operated
by .. . Rosebud.
2. [T]he mine is subject to the jurisdiction of the . .. Act . . . .
3. [T]he Administrative Law Judge has jurisdiction over [the]
proceedings.
4. [C]itation [No. 3698571] [and its modification were] ... properly assessed and served by a representative of the Secretary . . .
upon an agent of ... [Rosebud]. . . [on and at] the dates and times
and places stated therein, and may be admitted into evidence for
the [purpose] of establishing their issuance and not for the truthfulness or relevancy of any statement asserted therein.

5. [T]he assessment of a [c]ivil [p]enalty in this proceeding will
. not affect [Rosebud's] ability to continue in business.
6. [T]he appropriateness of the penalty, if any, to the size
. of .. . . [Rosebud's] bus~ness shquld be qased on th~ fact that [Rosebud's) annual production tonnage [of coal] in 1998 was 1,424,142
tons. The month[ly] annual production tonnage [of coal] in the last
two quarters of 1998 was 56, 148 and [was] 61,462 in the first
quarter of 1999. The mine employs 200 employees.
7. [Rosebud) demonstrated ordinary good faith in obtaining [compliance] after the issuance of the citation.

8. [T]he mine was assessed a total of 16 citations based on 28
inspection days in the 24 months immediately proceeding the
issuance of the citation.

526

9. The parties stipulate to the authenticity of their exhibits ....
(Tr. 13-14; see also Joint Exh. 1)

In addition, and based upon Stipulations 6 and 8, counsel for the Secretary characterized
the size of Rosebud as "medium" and the company's history of previous violations as "moderate"
(Tr. 16).
THE CONTINUOUS MINING AND HAULAGE SYSTEM AND
THE INVESTIGATION
An MBC is a component of a continuous mining and haulage system that extracts and
moves coal from a face to a main conveyor belt line. A continuous miner is the component in the
system that is closest to the face. The continuous miner cuts the coal. The coal is then conveyed
to a bridge or to a series of bridges and ultimately to a main conveyor belt. The coal is dumped
onto the belt and is carried out of the mine (Tr. 37).
An MBC is a bridge conveyor that carries the coal. However, unlike a regular bridge
conveyor, an MBC can articulate so as to bend around comers. An MBC can be connected to the
other bridge conveyors and to the continuous miner by a sliding dolly (Tr. 38-39). Also, an
MBC can be trammed (moved) forward and backward (Tr. 38). The continuous miner and the
MBC each have motors for tramming. No other parts of the system have tramming motors
(Tr. 131 ). Because the continuous miner and the MBC can move independently of one another,
both require the presence of miners at their controls (Id.). Therefore, when the system is
operating, one miner is at the controls of the continuous miner and another is at the controls of
theMBC.
At the Josephine No. 3 Mine, two deenergizing devices were installed on the subject
MBC, one d~energized the MBC and one deenergized the continuous miner. Both devices were
activated by depressing a single panic bar on the MBC (Tr. 30, 32-34). In addition, one
deenergizing device was installed on the continuous miner. The device on the miner also was
activated by depressing a si!1gle panic bar on the miner. When the bar on the miner was
depressed, only the continuous miner was deenergized.
David Sherry was employed by Rosebud as an underground laborer. One of his duties
was to operate the MBC. On July 21, 1999, he was at the controls of the MBC when it became
necessary for him to leave the operator's compartment in order to change a cable to the continuous mining machine (Tr. 26-29). Prior to leaving, Sherry depressed the panic bar on the MBC.
The MBC deenergized. Sherry believed the continuous miner also deenergized (Tr. 30-31 ).
Sherry got out of the MBC, took a step or two, and knelt down within an arms length of
the MBC. Sherry testified that he would not have left the MBC but for the fact that he believed
the continuous miner was deenergized (Tr. 30, see also, Tr. 91 ).

527

As Sherry.knelt, the continuous miner, which, in fact, was not deenergized, began to back
up. The movement of the heavier continuous miner pushed the MBC backwards and sideways
toward the rib. Sherry was caught between the MBC and the rib. He was crushed, suffering
severe, traumatic injuries to his trunk and his abdomen (Tr. 29, 31). As a result, Sherry was out
of work for three and one half months (Tr. 32).
The accident occurred around 10:30 a.m. MSHA was notified and MSHA Inspector
Joseph O'Donnell was assigned to investigate the accident. O'Donnell went to the mine that
afternoon. O' Donnell was accompanied by electrical inspector Bill Collinsworth. Once at the
mine, O'Donnell spoke both with management personnel and with miners. The miners had been
withdrawn from the mine following the accident, so the interviews took place on the surface
(Tr. 53-54). After the interviews, O'Donnell and Collinsworth went underground where they
inspected the continuous mining and haulage system (Tr. 54-55). They payed special attention to
the MBC and its panic bar.
O'Donnell described the panic bar as "a long lever" - about four feet in length - "that
the operator [of the MBC] can contact anywhere ... and deenergize the tramming motors of the
[MBC and the continuous miner]" (Tr. 57). The bar was designed to activate two different "on
and off' devices, one in the form of a button and one in the form of a "flipper switch" (Tr. 5758). O'Donnell stated that "when the prong of the bar strikes the button and the ... switch ...
[the bar is] supposed to deenergize the tramming motors of the system" (Tr. 58).
O'Donnell and Collinsworth depressed the MBC's panic bar to determine ifthe "on and
off' devices were working. When they did this the MBC was deenergized, but the continuous
miner was not (Tr. 55-56). They applied more pressure to the bar, and the continuous miner then
was deenergized (Tr. 61).
The ii:ispectors checked the pounds of force necessary to apply to the bar to deenergize
both pieces of equipment. The inspectors used a gauge-type device that they had calibrated
according to its manufacturer's specifications shortly before going underground (Tr. 81 ).
O'Donnell described how the gauge was used. "[Y]ou place it on the panic bar, force it in, when
it shuts off [the equipment]; [you] read how many pounds of pressure it took to deactivate the
tramming motors of the unit" (Tr. 60).
The inspectors found that to deenergize the MBC they had to apply eight pounds of force
and move the bar no more than two inches. However, to deenergize the continuous miner they
had to apply more than 20 pounds of force (Tr. 61-63).
The inspectors also checked the panic bar on the continuous miner. They found that it
operated properly (Tr. 82).
The inspectors further determined that although they could not move the continuous
miner by tramming the MBC, the opposite was not true. The continuous miner was heavier and
528 .

more powerful than the MBC, and the movement of the continuous miner could cause the MBC
also to move (Tr. 61-63).
The inspectors credited Sherry's belief that when he deenergized the MBC, he also
deenergized the continuous miner. O'Donnell explained that Sherry was an experienced MBC
operator and that he "had to believe that the tramming motors of the miner were also deenergized
or he would have never ex[ited the MBCJ" (Tr. 63).
Sherry told O'Donnell that after he depressed the panic bar he looked inby and saw no
lights on the continuous miner, something that confirmed to him that he had deenergized the
continuous miner (Tr. 64). As it turned out, however, the operator of the continuous miner was
preparing to back out of the working face and to move the continuous miner to another area.
Therefore, the operator shut off the continuous miner's lights so that he would not be "blinded."
He wanted to see the areas surrounding and in back of the continuous miner and any miners who
might be in the areas (Tr. 64).
The continuous miner operator stated that when he looked in back of the miner he saw
lights that he believed to be the lights of the MBC. Three other miners were working within five
feet of Sherry's location. O'Donnell speculated that the operator of the continuous miner
mistook the lights of the miners' cap lamps for the lights of the MBC. This lead the continuous
miner operator to believe that the MBC was energized and that Sherry was in the MBC operator's compartment (Tr. 65-66).
The operator of the continuous miner began to back up the equipment. The movement of
the miner "kicked the MBC against the rib" (Tr. 75, see also, Tr. 75-78). O'Donnell testified
that had the panic bar on the MBC functioned as required, the continuous miner would not have
been able to move and the accident would not have occurred (Tr. 67).
O'Donnell cited Rosebud for a violation of section 75.523-2. He based the violation on
the fact that more than 15 pounds of pressure was required to deenergize the MBC (Tr. 67, see
also, Tr. 81). O'Donnell noted that the standard applied to electric face equipment. He
maintained that because the.MBC and the continuous miner were physically and electrically
connected they constituted one "single moving unit", and that the unit, which was headed by the
continuous miner, was "electricJace equipment" (Tr. 71). In O'Donnell's view, the continuous
miner and the MBC were but "different component[s] of the system" (Tr. 80). He also noted that
when the continuous miner was operated as a part of the continuous mining and haulage system,
the miner could not act independently of the system (Tr. 80). In the inspector's mind, the
"electric face equipment" referenced in the standard was "the entire mining system, the continuous haulage system," and the "equipment operator" referenced in the standard was both the
operator of the continuous miner and the operator of the MBC (Tr. 94-95). O'Donnell put it,
"there are two equipment operators in this system" (Tr. 94).
O'Donnell found that the violation resulted in lost work days and in restricted duty to

529

Sherry. He further found that it was S&S, and was caused by Rosebud's moderate negligence.
(In fact, Rosebud agreed that ifthere was a violation, it was moderately negligent (Tr. 68, 6970)). To abate the alleged violation, Rosebud dismantled the switch that deenergized the
continuous miner, corrected a problem with the switch, lubricated the switch, and put the MBC
back into service (Tr. 71 ).

MSHA's INTERPRETATION OF SECTION 75.523-2
In addition to O'Donnell's testimony regarding his investigation of the accident, the
Secretary presented testimony concerning MSHA' s interpretation of the standard. MSHA 's
policy was described by Robert Phillips, the coordinator of MSHA's electrical program
(Tr. 102-103). (Phillips also participated in MSHA's investigation of the accident by going to
the mine, by observing the conditions that surrounded the accident, and by meeting with
management officials and with miners (Tr. 107-108)).
Phillips explained that the requirements for the installation of deenergizing devices are
contained in section 75.523-1 and the requirements for the performance of the devices are
contained in section 75.523-2. Like O'Donnell, Phillips emphasized that the subject continuous
miner and MBC were parts of a unitary system. In Phillips view, this brought the system within
the mandate of section 75.523-2 (Tr. 112). As a result, Phillips agreed with O'Donnell that
Rosebud violated section 75.523-2.
Phillips identified a MSHA policy letter, dated July 12, 1989, which warned of the
"hazardous condition [that] can occur when machines are mechanically connected to each other,
but trammed independently and the emergency stop switch of the attached machine fails to
deenergize the physically larger more powerful machine in the event of an emergency" (Gov.
Exh. P-5). Phillips explained that in 1987, a fatal accident occurred when a MBC operator was
killed. MSH.{\. investigated the accident and found that it involved a continuous mining and
haulage system and that the continuous miner in the system was sufficient in size, weight, and
power to move the .smaller, less powerful MBC (Tr. 114-115). The MBC involved in the
accident did not have a device that could deenergize the continuous miner (Tr. 116). According
to Phillips, the 1989 policy ietter was issued to warn operators of the hazard (Tr. 114). The letter
did not specifically state that the failure to have a device on the MBC that could deenergize a
continuous miner constituted a violation of section 75.523 or of its subsections, rather it stated
that if the smaller MBC did not have a switch, the MBC had to be removed from service because
the MBC was in violation of section 75.1725 (see Tr. 123-124). (Section 75.1725 requires in
part that "machinery or equipment in unsafe condition shall be removed from service immediately.") The letter instructed operators that "[a] means to eliminate the hazard is to mount an
emergency stop switch on the MBC to deenergize the continuous mining machine" (Exh. P-5).
The letter also stated that the "[f]ailure of the mine operator to install an emergency stop switch
on the attached machine [i.e., the MBC] that will meet the requirements of ... section 75.523-2,
and simultaneously deenergize both ... [the continuous miner and the MBC] when activated will
result in enforcement action" (Gov. Exh. 5 at 2). The letter did not identify which section of the
530

regulations the Secretary would cite when he or she undertook the "enforcement action". The
letter expired on March 31, 1991 (Gov. Exh. P-5).
·
MSHA's next policy statement on the problem took effect immediately after the
expiration of the program policy letter (i.e., on April 1, 1991). Phillips identified this statement
as a part ofMSHA's Program Policy Manual (PPM) concerning the implementation of30 C.F.R.
§ 75.1725 (Gov. Exh. P-6). The part identified by Phillips remains in effect and states:
When machines are mechanically connected to each other
but trammed independently, and are sufficiently different in size,
weight, and power an emergency stop switch shall be installed on
the smaller machine to deenergize the larger machine. Without an
emergency stop switch the equipment is not considered to be in a
safe operating condition and must be removed from service (Gov.
Exh. P-6).
According to Phillips, this part of the PPM pertains to those situations where a panic bar
is not installed on a MBC (Tr. 125). If the MBC that injured Sherry lacked a device to
deenergize the continuous miner it would have been cited under section 75.1725 rather than
under section 75.523-2 (Tr. 125). However, because the MBC had a stop switch for the
continuous miner and the switch did not perform as required by the performance standard for
such a switch, the condition was cited under section 75.523-2(c) (Tr. 117-118).
Finally, although Phillips did not testify regarding the matter, in 1996 MSHA issued
another policy statement on the hazards attending the operation of continuous mining and
haulage systems (Public Information Bulletin No. P96-l 8, Operation of Continuous Haulage
Systems (October 18, 1996)). As I will explain, the statement has a significant bearing on this
case, and I haye judicially noticed its contents.
THE VIOLATION
Citation No. 3698571 describes the alleged violation of section 75.523-2(c) as follows:
More than 15 pounds of force was needed along the actuating bar or lever of the ... MBC ... to deenergize the ... [continuous] miner from the MBC operator[' s] compartment. A
... gauge ... was used to measure the force needed to deenergize
the miner. The equipment was involved in a serious accident that
occurred at the mine. The measured force exceeded 20 pounds of
force (Gov. Exh. P-2).
The principal issue is whether section 75.523-2 applied to the MBC? If so, there is no
question but that a performance criterion of the standard was violated. Evidence offered by the
531

