MAY 1998

COMMISSION DECISIONS
05-11-98 Blue Circle, Inc.
05-14-98 Marvin E. Carmichael v. Jim Walter Resources

CENT 97-154-M
SE
93-39-D

Pg. 475
Pg. 479

KENT97-317-D

Pg.493

ADMINISTRATIVE LAW JUDGE DECISIONS
05-05-98 Sec. Labor on behalf of Michael Brown v.
Boogar Man Mining, Inc., et al.
05-13-98 Sec. Labor on behalf of Donald E. Zecca v.
Consolidation Coal Company
05-18-98 Anthony Saab v. Dumbarton Quarry Associates
05-20-98 · Northwest Aggregates
05-28-98 Sec. Labor on behalf of Jerry M. Caudill v.
Leeco, Inc.
05-29-98 Knock's B~ilding Supplies

WEVA 97-82-D
Pg. 497
WEST 97-286-DM Pg. 508
WEST97-242-M Pg. 518
KENT98-128-D
CENT98-l-M

Pg. 532
Pg. 535

WEST95-552

Pg.551

WEST98-64

Pg.556

ADMINISTRATIVE LAW JUPGE ORDERS
05-08-98 White Oak Mining & Construction, Inc.
05-08-98 Randy Powell employed by White Oak Mining
and Construction

i

MAY

1998

Review was granted in the following cases during the month of May:

Secretary of Labor, MSHA on behalf of William Kaczmarczyk v. Reading Anthracite
Company, Docket No. PENN 97-157-D. (Judge Weisberger, April 7, 1998)
Associated Electric Cooperative v. Secretary of Labor, MSHA, Docket No. CENT 97-164-R,
CENT 97-165-R. (Judge Feldman, Apri110, 1998)

Review was denied in the following case during the month of May:
Secretary of Labor, MSHA v. Peabody Coal Company, Docke~ No. LAKE 97-46.
(Judge Weisberger, April 14, 1998)

ii

COMMISSION DECISIONS AND ORDERS

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

May 11, 1998

CIVIL PENALTY PROCEEDINGS

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRA TIQN (MSHA)

Docket Nos: CENT 97-154-M
CENT 97-155-M
CENT 97-156-M
CENT 97-157-M
CENT 97-158-M

v.

BLUE CIRCLE, INC.

BEFORE: Jordan, Chairman: Marks. Riley, Verheggen, and Beatty, Commissioners
ORDER
BY THE COMMISSION:
This consolidated civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1994). On April16, 1998, the Secretary ofLabor
and Blue Circle. Inc. ("Blue Circle") filed a Joint Motion for Modification of Settlement
Agreement with the Commission' s Office of Administrative Law Judges. For the reasons
discussed below, we reopen this proceeding, treat the motion as a late-filed petition for
discretionary review, and remand the matter to the judge.
On January 15, 1998, the Secretary of Labor and Blue Circle filed with Administrative
Law Judge Gary Melick a Motion to Approve Disposition/Settlement. In the motion, the parties
requested approval of their agreement that Blue Circle pay $7035.00 and that the proceeding be
dismissed. Mot. at 2, 12. In addition, the parties requested in the motion that the judge sever
Citation No. 7855673 from the proceeding and consolidate it with Citation No. 4454558 in
Docket No. CENT 97-194-J\1, and incorporated by reference a Motion to Sever and Consolidate,
which was purportedly filed separately. !d. at 12. On February 10, 1998, Judge Melick issued a
Decision Approving Settlement, ordering Blue Circle to pay a penalty of $7035.00. The judge
did not address the parties· Motion to Sever and Consolidate.
On April 16, 1998, the Secretary and Blue Circle filed the present motion requesting that
the Commission modify the penalty amount payable to the Secretary. Counsel explain that on
March 18, 1998. counsel for the Secretary received a telephone call from the assessment office at
the Secretary of Labor's Mine Safety and Health Administration ("MSHA") stating that the
amount contained in the final settlement agreement was incorrect. Jt. Mot. at 2. Upon review.
Secretary's counsel discovered that she had failed to include the settlement amount for

475

CENT 97-158-M. in her calculations, resulting in a $1771.00 shortfall in the final settlement
amount. ld. Accordingly, the parties request that the Commission add the penalty amount for
CENT 97-158-M, so that the total penalty assessed- $8806.00 - would reflect the settlement
reached by the parties. Jd.
Our review of the record does not make certain that the penalty amount payable to the
Secretary according to the settlement agreement equals the sum of $8806.00. Also, the present
motion does not discus_s whether Citation No. 7855673 was severed as the parties had previously
requested. We have determined administratively that a separate Motion to Sever and Consolidate
was never filed in these proceedings or in Docket No. CENT 97-194-M. Moreover, it appears
that Citation No. 7855673 has not been severed and consolidated with Citation No. 4454558 in
Docket No. CENT 97-1 94-M. Furthermore, on February 11, 1998, Judge Melick issued an order
appro\'ing a settlement agreement in Docket No. CENT 97-194-M.
The judge's jurisdiction over this case terminated when his decision approving the
settlement was issued on February 10, 1998. 29 C.F.R. § 2700.69(b). Relief from ajudge's
~ecision may be sought by filing a petition for discretionary review within 30 days of its
issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). If the Commission does not direct
review within 40 days of a decision's issuance, it becomes a final decision of the Commission.
30 U.S.C. § 823(d)(l). The parties· motion was received by the Commission after the judge's
decision had become a final decision of the Commission.
Relief from a final Commission judgment or order is available to a party under Fed. R.
Civ. P. 60(b )( 1) in circumstances such as mistake, inadvertence, or excusable neglect. Fed. R.
Civ. P. 60(b)(1); 1 see also 29 C.F.R. § 2700.l(b) (Federal Rules of Civil Procedure apply "so far
as practicable" in the absence of applicable Commission rules); Lloyd Logging, Inc., 13
FMSHRC 781,782 (May 1991). We are unable to evaluate the merits ofthe parties' position on
the basis ofthe present record. In the interest of justice, we reopen the proceedings, treat the
parties' motion as a late-filed petition for discretionary review requesting relief from a final
Commission decision, and excuse its late filing. See Kelley Trucking Co., 8 FMSHRC 1867,
1868-69 (D~c. 1986); see also General Chem. C01p., 18 FMSHRC 704,705 (May 1996).

1

Rule 60(b) provides in pertinent part: "On motion and upon such terms as are just, the
court may relieve a party .. . from a final judgment. order, or proceeding for the following
reasons: ( 1) mistake, inadvertence, surprise, or excusable neglect . . .. ~·

476

We remand the matter to the judge, who shall dispose of the parties• motion and modify
his decision as appropriate. Cf General Chem. Corp., 18 FMSHRC 704, 705 (May 1996)
(amending judge' s dismissal order); Martin .Marietta Aggregates, 16 FMSHRC 189, 190 (Feb.
1994) (amending judge's decision approving settlement to reflect agreement reached by parties).
The judge may afford the parties an opportunity to further amend their motion.

•

ames C. Riley, Commissioner

Theodore F. Verheggen, Com

Robert H. Beatty, Jr. , Commissioner

477

Distribution
Mary K. Schopmerer, Esq.
Office of the Solicitor
U.S. Department of Labor
525 South Griffin St., Suite 501
Dallas, TX 75202
C. Gregory Ruffenach, Esq.
Ruffenach Law Offices ·
1675 Broadway, Suite 1800
Denver, CO 80202
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
Office ofthe Administrative Law Judges
2 Skyline, 10 1h Floor
5203 Leesburg Pike
Falls Church, VA 22041

478

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

May 14, 1998
MARVIN E. CARMICHAEL

v.

Docket No. SE 93-39-D

JIM WALTER RESOURCES, INC.

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

In this discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge T.
Todd Hodgdon concluded that Jim Walter Resources ("JWR") did not violate section 105(c) of
the Mine Act, 30 U.S.C. § 815(c), 1 when it gave employee Marvin E. Carmichael a 5-day

1

Section 105(c) of the Act provides, in pertinent part:

(1) No person shall discharge or in any manner
discriminate against or ·. . . otherwise interfere with the exercise of
the statutory rights of any miner .. . in any coal or other mine
subject to this [Act] because such miner ... has filed or made a
complaint under or related to this [Act], including a complaint
notifying the operator or the operator's agent ... of an alleged
danger or safety. or health violation in a coal or other mine, ... or
because of the exercise by such miner .. . of any statutory right
afforded by this [Act].
(2) 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....

479

suspension with intent to discharge on October 10, 1991. 19 FMSHRC 770, 771, 774 (Apr.
1997) (ALJ). Pursuant to section 113(d)(2)(B) of the Mine Act, ·3 0 U.S.C. § 823(d)(2)(B), the
Commission, on its own motion, directed review on the question whether the judge's conclusion
that Carmichael did not engage in activity protected under the Act is contrary to law. For the
reasons that follow, we vacate and remand for further analysis consistent with this decision.

I.
Factual and Procedural Back~ound
JWR operates the No. 7 mine in Brookwood, Alabama. JWR Br. at 2; Tr. 6. On October
10, 1991, roof bolter Marvin E. Carmichael and three fellow roof bolters were working the
evening shift in the No.6 section of the mine. 19 FMSHRC at 771. Prior to the beginning of the
shift, they were informed by one of the section foremen, Mark Buzbee, that in the time before
they had to begin roof bolting, and during the time throughout the shift when no bolting was
required, they were going to be "task trained" on operating a scoop? Id. While the parties
agreed at hearing that the training was never completed, they presented conflicting theories and
evidence as to why the training was not completed and why Carmichael was disciplined.

(3) ... 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, charging discrimination or interference in
violation of p~agraph (1 ).
2

Under 30 C.F.R. § 48.7, miners are required to be trained on mobile equipment before
operating such equipment. Section 48.7 provides, in pertinent part:
(a) Miners ·assigned to new work tasks as mobile
equipment operators ... shall not perform new work tasks in [this
category] until training prescribed in this paragraph and paragraph
(b) of this section has been completed. . . . The training program
shall include the following: (1) ... instruction in the health and
safety aspects and the safe operating procedures related to the
assigned tasks ... ; and (2) (i) [s]upervised practice during nonproduction ... [or] (ii) [s]upervised operation during production.
30 C.F.R. § 48.7 (italics in original).

480

JWR's shift mine foreman, Trent Thrasher, testified that he directed the section foremen,
Mark Buzbee and Kenny Looney, to task train the four roof bolters on the operation of a scoop.3
Id. at 772. Thrasher testified that there were to be two components to the training. First, Buzbee
was to cover what Thrasher termed "safety aspects," such as checking roof and rib conditions,
bucket position, location of fire extinguishers, operating the levers, and other "standard rules."
Tr. 36-37, 43-44. Following this portion of the training, Looney's role was to "put [the miner] on
the scoop and watch him go back and forth ... in a non-productive way." Tr. 37, 43.
Thrasher testified that, after the shift began, he received a call from Looney advising that
the miners had refused the safety training which both Buzbee and Looney had attempted to give.
Tr. 40, 44. Thrasher stated that he went into the mine and talked to the foremen for
approximately 30 minutes and they told him that they had barely gotten started with the "safety
aspects" of the training when "the guys told them that they weren't going to accept the training,
they knew how to do the job, they didn't want to be trained, they weren't going to run the
scoop[,] and they weren't going to sign forms." Tr. 42, 43-44. Thrasher also testified that the
foremen told him that the roof bolters had said " they weren't going to take another man'sjob.'14
Tr. 42. Consequently, according to Thrasher, Looney had not been able to begin the operational
phase oftraining. Tr. 43-44.
Thrasher further testified that, after he assured himself that the miners had been given
every opportunity to accept the training, including issuing them ultimatums of discipline, the
miners continued to refuse the task training. Tr. 45. Thrasher asserted that he then informed the
miners that they were being given a 5-day suspension with intent to discharge for
insubordination. Tr. 45, 49. Thrasher added that, as he escorted the miners out of the mine, one
of them asked for a safety committeeman. Tr. 45-46. Thrasher testified that he refused this
request because the suspension had already been given, and because there was no safety issue
since the miners had not yet been asked to run the scoop. Tr. 46-47. Thrasher stated that when
the group got to the bottom of the elevator, some Of the miners said that they would have signed
under protest the form stating that they had been task trained. Tr. 47. Thrasher testified that he

3

Neither Buzbee nor Looney testified at the hearing.

4

Scoops are usually operated by a "bidded" operator who has been assigned the job
through the bidding procedures specified in the labor contract between the company and the
United Mine Workers of America ("UMWA"). JWR Br. at 2. JWR asserts that it has the right
under the collective bargaining agreement to require UMWA employees to "work out of
classification" or perform tasks that do not fall within the duties normally associated with their
job title. ld. at 3. As such, it claims that it had the right to require the roof bolters to run the
scoop when they had finished their normal tasks. Id. At the pre-shift meeting on October 10,
1991, Looney told Thrasher that the union employees were unhappy about working out of
classification on the scoop job. ld. at 4. In fact, the UMWA had filed a grievance 3 days earlier
on behalf of the miners working on the No.6 section, "demanding [that] Management post the
scoop jobs on #6 section that are being performed by other classifications." Jd. ; Resp. Ex. D.

481

did not respond to this comment because the miners had already had three opportunities to sign
the form or take the training. Tr. 44-45, 47. Thrasher denied that either Buzbee or Looney at any
point that day asked the roof bolters to sign the training form. Tr. 69-70.
Carmichael's version of the events leading up to the discipline of the roof bolters differs
markedly from Thrasher's. In essence, Carmichael complained that JWR required the roof
bolters to sign the training form without first giving them hands-on training as required by
MSHA. In his Discrimination Report, Carmichael stated that he "was suspended with intent to
discharge for refusing to sign and [f]alsify a [task training] form." Complaint to MSHA.5 His
complaint further stated that he refused to sign because he believed that his inexperience made
operating the scoop dangerous to himself and the other miners in the section. Minutes from
Grievance Meeting at 1.6 Carmichael reiterated his falsification claim at the hearing, testifying
that he and the other roof bolters were pressured to sign under threat of termination, despite the
fact that the practical training required by section 48.7 was never mentioned, let alone
administered,7 and even though he had no prior experience operating a scoop. Tr. 9, 89.
Carmichael repeatedly testified at the hearing that the miners had not refused the oral
portion of the task training. Tr. 16, 23, 89. He asserted that the roof bolters "did participate in
[the oral task training] and [were] still asked to sign [the task training formJ or we were
terminated by Mr. Looney. There was nothing ever mentioned about Mr. Looney showing us the
procedures of running the machinery on the section." Tr. 89. Carmichael also stated that the
"task training [I was] given didn't make me an operator." Tr. 23. Finally, Carmichael submitted
that, after he was asked to falsify the training form, he made three requests for a safety
committeeman to be brought in to clarify what his rights were. Minutes from Grievance Meeting
at 2-3. He maintained that each request was either refused or disregarded. Jd at 2-4. Likewise,
Carmichael contended that his offer to sign the form under protest was refused by Thrasher. /d.
at 3.
The parties agree that after the discipline was announced, the miners met with mine
management, as provided for under the collective bargaining agreement, and the discharge was

5

Carmichael's Discrimination Report, on which the cited quotation appears, was
submitted as part of his section ~05(c) complaint to the Commission.
6

The minutes of the grievance meeting, referred to as a "24-48 meeting," were submitted
as part of Carmichael's section 105(c) complaint to the Commission. Thrasher described a 24-48
meeting as a meeting between the employee and the mine manager regarding disciplinary action
taken against the employee, which must take place after 24 hours of the discipline, but within 48
hours. Tr. 48.
7

At the hearing, when Carmichael was asked why he refused to work on the scoop, he
responded: "Because we weren't put on it to run it. I didn't know how to run it or operate it.
We were instructed verbally how to do it." Tr. 16.

482

converted to a 2-day suspension. 19 FMSHRC at 771. The miners agreed not to file a grievance
seeking back pay and returned to work on October 14. !d. On that day, the four miners were task
trained on the scoop without incident. Jd
On December 2, 1991, Carmichael filed a discrimination complaint with MSHA pursuant
to section 105(c)(2) of the Mine Act. ld at 770. On October 8, 1992, MSHA informed both
JWR and the complainant of its determination that Carmichael was not discriminated against. ld.
On October 23, 1992, C~ichael brought this proceeding under section 105(c)(3) of the Act.8
ld. The matter proceeded to hearing before Judge Hodgdon on October 16, 1996. /d. at 771.
In dismissing Carmichael's section 105(c) claim, the judge characterized Carmichael's
position at trial as follows: "Carmichael asserts that he refused to be trained to operate the scoop
for safety reasons and that his suspension was, therefore, a violation of section 105(c) of the
Act." ld. The judge further stated that "Carmichael alleges that he refused to be trained on the
scoop because he was 'afraid of it."' /d. at 772 (citing Tr. 9). He concluded that JWR did not
violate section 105(c) by suspending Carmichael, because Carmichael failed to establish that his
refusal to accept the task training was activity protected by the Act. ld. at 774. The judge also
found that neither Carmichael nor any of the other miners advanced a basis, reasonable or
otherwise, as to how the task training involved a hazard sufficient to justify a work refusal. ld.

II.
Disposition
JWR contends that the judge correctly concluded that Carmichael's refusal to accept task
training on the scoop was not protected activity under the Mine Act. JWR Br. at 8. JWR asserts
that Carmichael failed to establish either that he entertained a good faith, reasonable belief that
being task trained on the scoop involved a risk to his safety' or that he communicated a safety
concern to either .Suzbee or Thrasher. ld. at 8, 10. JWR argues that, even if the Commission
were to find that C~ichael engaged in protected activity, the judge's decision nonetheless
should be affirmed because the sole basis for the suspension was Carmichael's insubordinate
refusal to accept the task training. Id. at 12-13. In his pro se brief, Carmichael disagrees with the
judge's decision, and asserts that his rights under the Act were violated when JWR suspended
him with intent to discharge. Carmichael Br. at 1, 2, 4. Additionally, he claims that the basis for
his discrimination claim was JWR's insistence that he operate the scoop, a machine on which he
had not been sufficiently trained. /d. at 2.

8

Carmichael began suffering from post-traumatic stress disorder soon after he was
suspended, thereby rendering him medically unable to participate in depositions or a hearing for
nearly 4 years. See id. at 770-71; Stay Order dated June 1, 1993. The stay was lifted on
September 18, 1996.

483

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
right protected under the Act. See Secretary ofLabor on behalfofPasula v. Consolidation Coal
Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev 'don other grounds sub nom. Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on behalfofRobinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). After reviewing the pleadings
and record, we conclude that the judge erred in characterizing Carmichael's position as a claim
that his refusal to accept the task training was a protected act. Nowhere in the record does
Carmichael appear to make such a claim. In fact, his original complaint to MSHA states that he
was suspended with intent to discharge for refusing to falsify a task training form. Carmichael's
complaint further indicates that the roof bolters' grievance following the suspension involved an
allegation that JWR forced them to sign training forms before being properly trained.
Carmichael's statements regarding the basis for his discrimination claim show that the activity he
claims to be protected is his refusal to falsify a training form, not, as the judge found, a refusal to
accept task training.9
In support of his determination that Carmichael's claim was that he refused training on
the scoop for safety reasons, the judge stated: "Carmichael alleges that he refused to be trained
on the scoop because he was 'afraid of it.'" 19 FMSHRC at 772 (emphasis added). The judge
cited the following testimony by Carmichael as the basis of this finding:
We were told that we were going to have to run this piece
of equipment and that we were to be test [sic] trained by Mark
Buzbee, and I told them that I had never run this piece of
equipment.
I wasn't familiar with it. I was actually afraid of that piece
of equipment, to operate it. Besides that, we were told we had to
sign the task training paper stating that you had been task trained
·on that.

ld. (citing Tr. 9). While Carmichael's testimony at the hearing was not a model of clarity, this
passage does not support the judge's conclusion that Carmichael refused to be trained. The
9

Our dissenting colleague concedes that the judge ignored Carmichael's complaint,
asserting erroneously that this was proper because the complaint was "never admitted into
evidence" and therefore amounted to "unsubstantiated allegations." Slip op. at II n.I. The
dissent misses the point. Whatever its value as evidence, the complaint to the Commission,
much like a complaint in a court proceeding, is a basic pleading that serves to frame the issues to
be tried. See Commission Procedural Rule 42, 29 C.F.R. § 2700.42. We previously have looked
to the complaint for this purpose even when the complaint was not formally entered into
evidence. See Secreta1y of Labor on behalfofDixon v. Pontiki Coal Corp., 19 FMSHRC I 009,
1OIS-16 (June 1997) (analyzing complaint to determine scope of issues and proper parties before
Commission).

