NOVEMBER 1994
COMMISSION DECISIONS AND ORDERS
11-01-94
11-07-94
11-21-94

Peabody Coal Company
Brown Brothers Sand Company
Sec. Labor for Clayton Nantz v .
Nally & Hamilton Enterprises

LAKE 93 - 23
SE
9 4 -21-M

Pg. 2199
Pg. 2205

KENT 92-259-D

Pg. 2208

PENN 93 - 449-M

Pg. 2231

WEST 93-336-DM
WEST 94-90-M
YORK 93-156-M
LAKE 94-229-D
CENT 94-14

Pg.
Pg.
Pg.
Pg.
Pg.

2232
2251
2257
2259
2260

SE
94-128-DM
YORK 92-117-M
CENT 94-96 - M
PENN 93-233
KENT 93 - 614
PENN 94-327
WEST 91-233
WEST 92-771-M
PENN 94-192-R
WEVA 94-119-D
CENT 94 - 35-M
PENN 92-849
KENT 94-320
PENN 94-587

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

2275
2290
2292
2293
2308
2309
2310
2318
2320
2326
2329
2331
2345
2359

WEST 93-615
PENN 94-104

Pg. 236 1
Pg. 2367

WEVA 93-394-D

Pg. 2371

ADMINISTRATIVE LAW JUDGE DECISIONS
11-01-94
11-02-94
11-03-94
11-04-94
11-07-94
11-08-94
11-08-94
11-08- 94
11 - 09-94
11-15-94
11-17-94
11-18-94
11-18-94
11-21-94
11-25-94
11-25-94
11-28- 94
11-28-94
11-29-94
11-29-94

Walter Kuhl and Son
Sec. Labor for James Hyles, etc .
v. All American Asphalt
Friend & Rikalo, Incorporated
North American Slate Inc.
Derald Wilson v. Freeman United Coal
Pittsburg & Midway Coal Mining Co.
Raymond Stiefel, III v. Lang Sand
and Gravel, Inc.
Buffalo Crushed Stone
Monarch \Cement Company
Ambrosia Coal & Construction Co.
Manalapan Mining Company
Redstone Mining Incorporated
Bridger Coal Company
Navajo Concrete Incorporated
Rox Coal , Incorporated
Phillip R. Elswick v . Copperas Coal
Chrisman Ready-Mix, Inc.
Power Operating Company
ABM Coal Company, Inc.
Cyprus Emerald Resources Cor p.

ADMINI STRATI VE LAW JUDGE ORDERS
11-04-94
11-28 - 94
11-30- 94

Art Beavers Construction Co.
Buck Mountain Coal Company
Sec. Labor for Cletis Wamsley etc.
v. Mutual Mining, Inc.

i

NOYEMBER

1 9 94

Reyiew was granted in the following cases during the rnonth of Nove!Dber:

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. SE 94-21-M.
(Judge Hodgdon, September 28, 1994)
Secretary of Labor, MSHA v. Fluor Daniel Incorporated, Docket No.
SE 94-92-M. (Judge Feldman, October 5, 1994)

Review was denied in the following case <luring Noye!Dber:

Secretary of Labor, MSHA v. A-Rock Incorporated and Elmer James Nicholson,
employed by A-Rock, Docket No. WEST 94-162 - M, etc .
(Judge Weisberger,
Sept ember 27, 1994)

ii

COMMISSION DECISIONS AND ORDERS

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

November 1 . 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 93-23

V.

PEABODY COAL COMPANY

BEFORE: Jordan, Chairman; Doyle and Holen, Commissioners 1

DECISION
BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 80 1 et seq. (1988). The issue is whether Peabody Coal Company ("Peabody")
violated 30 C.F.R. § 75.316 (1991) by collecting a dust sample at a location other than that
specified in its approved ventilation and dust control plan ("ventilation plan").2 Administrative

1

Commissioner Marks assumed office after this case had been considered at a decisional
meeting and a decision drafted. In light of these circumstances, Commissioner Marks elects not
to participate in this case.
2 30 C.F.R. § 75.316, substantially identical to 30 U.S.C. § 863(0), provided as follows:

A ventilation system and methane and dust control plan and revisions
thereof suitable to the conditions and the mining system of the coal mine and
approved by the Secretary shall be adopted by the operator and set out in printed
form on or before June 28, 1970. The plan shall show the type and location of
mechanical ventilation equipment installed and operated in the mine, such
additional or improved equipment as the Secretary may require, the quantity and
velocity of air reaching each working face, and such other information as the
Secretary may require. Such plan shall be reviewed by the operator and the
Secretary at least every 6 months.
On November 16, 1992, 30 C.F.R. § 75.316 was superseded by 30C.F.R.§15.370,
which imposes similar requirements.

2199

Law Judge Gary Melick concluded that Peabody violated its ventilation plan by placing the
pump at an incorrect location. 15 FMSHRC 1652 (August 1993) (ALJ). The Commission
granted Peabody's petition for discretionary review, which challenged the judge's determination.
For the reasons that follow, we affirm the judge's decision.
I.

Factual and Procedural Background
On September 21, 1992, Ronald Zara, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA"), inspected Peabody's Marissa Mine, an
underground coal mine in Randolph County, Illinois. In the Main Belt East entry, he noticed a
dust collection pump located on the east side of the 1st North Submain conveyor belt, upwind
from the transfer point where that belt discharges coal onto the Main East belt.3
Under Peabody's ventilation plan, the sampling location for that area was downwind
from the dumping point for the North Submain head roller, on the south side of the Main East
belt, some 15 feet west of the transfer point. 15 FMSHRC at 1653, 1658; Jt. Stips. 3, 4, Ex. B, p.
5. The approved sampling location was clearly marked. 15 FMSHRC at 1654; Jt. Stip. 4. The
pump Zara observed was in a less dusty location than that required by the ventilation plan. ill
Zara issued a citation pursuant to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging
that Peabody was out of compliance with its plan because the pump was not in the approved
location.
The parties filed cross motions for summary decision. In granting the Secretary's motion,
the judge noted that 30 C.F.R. § 70.208(a) requires operators to take one valid dust sample from
each designated area in each bimonthly period.4 15 FMSHRC at 1653. He concluded that
Peabody violated its ventilation plan by sampling at a location other than the one designated by
the plan, with the intention of submitting that sample to meet the requirements of section
70.208(a). Id. at 1653-54. The judge also determined that the sampling did not qualify for the
exception set forth in 30 C.F.R. § 70.209(d) because Peabody had not previously identified it as

3

The parties stipulated to the facts, which are set forth at 15 FMSHRC at 1655-57.

4

Section 70.208(a) provides:

Each operator shall take one valid respirable dust sample from each
designated area on a production shift during each bimonthly period .... The
bimonthly periods are:
August I-September 30 ....

2200

intended for purposes other than those set forth in 30 C.F.R. Part 70, 71, or 90. 5 Id. The judge
rejected Peabody's argwnent that its plan would have been violated only if it.had actually
submitted a sample collected at the improper location. He concluded that the essence of ihe
violation was the placement of the dust sampling device at an improper location with the intent
to submit the resulting sample. Id. at 1654. The judge found that the incorrect placement was
unintentional and assessed a civil penalty of $100. Id.

II.
Disposition
Peabody contends that the Secretary has not alleged that it violated a specific provision of
the ventilation plan and asserts that the plan "does not prohibit sampling at incorrect locations."
PDR at 2-3. Noting that section 70.208(a) requires that a valid sample be taken in each
bimonthly period, and that the relevant period did not end until October 1, 1992, subsequent to
the citation, Peabody argues that collecting an invalid sample before the deadline for submission
cannot constitute a violation.
The Secretary responds that the judge's decision is supported by substantial evidence and
is legally correct. The Secretary points out that 30 C.F.R. § 70.208(e) obligates operators to
collect dust samples for designated areas at the locations set forth in their approved ventilation
plans. Peabody's plan specified the proper place for sampling and the sample was not being
collected there. The Secretary construes sections 70.208 and 70.209 to impose "two separate and
distinct" requirements, "'collecting' valid samples and 'transmitting' valid samples," and contends
that "the operator must comply with both requirements, not just with the latter." S. Br. at 8.
A fundamental purpose of a mine ventilation plan is to ensure that the operator collects
valid dust samples. Considering the plan provisions and regulations together, we conclude that
their plain terms impose location requirements for collecting designated area samples and that

5 Section 70.209(d) provides:

All respirable dust samples collected by the operator shall be considered
taken to fulfill the sampling requirements of part 70, 71or90 of this title, unless
the sample has been identified in writing by the operator to the District Manager,
prior to the intended sampling shift, as a sample to be used for purposes other than
required by part 70, 71, or 90 of this title.
The judge inadvertently cited 30 C.F.R. § 75.209(d), which refers to roof control, but correctly
quoted the language of section 70.2Q9(d).

2201

compliance with the ventilation plan is contingent upon sampling at the proper locations.6
Section 70.208(e) provides:
Designated area samples shall be collected at locations to
measure respirable dust generation sources in the active workings.
The approved mine ventilation plan contents required by
§ 75.37l(t) ... shall show the specific locations where designated
area samples will be collected ....
30 C.F.R. § 70.208(e). Section 75.37l(t) requires plans to specify "[t]he locations where samples
for 'designated areas' will be collected, including the specific location of each sampling
device ...." 30 C.F.R. § 75.37l(t). Under section 70.209(d), all respirable dust samples collected
by the operator are presumed to be taken to fulfill the sampling requirements of Part 70, 71 or 90
of the Secretary's regulations, unless, prior to the sampling shift and in writing, the operator has
identified the sample as one to be used for other purposes.
The sampling requirements in Peabody's plan mirror and implement the Secretary's
regulations. The plan includes a "Selection Sheet for Designated Areas," listing the designated
areas for dust sampling: the selection sheet sets forth for each area a precisely described
"Position of Sampling Instrument Within Designated Area." Jt. Stip. Ex. B, p. 5. The Main Belt
East area was one of the designated sampling areas and a specific position for the sampling
device was set forth.