Secretary in this regard was clear and went essentially unrebutted. Sherry testified that on July
21, he activated the bar prior to leaving the MBC (Tr. 30). He.further testiiied that although the
MBC was deenergized as a result, the continuous miner was not (Tr. 32-33). The same day, and
within a few hours of the accident, MSHA personnel inspected the MBC. O'Donnell described
how he and Collinsworth tested the effectiveness of the bar with a recently calibrated, gauge-type
device and found that more than 20 pounds of force was needed for the panic bar on the MBC to
deenergize the continuous miner (Tr. 56, 60-61, 67, 81 ). There is nothing in the record to
suggest that the panic bar functioned differently during the MSHA investigation than it did when
Sherry depressed it prior to the investigation. Nor is there anything to suggest the gauge was
improperly calibrated and unable to obtain an accurate measurement. Therefore, I find that when
Sherry activated the bar, it did not deenergize the tramming motors on the continuous miner
unless more than 20 pounds of pressure was applied and that the device failed to meet a
perfornrnnce requirement of section 75.523-2(c).
This leaves the question of the applicability of the standard. It is clear that the situation in
which Sherry found himself was hazardous. As Sherry recognized, he was lucky he was not
killed (Tr. 32). It is equally clear that MSHA has been cognizant of the hazard. MSHA publicly
warned operators about such a hazard in its July 1989 policy letter (Gov. Exh. 5), and when the
1989 warning expired, MSHA renewed the warning in its PPM by stating that "an emergency
stop switch shall be installed on the smaller" of mechanically connected machines that could be
trammed independently (Gov. Exh. P-6). Further, and as I just stated, I take judicial notice that
in 1996 it again alerted the mining community of the possible hazard (Public Information
Bulletin No. P96-18 at 2), and in so doing described four fatal accidents, two of which appear to
have been similar to the accident involving Sherry (Id.).
Given its clear recognition of the hazard, one would think that MSHA would be equally
clear about what it required operators to do to avoid the danger and about the authority for the
requirement. Unfortunately, such is not the case. Although not explicitly stated, the 1989
program policy letter could have been read to imply that compliance with section 75.523-2 was
required ("A means to eliminate [the] hazard is to mount an emergency stop switch on the MBC
to deenergize the continuous min[er] ... [and f]ailure to install an emergency stop switch ... that
will meet the requirements of . . . [section] 75.523-2 ... will result in enforcement action" (Gov.
Exh. P-5 at 1-2)). However, MSHA let the letter expire and the agency has not since made any
explicit, let alone implied, pron9uncements on the applicability of the subsection.
The PPM, which took effect upon expiration of the letter, states "[w]ithout an emergency
stop switch the equipment is not considered to be in safe operating condition and must be
removed from service" (Gov. Exh. P-6). The statement is made with respect to the agency's
interpretation of section 75.1725. The PPM's discussion of section 75.523-2 makes no reference
to the requirements of the section being applicable to MBC's when they are used as component
parts of continuous mining and haulage system.
The fact is that nowhere in MSHA's extant public statements is notice given ofMSHA's
532

intent to require through section 75.523 and its subparts that MBC's which are mechanically
connected to self-propelled electric face equipment, i.e., to continuous miners, be equipped with
panic bars to deenergize the continuous miners. On the contrary, although the agency's most
recently published pronouncement on the subject advises that "MBC's should be equipped with
panic bars or switches" and that "[t]he panic bar and/or emergency stop switch on the MBC
should ... be able to de-energize the continuous mining machine" (Public Information Bulletin
No. P96-18 at 2), it describes the statement as a recommendation ("MSHA recommends ... the
following" (Id.)) rather t_han as a requirement. Moreover, it indicates the recommendation is
made under the authority of section 75.1725(a) and the Act. It does not once reference section
75.523 or the section's subparts (Id. 3).
Given this lack of clarity and guidance by the agency, should Rosebud nonetheless have
realized the MBC came within the requirements of section 75.523-2? I think not. The standard
does not specifically refer to continuOU;S mining and haulage systems and/or MBC's. Lacking a
specific reference, the question, as with so many other standards, is whether a reasonably prudent
person familiar with the mining industry and the protective purposes of the standard would have
recognized that the requirements of the standard applied to the MBC (Ideal Cement Co.,
12 FMSHRC 2409, 2416 (November 1990)).
The standard states that it applies to "self-propelled electric face equipment", and the
Secretary argues strenuously that the MBC and the continuous miner together constituted a single
unit of "electric face equipment". However, while it is obvious the continuous miner was
electric face equipment, in that it operated in the immediate vicinity of the face, it is not clear at
all that the MBC, which was removed by distance from the face, also qualified as such equipment. Indeed, the Secretary's theory, if carried to its logical conclusion, would make every
MBC in a continuous haulage system (and there could be several) "electric face equipment", no
matter how far removed from the face they might be. The very use of the term "face" in the
standard, gives the standard a specific locational reference, one that the Secretary's interpretation
would blur if not ~!together eliminate (see Tr. 94 (O'Donnell's description of electric face
equipment as "the eptire mining system")).
Moreover, in its most recent public pronouncement on the need for deenergizing devices
on MBC's, MSHA appears to take a position counter to that advocated in this case. The Program
Information Bulletin treats MBC_'s and chain bridge conveyers as separate from the continuous
miner that cuts the coal. It states, "Continuous haulage systems, known as mobile bridge
conveyors, commonly consist of alternating series of piggyback mobile bridge carriers (MBC)
and chain bridge conveyers" (Program Information Bulletin No. P96-18 at 1). There is no
mention of continuous miners as part of the system. Rather, the agency strongly implies that it
views the system and the continuous miner are separate entities in that the agency recommends
"[a]ny panic bar and/or emergency stop switch in any MBC should de-energize the entire
system" and it recommends that "[t]he panic bar and/or emergency stop switch on the MBC
should also be able to de-energize the continuous min[er]" (Id., 1, 2).

533

Given the ·wording of the standard and the agency's lack of clear pronouncements, I do

not believe that a reasonable operator familiar with the industry and the protective purposes of
the standard should have known the cited MBC was required to have a panic bar that deenergized
the continuous miner in accordance with the performance requirements of section 75.523-2.
Accordingly, I conclude Rosebud did not violate the standard.
While it is readily apparent that MSHA has struggled with the issue of how best to
confront the undoubted .dangers posed by the operation of MB Cs as parts of continuous mining
and haulage systems, shoehorning situations like the one at issue into section 75.523-2 without
first clearly advising operators ofMSHA's regulatory interpretation does not meet the requirements of the law. The agency may \Vant to rethink the issue and either make a straightforward
statement of its policy or engage in rule making.

ORDER
For the foregoing reasons, Citation No. 3698571 is VACATED and this proceeding is
DISMISSED.

3vV/dT-~
David F. Barbour
Chief Administrative Law Judge

Distribution: (Certified Mail)
John Strawn, Esq.,.Office of the Solicitor, U.S. Department of Labor, 3535 Market Street, Room
14480, Philadelphia, PA 19104
Joseph A. Yuhas, Esq., P. 0. Box 1025, Northern Cambria, PA 15714
/gl

534

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH , VIRGINIA 22041

April 18, 2000
DONALD L. RIBBLE,
Complainant

DISCRIMINATION PROCEEDING
Docket No. LAKE 2000-25-DM
NC MD 99-16

v.

T & M DEVELOPMENT CO.,
Respondent

T & M Development Pit
Mine ID 20-02595

ORDER OF DISMISSAL
On December 20, 1999, the Complainant Donald Ribble filed a complaint with this
Commission purporting to allege a violation of Section 105(c)(l) of the Federal Mine Safety and
Health Act of 1977, the "Act." 1 In that Complaint Mr. Riddle alleges as follows:
I have a back injury there Company Doctor was treating me for pulled
muscle or tom. I stopped going to Company Doctor because they would not ok
therapy. So I have gone to my family Doctor. He oked therapy. On 8-11-99 I
was checking a roller on the stacker about 18 ft. up I slipped and Lost Balance. I
fall about 18 ft into a pile off sand feet first I report it to Gary Benting my boss.
At the time it was just a sore knee. Then the next day my back & neck begain to

· Se~tion 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 miner, representative of miners or applicant for employment in any coal or other mine
subject to this Act because such miner, representative of miners or applicant for employment has
filed or made a complaint under or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner, representative of miners or applicant
for employment on behalf of himself or others of any statutory right afforded by the Act.

535

-hurt. On. 8-12-99 I asked if I could go to the Company Doctor on my own. My
boss Gary Benting said he needed a accident report from his boss Rick Hill.
Asked everyday for the form so I could go to the Doctor. Never recieved it always
had excuse. Rick didn't have it. So on the day of 8-17-99 when the day was over.
Gary Benting fired me couldn't give me a reason. So I called main office in
Belleville MI. Marlene VanPatten gave me permission to go to there Company
Doctor. When I need therapy it was never ok with the Company. Company
Doctor informed me I could go back on light duty. Marlene VanPatten informed
me again I was.fired. I still have Blue Cross Blue Shield with Thompson &
McCully so that's paying medical bills. I don't know when that will quit. I have
no means of income. They referred me Workman Comp. & refused to hire me
back on light duty.
Since the Complaint did not allege facts constituting a violation of Section 105(c){l) of
the Act the Complainant, Donald Ribble was directed to show cause on or before April 14, 2000,
why the case should not be dismissed. To date he has failed to respond. Accordingly this case is
dismissed.

ORDER
Docket No. LAKE 2000-25-DM is hereby dismissed.

Gary
Administrative Law Judge
703-7 56-6261
Distribution: (Certitied MapJ
Mr. Donald L. Ribble, 4775 22nd Avenue, Hudsonville, MI 49426
Marlene J. VanPatten, Manager, Thompson-McCully Company, P.O. Box 787, Belleview, Ml
48111
\mca

536

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

April 19, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 99-233
A. C. No. 15-16318-03656 M

V.

Mine No. 6
EARL BEGLEY, employed by
MANALAPAN MINING COMPANY,
Respondent

DECISION
Appearances: Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for the Secretary;
Fred Owens, Jr., Esq., Harlan, Kentucky for the Respondent.
Before:

Judge Weisberger

Statement of the Case
This case is before me based upon a Petition for Assessment of Penalty filed by the
Secretary of Labor seeking the imposition of a civil penalty against Earl Begley on the ground
that Begley violated section 3 l 7(c) of the Federal Mine Safety and Health Act of 1977 ("the
Act"). Subsequent to notice, a hearing on this matter was held in Big Stone Gap, Virginia. 1

I. Findings of Fact
A. Petitioner's Evidence

Robert D. Clay, an MSHA inspector, testified that sometime prior to March 22, 1999, his
office had received an anonymous complaint from a miner that Earl Begley had been smoking
underground at the Manalapan No. 6 Mine. On March 22, 1999, Clay, in the company of another
1

At the conclusion of the hearing the parties were ordered to file Briefs three weeks after
receipt of the transcript. Subsequently, the parties requested numerous extensions, based on
extenuating circumstances, and the requests were granted. On April 11, 2000 Respondent filed
its Brief.
537

MSHA inspector, Lloyd Sizemore, inspected Manalapan's Mine No. 6. According to Clay, at
approximately 8: I 0 a.m., he was dressed with protective gear, and was standing at the rear of
Sizemore's jeep while the latter was putting on his protective gear. Clay testified that he saw
Begley, whom he had known by sight, exiting the mine portal which was located 25 to 30 yards
away. He stated that Begley was wearing a jacket, hard hat, boots, cap, and coveralls, and had
both hands in his jacket pockets. According to Clay, when he (Clay) turned to look at Begley,
the latter increased the pace of his walk, walking "very rapidly" (Tr.25). Clay attempted to get
Begley's attention by saying "[H]ow's it going, Earl?" (Tr.25), and Begley continued to his
vehicle. Clay proceeded to try intercept Begley, and arrived at Begley' s truck at the same time as
Begley. According to Clay, Begley did not leave his line of sight from the time the latter left the
portal until he arrived at the truck.
Clay testified that he was within 3 feet of Begley, and that he observed that Begley used
his left hand to open the driver's door of the truck Begley then leaned on the driver's seat. His
right foot was placed in the truck, and his left foot was on the ground. According to Clay, he saw
Begley put his right hand under a garment that was located in the middle of the driver's seat, and
then place his left hand directly above the window crank inside the door on the driver's side, and
lean against the front seat. According to Clay, when Begley's right hand came out of the truck, it
contained a pack of cigarettes. Begley took the cigarette out of the pack with his left hand, and
placed it in his mouth. He then put his left hand in the jacket pocket and removed a Bic lighter,
and lit the cigarette.
According to Clay Begley had been in his line of vision from the portal to his (Begley's)
vehicle, and that "[a]t no point in time do I ever recall Mr. Begley's left hand leaving my
sight"(Tr.30). Clay said that he did not see Begley put anything in his left jacket pocket at any
time.
According to Clay, he told Begley that he was going to ask him a question, and told him
that he shoufd think carefully before he answered it. Clay then asked him "where did you get the
cigarette lighter", (Tr.32) and Begley informed him that he got it from the truck seat. Clay then
informed Begley that he was going to issue a Citation, and Begley responded as follows :
"(W]ell, you're not going to do me that way" (Tr.34).
Clay issued a citation alleging a violation of section 317(c) of the Act which provides as
pertinent, that no person shall carry "smoking materials" or lighters underground.
Clay opined that the violation was significant and substantial because if a person were to
take a cigarette lighter underground, its use could cause an explosion due to the presence of dust
in suspension, which is part of the normal mining process. In this connection, he also indicated
that using the lighter could cause a methane based explosion as the mine does liberate methane,
and he had detected the presence of some methane in the past. Additionally, Clay opined that
methane in coal seams below the working areas of the mine could rise through breaks in the floor
of the working areas, and could accumulate in the working areas. He also indicated that during