484

question to which Carmichael was responding was, "Can you tell the court what occurred to
cause you to not work on this machinery." Tr. 9 (emphasis added). The question did not
reference a refusal to be trained. In Carmichael' s version of events, JWR gave the roof bolters
only verbal training, and did not offer them the operational training required by section 48.7. Tr.
89-90. Carmichael also testified that the roof bolters were told that "any spare time that we had
we would be put on this piece of machinery to do whatever was necessary." Tr. 8, 16-17.
Thrasher agreed that, following training, Carmichael could be asked to perform production work
with the scoop. Tr. 63. In light of this testimony, we conclude that the imminent possibility of
being directed to perform productive work on: the scoop, as opposed to the prospect of receiving
hands-on training, was what Carmichael was referring to when he testified to his unfamiliarity
with and fear of operating the scoop. 19 FMSHRC at 772.
The judge also stated that Carmichael claimed he "refused to work on the scoop
'[b]ecause I didn't know how to operate it. The machine was not operating right. It was broke."'
!d. (citing Tr. 15). Again, in light of Carmichael' s overall testimony, we find that this is a
reference to Carmichael' s trepidation towards the prospect of being told, in the judge's words, to
''work on the scoop," rather than his alleged refusal to be trained. !d. (emphasis added). The
judge's reliance on these passages to show that Carmichael was asserting a right to refuse to be
trained is misplaced.
Furthermore, the judge failed to address Carmichael's testimony that, subsequent to
accepting the oral portion of the training, he was terminated after refusing to falsify a training
form. As mentioned .above, the relevant regulation requires supervised practice or operation of
mobile equipment as part of the training. However, on several occasions during the hearing,
Carmichael stated or implied that he and the other roof bolters had only received the oral part of
the task training given by foreman Buzbee on October 10 when asked to sign a form stating that
they had received the full training. 10 Tr. 9, 29-30, 89-90. For instance, when asked whether he
was given a tt:aining form to sign before training was completed, Carmichael responded: "We
did participate in the training with Mr. Buzbee . .. . We did participate in that and was [sic] still
asked to sign that or we were terminated by Mr. Looney."11 Tr. 89. Also, the judge reprinted
from the transcript, but declined to address, Carmichael' s testimony that "we were told we had to
sign the task training paper .. . ." 19 FMSHRC at 772. As Thrasher recognized at the hearing,
asking Carmichael to sign a form stating that he had been fully trained, even though he only
received oral training, would be .improper. Tr. 68-69. The judge did not mention these
statements of Carmichael, or resolve the conflict between Carmichael's version of events and
Thrasher's.

10

We note that counsel for JWR did not cross-examine Carmichael on his explicit
assertion that he participated in Buzbee's oral task training session.
11

It was Looney who was to administer the practical training as required by section 48.7
(Tr. 60-61 ); as the operator concedes, Buzbee had never operated a scoop and may have been
unqualified to conduct practical training on it. Tr. 10, 64.

485

In-addition; although the judge quoted Thrasher's testimony that a safety committeeman
was requested and that he denied the request, the judge failed to discuss this testimony. See 19
FMSHRC at 773; see also Tr. 9, 30. Such evidence should have been analyzed in the judge's
decision.
The substantial evidence standard of review requires that a fact fmder weigh all probative
record evidence and that a reviewing body examine the fact finder's rationale in arriving at his
decision. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951). Commission
Procedural Rule 69(a) mandates that a Commission judge's decision "include all findings of fact
and conclusions of law, :md the reasons or bases for them, on all the material issues of fact, law
or discretion presented by the record." 29 C.F.R. § 2700.69(a). A judge must analyze and weigh
all probative record evidence, make appropriate findings, and explain the reasons for his
decision. Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994); Sunny Ridge
Mining Co., 19 FMSHRC 254, 257 (Feb. 1997). The judge must analyze the evidence in the
context of the theories advanced by the parties. Contrary to the assertion of our dissenting
colleague, we are not attempting to "resuscitate Carmichael's claim of falsification" (slip op. at
13); rather, consistent with the foregoing principles, we merely direct the judge to consider the
evidence adduced in support of Carmichael's claim that he was discharged for refusing to falsify
a training form. 12
Here, the judge erred by misapprehending the nature of the complainant's claim and
neglecting to make credibility determinations and consider all relevant evidence. Accordingly,
we vacate the judge's decision and remand with instructions to eva.Iuate Carmichael's claim that
he was suspended after accepting the oral task training and subsequently refusing to falsify a
training form. 13 Further, we instruct the judge to address all record evidence relevant to

12

The dissent attempts to justify the judge's failure to analyze Carmichael's case on the
theory that the-judge made "implicit" credibility determinations. Slip op. at 11-12. However,
because the judge utterly fail~d to address Carmichael 's claim, it is impossible to discern if the
judge made any credibility determinations, implicit or otherwise, that are pertinent to that claim.
Indeed, absent the judge's recognition of the claim at issue, the dissent's theory that the judge
made implicit credibility determinations is only speculation.
13

Commissioner Beatty agrees with the decision of the Commission majority to vacate
and remand the judge's decision based on his failure to decide the case on the issue presented by
Carmichael in the complaint. Despite this error by the judge, which mandates a remand,
Commissioner Beatty is also troubled about the manner in which this discrimination case
developed. His reading of the trial transcript and supporting documentation convinces him that
Carmichael was actually engaged in a contractual dispute with the operator over the assignment
of additional work duties. In fact, a grievance was filed just 3 days prior to the incident which
lead to Carmichael's filing of a section 105(c) complaint. The timing of the grievance, and the
tone of the transcript testimony involving the contractual dispute, strongly suggest to
Commissioner Beatty that this contractual disagreement may have been transformed into a safety

486

Carmichael's claim, with appropriate credibility determinations, explaining the reasons for his
decision. 14 If the judge finds that JWR discriminated against Carmichael, then he shall award
appropriate back pay and grant other appropriate relief under section 105(c)(3).

dispute, thereby providing Carmichael with an additional forum in which to redress his
displeasure over additional work assignments. It has been previously recognized, however,
"[t]he Commission and its judges have neither the statutory charter nor the specialized expertise
to sit as a super grievance or arbitration board meting out industrial equity." Haro v. Magma
Copper Co., 4 FMSHRC 1935, 1937 (Nov. 1982) (quoting Secretary ofLabor on behalfof
Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (Nov. 1981), rev'd on other grounds, 709 F.2d
86 (D.C. Cir. 1983)); see also Local Union 5869, District 17, UMWA v. Youngstown Mines
Corp., 1 FMSHRC 990, 995 (Aug. 1979) ("Other forums are more appropriate than the
Commission for resolving issues . .. closely related to collective bargaining and unionmanagement relations.").
Commissioner Beatty does not believe that section 105(c) of the Mine Act was
promulgated by Congress to provide a vehicle for workers to litigate disputes with their
employers which are not firmly grounded in the protection of their safety or the safety of coworkers. In future section lOS(c) cases that appear to involve mixed motives underlying the
filing of a discrimination complaint, he will be inclined to closely scrutinize the complainant's
position, particularly in cases that involve less serious errors by the judge.
14

Whether the judge finds Carmichael's version of events credible will dictate the
analytical framework under which the merits of his discrimination claim should be evaluated.
The judge analyzed Carmichael's claim under the Commission's work refusal doctrine. 19
FMSHRC at 774. See generally Pasula, 2 FMSHRC at 2789-96; Robinette, 3 FMSHRC at 80712. This is not an appropriate analytical framework if Carmichael's version of events is credited;
the proper framework would be that governing retaliation for engaging in protected activity for
his refusal to falsify a training form. In other words. Carmichael's refusal to falsify a training
form is not a .. work refusal" for purposes of evaluating his discrimination complaint.

487

III.
Conclusion
For the foregoing reasons, we vacate the judge' s conclusion that Carmichael did not
engage in activity protected under the Act and remand this matter for further analysis.

488

Commissioner Verheggen, dissenting:
My colleagues find that "the judge erred by misapprehending the nature of the
complainanfs claim.', Slip op. at 8. Finding no such misapprehension, I respectfully dissent.
As my colleagues note, the testimony of the two principal witnesses in this case,
Carmichael and Thrasher, "differs markedly.,' Slip op. at 4. In fact, their testimony differs to
such an extent that the only way the judge could possibly have decided this case would be to have
credited the testimony of either Thrasher or Carmichael. Thrasher testified that Carmichael was
suspended for insubordination upon his refusal to accept training to operate a scoop.
Carmichael, on the other hand, offered a variety of explanations for his discrimination
claim. He argued that the scoop on which he was to be trained was not operating properly (Tr.
15, 89); that Buzbee was not qualified to train him on this equipment, although Carmichael only
learned of this after Buzbee was deposed (Tr. 10); that he was refused a safety committeeman
when requested (Tr. 9, 11); that the task training be did receive was inadequate (Tr. 23); and that
he was asked to falsify a training form (Complaint to MSHA). 1 Were the judge to have credited
Carmichael's testimony-on any of these points, or lent credence to the unsubstantiated claims
made in Carmichael's complaint, any of these might have served as a basis for the discrimination
claim. If, on the other hand, were the judge to have credited Thrasher's testimony, the only
conclusion he could have reached was that Carmichael refused to accept training, a refusal that is
not protected activity under the Mine Act. Indeed, I find that this is precisely what he did in this
case: the record compels the conclusion that the judge implicitly credited Thrasher in fmding the
discrimination claim groundless. See Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC 1511,
1516 (Sept. 1997) (recognizing implicit credibility finding of judge); Sunny Ridge Mining Co.,
19 FMSHRC 254, 261, 265, 267 (Feb. 1997) (same).
It is well settled that the Commission may not overturn a judge's credibility
determinations except under exceptional circumstances. In re: Contests ofRespirable Dust
Sample Alteration Citations, 17 FMSHRC 1819, 1881 n.80 (Nov. 1995), appeal docketed, No.
95-1619 (D.C. Cir. Dec. 28, 1995); see also Brock v. Roadway Express, Inc., 481 U.S. 252, 266
(1987) ("Final assessments of the credibility of supporting witnesses are appropriately reserved
for the administrative law judge, before whom an opportunity for complete cross-examination of
opposing witnesses is provided.,); Metric Constructors, Inc., 6 FMSHRC 226,232 (Feb. 1984)

1

My colleagues note that Carmichael's testimony at the hearing was not a "model of
clarity., Slip op. at 6. While I agree that this is true, my colleagues further confuse matters by
relying primarily on Carmichael's complaint to MSHA and so-called "minutes" from a grievance
meeting in support of their assertion that falsification formed part of the basis for Carmichael's
claim. See id. at 4 & n.6. These "minutes, are actually handwritten notes, apparently taken by
Carmichael himself, that were attached to his complaint. These notes were never admitted into
evidence at the hearing, and thus, were properly ignored by the judge as unsubstantiated
allegations.

489

(when judge's finding rests on credibility determination, Comp1ission will not substitute its
judgment for that of judge absent clear indication of error), a.ff'd, 766 F.2d 469 (11th Cir. 1985).
Here, I find no circumstances, extraordinary or otherwise, that would justify overturning the
judge's implicit credibility determination in favor of Thrasher, and on this ground alone would
affirm his decision.
But I also find that substantial evidence supports the judge's conclusion that JWR did not
discriminate against Carmichael. In addition to Thrasher's implicitly credited testimony (see slip
op. at 3-4), there is the uncontroverted fact that the UMWA had filed a grievance just 3 days
before the incident at issue here protesting JWR's efforts to have employees - such as
Carmichael - work outside of their job classifications to operate the scoop. Tr. 78-80; R. Ex. D.
This concurrent contractual dispute is compelling corroborative evidence of Thrasher's testimony
that the roof bolters involved refused training because "they weren't going to take another man's
job." Tr. 42. As my colleague Commissioner Beatty notes, "[t)he timing of the grievance, and
the tone of the transcript testimony ... strongly suggest ... that this contractual disagreement
may have been transformed into a safety dispute, thereby providing Carmichael with an
additional forum in which to redress his displeasure over additional work assignments." Slip op.
at 8-9 n.l3.
The majority decision states that "Carmichael's statements regarding the basis for his
discrimination claim show that the activity he claims to be protected is his refusal to falsify a
training form." Slip op. at 6. The decision concludes with a remand order directing the judge " to
evaluate Carmichael's claim that he was suspended after accepting the oral task training and
subsequently refusing to falsify a training form." !d. at 8.
I am unable to reconcile this decision with Commission precedent. Carmichael carried
the burden of establishing a prima facie case of discrimination. Secretary of Labor on behalfof
Pasula v. Cqnsolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev 'don other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary of Labor
on beha(fof Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981 ). His
burden was to support the allegations made in his complaint by presenting evidence sufficient to
support a conclusion that he engaged in protected activity- refusing to falsify a training form
-and that his 2-day suspension was motivated in any part by any such alleged refusal. !d. But
having made allegations in his .complaint that he refused to falsify a training form, Carmichael
failed to substantiate this claim at trial. Neither he nor his counsel introduced any evidence in
support of such a claim. The hearing transcript contains no testimony or any argument by
counsel, nor any exhibits tending to show, that ·carmichael was asked to falsify a training form or
that he refused to do so. In fact, neither the word "falsify" nor any derivation of the word appears

490

in the transcript? Th~ only evidence adduced at trial in this vein is testimony on Carmichael's
request to sign a training form "under protest," a request JWR refused. Tr. 9, 47-48, 89-90.
The majority's decision is merely an attempt to resuscitate Carmichael's claim of
falsification by treating his allegations as if they were evidence, which, by definition, is "[a]ny
species of proof, or probative matter, legally presented at the trial ofan issue, by the act of the
parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc.,
for the purpose of inducing belief in the minds of the court ... as to their contention." Black's
Law Dictionary at 555 (6th ed. 1990) (emphasis added). If the judge "utterly failed" to address
the falsification claim, as the majority decision suggests (slip op. at 8 n.l2), it is only because
Carmichael utterly failed to do anything to substantiate the claim at trial. To require the judge to
revisit the issue is an exercise in futility - and to fault him for not addressing the falsification
claim is at odds with Commission precedent, which, after all, requires judges only to "weigh all
probative record evidence." Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June
1994) (emphasis added).
I cannot accept the majority's approach for the further reason that, using their approach,
the judge's decision might just as easily be vacated and remanded on the grounds that the judge
failed to consider, for example, Carmichael's testimony that the scoop on which he was to be
tested was unsafe, or another of his various explanations for his claim. But that there might be
evidence in the record tending to support alternative theories that could better serve as a basis for
Carmichael's claim cannot serve as grounds for remanding this case. Under the substantial
evidence test, the Commission may not "substitute a competing view of the facts for the view
[an] ALJ reasonably reached." Donovan ex rei. Chacon v. Phelps Dodge Corp., 709 F.2d 86, 92
(D.C. Cir. 1983); see also Wellmore Coal Corp. v. FMSHRC, No. 97-1280, 1997 WL 794132 at
*3 n.13 (4th Cir. Dec. 30, 1997). Because substantial evidence supports the judge's conclusion, I
would affirm his decision.

Theodore F. Verheggen, Commis

2

I also fmd it significant that JWR's post-hearing submission makes no mention of a
falsification claim. Given the gravity of such a claim, it is difficult to imagine that JWR would
not have responded had the issue properly been presented to the judge.

491

Distribution
Marvin E. Carmichael
101 Flint Hill Lane, S.W.
Bessemer, AL 35022
Arnold W. Umbach, II, Esq.
Bradley, Arant, Rose & ·wrute
P.O. Box 830709
Birmingham, AL 35283
Administrative Law Judge T. To~d Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

492

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAY 5
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
MICHAEL BROWN,
Complainant

1998
DISCRIMINATION PROCEEDING
Docket No. KENT 97-317-D
MSHA Case No. BARB CD 97-11
MSHA Case No. BARB CD 97-12
Mine No.1
Mine ID 15-02755

V.

BOOGAR MAN MINING, INC.,
DEMA COAL COMPANY, INC.,
A & J FUELS, INC., BARRY MOORE,
and FREDDIE HUNTER,
Respondents
DECISION
Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination under section 105(c) of the
Federal Mine Safety and Health Act of 1977,30 U.S.C. § 815(c). The complaint alleges that the
Complainant, Michael Brown, was discharged by Respondent Boogar Man Mining, Inc. for
complaining about being required to work under unsupported roof and that when he returned for
his final paycheck, a month later, he was "threatened with bodily harm, threatened with a knife,
and was intimidated and harassed by Barry Moore and Freddie Hunter [principals ofBoogar
Man] for filing" a discrimination complaint. 1 For the reasons set forth below, I affirm the
Default Decision issued against Respondents Boogar Man Mining, Inc., Barry Moore and
Freddie Hunter and I approve the :;ettlement reached between the Complainant and Respondents
Dema Coal Company, Inc. and A & J Fuels, Inc.

Procedural Backwound
On December 1, 1997, an Order to Show Cause was issued to the Respondents in this
case, ordering them to show cause why a default decision should not be entered against them for
failure to respond to any of the pleadings filed by the Complainant or orders issued in the case.

1

Dema Coal Company, Inc., leased Mine No.1 to Boogar Man Mining, Inc., and then to
A & J Fuels, Inc.

493

Respondents Dema Coal Company, Inc. and A & J Fuels In~., responded to the order;
Respondents Boogar Man Mining, Inc., Barry Moore and Freddie Hunter did not. Consequently,
on January 16, 1998, a Default Decision was issued against Respondents Boogar Man, Moore
and Hunter finding them jointly and severally liable for any and all damages and remedial action
ordered at the conclusion of the case and individually liable for the civil penalties assessed
against them by the Secretary.
Dema Coal and A & J were permitted to file an answer to the complaint and to respond to
the charges of discrimination.. A he.aring was set for May 5, 1998.

Settlement Agreement
Respondents Dema Coal and A & J and the Secretary on behalf of the Complainant and
on her own behalf, by counsel, have filed a motion to approve a settlement agreement. The
agreement provides that the Complainant waives his request for permanent reinstatement; that
Derna Coal and A & J will pay him back wages of$1,500.00, which represents the total of all
back wages owed him by Dema Coal and A & J; and, that the civil penalty assessed against
Dema Coal will be reduced from $2,500.00 to $500.00, to be paid in two equal installments.
Having considered the representations and documentation submitted, I conclude that the
proffered settlement is appropriate under the criteria set forth in section 11 O(i) of the Act,
30 U.S.C. § 820(i) and is in the public interest.
Accordingly, the motion for approval of settlement is GRANTED. The provisions of the
agreement will be carried out in the order at the end of this decision.

Enforcement Q,(Default Decision
The Secretary has filed a motion to enforce the default decision against Respondents
Boogar Man•. Barry Moore and Freddie Hunter. The motion requests the following:
1. A finding that Michael Brown was unlawfully discriminated
against, threatened, intimidated and harassed by Respondents in
violation of section 105(c) of the Act;
2. An order directing Respondents, their officers, agents, servants,
employees, and "all other persons in active concert of participation
with them," to cease and desist their discriminatory activities
directed toward Michael Brown;
3. An order that all references to his discriminatory discharge be
completely expunged from the employment record of Michael
Brown.
4. An order directing Respondents to pay damages in the amount
of$7,938.60, which is the amount equal to the wages which

494

Michael Brown lost as a result of the discrimination which
occurred, including interest calculated using the short-term federal
underpayment rate, all medical and hospital expenses, and any and
all other damages suffered and incurred by the miner as a result of
and from the date of his discriminatory discharge; and
5. An order assessing civil penalties against Boogar Man Mining
in the amount of$10,000.00, Barry Moore in the amount of
$2,000.00 and Fredd!e Hunter in the amount of $3,000.00, for their
violations of section 105(c) of the Act.
Based on the January 16, 1998, Default Decision, the motion ofthe Secretary is GRANTED.
ORDER
I find that Respondents Boogar Man Mining, Inc., Barry Moore and Freddie Hunter
discriminated against, threatened, intimidated and harassed Complainant Michael Brown in
violation of section 105(c) ofthe Act. Accordingly, it is ORDERED that they, as well as their
officers, agents servants and employees, shall cease and desist their discriminatory activities
directed against Michael Brown; that they shall expunge from the employment record of
Michael Brown all references to his discriminatory discharge; and that they shall, jointly and
severally, pay damages to Michael Brown in the amount of$7,938.60.
Respondent Boogar Man Mining, Inc. , is ORDERED TO PAY a penalty in the amount
of$10,000.00 within 30 days of the date of this decision. Respondent Barry Moore is
ORDERED TO PAY a penalty of $2,000.00 within 30 days of the date of this decision.
Respondent Freddie Hunter is ORDERED TO PAY a penalty of $3,000.00 within 30 days of
the date of this decision.
On receipt of payment of the civil penalties by Respondents Boogar Man Mining, Inc.,
Barry Moore and Freddie Hunter and compliance with the requirements ordered above, the
proceeding against them will be DISMISSED.
In accordance with the settlement agreement, Respondents Dema Coal Company, Inc.,
and A & J Fuels, Inc., are ORDERED TO PAY back wages to the Complainant in the amount
of$1,500.00. Respondent Dema Coal Company, Inc., is ORDERED TO PAY a penalty of
$500.00 as follows: $250.00 within 30 days of the date of this order and $250.00 within 60 days
of the date of this decision. On payment of back wages and receipt of payment of the penalty,
the proceeding against them will be DISMISSED.
The hearing scheduled for May 5, 1998, is CANCELED.

~J./1~
T. Todd

Hc:;z:r,.