It is undisputed that the pump observed by the inspector was ·collecting a sample in a
location other than. that designated in the plan. Likewise, it is undisputed that Peabody did not
inform MSHA prior to the shift that the sample was intended for purposes other than those
required by Part 70, 71 or 90. 15 FMSHRC at 1653-54; Jt. Stips. 8, 12. Peabody has conceded
that the cited pump was being used to collect a sample in the designated area for submission
pursuant to its bimonthly sampling obligations under section 70.208(a). 15 FMSHRC at 1653;
Jt. Stip. 12. We agree with the judge that, under the circumstances, Peabody's dust sampling was
in violation of its ventilation plan.
We reject Peabody's assertion that, based on the bimonthly time periods set forth in
section 70.208(a), its improper sampling was not a violation because it had nine days remaining
to take and submit a valid sample. PDR at 4. The essence of the violation was the improper

6

Once a ventilation plan is approved and adopted, its provisions are enforceable as
mandatory standards. UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989); Zeigler Coal Co. v.
Klewe, 536 F.2d 398, 409 (D.C. Cir. 1976); Freeman United Coal Mining Co., 11 FMSHRC
161, 164 (February 1989).

2202

location of the sampling device. As noted by the Secretary, the collection requirement, although
related to the transmittal requirement, is a distinct obligation.
Further, we agree with the Secretary that to accept Peabody's position would undercut
MSHA's effective enforcement of the ventilation program. Under Peabody's approach, an ·
MSHA inspector would be barred from issuing a citation when he discovers a dust collection
pump in operation at an inc9rrect location. Instead, MSHA would be required to determine, after
such sample had been submitted, that it had been collected at the wrong location.
Accordingly, we conclude that the judge's determination of violation is supported by
substantial evidence and is legally correct.
III.
Conclusion
For the forego~ng reasons, we affirm the judge's decision.

Arlene Holen, Commissioner

2203

Distribution

David R. Joest, Esq.
Peabody Coal Company
1951 Barrett Court
P.O. Box 1990
Henderson, KY 42420
Tana M. Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

2204

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

November 7, 19 94

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

CIVIL PENALTY PROCEEDING
Docket No. SE 94-21-M

v.

BROWN BROTHERS SAND COMPANY

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners
DIRECTION FOR REVIEW AND ORDER
BY: Jordan, Chairman; Doyle and Holen, Commissioners

The petition for discretionary review filed by Brown Brothers Sand Company ("Brown
Brothers") is granted on the issue of the method of payment of civil penalties. Briefing pursuant
to Commission Procedural Rule 75, 29 C.F.R. § 2700.75 (1993), is deemed unnecessary.
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act"), involves nine citations issued against Brown
Brothers by the Department of Labor's Mine Safety and Health Administration ("MSHA").
Administrative Law Judge T. Todd Hodgdon upheld eight of the citations and imposed civil
penalties on Brown Brothers, pursuant to section 1IO(i) of the Mine Act, 30 U.S.C. § 820(i). 16
FMSHRC 1996 (September 1994)(ALJ).
In his decision, the judge stated:
Brown Brothers Sand Company is ORDERED to pay, by single
check or money order for the entire amount, civil penalties in the
amount of$1,036.00 for these violations within 30 days of the date
of this decision.
16 FMSHRC at 2007. In a footnote to this order, the judge stated:

220 5

It appears that in a previous case heard by me [Brown Brothers
Sand Company, 16 FMSHRC 452 (February 1994)], the
Respondent paid the assessed penalty in loose coins. (Tr. 13-15.)
If, by such actions, Brown Brothers intended to demonstrate its
contempt for the Commission, as suggested by the Secretary, it is
advised that continued gestures of this nature may well reflect
adversely on any consideration of its good faith in future
appearances before the Commission.

Id. at 2007 n. 5.
Brown Brothers objects to the judge's requirement that it pay the penalty by single check
or money order. We find merit in that objection. The U.S. Code provides that currency and
~"are legal tender for all debts ... taxes, and dues." 31 U.S.C. § 5103 (1988). Neither the
Mine Act nor the Secretary's regulations make reference to the manner of payment of civil
penalties. See generally 30 U.S.C. § 820(j); 30 C.F.R. Part 100. The judge states no basis for
his order to require payment of the penalties "by single check or money order." Moreover, we
find no basis in the record, the Mine Act or the Secretary's regulations to conclude, as did the
judge, that payment of assessed penalties in "loose coins" should reflect adversely on
consideration of Brown Brothers' good faith in future appearances before the Commission.
Therefore, we vacate that portion of the judge's decision that requires payment of the
penalty "by single check or money order for the entire amount" and footnote 5, in its entirety.
We have considered the operator's other assignments of error and, in all other respects, the
judge's decision is affirmed ..

0.

#.A ~~ //

~~ommissi~

Arlene Holen, Commissioner

2206

Commissioner Marks, concurring in part and dissenting in part:
I agree with my colleagues that there is no basis in the record to support the
Administrative Law Judge's remarks in footnote 5 that "if, [by paying assessed penalties in loose
coins], Brown Brothers intended to demonstrate its contempt for the Commission, as suggested
by the Secretary, it is advised that continued gestures ohhis nature may well reflect adversely
on any consideration of its good faith in future appearances before the Commission." 16
FMSHRC 1996, 2007 (September 1994). While it may be accurate to characterize Brown
Brothers' past payment of assessed penalties in loose coin as a sign of "contempt for the
Commission" and the adverse decisions of its corps of administrative law judges, there is no
warrant for the proposition that such "contempt" would "reflect adversely on any consideration
of its good faith in future appearances before the Commission." Id. Consequently, I join with
my colleagues in vacating footnote 5.
However, I disagree with my colleagues' holding that the judge acted ultra vires in
specifying the method by which the operator was to P!i}:'.
assessed pen
. I
within the sound discretion of a judge to specify the
od of payin
assessed
Therefore, I would affirm the judge's decision i

Distribution

Steve Brown
Brown Brothers Sand Company
P.O. Box 82
Howard, GA 31039
Michael K. Hagan, Esq.
Office of the Solicitor
U.S. Department of Labor
1371 Peachtree St., N.E., Room 339
Atlanta, GA 30367
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041
2 207

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
November 21, 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of CLAYTON NANTZ
Docket No. KENT 92-259-D

v.

NALLY & HAMILTON
ENTERPRISES, INC.

BEFORE: Jordan, Chairman; Doyle, Holen and Marks, Commissioners

DECISION

BY: Doyle and Holen, Commissioners 1
In this discrimination proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"), Administrative Law Judge George
A. Koutras concluded that Nally & Hamilton Enterprises, Inc. ("NHE") constructively
discharged Clayton Nantz in violation of section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l), and
awarded Nantz backpay plus interest. 14 FMSHRC 1858 (November 1992)(ALJ) (liability); 15
FMSHRC 237 (February 1993)(ALJ)(damages). The Commission granted NHE's petition for
discretionary review, which challenged the judge's determination of discriminatory discharge and
his backpay award. The Commission also directefi. review, sua sponte, of the judge's deduction

1

All Commissioners agree on the disposition of issues except for the deduction of
unemployment compensation from the backpay award. Commissioners Doyle and Holen have
voted to affirm the judge's decision to deduct unemployment compensation; Chairman Jordan
and Commissioner Marks would reverse the judge on this issue. The effect of the tie vote is
to let stand the judge's ruling that unemployment compensation is deducted from the backpay
award. Pennsylvania Elec. Co., 12 FMSHRC 1562, 1563-65 (August 1990), aff'd on other
grounds, 969 F.2d 1501 (3d Cir. 1992).

2208

of unemployment compensation from Nantz's backpay award. For the reasons set forth below,
we affirm the judge's decision.

I.
Factual and Procedural Background
Nantz operated an enclosed-cab bulldozer at NHE's Gray's Ridge Job Mine, a surface coal
mine in Harlan, Kentucky, on the night shift. On or about April 3, 1991, a truck struck the
bulldozer Nantz customarily used, knocking out its back window. 14 FMSHRC at 1860, 1889.
As a result of the broken window, Nantz began experiencing problems with dust exposure. Id. at
1860. On a number of occasions, he complained to Foreman Henderson Farley and then to his
replacement, Foreman Wayne Fisher, that dust was choking him and causing health problems.
Id. at 1885. Both foremen assured Nantz that the window would be replaced. Id. at 1860-61.
Upon reporting to work on April 16, Nantz asked Fisher whether the window had been
replaced. 14 FMSHRC at 1861. When Fisher replied that it had not, Nantz asked if he could
perform other work to a-yoid the dust problem. Id. The foreman advised Nantz that he could
operate a loader for an hour or so but that he would then have to return to work on the bulldozer.
Id. Nantz told Fisher that he did not want to operate the equipment without the window, gave
him his phone number, and asked him to call when the window was replaced. IQ. Nantz
returned a day or two later to pick up his paycheck. Id. He again asked Fisher ifthe window had
been installed. When Fisher replied that it had not, Nantz said he was leaving and told Fisher to
call him when the window was replaced. Id.
Nantz filed a discrimination complaint with the Secretary of Labor on May 29, 1991. On
January 31, 1992, the Secretary filed a complaint on Nantz's behalf, pursuant to sec~ion 105(c)(2)
of the Act, 30 U.S.C. § 815(c)(2), alleging that Nantz had been discriminatorily discharged.
Before the judge, NHE moved to dismiss the complaint and the Secretary's proposed penalty on
the grounds that the Secretary had unduly delayed in filing. The judge denied the motion, ruling
that NHE had failed to establish that it had been prejudiced by the Secretary's delay. 14
FMSHRC at 1882.
The judge concluded that NHE had constrµctively discharged Nantz in violation of
section 105(c)(l). 14 FMSHRC at 1899. He found that Nantz's refusal to operate the bulldozer
on April 16 and April 17, and his refusal to operate a loader for a short period of time on April 16
(termed by the judge an "alternate work refusal"), were activities protected under the Mine Act.
Id. at 1893, 1897. He concluded that Nantz was exposed to intolerable, hazardous dust
conditions that made it difficult for him to see the trucks in the fill area and caused choking and
breathing problems. Id. at 1898. The judge determined that NHE's failure to repair the broken
window and its insistence that '!'J'antz operate the bulldozer amounted to constructive discharge.
Id. at 1899. The judge assessed a civil penalty of $1,000 against the operator. Id. at 1901.