538

the winter months due to changes in barometer readings, there is more methane activity, and due
to decrease in temperatures, any float dust in the resultant dry aii becomes drier, and more
explosive. Clay also referred to an ignition that had occurred at another mine as a result of
miners carrying a lighter which resulted in two fatalities. He also noted that inasmuch as Begley
worked in all of the entries of the mine, all 12 miners working underground could have been
endangered by any resultant fire or explosion.
Clay opined that since Begley had worked as a supervisor, it was inexcusable for him to
have taken a lighter underground as he would have been responsible for conducting searches.
On cross examination, Clay indicated that in discussing the Citation with Begley and
Doug Lunsford, the assistant superintendent at the mine, he did not "in any way" (Tr. 73) reenact
"what had happened, (his] seeing the lighter and where Mr. Begley was ... [w]here [he was] when
[he] saw the lighter" (Tr. 73 ).
B. Respondent's Evidence

Earl Begley testified that on March 22, he was working as a repairman at the mine. He
indicated that he had been working underground, but had to go outside in order to get a belt pin.
According to Begley, when he emerged from the portal, he saw Clay and Sizemore with their
backs to him. Begley then walked about 75 feet, and hollered to Clay and Sizemore "(h]ey,
what's going on" (Tr.80). According to Begley, Clay and Sizemore had been putting on their
equipment at their trucks, but did not say anything to him, and he continued another 20 to 30 feet
to his truck. Begley testified that he did not run, and that the pathway was very slick, and
contained big stones. He described the path or roadway as being impassable for all equipment
except the bulldozer. According to Begley, when he got to his truck, he partially got in, reached
under the seat, got his keys, and started the engine. Later on in his testimony, he indicated that he
reached into th.e seat, got a cigarette and lighter, and lit a cigarette. According to Begley, Clay
and Sizemore were approximately 25 to 35 feet away at the time. He then put the truck in gear,
and started to more forward, and Clay stopped him, and told him that he was having a search and
that ifhe moved the truck he would be violating the law. Begley said that Clay and Sizemore
were standing in front of the truck. According to Begley, Clay asked him three times whether he
was putting the lighter in his pocket or taking it out, and that he (Begley) replied as follows:
"[W]hat in the world are you trying to do, Bob." (Tr.89) Begley testified that Clay then allowed
him to proceed, and he went to the mine office to get some belt parts. He then returned with the
truck, parked it, and went underground with Clay and Sizemore.
According to Begley, he, Sizemore, Clay, and Lunsford exited from the mine and went to
the front of his truck. Accordingly to Begley, in essence, he placed Clay and Sizemore where he
had observed them when he had gotten out of the truck earlier that morning. Begley stated that
he asked Clay if this was the exact spot he was standing in when he (Begley) and got in and out
of the truck, and Clay said yes. Begley testified that earlier in the day, when Clay and Sizemore
were at that location, he was completely hidden by the truck. Begley denied having a cigarette
539

lighter with him·that day, and indicated that earlier in the day, before he had left the underground
section to get a belt part, he was searched by his foreman, Harold Gilbert, whom he indicated was
his rival for the foreman's position. Gilbert searched his person as well as his hat, and lunch box.

Lunsford, who was the assistant superintendent at the mine on the date at issue, testified
that after Clay and Sizemore inspected the men underground for smoking materials, he, Begley,
Clay, and Sizemore w~nt to the surface, and Clay pointed out where he had stood when Begley
had entered his truck earlier. Lunsford estimated that point as being approximately 20 feet from
the truck.
C. Petitioner's Rebuttal
On rebuttal, Lloyd Sizemore, an MSHA electrical inspector, testified that he did not stop
Begley from driving his vehicle. He was asked if he participated in a reenactment of
circumstances that morning, and he indicated that he did not, and that no one reenacted when had
happened the morning.
II. Evaluation of the Evidence and Discussion
A. Violation of Section 317(c) supra
The issue presented for resolution is whether the Secretary has established, by a
preponderance of the evidence, that Begley had carried a cigarette lighter underground the
morning of March 22, 1999. Begley denied having a cigarette lighter with him underground, and
stated that he had been searched throughly by his foreman, Harold Gilbert, whom he indicated, in
essence, would not have been likely to have been motivated to exonerate him. Begley testified
that when he emerged from the portal, Clay had his back to him. In addition, according to
Begley's version of the events on March 22, Clay, was approximately 30 feet away from the
truck when he (Begley) opened the door, and thus could not have been able to see his actions
inside the truck. Accordingly to Begley and Lunsford, later on that morning Clay confirmed, in
essence, that had not been ·in the immediate vicinity of the trnck when Begley had opened the
door and reached inside.

In reconciling the discrepancies between Begley's and Clay's versions, I accept Clay's
version for the reasons that follow. I carefully observed Clay's demeanor and found him to be a
most credible witness. Also, I place more weight upon Clay's version of Begley's actions at the
truck at the due to the details found in Clay's testimony regarding Begley's actions, and the
placement and movement of his upper and lower limbs. Also, I note that, most importantly,
Begley did not either in his conversations with Clay on March 22, or in his testimony at the
hearing, specifically deny that, after approaching the truck he took a cigarette lighter out of his
jacket pocket. Further, based upon my observations of his demeanor, I accept Clay's version, that
from the time Begley exited the mine until he withdrew the cigarette lighter from his left jacket
540

pocket, Clay had kept Begley in sight, and did not loose sight ofBegley's left hand at any time.
Begley did not adduce any improper motive or bias on Clay's part that would tend to establish
that his testimony regarding his observations was motivated by something other than his
intention to tell the truth regarding the execution of his official duties. I thus find that it is more
likely than not that Begley had a cigarette lighter in his possession from the time that he left the
portal until he lit a cigarette at his truck. There is no evidence in the record nor did Begley even
allege that he had picked up the lighter subsequent to his exiting the underground area up to the
time he exited the portal. . Thus I find that it is more likely than not that he had the cigarette
lighter in his possession when he was underground, and hence that he was in violation of Section
317(c)supra.
B. Significant and Substantial

A "significant and substantial" violation is described in section 104(d)(l) 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 U.S.C. § 814(d)(l). 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 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4(January1984), 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; an<;l (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), 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 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); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
541

As discussed above, the record establishes a violation under Section 3 l 7(c) of the Act.
Further, based upon Clay's uncontradicted testimony I find that the violative condition i.e. having
a cigarette bghter underground contributed to the hazard of a mine explosion. Regarding the
third element set forth in Mathies supra, there is no evidence of any methane or coal dust present
on the date Begley was cited. Also, with the exception of one location underground, all
circulating air was sufficient. However, the evaluation of the reasonable likelihood of injury, i.e.
the third element set forth in Mathies supra" ... should be made assuming continued normal
mining operations." (U.S. Steel Mining Company, 7 FMSHRC 1125, 1130 (August 1985)).
According to the uncontradicted testimony of Clay the mine does liberate methane, and this
potentially hazardous explosive condition is exacerberated by the fact that the floor at the mine in
issue is cracked in some areas which would allow the liberation of methane contained in seams
below the floor. Within this context I find that the third element of Mathies, supra, has been
met. Also, accordingly to the uncontradicted testimony of Clay, in essence, should a methane
explosion result from an individual lighting a cigarette lighter it is reasonably likely that a fatally
could have resulted. For all these reasons I find that, within this context, it has been established
that the violation was significant and substantial.

C. Unwarrantable Failure
Begley did not offer any circumstances to mitigate his negligence with regard to having in
his possession a cigarette lighter underground. Hence, considering the fact that he worked as a
supervisor, I find that the violation resulted for more than ordinary negligence and rose the level
of aggravated conduct. As such, I conclude that the violation was as the result ofBegley's
unwarrantable failure (See, Emery Mining Corp., 9 FMSHRC 1997 (1987).
D. Penalty
Begley does not have any history of violations. However, inasmuch as the violation
herein could haye led to an explosion causing serious injuries I find that the gravity of the
violation was relatively high. Further, as discussed above, I find that Begley's negligence
reached the level of aggravated conduct and was more than ordinary negligence. In Ambrosia
Coal and Construction Co. 19 FMSHRC 819, 824 (May 1997), the Commission explained that
in evaluating the penalty to be assessed against an individual "the relevant inquiry with respect to
the criterion regarding the affoct on the operator's ability to continue in business, as applied to an
individual, is whether the penalty affects the individual's ability to meet his financial obligations
... With respect to the "size" criterion, ... as applied to an individual, the relevant inquiry is
whether the penalty is appropriate in light of the individual's income and net worth." According
to Begley he is no longer employed at Manalapan. He owns and operates a general store, which
does not produce any cash income. He indicated that any cash that he receives from the store he
uses to replenish stock. He receives $1,065 a month from unemployment insurance. He pays
$523 month on the mortgage on his residence, and $700 on the mortgage on his store. Begley
indicated that also owns an establishment which manufactures and installs belt materials, but that
he last earned money from this enterprise approximately four weeks prior to the hearing.
542

According to Begley, as of the date of the hearing he was current for all his bills except for his
telephone bill, but his store checking account contained only $300 in it. He indicated that he
does not have any money to pay a penalty, and that if a penalty is assessed he would not be able
to go underground, and that he cannot run a grocery store "that does not pay the bills and work in
public jobs too." (Tr. 181). However, he testified that his three children are not dependent on
him, that no one is dependent on him, that his wife does not live with him, and that she has filed
for divorce. Significantly, he indicated he could come up with $250 to pay the maximum
penalty. Within the above context, I conclude that a $250 penalty is appropriate considering the
above factors, and considering his income and net worth as well as his ability to meet his
financial obligations.

ORDER
It is ORDERED that Respondent pay a total civil penalty of $250 within 30 days of this
decision.

"'

~ber~
Administrative Law Judge

Distribution: (Certified Mail)
Anne T. Knauff, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-~01, Nashville, TN 37215-2862
Fred Owens, Jr., Esq., P. 0. Box 352, Harlan, KY 40831
nt

543

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

April 20, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 99-272
A.C. No. 29-00097-03501 lJW

v.

Navajo Mine

JUSTIS SUPPLY & MACHINE SHOP,
Respondent

DECISION
Appearances:

Ned D. Zamarripa, Conference and Litigation Representative, Mine Safety
and Health Administration, Denver, Colorado, for Petitioner;
George R. Carlton, Jr., Esq, Godwin, White and Gruber, Dallas, Texas,
for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against Justis
Supply and Machine Shop ("Justis"), pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S .C. §§ 815 and 820 (the "Mine Act"). A hearing was held
in Albuquerque,_New Mexico. The parties presented testimony and documentary evidence and
filed post-hearing briefs.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Navajo Mine is a surface coal mine operated by BHP Minerals, Inc. ("BHP") in San
Juan County, New Mexico. Draglines are used at the Navajo Mine to remove the overburden
above the coal. On January 5, 1999, MSHA Inspector Peter Paul Saint conducted an inspection
of the Navajo Mine. As part of the inspection, he inspected the site where a new dragline was
being assembled. This site, hereinafter the "dragline site," was about one mile from the area
where coal was being excavated. (Tr. 93). An earthen berm surrounded the dragline site and the
site could be accessed directly from a road that was open to the public. (Tr. 66-67) Another
entrance to the dragline site lead directly to the mine.
The dragline was being assembled by a company referred to by the parties as CDK.
Employees of the Navajo Mine were not directly involved in the assembly of the dragline. CDK
544

contracted with Justis to do some cutting and welding on the dragline at the dragline site. Justis
operates its business in Farmington, New Mexico, and its employees drove a welding truck
owned by Justis from Farmington to the dragline site when working there. When Justis's
employees first drove to the dragline site to start the welding project, they entered the mine gate
and met with representatives of the mine operator before traveling down mine roads to the
dragline site. After that first trip, however, Justis's employees always entered and exited the
dragline site by traveling down roads that were open to the public. Thus, after the first day,
Justis's employees did not travel through the Navajo Mine.
When Inspector Saint inspected the dragline site, he traveled on mine roads to get there.
He issued three citations under section 104(a) of the Mine Act. Justis contested each citation and
also maintains that MSHA did not have jurisdiction over the dragline site.

A.

Jurisdiction
1.

Arguments of the Parties

The Secretary contends that MSHA had jurisdiction to inspect the dragline site because
this site was a mine, as the term "coal or other mine" is defined in section 3(h) of the Mine Act,
30 U.S.C. § 802(h). She argues that those employees who were engaged in the work of cutting
and welding the dragline were "miners" as that term is defined in section 3(h). The Secretary
maintains that the dragline site was selected by the operator of the Navajo Mine and "sectioned
out" with a berm for the purpose of assembling the dragline. (S. Br. 15). Once assembled, the
dragline was to be used to remove the overburden at the pit. She contends that the dragline site
was on or adjacent to mine property about one mile from the area where coal extraction was
taking place. The Secretary characterizes the dragline site as "a dedicated off-site facility of the
mine operator where the assembly of the dragline was to be performed." Id. As such, she
contends that the dragline site was a mine and that Justis was an "operator" performing services
at the mine. The services were welding and cutting on the dragline. The Secretary states that
these services were essential to the assembly of the dragline and the work "subjected" workers at
the site to "hazards associated with this type of project." (Id. at 16).
Justis contends that the Secretary failed to show that the dragline site was a mine. The
Secretary did not offer any proof that the site was owned or operated by BHP. It states that the
only evidence the Secretary offered was Inspector Saint's "subjective belief that the [dragline
site] was part of the Navajo Mine." (J. Br. 2). Justis maintains that because the dragline site was
over a mile away from the actual mining operations and Justis's employees used public roads to
get to and from the site, the site was not a mine. It also points to the fact that only CDK and
Justis employees worked at the dragline site and that anyone could have driven into the site
without passing through the mine. In addition, when Justis's employees first drove to the
dragline site through the Navajo Mine, BHP's representatives told them that the site was exempt
from MSHA regulations because it was not part of the mine. The record does not indicate who
owned or leased the land at the dragline site.