Administrative Law Judge

495

Distribution:
Mary Beth Bemui, Esq. , Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201 , Nashville, TN 37215 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Bard & Jones, P.S.C., 841 Corporate Drive, Suite 101 ,
Lexington, KY 40503 (Certified Mail)
'

Mr. Freddie Hunter, Agent for Service, Boogar Man Mining, Inc., Route 194, Cow Creek,
Box 300, Allen, KY 41601 (Certified and Regular Mail)
Mr. Barry Moore, Box 1323, Martin, KY 41649 (Certified and Regular Mail)
Mr. Michael Brown, P.O. box 483, McDowell, KY 41647 (Certified Mail)

/fb

496

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

MAY 1 3 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
DONALD E. ZECCO,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEV A 97-82-D
MSHA Case No. MORG CD 96-03

v.
Mine ID No. 46-01318
Robinson Run No. 95 Mine

CONSOLIDATION COAL COMPANY,
Respondent

DECISION
Appearances:

Gretchen M. McMullen, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Arlington, Virginia, for the Complainant;
Elizabeth S. Chamberlin, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Melick

This case is before me upon the complaint by the Secretary of Labor , on behalf of
Donald Zecco, under Section 105(c)(2) of the Federal Mine Safety and Health of Act of 1977,
30 U.S.C. § 801 et seg., the "Act." The Secretary alleges that the Consolidation Coal Company
(Consol) violated Section 105(c)(l) of the Act, when it transferred Mr. Zecco, a continuous
miner operator, from a production section to a construction project. 1

1

Section 105(c)(1) of the Act, provides as follows:

No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant for employment in any coal or other mine
subject to this Act because such miner, representative of miners or applicant for employment has
filed or made a complaint under or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or other mine, or ~use 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

497

The Secretary maintains that Consol transferred Zecco "in retaliation for making
repeated safety complaints about conditions and for running in a safe and cautious manner during
adverse conditions on the 6D Section." (Complainant's Brief p.2)2. The Secmary seeks a
finding that Consol discriminated against Zecco and petitions for a civil penalty of$8.000.00.3
The significant evidence in this case is largely uncontradicted. It is the inferences to be drawn
fiom that evidence concerning which the parties disagree.
Donald Zecco bad worked for Consol at the Robinson Run No. 95 Mine for 23 years and
bad been classified as continuous miner operator for 15 years. In October 1995, Zecco was
assigned to the 6D Section as a continuous miner operator on the midnight shift. There were
adverse mining conditions in the 6D Section faced by all three shifts. There was sulfur in the
coal seam, high levels of methane gas, water and bad roof. The sulfur caused sparks to fly off
the barrel of the continuous mining machine and caused damage to its bits. At times, these
sparks caused a ring of fire at the bead of the miner. The methane level, particularly in the No. 3
entry, was purportedly so high that the 1% warning light on Zecco's continuous miner would
light every time Zecco started a cut. By law, Zecco was then required to de-energize the miner
and check the methane level until the level returned below 1%.

a

Zecco testified that the combination of sparks flying from the sulfur, float coal dust from
mining activity, and methane, caused a serious hazard of an ignition or explosion. In order to
correct the conditions and prevent an explosion or ignition, Zecco and his crew took extra safety
measures. Zecco testified that be stopped to rock dust every-20 feet, rather than every 40 feet as
required by law; be kept the continuous miner washed to suppress the float coal d~t; and be
checked for methane with a band held monitor every 10 minutes, rather than every 20 minutes as
required by law. Zecco maintains that be also checked the ventilation tubing more often and
sometimes bung extra ventilation curtain to improve the air in the face area.
Zecc~ testified that these additional safety precautions, and the maintenance eaused by

sulfur damage to.the bits, caused delays in mining the 6D Section. The monthly production

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.
2

The implication in the Complaint that Mr. Zecco also suffered retaliation under a "work
refusal" theory is deemed to have been withdrawn and abandoned since that theory is neither
advanced nor supported by relevant law in the Complainant's post hearing brief.
3

A monetary award was previously made to Mr. Zecco and he was assigned to a
production section as a continuous miner operator as a result of his grievance filed under the
National Bituminous Coal Wage Agreement of 1993, the "Contract." Accordingly, no issues
concerning damages or reinstatement remain for disposition.

498

records for October 1995 show that the three shifts on the 6D Section produced 46.3 average feet
per shift, while the 70 Section produced 72.4 and the 8D Section produced 69.4 average feet per
shift. However, Zecco's crew produced 5-10 feet per shift of coal less than the day and afternoon
shifts on the 6D Section. In October 1995, the midnight shift on the 6D Section produced 3.4
average feet per shift less than the day shift, and 10 average feet per shift less than the afternoon
shift. (Resp.'s Exh. 4). In November and December 1995, the difference in production between
the midnight and day and afternoon shifts on the 6D Section was also approximately 5 to 10 feet.
(Resp.'s Exh. 4). Complainant maintains that the day and afternoon shifts, which faced similar
conditions on the 6D Section , were able to maintain higher production levels, because lower
barometer pressure at night caused more methane to be liberated on their shift.
In early October 1995, Zecco checked the 6D Section auxiliary fan and felt that it was not
pulling enough air to the section. The fan had a 40 horsepower motor whereas the other section
fans had 50 horsepower motors. Zecco claims that he reported the lower power fan to
Maintenance Foreman Mike Preolitti, that Preolitti checked the fan and agreed that it had a 40
horsepower motor. Zecco claims that Preolitti also told him that all the fans in the mine were
supposed to have been changed to 50 horsepower motors. Preolitti said he would see about
obtaining a 50 horsepower fan motor for the 6D Section. Preolitti did not recall talking to Zecco
directly about the 6D Section fan. He learned about the 40 horsepower motor from Consol
Safety Inspector Phil Morgan and had Morgan check the ventilation. The ventilation was within
legal parameters. Preolitti thought that all the fans had already by then been converted to 50
horsepower motors. According to Preolitti, as soon as a 50 horsepower fan became available it
was installed.
Zecco maintains that in mid-October he also spoke several times to Consol Safety
Inspector Phil Morgan about the inadequacies of the 6D Section fan. Morgan checked the
section ventilation with a pitot tube and found it to be within legal limits. He nevertheless told
Zecco he would make arrangements to obtain a 50 horsepower fan. Meanwhile he had Zecco•s
crew clean the' dirf: from the fan shroud to improve the existing ventilation.
In mid-November, Zecco spoke to Assistant Mine Superintendent Rodney Poland about
the 6D Section fan and about the methane and sulfur problems. Zecco maintains that he also told
Poland that he was required to shut down the miner at 1% methane, and that he would not run the
miner with the warning light actiyated. Zecco purportedly also told Poland that in order to
improve production on the 6D Section Poland needed to work with the crew and get the methane
under control. Zecco also claims that he told Poland that the section ventilation fan was directly
related to the methane problem and that a bigger fan would provide more air to the face. Poland
recalled that Zecco reported the size of the 6D fan but he could not recall other details of the
conversation. He relied on Zecco's recollection.
Zecco also claims that in early November he spoke to Mine Superintendent Walter
Scheller about the 6D ventilation fan and the methane and sulfur conditions on the section.
Zecco maintains that, in total, he complained to management 10 to 12 times about the section fan

499

and the methane and sulfur conditions. It is undisputed that the fan motor was in fact changed to
SO horsepower in January 1996, after Zecco had been transferred off the section and that 70
horsepower fans were later installed on all the sections.
Zecco testified that in mid-November, Section Foreman Titus held a meeting with the 6D
crew concerning production. Titus told the crew that Poland had said that production was down
and needed improvement. Titus said he had asked Poland to observe the conditions on the 6D
Section for himself but he declined and said he did not want any excuses, he only wanted
production to improve. Zecco felt they were trying to get the miners "to do things that we
shouldn't be doing." At the same time Zecco acknowledged that he understood they were not
being asked to mine unsafely. Titus testified, moreover, that he understood that Poland's
criticism related to the fact that the other shifts faced the same conditions as their shift but were
producing more coal.
On December 15, 1995, Zecco saw the realignment sheet posted at the mine indicating
he would be transferred from the Oakdale Portal to the Robinson Run Portal to work as a
continuous miner operator on a construction crew. Zecco also noted that John Belcastro was
transferred from the Robinson Run Portal to a miner operator position at the Oakdale Portal.
Zecco testified that he was the most senior continuous miner operator on the midnight shift, and
that Belcastro was the least senior. Zecco protested his assignment to Assistant Superintendent
Poland on the morning of December 16. On December 18, when Zecco learned that he was still
assigned to the Robinson Run Portal, he filed a grievance claiming he was improperly realigned
and had a seniority right to remain on an active production section. Zecco testified that the seal
construction project at the Robinson Run Portal was a special project, and that the past practice at
the mine was to "ask the oldest and force the youngest."
Zecco claimed that, according to the Contract, priority for jobs is based on seniority and
that the most s.enior continuous miner operator has a right to work in that position. At the time
of the realignment, the three most senior continuous miner operators, Zecco, Garcia, and O'Dell,
were working at the-Oakdale Portal on active mining sections, and the least senior continuous
miner operator, Belcastro, was working on the D-haulway project at the Robinson Run Portal.
Zecco testified that even though his assigned job classification at the seal construction
project remained as continuous miner operator, when he filed his grievance he did not believe he
would be operating a miner at the Robinson Run Portal. Zecco never in fact did run a continuous
miner from the time he was transferred on December 16, until he was transferred back to the
Oakdale Portal on February 20, 1996. Rather he performed unclassified, general insider laborer
duties, including digging ditches, building cribs, walking seals in low top, pumping water from
seals, dragging posts in low top and setting posts, carrying old belt structure, shoveling belt
spillage, and shoveling snow out of the mine entrance. According to Zecco, this work was more
physically demanding and the conditions were worse than in his prior position. He had to walk
long distances bent over due to the low clearances and occasionally had to wear hip waders
because of water conditions.

500

From February 20, 1996, when he returned to the Oakdale Portal, until October 1996,
when the grievance was finally settled, Zecco was assigned various duties on the production
sections. He substituted for other continuous miner operators, built cribs, helped with a longwall
move and operated other mining equipment. Belcastro continued to operate the continuous
miner on a permanent section during this period. In October 1996, when Zecco was reassigned
to a production section, Belcastro was assigned as floating continuous miner operator.
Zecco testified that at his ftrst grievance meeting, Poland told him that he was transferred
because of Iris low prod~ction. According to Zecco, at the next grievance meeting, Human
Resource Director Mark Schiffbauer stated that he did not realize Zecco was not running a
continuous miner at the Robinson Run Portal. Schiffbauer purportedly said that if Zecco was not
rurming the miner a good part of the time, Zecco should have remained on the miner at the
Oa¥.dale Portal because he was most senior. Schiffbauer told Zecco he would speak to Poland.
After several more meetings, the grievance was set for arbitration. In October 1996, the parties
reached a settlement in which Zecco was assigned to a continuous miner on the 1OD Section and
was paid for 75 hours of overtime lost as a result of the transfer.
Respondent, Consol, maintains in essence that its transfer of Zecco to the seal
construction project was strictly a business decision unrelated in any way to his request for a 50
horsepower fan for the 6D Section or to his other alleged protected activity. According to
Consol, the transfer was the result of major restructuring at the mine and evaluation of the
relative abilities of the miner operators. There was in fact a work force reduction and
realigrunent at the mine on December 16, 1995. The mine work force was reduced by 75 miners
and one-third of the remaining 375 miners were realigned into different job classifications, shifts
and portal assignments. Miners were portaled at two locations and many miners who previously
reported to the Robinson Run Portal were moved to the Oakdale Portal, while other miners were
moved from the Oakdale Portal to the Robinson Run portal.
The work force reduction and realigrunent resulted from the completion of the DHaulway in September 1995. This permitted the use of conveyor belt haulage for coal
transportation throughout the mine and eliminated the need for rail haulage. The D-Haulway
connected with the existing mine conveyor belt system at the 140 Block in September 1995, and
the mine-wide conveyor belt system was operational October 1, 1995. For the next two and onehalf months, the D-Haulway continuous miner production crews and the mainline motormen,
who had been used previously to haul coal by rail, completed the D-Haulway work and started
rehabilitation work required to seal part of the mine - - the seal construction project. The work
on the seal project during this period involved the use of the D-Haulway continuous miner to cut
overcasts, split coal blocks for airways and perform related rehabilitation work. According to
Poland, following the work force reduction and realignment, upper mine management, excluding
section foremen, pooled their collective knowledge to put together the most productive crews
from the remaining available employees. Poland noted that these assignments were not based on
exact science, but involved judgment and some trial and error.

501

By December 16, 1995, Consol management had decided to operate one longwall, and
three continuous miner sections. It had also been decided, based on input from Shift Foreman
Harrison, to assign a four-member crew consisting of a continuous miner operator, a shuttle car
operator, a roof bolter and mechanic to work on the construction project on each shift. As a
result , four continuous miner operator positions were maintained following the work force
reduction and realignment on December 16.
At this time, the mine was also preparing to set up the next longwall on the 6D Section. It

was necessary therefore to maximize mining progress on the 6D Section to have the next
longwall panel ready to ·go on time. Accordingly, the best continuous miner crews were placed
in the 60 Section. On the midnight shift, one particular crew, with continuous miner operator
Rick Garcia, excelled and were assigned to the 6D Section. At the same time, Poland noted,
based in part on a comparison of the nature and extent of prodnction delays reported by each
shift, that the midnight shift production on the 6-D Section had been significantly lower than the
other two shifts. Poland believed this was the result of poor management by the section foreman
and not merely because of the mining conditions.
Consol also notes that the mine was operating two types of continuous mining machines
in December 1995, and this affected the assignments to the remaining miner operator positions
on the midnight shift. There were 12CM miners located on the 60 Section and the seal project.
A 14CM satellite miner was used on the 7D and 80 Sections. The satellite miner was
significantly larger and more difficult to operate. In addition, transfer of these machines between
sections was difficult and time consuming.
O' Dell, Zecco and Belcastro were the three remaining continuous miner operators.
O'Dell was retained in the 7D section because he was considered the best available satellite
miner operator and had been operating the 7D satellite miner satisfactorily prior to December 16.
Poland wanted to improve productivity by having a better crew mix for the Oakdale Portal
sections. He considered the general consensus of mine management that Zecco had struggled
with the satellite miner and Belcastro had performed well on the satellite miner. Indeed, even
Zecco's own witness, Albert Titus, recognized that Zecco was not as good at running the satellite
miner as the other three operators. The decision was made therefore, to assign Belcastro to the
remaining satellite miner in the 8D Section and to observe his performance.
The initial assignment of miners to the Robinson Run Portal midnight shift was made by
Assistant Superintendent Poland because Midnight Shift Foreman Evans was on vacation when
the initial posting required by the Contract was finalized. When Evans returned from vacation on
December 17, 1995, he and Poland finalized the midnight shift assignments. Evans decided not
to change any of the assignments.
On his first day at work on the seal project, Zecco filed a grievance pursuant under
Article 23 (c) of the Contract objecting to his portal change. He alleged that "[m]anagement is in
violation of the National Bituminous Coal Wage Agreement by improperly realigning me to the
Robinson Run Portal." Consol disagreed with Zecco that his seniority entitled him to chose his

502

portal maintaining that Arbitration Decision 78-19 supported its position.4 By the third step of
the grievance process, Zecco also claimed that he was not regularly operating a continuous
miner. When it was learned that Zecco was not working the same amount of overtime he had
previously, arrangements were made to make overtime work available to him and he was
compensated for the overtime lost to that point.

On January 11 , 1996, Zecco filed the instant discrimination complaint as~g that he
was removed from the 6D Section because he made complaints about methane to Mr. Poland.

Poland had received reports from management and hourly employees alike regarding the
methane and sulfur being encountered on the section. He recalled one occasion when Zecco told
him that the 6D ventilation fan was undersized with a 40 horsepower. Poland told Zecco the fan
would be checked. Safety Inspector Morgan reported back that the fan did have a 40 horsepower
motor, but that it was providing adequate ventilation for mining. Morgan also reported his
findings to Zecco and told Zecco that a larger horsepower motor was in the works. Poland heard
nothing further from Zecco. Poland knew that all of the section ventilation fans were being
upgraded to 50 horsepower, so he informed Maintenance Foreman Preolitti that the 6D fan had a
40 horsepower motor. Preolitti thought they had all been upgraded. Preolitti said he would get
another motor.
The crews on the seal project worked from the Robinson Run Portal until late February
1996. The continuous miner that had been used in this area before the realignment was available
for use but required some routine maintenance. However, the work being performed at the time
did not require a continuous miner. The seal project crews were then told to report to the
Oakdale Portal to move the longwall to 6D Section. This move took three to four weeks.
Consol maintains that in April, its management realized that the seal project would not be
operating as originally planned and another realignment was proposed to eliminate skilled job
classifications. Zecco ' s grievance was ultimately resolved when the two satellite miners were
replaced with 12CM miners in November 1996, and Zecco was assigned to one of the new
machines.
Evaluation of the Evidence
This Commission has long held that a miner seeking to establish a prima facie case of
discrimination under Section·105(c) of the Act bears the burden of persuasion that he engaged in
protected activity and that the adverse action complained of was motivated in any part by that
activity. Secretary on behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786,2797-2800
(1980), rev' d on grounds, sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.

4

Administrative notice is taken of Arbitration Decision 78-19 a copy of which is
contained in the Exhibit file. The issue of whether management has the right under the Contract
to reassign miners within their classification to other locations in the mine regardless of seniority
was not resolved by Zecco's grievance nor is it found necessary to resolve in this proceeding.

50 3

1981); andSecret_aryon behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803,817-18
(198 1). The operator may rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by the protected activity. If an
operator cannot rebut the prima facie case in this manner, it may nevertheless defend
affirmatively by proving that it would have taken the adverse action in any event on the basis of
the miner's unprotected activity alone. Pasula, supra; Robinette, supra. See also Eastern
Assoc., Coal Corp. v. FMSHRC, 813 F.2d 639,642 (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test). Cf. NLRB v. Transportation Management Corp., 462 U.S.
393, 397-413 (1983) (approving nearly identical test under National Labor Relations Act).
There is no dispute in this case that Zecco had reported to Consol management his
concerns about the methane and sulfur and about the 40-horsepower fan providing ventilation to
the 6D Section in October and November 1995. Although it is undisputed that the ventilation
met legal requirements and there is no evidence that any violative conditions existed, because of
frequent methane and sulphur problems the 60 crews were facing during that period, it is clear
that ventilation in the face area was critical to maintain a safe environment. Accordingly,
Zecco's complaints in this regard constituted protected activity.
The second element of a prima facie case of discrimination is a showing that the adverse
action was motivated in any part by the protected activity. As this Commission noted in Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983), "[d]irect evidence 9fmotivation is rarely
encountered; more typically the only available evidence is indirect." The Commission
considered in that case the following circumstantial indicia of discriminatory intent: knowledge
of protected activity; hostility towards protected activity; coincidence oftime between the
protected activity and the adverse action; and disparate treatment. In examining these indicia the
Commission noted that the operator's knowledge of the miner's protected activity is "probably
the single most important aspect of the circumstantial case."
In this regard, it is undisputed that Zecco had requested, during the period October
through November 1995, that the 40-horsepower ventilating fan on the 6D Section be replaced
by a 50-horsepower fan. According to the unchallenged testimony of Zecco, these requests were
made to maintenance foreman Preolitti, to Consol safety inspector, Phil Morgan and to Rodney
Poland among others. There is no disagreement that Zecco also complained to management, and
specifically to Poland, about the sulfur and methane on the section and that he affirmed to Poland
his practice not to operate the continuous miner when the warning light indicated that he should
not operate it. Consol management therefore had knowledge of Zecco's protected activity.
Since Zecco was thereafter transferred in mid-December from a job on a production crew to the
seal construction project, there was also a close relationship in time between his protected
activity and his claim of adverse action.
I nevertheless do not find that Complainant has sustained his burden of proving that his
transfer to the seal construction project was motivated in any part by his protected activity. First,

504

his complaints were not of such a nature as would be expected to engender disapproval let alone
hostility and retaliation. Zecco's complaints, while relating to .safety, were also clearly consistent
with improving mine productivity. The better the ventilation of the 60 Section the less downtime the section would suffer from high levels of methane. It is undisputed, moreover, that
Consol management had already planned to replace all of its 40 horsepower fans with SO
horsepower fans. It appears that only the 60 fan had not yet been replaced and, when
management was apprised of this by Zecco and his crew, they were apparently smptised. In
addition, efforts were immediately made to replace that fan, consistent with pre-existing plans,
without any evidence of hostility. Indeed, it may be repeated, no hostility would be expected
since improved ventilation with a 50 horsepower fan would reasonably be expected to improve
mine productivity and fan replacements had already been planned by Consol management.
In addition, management was well aware of the sulfur and methane problems on the 60
Section causing a recognized slowdown of production. It is also noted that neither Zecco's
foremen Albert Titus, who he called as his own witness, nor Zecco himself, ever testified that
anyone ever suggested they mine unsafely or with the warning light activated. Indeed, Titus
explained that Poland thought the midnight crew could bring its productivity up to the level of
the other shifts on the 60 Section by such things as staggering lunch breaks and not permitting
the crew to stay in the dinner hole too long. Zecco himself also made clear at hearings that he
was not asked to mine unsafely. His witness, mechanic Michael Smith, confirms this and noted
that efforts by Zecco' s foreman to increase productivity took such forms as prompting the crew
to get to the dinner hole earlier.
Second, the 40 horsepower fan was in fact replaced by a 50 horsepower fan in January
1997, after Zecco had already been transferred. If, indeed, management had transferred Zecco
out of the 60 Section because of hostility toward his requests for a 50 horsepower fan (because,
following the logic ofZecco's argument, Consol was hostile toward him because it did not really
want to replace the fan), it is unlikely that Consol would have gone ahead and replaced that fan
after he had already been transferred. It is also significant that Consol management, on its own
volition, subsequeqtly replaced all the 50 horsepower fans with 70 horsepower fans. It cannot
reasonably be inferred within this framework that Consol would have been hostile to Zecco's
earlier request for only a 50 horsepower fan. Again, it should be emphasized that improved
ventilation provided by these more powerful fans is directly related to improved productivity.
Third, it is undisputed in this case that a number of other miners on all three shifts also
complained about the fan in the 60 Section around the same time Zecco made his complaints and
there have been neither claims, nor evidence, of retaliation against those persons. Sam Marra, a
shuttle car operator on the 60 Section during relevant times, who was also a member of the
UMWA safety committee, testified that he, as well as other safety committeemen, including Bob
Nizely, also "complained to the point where they got tired of us complaining about the fan."
Marra also personally complained to Preolitti, to Poland, and to Federal mine inspectors. lnd~ed,
Federal inspectors thereafter came to the mine as a result of Marra's complaints and performed
an inspection sometime in early November 1995. There is no evidence in this case that Zecco
complained to Federal inspectors or complained any more vociferously or frequently than Marra,

505

Nizely or other members of any of the three shifts, yet there is .no evidence of any adverse action
against Marra, Nizely or any other miners.
Complainant also cites in his brief, as evidence of hostility toward his protected activity,
allegations that Foreman Harrison said to him after he filed his grievance over having been
denied alleged seniority rights, that he was "lucky to be working." Complainant has not,
however, shown that Harrison was then even aware ofZecco's protected activity. It is also noted
that there had just recently been a layoff at this mine of75 miners.
Zecco claims that he also suffered disparate treatment because, as the most senior
continuous miner operator at the mine, he was entitled under the Contract to remain as a
continuous miner operator at the seals construction project to which he was reassigned. 5 The
credible evidence suggests however, that Consol did in fact intend, at the time of Zecco 's
transfer, to have him operate a continuous miner on the seals construction project. I find the
testimony of midnight shift foreman Tom Harrison particularly credible on this issue. According
to Harrison, he was asked at meetings before the realignment to designate the type of work crews
he would need on the seal construction project. Harrison specifically requested a n'4J11ber of skill
positions including three continuous miner operators, one for each shift. Harrison anticipated
needing continuous miner operators to cut overcasts and rock and had two continuous miners at
the project needing only permissibility exams to operate. Indeed, if Consol did not intend to use
three higher paid skilled crews, including continuous miners operators, on the seals construction
project it would no doubt have selected lower paid general inside laborers to do the work. I
cannot therefore accept Complainant's argument that he was singled out to work on this project
in retaliation and to deprive him of the opportunity to operate a continuous miner. The fact that
conditions and needs subsequently changed, resulting in neither Zecco nor the other miner
operators operating continuous miners on the project does not support Zecco's claim. Moreover,
according to ~e credible testimony of Harrison, it is permissible under the Contract, and not
unusual, to have miners working out of classification for periods of 30 days.
In addition, even assuming, arguendo, that Zecco was selected in spite of his seniority to
work on the seals construction project, no inference of an improper motive can be drawn because
Consol had a rational, objective, non-protected business reason for Zecco's transfer out of
production, i.e., his crew's lowest productivity of the three shifts on the 6-D Section as well as
his reported difficulties operating the satellite miner.
·

5

It appears that the settlement ofZecco's grievance was based not necessarily on the: fact
of his transfer to the seal project alone but on the fact that it turned out that he was not
performing in his classification as a continuous miner operator. Consol continues to maintain
that it has the right under the Contract to select where its miners will work, regardless of
seniority.