2209

~

In awarding backpay, the judge deducted two weeks' pay because, after leaving NHE,
Nantz delayed two weeks.before seeking other work. 15 FMSHRC at 248-49. He also deducted
from Nantz's backpay an amount equal to the unemployment compensation he had received. Id.
at 249. The judge rejected NHE's contention that the backpay award should be reduced because
of the Secretary's delay in filing the complaint. Id. at 250. He also rejected NHE's assertion that
an offset should be made against backpay because of an alleged job offer extended to Nantz,
finding that the offer was not bona fide. l.4. The judge ordered Nantz's reinstatement and
awarded him $17,385 in backpay for the period from April 16, 1991 , through December 31,
1992, plus interest. Id. at 250-51.

IL
Disposition of Issues
A. Discriminatory Discharge
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 on behalfof Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev'd on other grounds filili
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may
rebut the prima facie case by showing either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity. Pasula, 2 FMSHRC at 2799-800.
If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it also was motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity alone. Id.; Robinette, 3 FMSHRC at
817-18; see also Eastern Assoc. Coal Cox:p. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987).
1. Constructive Discharge
A constructive discharge is proven when a miner engaged in protected activity shows that
an operator created or maintained conditions so intolerable that a reasonable miner would have
felt compelled to resign. See. e.g., Simpson v. FMSHRC, 842 F.2d 453, 461-63 (D.C. Cir.
1988). In essence, "[c]onstructive discharge doctrines simply extend liability to employers who
indirectly effect a discharge that would have been forbidden by statute if c,ione directly." l!L. at
461.
NHE argues that the judge erred in concluding that Nantz was constructively discharged,
contending that Nantz's work refusal was not protected and that Nantz was not faced with
intolerable work conditions. The Secretary responds that the judge properly found Nantz's
refusal to work to be activity protected under the Mine Act and that he properly concluded that

2210

Nantz had been discriminatorily discharged. 2
In analyzing whether Nantz was constructively discharged, we address whether Nantz's .
refusal to operate the bulldozer constituted protected activity under the Act and whether the dust
exposure was an intolerable condition, which, left unaddressed, compelled his resignation. These
issues are analyzed under the framework the Commission has applied when a miner alleges a
discriminatory discharge under section 105(c) of the Mine Act. See. e.g., Pasula, 2 FMSHRC at
2797-800; Robinette, 3 FMSHRC at 817-18.
a. Protected Activity
The Mine Act grants miners the right to complain of a safety or health danger or
violation, but does not expressly grant the right to refuse to work under such circumstances.
Nevertheless, the Commission and the courts have inferred a right to refuse to work in the face of
a perceived danger. See Secretary on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC 516,
519-2 1 (March1984), affd, 780 F.2d 1022 (6th Cir. 1985); Price v. Monterey Coal Co., 12
FMSHRC 1505, 1514 (August 1990)(citations omitted). A miner refusing work is not required
to prove that a hazard\actually existed. See Robinette, 3 FMSHRC at 812. In order to be
protected, work refusafs must be based upon the miner's "good faith, reasonable belief in a
hazardous condition." Id.; see also Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989).
The complaining miner has the burden of proving both the good faith and the reasonableness of
his belief that a hazard existed. Robinette, 3 FMSHRC at 807-12; Secretary on behalf of Bush v.
Union Carbide Corp., 5 FMSHRC 993, 997 (June 1983). A good faith belief "simply means
honest belief that a hazard exists." Robinette, 3 FMSHRC at 810. This requirement's purpose is
to "remove from the Act's protection work refusals involving frauds or other forms of deception."
Id.
NHE asserts that Nantz's refusal to operate the bulldozer was not protected because he
lacked a good faith, reasonable belief that a hazardous condition existed. Contrary to NHE's
contentions, substantial evidence supports the judge's determination that Nantz's work refusal
was made in good faith and was reasonable because the dust conditions caused by the broken
window were, in fact, hazardous. 14 FMSHRC at 1892-93. Nantz, whom the judge deemed a
credible witness, testified that, as a result of the dust in the cab, he choked, suffered from
headaches, and had difficulty seeing. M,. at 1888,J 898; Tr. 17. A "judge's credibility findings
... should not be overturned lightly." Quinland Coals. Inc., 9 FMSHRC 1614, 1618 (September
1987). Nantz's co-workers corroborated his testimony that he was exposed to extreme dust
levels. Tr. 116, 135; see also Tr. 155-56. They also testified that they heard Nantz complain

2

The Secretary argues that NHE actually discharged Nantz for his work refusals. S. Br.
at 6. The evidence may also support a finding that Nantz was discharged. See. e.~ .• Tr. 124:.
(Co-worker Harold Farley testified that Foreman Fisher had said he hated to let Nantz go
because he was a good worker.)

2211

several times to management that the dust was getting to him "bad" (Tr. 97, 101, 117-18, 131)
and one co-worker reported to Foreman Fisher that Nantz was suffering from dust exposure. Tr.
133.
NHE contends that an "objective" test should be applied to determine whether a good
faith, reasonable belief in a hazard exists. It asserts that Liggett Indus .. Inc. v. FMSHRC, 923
F.2d 150 (10th Cir. 1991), supports its contention that a miner's belief must be objectively
reasonable. In Liggett, the court held that, although a miner need not prove the actual existence
of a hazard, the lack of a hazard would bear on the reasonableness of a miner's belief that his
health was in danger. Id. at 152 (citation omitted). Liggett is consistent with Commission law
requiring a miner to show that his perception of a hazard was based on a good faith belief and
was reasonable under the circumstances. See Haro v. Magma Copper Co., 4 FMSHRC 1935,
1944 (November 1982); Secretary on behalf of Hogan v. Emerald Mines Corp., 8 FMSHRC
1066, 1072 (July 1986).
In support of its position that Nally's belief was not reasonable, NHE points to evidence
that others did not regard the dust exposure as hazardous. PDR at 3, 13, citing Tr. 198-99, 20102, 244-45, 294. NHE also argues that Nantz's failure to request a dust mask and his refusal to
use a clear plastic cover over the window show the unreasonableness and lack of good faith of
his work refusal. It asserts that a reasonable miner in Nantz's place would have taken advantage
of these and other self-help remedies if the dust level had been truly severe.
· The judge found that NHE did not require its personnel to use masks. 14 FMSHRC at
1891. Nantz testified that he was not aware that dust masks were available and that, in any
event, the dust exposure was too intense for a mask to be of assistance. Tr. 73-74. The judge's
factual determinations are amply supported in the record. 3
We also agree with the judge that NHE's evidence on the makeshift plastic covering
deserves little weight. 14 FMSHRC at 1890. The judge found that the plastic cover, which
Nantz testified would impair his vision (Tr. 70-71), was not routinely used as a preventive
measure against dust exposure. 14 FMSHRC at 1891. Foreman Fisher stated that a plastic cover
"would help," but conceded that it would not have prevented dust in the bulldozer. Tr. 265.
Superintendent Louis Hamilton stated only that, in the past, plastic had been placed on back
windows oflifts for protection and that he did not believe it decreased night visibility. 14
FMSHRC at 1891; Tr. 207. NHE's witnesses acknowledged that plastic covering was intended

3

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

2212

to help maintain wannth in the cab in winter. 14 FMSHRC at 1891. We perceive no reason to
overturn the judge's factual determinations on this issue.
An operator has an obligation to address a danger perceived by a miner who makes a
safety complaint. Secretazy on behalf of Pratt v. River Hurricane Coal Co., 5 FMSHRC 1529,
1534 (September 1983); Metric Constructors. Inc., 6 FMSHRC 226, 230 (February 1984), affd
sub nom. Brock v. Metric Constructors. Inc., 766 F.2d 469 (11th Cir. 1985). Once it is
determined that a miner has expressed a good faith, reasonable concern, the analysis shifts to an
evaluation of whether the operator has addressed the·miner's concern "in a way that his fears
reasonably should have been quelled." Gilbert, 866 F .2d at 1441 ; see also I:ll!sh, 5 FMSHRC at
997-99. The record does not support NHE's assertions that, even if Nantz had a good faith,
reasonable belief that the dust condition was hazardous, it acted reasonably to quell his fears,
thus rendering his continuing work refusal unreasonable. NHE asserts that the fill area ~as
watered to control dust and that the window was repaired within a reasonable period of time.
The record, however, supports the judge's finding that the operator's water trucks did not
adequately control the dust. 14 FMSHRC at 1891-92; Tr. 22-23, 70, 135-36. Moreover, the
judge found that approximately 13 or 14 days elapsed from the time the window was broken
until Nantz's work refusal, during which time NHE "failed to take timely actions to repair the
dozer or to take it out of service so that it could be repaired promptly." 14 FMSHRC at 1889,
1898. The record shows that the window was eventually repaired. in only three hours during a
normal shift. Id. at 1889; Tr. 147-48. We agree with the judge that NHE did not adequately
address Nantz's safety concerns.

We conclude, therefore, that Nantz reasonably and in good faith refused to operate the
bulldozer and that, in accordance with Commission precedent, his refusal qualified as protected
activity under the Act.
b. Intolerable Conditions
NHE argues that the dust conditions did not reach an intolerable level. The judge found
that the dust conditions were severe, causing vision difficulties, "and more significantly, ...
choking and breathing problems." 14 FMSHRC at 1898. This determination is supported by
Nantz's testimony and corroborated by his co-workers. We conclude that substantial evidence
supports the judge's finding that the dust, which ~aused breathing and visibility problems,
reached an intolerable level.
Accordingly, we affirm the judge's conclusion that NHE constructively discharged Nantz
by refusing to remedy the intolerable dust conditions to which he was subjected.