545

2.

Discussion

For the reasons explained below, I find that MSHA had jurisdiction to inspect the
dragline site under the Mine Act. The starting point for an analysis of Mine Act jurisdiction is
the definition of the term "coal or other.mine," in section 3(h)(1). A coal or other mine is
defined, in pertinent part, as "(A) an area of land from which minerals are extracted ... , (B)
private ways and roads appurtenant to such area, and (C) lands, ... strnctures, facilities,
equipment, machines, tools, or other property ... on the surface or underground, used in, or to be
used in ... the work of extracting minerals from their natural deposits, ... or used in ... the milling
of such minerals .... " 30 U.S.C. § 802(h)(l). The Senate Committee that drafted this definition
stated its intention that "what is considered to be a mine and to be regulated under this Act be
given the broadest possible interpretation, and ... that doubts be resolved in favor of inclusion of
a facility within the coverage of the Act." S. Rep. No. 181 , 95'h Cong., !51 Sess. 14 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95itt Cong., 2"d
Sess., Legislative History of the Federal Mine Safety and Health Act of 1977 at 602 (1978); see
also Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D. C. Cir. 1984).
The record does not disclose who owned or leased the land at the dragline site. Inspector
Saint testified that BHP's walkaround representative told him that the site was on BHP's
property. 1 cannot enter a finding based on that evidence because this BHP representative might
have been misinformed. I can safely assume, however, that CDK was not a trespasser on the
land. CDK was the principal employee at the site and exercised control over the site. Although
the site could be accessed by roads that were open to the public, the si te was private and it can be
assumed that CDK could exclude individuals unknown to it from the area. The only activity at
the site was the construction of the dragline. There is no evidence that CDK was performing any
other activities at the dragline site or that it was performing services for other customers at the
site. More importantly, the record makes clear that employees ofJustis were only at the site to
do welding and cutting on the dragline. Justis was not providing services for other customers at
the dragline site.
Before Justis began work at the dragline site, CDK asked Justis's employees to drive to
the mine gate so that BHP's contract security personnel could look over the trucks. These
security guards also gave the Justis employees a training handbook. It was at this time that
fostis's employees were told that the dragline site was exempt from MSHA regulations.
I find that the dragline site fits within the definition of a "coal or other mine" in section
3(h). The dragline site was dedicated to the constrnction of a dragline to be used at the Navajo
Mine. By necessity, the final assembly of a dragline must occur near a mine because it is such a
large piece of equipment. It is not clear who owned the site, but it is clear that the site was under
the control of CDK. The bermed-off site existed for the sole purpose of assembling the dragline.

The Commission has stated, "[t)he definition [of 'coal or other mine' ] is not limited to an
area of land from which minerals are extracted, but also includes facilities, equipment, machines,
546

tools and other property used in the extraction of minerals from their natural deposits .... "
Harless, Inc., 16 FMSHRC 683, 687 (April 1994)(citation omitted). Although the dragline was
not used in the extraction of minerals, it was being assembled to be used in the extraction
process. Justis' s argument that the Secretary failed to show that the dragline was being
assembled for use at the Navajo Mine is not well taken. CDK and Justis would not have been
assembling and welding the dragline at this site if it was not going to be used at the Navajo Mine.
Indeed, Inspector Saint testified that it was being used at the mine at the time of the hearing. (Tr.
19).
Justis was at the dragline site for a limited purpose. It did not have a shop or other
faci lities at the site or at the mine. It was present at the dragline site to perform cutting and
welding on the dragline. The work it was performing was essential to the construction and
assembly of the dragline.

If Justis was welding a piece of mining equipment at its shop in Farmington that was to
be used at the Navajo Mine, such activities would not be subject to Mine Act jurisdiction.
Likewise, I believe that if it operated a commercial welding shop in an area immediately adjacent
to the Navajo Mine, it would not be subject to MSHAjurisdiction even if most of its welding
work was for the mine. In this case, however, Justis was not operating a welding business at the
dragline site. It was perfom1ing welding services on a dragline for CDK which, in tum, was
assembling the dragline for use at the Navajo Mine. Justis was not open for public business at
the dragline site.
Justis relies heavily on the fact that the dragline site was a mile away from the pit where
coal extraction was taking place, its employees never entered the Navajo Mine after the first visit,
and there was no showing that the dragline site was owned by the mine operator. Although these
;ire factors to be considered, foey do not resolve the issue. The Commission' s recent decision in
.,-im Walter Resources. Inc., 22 !?MSHRC 21 (January 2000) is instructive. In that case, Jim
-Y'V'aiter Resources ("JWR") operated a common supply shop for several of its mines and the shop
was not iocated at any of the mines. The shop was used to warehouse materials and supplies
used at its mines and preparation plants. The Commission held that this supply shop was subject
to Mine Act j urisdiction "because a 'mine' includes 'facilities' and 'equipment ... used in or to be
used i r~ ' ;WR's mining operacions or coai preparation facili ties." (Jim Walter at 25). In a
fo otnote, the Commission stated :
This case does not involve, and we therefore do not
address, whether an off-site supply warehouse operated by a
vendor, mining equipment manufacturer, or distributor would be
covered by the Act, or even whether an off-site faci lity operated by
a mining company or subsidiary that is open for "commercial"
business would be covered.
Id. fn 7.

547

The present case is somewhat similar to the Jim Walter case except for the fact that it
involves an independent contractor. The dragline site was immediately adjacent to the Navajo
Mine. Indeed, anyone exiting the site via the mine road would immediately enter the area of the
mine where extraction activities were taking place. In the context of a western open pit coal
mine, a mile is a very short distance. The dragline site was a dedicated facility that was used by
CDK and Justis solely for the assembly of the dragline. It was not open for any other business.
I find that Justis was an "operator" as defined by section 3(d) of the Mine Act because it
was an "independent contractor performing services or construction at [a] mine." The fact that
Justis may not have had a written contract with BHP or CDK is not controlling because a
common law contractual relationship is not required. Joy Technologies, Inc. v. Secretary of
Labor, 99 F.3d 991, 995-99 (101h Cir. 1996). In addition, the fact that Justis did not have the
authority to control any mining-related operations does not defeat a finding that it was an
independent contractor. Id. Justis was an operator because it performed services at a mine. Id.
at 999-1000; Otis Elevator Co. v. Secretary ofLabor, 921F.2d1285, 1290 (D.C. Cir. 1990).
If BHP employees were assembling the dragline at the dragline site, there is no doubt that
the site would be deemed a mine and these activities would be subject to MSHA jurisdiction.
The fact that these same activities were being performed by independent contractors at the
dragline site should not change the result. Accordingly, I find that the dragline site was a mine
and the activities occurring at the site and equipment used there were subject to MSHA
jurisdiction.

B.

Citations
1. Citation No. 7602366

Citation No. 7602366 alleges a violation of 30 C.F.R. § 77.410(a)(l), as follows:
Mobile equipment was not provided with a back-up alarm with an
obstructed rear view that gives an audible alarm when the
equipment is put in reverse. The Ford welding truck ... was not
provided with a· back-up alarm. The foreman stated that this was a
new truck and had not had a chance to put the alarm on the truck.
This truck is used at the contractor CDK site and person observed
working and walking in the area of the truck. This condition
would allow the truck to run into or over person working or
walking around the truck.
Inspector Saint determined that the violation was of a significant and substantial nature
("S&S") and was the result of Justis's moderate negligence. Section 77.410(a)(l) provides, in
part, that "[m]obile equipment such as ... trucks, except pickup trucks with an unobstructed rear
view, shall be equipped with a warning device that gives an audible alarm when the equipment is
put in reverse." The Secretary proposes a penalty of $66 for this alleged violation.
548

There is no dispute that the welding truck was not equipped with a back-up alarm. The
truck was a Ford 350 with a gas powered welder mounted behind the cab. Oxygen and acetylene
bottles were also mounted on the bed of the truck. Tool boxes were mounted along the sides of
the bed. This equipment obstructed the rear view from the cab of the truck. (Tr. 25-27). The
tool boxes along the sides of the bed made it difficult to see behind the truck using the side
mirrors. Id.
The rear of this truck was used as a work bench and was equipped with a vise and rack.
The truck was parked head-first about 40 feet from the dragline. CDK and Justis employees
work in the area. It is highly likely that someone would back up the truck.
Justis argues that the welding truck is a "service vehicle" as that phrase is used in
MSHA's program policy manual ("PPM") and is not required to be equipped with a back-up
alarm. The paragraph of the PPM that discusses section 77.410 states as follows:
The warning device required by this section need not be provided
for automobiles, jeeps, pickup trucks, and similar vehicles where
the operator's view directly behind the vehicle is not obstructed.
Service vehicles making visits to surface mines or surface work
areas of underground mines are not required to be equipped with
such warning devices.
(Ex. G-6). Justis argues that the welding truck is a service vehicle and that Inspector Saint
admitted that fact. (Tr. 57).
The Secretary contends that Justis's welding truck was not a "service vehicle" as that
phrase is used in the PPM. She states that the truck was used not only to transport people and
supplies to the dragline site, but was "engaged in work activities associated with the assembly of
the dragline." (S. Br. 17). The Secretary maintains that the exemption in the PPM applies to
vehicles that make deliveries to a mine.
I find that the welding truck was not a "service vehicle making visits to" a surface mine.
Although the PPM is not entirely clear, the language indicates that the exemption applies only to
vehicles that "visit" a mine. Examples of such visiting vehicles would include Postal Service
trucks, UPS trucks, soft drink delivery trucks, and other trucks delivering parts or supplies. Such
vehicles are generally not inspected by MSHA when they make deliveries to mines. A truck used
at a mine site by an independent contractor is subject to MSHAjurisdiction. In this instance, the
welding truck was an integral part of the welding services that Justis provided. The truck was
used as a mobile work station at the dragline site. Justis's interpretation of the PPM would
exempt a large percentage of trucks used by independent contractors at mines. Inspector Saint
did not testify that the welding truck was a service vehicle making visits to the dragline site; he
stated that it was a "service" truck because Justis was providing welding services at the dragline
site. (Tr. 56, 76-78).

549

Based on the testimony and exhibits, I find that the Se~retary established a violation. I
also find that the Secretary established that the violation was S&S. An S&S violation is
described in section 104(d)(l) of the Mine Act as a violation "of such nature as could
significantly and substantially contribute to the cause and effect of a ... mine safety or health
hazard." A violation is properly designated S&S "if based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature." National Gypsum Co., 3 FMSHRC 822, 825
(April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a
four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming "continued
normal mining operations." U.S. Steel Mining Co., 6 FMSHRC 1573, 1574(July1984). The
question of whether a particular violation is S&S must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988).
The Secretary must establish: (1) the underlying violation of the safety standard; (2) a
discrete safety hazard, 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. The Secretary is not
required to show that it is more probable than not that an injury will result from the violation.
U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).
The Secretary established the violation and that the violation contributed to a discrete
safety hazard. Inspector Saint testified that about 20 individuals worked at the dragline site. (Tr.
17). Two Justis employees were working at the site and both employees used the welding truck.
The inspector stated that an injury was reasonably likely because people work at the back of the
welding truck and there was a pronounced blind spot in that area from the cab of the truck. (Tr.
26, 28-29). The inspector believed that, given the noise and activity in the area, it was reasonably
likely that someone would be seriously injured if the truck were to be put in reverse. (Tr. 30).
He concluded that if the violative condition were allowed to continue, it would cause an accident
of a serious nature. (Tr. 31 ). I credit Inspector Saint's testimony in this regard.
, I find that Justis's neglige~ce was low. It relied in good faith upon information proyided
by BHP's security guards that it would not be subject to MSHA regulation. Justis did not
normally perform work at mines and it did not have an MSHA identification number. It was
unfamiliar with MSHA's regulatory program. I enter this finding notwithstanding the fact that
Justis was aware that the truck did not have a back-up alarm. A penalty of $50 is appropriate for
this violation.
2. Citation No. 7602367
Citation No. 7602367 alleges a violation of30 C.F.R. § 77.402, as follows:
Hand-held power tools (were] not being maintained with controls
that require constant hand or finger pressure to operate the tool,
.located at the CDK contractor work site. The Black and Decker
· 110-volt hand-held grinder was observed with a control that would

550

lock the equipment in the on state when in use. This condition
would allow a person to be injured if the wheel would jam and
break or turn the equipment around.
MSHA detennined that the violation was not S&S and was the result of Justis's low
negligence. Section 77.402 provides, in part, that "[h]and-held power tools shall be equipped
with controls requiring constant hand or finger pressure to operate the tool .... " The Secretary
proposes a penalty of $55 for this alleged violation.
The cited grinder was equipped with a trigger lock that allowed the grinder to remain
running even when there was no pressure on the trigger. The grinder was inside a locked toolbox
on the side of the welding truck. (Tr. 51 ). The grinder was not tagged-out or otherwise marked
to indicate that it should not be used. (Tr. 36). The grinder was the personal property of one of
Justis's employees. Inspector Saint testified that, in his experience, as long as equipment is on
the property and is available for use, a employee will use it if he needs it whether it is owned by
his employer or another individual. (Tr. 36-37). The inspector detennined that the condition was
not serious because Justis representatives told him that the grinder was more likely to be used at
the shop than at the dragline site. I credit the inspector's testimony.
I find that the Secretary established a violation. The fact that the grinder was owned by
an employee rather than Justis is not a defense to the violation because the grinder was available
for use at the dragline site. Although the grinder was in one of the locked tool boxes on the
welding truck, the key to the tool box was in the cab of the truck. (Tr. 73). Thus, it was
available for use by the two Justis employees.
The violation was not serious. Justis was not negligent with respect to this violation.
There is no showing that Justis was aware that the grinder was on the truck or, if it was aware,
that it was equipped with a trigger lock. A penalty of $10 is appropriate for this violation.
3. Citation No. 7602368
Citation No. 7602368 alleges a violation of 30 C.F.R. § 77.404(a), as follows:
Mobile and stationary equipment was not being maintained in safe
operating condition. Located on the Ford truck ... at the CDK
contractor site. A 3-ton chain hoist was observed without the
safety latches on the hook to prevent cable from coming off the
hooks.
MSHA determined that the violation was not S&S and was the result of Justis's moderate
negligence. Section 77.404(a) provides, in part, that "[m]obile and stationary machinery and
equipment shall be maintained in safe operating condition .... " The Secretary proposes a penalty
of $55 for this alleged violation.