506

Even assuming, arguendo, that Zecco's transfer was motivated in part by his protected
activity, I find that Consol would nevertheless have successfully defended affmnatively by
proving that it woUld have transferred Zecco in any event, based on his unprotected activity
(lower productivity and inadequacy in operating the satellite miner) alone. In this regard, data
for October and November, for the 6D Section midnight shift crew, do in fact show lower
productivity (Respondent's Exhibits No.3 & 4). While Complainant maintains that lower
productivity on the midnight shift may have been the result of lower barometric pressure there is
no evidence that the actual barometric pressures were lower nor of the actual correlation between
such pressure and methane emissions on the 6D Section. Poland and Titus agreed moreover, that
the lower productivity ofZecco's crew was significant and cost them a lot of money. Consol
could reasonably have relied upon the perceived inadequacies of Zecco as a non-protected
business justification for his transfer to the seal construction project.
Under all the circumstances, I do not find that Complainant has sustained his burden of
proving that his transfer was in violation of Section 105(c) of the Act.

ORDER
Discrimination Complaint Docket No. WEVA 97-82-D, is

\reby

DISMISSE~.

•

lick

~trative

\ ,
Law \udge

Distribution:
Gretchen M. McMullen, Esq., Office of the Solicitor, U.S. Dept. of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
\mea

507

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEYARD #280
DENVER, CO 80204-3582
393-844-3577/FAX 303-844-5268

May 18, 1998

ANTHONY SAAB,

DISCRIMINATION PROCEEDING
Complainant
Docket No. WEST 97-286-DM

V.

Dumbarton Quarry
DUMBARTON QUARRY ASSOCIATES,
Respondent

Mine I.D. 04-02380

DECISION
Appearances:

Before:

Paul H. Melbostad, Esq. , Goldstein, Gellman, Melbostad, Gibson &
Harris, San Francisco, California, for Complainant;
Robert D. Peterson, Esq., Rocklin, California, for Respondent.
Judge Manning

This case is before me on a complaint of discrimination brought by Anthony Saab against
Dumbarton Quarry Associates under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). The complaint alleges that Dumbarton Quarry
Associates ("Dumbarton") terminated Mr. Saab from his employment in violation of section
lOS(c). A hearing in this case was held in Oakland, California. For the reasons set forth below,
the complaint of discrimination is dismissed.

I. SUMMARY OF THE EVIDENCE
A.

Anthony Saab

Dumbarton operates a gravel pit that makes aggregate and asphalt in Fremont, California.
Anthony Saab started working at the Dumbarton Quarry on June 20, 1995. He was hired from
Teamsters Local291 to drive a haul pack and a water truck. Members of the Teamsters union
drive haul packs and water trucks at the quarry. Members of the Operating Engineers union
operate all other equipment, including the loaders. A haul pack is a large off-road dump truck
that is used to transport material from the pit to the crusher. A loader operator dumps blasted
rock at the pit into the haul pack and the haul-pack operator drives the harvested rock up to the
crusher. The operators of water trucks drive along the roadways at the quarry spraying water to
suppress dust.

508

Mr. Saab testified that he made a number of safety complaints while he was employed at
the quarry. He stated that he made his first complaint in the summer of 1995. (Tr. 10). 1 He
complained that a loader operator was "playing around" by slamming his haul pack with the
bucket of the loader. .ld.
On or about October 22, 1996, Mr. Saab sent a letter to Clay Buckley, the production
operations manager at the quarry, complaining about the attitude of one of the loader operators,
Steve Hamblin. (Tr. 14; Ex. C-1). Mr. Saab stated that Mr. Hamblin would pick up his haul
pack with the bucket of the loader and throw it down. The company's safety officer spoke to
everyone at the pit after the letter was sent and told Mr. Saab that it would never happen again.
(Tr. 14, 16). Mr. Saab testified that he was concerned about his safety because his shoulder was
thrown against the door of the haul pack. He also stated that Mr. Hamblin's actions damaged the
haul pack. (Tr. 15, 58).
On March 5, 1997, Mr. Saab called the Department of Labor's Mine Safety and Health
Administration ("MSHA"). Mr. Saab stated that he complained about the highwalls in the pit
and the berms along the roads. (Tr. 20). He stated that be was particularly concerned about the
lack ofberms on some of the haul roads. (Tr. 21, 58). The roads were slippery from the water
truck and the brakes on his haul pack would sometimes lock up. He wanted berms to be strong
enough and high enough to stop a haul pack from going over the side. (Tr. 24). He testified that
because the pit was getting deeper, the highwalls were about 100 feet high and nearly vertical.
He believes that he came within ten feet of this highwall when he drove a haul pack. (Tr. 23).
MSHA inspected the quarry on March 10- 12, 1997, and the inspection report contains a
reference to Mr. Saab's call. (Tr. 25; Ex. C-2). MSHA issued 17 citations at the quarry during
this inspection. One citation concerned conditions at the highwall and one citation was issued
due to the lack of berms on a particular roadway. (Ex. C-2). Mr. Saab also raised safety issues
about mobile equipment at the quarry with the MSHA inspectors at the time of their inspection.
(Tr. 31 ). Some citations were issued for conditions on this equipment, such as inoperable
windshield wipers, faulty lights, and inoperable horns. Dumbarton abated the highwall citation
by building berms along the highwall to keep everyone away and by having an independent
contractor clean the benches on the highwall with a clam bucket crane. (Tr. 37).
On March 18, the day that the crane cleaned the highwall, Mr. Saab and Larry Meyer
were laid off for the day. (Tr. 38). Mr. Saab testified that this one-day layoff was in retaliation
for his call to MSHA. (Tr. 43). He bases this conclusion on the fact that no other employees
were laid off on that day. (Tr. 44, II 52-53). He also testified that his hours were reduced from
10 hours a day to about 8 hours a day when he returned to the quarry. (Tr. 44-47). Mr. Meyer
testified that it would have been unsafe for employees to work under that highwall on March 18

1

The two transcript volumes are not numbered sequentially. References to Volume I are
indicated by "Tr." followed by the page number, references to Volume II are indicated by "Tr. II"
followed by the page number.

509

because the highwall was being cleaned. (Tr. II 113). Meyer complained about his layoff
because he was senior to Randy Huevel, who operated the water truck that day. (Tr. II 114-15).
Buckley replied that he had the authority to determine what equipment each employee operated.
Since it was only a one-day layoff, Meyer was not able to bump Huevel.

Mr. Saab alleges that on March 25, Mike Grant, an independent contractor, approached
him at the end of the shift and called him a black sheep for contacting MSHA. (Tr. 47). A
heated discussion followed. Saab testified that as he walked to his car to leave the quarry, a rock
flew by his head. He believes that Mr. Grant threw the rock as a result of his safety complaints to
MSHA. (Tr. 47-48, 51). Mr. Saab testified that, although Mr. Grant is an independent contractor
who performs maintenance work on equipment at the quarry, his actions should be attributed to
Dumbarton management. (Tr. 48, II 30, II 54). He stated that Mr. Grant and Mr. Buckley
worked closely together and that Grant was treated as if he were an employee. Jd. Mr. Saab
immediately proceeded to Mr. Buckley's office and asked him to call the police. Buckley
refused to do so, but he went outside and talked to Mr. Grant about the incident. Grant denied
throwing a rock and stated that a rock must have fallen off a moving truck. (Tr. 49, II 28). Saab
testified that there were no trucks around. (Tr. 49). Mr. Buckley prepared an incident report
with the safety officer, Mike Oliveira. The report states that due to the lack of eyewitnesses, "the
event could not be proven as stated by Saab." (Ex. C-4).
On March 26, Saab videotaped Grant at work to try to get him to admit that he threw the
rock. (Tr. 60; Ex. C-5). Grant did not make any statements concerning the incident, but he told
Saab the he better start looking for a job. I d. Mr. Saab interprets this statement to mean that
Grant knew that he was going to be laid off the following week . .He frequently observed Grant
going into Buckley's office during this period. (Tr. 61).
The next incident involving Mr. Saab occurred on April 3, 1997. He testified that he was
driving a haul pack on that day and someone in a van took pictures of him. (Tr. 53, II 32). This
occurred about a week after Mr. Saab videotaped Mike Grant. ld. Saab testified that he had
never observed anyone taking pictures of employees at the quarry before and he considered it to
be harassment in retaliation for his complaints to MSHA. (Tr. 54, II 32).
On April4, Clay Buckley told Mr. Saab that he was laid off effective that day. At that
time, Mr. Saab was driving the haul pack. He was told that Randy Huevel, another Teamster at
the quarry, was bumping him off the haul pack onto the water truck? (Tr. 61). Huevel had more

2

It is Mr. Saab's position that he should have been driving the water truck at that time.
He testified that on February 28, 1997, Mr. Buckley advised Saab that he was moving him from the
water truck to the haul pack and Mr. Huevel from the haul pack to the water truck for a few days.
(Tr. 62, II 57). Apparently, Mr. Grant needed extra help moving equipment around and Huevel was
designated to provide this help because Saab had injured his back. ld. Although Saab believed that
this switch was temporary, he was not moved back to the water truck until he was bumped by
(cont i nued ... )

510

seniority under the Teamsters Agreement than Saab. Saab was told that the water truck had
broken down and would not be usable for a few weeks. (Tr. 63). Saab understood that once the
water truck was repaired, he would be called back to work. (Tr. 64). The water truck was never
repaired and Saab was not called back on a permanent basis. (Tr. 79-80). He was given the
opportunity to work a few days in June, but Mr. Saab turned these offers down because he was
employed elsewhere. (Tr. 77-81; Exs. C-8, C-9).
Mr. Saab believ.es that, although the pump on the water truck was leaking, it was still
serviceable and could have been used at the mine. (Tr. 64, II 48, II 56). He believes that
Dumbarton stopped using the water truck so that it could lay him off. (Tr. II 47-50). Dumbarton
hired an independent contractor to water the roads starting on April4. This contractor used his
own water truck. This contractor was at the mine on April 4 watering the roadways when Saab
arrived at work on April 4 and was advised that he was laid off. (Tr. 65). He was told that the
quarry's water truck broke on the afternoon of April3 and that the contractor was hired at that
time.
Mr. Saab believes that Dumbarton overstated the cost of repairing the water truck. He
points to the repair estimate prepared by MCG Heavy Equipment, Inc. (Tr. 66-70; Ex. C-6).
MCG Heavy Equipment, Inc., is owned by Mike Grant, the independent contractor that maintains
equipment at the quarry. The repair estimate states that it would cost almost $ 16,000 to repair
the ·water truck. Saab believes that only two of these items relate to the water pump and the
estimate for those repairs is $1,850. ld
Mr. Saab also believes that the cost to the company of using an independent contractor to
water the roads was greater than the cost of doing this work with a Dumbarton employee using a
company truck or a rental truck. (Tr. 71-72, II 62; Ex. C-7). He testified that the company had
another water truck at the quarry that he could have used. (Tr. 74-75). He stated that this truck
had been at the quarry for over a year. This truck was shipped from the quarry on April 4, 1997,
and taken to the Curtner Quarry. (Tr. II 47). Mr. Saab contends that although this truck leaked
water and needed other repairs, he could have used it when the primary water truck broke down.
Jd. He testified that no other equipment was shipped out that day.
Mr. Saab believes that Dumbarton used a provision in the Teamsters' agreement to
terminate him from his employment, but that the real reason for his termination was his protected
activity. The labor agreement provides that an employer may contract out work if it does not
have the equipment available to perform that work. (Tr. II 58; Ex. R-6). He contends that
Dumbarton removed the spare water truck from the property and took the main water truck out of
service so that it could contract out the work of watering the roadways. (Tr. II 58-59). Because

2

( • • • continued)
Mr. Huevel. Mr. Saab had the least seniority among the Teamsters at the quarry. (Tr. II 40). Mr.
Saab testified that because he took better care of the water truck than Mr. Huevel, the water truck
would not have broken down on April 3 if he had been driving it. (Tr. II 57).

511

Mr. Buckley knew that Mr. Saab had the least seniority among t4e Teamsters working at the
quarry, Buckley also knew that Saab would no longer have a job at the quarry if it contracted out
this work.
B.

Dumbarton Quarry Associates

Mr. Buckley has worked at the quarry since 1982 and has been production operations
manager since 1992. Mr: Buckley testified that MSHA inspected the quarry March 10-12, 1997,
and that the quarry was issued a number of citations, which was unusual. (Tr. II 64-65). One of
the citations required the quarry to clean off benches along the highwall. (Tr. 65-75). Since
there was no direct access to the benches, a crane was brought in to clean them. A berm was
installed under the highwall so that if any material fell, it would not endanger employees. He
made arrangements to have a crane and a crane operator come to the quarry to clean the benches.
Mr. Buckley testified that on March 18 he did not want anyone working in the pit while the crane
was cleaning the highwall, so the haul pack drivers were laid off for the day and the loader
operator worked at the stockpile rather than in the pit. (Tr. II 69). Only the haul pack drivers
were not needed that day. The water truck and loader operators were needed, so they were not
laid off. Buckley testified that he was not aware that Saab had called MSHA at the time of this
layoff. (Tr. II 78).

Mr. Buckley testified that he investigated the alleged rock throwing incident described
above and he did not receive any confirmation that a rock was thrown. He testified that Mr.
Huevel told him that he was in the water truck at the time and saw Saab get out of the truck,
shake his finger at Huevel, flip Huevel off, and get into his car. (Tr. II 77). Huevel told Buckley
that he did not see Grant throw a rock. !d.
Mr. Buckley testified that the quarry operates under a conditional use permit issued by the
City of Fremont. On Apri12, 1997, Buckley received a memorandum from Dumbarton's parent
company, DeSilva Gates, that contained a checklist of items that were to be completed in order to
comply with the quarry's renewed conditional us·e permit. (Tr. II 95). One of the items in the
memorandum states that all excess equipment will be removed from the site by August 1. (Tr. II
82; Ex. R-5). Buckley stated that when he received this fax, he immediately made arrangements
to have the extra water truck moved to the Curtner Quarry, owned by DeSilva Gates. (Tr. II 82).
The extra water truck was owned by DeSilva Gates and had originally been at the Curtner
Quarry. It was shipped out on April4. Buckley tried to ship a third water truck that had a
cracked frame to the Curtner Quarry, but that quarry did not want it and so it was junked.
Mr. Buckley testified that at about noon on April 3, Huevel told him that the water truck
was not operating properly and he did not know if he could use it much longer. Buckley
immediately called a broker to see if he could get another water truck. At about 3:00p.m., the
water truck "just seized [up] and wouldn't operate any more." (Tr. II 85). He made
arrangements with an independent contractor to provide watering services starting on April4.
He obtained the name of the contractor from DeSilva Gates, who used the same contractor. Id.

512

Mr. Buckley then asked Mr. Grant to look at the truck the next morning to see what was
needed to return it to service. He also advised Mr. Huevel that.there would be no work for him at
the quarry at least until the water truck was repaired. Id Huevel exercised his right under the
Teamsters Agreement to bump Mr. Saab from a haul pack to the water truck. (Tr. II 107). Saab
was not at the quarry at this time.
Mr. Grant prepared an estimate of the cost of returning the water truck to service. (Ex. C6). Buckley testified that Grant advised him that there were a number of problems with the water
truck, including a frame that was starting to crack. (Tr. II 87). During the MSHA inspection,
Dumbarton was advised that cracked frames would be cited and that anything that was installed
by the manufacturer of equipment had to be operational. ld He testified that many items on the
water truck were not operational. The estimate prepared by Mr. Grant indicated that it would
cost about $16,000 to repair the truck and bring it into compliance with MSHA standards. (Tr. II
127-28; Ex. C-6). Buckley testified that he called DeSilva Gates' chief financial officer about
the cost and was advised not to repair the water truck. (Tr. II 88). From that time on Dumbarton
used an independent contractor to water the roads in the quarry. All ofDumbarton's sister
companies were already using independent contractors to wet down roadways. (Tr. ll91, II 112).
Buckley also testified that he did not recognize the van in which Saab saw someone
taking pictures of his truck at the quarry on April3. (Tr. II 93-94). He does not know who took
the pictures, but he testified that a representative of a tire manufacturing company was on the
property around that time and that city and state officials often come on the property. He stated
that any one of these people may have taken pictures. ld
Finally, Mr. Buckley testified that Dumbarton did not take any retaliatory actions against
Mr. Saab. (Tr. II 111- 12). He stated that Saab was laid offbecause he had the least seniority.
Buckley stated that if"Mr. Saab had been one step up on the seniority ladder we wouldn't be [at
this hearing.]" I d.

II. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [MineJ Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 95'h Cong., 1st Sess. 3 5 ( 1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 951h Cong., 2"d Sess., Legislative History ofthe Federal Mine Safety and
Health Act of 1977 at 623 (1978).
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by proving that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity. Secretary ofLabor on behalfof
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,2797-800 (October 1980), rev'd on other ·

513

grounds; 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on behalfofRobinette v. United
Castle Coal Co. , 3 FMSHRC 803, 817-18 (April1981). The mine 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 the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine
operator cannot rebut the prima facie case in this manner, it never:theless may defend by proving
that it was also motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Id.; Robinette, 3 FMSHRC at 817-18; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,642 (4th Cir. 1987).

B.

Did Anthony Saab engage in protected activity?

I find that Mr. Saab engaged in activity that is protected by section 105(c) of the Mine
Act when he called MSHA on March 5, 1997, and when he spoke with MSHA inspectors during
their inspection. A miner has a protected right to call MSHA to report safety problems and, in
general, to talk to MSHA inspectors during their inspection.

C.

Did Anthony Saab present evidence that his termination was motivated in
any part by the protected activity?

In determining whether a mine operator' s adverse action was motivated by the miner' s
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Secretary of Labor on
behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on
other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence." ld (citation omitted).
Anthony Saab presented evidence that his termination was motivated at least in part by his
protected activity.
A mine op~rator's knowledge of the protected activity is one factor to evaluate when
determining whether an adverse action was motivated by protected activity. Mr. Saab presented
evidence that employees at the mine knew that he called MSHA and precipitated the March
inspection. Mr. Saab presented evidence that an inference should be drawn that Dumbarton
management knew that he complained to MSHA about safety conditions at the mine and that the
March inspection was a direct result of his complaints.
Another factor is the mine operator's hostility toward the protected activity, often referred
to as "animus." It is clear some hostility was shown by Mr. Grant and other hourly employees.
Mr. Saab did not present any direct evidence of animus by management toward employees who
raise safety concerns with MSHA. Mr. Saab presented evidence that Dumbarton management
took actions against him because of his discussions with management. These actions are
described above in the summary of Mr. Saab's testimony. Thus, I find that Saab presented
sufficient evidence of animus to warrant further analysis.

514

The proximity in time between the protected activity and the adverse action is another
factor to be considered. There is no dispute that the termination ~fMr. Saab occurred shortly
after the March 1997 MSHA inspection. Accordingly, I find that Mr. Saab presented evidence
that his termination was motivated at least in part by his protected activity.

D.

Did Dumbarton rebut Anthony Saab'sprima facie case?- Analysis of the
issues.