2213

2. Affirmative Defense
In affirmatively defending against Nantz's claim, NHE asserts that Nantz's refusal to
operate the loader was not protected activity and independently justified his termination. NHE
Br. at 9.
On April 16, when he was told that the window had not been repaired, Nantz offered to
do any work other than operate the bulldozer. Tr. 24-25, 101, 133-34, 138. Fisher offered Nantz
work on a loader for a short time but informed him that he would later have to return to the
bulldozer. Tr. 25, 138, 267. (The usual loader operator testified that he expected to relieve
Nantz after two hours. Tr. 138-40.) The judge found that this offer of work on the loader was
not an "adequate and reasonable response" to Nantz's complaint and that Nantz reasonably
believed that he would shortly be exposed once again to the severe dust conditions. 14
FMSHRC at 1896. The record supports the judge's finding. Tr. 25, 138-40. We agree with the
judge that Nantz's refusal to operate the loader for a brief period oftime was inextricably
connected to his refusal to operate the bulldozer and also qualified as protected activity.
Accordingly, we affirm the judge's determination that NHE failed to affirmatively defend
against Nantz's claim.
3. Conclusion
For the foregoing reasons, we hold that Nantz was discriminatorily discharged in
violation of section 105(c)( 1) of the Mine Act.
B. Backpay Award
1. Filing Delay by Secretary
NHE asserts that the Secretary's four-month delay in filing Nantz's complaint should
result in a corresponding reduction in the backpay award. The judge rejected this contention on
the ground that the operator had failed to show legally recognizable prejudice resulting from the
delay. 15 FMSHRC at 250.
The Mine Act permits a miner who believes that he has been discriminated against to file
a complaint with the Secretary within 60 days of the alleged violation. 30 U.S.C.
§ 815(c)(2). After receipt of the complaint, the Secretary has 90 days to notify the miner, in
writing, of his determination as to whether a violation occurred. 30 U.S.C. § 815(c)(3). Section
105(c)(2) provides that, once the Secretary determines that a violation has occurred, "he shall
immediately file a complaint with the Conunission." Commission Procedural Rule 4l(a)
implements the latter provision by requiring the Secretary to file a discrimination complaint with
the Commission within 30 days after such written determination. 29 C.F.R.
§ 2700.41(a) (1993).

2214

Nantz filed his discrimination complaint on May 29, 1991, within the 60-day period. The
Secretary was required to notify Nantz of his determination of violation by August 27, and file a
complaint with the Commission by September 26. The complaint was filed on January 31, 1992,
more than four months late. The record discloses no reason for the delay.
The Commission has determined that the time limits in sections 105(c)(2) and (3) "are not
jurisdictional" and that the failure to meet them should not result in dismissal, absent a showing
of "material legal prejudice." See. e.g., Secretazy on behalf of Hale v. 4-A Coal Co., 8 FMSHRC
905, 908 (June 1986). As the judge found, the delay was not extreme and did not prejudice
NHE's presentation of its case. 15 FMSHRC at 250; 14 FMSHRC at 1882-83. Therefore, we
decline to reduce Nantz's backpay on account of it. However, as the Commission stated in Hale,
"(t]he fair hearing process envisioned by the Mine Act does not allow us to ignore serious delay
by the Secretary." 8 FMSHRC at 908. We remind the Secretary to adhere to the time limits set
forth in section 105(c) of the Act and to explain to the Commission reasons for delay.
2. Purported Job Offer
NHE argues that, in July 1991, it offered Nantz a job at its Leatherwood facility and,
because Nantz rejected this offer, his backpay award should be reduced. The judge determined
that NHE's "suggestion that it made an 'offer' of reemployment to Mr. Nantz is unsupported," and
he found "no evidence that this was the case." 14 FMSHRC at 1903; see also 15 FMSHRC at
250. After filing his discrimination complaint with the Secretary, Nantz visited the Leatherwood
site and asked his former foreman, Henderson Farley, if there were anything for him to do. Tr.
242. Farley replied: "[N]o, not right at the time, but if! got something, you know, I would put
him back to work." Id. Farley testified that he never contacted Nantz and that Nantz never
contacted him again. Tr. 243. Nantz confirmed that Farley stated only that he would see what he
could do and had not conveyed a firm job offer. Tr. 76-77. Accordingly, we affirm the judge's
refusal to reduce the backpay award based on NHE's claim of a job offer.
3. Nantz's Delay in Seeking Work
NHE argues that, in calculating the backpay award, the judge failed to make a deduction
for the two-to-three-week period following his termination during which Nantz d.i.d not seek
other work. In fact, the judge deducted two week:; pay from the award on account of Nantz's
delay in seeking other employment. 15 FMSHRC at 249.

2215

4. Deduction for Unemployment Compensation
In Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993), the Commission addressed for
the first time the question of whether unemployment compensation benefits are appropriately
deducted from backpay awards. 4 Concluding that the issue is a matter of agency discretion, the
Commission determined that a policy of deducting unemployment benefits comports with the
Mine Act's goal of making miners whole. Id. at 617-18. It adopted this policy to be followed by
its judges. Id. at 618.
Because the Mine Act is silent on the issue of unemployment compensation, the
Commission looked for guidance to case law interpreting similar remedial provisions of the
National Labor Relations Act, 29 U.S.C. § 160 ("NLRA"), Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5(g) ("Title VII") .and the Age Discrimination in Employment Act, 29
U.S.C. § 626(b) ("ADEA''). 15 FMSHRC at 616. The Mine Act's remedial provisions, as well
as those of Title VII and the ADEA, are modeled on section 10(c) of the NLRA, as amended, 29
U.S.C. § 160(c). See. e.g., Secretary on behalf of Dunmire v. Northern Coal Co., 4 FMSHRC
126, 142 (February 1982).
The Commission relied, in part, on NLRB v. Gullett Gin Co., 340 U.S. 361 (195 1), in
which the Supreme Court was presented with the issue of whether the National Labor Relations
Board ("NLRB") abused its discretion in refusing to deduct unemployment compensation from a
backpay award while allowing deduction of other earnings. In concluding that the NLRB had
not abused its discretion, the Court stated: "Because the relation of remedy to policy is
peculiarly a matter for administrative competence, courts must not enter the allowable area of the
Board's discretion.... " Id.. at 363.
Consistent with the Supreme Court's decision in Gullet Gin, certain reviewing courts
have held that similar discretion exists under other labor statutes with remedial provisions
patterned on the NLRA. Thus, the United States Courts of Appeals for the Second, Seventh,
Ninth and Tenth Circuits determined that, under Title VII and the ADEA, the deduction of
unemployment compensation from backpay awards is a matter within the discretion of the trial
judge. See. e.g., EEOC v. Enterprises Ass'n Steamfitters, 542 F.2d 579, 591-92 (2d Cir.
1976)(Title VII); Hunter v. Allis-Chalmers Corp .. Engine Div., 797 F.2d 1417, 1428 (7th Cir.
.1986)(Title VII); Naton v. Bank of Cal., 649 F.2d..691, 699-700 (9th Cir. 1981)(ADEA); EEOC
v. Sandia Corp., 639 F.2d 600, 624-26 (10th Cir. 1980)(ADEA); Cooper v. Asplundh Tree
Expert Co., 836 F.2d 1544, 1555 (10th Cir. 1988)(ADEA). The Commission noted in Meek that
other circuits (the Third and Eleventh), also relying on Gullett Gin, have established a policy of

The Secretary was not a party to ~. While that case was pending, the Commission,
sua sponte, directed review in this case of the issue of deductibility of unemployment
compensation benefits because the administrative law judge here had made a determination on
the issue in direct contrast to that made by the judge in Meek.
4

2216

non-deductibility to be followed by trial courts within the circuit. 15 FMSHRC at 618, citing
Craig v. Y&Y Snacks. Inc., 721 F.2d 77, 81-85 (3d Cir. 1983); Brown v. A.J. Gerrard Mfg. Co.,
715 F.2d 1549, 1550-51 (11th Cir. 1983).5 In accordance with this case law, the Commission, in
Meek, concluded that this Commission has discretion to adopt an appropriate policy concerning
the deduction of unemployment compensation from backpay awarded under the Mine Act. 15
FMSHRC at 616-17, citing Gullet Gin, 340 U.S. at 363. See also S. Rep. No. 181 , 95th Cong.,
1st Sess. 37 ( 1977), reprinted in Senate Subcommittee on Labor, Committee on Human
Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 625 (1978).
Thus, interpreting Gullett Gin to the effect that the Commission's policy is a matter
within its discretion, a three-member majority adopted as agency policy the deduction of
unemployment compensation from backpay awards. 15 FMSHRC at 618. Commissioner
Backley, interpreting Gullett Gin to the effect that unemployment compensation may not be
deducted, dissented in Meek. Id. at 621-22. The Commission reaffirmed its holding in Ross v.
Shamrock Coal Co., 15 FMSHRC 972, 976-77 (June 1993).
In this case, which was decided by the judge prior to the Commission's decision in ~'
both the Secretary and NHE argued to the judge that the deduction of unemployment
compensation from backpay awards was within the discretion of the judge. 14 FMSHRC at
1902; 15 FMSHRC at 249. In exercising his discretion, the judge deducted an ·amount equal to
the unemployment compensation received by Nantz from his backpay award. 15 FMSHRC at
249.
In contrast to his argument to the judge, the Secretary now urges the Commission to
reverse the judge's deduction' of unemployment compensation benefits and to determine as a
matter of agency policy that such benefits should not be deducted from backpay awards. S. Br.
at 19. In support of his position, the Secretary argues that the benefits are "collateral" and that
state law in 47 states requires that the benefits be repaid to the state unemployment agency. 6 Id.
at 20-22. The Secretary suggests that, at the time of each backpay award, the Commission may
want to notify the appropriate state agency to facilitate agency proceedings to recoup from the

5

Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1114 (8th Cir. 1994),
decided by the Eight Circuit after~ was issued, similarly established a circuit-wide policy
of non-deductibility under the ADEA. The dissent apparently misreads the Commission's
recitation of this case law. Slip op. at 21. Under our analysis, Gullett Gin does not preclude
a policy of deductibility, non-deductibility, or trial judge discretion.
6

Under the Social Security Act, 42 U .S.C. § 503(g), and the Internal Revenue Code, 26
U.S.C. § 33'04(a)(4), states may require restitution of unemployment compensation when, as a
result of an award of backpay, the worker is rendered not unemployed for the period of the
award and the benefits received becoine overpayments.