551

Inspector Saint testified that the hook at the end of the chain for the hoist was not
equipped with a safety latch. (Tr. 40). Such a latch is designed to prevent anything that is being
hoisted from sliding out or slipping off the hook. He stated that hoists of this type are used to lift
motors or pieces of metal. The inspector referred to the hoist as a "three ton hoist" and it was on
the back of the welding truck. (Tr. 41-42, 53 ). Inspector Saint determined that the condition was
not serious because Justis was not using the hoist at the time of his inspection.
There is no dispute that the hook was not equipped with a safety latch. Based on the
testimony of Inspector Saint, I find that this condition violated the safety standard. The hoist was
not maintained in safe operating condition. I agree that the violation was not serious because
there was no showing that it would be used at the dragline site. I also find that Justis's
negligence was quite low. The hoist was laying on the bed of the truck, but there was no
indication that it was going to be used. The cutting and welding described by the parties did not
include any hoisting activities. A penalty of $10 is appropriate for this violation.

II. APPROPRIATE CIVIL PENALTIES
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. I find that Justis was not issued any citations during the two years
prior to this inspection. Justis was a small operator that worked less that 10,000 man-hours
annually and employed two people at the dragline site. The violations were rapidly abated in
good faith. The penalties assessed in this decision will not have an adverse effect on Justis's
ability to continue in business. My findings with regard to gravity and negligence are set forth
above. Based on the penalty criteria, I find that the penalties set forth below are appropriate.

III. ORDER
Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:

Citation No.

30 C.F.R. §

Penalty

7602366
7602367
7602368

77.41 O(a)(l)
77.402
77.404(a)

$50.00
10.00
10.00

552

Accordingly, the citations contested in this proceeding are AFFIR.!"IED as set forth
above, and Justis Supply and Machine Shop is ORDERED TO PAY the Secretary of Labor the
sum of $70.00 "vithin 40 days of the date of this decision. Upon payment of the penalty, this
proceeding is DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:

Ned D. Zamarripa, Conference & Litigation Representative, Mine Safety and Health
Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail)
George R. Carlton, Esq., Godwin, White & Gruber, 901 Main Street, Suite 2500, Dallas, TX
75202-3727 (Certified Mail)

RWM

553

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

April 25, 2000
BRYCE DOLAN,

DISCRIMINATION PROCEEDING
Complainant

v.

F& E ERECTION COMPANY,
Respondent

Docket No. CENT 97-24-DM
MSHA Case No. SC MD 96-05
Mine ID No. 41-00230-B96
Bayer Alumina Plant
DECISION ON REMAND

Before:

Judge Feldman

The captioned matter is before me based on a discrimination complaint filed on
December 27, 1996, pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of
1977 (the Mine Act), 30 U.S.C. § 815(c)(3), by the complainant, Bryce Dolan, against the
respondent, F&E Erection Company (F&E). The initial decision granted Dolan's discrimination
complaint based on a finding that Dolan engaged in a work refusal protected by section 105(c) of
the Mine Act. 20 FMSHRC 591(June1998) (ALJ).
On February 29, 2000, the Commission, although finding that "substantial evidence
supports the judge's conclusion that F&E failed to address Dolan's concerns in a way that should
have alleviated his fears," vacated the initial finding of discrimination and remanded this matter
for further consideration concerning whether Dolan's protected work refusal constituted a
constructive discharge. 22 FMSHRC 171, 177-78. Relying on Simpson v. FMSHRC, 842 F.2d
453, 461-63 (D.C. Cir. 198S), the Commission concluded ''the key inquiry in a constructive
discharge case is whether intolerable conditions existed such that a reasonable miner would have
felt compelled to resign." Id. at _176. Thus, the Commission remanded this matter for me to
determine whether Dolan's work refusal constituted a constructive discharge. For the reasons
discussed below, I find that F&E's inadequate response to Dolan's reasonable, good faith safety
complaints constituted a discriminatory constructive discharge.

In remanding this matter, the Commission noted that I stated at the hearing that I
considered this a work refusal case, rather than a constructive discharge case, because F&E's
actions were not calculated to induce Dolan's resignation. 22 FMSHRC at 177-78. I was
referring to a retaliatory constructive discharge. A retaliatory constructive discharge occurs when
an operator, who is prohibited by section 105(c) of the Act from directly firing a miner who has

554

engaged in protected activity, seeks to effectuate the miner's termination indirectly by creating
intolerable working conditions. 1
Since termination of the miner must be accomplished indirectly, invariably a retaliatory
constructive discharge involves working conditions that are unrelated to safety hazards because
exposing the miner to hazardous conditions would give rise directly to section 105(c) protection.
Secretary ofLabor olb/o Bowling v. Mountain Top Trucking Company, 21 FMSHRC 265, 27581 (March 1999) pet. for review docketed, No. 99-4278 (61h Cir. Oct. 22, 1999) (truck drivers
who quit after they had been called back to work after a discriminatory discharge were the
victims of a retaliatory constructive discharge because they were subjected to forced idleness as
well as to other forms of harassment). However, the anti-discrimination provisions of the Mine
Act have been interpreted to prevent employers from accomplishing indirectly what is directly
prohibited by law. Id. at 272, citing Simpson 842 F.2d at 461; Secretary ofLabor o/b/o Nantz v.
Nally & Hamilton Enters., Inc., 16 FMSHRC 2208, 2210-13 (November 1994). The evidence
does not reflect, and Dolan does not contend, that Dolan's working conditions were created by
F&E in retaliation for Dolan 's protected activity in order to encourage him to resign.
The facts in this case are set forth in the initial decision as well as in the Commission's
remand decision. Briefly stated, Dolan was an iron worker employed by F&E, a construction
company that performed work at an alumina smelter in Point Comfort, Texas operated by the
Aluminum Company of America (Alcoa). From late 1994 until March 1996, to ensure a good
weld on stiffeners, Dolan and five to six other crew members were removing paint from the angle
irons of trusses in the R35 tank farm before affixing the stiffeners. Despite the fact that Jones &
Neuse, Inc. (J&N), F&E's environmental and engineering consultant, had recommended
"[r]emoval and containment of abated lead will be accomplished by using needle guns, roto
penes and grinders attached to high efficiency vacuums," Dolan's crew removed the paint by
burning it off with a cutting torch. 20 FMSHRC at 594. During this period Dolan's crew was
not provided with any personal respiratory equipment or protective clothing.
In March 1996, Dolan learned that Alcoa employees performing similar work in the R35
tank farm were furnished with protective clothing and respirators, and, that the entire R35 tank
farm was supposed to be treated as a lead abatement area. Dolan complained to several F&E
officials, including general foreman Steve Whitehead, about the hazards of removing lead based
paint without personal protective· gear.

1

A "retaliatory discharge" is "a discharge that is made in retaliation for the employee's conduct (such as
reporting unlawful activity by the employer to the govenunent) .... " Black's Law Dictionary 476 (71h ed. 1999).

555

In response to Dolan's complaint, F&E contracted with.Health and Safety Management,
Inc. (HSM) to perform air sample monitoring on crew members who, in the meantime, had been
given Tyvek suits2 and half-face respirators. Based on HSM's air sampling results, HSM
recommended that the crew member using the cutting torch wear a full-face respirator, while the
remaining crew could continue to wear half-face respirators. F&E implemented HSM's
recommendation.
On or about March 25, 1996, Dolan complained that the entire crew should wear full-face
respirators due to their proximity to the person using the cutting torch. Dolan also complained
that the Tyvek suits were inadequate to prevent lead contamination because they were easily tom
and because sparks from the cutting torch burned holes in the suits. In response, F&E provided a
large quantity ofTyvek suits so that the crew could wear double layers and replace them when
needed. In addition, F&E required the crew to vacuum their clothing with high efficiency
vacuums before leaving the work area.
Dolan continued to complain about the inadequacy of the half-face respirators and
Tyvek suits. On April 16, 1996, F&E held a meeting to address Dolan's concerns. At the
meeting, Whitehead stated F&E would continue to use half-face respirators and Tyvek suits, and
he offered to transfer any employee who wanted to perform non-lead based work. No employees
accepted Whitehead's offer ofreassignment. At the conclusion of the April 16, 1996, meeting,
Dolan quit his job because he believed that the personal protective equipment provided by F&E
was inadequate to prevent lead exposure to himself and his family.
As noted above, the Commission, in its remand decision, has determined that:
There is no doubt that Dolan's initial fears in March 1996, at a time when F&E
had provided no personal protective gear to Dolan's crew, were reasonable. As
the judge noted, F&E conceded as much at the hearing. 20 FMSHRC at 599-600.
Nor is it disputed that Dolan made protected safety complaints to F&E based on
his fears. The question is whether a reasonable miner in Dolan's position would
have had his fears quelled by the measures taken by F&E in response to Dolan's
initial complaint. We find that substantial evidence supports the judge's
conclusion that F&E failed to address Dolan's concerns in a way that should have
alleviated his fears.
22 FMSHRC at 179. The Commission, having concluded that Dolan's work refusal was
protected, has directed that I determine, using an objective standard, whether the working
conditions at the time ofDolan's April 16, 1996, resignation constituted a constructive discharge.
On April 16, 1996, F&E already had responded to Dolan's complaints by (1) performing air
sampling; (2) providing a full-face respirator to the cutting torch operator; (3) providing a halfface respirator to the remaining crew; (4) initially providing Tyvek suits; (5) subsequently

2

Tyvek suits are thin, disposable coveralls made of spun olefin. 20 FMSHRC at 597.

556

providing greater quantities ofTyvek suits; (6) providing high efficiency vacuums; and (7)
offering Dolan a temporary reassignment to non-lead abatement duties.
Despite F&E's responses to Dolan, as determined by the Commission, the evidence
supports the conclusion that the protective measures taken were inadequate to alleviate Dolan's
fears. Id. Robert Miller, an industrial hygienist who testified on behalf of Dolan, opined that
respirators leak due to poor fit or perspiration. Miller also questioned whether half-face
respirators provided adequate protection for non-torch cutting crew members. Dolan's testimony
that Tyvek suits were ineffective because of they were not burn resistant, and because they tore,
was supported by the testimony of crew members Kenneth Tam and Troy Stewart. In addition,
vacuuming personnel before they left the work area did not prevent contamination to underlying
clothing.
Burning lead paint is the fastest, cheapest, and, from a safety standpoint, the least
desirable method of lead removal. 20 FMSHRC 602. Although OSHA does not strictly prohibit
burning lead paint in inaccessible areas, OSHA has determined that burning as a principal
method of removing lead-based paint is not acceptable. Id. Burning as a method of lead
abatement is generally prohibited by Alcoa. Id. Finally, F&E's burning method was contrary to
the advice of J&N, its environmental and engineering consultant, that lead paint should be
removed by chipping and grinding. Id. at 594.
Although Dolan did not specifically complain about the burning method of lead
abatement, Dolan's concerns were caused by F&E's practice of burning lead paint with a cutting
torch rather chipping it with a needle gun and grinder. It was F&E's decision to bum, rather than
chip, that provides the basis for Dolan's concerns regarding exposure to respirable fumes, as well
as exposure to lead as a consequence of burn holes in Tyvek suits. F&E must bear the burden of
departing from generally accepted methods of lead abatement.

In determining whether a constructive discharge has been shown despite remedial
measures taken by an operator in response to a miner's complaints, it is helpful to examine the
D.C. Circuit Court's decision.and its progeny in Gilbert v. FMSHRC 866 F.2d 1433, 1439 (D.C.
Cir. 1989); John A. Gilbert v. Sandy Fork Mining Company, Inc., 12 FMSHRC 177 (February
1990) (Gilbert I); John A. Gilbert v. Sandy Fork Mining Company, Inc., 12 FMSHRC 1203
(June 1990) (Gilbert II). Gilbert refused to perform work because of his concern regarding
hazardous roof conditions. In Gilbert, the Commission concluded there "was no question ...
that mine management was aware of the roof problems ... and was taking steps to address
the problems." Gilbert I, 12 FMSHRC at 180. However, the Commission determined that
Gilbert's safety concerns were not addressed in a manner sufficient to reasonably quell his fears.
Id. at 181. In view of the fact that Gilbert "did not act precipitately and . .. he entertained a good
faith, reasonable belief in a hazard, his departure from the mine constituted a discriminatory
constructive discharge in violation of section 105(c)(l) of the Mine Act." Gilbert II, 12
FMSHRC at 1205. (emphasis added); Gilbert I, 12 FMSHRC 181-82.

557

Turning to the facts of this case, the Commission has determined Dolan had a good faith,
reasonable belief that a hazard existed, and it is evident that Dolan did not act precipitately.
Dolan initially raised safety related complaints in March 1996 and he waited a reasonable period
for F&E to respond. Dolan did not resign until April 16, 1996, when it became clear that F&E
would not alleviate his continuing concerns about his safety. Thus, consistent with Gilbert, the
evidence reflects that Dolan's resignation on April 16, 1996, constituted a discriminatory
constructive discharge.