As stated above, a mine 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 the protected
activity. I fmd that Dumbarton presented sufficient evidence to rebut Mr. Saab's case. The
preponderance of the evidence presented at the hearing shows that Mr. Saab engaged in protected
activity but that his termination was not motivated by that activity, in any part.
First, I fmd that Mr. Saab's lay-offfor one day on March 18 was not in retaliation for his
safety complaints. I credit Mr. Buckley's testimony that he did not want anyone working in the
pit that day. Since Saab was a haul-pack operator at that time, there was no work for him and he
was laid off along with the other haul-pack operator. I find no connection between his complaint
to MSHA and the one day layoff except that Dumbarton had to bring a crane to the quarry in
order to abate a citation issued during the MSHA inspection. Mr. Saab was not chosen for layoff
because he complained to MSHA but because he.~as a haul-pack operator. As stated above,
Saab argues that he should have been the water-truck operator on March 18. (Tr. II 18). Mr.
Buckley has the right to choose which employees operate particular pieces of equipment. His
decision to switch Mr. Huevel to the water truck in February was unrelated to Mr. Saab's safety
complaints. Saab's contention that he should have been allowed to "bump" Huevel off the water
truck is without merit. Huevel had more seniority than Saab and there is no evidence that the
Teamsters' Agreement grants employees that right.
The events that transpired between Messrs. Saab and Grant do not help establish that
Saab's termination was the result of his protected activity. I find that although Buckley and
Grant had a close working relationship, there has been no showing that they acted in collusion to
harass Saab or discharge him from employmen~. (Tr. II 101). If Mr. Grant did throw a rock at
Saab, he was not encouraged to do so by Mr. Buckley and Dumbarton did not condone such
conduct. Moreover, the credible evidence casts doubt that Grant threw a rock at Saab. Saab did
not see Grant throw a rock and Huevel told Buckley that he did not see Grant throw a rock.
Under those circumstances, it was reasonable for Buckley to refuse to call the police or take any
action against Grant.
Saab testified that he was intimidated by the fact that someone took pictures of him on
April3. I reviewed the videotape that Saab took of the incident. (Ex. C-5). I credit the
testimony of Buckley that he did not know about this incident and that the pictures were probably
being taken by an outsider. There has been no showing that the picture taking had anything to do
with Saab's complaint to MSHA. Mr. Saab also alleged that his hours were significantly reduced

515

after he complained to MSHA. I fmd that the evidence does not substantiate this claim. (Tr. II
24-25).
The primary focus of this case concerns the layoff of Mr. Saab on April 4, 1997. Mr.
Saab believes that Dumbarton orchestrated events so that he would be laid off. He contends that
Dumbarton removed the spare water truck from the quarry, took the primary water truck out of
service, and inflated the cost of repairing the primary water truck to justify its decision to contract
out the road-watering function. Saab believes that Buckley and others at Dumbarton planned
these events in retaliation for his complaints to MSHA knowing that he had the least seniority
under the union contract. He also contends that if he had been allowed to drive the water truck in
March and April, the truck would not have broken down because he took better care of it than
Huevel did.
I find that Saab's explanation of the events is not very plausible. Saab sincerely believes
that Dumbarton planned the events in order to terminate him from his employment because of his
discussions with MSHA. Even if I construe all of Mr. Saab's evidence in his favor, he does not
paint a very convincing picture. Such a scenario would require careful planning and coordination
among a number of persons including Buckley, Grant, and Huevel. Buckley's testimony on the
events of April 3 and 4 is more persuasive.
Buckley testified that Huevel was having significant problems with the water truck on
April3, he asked the mechanic to check it out, and the mechanic estimated that it would cost
about $16,000 to fix the truck and bringit into compliance with MSHA standards. Buckley was
aware that a number of citations had been issued during the March inspection concerning mobile
equipment defects. The chief financial officer of the company did not want to authorize such a
large expenditure on an old truck. The other water truck also needed significant repairs and
Buckley had been given instructions to remove excess equipment from the property. Other
quarries affiliated with Dumbarton were using independent contractors to water the roads.
Accordingly, .Buckley decided to use an independent contractor. Saab was let go, not because he
called MSHA, but because he had the least seniority of the three Teamster employees at the
quarry. Indeed, Buckley testified that he did not know that Mr. Saab called MSHA until Saab
filed a grievance after his discharge. (Tr. II 78). Buckley testified that if Saab had been senior to
any other Teamster employee, he would not have been terminated. I credit Mr. Buckley's
testimony as to the events of April3 and 4, 1997.3
Saab also tried to establish that Dumbarton's decision to use independent contractors to
water the roads did not make any economic sense. He testified as to his rate of pay and
compared it to the payments made to the contractors that were used. His testimony was not very
convincing because it was rather simplistic and did not consider all of the costs borne by an
employer.

3

I also find that Mr. Saab's complaint to Mr. Buckley about loader operator Hamblin in
1996 played no part in Mr. Saab's termination.

516

Based on the above, I fmd that the Dwnbarton rebutted Mr. Saab's prima facie case.
Although the termination occurred within a month of the MSHA inspection and at least some
Dwnbarton employees knew that Saab complained to MSHA, I conclude that Dwnbarton
terminated Saab from his employment for reasons that are unrelated to his safety complaints.
Mr. Saab was not terminated for cause. He was laid off due to the lack of work. Only two of the
three Teamsters were required at the quarry after Dumbarton decided to use a contractor to water
the roads. The Teamsters Agreement did not prohibit Dumbarton from using an independent
contractor for this function. As the employee with the least seniority, Mr. Saab was subject to
layoff.

III. ORDER
For the reasons set forth above, the complaint filed by Anthony Saab against Dumbarton
Quarry Associates under section lOS(c) of the Mine Act is DISMISSED.

Richard W. Manning
Administrative Law Judge

Distribution:
Paul H. Melbostad, Esq., Goldstein, Gellman, Melbostad, Gibson & Harris, 100 Van Ness
Avenue, 2ZSt floor, San Francisco, CA 94102 (Certified Mail)
Robert D. Peterson, Esq., 3300 Sunset Boulevard, Suite 110, Rocklin, CA 95677 (Certified
Mail)

RWM

517

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

May 20, 1998

CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 97-242-M
A.C. No. 45-00020-05524

v.

Docket No. WEST 97-257-M
A.C. No. 45-00020-05525

NORTHWEST AGGREGATES,
Respondent

Mats Mats Quarry

DECISION

Appearances:

Cathy L. Barnes, Esq., Office ofthe Solicitor, U.S. Department of Labor,
Seattle, Washington, for Petitioner;
Charles R. Bush, Esq., Vandeberg, Johnson, and Gandara, Seattle,
Washington, for Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of penalties filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration ("MSHA"), against
Northwest Aggregates, pursuant to sections 105 and 11 0 of the Federal Mine Safety and Health
Act of 1977,30 U.S.C. §§ 815 and 820. The petitions allege ten violations ofthe Secretary's
safety standards. A hearing.was held in Seattle, Washington. The Secretary filed a post-hearing
brief.
I. FINDINGS OFFACT AND CONCLUSIONS OF LAW
The Mats Mats Quarry is an aggregate mine adjacent to the Hood Canal in Jefferson
County, Washington. Material is drilled and blasted at the site, sized and crushed, and shipped
out on barges. MSHA Inspector Arnold Pederson inspected the quarry on Monday, March 31,
1997, and Tuesday, Aprill, 1997. At the time he started his inspection, the quarry was without
electricity because a thunderstorm disrupted the power in the region at about 8 p.m. on Sunday,
March 30. Power was not restored to the quarry until about 8 p.m. on Monday, March 31.

518

It is important to keep in mind that the Commission and the courts have uniformly held
that the Mine Act is a strict liability statute. See, e.g. Asarco v. FMSHRC, 868 F .2d 1195 (1 Oth
Cir. 1989). "[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is
automatically assessed a civil penalty." !d. at 1197. In addition, the Secretary is not required to
prove that a violation creates a safety hazard, unless the safety standard so provides.
The [Mine Act] imposes no general requirement that a violation of
MSHA regulations be found to create a safety hazard in order for a
valid citation to issue. If conditions existed which violated the
regulations, citations [are] proper.
Allied Products Co., 666 F.2d 890, 892-93 (5'h Cir. 1982)(footnote omitted). The negligence of
the operator and the degree of the hazard created by the violation are taken into consideration in
assessing a civil penalty under section 110(i). 30 U.S.C. § 820(i).

A. Docket No. WEST 97-242-M
1. Citation No. 7950096
On March 31 , 1997, MSHA Inspector Pederson issued a section 104(a) citation alleging a
violation of30 C.F.R. § 56.20003(a). In the citation, the inspector alleged that the passageway
under the roll crushers was not kept clean and orderly. The citation states that a large
accumulation of dust and gear lubrication was just below the ladder. It states that the
accumulation was two feet deep and that it would be difficult for an employee to enter the area to
work on the discharge conveyor or to service the tail-pulley bearings. Inspector Pederson
determined that the violation was not of a significant and substantial ("S&S") nature and that
Northwest Aggregates' negligence was moderate. The Secretary proposes a penalty of $50 for
the alleged violation. The safety standard requires that "workplaces, passageways, storerooms,
and service rooms" be kept "clean and orderly."
Inspector Pederson testified that the passageway under the roll crushers was not clean or
orderly. He stated that there was a large accumulation of dust and gear lubrication just below the
ladder. (Tr. 11) The crushers were at ground level (illld a ladder led to an area below ground
where the alleged violation occurred. Inspector Pederson testified that the cited area provided
access to the tail pulley and to the part of the discharge conveyor that is under the roll crusher.
(Tr. 13). He stated that an employee would need to enter the area if the crusher broke down or if
the rollers needed to be serviced. He further stated that the accumulated material was two to
three feet deep, very slippery, and presented.a falling hazard. (Tr. 14, 70). The ladder provided
the only access to the area. (Tr. 116).
Kenneth Johnston, the quarry superintendent, described the cited area as a pit under the
roll crushers. (Tr. 158). Dust and soap grease from the crusher accumulates in the pit. The
crusher is designed so that the grease flows through the bearings and out the other side. The
grease accumulates in the area under the crushers. He testified that about twice a year, an

519

employee will descend the ladder, clean out the pit area, and service the crusher. (Tr. 160-61).
He testified that no employees enter the area without first cleanipg out the accumulated dust and
grease.
I find that the cited area is not a workplace, passageway, or storeroom and that the
Secretary did not establish a violation. I credit Mr. Johnston's description of the area as a grease
pit under the crusher. Although an employee can gain access to the area by descending a ladder,
it is not a passageway. Both parties agree that the cited area is very messy. It is highly unlikely
that anyone would enter the area unless he were required to. Anyone entering the area would, by
necessity, have to clean up the area before attempting to service or repair any equipment. I credit
Mr. Johnston's testimony as to the quarry's procedures for cleaning the area when servicing the
crusher. Finally, I believe that a greater hazard would be created if employees were required to
enter the pit on a regular basis for the sole purpose of cleaning it out. The company's policy of
cleaning the pit whenever an employee is required to enter the area to repair or service equipment
creates a safer environment. Accordingly, this citation is VACATED.
2. Citation No. 7950100
On March 31, 1997, Inspector Pederson issued a section 104(a) citation alleging a
violation of30 C.F.R. § 56.20003(a). In the citation, the inspector alleged that an accumulation
of spilled 4" minus rock was present in the surge tunnel creating a tripping hazard to a person
needing to enter the tunnel to work on the conveyor or on the electrical circuits. He determined
that the violation was S&S and that Northwest Aggregates' negligence was moderate. The
Secretary proposes a penalty of $102 for the alleged violation.
The surge tunnel, which is under a surge pile, contains a conveyor system that is part of
the quarry's portable crusher. Inspector Pederson testified that a walkway is present along the
side of the discharge conveyor in the surge tunnel. (Tr. 17). He testified that anyone could walk
into the area and stumble on the loose rock. He stated that 4" minus rock, which is rock that is 4
inches in diameter· or less, was present along the width of the walkway for a distance of about 20
feet. (Tr. 19). The accumulation was two to three inches deep. (Tr. 129). He saw no evidence
that anyone had started cleaning up the accumulation and believes that the rock accumulated in
the area over a period of time. (Tr. 19, 77, 133). He believes that the conveyor system had been
operating while the accumulation was present. (Tr. 77, 133). Inspector Pederson determined that
the violation was S&S because if was reasonably likely that someone would trip and fall on the
accumulation and sustain a serious injury. (Tr. 38).

Mr. Kerry Gauthier, the operator of the portable crusher, testified that he was responsible
for operating, maintaining, and cleaning up around the portable crusher, including the conveyor
system in the surge tunnel. (Tr. 177). He stated that he was the only person who worked on the
portable crusher. He testified that, at about noon on Saturday, March 29, the portable crusher
broke down. Mr. Gauthier stated that the belt in the surge tunnel started splitting and the rock
cited by Inspector Pederson spilled into the surrounding area. (Tr. 181). He testified that the
rock accumulated in about a half hour. (Tr. 185). Upon discovering the problem, Mr. Gauthier

520

shut down and locked out the portable crusher. (Tr.l80, 183, 186). He then developed an
informal plan to fix the crusher, to clean up accumulations, and to return the portable crusher to
production. (Tr.l83). He testified that he had not completed these tasks when Inspector
Pederson inspected the portable crusher.
I fmd that the Secretary established a violation. There is no dispute that the accumulation
described by the inspector was present in the walkway beside the conveyor in the surge tunnel. I
find that this walkway was a "passageway," as that term is used in the safety standard. The spill
occurred on Saturday at about noon. The mine did not operate on Sunday. Mr. Gauthier testified
that he drove a truck on Monday. (Tr. 180). He further stated that the accumulations had to be
removed by shovel. There is no indication as to why the accumulation remained along the
walkway, except that Mr. Gauthier planned to take care of all the problems with the portable
crusher after he was able to complete some welding on the crusher. (Tr. 190). He apparently
drove a truck on Monday because the welder was in use elsewhere at the quarry on that day. The
hazard presented by the accumulation was present on Saturday afternoon and on Monday. Mr.
Gauthier or another employee could have tripped on the accumulation and sustained an injury. It
appears that Mr. Gauthier may have walked through the accumulation on one occasion to
evaluate the problems with the conveyor system.
I find that the violation was not S&S. I reach this conclusion because I fmd that it was
not reasonably Likely that the hazard contributed to by the violation would result in an injury.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). I credit the testimony ofNorthwest
Aggregates' witnesses that the portable crusher was locked out and tagged out on the afternoon
of March 29. The portable crusher did not operate between that time and the inspection and the
accumulation would have been cleaned up before the crusher was started. Thus, there was little
exposure to the accumulation. In addition, it is unlikely that any injury would have been of a
reasonably serious nature. I find that the gravity of the violation was moderate and that
Northwest Aggregates' negligence was also moderate. A penalty of $75 is appropriate for this
violation.
3. CitationNo. 7950101
On March 31, 1997, Inspector Pederson issued a section 104(a) citation alleging a
violation of30 C.F.R. § 56.14107(a). In the citation, the inspector alleged that two accessible
conveyor idler rollers in the 4" minus surge tunnel were not guarded to prevent a person from
contacting the pinch point between the roller and the belt. The citation states that the openings
were about 36 inches wide and between 4 and 5 feet above the ground. He determined that the
violation was S&S and that Northwest Aggregates' negligence was moderate. The Secretary
proposes a penalty of$102 for the alleged violation. The safety standard states, in part, that
moving machine parts shall be guarded to protect persons from contacting drive, head, tail, and
takeup pulleys and similar moving parts that can cause injury.
Inspector Pederson testified that two idler rollers on the 4" minus surge tunnel conveyor
were readily accessible because no guards were present. (Tr. 21). He was not sure whether the

521

guards had been removed or if guards had never been present at that location. (Tr. 82, 120).
Guards were in place along the sides, but the front area was not guarded. (Tr. 118).
As stated above, Mr. Gauthier locked out and tagged out the portable crusher, including
this conveyor system, when the belt began splitting on Saturday afternoon. He testified that, as
part of the process of repairing and cleaning the crusher, he removed all of the guards on
Saturday afternoon. (Tr.189-90). He stated that he needed to remove the guards to repair the
equipment and remove any accumulations. (Tr. 184, 188). He further stated that all of the
guards had been in place prior to this breakdown, including the guards cited by Inspector
Pederson in this citation. (Tr. 180, 188). Mr. Gauthier further testified that he placed all of the
guards outside of the tunnel so that they would not be in his way when he repaired the equipment
and cleaned the accumulation. (Tr. 184). I credit the testimony of Mr. Gauthier.
I fmd that the Secretary did not establish a violation b~cause there was no showing that
the portable crusher was operated without the cited guards in place. The crusher was locked out
on Saturday and remained locked out at the time of the MSHA inspection. Indeed, because of
the thunderstorm, the leads to the primary transformer had been unhooked thereby cutting off
power to the entire quarry. (Tr. 186). Mr. Gauthier had the only key to lock and unlock the
power for the portable crusher. (Tr. 183-84). The guards were not removed until the portable
crusher was locked out and tagged out and I credit Northwest Aggregates' evidence that the
guards would have been replaced before the crusher was unlocked. The S~retary must show
that the equipment was operated without guards in place to establish a violation. In this case, the
mine operator established that it removed the guards to perform maintenance and to clean up
accumulations while the equipment was locked out. Accordingly, this citation is VACATED.
4. Citation No. 7950102
On March 31, 1997, Inspector Pederson issued a section 104(a) citation alleging a
.
violation of 3-0 C.F.R. § 56.14112(b). In the citation, the inspector alleged that the guards for the
self-cleaning pulley on the discharge conveyor under the horizontal crusher were not properly
secured to prevent anyone from pushing them out of the way. The citation states that the guards
were also bent. He determined that the violation was not S&S and that Northwest Aggregates'
negligence was low. The Secretary proposes a penalty of $50 for the alleged violation. The
safety standard provides that guards shall be securely in place while machinery is being operated.
Inspector Pederson testified that the guards were between one and two feet off the ground
and he surmised that the guards were pushed out by a bobcat during cleaning operations. (Tr.
26). He st~ted that the guards were very loose. ld He was concerned that someone could push
the guard out of the way while cleaning up with a shovel and become entangled in the pulley.
He believed that the portable crusher had been operated while the guards were in this unsecured
condition. (Tr. 85).
As discussed above, Mr. Gauthier testified that the portable crusher was locked out on
Saturday, March 29, due to mechanical problems. Mr. Gauthier also testified that the guards

522

were not fastened at the bottom at the time of the MSHA inspection. (Tr. 186). He stated that
he removed the guards when he inspected the crusher after he locked it out on Saturday. Id He
did not refasten the guards at that time because he had to perform some maintenance with a
welder under that area. He testified that these guards were securely fastened when the crusher
was operating and that he would have made sure that they were secured before unlocking the
crusher to begin operations once the repairs and cleanup had been completed.
For the reasons discussed in the previous citation, I fmd that the Secretary did not
establish a violation. There was no showing that the crusher had been operated with loose guar<:is
or that the guards would have remained unsecured once the crusher began operating again.
Accordingly, this citation is VACATED.
5. Citation No. 7950103
On March 31, 1997, Inspector Pederson issued a section 104(a) citation alleging a
violation of30 C.F.R. § 56.14107(a). In the citation, the inspector alleged that a guard was not
installed on the head pulley adjacent to the elevated walkway on the 4" minus stacker conveyor.
The citation noted that few employees would use the walkway because a ladder had to be used to
reach the walkway. He determined that the violation was not S&S and was caused by Northwest
Aggregates' moderate negligence. The Secretary proposes a penalty of$50 for the alleged
violation.
Inspector Pederson testified that because a ladder was not present at the time of his
inspection, he did not enter the elevated walkway. (Tr. 29). He stated that he observed the
violation from the ground. He believes that employees may need to get onto the walkway to
perform routine maintenance.
Mr. Johnston testified that the walkway is about 7 feet above the ground at the tail pulley
and 50 feet above the ground at the head pulley. (Tr. 162). He further testified that company
procedures require·employees to lock out and tag out the equipment before gaining access to the
walkway with the ladder. The ladder is kept in a locked storage area to keep trespassers from
going up on the walkway when the mine is closed. This conveyor is not part of the portable
crusher that was locked out for repairs, as described above.
I find that the Secretary established a violation. The head pulley was not guarded and it
was immediately adjacent to a walkway. The fact that the walkway was not frequently used is
not controlling. In addition, the fact that the company requires employees to lock out and tag out
the conveyor prior to entering the walkway cannot be the basis for vacating the citation. As
stated above, the Mine Act is a strict liability statute. Sand and gravel operators frequently
require miners to lock out and tag out equipment prior to performing any maintenance. The
standard, by its own terms, only appliel) to "moving parts that can cause injury." The
Commission held that the most logical construction of guarding standards "imports the concepts
of reasonable possibility of contact and injury, including contact stemming from inadvertent
stumbling or falling, momentary inattention, or ordinary human carelessness." Thompson Bros.

523

Coal Co., 6 FMSHRC 2094,2097 (September 1984). The Commission stated that the
construction of safety standards involving miners' behavior "cannot ignore the vagaries of human
conduct." !d. (Citations omitted). In this case, it is possible that an employee would travel along
the walkway to service the conveyor system without locking out the conveyor, especially if the
employee believed that his work could be completed quickly. The employee may not see the
need to stop production for such a simple task and may take a shortcut that could lead to a serious
Injury.

I find that the violation is not serious because the violative condition was in a remote
location. The violation was not S&S because the possibility of an injury was slight. I also find
that Northwest Aggregates' negligence is moderate to low, due to the location of the violation. A
penalty of$50 is appropriate for this violation.
6. Citation No. 7950107
On Aprill, 1997, Inspector Pederson issued a section 104(a) citation alleging a violation
of30 C.F.R. § 56.11012. In the citation, the inspector alleged that the barge access ramp at the
loading area had two holes in the planking that forms the surface of the ramp. The citation states
that the openings were about six by two feet and four by two feet. He determined ihat the
violation was S&S and that Northwest Aggregates' negligence was moderate. The Secretary
proposes a penalty of$102 for the alleged violation. The safety standard provides, as relevant
here, that openings above, below, or near travel ways through which persons may fall shall be
protected by covers.
Inspector Pederson testifi~d that trucks use the ramp to drive onto barges to dump the
processed rock. (Tr. 34). He stated that employees also walk onto the barges and that he was
concerned that an employee could fall into one of the openings and break a leg, especially if it
was dark outside. (Tr. 35; Ex P-1). Employees ofNorthwest Aggregates showed Inspector
Pederson the holes at the tjme of his inspection and also showed him the repairs that were being
made. (Tr. 91 ). He testified that it was his beliefthat the condition had existed for at least one
day. Finally, he testified that the holes should have been immediately covered, but admitted that
repairs could not be made unless a ·barge was present. (Tr. 139-40).
Mr. Johnston testified that the holes developed in late March and that he immediately
ordered planking to repair the holes. (Tr. 164, 166). He stated that as soon as a barge arrived,
the holes were repaired. He described the function and design of the ramp. The ramp is hinged
from the heel and supported by a head frame and counterweight system so that it can be raised
and lowered. (Tr. 165). The ramp is always raised, unless a barge is present. To perform
maintenance on the ramp, it must be in a horizontal position. It can only be lowered to that
position when a barge is present. He testified that the holes were repaired when a barge arrived
on April 1. (Tr. 167-68). The truck drivers' records indicate that a barge had also been present
on either March 28 or 29. (Tr. 174, Ex. P-6).