2217

miner the unemployment compensation he had received earlier. Id. at 20. As to the other three
states, the Secretary argues that the discriminatee is "the logical choice" to retain the benefits. Id.
at 22 (citation omitted).
The issue of recoupment was not argued in Meek. The Commission followed its .
precedent, which recognized that, in determining backpay awards, it "endeavors to make miners
whole and to return them to their status before illegal discrimination occurred." 15 FMSHRC at
617; ~Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463, 3464 (December 1980); Secretary
on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2056 (December 1983). "Our
concern and duty is to restore the discriminatees, as nearly as we can, to the enjoyment of the
wages and benefits they lost as a result of their illegal terminations." 15 FMSHRC at 617,
quoting Dunmire, 4 FMSHRC at 143. Monetary relief is awarded "to put an employee into the
financial position he would have been in but for the discrimination." Secretary on behalf of
Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982). Further, the Commission
sought "to fashion relief that is just and does not overcompensate the discriminatee." Meek, 15
FMSHRC at 617, citing Dun_mire, 4 FMSHRC at 142-43.
In deciding that 1:1nemployment compensation should be deducted from a backpay award
under the Mine Act, the Commission noted that such a policy does not result in less than full
compensation to the miner for his lost wages. 15 FMSHRC at 617. It noted the similarity in
effect between deducting unemployment compensation and deducting other earnings, in that both
leave the discriminatee in the same position he was in before the illegal discrimination. Id.
Under settled Commission law, a miner's earnings are deducted from his backpay award. See.
~'Dunmire, 4 FMSHRC at 144.
The Commission also recognized that deducting unemployment compensation from
backpay awards is not inconsistent with the Mine Act's goal of deterring illegal conduct because
an employer must still place the victim of unlawful discrimination in the position he would have
been in but for the unlawful discrimination, by providing backpay with interest, reinstatement
with full seniority rights and attorneys' fees. 15 FMSHRC at 617. Further, the Mine Act, unlike
the NLRA, Title VII, and the ADEA, mandates a separate civil penalty against an operator who
unlawfully discriminates against a miner. 30 U.S.C. §§ 815(c), 820(a).7 The Commission's
recently issued Procedural Rules require the Secretary to propose a separate civil penalty for a
violat~on of section 105(c). 29 C.F.R. § 2700.44 (1993).
In disavowing Commission precedent, the dissent mischaracterizes the rationale of Meek
as the theory that "the failure to deduct unemployment compensation results in a windfall to the
miner.... " Slip op. at 15. The term "windfall" appears in Meek only in the dissent and that
concept was not the basis for the Commission's decision. 8 Rather, Meek rests on the
7

We reject the dissent's assertion that "adoption of a deduction policy conflicts with the
Mine Act's goal of deterring illegal conduct." Slip. op. at 21.

2218

Commission's determination that the goal of the Mine Act's discrimination provisions is to make
miners whole. The Commission determined that this goal was best met by deduction of
unemployment compensation. The Commission's alleged failure "to explain why the recoupment
of benefits ... does not adequately address any concerns over a windfall to miners" (slip op. at 16)
stems from the fact that, contrary to the dissents' assertions, both here and in ~' such
concerns were not the basis for the Commission's decision in either case. 9
The dissent's reliance on Levine v. Heffernan, 864 F.2d 457 (7th Cir. 1988), is misplaced.
The Commission has not, as asserted, employed a standard for analyzing this issue different from
that set forth in Gullett Gin. Slip op. at 17-18. Rather, the Commission has followed the
Supreme Court's analysis (that the issue of deductibility is within the agency's discretion) "to
render a decision that differs from the Supreme Court's." Levine, 864 F.2d at 460 (emphasis in
original). Under our colleagues' analysis, a split between the United States Courts of Appeals
could not have occurred. In their opinion, those circuits permitting the deduction of
unemployment compensation from Title VII and ADEA cases would have erred in "bottom[ing
their] discretionary policy choice on standards or reasons which have been rejected by the
Supreme Court." Slip op. at 18; See. e.g., Naton, 649 F.2d at 700 ("(The district court] retained
the discretion under the ADEA to deduct the [unemployment] compensation from the backpay
award."); Enterprise Ass'n Steamfitters, 542 F. 2d at 592 (In a Title VII action, it is "not an abuse
of discretion to deduct sums received from collateral sources such as unemployment
compensation.") We do not believe that those United States Courts of Appeals so erred. 10
The Secretary's arguments have been carefully considered, including his acknowledgment
on review that the deduction of unemployment compensation is a matter of Commission

8

Our colleagues, disagreeing with the policy established in the exercise of the
Commission's discretion, have attempted to discredit that policy by misrepresenting its
rationale. They have also attributed improper motives to the majorities here and in Meek.
See. e.g., slip op. at 20 ("their zeal to ensure that no possibility exists for illegally discharged
miners to receive overlapping compensation"). They have also speculated as to how we would
vote on the issue of consequential damages , which is not before us, and conch~ded that we
have "bolstered" the case against that vote. Slip op. at 18.
9

Although our colleagues support recoupment as a method for addressing the
Commission's alleged "concerns" about a "windfall" (slip op. at 16), they do not propose
recoupment as agency policy nor do they adopt the Secretary's suggestion that the Commission
facilitate recoupment. They propose only that a backpay award "should not be reduced by the
amount of unemployment compensation received .... " Slip op. at 14.
10

The dissent takes issue with the Commission's current policy and also with its earlier
practice, supported by the Secretary at hearing, which left discretion to the trial judge to
determine this issue.

2219

discretion. S. Br. at 19. We reaffirm the reasoning and conclusion set forth in Meek and
reaffirmed in Ross v. Shamrock, 15 FMSHRC 972, and affirm the judge's deduction of
unemployment compensation from Nantz's backpay award.

III.
Conclusion
For the foregoing reasons, the Commission affirms the judge's conclusion that NHE
constructively discharged Nantz in violation of section 105(c)( 1) of the Mine Act and affirms the
judge's backpay award.

Arlene Holen, Commissioner

2220

Jordan, Chairman and Marks, Commissioner, concurring in part and dissenting in part:
We concur with Commissioners Doyle and Holen on the disposition of all issues except
the requirement that unemployment compensation be deducted from backpay. On that point, we
would reverse the administrative law judge and hold that a backpay award to a miner injured by a
mine operator's violation of the Mine Act should not be reduced by the amount of unemployment
compensation received by the injured employee.
The question concerning the propriety of a setoff for unemployment compensation was
first decided by the Commission in Meek v. Essroc Corp., 15 FMSHRC 606 (April 1993). Meek
involved a claim of discrimination filed and prosecuted by the affected employee, without the
participation of the Secretary, pursuant to section 105(c)(3) of the Mine Act, 30 U.S.C.
§ 815(c)(3). In Meek, the Commission majority reversed the administrative law judge in part
and ruled that a backpay award on behalf of a discriminatee under the Mine Act must be reduced
by the amount of unemployment compensation received by the miner victimized by the
operator's violation of the Act. Commissioner Backley dissented on the unemployment
compensation issue. 15 FMSHRC at 621-26. Meek did not appeal the Commission's decision to
the Court of Appeals.
In his brief before the Commission, the Secretary, citing to Meek, urged the Commission
"to adopt Commissioner Backley's position." S. Br. at 19 n.4. We have considered the Meek
decision in light of the arguments of the parties, and we have concluded that Commissioner
Backley's Meek dissent continues to set forth the proper disposition of the unemployment
compensation issue. Because of the importance of this question to the effective enforcement of
the Act's protection of miners from employer discrimination on the basis of protected health and
safety activity, we reiterate here, with some amplification, the analysis first set forth in
Commissioner Backley's dissent in ~. 1

I.

It is beyond dispute that the Commissi~n has the discretion to fashion backpay remedies
which effectuate the purposes of the Mine Act. But the Commission's discretion in this area is
not unlimited; as with. any court or agency, the Cq.mmission must base its exercise of discretion
upon reasoned, rational principles that are not in conflict with the facts of the case or binding
precedent.2 Failure to do so amounts to an abuse of that discretion. In this case, examination of

1

Commissioner Backley participated in considering this case and voted to reverse the judge's
unemployment compensation holding, but his term of office expired before the decision was
ready for issuance. See. e.g., Penn Allegh Coal Co., 3 FMSHRC 2767 n.l (December 1981).
2

See. e.g., NLRB v. Blake Constr. Co .. Inc., 663 F.2d 272, 285 (D.C. Cir. 1981).

2221

the bases upon which our affirming colleagues conclude that unemployment compensation
received should be deducted from backpay awards constrains us to conclude that they have
abused their discretion.
In deciding this case, our colleagues reaffirm the rationale and decision of the
Commission in Meek. Slip op. at 10. Distilled to its core, the~ majority's two-pronged
rationale was that the failure to deduct unemployment compensation results in a windfall to the
miner that is in conflict with the policy to require deductions of earnings from backpay, and that
such failure to deduct constitutes an additional expense to the employer. Both of these
propositions h.ave already been rejected by the Supreme Court.

A.

The "employee windfall" theory has long since been considered and rejected by the
Supreme Court. The leading case in this area is NLRB v. Gullett Gin Co., 340 U.S. 361 (1951).
While the Meek majority pays lip service to Gullett Gin, its decision flies in the face of the
Supreme Court's holding. In rejecting the employee windfall rationale, the Gullet Gin Court held
that state unemployment compensation benefits represent entirely collateral benefits having
nothing whatever to do with the remedial purpose of the statute. Ml at 364. In determining that
the NLRB acted properly within its discretion by refusing to deduct unemployment
compensation from backpay under the National Labor Relations Act, the Supreme Court clearly
differentiated unemployment compensation from earnings. The Court flatly rejected the
argument that unemployment compensation was to be treated as earnings, stating:
In Marshall Field & Co. v. National Labor Relations Board, 318 U.S. 253, ... this
Court held that the benefits received by employees under a state unemployment
compensation act were plainly not earnings which, under the Board's order in that
case, could be deducted from the backpay awarded.

340 U.S. at 363.
The Gullett Gin Court also rejected the argument that the unemployment.compensation
payments vyere to be considered as direct paymen!s from the employer and therefore properly set
off against the backpay award. The Court stated:
Payments of unemployment compensation were not made to the employees by
respondent but by the state out of state funds derived from taxation. True, these
taxes were paid by employers, and thus to some extent respondent helped to create
the fund. However, the payments to the employees were not made to discharge
any liability or obligation of respondent, but to carry out a policy of social
betterment for the benefit of the entire state.