In reaching the conclusion that Dolan was constructively discharged, I note that whether
or not full and half-face respirators and Tyvek suits were ineffective goes beyond the scope of
this proceeding. The determining factors in concluding Dolan was compelled to resign are the
reasonableness of Dolan's continuing fears, and F&E's failure to adequately quell Dolan's fears,
not the actual degree of hazard presented by F&E's lead abatement procedures. Secretary of
Labor on behalfofDunmire v. Northern Coal Co., 4 FMSHRC 126, 133 (February 1982); Metric
Constructors, Inc. 6 FMSHRC 226, 230 (February 1984); Secretary ofLabor on behalfofPratt
v. River Hurricane Coal Co., 5 FMSHRC 1529, 1534 (September 1983); Gilbert v. FMSHRC,
supra; Secretary ofLabor o/b/o Bush v. Union Carbide Corp., 5 FMSHRC 993, 997 (June
1983); Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135 (February 1988), aff"d mem.,
866 F.2d 431 ( 61h Cir. 1989). In fact, a miner refusing work under a good faith belief that a
hazard exists is not required to prove that the working conditions were, in fact, hazardous. See
Secretary of Labor olblo Robinette v. United Castle Coal Co., 3 FMSHRC 803, 810-12 (April
1981).3 It is F&E's failure to remedy Dolan's reasonable, good faith safety concerns that
provides the "aggravating circumstances" necessary to support a finding of a constructive
discharge. Clark v. Marsh, 665 F.2d 1168, 1173 (D.C. Cir. 1981). Thus, as the Court concluded
in Simpson, "[t]he resolution of [a discrimination] case .. . will tum on whether [the underlying]
work refusal was protected .. .. 842 F.2d at 463.
In the final analysis, the Mine Act "is a remedial and safety statute, with its primary
concern being the preservation of human life ... " Freeman Coal Mining Co. V Interior Bd. Of
Mine Operations Appeals, 504 F.2d 741, 744 (7 1h Cir. 1974) (citations omitted); Peabody Coal
Co., 7 FMSHRC 1357 (September 1985); Jim Walter Resources, 7 FMSHRC 1348 (September
1985), aff'd sub nom. Brock v. Peabody Coal Co., 822 F.2d 1134 (D.C. Cir. 1987). Under the
Mine Act, a miner who reasonably believes he is exposed to a continuing hazard is not required
to continue working under such circumstances. If the operator fails to address the miner's good
faith, reasonable safety concerns, the miner is left with an "intolerable" choice - - to continue to

3

The Commission has "rejected a requirement that miners who have refused to work must objectively
prove that the hazard complained of existed ... [and has] adopted a ' simple requirement that the miner' s honest
perception be a reasonable one under the circumstances."' Secretary ofLabor on behalfof Pratt v. River Hurricane
Coal Co., 5 FMSHRC 1529, 1532 (September 1983) quoting Haro v. Magma Copper Co. ,4 FMSHRC 1935, 194344 (November 1982), and Robinette, 3 FMSHRC at 812.

558

work indefinitely in the face of a perceived hazard, or to quit his job. 4 It is the operator's failure
to respond adequately to the perceived hazard that is the prohibited adverse action that compels
the miner's resignation and provides the basis for a "discriminatory constructive discharge."5
Gilbert II, 12 FMSHRC at 1205; Simpson, 842 F.2d at 463.
Finally, the Commission also directed me to examine anew the impact ofF&E's offer to
reassign Dolan and other crew members to non-lead abatement jobs on the issue of constructive
discharge. Whitehead.testified that during the April 16, 1996, meeting he offered to transfer any
employee who was not satisfied doing lead abatement work to another part of the plant.
Whitehead could not explain why no one accepted his offer given the inherent dangers associated
with excessive lead exposure. Dolan and Tam testified that it was not uncommon for F&E to
transfer employees to non-lead work, particulary during periods immediately preceding blood test
monitoring. However, employees were always returned to lead abatement tasks since most of the
tanks, with the exception of newer units, contained lead based paint.
As noted in the initial decision, the intent of the Mine Act is to minimize the exposure of
all miners to hazards not just those miners that speak out about hazards. 20 FMSHRC at 605.
Thus, offering to reassign a complaining miner while others continue to be exposed to the subject
hazard is not an appropriate mitigating factor. Moreover, given the nature ofF&E's contract
activities concerning maintenance of steel tanks containing lead paint, I credit the testimony of
Dolan and Tam that any reassignment would have been temporary in nature. As the Commission
noted in its remand, a miner's refusal of a temporary reassignment as a solution to his complaints
concerning the continuing existence of hazardous conditions is inextricably connected to the
underlying complaints and constitutes protected activity. 22 FMSHRC at 180 citing Nantz, 16
FMSHRC at 2214. Accordingly, F&E's offer ofreassignment does not alter the fact that its
inadequate response to Dolan's legitimate concerns provided the aggravating factors necessary to
support a constructive discharge.

4

Unlike the Mine Act:most other anti-discrimination statutes, such as Title VII of the Civil Rights Act
of 1964, do not exclusively concern safety and health. Consequently, there is a general reluctance to predicate a
constructive discharge on the fact of discrimination, absent aggravating circumstances, because public policy
requires discrimination victims to mitigate damages by remaining on the job while attacking unlawful discrimination
within the context of existing employment relationships. Clark v. Marsh, 665 F.2d at 1173.
Thus, under most anti-discrimination statutes, absent aggravating circumstances, discrimination alone is
"an insufficient predicate for a finding of a constructive discharge." Id. For example, a failure to receive
equal pay for equal work, and a denial of a promotion because of an employee's ethnicity, do not provide a basis for
a constructive discharge under Title VII. Id. (citations omitted). However, section 105(c) does not require a miner,
whose work refusal is entitled to statutory protection because he reasonably believes that he is exposed to hazardous
conditions, to remain on the job for the purpose of mitigating damages.

5

Obviously, minor or technical violations of the Mine Act, or conditions that are not potentially dangerous
to health and safety, ordinarily will not support a finding of a constructive discharge. Simpson, 842 F.2d at 463.

559

ORDER

In view of the above, Bryce Dolan' s April 16, 1996, work refusal and resignation
were protected by the provisions of section 105(c) of the Mir.ie Act and constituted a
constructive discharge. Consequently, the grant of Dolan's discrimination complaint and the
August 5, 1998, Supplemental Decision on Relief, 20 FMSHRC 847 (August 1998) (ALJ)
ARE REINSTATED. 6

Jerold Feldman
Administrative Law Judge
Distribution:
Errol John Dietze, Esq., Dietze & Reese, 108 N. Esplande, P.O. Box 841, Cuero, TX 77954
(Certified Mail)
James S. Cheslock, Esq., Cheslock, Deely & Rapp, P.C., 405 N. St. Mary's Street, Suite 600, San
Antonio, TX 78205 (Certified Mail)
\mh

6

The Commission previously has directed for review sua sponte the mitigation of damages issue that is
relevant for determining the proper period for relief.

560

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204 - 3582 .
303-844-3993/FAX 303-844 - 5268

April 28, 2000
EQUAL ACCESS TO JUSTICE
PROCEEDING

CONTRACTORS SAND AND
GRAVEL, INC.,
Applicant,

Docket No. EAJ 96-3

V.

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

DECISION ON REMAND

Before: Judge Cetti
On January 7, 2000, the United States Court of Appeals for the District of Columbia
Circuit issued a decision in the above Equal Access to Justice Award case ("EAJA"). The Court
held that the Secretary's position in the underlying proceeding was not substantially justified.
The Court ordered the award of fees and expenses that were granted by the administrative law
judge be restqred, and remanded the case to the Commission for a determination of the amount
of the award to Contractors for pursuing review before the Court.
On March 28, 2000, _the Commission issued an order reinstating the judge's EAJA award.
The Commission also remanded the case to the judge for a determination of fees and expenses
incurred in defending the judge's decision before the Commission and those incurred in the
court's review of the Commission's decision.
Pursuant to the remand, the judge ordered the parties to confer and to attempt to reach an
agreement upon the amount of the fees and expenses to which the Applicant was entitled.
Counsels have conferred as ordered, and counsel for the Secretary reports the parties have agreed
that a total amount of $99,935.51 in fees and expenses will be paid by the Respondent to the
Applicant.

561

\VHEREFORE, the Secretary of Labor is ORDERED TO PAY Contractors Sand and
Gravel a total award of $99,935.51 within 30 days of the date of this decision. Upon receipt of
full payment, this proceeding is dismissed.

(L t;._;r· ~
Aug__~tti

Administrative Law Judge

Distribution:
C. Gregory Ruffennach, Esq., Ruffennach Law Offices, 450 East 3rd Avenue, Durango, CO
81301 (Certified Mail)
Jack Powasnik, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard,
Suite 400, ~lington, VA 22203 (Certified Mail)

/sh

562

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE ·
FALLS CHURCH, VIRGINIA 22041

April 4, 2000
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF ROY AL SARGENT,
Complainant
v.

DISCRIMINATION PROCEEDING

THE COTEAU PROPERTIES CO.,
Respondent

Freedom Mine
Mine ID 32-00595

Docket No. CENT 2000-96-D
DENY CD 99-03

ORDER DENYING MOTION TO DISMISS
PREHEARING ORDER
This case is before me on an amended complaint filed by the Secretary of Labor on behalf
of Royal Sargent, alleging that Respondent, The Coteau Properties Co, had discriminated against
him in violation of section l 05(c)(1) of the Federal Mine Safety and Health Act of 1977 (the
"Act"), 30 U.S.C. § 815(c)(l). Sargent alleged that, on August 3, 1998, he had been suspended
for five days because he brought safety issues to Respondent's attention. He also claims that
on August 10, 1998, he was subjected to an involuntary job transfer and restrictions on j ob
availability, and was placed on probationary status. Sargent filed his initial written complaint
of discrimination with the Mine Safety and Health Administration ("MSHA") on November 20,
1998, 49 days beyond the statutorily prescribed 60 day period. 1 On December 21, 1999, a
complaint alleging discrimination was filed with the Commission.
Respondent filed an Answer and a motion to dismiss the complaint asserting that Sargent
did not timely file his complaint with the Secretary.2 The Secretary opposed the motion ,
claiming that there were justifiable circumstances to excuse the late filing. On February 28,
2000, the undersigned Administrative Law Judge found that Complainant had failed to submit
evidence that could establish justifiable circumstances for the late filing and issued an Order to

30 U.S.C. § 815(c)(2).
2

Respondent also argued that the Secretary lacked authority to reopen her investigation
and file the eventual complaint. In response to the motion, the Secretary provided factual
information that undercut the premise of that argument. By failing to address the Secretary's
response, as directed in the Order to Show Cause, Respondent has abandoned this argument.
563

Show Cause Why the Complaint Should Not be Dismissed. Complainant filed a response to the
Order, submitting affidavits from himself, his brother and an MSHA official. Respondent
submitted a reply. For the reasons set forth below, I find that Complainant has submitted
competent evidence demonstrating the existence of genuine issues with respect to facts material
to whether there were justifiable circumstances for his late filing and deny Respondent's motion
to dismiss.

The Motion to Dismiss
The Order to Show Cause noted that Respondent's motion to dismiss would be treated as
a motion for summary decision pursuant to Commission Rule 2700.67. Section (b) of the Rule
provides that the motion ·can be granted only if the entire record shows:
(1) That there is no genuine issue as to any material fact; and
(2) That the moving party is entitled to summary decision as a matter of law.
Rule 2700.67(c) further provides that: "Supporting and opposing affidavits shall be made on
personal knowledge and shall show affirmatively that the affiant is competent to testify to the
matters stated."
The Order to Show Cause addressed the deficiencies in Complainant's opposition to the
motion, specifically, that the affidavit relied on was not based upon personal knowledge and did
not show that the affiant was competent to testify to the matters stated. As a result, it was
concluded that there was no reliable evidence that Complainant "misunderstood or was mislead
as to his rights or obligations under the Act." Order, at p. 5.
The affidavits submitted in response to the Show Cause Order, in contrast, present direct
evidence based upon personal knowledge that Complainant misunderstood his rights and
obligations under the Act and was affirmatively deterred by Respondent from exercising those
rights in a timely fashion. These facts, if ultimately established, would constitute justifiable
circumstances for the untimely filing of his discrimination complaint with MSHA.
Respondent continues to argue that Complainant was, or at least should have been, aware
of his rights and has submitted ~ompetent evidence that the rights of miners under the Act had
been included as part of new miner training at the time Complainant was hired in 1985 and that
notice of such rights was posted on a bulletin board in an area that Complainant frequented.
However, the facts relied upon by Respondent do not conclusively establish that Complainant
was fully aware of his rights under the Act. While Complainant has not directly refuted those
contentions, he denies any recollection of new miner training on the topic of rights under the Act
and, at least indirectly, the contents of the poster. There is no evidence that Complainant had
read the poster, which had been on the bulletin board for many years. In any event, the poster
does not clearly convey the concept that a discrimination complaint must be filed within 60 days
of the adverse action. The poster read, in pertinent part:

564

If you believe you have been punished for using your safety and health rights, you
or your representative should file a complaint with MSHA. The complaint
should be filed ill writing, within 60 days. (Emphasis supplied)
The use of the permissive term "should" is not likely to inform an average miner that
filing a complaint with MSHA within 60 days is mandatory and may be critical to his ability to
pursue such a claim. There is no warning of the potentially serious consequences of failing to
file a complaint within 60 days of an adverse action. The posted language also is unclear as to
when the 60 day period begins to run. There is no statement identifying the beginning of the time
period in the sentence that contains the "60 days" language. 3 Reference to the preceding sentence
would suggest that it runs from the time the miner forms a belief that he has been punished for
exercising his rights.
Complainant's denial of present recollection of training that he may have received when
he was hired in 1985 is plausible. His claims that he was not aware of the 60 day filing
requirement and was proceeding cautiously because of concerns about reprisals by Respondent
are also plausible. His affidavit, and the other affidavits submitted in response to the Show
Cause Order, establish genuine issues as to the precise extent of his knowledge and
understanding, on and after August 3, 1998, of the filing requirement and the reasonableness of
his actions based thereon.
·
Complainant further asserts in his affidavit that he was told by Respondent's area
manager that he could not talk about the adverse action with anyone or he could lose his job.
Respondent disputes this assertion. If Complainant's assertion is accurate, it would lend support
to his statements regarding fear of retaliation and how such concerns prompted him to proceed
cautiously in pursuit of his discrimination claim. It might also raise an estoppel issue with
respect to Respondent's assertion of the untimely filing defense. Genuine issues exist with
respect to such statements made by Respondent's agents and the reasonableness of
Complainanes in,terpretation of them.
As noted above, the affidavits submitted by Complainant in response to the Show Cause
Order present competent evidence creating genuine issues as to several facts material to the
justifiable circumstances determination. Accordingly, Respondent's motion to dismiss the
complaint is denied.