524

I -find that the Secretary did not establish a violation. Except at those times when the
ramp was down, the ramp was not a travelway and the holes did not present a hazard. Inspector
Pederson was not concerned that anyone would fall through the holes, but that someone's leg or
foot could get caught in one of the holes. There is no evidence as to when the holes developed.
The Secretary did not establish that the ramp was down when holes were present, except perhaps
on the day that the holes first developed. The holes were caused by the truck traffic on the barge.
The only time anyone walks on the ramp is when a barge first arrives because someone needs to
check the depth of the water. The Hood Canal is a natural waterway that is subject to tides. The
ramp was down on either March 28 or 29, and again on April 1. The holes may have developed
on one of those days. Northwest Aggregates began repairing the holes as soon as the April 1
barge arrived. Indeed, the operator was repairing the holes at the time of Inspector Pederson's
inspection. The evidence does not show whether there was any exposure to the hazard presented
by the holes. Northwest Aggregates repaired the holes as soon as possible after they developed.
Accordingly, this citation is VACATED.
7. Citation No. 7950109
On April1 , 1997, Inspector Pederson issued a section 104(a) citation alleging a violation
of30 C.F.R. § 56.11027. In the citation, the inspector alleged that the upper grizzly work deck,
where the drive motor and v-belt drive are located, did not have a railing to prevent a person
from falling. The citation states that the work deck was about 20 feet high and that it is the
company's policy to require employees to wear a safety belt and line when working at that
location. He determined that the violation was S&S and that Northwest Aggregates~ negligence
was low. The Secretary proposes a penalty of $119 for the alleged violation. The safety standard
provides, in part, that scaffolds and working platforms shall be provided with handrails.
Inspector Pederson testified ~at there was no railing on the upper deck. (Tr. 40; Ex. P-2).
He testified that he determined that the violation was S&S because he thought that it was
reasonably likely for an accident to occur resulting in serious injuries. (Tr. 48). He stated that he
believes that an accident was reasonably likely because there was no place to hook up a safety
Line when traveling to the work platform. (Tr. 145). He stated that the use of safety lines is not
an alternative in the safety standard. (Tr. 123). He admitted that if an employee were tied off
when working on the work deck, he would not fall far. (Tr. 95, 145).
Dale Inwards, a foreman for Northwest Aggregates, testified that the mine uses safety
belts and lines when doing any work at the cited area. (Tr. 194). He stated that employees need
to go to the area when a belt breaks. (Tr. 195).
I find that the Secretary established a violation. Although employees do not need to work
on the drive motor or v-belt drive on a regular basis, I find that the deck for the motor and v-pelt
drive is a "working platform," as that phrase is used in the safety standard. Exhibits P-2 and P-3
show the cited working platform. I conclude that the use of safety belts and lines is not an
alternative means of compliance. Section 56.15005 is an independent safety standard that
requires safety belts and lines to be worn ''when persons work where there is a danger of falling."

525

Nothing in the Secretary's safety standards suggests that safety belts and lines may be used in
·
lieu of rails on scaffolds and working platforms.
I find that the Secretary did not establish that this violation was S&S. Inspector Pederson
based his S&S finding on the fact that he was concerned that employees would not have an
adequate place to attach their lanyard when traveling to the work platform. There is a place to tie
off a safety line at the cited area. (Ex. P-2). Northwest Aggregates contends that the question of
safe access to the work area is not an issue in this citation. I agree. The inspector's concerns
about access to the work platform would remain whether or not hand rails are present. (Ex. P-2).
There seems to be no dispute that employees used safety belts and lines when working in the
cited area. (Tr. 48-49). I find that the Secretary did not establish that it was reasonably likely
that the hazard contributed to by the violation would result in an injury, given that safety belts
and lines were used in the area. I find that the gravity of the violation was moderate and that
Northwest Aggregates' negligence was also moderate. I find that a penalty of$75 is appropriate
for this violation.
8. Citation No. 7950111
On April1, 1997, Inspector Pederson issued a section 104(a) citation alleging a violation
of 30 C.F.R. § 56.12004. In the citation, the inspector alleged that two power cables for the
grizzly drive motors had rips and cuts in their outer jackets that could easily lead to a short circuit
or ground fault. The citation states that the rips and cuts could allow dirt and moisture to enter
the cable and that the condition presented an electric shock hazard. Inspector Pederson
determined that the violation was S&S and was caused by Northwest Aggregates' low
negligence. The Secretary proposes a penalty of $119 for the alleged violation. The safety
. standard provides, in part, that electrical conductors exposed to mechanical damage shall be
protected.
lnspe~tor Pederson testified that both cables had rips and holes in the outer jacket. (Tr.

51 ; Ex. P-3). He stated that water and dust could enter the cable and deteriorate the inner
insulated conductors. He further stated that rocks and dust fall from the grizzly onto the cables.
Inspector Pederson believed that the condition could lead to a fatal injury. (Tr. 52). He testified
that even though bare wires were not exposed, the damaged cables presented a serious electric ·
shock hazard. (Tr. 103-04). Mr. Inwards testified that he saw that the outer jacket on at least one
of the cables was damaged afterlnspector Pederson inspected the grizzly. (Tr. 196). He believes
that the'jacket was cut from rocks falling off trucks or off the side of the grizzly.
I find that the Secretary established a violation. It is clear that the cables were subject to
mechanical damage and that they were not sufficiently protected against such damage. The outer
jacket on a power cable is designed to protect it from mechanical damage. The cables were
subjected to such a heavy amount of damage from falling rocks that the jackets were insufficient
to protect them. Additional protection was required by the standard. The fact that the inner
insulation was present is not controlling. The inner insulation provides electrical separation
between the phases, not mechanical protection. As Inspector Pederson stated, moisture and dirt

526

could enter the inn~r insulation and create conditions that could lead to a short circuit or ground
fault.
I also find that the Secretary established that the violation was S&S. A citation is
properly designated S&S "if, based on 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." National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). I find that
it was reasonably likely that the hazard contributed to by the violation would result in an injury,
assuming continued normal mining operations. The cables were damaged and were subject to
continuing damage. The insulated conductors in the cable were also subject to damage from
moisture and dirt. I credit the testimony of Inspector Pederson that a short circuit or ground fault
was reasonably likely and that a fatal accident could result. I also accept the inspector's
negligence determination. A penalty of$120 is appropriate.

B. Docket No. WEST 97-257-M
1. Citation No. 7950095
On March 3 1, 1997, Inspector Pederson issued a section 104(d)( 1) citation alleging a
violation of30 C.F.R. § 56.14107(a). In the citatio~, the inspector alleged that the surge pile
discharge conveyor head pulley was not guarded. The citation states that the head pulley was
next to an accessible walkway at the crusher and that the guard had been removed and stored
under the shaft for the rotary screen. The citation also states that the crusher operator knew that
the guard had been removed. It states that the foreman and superintendent visit the crusher
occasionally and should have noticed that the plainly visible head pulley was not guarded.
Inspector Pederson determined that the violation was S&S and was caused by Northwest
Aggregates' high negligence. The Secretary proposes a penalty of $1,000 for the alleged
violation.
Inspector Pederson testified that there was a walkway beside the head pulley and "there
might be an occasion for someone" to be in the area. (Tr. 54; Ex. P-4). The pulley was within a
foot of this walkway. The walkway ended a few feet from the head pulley so employees would
not pass through the area to go somewhere else. (Tr. 111). Employees would not be near the
head pulley very often. (Tr. 127-.28). He determined that the violation was serious and S&S
because the area was completely exposed. (Tr. 55-56). He based his high negligence and
unwarrantable failure determinations on the fact that the crusher operator was aware of the
condition and the foreman and superintendent visited the crusher. He stated that the violation
was obvious. Inspector Pederson testified that the crusher operator stated that he had been
operating the crusher for a few days and the guard was off during that period. (Tr. 56). Inspector
Pederson also relied on the fact that the condition had not been entered in the onshift
examination books.

527

Walt Turner, a supervisory MSHA inspector at the time the citation was issued, testified
that he discussed this citation with Mr. Johnston. (Tr. 150). Mr. Johnston advised him that the
guard had been off for about a week, but that he was not aware that it was off. /d. Mr. Johnston
testified that only one person is normally at the crusher and he stands at the controls near the
office. (Tr. 156; Ex. R-1). He stated that it is company policy for the crusher to be locked out
and tagged out before any maintenance is performed. If any maintenance or service were
required at the crusher, the crusher operator would go to the electrical shed to lock out and tag
out the crusher. (Tr. 156). He testified that the cited head pulley is in a remote location and there
would be no reason for anyone to be there while the crusher was operating. (Tr. 156, 161 ).
For the reasons stated above with respect to Citation No. 7950103, the Secretary
established a violation. The citation was issued at the permanent crusher, not the portable
crusher that had been locked out on Saturday for maintenance. The head pulley was not guarded
and it was immediately adjacent to a walkway. The citation cannot be vacated simply because
the walkway is not frequently used or the company has lock-out and tag-out procedures. The
safety standard applies to moving parts that "can cause injury." Given the "vagaries of human
conduct" it is possible that an employee could be at the head pulley while the crusher was
operating. Because the unguarded pulley was immediately adjacent to the walkway and was at
about waist level, it posed a significant hazard to employees who might be in the area.
Inspector Pederson determined that it was reasonably likely that someone would be
injured and that such an injury could be fatal. Based on this testimony, I find that the violation
was serious. I also find that the violation was S&S. It is clear that the violation created a
discrete safety hazard. I also find that it is reasonably likely that the hazard contributed to by the
violation would have resulted in an injury. This element is the third part of the Commission's
S&S test. Mathies, 6 FMSHRC at 3-4. Under this test, it is not necessary for the Secretary to
establish that it was more probable than not that an injury would result from the hazard
contributed to by the violation. U.S. Steel Mining Co. , 18 FMSHRC 862, 865 (June 1996). The
test is whether ·a n injury was reasonably likely assuming continued mining operations. In
concluding that an injury was reasonably likely, I have taken into consideration the fact that the
head pulley was in ah area where employees do not normally travel. I also recognize that the
company requires employees to lock out and tag out equipment before maintenance work is
performed. Nevertheless, the pinch point was located at the walkway so that anyone walking in
the area was in danger of becoming entangled. In addition, the condition had existed for about a
week and, assuming continued operations, the condition presented a hazard to employees at the
permanent crusher. It is foreseeable that an employee would be in the area to perform a minor
task and not think it was necessary to shut down the crusher. Any injury would be serious.
I also find that the Secretary established that the violation was the result of Northwest
Aggregates' unwarrantable failure. Unwarrantable failure is aggravated conduct constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997,2001 (December 1987).
Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or "a serious lack of reasonable care." /d. at 2001-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (February 1991).

528

In analyzing the evidence in the present case using this test, I find that the violation was
caused by Northwest Aggregates' aggravated conduct. The violation was not the result of
intentional misconduct, indifference, or a reckless disregard of the dangers posed by unguarded
pulleys. I find, however, the Northwest Aggregates' failure to meet the requirements of section
56.14107(a) was the result of a serious lack of reasonable care that constituted more than
ordinary negligence.
I reach this conclusion for a number of reasons. First, the violation was readily obvious.
Section 56.18002 requires each operator to conduct an examination of each working place at
least once a shift for conditions that may adversely affect the safety or health of employees. A
record of such examination is required to be kept. Inspector Pederson testified that the
company's examination books did not show that the guard was missing. Even a cursory
examination of the crusher would have revealed that the guard was not there. The violative
condition was quite obvious. See Faith Coal Co., 19 FMSHRC 1357, 1369 (August 1997).
Second, the condition had existed for some time while the crusher was operating. The
guard had been removed sometime during the previous week and had not been replaced. The
crusher continued to operate and employees were exposed to the hazard. A penalty of $800 is
appropriate for this violation.
2. Order No. 7950099
On March 31, 1997, Inspector Pederson issued a section 104(d)(1) order alleging a
violation of30 C.F.R. § 56.14107(a). In the citation, the inspector alleged that both sides and the
back of the self-cleaning tail pulley for the 4" minus conveyor were not guarded. The citation
also states that the top guard was bent back exposing part of the pulley. It states that the
violation was in plain sight of the crusher foreman and the superintendent. Inspector Pederson
determined that the violation was S&S and was caused by Northwest Aggregates' high
negligence. The Secretary proposes a penalty of $1,000 for the alleged violation.
This order was issued for a tail pulley on the portable crusher. As discussed above, the
portable crusher was locked out on the afternoon of Saturday, March 29 due to mechanical
problems. Mr. Gauthier testified that he removed guards after the crusher was locked out, but
that all of the guards were present before he shut down the portable crusher. (Tr. 180, 188). He
removed guards to clean and perform maintenance. He stated that the top guard was not bent
back, but the guard was made of material that was not rigid so that it may have appeared to be
bent. (Tr. 189). There has been no showing that the portable crusher was operated with the cited
guards missing. I credit Mr. Gauthier's testimony that once the repairs were made, the guards
would have been replaced before the lockout was lifted. Inspector Pederson testified that Mr.
Gauthier told him that there had never been any guards at this location. (Tr. 115). I conclude
that the inspector misunderstood Mr. Gauthier's comments. For the reasons discussed with
respect to Citation Nos. 7950101 and 7950102, this order of withdrawal is VACATED.

529

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 two citations were issued at the Mats Mats Quany between
July 1995 and March 1997. (Ex. P-8). The Mats Mats Quany is small. It appears that Northwest
Aggregates is owned by Lonestar Northwest, but the Secretary did not present any evidence on
this issue. (Tr. 53). Accordingly, I find that Northwest Aggregates is a small operator. The
Secretary has not alleged that Northwest Aggregates failed to timely abate the citations and order.
The penalties assessed ·in this decision will not have an effect on Northwest Aggregates' ability
to continue in business. The gravity and negligence criteria are discussed separately for each
violation. Based on the penalty criteria, I find that the penalties set forth below are appropriate
for the violations.

Ill. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the
following civil penalties:
Citation/Order No.

30 C.F.R. §

PenaltY

WEST 97-242-M
7950096
7950100
7950101
7950102
7950103
7950107
7950109
7950111

56.20003(a)
56.20003(a)
56.14107(a)
56.14112(b)
56.14107(a)
56.11012
56.11027
56.12004

Vacated
75.00
Vacated
Vacated
50.00
Vacated
75.00
120.00

56.14107(a)
56.14107(a)

800.00
Vacated

WEST 97-257-M
7950095
7950099

530

Accordingly, the citations and order listed above are hereby VACATED, AFFIRMED,
or MODIFIED as set forth above, and Northwest Aggregates is ORDERED TO PAY the
Secretary of Labor the sum of$1,120.00 within 40 days of the date of this decision.

Richard W. Manning
Administrative Law Judge

Distribution:

Cathy L. Barnes, Esq., Office of-the Solicitor, U.S. Department ofLabor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101-3212 (Certified Mail)
Charles R. Bush, Esq., Vandeberg, Johnson & Gandara, 600 University Street, Suite 2424,
Seattle, WA 981 01-1192 (Certified Mail)

RWM

531

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 2 8 1998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA);
on by half of JERRY M. CAUDILL,
Petitioner
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 98~128-D
BARB-CD 98-04
Mine No. 68
Mine ID 15-17497

LEECO, INC.,
Respondent

DECISION APPROVING SETTLEMENT
Before: Judge Barbour
This proceeding is brought by the Secretary of Labor on behalf of the complainant, Jerry
Caudill, pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977
(30 U.S.C. § 815(c)(2)). The Secretary alleges that Caudill, who was employed by Leeco as an
electrician/repairman, was suspended and subsequently discharged because he was designated a
miner's representative and carried out duties pursuant to that designation.
Because Caudill was reinstated temporarily as the result of a previous proceeding (see
Secretary ofLabor, MSHA, On behalfofJerry Michael Caudill v. Leeco, Inc., 19 FMSHRC
1884 (December 1997)), in the instant proceeding the Secretary seeks permanent reinstatement,
as well as back wages, benefits, interest, and expenses. Also, the Secretary seeks orders directin.g
the company to cease and desist discriminatory activities toward its employees and to expunge
all references to Caudill's discharge from his personnel files. Finally, the Secretary requests a
civil penalty be assessed against Leeco for its violation of section 105(c). Leeco denys it
violated the Act, and asserts Caudill does not have a viable claim for relief.
After the initial pleadings were filed, the parties began discovery, and the matter was
scheduled for trial. On April 8, 1998, in a telephone conference, counsels advised me the matter
was settled. Counsels explained the settlement consisted of two parts. First, the Secretary and
Leeco agreed to resolve the Secretary's allegation that Leeco violated the Act. As part of the
agreement, Leeco committed itself to conduct classes for all employees in miners' rights under
the Act and to pay a specified civil penalty.

532

Second, Leeco and Caudill agreed to resolve all issues raised by Caudill's assertion the
company discriminated against him. Counsels stated the parties desired that part of the
agreement be sealed and be subject to review only by me, the Commission, and/or a higher
appellate judicial authority.
Counsels now have filed a joint motion to approved the settlement. In the motion they
state the settlement between Leeco and Caudill is set forth in a separate document filed
simultaneously with the motion and signed by a representative ofLeeco and by Caudill. In
addition, counsels for the company and Caudill have filed a motion to make confidential the
agreement between Leeco and Caudill and to seal the record as it relates to the agreement.
I have reviewed the motions, as well as inspected, in camera, the agreement between
Leeco and Caudill.
The agreement between Leeco and the Secretary is as follows:
1. Leeco will pay a civil penalty of $25,000 for violating section 105(c)of the Act;
2. Leeco will insure all management employees involved with working and or making
personnel decisions at Mine No. 68, including section foremen, shift foremen, mine
superintendents, safety personnel, and corporate officers attend a 1 hour training session on the
rights of miners and their representatives under sections I 05(c) and 103(f) of the Act and under
30 C.F.R. Part 40. The session will be conducted by persons mutually agreeable to Leeco and
the Secretary and will be held within 60 days of the date of this Decision;
3. For actions or proceedings other than those brought under the Act, nothing in the
settlement shall be deemed an admission by Leeco that it violated the Act or regulations
promulgated under the Act.
In support of the agreement, the parties note that Leeco is a large operator, that in the
previous 2 years, Leeco has violated section 105(c) of the Act twice, and that payment of the
civil penalty, and the other damages agreed to by the parties, will not affect Leece's ability to
continue in business.
The agreement between Leeco and Caudill is comprehensive. It resolves all claims,
damages, and liabilities up to the effective date of the agreement, resulting from Caudill's claim
of discrimination as filed with MSHA. The agreement also resolves Caudill's status as a miners'
representative and any claims he may have for wrongful discharge. The agreement contains a
provision Leeco and Caudill will not commence, maintain, or continue any action or proceeding
against each other based on Caudill's claims and status. The agreement also contains
confidential provisions regarding releases, covenants, employment, and compensation.

533

-Based upon my review of all submitted materials, I conclude the proposed settlement
agreement is reasonable and in the public interest. ACCO~INGLY, the Joint Motion to
Approve the Settlement in GRANTED, and the settlement is APPROVED.
I also conclude Leeco's and Caudill's request for an order of confidentiality is well
advised. ACCORDINGLY, while the terms and conditions of the settlement as it relates to
Leeco and Caudill are approved in all respects, they are DECLARED CONFIDENTIAL.
Counsels and the signatories to the Leeco/Caudill agreement (the representative of Leeco and
Caudill) are DIRECTED not to discuss or to otherwise communicate the terms and conditions of
the agreement with anyone other than one another, and the joint motion to approve the
confidential settlement agreement are PLACED UNDER SEAL subject to review only by the
Commission or another appellate body.
ORDER

Leeco is ORDERED to pay to the Secretary the sum of$25,000 within 30 days of the
date of this Decision. Further, Leeco and the Secretary are ORDERED mutually to agree upon
persons to conduct the specified training. The training WILL be conducted within 60 days of
the date of this Decision;
Leeco and Caudill are ORDERED to comply in full with the terms and conditions of
their CONFIDENTIAL agreement and to do so within the time frames stated.

_])W-J;d.,:~-- ~
David F. Barbour
Administrative Law Judge

Distribution:
Mary Beth Bemui, Esq. , Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-20 1, Nashville, TN 37215-2862 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project, Appalachian Research and Defense Fund of
Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508 (Certified Mail)
MarcoM. Rajkovich, Esq., Wyatt, Tarrant & Combs, 1700 Lexington Financial Center,
Lexington, KY 40507-1746 (Certified Mail)
dcp

534

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1 000
5203 Leesburg Pike
Falls Church, Virginia 22041

MAY 2 9 1998

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 98-1-M
A. C. No. 13-01916-05505

V.