2222

Id. at 364 (citations omitted).
In addition to the collateral benefits rationale, the Supreme Court in Gullett Gin identified
a second basis for its holding that declining to deduct unemployment compensation does not
result in a windfall to the injured employee. The Court observed that "some states permit
recoupment of benefits paid." 340 U.S. at 364 n. l. This effective and sensible approach has
been widely followed. In adopting a rule of non-deductibility of unemployment benefits and
rejecting the windfall argument, the Third Circuit reasoned:
[A)lthough it appears to provide double recovery, in fact that is not the inevitable
result. Often insurers have subrogation rights, and in some circumstances state
benefits are recoupable. For example, a recently enacted Pennsylvania statute
provides for recoupment of unemployment benefits when backpay has been
awarded.
Craig v. Y & Y Snacks. Inc., 721 F.2d 77, 83-84 (3d Cir. 1983) (citation omitted); se'e also
Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1555 (10th Cir. 1988), where the court
rejected the setoff because Colorado law requires an employee who receives a backpay award to
"repay ... all unemployment benefit payments received.... "
In affirming a lower court ruling on this question, the Ninth Circuit referred approvingly
to the rationale that:
if Congress did not intend for an employee to receive unemployment benefits in
addition to backpay the logical solution.. is a recoupment of the unemployment
benefits by the state employment agency.
Kauffman v. Sidereal Corp., 695 F.2d 343, 347 (9th Cir. 1982).
Indeed, even in the Seventh Circuit, where the court registered a preference that an
employee not receive unemployment compensation and overlapping backpay, the court reasoned
that the solution was not to allow the employer to "get a deduction for unemployment insurance
benefits but that [the employee] should have to repay them.... " Hunter v. Allis-Chalmers Corp.,
Engine Div., 797 F.2d 1417, 1429 (7th Cir. 1986): The court went on to observe that ifthat
were not possible "the choice seems to be between conferring a windfall on Allis-Chalmers ap.d a
windfall on Hunter. As the victim of Allis-Chalmers' wrongdoing, Hunter is the logical choice."
Id.

In its brief to the Commission, Nally and Hamilton makes no reference to the
Commission's Meek decision, but rather urges us to affirm the judge's proper use of discretion to
require a backpay setoff. Our affirming colleagues decline to explain why the recouprnent of
benefits, endorsed by the Supreme Court ~d courts of appeals, does not adequately address any
concerns over a windfall to miners. As demonstrated in this case, the employer/operator, the

2223

party-in-interest in the litigation, will almost always be more than eager to notify the appropriate
state authority to recoup unemployment compensation. Indeed, Nally and Hamilton has even
argued for the intervention of the state agency into this proceeding.

B.
By reaffirming~ our colleagues apparently continue to maintain that the failure to
deduct unemployment compensation would effectively require the operator "to additionally
compensate the miner with backpay for fu_nds already received, if the miner ... received
unemployment compensation." Meek, 15 FMSHRC at 617-618 (emphasis supplied). The
majority opinion went on to note that "[w]hen an individual receives unemployment
compensation, his previous employer is, as a result, taxed at an increased rate, depending upon
the degree of experience rating." Id. at 618 n.11. Although our colleagues' point is not fully
explicated, we take these comments together as a suggestion that when a discriminatee receives
both unemployment compensation and backpay, the offending employer is made to pay twice for
the same wrong.
The short answer to this concern is that the employer's experience rating may well remain
unaffected in view of the high probability that unemployment compensation will be recouped by
the state fund, as detailed above. But in any event, the Supreme Co.urt has already found wanting
the "extra payment" proposition advanced by the Meek majority. In Gullett Gin, the Court
explained:
We doubt that the validity of a back-pay order ought to hinge on the myriad
provisions of state unemployment compensation laws [citations omitted].
However, even ifthe Louisiana law has the consequence stated by respondent,
which we assume arguendo, this consequence does not take the order without the
discretion of the Board to enter. We deem the described injury to be merely an
incidental effect of an order which in other respects effectuates the policies of the
federal Act. It should be emphasized that any failure of respondent to qualify for
a lower tax rate would not be primarily the result of federal but of state law,
designed to effectuate a public policy with which it is not the Board's function to
concern itself [citation omitted].
340 U.S. at 365. As the Court made clear, the employer's responsibility to contribute to an
unemployment compensation fund is for the purpose of "carry[ing] out a policy of social
betterment for the benefit of the entire state" Qd. at 364) and has nothing to do with remedying or
deterring violations of federal anti-discrimination laws. Accord EEOC v. Ford Motor Co., 645
F.2d 183, 196 (4th Cir. 1981), rev'd on other grounds, 458 U.S. 219 (1982).
Although the Commission has th~ discretion under the Mine Act to establish a policy on
this issue, even one that differs from the result reached by the Supreme Court, the Commission

2224

does not have the authority to bottom its discretionary policy choice on standards or reasons
which have been rejected by the Supreme Court. As one Court of Appeals has stated:
A lower court, when faced with a factually distinguishable but legally
relevant Supreme Court decision, may employ the Supreme Court's method of
analysis to render a decision that differs from the Supreme Court's. A lower
court. however. may not employ a different standard in analyzing the different
facts.
Levine v. Heffernan, 864 F.2d 457, 460 (7th Cir. 1988) (emphasis in original and supplied).
The Commission is required to follow not only Supreme Court decisions but also the
clear implications of those decisions. Hendricks County Rural Elec. Membership Corp. v.
NLRB, 627 F.2d 766, 769 (7th Cir. 1980), rev'd on other grounds, 454 U.S. 170 (1981), on
remand, 688 F .2d 841 (7th Cir. 1982). Unless and until the Supreme Court chooses to depart
from its ruling and rationale we must be so guided. Kovacs v. United States, 355 F.2d 349, 351
(9th Cir. 1966).
Our colleagues protest that, because they have not used the word "windfall," their opinion
has been unfairly criticized for relying on the discredited windfall theory. Slip op. at 11-12. But
the affirming Commissioners' concern in Meek that fai lure to deduct unemployment benefits
would overcompensate the discriminatee and result in "double recovery" ( 15 FMSHRC at 617,
quoting EEOC v. Enterprise Ass'n Steamfitters, 542 F.2d 579, 592 (2d Cir. 1976)) is nothing
more or less than the windfall theory under different names. The affirming Commissioners have
repeated their erroneous reliance on the windfall theory here. Slip op. at 11, 13 (citing
"overcompensat[ion]" and "reaffirm[ing] the reasoning and conclusion set forth in Meek ... ").
Our colleagues' attempt to camouflage the basis of their decision, while understandable in light
of judicial rejection of the windfall theory, is unpersuasive.3
By flouting the collateral benefits doctrine, the affirming Commissioners have bolstered
the legal basis for injured miners to seek relief, based on the employer's violation of the antidiscrimination provisions of the Act, for collateral~, e.g., a repossessed car, a cancelled
insurance policy, or medical treatment for depression. 4

Contrary to our colleagues' assertion, our criticism is based on their faulty ration~le, not on
any "improper motives" (slip op. at 12 n.8).
3

4

Such relief would be consistent with section 105(c)(2) of the Mine Act, which grants the
Commission authority to provide relief from unlawful discrimination "including, but not limited
!Q, ... reinstatement ... with backpay and interest." 30 U.S.C. § 815(c)(2) (emphasis supplied).
In this connection, the Senate Committee on Human Resources stated its:

2225

II.
Beyond the foregoing legal basis for our disagreement with the affirming Commissioners,
we are eager to dissociate ourselves from a policy choice which fails to fairly balance the
interests of the parties. After reading our colleagues' opinion on this issue, it would seem
necessary to remind the reader that in this case the miner prevailed, i.e., he was the victim of an
illegal discharge. This caution is necessary because the affirming Commissioners' rationale
focuses unduly on avoiding the risk of visiting a windfall recovery upon the miner. Never mind
that our colleagues' approach betrays no concern that a reciprocal windfall may inure to
employers whose backpay liability will be partially discharged from a public fund not intended
for such use. As the Tenth Circuit has observed:
The deduction or offsetting of unemployment benefits may well result in a
windfall to the employer. He finds himself in a position where he is not
responsible for the payment of the illegally withheld backpay and then offsetting
it with unemployment benefits by the government, which is unjust enrichment
except to the extent that employers make contributions to the fund.
EEOC v. Sandia Corp., 639 F.2d 600, 626 ( 10th Cir. 1980).
The Seventh Circuit's reasoning in Hunter, 797 F.2d at 1429, serves to pinpoint the basic
unfairness of our colleagues' policy choice. The Meek majority conceded that state recoupment
of unemployment compensation occurs "in many instances." 15 FMSHRC at 617 n.1 0. This
suggests that the risk of a windfall recovery to the miner is limited. Indeed, the Secretary advises
that only Georgia, Rhode Island and Louisiana do not have recoupment provisions. S. Br. at 2122. On the other hand, the Meek majority also conceded that the risk of any increased employer
expense, due to higher unemployment insurance taxes, is variable and unknown. 15 FMSHRC at
618,n.ll.

[i]ntention that the Secretary propose, and.that the Commission require, all relief
that is necessary to make the complaining party whole and to remove the
deleterious effects of the discriminatory conduct including, but not limited to
reinstatement with full seniority rights, back-pay with interest, and recompense
for any special damages sustained as a result of the discrimination. The specified
relief is only illustrative.
S. Rep. No. 181, 95th Cong., 1st Sess. 37 (1977), reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2d Sess., Legislative Histozy of the Federal Mine
Safety and Health Act of 1977, at 625 ( 1978) ("Legis. Hist.") (emphasis supplied).