Compare that language with the corresponding statutory language: "Any miner * *
*who believes that he has been*** discriminated against*** may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging such discrimination. .... " 30 U.S.C.
§ 815(c)(2) (emphasis supplied).
3

565

Prehearing Order

In accordance with section 105(c) of the Federal Mine Safety and Health Act of 1977, the
"Act," 30 U.S.C. § 815(c) and 29 C.F.R. § 2700.1, et seq., this matter will be called for a hearing
on the merits at a time and place to be designated in a subsequent notice.
In preparation for the hearing, the parties are directed to: (a) confer on the possibility of
settlement and endeavor to stipulate to relevant matters not in dispute; (b) endeavor to stipulate
the issues of fact and 'law remaining for hearing; (c) discuss exhibits, and, at the request of a
party, produce exhibits for inspection and copying; (d) endeavor to stipulate to the admissibility
of exhibits, and specify the grounds for any objections to any exhibit the admissibility of which is
not stipulated to; and, ( e) discuss the testimony expected of each witness (unless privileged). The
parties are also invited to discuss proposals to expedite the submission of evidence or shorten the
proceedings, e.g., the submission of witnesses' direct testimony in writing.
The parties shall notify the undersigned Administrative Law Judge of the results of their
efforts on or before May 17, 2000. The communication may be in writing or by conference call.
The notification shall include each party's: best estimate of the hearing time required to present
it's case and the number of witnesses it expects to call; a hearing location preference; and, at
least two agreed hearing dates, preferably within the following 30-60 days. Complainant's
counsel shall assure that the notification is timely made.
Discovery requests and responses thereto, pursuant to Rule 2700.58, shall not be filed
with the Commission. Deposition transcripts shall not be filed, but shall be retained and
safeguarded by the party noting the deposition. Pertinent requests and responses shall be set
forth verbatim in any motion to compel or for other relief regarding discovery matters.

If the matter has not been settled, each party shall file with the undersigned
Administrative Law Judge on or before May 31, 2000, a written prehearing report setting
forth: (a) a statement of the party's case, identifying each contested issue; (b) any stipulations
entered into; (c) alist of witnesses expected to be called by that party and a synopsis of each
witness' expected testimony (unless privileged); (d) a list of exhibits4 ; (e) a statement of the
grounds of any objection to an adverse party's exhibits; and, (f) a memorandum oflaw on any
significant or novel legal issue expected to be raised in the proceeding.

4

Complainant's exhibits shall be prefixed with the letter "C" and Respondent's exhibits
shall be prefixed with the letter "R". Exhibits shall be numbered consecutively.
566

Failure to comply with any part of this prehearing order may result in sanctions against
the defaulting party.

~I

/

.,.~-e:;~~4.

M.ichael E. Zie · ski
Ad'Imn· ive Law Judge

Distribution:
Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)
James A. Lastowka, Esq., McDermott, Will & Emery, 600 l3 1h Street, N.W., Washington,
D.C. 20006-3096 (Certified Mail)
/mh

567

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577IFAX 303-844-5268

April5,2000
COX TRANSPORTATION CORP./COX
ROCK PRODUCTS, INC.,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 99-155-RM
Citation No. 79 11843; 2/5/99
Docket No. WEST 99-156-RM
Citation No. 7911745; 2/5/99

V.

Docket No. WEST 99-157-RM
Citation No. 7911846; 215199
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEST 99-158-RM
Citation No. 7911783; 2/8/99
Docket No. WEST 99-159-RM
Order No. 7911784; 2/8/99
Cox Rock Portable #3

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 99-369-M
A.C. No. 42-02201-05501 G3S

v.

Docket No. WEST 99-370-M
A.C. No. 42-02201-05502 G3S

COX TRANSPORTATION CORP./COX
ROCK PRODUCTS, INC.,
Respondent

Docket No. WEST 99-371-M
A.C. No. 42-02201-05503 G3S
Cox Rock Portable #3

ORDER DENYING COX TRANSPORT CORPORATION'S
MOTION TO DISMISS AND FOR SUMMARY DECISION
Cox Transport Corporation ("Cox Transport") filed a motion to dismiss and for summary
decision on the basis that the Department of Labor's Mine Safety and Health Administration
lacked jurisdiction over the area where an employee of Cox Transport was fatally injured. The
Secretary opposes the motion and asserts that MSHA had jurisdiction.

568

The driver of a bottom-dumping truck was fatally injured when his clothing became
entangled in the clamshell dump at the bottom of the truck. He was on his way to an aggregate
mine to receive his first load of material for the day when the accident occurred. He was found
under the trnck on an unpaved road outside the mine's gateposts. The road was not closed to the
public. The site of the accident was about 300 feet from the mine's scale house. The driver was
employed by Cox Transport and he was assigned to pick up material from the mine and deliver it
to a road construction s~te. This was his first trip of the day and he had not entered the active
areas of the mine.
Cox Transport maintains that there is no basis for MSHA jurisdiction in these cases. It
argues that:
[t]he truck was well outside the entrance to the mine, parked in a
public area where no mining activities occurred, and this was an
area distinct from any mining activity. In short, the area where the
truck was located at the time of the accident is not part of the
"parcel" ofland on which the pit, crusher, and scale house were
located.
(CT Surreply 2). Cox Transport's analysis fails to take into consideration the broad reach of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 802 and 803. The starting point for
an analysis of Mine Act jurisdiction is the definition of the term "coal or other mine," in section
3(h)(l). A coal or other mine is defined, in pertinent part, as "(A) an area ofland from which
minerals are extracted ... , (B) private ways and roads appurtenant to such area, and (C) lands, ...
structures, faci lities, equipment, machines, tools, or other property ... on the surface or
underground, used in, or to be used in ... the work of extracting minerals from their natural
deposits, ... or used in ... the milling of such minerals .... " 30 U.S.C. § 802(h)(l ). The Senate
Committee that drafted this definition stated its intention that "what is considered to be a mine
and to be regulated.under this Act be given the broadest possible interpretation, and ... that
doubts be resolved in favor of inclusion of a facility within the coverage of the Act." S. Rep. No.
181, 95 1h Cong., 1st Sess. 14 ·(1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95 1h Cong., 2"d Sess., Legislative History ofthe Federal Mine Safety and
Health Act of 1977 at 602 (1978); see also Donovan v. Carolina Stalite Co., 734 F.2d 1547 (D.
C. Cir. 1984).
Cox Transport argues that because the road where the accident occurred was open to the
public and the truck had not yet entered the mine that day, MSHA lacked j urisdiction. Cox
Transport notified Utah-OSHA not MSHA of the fatal accident.
Jurisdictional issues under the Mine Act are often factually complex. The Commission
and various federal circuit courts have wrestled with these issues. The circuit court decisions
cited by the parties base their holdings on the precise facts presented and these decisions are not

569

entirely consistent. A slight change in the facts may change the results in a jurisdictional case.
The Secretary takes what is often called a "nooks and crannies" approach when interpreting
OSHA jurisdiction. OSHA fills in the nooks and crannies that other safety statutes do not cover.
Whether MSHA has jurisdiction under the specific facts at issue here will be one of the key
issues in these cases.
I find that there are too many open factual issues for me to rule that MSHA did not have
jurisdiction over the ac;cident. For example, although it appears that the road was open to the
public, it is not clear whether the road was on land owned by the mine operator. Ownership may
be an important issue of fact. It is also not clear whether this road also leads to non-mining
related properties or whether it is primarily used to gain access to the mine. It appears from the
photographs submitted by the Secretary that the "gateposts" referred to by Cox Transport may be
nothing more that two posts set into the ground on either side of a road. Cox Transport puts great
significance on the fact that the accident occurred outside these gateposts, but is not clear how
these gateposts relate to the road in question and whether they have any real significance. Cox
Transport's argument that the area where the accident occurred was "not part of the 'parcel' of
land on which the pit, crusher, and scale house were located" is unclear. Mine Act jurisdiction
has never been analyzed by reviewing land, parcel by parcel, to determine which individual
parcels fit within the definition in section 3(h). A facility is considered as a whole when
determining whether it is a mine.
I find that Cox Transport has not established the two prerequisites to granting summary
decision set forth in Commission Rule 67(b): that there are no genuine issues of material fact
and that Cox Transport is entitled to summary decision as a matter oflaw. As stated above, there
are a number of genuine issues of material fact. In addition, even if I accept all of the facts
presented by Cox Transport, I cannot hold .that Cox Transport is entitled to summary decision as
a matter of law because the record is not complete. For the same reason, I cannot grant Cox
Transport a~udgment on the pleadings under Fed. R. Civ. P. 12(c).
In denying the motion, I do not hold that the Secretary has jurisdiction over the accident
site. I only determine that I need additional facts to resolve the jurisdictional issues presented in
these cases with the result that summary disposition is not appropriate. Accordingly, Cox
Transport's motion to dismiss and for summary decision is DENIED.

Cox Transport also separately challenges the validity of Citation No. 7911846, which
alleges that Cox Transport failed to notify MSHA of the accident. As stated above, Cox
Transport notified Utah-OSHA and it contends that such notification was all that was required.
Cox Transport maintains that MSHA did not claim jurisdiction until six days after the accident,
after Utah-OSHA released the accident scene. Cox Transport asks that the citation be vacated
because it was not trying to hide the accident from MSHA and Utah-OSHA had an obligation to
notify MSHA if it did not have jurisdiction.
Although Cox Transport characterizes this challenge as separate from its jurisdictional
570

challenge, it is really intimately tied to the jurisdictional challenge. If, after the hearing, I find
:J,at MSHA did not have jurisdiction, then this citation will oe vacated. If, on the other hand, I
fov\ that MSHA did have jurisdiction, whether the citation should be vacated will depend on
l;.1any factors that are not in the record at this time. The OSHA/MSHA Interagency agreement
does not necessarily resolve the issue. For example, in some states the state OSHA agency has
concurrent jurisdiction over mines and the OSHA/MSHA agreement may not apply to UtahOSHA in any event. Cox Transport has not established that it is entitled to summary decision
under Commission Rure 67(b) or a judgment on the pleadings under Fed. R. Civ. P. 12(c).

In denying the motion, I do not hold that the Citation No. 7911846 is valid. I only
li . ~cnnine that I need additional facts to resolve the issues presented with the result that summary
disposition is not appropriate. Accordingly, Cox Transport's motion to vacate Citation No.
'/911846 is DENIED. The hearing will commence at 9 a.m. on May 30, 2000, in Salt Lake City,
Utah, as previously scheduled.

Administrative Law Judge

Distribution:
Adele Abrams, Esq., Patton Boggs, 2550 M Street, NW, Washington, DC 20037- 1350
Matthew C. Bameck, Esq., Richards, Brandt, Miller & Nelson, P.O. Box 2465, Salt Lake City,
UT 84110-2465
Edward Falkowski, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716
RWM

571

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEYARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

April 6, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 99-196
A.C. No. 42-02113-03539
Willow Creek Mine

V.

PLATEAU MINING CORPORATION,
Respondent

CIVIL PENALTY PROCEEDINGS

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

JOHN A. PESARSICK, employed by
Plateau Mining Corp.,
Respondent

Docket No. WEST 99-422
A.C. No. 42-02113-03546 A

JOHN D. TRACKEMAS, employed by
Plateau Mining Corp.,
Respondent

Docket No. WEST 99-423
A.C. No. 42-02113-03547 A

KELLY BURNBAM, employed by
Plateau Mining Corp.,
Respondent

Docket No. WEST 99-446
A.C. No. 42-02113-03545 A

ORDER GRANTING THE SECRETARY OF LABOR'S
MOTION FOR PARTIAL SUMMARY DECISION
These proceedings involve one citation issued by the Secretary of Labor under section
104(d)(l) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C § 814(d)(l) alleging a
violation of30 C.F.R. § 75.363(b). 1 The parties entered into stipulations and asked that I
determine whether Plateau Mining Corporation ("Plateau") violated the safety standard based on

1

Docket No. WEST 99-196 also involved two section 104(a) citations, but by order dated
January 10, 2000, I approved the parties' proposed settlement of those citations.
572

the stipulated facts. The parties state that whether a violation occurred is basically a legal issue
because the facts surrounding the alleged violation are not disputed. I agree that the issue
presented by the parties can be resolved based on the stipulations, the pleadings, and the
arguments of the parties. For the reasons set forth below, I find that the Secretary established a
violation. This order does not resolve these cases because I do not make any findings or
conclusions with respect to the civil penalty criteria, the unwarrantable failure allegation, or the
allegation that the individual respondents knowingly authorized, ordered, or carried out the
violation.