Knock's Sand & Gravel
KNOCK'S BUILDING SUPPLIES,
Respondent
DECISION
Appearances: Edward Falkowski, Esq., Office ofthe Solicitor, U.S. Department of Labor,
Denver, Colorado, for Petitioner;
Gary Papenheim, Esq., Parkersburg, Iowa, for Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty filed by the
Secretary of ~abor, acting through her Mine Safety and Health Administration (MSHA), against
Knock's Building Supplies, pursuant to section 105 of the Federal Mine Safety and Health Act of
1977,30 U.S.C. § . 815. The petition alleges 15 violations of the Secretary's mandatory health
and safety standards and seeks a penalty of$2,289.00. For the reasons set forth below, I affirm
12 citations, vacate three citations and assess a penalty of$3,139.00.
Background

Knock's Building Supplies operates a limestone, sand and gravel mine near Clarksville,
Iowa. Sand and gravel are removed from a pit by means of a dragline 1 and hauled to the wash
plant by truck. The material is then dumped onto a hopper. A feeder conveyor belt takes it out

1

A "dragline" is a "type of excavating equipment that casts a rope-hung bucket a
considerable distance; collects the dug material by pulling the bucket toward itself on the ground
with a second rope; elevates the bucket; and dumps the material on a spoil bank, in a hopper, or
on a pile." American Geological Institute, Dictionary of Mining, Mineral, and Related Terms
167 (2d ed. 1997).

535

of the hopper to the main screen wash plant. Oversized material goes through a crusher, inch and
a quarter rock falls through a screen and onto a rock conveyor where it goes to another screen
which sorts out the pea gravel onto a pea gravel conveyor. Sand falls all of the way through to a
sand screw which loads the sand onto a sand stacker conveyor taking the sand to the sand
stockpile.
Three employees operate the mine, a dragline operator, a truck driver and the wash plant
operator. Markley Knock, the mine owner, hauls sand and gravel -between the mine and the
concrete ready-mix plant and lumberyard in Parkersburg, Iowa. The concrete plant is operated
by Markley's sons, Kem'leth and Mike. Mike also goes out to the mine periodically. In the
spring of 1997, Mike' s son, Jeremy, was the wash plant operator and foreman at the mine.
MSHA Inspector Clarence Theilen arrived at the mine about 1:00 p.m. on May 20, 1997,
to conduct an inspection. He inspected on the afternoon ofthe 20'h and the morning ofthe 2P'
when he left the mine site because he was feeling pressure in his chest similar to the pressure he
had felt when he had a heart attack several years previously. Because of his heart problem, the
inspection was completed on May 28, 1997, by Inspectors William Owen and Jimmie L. Davis.
Fifteen citations were issued to Knock's as a result of the inspections.
A hearing was held on March 11 and 12, 1998, in Allison, Iowa. The citations will be
discussed in the order that they were presented at the hearing.

Findings of Fact and Conclusions of Law
Citation No. 7812661
The citation alleges a violation of section 56.11001 of the Secretary' s Regulations,
30 C.F.R. § 56.11001, because: "The five planks on the south side ofthe elevated work platform
on the load out surge bins for the wash plant was [sic] rotted out on both ends(,] [c]reating a
potential fall hazard for a miner who may step on (the] end of[the] rotted planks. [The] [w]ork
platform is about 10 feet above grade. This condition does not permit safe access to all areas of .
(the] work platform. This area is serviced once a day on [the] west side of [the] work platform."
(Govt. Ex. 21.) Section 56.11001 provides that: "Safe means of access shall be provided and
maintained to all working places."
The evidence revealed that the only time anyone went onto the platform was to pull the
levers to dump the surge bins. The levers are located in the center of the platform. Therefore,
the working place is the center of the platform. The Commission has held, in construing an
identically worded regulation, that:
[T]he standard requires that each "means of access" to a working
place be safe. This does not mean necessarily that an operator
must assure that every conceivable route to a working place, no

536

-

matter how circuitous or improbable, be safe. For example, an
operator could show that a cited area is not a "means of access"
within the meaning of the standard, by proving that there is no
reasonable possibility that a miner would use the route as a means
of reaching or leaving a workplace.

Homestake Mining Company, 4 FMSHRC 146, 151 (February 1982); The Hanna MiniiJg
Company, 3 FMSHRC 2045, 2046 (September 1981 ).

The Secretary has not shown that the area at the ends of the planks on the platform was a
route to the working place. In fact, the evidence shows that to reach the levers a miner goes up a
ladder and across the center of the platform. There is no reasonable possibility that a miner
would go up the ladder and around the edge of the platform. Accordingly, I conclude that the
Secretary has not proved that the operator violated section 56.11001 and will vacate the citation.
Citation No. 7812662

This citation alleges that: "The haul road from pit to plant was not adequately bermed in
three places for a length of about 150 feet on the north side of the haul road along the pit. There
is a drop off of about 15 feet into water in [theJ pit. [The] haul road is approximately 25 to
30 feet wide in this area. (The] berm was Jess than 12 inches high in places along this area.
[The] [a]xle of[the] Ford 8000 haul truck is 20 inches." (Govt. Ex. 22.) This is charged to be a
violation of section 56.9300(b), 30 C.F.R. § 56.9300(b), which requires that "[b]erms or
guardrails shall be at least mid-axle height of the largest self-propelled mobile equipment which
'
usually travels the roadway."
The inspector testified that the berm along the haul road, in the area that he cited, had no
berm at all in some places, and no where along that stretch was the berm higher than 12 inches.
While Robert Viers, the dragline operator, quibbled about how long the area was where the
inspector indicated th~t the berm was inadequate, he did not deny that the berm was inadequate
and he did admit stopping work and building up the berm.
Based on the essentially unrebutted testimony of Inspector Theilen, I conclude that the
company violated section 56.9300(b) as alleged. Consequently, I affirm the citation.
Citation No. 4421680

This citation alleges that: "Mr. Markley Knock, owner and operator of Knock's Sand and
Gravel, refused to allow an authorized representative of the Secretary to continue an inspection
started on 5-20-96 [sic], pursuant to section 103(a) of the Federal Mine Safety and Health Act of
1977 (mine act). Mr. Knock informed me at 0845 that I had 30 minutes to fmish the inspection
and leave mine property. Mr. Knock was informed that he was getting himself in trouble."

537

(Govt. Ex. 23.) 11le citation states that this was a violation of section 103(a) of the Act,
30 U.S.C. § 813(a).
Section I 03(a) of the Act provides, as pertinent to this case, that:
Authorized representatives of the Secretary ... shall make
frequent inspections and investigations in coal or other mines each
year for the purpose of ... (4) determining whether there is
compliance with mandatory health or safety standards or with any
citation, order, ·or decision issued under this title or other
requirements of this Act. In carrying out the requirements of this
subsection, no advance notice of an inspection shall be provided to
any person .... In carrying out the requirements of clause[] ... (4)
of this subsection, the Secretary shall make inspections .. . of each
surface coal or other mine in its entirety at least two times a year.
The Secretary shall develop guidelines for additional inspections of
mines based on criteria including, but not limited to, the hazards
found in mines subject to this Act, and his experience under this
Act and other health and safety laws. For the purpose of making
any inspection or investigation under this Act, the Secretary ... or
any authorized representative of the Secretary ... shall have a right
of entry to, upon, or through any coal or other mine.
In Waukesha Lime and Stone Co., 3 FMSHRC 1702 (July 1981), the Commission held
that a refusal to permit an inspection violated section 103(a) of the Act. In Calvin Black
Enterprises, 7 FMSHRC 1151 (August 1985), the Commission found that when inspectors were
told that they were trespassing and needed written permission from the operator to inspect, they
were effectively prevented from entering the mine.
In this case,_Markley Knock testified that the following exchange took place:
" What are you doing here again?" I said, "What are you
looking for?" He said, "Oh, nothing. Things in general," he said.
And I said, "How long you going to be here?" And he said,
"Probably all day·." I said, "Oh, no, you ain't." I said, "If you got
something you got to look at, you go ahead and do it and I'll give
you a half-hour and I want you to leave."
(Tr. 337.) Markley Knock did not testify that he did not mean what he said to the inspector, nor
did he claim to be surprised when the inspector left shortly thereafter. Consequently, I conclude
that, just as in the Calvin Black case, this was an effective refusal to permit Inspector Theilen to
continue his inspection in violation of section 103(a).

538

Citation No. 7812663
Inspector Theilen testified that after leaving the mine, he returned to his motel and called
his supervisor, Judy Peters, to tell her what had happened. Some time later, she called him back,
told him to issue a citation for denial of entry and to return to the mine and continue his
inspection. He returned to the mine about 2:30 p.m. and again met with Jeremy Knock. He
stated that Jeremy Knock then pres~nted him with a bill for $465.00 for "Down time 5 hrs.
3 men" and "Lost Production." (Govt. Ex. 7-A.) He further testified:
We was [sic] going to go out and I was going to look
through the electrical load center. And on the way out Jeremy and
I were proceeding out there and Mr. [Markley] Knock pulled up in
a truck and he came over and talked to me and he says, "Who is
this Judy Peters? She told my wife you have the authority to shut
us down." And he said, "You better not shut us down, because I
got a shotgun and I know how to use it.,
(Tr. 35.)
The inspector testified that after this confrontation he attempted to continue the
inspection, but he started developing pressure in his chest. He stated that after leaving the mine
site, he stopped by the side of the road and took a nitroglycerin pill. After that he felt all right
and returned to his motel. He was instructed not to try to continue the inspection, but to return
home and have his heart checked out.
As a result of this second confrontation, the inspector issued Citation No. 7812663
alleging a second violation of section 103(a) of the Act because:
Upon return to mine for continuation of inspection after
denial of entry at 08:45 [sic], the mine operator presented inspector
with a bill for down time and lost production. He also informed
inspector that ifM.S.H.A. tried to shut his mine down, that he had
a Shotgun and knew how to use it. The mine operator had already
been informed by the District Office of section I03(a) ofthe mine
act. The Inspector tried to finish the inspection. Due to the
continued intimidation and harassment impeding the inspection,
the Inspector discontinued this inspection. Inspector issued
completed citations to Foreman and left site.
(Govt. Ex. 24.)

539

Markley Kpock did not deny telling the inspector thaf he had a shotgun and knew how to
use it. Nor did he claim that he was joking, as one witness tried to insinuate, when he said it. He
did contend, however, that he made the statement at the time of the first confrontation, denying
that there was a second one, and he stated that he did not have a shotgun with him and had no
intention of carrying out the threat.
I find the inspector' s version of the facts to be the most believable. His version is
corroborated by the dates and times on the citations and by his notes made that same day. On the
other hand, Markley Knock's memory was questionable. He thought that the inspection had
already gone on for 4 days when the confrontation took place, although Inspector Theilen was
only there a total of 2 days. In addition, Markley Knock, although admitting that he had prepared
a bill for lost work and production to be given to the inspector, could not remember when he had
done so and when it was given to the inspector.2 Even more significantly, the Respondent never
called Jeremy Knock as a witness, even though he was present during the confrontations. 3
Accordingly, I conclude that these threats were part of a continuing harassment of the
inspector and were in violation of section I 03(a) of the Act. I will affinn the citation.

Citation No. 7812230
Inspectors Owen and Davis returned to the mine on May 27, 1997, to complete the
inspection begun by Inspector Theilen. That afternoon, Inspector Owen served Citation
No. 7812663 on the operator. They conducted their own inspection on May 28.
Inspector Owen issued Citation No. 7812230 for a violation of section 56.14107 of the
Regulations, 30 C.F.R. § 56.14107. It alleged that: "A guard was not provided to prevent
persons from contacting the rotating sheaves and pinch point hazards of the v-belt drive, on the
wash screen. This hazard was accessible due to a buildup of spillage from the feed conveyor,
which allowed· access to the work deck along this side of the screen. Persons do not nonnally
travel in the plant area during operations." (Govt. Ex. 25.)

In other testimony at the. hearing, and in his notes, the inspector stated that Markley
Knock asked who the "hell" was Judy Peters and added the words "by God" to his statement
about the shotgun. Markley Knock vehemently denied that he would he would say "such stuff."
However, on the very next page of the transcript he testified that "we'd try our damndest to
correct it." (Tr. 346.) It strains credulity to believe that someone would be offended to be
accused of using the words "hell" and "by God" and yet would casually use a similar word,
"damndest," while testifying in a court proceeding.
2

3

He was working in Waverly, Iowa, at the time ofthe hearing, which I judicially note
was no more than 20 miles from the hearing site.

540

Section 56.·14107 states: ''(a) Moving machine parts shall be guarded to protect persons
from contacting gears, sprockets, chains, drive, head, tail, and ~eup pulleys, flywheels,
coupling, shafts, fan blades; and similar moving parts that can cause injury. (b) Guards shall not
be required where the exposed moving parts are at least seven feet away from walking or
working surfaces."
The inspector testified that the only reason he believed that a violation had occurred in
this case was that spillage from the feed conveyor made it possible to climb up onto the work
deck. Absent the spillage, he opined that the belt drive came within section (b) of the regulation.
The problem with this theory fs that· even with the spillage present, this was not a walking or
working surface. As the inspector noted in the citation, people did not normally travel in that
area during operations.
Therefore, I conclude that the spillage did not convert what was not normally a walking
or working area into one. Accordingly, I conclude that section 56.14107 was not violated in this
instance and will vacate the citation.
Citation No. 781223/
This citation also alleges a violation of section 56.14107 because: ''Guarding was not
provided to prevent persons from contacting the rotating sheaves and pinch point hazards of the
v-belt drive, and the pinch point hazards of the head pulley on the raw material feed conveyor.
This hazard was accessible due to a buildup of spillage from the feed conveyor, which allowed
access to the work deck along this side of the screen. Persons do not normally travel in the plant
area during operations." (Govt. Ex. 26.)
This citation describes another guarding violation in the same area as the previous one.
For the reaso~s that I concluded that Citation No. 7812230 was not a violation, I conclude that
this citation is not a violation. Consequently, I will vacate the citation.
Citation No. 7812232
This citation alleges a violation of section 56.14132(b)(1), 30 C.F.R. § 56.14132(b)(l),
because: "An automatic reverse. alarm was not provided for the Ford F-800 dump truck being
utilized to haul raw material from the pit to the wash plant, and to stockpile finished material.
Very little reverse travel is required in the normal traffic pattern of this truck. During normal
operations all three employees are in mobile equipment, maOking foot traffic a limited
occurrence." (Govt. Ex. 27.)
Section 56.14132(b)(I) requires that: "When the operator has an obstructed view to the
rear, self-propelled mobile equipment shall have--(i) An automatic reverse-activated signal
~arm; (ii) A wheel-mounted bell alarm which sounds at least once for each three feet of reverse

541

movement; (iii) A discriminating backup alann that covers the area of obstructed view; or (iv)
An observer to signal when it is safe to back up."
The inspector testified that the truck had an obstructed view to the rear and that it did not
have a backup alarm. The company's witnesses did not dispute his testimony except to imply
that he may have cited a truck that was not in operation. They did not, however, specifically
state that he cited the wrong truck, and he specifically stated that he cited the truck that was in
operation, not the one that was being repaired.
I conclude that the company· violated section 56.14132 in this instance and will affirm the
citation.

Citation No. 7812233
This citation alleges a violation of section 56.14100(a), 30 C.F.R. § 56.14100(a), because:
"The operator of the Ford F-8000 dump truck did not conduct a proper pre-operational inspection
of his vehicle, as indicated by the fact that no record of the lack of an operational automatic
reverse alarm was available. This highway licensed vehicle was put into service to replace the
regular stockpile truck which was out of service for repairs. The regular stockpile truck was
provided with a back up alann." (Govt. Ex. 28.) Section 56.14100(a) requires that: "Selfpropelled mobile equipment to be used during a shift shall be in~pected by the equipment
operator before being placed in operation on that shift."
The inspector testified that "when I found the truck did not have an operational automatic
backup alarm, I asked the driver if he checked his truck over, if he had done his preoperational
check as required by MSHA. And he had no concept of what I was talking about." (Tr. 114.)
When asked about the company's policy on pre-operational inspections, Mike Knock stated:
I tell the employees, the truck drivers, that they have to
grease it, grease their driveline once a day. The other stuff, the
steering and stuff, has to be greased once a week. They have to
check their oil every day, make sure their rear end has got grease in
them and their transmission. And they do that on a weekly basis.
But they more or less-- the truck driver, he drives that truck every
day. Just about by driving he can tell whether there's something
wrong with it or not and then he'll fix it.

(Tr. 295.)
Obviously, the truck driver was not the only employee of the operator who had no
conception of the requirements of section 56.14100(a). Accordingly, I conclude that the
company violated that regulation and will affirm the citation.

542

Citation No. 7812235
This citation alleges a violation of section 56.18006,30 C.F.R. § 56.18006, in that: "New
employees at this mine were not indoctrinated in safety rules and safe work practices. This
condition was indicated by the failure to recognize hazards, such as an unsafe walking surface at
bins (citation #7812661), inadequate berms on a haulage roadway (citation #7812662), failure to
conduct workplace ex~inations (citation #7812236), by both the new foreman, and the new
truck driver." (Govt. Ex. 29.) Section 56.18006 provides that "[n]ew employees shall be
indoctrinated in safety rules arid safe work procedures."
The evidence indicates that Jeremy Knock was a new foreman and that the truck driver
was also new. Since neither of them testified, it is unrebutted that they did not have the first id.::a
what the rules required. In response to a question about what training Mike Knock had given to
his son, Jeremy, he stated:
He was just instructed that safety came first. Always shut
down the plant when they worked on it. In fact, in that little shed
that sits underneath the electrical poles there's a main switch in
there. Any time we work on that plant, that main switch is pulled
and that door is closed so that there's no way that that plant can
start up on its own, because the main power is pulled. And I
always told him to make sure you do that, and they always did.
(Tr. 296-97.) Clearly, they had not been given any training in safety rules and safe work
procedures. Consequently, I conclude that the operator violated section 56.18006. ·
The .inspector found this violation to be "significant and substantial." A "significant and
substantial" (S&S) violation is described in Section 104(d)(l) ofthe 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." A violation is properly designated S&S "if, based upon the
particular facts surrounding that violation, there e~sts a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981 ).
In Mathies Coal Co., 6 FMSHRC l, 3-4 (January 1984), the Commission explained:
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
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

543

an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.

See also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary, 861 F.id 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015,2021
(December 1987) (approving Mathies criteria).
In United States Steel Mining-Co., 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 subs~tial. US. Steel Mining Company,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in terms of"continued nonnal mining operations." U.S. Steel
Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular
violation is significant and substantial must be based on the particular facts surrounding the
violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 1007 (December 1987).
The inspector testified that he found that this violation would be reasonably likely to
contribute to a serious injury
[B]ecause historically people without knowledge of basic safety
work practices place themselves and others in dangerous positions
and situations out of ignorance. They simply by being unaware of
things end up placing themselves in places that result in serious
accidents. Several of the situations which were present were likely
to have resulted in fatal accidents and were so rated in their
citation, so a rating of fatal and reasonably likely.
(Tr. 120.) In addition, the Secretary presented MSHA Accident Investigation Reports of fatal
injuries that had occurred because employees had not been indoctrinated in safety rules and safe
work procedures. (Govt. Exs. 13 & 14.)
Based on this evidence, I conclude that the violation was "significant and substantial."

544

Citation No. 781223'6

This citation alleges a violation of section 56.18002(a), 30 C.F.R. § 56.18002(a), because:
"An inspection of all working places was not conducted daily at this single shift operation, for

conditions which could adversely affect the health and safety of the miners. This new foreman
was not aware of this requirement. No records of examinations were available at this mine site."
Section 56.18002(a) requires, in pertinent part, that: "A competent person designated by the
operator shall examine each working place at least once each shift for conditions which may
adversely affect safety or health."
Inspector Owen testified that he asked Jeremy Knock who was conducting the workplace
inspection each day and that Jeremy indicated that he was unaware of the requirement for an
inspection or what it entailed. The inspector also related that there were no records available of
such inspections having been conducted. Therefore, I conclude that the operator violated section
56.18002(a) as alleged.
The inspector found this violation to be "significant and substantial." He testified that
there were a multitude of items found at the mine site, which an inspection should have
discovered, and which were reasonably likely to result in a serious injury. Based on this
evidence, I conclude that the failure to conduct a work place inspection was "significant and
substantial."
Citation No. 7816252

Inspector Jimmie Davis issued this citation alleging a violation of section 56.12028,
30 C.F .R. § 56.12028, because "[t]he mine operator could not provide an up to date and correct
record of the continuity and resistance test for the mine electrical system." (Govt. Ex. 31.)
Section 56.12028 provides that: "Continuity and resistance of grounding systems shall be tested
immediately· after installation, repair, and modification; and annually thereafter. A record of the
resistance measured during the most recent tests shall be made available on a request by the
Secretary or his duly authorized representative."
When the inspector asked Jeremy Knock whether such testing had been done, Jeremy did
not know. Nor could he produ~e a record of when it had last been done. Clayton Kampman of
Kampman Electric was called and came to the mine site and performed the tests while the
inspector was present. No defects were found.
Mr. Kampman testified at the hearing that he had no record of when he had previously
performed continuity and resistance testing for the grounding system, but believed that he
usually did it at the spring start-up. The spring start-up is in March or April.
Mike Knock testified that the testing had been done in June 1996 and that the results were
posted on the bulletin board. I give no weight to this testimony. If such testing had been

545

performed in June -I 996 and it was posted on the bulletin board, then I find it hard to believe that
Jeremy Knock, the inspectors and Mr. Kampman could have missed it. Further, this docwnent,
if there is such a document, was in the control of the operator and no plausible explanation was
given for its not being offered at the hearing. In addition, it is at odds with Mr. Kampman's
recollection of when he normally performed the tests. Certainly, it makes a lot more sense to
conduct the tests at the spring start-up than 3 months after work has resumed. Finally, the
regulation requires that the record be shown to the Secretary's representative on request and there
is no evidence that this has ever been done.
Accordingly, I conclude that the operator violated section 56.12028 and will affirm· the
citation.