2226

Thus, our affirming colleagues' twin concerns -- miner windfall recovery, and increased
employer payment -- are bottomed on nothing more than vague speculation regarding the effects
of wide state-by-state legal variations. Nevertheless, in their zeal to ensure that no possibility
exists for illegally discharged miners to receive overlapping compen~ation, our colleagues have
adopted a national policy which will at times provide an employer with a windfall setoff from his
backpay obligation. We, as did the court in Hunter, find this choice to be illogical and unfair.
Moreover, our colleagues' policy is directly in conflict with the Gullett Gin Court's express
rationale detailing the basis for its rejection of the employer's argument that under the
experience-rating record formula it will be prejudiced.
One of the most glaring infirmities of our colleagues' decision is that it undermines one of
the fundamental purposes of backpay awards under the Mine Act and other anti-discrimination
provisions -- the deterrence of unlawful conduct in the future. Subsequent to the issuance of the
Meek decision, the Eighth Circuit had occasion to address this issue in an Age Discrimination in
Employment Act case. In reversing the district court's deduction of unemployment
compensation from the backpay award the Court stated:
Backpay awards in discrimination cases serve two functions: they make
victimized employees whole for the injuries suffered as a result of the past
discrimination, and they deter future discrimination. . . . Reducing a backpay
award by unemployment benefits paid to the employee, not by the employer, but
by a state agency , . . . makes it less costly for the employer to wrongfully
terminate a protected employee and thus dilutes the prophylactic purposes of a
backpay award. . . . Indeed, it leads to a windfall to the employer who committed
the illegal discrimination....
Based on these considerations, no circuit that has considered the matter
has determined that unemployment benefits should. as a general rule. be deducted
from backpay awards in discrimination cases. Circuits have split, however, over
whether deducting unemployment benefits should be prohibited or should be left
to the discretion of the trial court. The majority [of courts] have held that, as a
matter of law, unemployment benefits should not be deducted from backpay
awards. See Craig, 721 F.2d at 85 [3rd Cir.]; Rasimas v. Michiian Dep't.of
Mental Health, 714 F.2~ 614, 627-28 (6th.Cir. 1983), cert. denied, 466 U.S. 950
... ( 1984); Kauffman v. Sidereal Corp., 695 F.2d 343, 346-47 (9th Cir. 1982) (per
curiam); E.E.0.C. v. Ford Motor Co., 645 F.2d 183, 196 (4th Cir. 1981), rev'd &
remanded on other grounds, 458 U.S. 219 ... (1982), ... on remand, 688 F.2d
951, 952 (4th Cir. 1982) (per curiam); Brown v. A.J. Gerrard Mfi. Co., 715 F.2d
1549, 1550-51 (llthCir.1983)(enbanc)(percuriam). Three circuits have
adopted a minority position that deducting unemployment benefits lies within the
discretion of the trial court. ~Cooper v. A~lundh Tree Expert Co., 836 F.2d
1544, 1555 (10th Cir. 1988); Hunter, 797 F.2d at 1429 (Posner, J., acknowledging
discretion as Seventh Circuit rule but stating th~t it "may be unduly favorable to

2227

defendants"); Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 736 (5th
Cir. 1977). The Second Circuit has in the past affirmed a deduction of
unemployment benefits as discretionary, see E.E.O.C. v. Enterprise Assoc.
Steamfitters Local 638 ofU.A., 542 F.2d 579, 592 (2d Cir. 1976), cert. denied,
430 U.S. 911 ... (1977), but more recently indicated that the circuit's rule remains
unsettled, see Promisel v. First Am. Artificial Flowers, 943 F.2d 251, 258 (2d Cir.
1991 ), cert. denied, ... 112 S.Ct. 939 ... (1992).
Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1113-14 (8th Cir. 1994) (emphasis
supplied).5 The Eighth Circuit found the view of the majority of the Courts of Appeals, that
deduction of unemployment benefits is inconsistent with the deterrent purpose of backpay
awards in discrimination cases and awards a windfall to employers that discriminate, to be the
"more sound position" and adopted it. ML at 1114. We do not agree with our colleagues that the
Courts of Appeals for the Third, Fourth, Eighth, Ninth and Eleventh Circuits erred in reaching
this conclusion.6
Gaworski and like cases fatally undermine our colleagues' conclusion that "deducting
unemployment compensation from backpay awards is not inconsistent with the Mine Act's goal
of deterring illegal conduct." 15 FMSHRC at 617; slip op. at 11. This repeated leap of logic is
too vast to be ignored. In fact, it is correct to state the opposite -- that adoption of a deduction
policy conflicts with the Mine Act's goal of deterring illegal conduct. There certainly is no
deterrent value in establishing a policy whereby a violating operator may be relieved of his
obligation to furnish illegally withheld pay from a discharged worker by offsetting his
obligation through the use of state funds. In adopting a circuit-wide rule of non-deductibility of
unemployment benefits, the Third Circuit concluded that "the legislative history and Gullett Gin
are persuasive, that the primary prophylactic of Title VII would thereby be better served."
Craig, 721 F.2d at 85. Recognizing that backpay awards have a prophylactic or deterring effect
on future discrimination, the court also concluded: "To the extent that a backpay award is
reduced by unemployment benefits, this purpose is diluted." Id. at 84. 7

5

We share our colleagues' view that case law relating to Title VII of the Civil Rights Act of
1964, the National Labor Relations Act, and the Age Discrimination in Employment Act is
applicable to this issue.
6

The affirming Commissioners state that in Gaworski, the Eighth Circuit "established a
circuit-wide policy of non-deductibility under the ADEA." Slip op. at 10 n.5. Our colleagues
fail to mention the holding of Gaworski that a uniform deduction requirement is inconsistent
with the very purpose ofbacig)ay awards in discrimination cases. 17 F.3d at 1113.
7

Our colleagues, misapprehending the basis of the dissent, mistakenly assert that in our
view,"those circuits permitting the deduction of unemployment compensation ... erred ...."
Slip op. at 12. Gullet Gin makes clear that an agency has discretion in this area. But that

2228

Curiously, our colleagues continue to attempt to support their policy choice by noting
that the Mine Act imposes a civil penalty upon offending operators. 15 FMSHRC at 618; slip
op. at 11. We see no relevance of this fact to the issue of what constitutes an appropriate, fair
backpay award to a miner who has been illegally discharged. In commenting on the wide
breadth of relief that the Commission should require under the Mine Act, the Senate Committee
on Human Resources expressly stated "the relief provided under Section 10[5](c) is in addition
to that provided under sections 1O[4](a) and (b) and 10[5] for violations of standards." S. Rep.
No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in Legis. Hist. at 623 (emphasis supplied).
For the forego ing reasons we would fo llow the reasoning of the Supreme Court, and the
rule followed by the majority of courts, that unemployment compensation not be deducted from
backpay awards. We would therefore reverse the decision of the administrative law judge on
the issue of deducting unemployment compensation benefits from backpay, and order that no
such deduction occur.

discretion must be exercised in a manner consistent with Supreme Court holdings. Levine v.
Heffernan, supra. Unlike our colleagues' opinion here, the Courts of Appeals permitting trial
court discretion to deduct unemployment benefits do not base their holdings on the rejected
employee windfall theory. Indeed, in Cooper, Hunter and Sandia Corp., the Courts of Appeals
approved the trial courts' refusal to deduct unemployment benefits. In Naton, the Ninth Circuit
case cited by our colleagues, the court expressly declined to reach the question presented here;
the later Kaufmann decision places that circuit among the majority that disallows deductions.
Finally, as noted by the Gaworski court, in Promise!, the Second Circuit recently backed away
from its earlier embrace of the employee windfall theory in EEOC v. Enterprises Ass'n
Steamfitters.

2229

Distribution

Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Marcia A. Smith, Esq.
l 00 W. Center Street
P.O. Box 699
Corbin, KY 40702
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

2230

ADMINISTRATIVE LAW JUDGE DECISIONS

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

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

v.

1 1994
:

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-449-M
A. c. No. 36-07715-05501
Kuhl Sand & Gravel Pit

WALTER KUHL AND SON,
Respondent
DECISION APPROVING SITTLBKBllT

Before:

Judge \Weisberger

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner has filed a Motion to
approve a settlement agreement and to dismiss the case. A
reduction in penalty from $364 to $175 is proposed. I have
considered the representations and documentation submitted in
these cases, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act.
WBBREFORE, the Motion for Approval of Settlement is GRAH'l'ED,
and it is ORDERED that Respondent pay a penalty of $175 within
30 days of this Order.

Distribution:
Gayle M. Green, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market Street, Room 14480, Gateway Building,
Philadelphia, PA 1.9 104
Mr. Walter Kuhl, Kuhl Sand and Gravel, 9335 Peck Road,
Erie, PA 16510
/
/efw ·

2231

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

November 2, 1994
DISCRIMINATION PROCEEDINGS

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
JAMES HYLES,

Docket Nos. WEST 93 -336-DM
WEST 93-436-DM
WEST 93-337-DM
WEST 93-437-DM
WEST 93-338-DM
WEST 93-438-DM
WEST 93-339-DM ·
WEST 93-439-DM

DOUGLAS MEARS,
DERRICK SOTO,
GREGORY DENNIS,
Complainants

v.

All American Aggregates

ALL AMERICAN ASPHALT,
Respondent
DECISION
Appearances:

J. Mark Ogden, Esq., Office of the Solicitor, U.S.
Department of Labor, Los Angeles, California,
for Complainants;
Lawrence Gartner, Esq., Naomi Young, Esq., Gartner
& Young, P.C., Los Angeles, California,
for .Respondents.

Before:

Judqe cetti
I

These discrimination proceedings arise under the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq.
(1988) ("Mine Act").
The proceedings were initiated by the Secretary under
Section lOS(c} (2) of the Mine Act on behalf of the Complainants
James Hyles, Douglas Mears, Derrick Soto and Gregory Dennis. The
Secretary alleges that Respondent All American Asphalt (All
American) in violation of Section 105(c) of the Mine · Act discharged the four Complainants in retaliation for engaging in

2232

protected safety activity on two separate occasions. All eight
cases were consolidated and at the request of the parties, hearings on the merits of the consolidated complaints of discrimination were held in Riverside, California.
At the close of that hearing, the undersigned Judge issued
an Order of Temporary Reinstatement from the bench, followed by a
written decision a few days later ordering temporary reinstatement of the Claimants. See Docket Nos. WEST 93-124, WEST 93-125,
WEST 93-126 and WEST 93-127. 16 FMSHRC 31 (1994). Thereafter
both parties filed post-hearing and reply briefs setting forth
the facts, law and arguments in support of their respective
positions in the above-captioned matters. I have considered
their arguments as well as the facts and the law in my adjudication of these matters.
II
Threshold Issues
Respondent' raises two threshold issues by its assertion that
(1) "this entire matter is barred by the statute of Limitations."
and (2) that the Complainants' complaints are preempted by the
NLRA. Both contentions for reasons discussed below are rejected.
A.