I. CITATION, SAFETY STANDARD, AND STIPULATED FACTS
Citation No. 7625090, issued September 1, 1998, states, in pertinent part:
The On-Shift Mine Examiner for the D-1 Long Wall 001-0 MMU,
Willow Creek Mine, Kelly Burnham, Long Wall Foreman, on
8/2611998, during required On-Shift Examin[ations], did not list all
hazardous conditions incurred. A methane/Coal Dust, and/or
Hydrocarbon ignition occurred at approximately 19:30 hours on
the D-1 Long Wall 001-0 face. The ignition is a hazardous
condition. Hazardous condition[s], or combination of hazards
existed to cause an ignition. At the end of each shift hazardous
conditions shall include nature and location, and corrective action
taken. The ignition lasted approximately 45-60 seconds, and
extinguished by Shear's Fire Suppression system, and 10 pound
Fire Extinguisher. The mine operator did not immediately contact
MSHA ....
Section ·75.363 provides, in part, as follows:

Hazardous conditions; posting, correcting and recording.
(a) Any hazardous conditions found by the mine foreman or
equivalent mine official, assistant mine foreman or equivalent mine
official, or other certified persons designated by the operator for
the purposes of conducting examinations under this subpart D,
shall be posted with a conspicuous danger sign where anyone
entering the areas would pass. A hazardous condition shall be
corrected immediately or the area shall remain posted until the
hazardous condition is corrected....
(b) A record shall be made of any hazardous condition
found. This record shall be kept in a book maintained for this
purpose on the surface at the mine. The record shall be made by

573

the completion of the shift on which the hazardous condition is
found and shall include the nature and location of the hazardous
condition and the corrective action taken. This record shall not be
required for shifts when no hazardous conditions are found or for
hazardous conditions found during the preshift or weekly
examinations inasmuch as these examinations have separate
recordkeeping requirements.
Subsections (c) and (d) set out detailed record keeping requirements including who must
make the record and who must countersign the record. The parties entered into the following
stiP.ulations, in pertinent part:
2. The parties are submitting these stipulations with the intention
of filing cross motions for summary decision of whether a violation
existed with respect to Citation No. 7625090. ... If it is found that
a violation existed, the issues of the appropriate penalty for the
operator and whether Messrs. Pesarsick, Trackemas, and Burnham
committed knowing violations of the cited standard, would remain.
3. [T]he Secretary alleges that the operator failed to record in the
on-shift book an ignition which occurred at approximately 19:30
hours on the D-1 Longwall 001-0 fact on August 26, 1998.

* * * *
5. The ignition lasted approximately 45-60 seconds and was
extinguished by the longwall machine's fire suppression system
. and a 10-pound fire extinguisher operated by one of the operator's
employees.
6. Kelly Burnham, at all relevant times, was the longwall foreman
at the Willow Creek Mine and was responsible for the operation of
the longwall production unit. Mr. Burnham was the individual
who made the entry in the on-shift report for the longwall section
on the afternoon shift on August 26, 1998. Mr. Burnham did not
make an entry in the on-shift report concerning the ignition, nor did
anyone else.
7. The ignition occurred during the afternoon shift on August 26,
1998. That shift worked from about 2:00 p.m. until midnight.
Burnham was not in the vicinity of the ignition when it occurred.

574

8. Mr. Burnham was not present on the longwall face when the
ignition referenced in the citation occurred. He was in the bleeder
entries at the time. When he returned to the face, the longwall
crew reported to him that an ignition of some sort had occurred,
but Mr. Burnham did not observe the ignition.
9. Jack Trackemas was the mine manager at the Willow Creek
Mine.
10. Mr. Trackemas first learned of the ignition late in the evening
of August 26, 1998, but prior to the end of the afternoon shift,
through a telephone call from Mr. Pesarsick.
11. John Pesarsick, at all relevant times, was the shift supervisor at
the Willow Creek Mine.
12. Mr. Pesarsick was on the surface in the Conspec Room when
the longwall headgate shearer operator reported that an ignition had
occurred around the tailgate of the longwall.
13. Mr. Trackemas, Mr. Pesarsick, and Mr. Burnham are "certified
persons" as that term is used in 30 C.F.R. § 75.363(b). They agree
that any decision in these matters upon summary decision as to the
fact of violation with respect to Citation No. 7625090 would apply
to them in Docket Nos. WEST 99-422, 99-423, and 99-446. They
do not agree that, if a violation is found to have existed, that they
knowingly authorized, ordered, or carried out any violation found
. to have occurred.
14. In conclusion, the parties submit that the issue of whether a
violation occurred is a legal issue; specifically, whether "found" as
used in the cited standard (30 C.F.R. § 75.363(b)) encompasses
circumstances where a hazardous condition becomes known to a
certified person by a report or whether "found" is limited to
circumstances where the hazardous condition is personally
observed or discovered by the certified individual.

II. SUMMARY OF THE PARTIES' ARGUMENTS
The Secretary contends that three certified persons at the mine found a hazardous
condition that had not been reported in the preshift or weekly examination books and they failed
to report it in the required record book, hereinafter, the "on-shift book." The hazardous condition
was the ignition in the longwall that occurred at about 19:30 on August 26, 1998.

575

The Secretary maintains that the language of the safety standard makes clear that the
certified person does not have to personally observe the hazardous condition in order for the
requirements of the safety standard to apply. The Secretary argues that if a miner tells a certified
person about a hazardous condition at a mine, the certified person must record the hazard in the
on-shift book, if he agrees with the miner that the condition presented a hazard. She contends
that, in this case, all three certified persons became aware of the hazardous condition before the
end of the shift and that a violation occurred because the condition was never recorded in the onshift book. The Secretary notes that there is no indication in this case that Plateau failed to
record the condition because it did not consider the condition to be hazardous. Rather, the
operator did not record the hazardous condition because no certified person personally observed
the condition.
The Secretary also contends that the preamble to the regulation supports her interpretation
that the word "found" in the safety standard does not require personal observation by the certified
person. She argues that the interpretation urged by Plateau is directly contrary to the intent of the
standard which is to prevent injuries by requiring the posting and recording of hazardous
conditions to ensure that it is corrected.
Plateau maintains that the language of the standard only requires the reporting of
incidents that are "found" by the designated mine officials. That is, unless one of the certified
persons set forth in subsection (a) of the standard finds the hazardous condition, the condition is
not required to be recorded in the on-shift book. It argues that its interpretation is supported by
the posting requirement because the certified person must be at the site of the hazardous
condition to either post the hazard or to take steps to have the condition immediately corrected.
Plateau also points to the preamble to the regulation to .support its argument. Plateau contends
that the Secretary's interpretation of 75.363 must be rejected because it is at variance with the
plain language of the standard.

III. DISCUSSION WITH CONCLUSIONS OF LAW
The issue in this case revolves around the meaning of the word "found" in subsections (a)
and (b) of the safety standard. It appears that this is an issue of first impression. The regulation
states that any hazardous condition "found by the mine foreman or equivalent mine official,
assistant mine foreman or equivalent mine official, or other certified persons" must be posted and
a record of the condition and corrective action must be made in the on-shift book. For purposes
of this order, I will use the term "certified persons" when referring to this list of persons. The
standard does not say who must first discover the hazardous condition. In most cases, if a miner
first discovers a hazardous condition, he would likely report it to a certified person, who would
then go examine the condition. If, in that situation, the certified person determines that the
condition is hazardous, I believe that the standard requires that the condition be recorded. The
mere fact that someone other than a certified person first discovered the condition would be
irrelevant. Because of the nature of the hazardous condition in this case, a certified person did

576

not personally observe the condition. I believe that this fact should not defeat the purpose of the
standard.
I agree with Plateau that the word "found" as used in subsection (a) of the standard is
ambiguous, especially because it is followed by the titles of very specific individuals to whom
the term is to be applied. Thus, I do not agree with the Secretary that the regulation is clear on its
face. The word "found" is fraught with difficulty because it can be used in so many different
ways. The term "find" has an adjudicatory meaning, it can mean "to happen upon," or it can
mean to "learn" or "discover." The term is too ambiguous to have a clear meaning in the context
of the safety standard.

If the terms of a safety standard are ambiguous, the Commission must defer to the
Secretary's reasonable interpretation of the regulation, unless it is plainly erroneous or
inconsistent with the regulation. Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C.
Cir. 1994); Island Creek Coal Co., 20 FMSHRC 14, 18 (January 1998). The legislative history
of the Mine Act provides that "the Secretary's interpretations of the law and regulations shall be
given weight both by the Commission and the courts." S. Rep. No. 181, 95th Cong., !51 Sess. 49
(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2nd Sess., Legislative History ofthe Federal Mine Safety and Health Act of 1977 at 637
(1978). I conclude that the Secretary's interpretation is reasonable and is consistent with the
objectives of the Mine Act.
The fact that none of Plateau's certified persons observed the ignition because they were
not in the longwall face at the time does not mitigate the need to record the incident in the onshift book. They were informed of the ignition before the end of the shift and Mr. Burnham
made at least one entry in the on-shift book that day, but he did not record the ignition. The onshift book, along with the records for the pre-shift and weekly examinations, provides important
information to mine operators. This information can be used to improve the safety and health of
miners. These boo·ks can also used by MSHA to monitor conditions at a mine. Whether a hazard
is recorded in the on:.shift book should not depend upon the location of an operator's certified
persons at the time of the incident.
Plateau relies on the posting requirement in subsection (a) to support its argument. It
contends that if the certified person is not present when the hazardous condition is found he
cannot post the area to prevent entry or immediately correct the condition so the hazard no longer
exists. This argument is not well taken. As stated above, in most instances once the hazardous
condition is reported to the certified person, he can go to the area and take whatever remedial
measures are necessary. In the instant case, the issue as to whether the hazardous condition
required posting is not before me. In any event, a certified person could have traveled to the
longwall face and made that determination.
Each party relies on the regulatory history of the standard to support its position. When
the standard was first proposed, the first sentence of subsection (a) read, in pertinent part: "Any
577

hazardous conditions found by, or reported to, the mine forem.an ...." (59 Fed. Reg. 26396, May
19, 1994)(emphasis added). Plateau contends that the deletion of the highlighted language
evidences the Secretary's clear intent that if a hazardous condition is reported to a certified
person rather than observed by the certified person, it need not be recorded in the on-shift book.
I find that the preamble provides an explanation for this change. Several comments that
were filed with MSHA suggested that the "or reported to" language in the proposal could be
interpreted to mean that the certified person would be required to record and post the condition
even ifhe did not believe that a hazard was present. The preamble states:

Under the proposal, hazardous conditions reported to [certified
persons] would have required posting. Commenters suggested that
requiring [the posting of] hazardous conditions "reported to" these
individuals would eli~inate the judgment of the persons
responsible for making decisions about whether or not a hazardous
condition exists. One commenter suggested that the requirement,
as proposed, could undermine the integrity of the certified person.
(61 Fed. Reg. 9802, March 11, 1996). The proposal was revised to delete the "or reported to"
language based on these comments. The preamble goes on to state: "MSHA would expect that
when a hazardous condition is reported to these certified persons, that the measures necessary to
evaluate the situation and, if necessary, comply with the provisions of this section would be
taken." Id.
I conclude that the preamble supports the Secretary's interpretation of the standard. The
"as reported to" language was removed to make clear that it is the certified person who decides
whether a hazardous condition exists, not individual miners. I reject Plateau's argument that this
language was removed because MSHA "did not want to require the recording of hazardous
incidents that are 'reported to"' certified persons. (P. Motion 8). Plateau also relies upon the
language in the preamble that states that "¥SHA would expiect" certified pex;sons to evaluate a
condition reported to them so they can determine if the requirements of the standard "would be
taken." It maintains that the "would expect" language shows that MSHA merely entertained a
"hope" that mine operators would post and record hazardous conditions reported to a certified
person. Id. I hold that the us~ofthe word "expect" does not detract from the Secretary's
interpretation of the standard. The preamble makes clear that she requires conditions that are
reported to a certified person to be recorded and posted or corrected if the certified person
determines that a hazardous condition was present.

578

I find, based on the stipulations and pleadings, that there is no genuine issue as to any
material fact and that the Secretary is entitled to partial summary decision on the issue presented
to me. The issue presented is whether Plateau violated section 75 75.363(b) as alleged in
Citation No. 762090 and my finding in this regard applies to the individual respondents. 2

IV. ORDE R
Based on above, the Secretary's motion for partial summary decision is GRANTED and
Plateau's motion for summary decision with respect to Citation No. 762090 is DENIED. The
parties shall confer for the purpose of attempting to resolve the remaining issues. If a settlement
cannot be reached, the parties shall discuss proposals for resolving the remaining issues. In
either event, counsel for the Secretary shall initiate a conference call to di§cuss the cases on or
/
before April 21 , 2000.
,

I

Richard W. Manning
Administrative Law Judge

2

In its response to the Secretary's motion for partial summary decision, Plateau states:

Respondents did not stipulate that the ignition was specifically a "hazardous
condition" as contemplated by the standard. It occurred and was immediately
extinguished. A question exists as to whether an already corrected condition
constitutes a "hazardous condition" for the purpose of the standard.
(P. Response 3, n. 2). If it is Plateau's position that it did not violate the safety standard even if a
certified person found the cited ignition, as the term "found" is interpreted by Plateau in this case,
then the stipulations and cross-i:notions for summary decision serve no purpose. If Plateau believes
that the ignition did not create a hazardous condition, then whether a certified person was present
at the time of the ignition is irrelevant. Although Plateau did not specifically stipulate that the
ignition presented a hazardous condition, it did stipulate that the stipulations and cross-motions were
filed so that the judge could determine "whether a violation existed with respect to Citation No.
7625090." (Stip. 2). It further stipulated that "[i]f it is found that a violation existed, the issues of
the appropriate penalty for the operator and whether Messrs. Pesarsick, Trackemas, and Burnham
committed knowing violations of the cited standard, would remain." Id. Finally, the parties
stipulated that "the issue of whether a violation occurred is a legal issue" involving an interpretation
of the word "found." (Stip. 14). There is no indication that, ifI grant the Secretary's motion for
summary decision, Respondents could then challenge the citation in subsequent proceedings on the
basis that no hazardous condition existed. Such an interpretation is at odds with the terms of the
stipulations that I decide whether there was a violation based on the stipulated facts and crossmotions.
579

Distribution:

Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716

R. Henry Moore, Esq .• Buchanan Ingersoll, 301 Grant Street, 20th Floor, Pittsburgh, PA 152191410

RWM

580

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