Citation No. 7816253
This citation alleges a violation of section 56.12004, 30 C.F.R. § 56.12004, because:
The electrical conductors, for the three phase, 480 volt
20 H.P. crusher motor, was not of sufficient size and current
carrying capacity. The conductor was an 14/4 A WG S.O. cord.
This size of cord is rated for 11 amps, maximum. The 20 H.P.
motor draws 29 amps according to the information plate located on
the motor. Continued use of the small cord could break down the
insulation and this could create a fire or shock hazard from the ov~r
heated cord. This could result into [sic] a fatality to employees in
the area. Three employees normally work at this operation.
(Govt. Ex. 32.) Section 56.12004 requires, in pertinent part, that: "Electrical conductors shall be
of a sufficient ~ize and current-carrying capacity to ensure that a rise in temperature resulting
from normal operations will not damage the insulating materials."
The Respondent does not dispute the facts of the allegation, but defends on the grounds
that the cord has been on the motor ever since the operator has owned the mine, that the crusher
motor normally does not run at top speed, and that the company has never been cited before for
this specific violation. None of these invalidate the citation; accordingly, I will affirm it.

Citation No. 7816254
This citation alleges a violation of section 56.12004 since: "The electrical cord, on the
1 I 0 volt portable air compressor located in the shop, was found to be in an unsafe condition. The
mechanical protection on the cord was cracked and this exposed the inner conductors. With the
mechanical protection damaged the current carrying conductors eould be damaged and this could
expose employees to shock hazards which could be fataL The air compressor is used as needed."

546

(Govt. Ex~ 33.) Section 56.12004 requires, in pertinent part, that: "Electrical conductors
exposed to mechanical damage shall be protected."
The operator does not dispute the facts of this citation, but asserts that the inner wires
were still insulated and that there is no water in the shop area. While these claims may be
relevant to whether the violation is S&S, which has not been alleged, they have no bearing on
whether the violation occurred. Therefore, I will affirm the citation.

Citation No. 7816255
This citation alleges a violation of section 56.12025, 30 C.F.R. § 56.12025, inasmuch as:
"The portable 110 volt high speed grinder, located in the shop, was not grounded. The #16
electrical cord had a two·prong male plug on it. With this type of plug the grinder could not be
grounded. If used in this condition and an electrical fault occurred it would expose the employee
to a shock hazard. With the case of this grinder being metal this could be fatal. The grinder is
used as needed." (Govt. Ex. 34.) Section 56.12025 provides, in pertinent part, that: "All metal
enclosing or encasing electrical circuits shall be grounded or provided with equivalent
protection."
The company' s defense to this citation is that the grinder did not work. The inspector
testified that if he had been told at the time that the grinder did not work, and that had been
verified, then he would not have issued the citation. The grinder was found on a shelf with
nothing about it to indicate that it would not operate. No one told the inspector that the grinder
did not work. There is no way now to verify whether it did or did not work at the time. Since
nothing was said and the grinder appeared to b~ operable, I will affirm the citation.

Citation No. 7816256
Finally, this citation alleges a violation of section 56.14201 (b), 30 C.F .R. § 56.14201 (b),
because:
The feed conveyor, located under the bin, was not provided
with a visible or audible warning device. The entire length of this
conveyor could ngt be seen from the starting switch. If someone
was near the conveyor, and it was started without a warning, he
could be pulled into the moving conveyor, and this could result
into (sic] an [sic] fatality. The plant normally operates eight hours
per day five days per week with three employees.
(Govt. Ex. 35.) Section 56.14201(b) requires, in pertinent part, that: "When the entire length of
the conveyor is not visible from the starting switch, a system which provides visible or audible
warning shall be installed and operated to warn persons that the conveyor will be started."

547

The company does not dispute that the entire length of the conveyor could not be seen
from the starting switch. The citation was terminated after the inspector learned that the
company had a pre-startup procedure in which the plant operator visually checks to see where the
other two plant employees are before starting the equipment. The company avers that since this
has always been the policy, the citation should not have been issued.
This argument fails for two reasons. First, no one bothered to tell the inspector what the
policy was when the cit~tion was issued. 4 Second, the regulation does not provide for a visual
check, but requires a visual or audible warning. The inspector, as he admitted at the hearing,
should not have terminated the citafion for the reason he did. Accordingly, I will affirm the
citation.
Civil Penalty Assessment
The Secretary has proposed penalties of $2,139.00 for the 12 citations I have affirmed.
However, it is the judge's independent responsibility to determine the appropriate amount of
penalty in accordance with the six penalty criteria set out in section II O(i) of the Act.
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1 147, 1151 (71h Cir. 1984); Wallace Brothers, Inc.,
18 FMSHRC 481, 483-84 (April 1996).
In connection with the penalty criteria, the parties have stipulated that the proposed
penalties will not affect the Respondent's ability to continue in business; that the operator
demonstrated good faith in abating all ofthe violations, except Citation Nos. 4421680 and
7812663; that the Respondent is a very small mine operator with fewer than 5,000 hours worked
during 1997; and that during the 24-months preceding the inspection, the operator had been
inspected for a total of three inspection days and was not cited for any violations. (Jt. Ex. 1.) All
of the citations, except Citation Nos. 4421680 and 7812663, involve technical non-serious
violations of tpe regulations for which the level of negligence was no more than moderate. For
those violations, I agree with the Secretary's proposal of minimal civil penalties.
Citation Nos. 4421680 and 7812663 are much more serious violations. The Secretary's
right to inspect mines without obstruction or interference goes to the heart of the Mine Act. It is
hard enough to conduct an inspection without having put up with deliberate obstruction from the
operator. As the Commission stated in Calvin Black, at 1I57, "MSHA inspectors are not
required to force entry or to subject themselves to possible confrontation or physical harm in
order to inspect." While I agree that a penalty of$500.00 is appropriate for the first violation, I
find that $1 ,000.00 is too low for the second one and assess a penalty of $2,000.00.

4

I find that the company's failure to call Jeremy Knock as a witness in this case
significantly undercuts its defenses on most of the citations because he was the only company
representative present when the citations were issued. The other company witnesses can only
speculate as to what happened.

548

Threatening an inspector with a shotgun is extremely serious. The operator's claim that
he did not have a shotgun and did not intend to carry out the threat does not lessen the
seriousness of the violation. The inspector did not know that the operator did not have a shotgun,
in his truck or elsewhere, and he did not know that Mr. Knock did not intend to carry the threat
out. Inspector Theilen took the threat seriously enough that he began having chest pains.
Therefore, I find this violation, which was intentional, to be of the highest gravity. It is only the
size of the company and the mine, and the fact that the Respondent has a good history of prior
violations, that keep the penalty from being higher than it is.
The penalty for each citation is as follows:
Citation No.

Penalty

7812661
7812662
4421680
7812663
7812230
7812231
7812232
7812233
7812335
7812236
7816252
7816253
7816254
7816255
7816256

Vacated
$ 50.00
$ 500.00
$2,000.00
Vacated
Vacated
$ 50.00
$ 50.00
$ 111.00
$ 128.00
$ 50.00
$ 50.00
$
50.00
$ 50.00
$
50.00
$3,139.00

Total

ORDER
Accordingly, Citation Nos. 7812661, 7812230 and 7812231 are VACATED, Citation
1\Jos. 7812662,4421680,7812663,7812232,7812233,7812235,7812236,7816256,7816253,
7816254,7816255 and 7816256 are AFFIRMED and Knock's Building Supplies is ORDERED
TO PAY a civil penalty of $3,139.00 within 30 days of the date of this decision. On receipt of
payment, this case is DISMISSED.

1ri!~

Administrative Law Judge

549

Distribution:
Edward Falkowski, Esq., Office ofthe Solicitor, U.S. Department ofLabor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Gary Papenheim, Esq., P.O. Box P, Parkersburg, lA 50665 (Certified Mail)

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550

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 81998
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 95-552
A.C. No. 42-01280-03623
White Oak Mine No. 2

WHITE OAK MINING AND
CONSTRUCTION, INC.,
Respondent
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEST 98-63
A.C. No. 42-01280-03678 A

VAL J. LYNCH, & SHANE HANSEN,
Employed by WHITE OAK MINING AND
CONSTRUCTION, INC.,
Respondent

Docket No. WEST 98-114
A.C. No. 42-01280-03680-A
White Oak Mine No. 2

ORDER DENYING MOTIONS TO DISMISS
These cases are before me pursuant to sections 105(a) and 110(c) ofthe Federal Mine
Safety and Health Act of 1977,30 U.S.C. §§ 815(a) and 820(c). Respondents Lynch and Hansen
have moved to dismiss the cases against them on the grounds that there was an unreasonable
delay between the time the underlying ord_ers in these cases were issued to the operator and the
time they were notified that the Secretary was assessing penalties against them under section
llO(c). The Secretary opposes the motion. For the reasons set forth below, the motion is denied.
The following is the chronology of events in these cases:
1. March 27, 1995, Order No. 34 15856 issued to White Oak.
2. March 30, 1995, Order Nos. 3415858 and 34 15859 issued to
White Oak.
3. March 31, 1995, Order No. 3415825 issued to White Oak.

551

4. June 13, 1995, a section llO(c) special investigation involving
the facts in the above orders assigned to MSHA Special
Investigator, Bruce Andrews.
5. June 15, 1995, Andrews receives case file.
6. August 24, 1995, Andrews begins working on investigation.
7. August'24, 1995- July 11, 1996, Andrews conducts
investigation, including interviewing 17 miners and inspectors.
a. Lynch interviewed September 19, 1995.
b. Hansen interviewed October 31, 1995.
8. March 21, 1996, initial case file received by MSHA Technical
Compliance and Investigative Division (TCID) in Arlington, VA,
headquarters. Respondents notified of right to request conferences
on the allegations.
9. August 6, 1996, conferences held between MSHA and Respondents.
10. March 13, 1997, case file received by TCID, with additional
investigative material obtained as the result of further investigation
conducted, in part, because of information received at the
conferences. TCID reviewed the file and then sent it with
recommendations to the Office of the Solicitor for legal review.
11. August 14, 1997, TCID sent request to MSHA Office of

Assessments for civil penalty assessments against individual
agents.
12. November 24, 1997, proposed assessments mailed to Hansen
and Lynch.
13. December 12, 1997, Lynch advises MSHA he wishes to
contest the proposed assessment.
14. January 5, 1998, Hansen advises MSHA he wishes to contest
the proposed assessment.
15. January 9, 1998, Petition for Assessment of Civil Penalty filed
against Lynch.

552

16.· January 19, 1998, Petition for Assessment of Civil Penalty
filed against Hansen.
The Respondents base their motion on Doyal Morgan eta/, 20 FMSHRC 38 (Chief Judge
Merlin, January 1998). In that case, Judge Merlin held that: "Because the record indicates no
difficulties in either investigation or evaluation and because no acceptable reason has been given
to explain the delay, I find that adequate cause does not exist to justify the 22 months MSHA and
the Office of the Solicitor took to complete action and issue the notices of proposed
assessments." ld. at 42. Accordingly, he dismissed the llO(c) proceedings against the
Respondents. However, this decision, while instructive, has no precedential value under the
Commission's Rules, 29 C.F.R. § 2700.72, and is distinguishable from the instant cases on its
facts. In these cases, the Secretary has explained the delay.
There are no Commission cases dealing with the Secretary's delay in notifying
individuals of proposed penalties in 11 0(c) proceedings. However, in cases involving
notification of the operator under section 105(a), the Corrunission has held that "in cases of delay
in the Secretary's notification of proposed penalties, we examine the same factors that we
consider in the closely related context of the Secretary's delay in filing his penalty proposal with
the Commission: the reason for the delay and whether the delay prejudiced the operator." Steel
Branch Mining, 18 FMSHRC 6, 14 (January 1996).
It is apparent in examining the chronology set out above that, while the case is far from a
model of efficiency, the Secretary was proceeding with due diligence. For instance, Bruce
Andrews was the only special investigator in the Price, Utah, area when he was assigned the file
on June 15, 1995, and he was working on several section 105(c), 30 U.S.C. § 815(c),
investigations, which because of statutory time constraints take precedence over all other special
investigations. Therefore, his delay, until August 24, 1995, in begirming the investigation is
understandable. In addition, this case was not the only one he was working on during the period
from August 1995 to March 1997. He also worked on two other 110(c) investigations and five
105(c) investigations throughout that period.

In fact, while it is not the function 'Of the Commission to tell the Secretary how to conduct
her investigations, or to second guess the investigation every step of the way, it is apparent that
the only period of time in this case where the delay might be questionable was between the
conferences and the submission of the final report to TCID. Even there, the delay was not so
egregious as to require the harsh remedy of dismissal. This is particularly true when the
admonition of the key Senate Committee that drafted the Act that "the Committee does not
expect that the failure to propose a penalty with promptness shall vitiate any proposed penalty
proceeding" is kept in mind. S. Rep. No. 181 , 95th Cong., 151 Sess. 34 ( 1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History ofthe Federal Mine Safoty and Health Act of 1977, at 622 (1978).

553

Viewing the period of a time between the first citation and the proposal of penalties as a
whole, I conclude.that the Secretary has adequately explained the delay involved. I agree with
Chief Judge Merlin, when he stated in a similar case that:
[I)t must be borne in mind that both the investigation and the
various levels of internal review were necessary for a proper
evaluation of agent liability and a knowing violation. The time
used to evaluate the case could reasonably be viewed as affording
some assurance that resources of both the individual and the
govenunent would not be wasted by the bringing of an unworthy
case.
James Lee Hancock, 17 FMSHRC 1671, 1674 (Chief Judge Merlin, September 1995).
Having found that any delay in the cases has been adequately explained, the next issue is
whether the Respondents have been prejudiced. The Respondents argue that Keith W. Smith "is
unable to testify due to injuries sustained in an automobile accident earlier this year." They also
assert that they have been prejudiced "by the loss of potential witnesses, (their] own fading
memory, the fading memories of potential witnesses and loss or destruction of evidence." I find
that the Respondents have not demonstrated prejudice in these cases.
Turning first to the specific allegation of the loss of testimony of Smith, I conclude that
his loss has not been shown. No offer has been provided as to what he is expected to testify. No
explanation has been given as to how his injuries would prevent him from testifying.
Furthermore, nothing has been presented to show how long he may be precluded, if he is
precluded, from testifying. This is particularly significant in view of the fact that no hearing has
yet been scheduled. Finally, the Respondents have not shown that Smith's testimony, whatever
it is, is the only source of the evidence they wish to present.
The allegations that memories fade, witnesses become unavailable and evidence may be
lost or destroyed do not demonstrate actual prejudice. The same allegations, which are
inherently true, could be made in any case. They are not, however, a basis for dismissal unless
they have actually happened and are determined to have a significant effect on the presentation of
the case. The Respondents have not even alleged that any of these have occurred, let alone that
they will result in an inability to. defend the case.
In conclusion, I find that the Secretary, having adequately explained the delays in the
case, notified the Respondents of the proposed civil penalties within a reasonable time and that
the Respondents have not shown that they have incurred any actual prejudice as a result of the
delays. Accordingly, the Motions to Dismiss are DENIED

~1!~

Administrative Law Judge
(703) 756-6213

554

Distribution:

Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway,
Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Denise A. Dragoo, Esq., Lisa R. Petersen, Esq., VanCott, Bagley, Cornwall & McCarthy, P.C.,
50 South Main Street, Suite 1600, P.O. Box 45340, Salt Lake City, UT 84145-0340
(Certified Mail)
·
William K. Doran, Esq., Heenan Althen & Roles, 1110 Vermont Avenue, N.W., Suite 400,
Washington, DC 20005-3593 (Certified Mail)

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555

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 81998
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 98-64
A.C. No. 42-01280-03681 A
White Oak Mine No. 2

RANDY HOWELL, Employed by
WHITE OAK MINING AND
CONSTRUCTION, INC.,
Respondent

ORDER DENYING MOTION TO DISMISS
This case is before me pursuant to sections 105(a) and llO(c) ofthe Federal Mine Safety
and Health Act of 1977,30 U.S.C. §§ 815(a) and 820(c). Respondent Howell has moved to
dismiss the case against him on the grounds that there was an unreasonable delay between the
time the underlying orders in the case were issued to the operator and the time he was notified
that the Secretary was assessing penalties against him under section llO(c). The Secretary
opposes the motion. For the reasons set forth below, the motion is denied
The following is the chronology of events in this case:
I. May 23, 1.995, Order Nos. 3855382 and 3855384 issued to
White Oak Mining & Construction, Inc.
2. June 13, 1995, a section 11 0(c) special investigation involving
the facts in the above orders assigned to MSHA Special
Investigator, Bruce Andrews.
3. June 15, 1995, Andrews receives case file.
4. August 24, 1995, Andrews begins working on investigation.
5. August 24, 1995- July 11, 1996, Andrews conducts
investigation, including interviewing 17 miners and inspectors.
a. Howell interviewed September 20, 1995.

556

6. March 21, 1996, initial case file received by MSHA Teclmical
Compliance and Investigative Division (TCID) in Arlington, VA,
headquarters. Respondents notified of right to request conferences
on the allegations.
7. August 6, 1996, conference held between MSHA and Respondents.
8. March 13, 1997, case file received by TCID, with additional
investig~tive material obtained as the result of further investigation

conducted, in part, ~cause of information received at the
conference. TCID reviewed the file and then sent it with
recommendations to the Office of the Solicitor for legal review.
9. August 14, 1997, TCID sent request to MSHA Office of
Assessments for civil penalty assessments against individual
agents.
10. November 24, 1997, proposed assessment mailed to Howell.
11 . December I 2, 1997, Howell advises MSHA he wishes to
contest the proposed assessment.
12. January 9, 1998, Petition for Assessment of Civil Penalty filed
against Howell.
The Respondent bases his motion on Doyal Morgan eta!, 20 FMSHRC 38 (Chief Judge
Merlin, January 1998). In that case, Judge Merlin held that: "Because the record indicates no
difficulties in either investigation or evaluation and because no acceptable reason has been given
to explain the delay, I find that adequate cause does not exist to justify the 22 months MSHA and
the Office of the Solicitor took to complete action and issue the notices of proposed
assessments." !d. at 42. Accordingly, he dismissed the I IO(c) proceedings against the
Respondents. However, this decision, while instructive, has no precedential value under the
Commission's Rules, 29 C.F.R. § 2700.72., and is distinguishable from the instant case on its
facts. In this case, the Secretary has explained the delay.
There are no Commission cases dealing with the Secretary's delay in notifying
individuals of proposed penalties in 11 0(c) proceedings. However, in cases involving
notification of the operator under section 105(a), the Commission has held that "in cases of delay
in the Secretary's notification of proposed penalties, we examine the same factors that we
consider in the closely related context of the Secretary's delay in filing his penalty proposal with
the Commission: the reason for the delay and whether the delay prejudiced the operator." Steel
Branch Mining, 18 FMSHRC 6, 14 (January 1996).

557

It is app~ent in examining the chronology set out above that, while the case is far from a
model of efficiency, the Secretary was proceeding with due diligence. For instance, Bruce
Andrews was the only special investigator in the Price, Utah, area when he was assigned the file
on June 15, 1995, and he was working on several section 105(c), 30 U.S.C. § 815(c),
investigations, which because of statutory time constraints take precedence over all other special
investigations. Therefore, his delay, until August 24, 1995, in begiMing the investigation is
understandable. In addition, this case was not the only one he was working on duriDg the period
from August 1995 to March 1997. He also worked on two other 11 O(c) investigations and five
105(c) investigations throughout that period.
In fact, while it is not the function of the Commission to tell the Secretary how to conduct
her investigations, or to second guess the investigation every step of the way, it is apparent that
the only period oftime in this case where the delay rr.ight be questionable was between the
conference and the submission of the final report to TCID. Even there, the delay was not so
egregious as to require the harsh remedy of dismissal. This is particularly true when the
admonition of the key Senate Committee that drafted the Act that "the Committee does not
expect that the failure to propose a penalty with promptness shall vitiate any proposed penalty
proceeding" is kept in mind. S. Rep. No. 181 , 95th Cong., 1st Sess. 34 ( 1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 9YhCong., 2d Sess., Legislative
History ofthe Federal Mine Safety and Health Act of 1977, at 622 (1978).
Viewing the period of a time between the first citation and the proposal of penalties as a.
whole, I conclude that the Secretary has adequately explained the delay involved. I agree with
Chief Judge Merlin, when he stated in a similar case that:
[I]t must be borne in mind that both the investigation and the
various levels of internal review were necessary for a proper
evaluation of agent liability and a knowing violation. The time
used to evaluate the case could reasonably be viewed as affording
some assurance that resources of both the individual and the
government would.not be wasted by the bringing of an unworthy
case.

James Lee Hancock, 17 FMS~RC 1671, 1674 (Chief Judge Merlin, September 1995).
Having found that any delay in the cases has been adequately explained, the next issue is
whether the Respondent has been prejudiced. The Respondent asserts that he has been
prejudiced "by the loss of potential witnesses, his own fading memory, the fading memories of
potential witnesses and loss or destruction of evidence" and by the fact that he is no longer
employed by White Oak. I find that the Respondent has not demonstrated prejudice in this case.
The allegations that memories fade, witnesses become unavailable and evidence may be
lost or destroyed do not demonstrate actual prejudice. The same allegations, which are

558

inherently true, could be made in any case. They are not, however, a basis for dismissal unless
they have actually happened and are determined to have a significant effect on the presentation of
the case. The Respondent has not even alleged that any of these have occurred, let alone that
they will result in an inability to defend the case. Similarly, the Respondent has made no
showing how, if at all, his no longer being employed by White Oak actually prejudices him.
In conclusion, I find that the Secretary, having adequately explained the delays in the
case, notified the Respondent of the proposed civil penalty within a reasonable time and that the
Respondent has not sho\.vn that he has incurred any actual prejudice as a result of the delays.
Accordingly, the Motion to Di.smiss. are DENIED

'fr~~

Administrative Law Judge
(703) 756-6213

Distribution:
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, 4th Floor, Arlington, VA 22203 (Certified Mail)
Denise A. Dragoo, Esq., Mara A. Brown, Esq., P.O. Box 45340, Salt Lake City, UT 84145-0340
(Certified Mail)

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~u.s. oo~ ~ omcE:t99s-m-92V':I4404

559

560