The Discrimination Complaints Are Not Time-Barred

Respondent asserts that all eight complaints filed by the
Secretary on behalf of the four Complainants are time-barred
pursuant to 105 (c) (2), 30 u.s.c. § 815 (c) (2) and the Commission
Procedural Rule 29 C.F.R. S 2700.41.
·
Section 105(2) (a) of the Mine Act, 30 u.s.c. § 815(c) (2),
provides that if:
"[T]he Secretary determines that the
.provisions of this subsection have been
violated, he shall immediately file a
complaint with the Commission, with service ·
upon the alleged vio lator and the miner,
applicant for emplo}'ment, or representative
of miners alleging such discrimination .• •. "
29 C.F.R. S 2700.41 provides:
"A discrimination complaint shall be filed
by the Secretary within 30 days after his
written determination that a violation has
occurred."
It is well settled that these filing guidelines are not
jurisdictional. The purpose of the time limits is to avoid stale

2233

claims. Late filing may be excused. Christian v. South Hopkins
Coal Company, 1 FMSHRC 126, 134-136 {April 1979); Bennett v.
Kaiser Aluminum & Chemical corporation, 3 FMSHRC 1539 {June
1981); Secretary v. 4-A Coal Company. Inc., 8 FMSHRC 240 {February 1989).
·
The Commission has indicated that dismissal of a complaint
for late filing is justified only if the Respondent shows material, legal prejudice attributable to the delay.
See Secretary/
Hale v. 4-A Coal Company, Inc., supra. No such showing has been
made here. Under the facts and circumstances presented at the
hearing in this case the late ,filing is excused. Respondent's
request for dismissal of the complaints on the grounds that they
are time-barred is denied.
B. Respondents' Discrimination Complaints Are Not Preempted
by the NLRA
Respondent contends that the claimants' discrimination complaints are preempted by the National Labor Relations Act {NLRA) .
Respondent asseJ;ts that because "Complainants' allegations include their layoff of their employment and because it is undisputed that Complainants have grieved their July 1992 layoff
through the Union, thereby evincing a recognition on Complainants' part that their claim cannot be resolved without resort to
the Union agreement, the wrongful layoff claims are necessarily
based upon rights and duties derived from the Labor Agreement and
thus preempted by of the Labor Management Relations Act." 29
u.s.c. § 185.
As stated by the Secretary in his reply brief, the remedial
purposes of the Mine Act are separate and distinct from the
public policy goals of the Labor Act. The Commission has stated,
the Mine Act is not a "labor" statute, but rather is intended to
promote the safety and health of the nation's miners. Peabody
Coal co., 7 FMSHRC 1357 {September 1985), affirmed, 822 F.2d 1134
(D.C. Cir. 1987). The Commission has recognized that when the
purposes of the Mine Act coincide with other statutes, the
Commission must attempt to strike a "careful accommodation of one
statutory scheme to another." Accordingly, given the mandate of
the federal courts that the Mine Act must be interpreted to enforce its remedial purposes while ensuring that other important
public policies are not ignored, it is self-evident that the
Com.mission has jurisdiction to determine whether Respondent discharged the Complainants for engaging in MSHA-related safety
activity. See also Southern Steamship co. v. NLRB, 316 U.S. 31
(1962); McLean Trucking Co. v. United States, 321 U.S. 67 (1944).
It is recognized that protected activities of miners under
Section 105{c) may be identical to or closely related to activities for which protection is also provided under the National
Labor Relations Act (NLRA). It is also noted that MSHA and the

2234

General counsel of the National Labor Relations Board (NLRB) have
entered into a memorandum of understanding aimed at coordinating
the processing of identical or related claims filed both under
the Mine Act and the NLRA. Under this agreement, where miners
file claims under both the Mine Act and the NLRA and the claims
are both based on the same activity which is covered by Section
105(c), the NLRB will defer action or dismiss the claim pending
before it so ·that the claim can be handled exclusively before the
Secretary of Labor and the Mine Safety and Health Review Commission. 45 Fed. Reg. 6189.
Respondents' contention that the discrimination complaints
are preempted by the NLRA is rejected.
III

In April 1991 Respondent was completing a new addition to
its rock finishing plant. On Thursday morning, April 18th, Mr.
Hyles, the leadman on Respondent's graveyard shift had a conversation with Mr. Ryan, the vice-president and the plant supervisor. Mr. Ryan told Mr. Hyles he was going to start running the
new finishing plant the next day. Hyles told Ryan it wasn't
ready to run. At that time the plant had a lot of guards, access
ladders, decks, catwalks, trip cords and other basic safety features that were not in place. Since Ryan . had been supervising
the construction work on the new finish plant he knew many of the
basic safety . features had not as yet been installed~
Mr. Ryan told Hyles that they needed the material and it was
going to run "shit or bleed,'' Ryan stated that they weren't going
to spend $15,000 or $20,000 to buy material for a week and wait
for the plant to be completed. Ryan told Hyles that if he did
not want to run the plant in its uncompleted state "any one of
these other guys here would take your job."
Later that same day, Thursday, April 18, Hyles called Mr.
McGuire the business representative for Operating Engineers Local
12 and reported to him his supervisor's (Ryan) intention.
In
response to the Hyles call, Mr. McGuire that same day came to the
plant and observed the unsafe conditions. McGuire told Hyles
that if the plant actually started operating in that condition he
would call and report it to MSHA. Hyles' testimony regarding
this aspect of the case was affirmed by the testimony of Mr.
McGuire.
When Hyles went to work on his next shift at 7 p.m., Friday,
April 19th, the uncompleted new finish plant was running and had
obviously been running for several hours. Mike Ryan told Hyles
he wanted as many workmen as possible scattered out over the
plant to watch for belts tracking properly and to make sure
everything was running properly. The plant was still in the same
condition as it was in the previous day. The guards, some access

2235

ladders, decks, catwalks, stop cords and handrails were still not
installed.
Ryan assigned Hyles to work as leadman that weekend, Friday,
Saturday and Sunday with the combined second and third shift '
crews working together. Complainants Doug Mears, Greg Dennis and
Derrick Soto were on · Hyles' crew and worked in the finish plant
that weekend under Hyles' supervision and were exposed to the
hazards of the uncompleted new plant. Hyles was concerned for
their safety. Hyles spoke to them about the unsafe conditions
and warned them to be careful. All three Complainants made comments to Hyles that they "couldn't believe" the plant was being
operated in its uncompleted state, without the basic safety
features in place.
During the Saturday and Sunday shifts the three Complainants
Greg Dennis, Doug Mears and Derrick Soto observed Hyles videotaping the plant in operation and questioned him about it.
All
voiced their concerns to Hyles about the hazards involved in
working at the new plant in its uncompleted condition.
Hyles talked to the three Complainants about taking the
video-tape to MSHA. All the Complainants agreed that it was a
serious matter involving a certain level of danger in working
under the existing conditions and that the video tape should be
turned in to MSHA.
Early Monday morning; about 7 a.m., Hyles took the video
tape to the MSHA field off ice in San Bernardino where the video
tape was shown on a television screen to MSHA Inspector Carisoza.
Inspector Carisoza after observing the video-tape stated it
warranted an MSHA inspection. That same Monday afternoon MSHA
inspectors made a hazard inspection of the plant in operation.
As a result of the inspection, the inspectors issued numerous
citations including 29 unwarrantable failure citations. MSHA
also shut down the plant until all violations we~e abated.
Later that same Monday, after the inspection, Ryan called
Hyles at home and told him not to come to work that evening
because "someone had turned them in" and MSHA had come to the
plant and shut the operation down.
About a week later, the first day Hyles returned to work
after the MSHA shutdown of the plant, he had lunch with Ryan and
Gary White, the maintenance shift leadman. Ryan asked if they
"had any idea who had turned him in." Ryan said he wanted to
find out who it was and he would "make it so miserable for them,
they would be happy to go work someplace else." Hyles testified
he did not admit his part in initiating the MSHA inspection as it
was his understanding his name would be kept anonymous. He

2236

testified he was "foolish enough to believe that maybe he (Ryan)
would never find out."
Hyles heard Mr. Daniel Sisemore, the president of All
American state that he would like to find out who was causing him
all the problems and that he would "make it worth their while to
seek employment elsewhere . "
William Smiliie, a former employee, testified that he also
heard Mr. S isemore while in the mine office state that they
"would like to know who had filed the complaint, so they could
make it worth their while t o leave."
Ryan on cross-examination admitted that company president
Sisemore asked him who "turned in" the company.
In May of 1991 based on information given to him by Ryan,
Hyles told Complainant Derrick Soto that Ryan planned to l a y Soto
off and keep some less senior employees. Soto then told Ryan
that if Ryan did that he, Soto, would file a grievance with the
Union.
Soto was not laid off at that time.
In June 1991, MSHA conducted a Section llO{c) investigation
of Respondent's vice-president Michael Ryan to determine i f he
authorized or ordered the numerous violations that were cited in
April 1991. During that investigation the four Complainants as
well as most of the other employees were interviewed by MSHA
special investigator Ronald Mesa. Government Exhibit Nos. 2, 3 ,
4 and 5 are the MSHA interview statements of Hyles, Mears, Soto
and Dennis given to the MSHA special investigator. Respondent
was aware that the four Complainants as well as many other
employees were interviewed during the Section llO{c) investigation because Ryan in cooperation with MSHA made arrangements for
the interviews. Ryan was present at the mine site when the onsite interviews were conducted in the investigators vehicle which
was parked in front of . the mine office. Ryan acknowledged that
he knew that the four Complainants were interviewed by the
investigator during the Section llO{c) investigation. Under the
Mine Act it is clear that the four Complainants as well as every
employee who cooperated with the llO{c) investigation, were
interviewed and gave statements were engaged in protected
activity under Section 105(c) of the Mine Act.
In October 1991, Hyles was demoted from his leadman position. Hyles testified that Ryan did this without any explanation.
Hyles testified that when he asked Ryan why he was
demoted, the only reason given to Hyles was that they "no longer
saw eye to eye."
{Tr. 394). Hyles testified he first learned of
Respondent's alleged concern about his conduct such as sleeping
on the job was from MSHA investigator Matchett after Hyles filed
his initial discrimination complaint.

2237

On July 7, 1992, the CQmplainants along with 16 of its 27
operating engineers were told that they were temporarily laid off
while the company was moving their big primary crusher. Complainants were told they would be off work a week or two. When
Complainants called the plant every week or two in July and
August, they were told work was slow and just a few of the more
senior people were working a few days a week.
In fact, however,
Respondent had been calling the work force back to work so that
by the end of August 1992 the entire work force had been called
back and were working except the four Complainants and one other
employee (Martin Hodgeman). Some of the employees were working
overtime. Later Martin Hodgeman was permitted to bump a less
senior employee so that the four Complainants were the only
employ~es not recalled after the temporary July 7, 1992 layoff.
In late August 1992, about the 28th of that month, Complainant Hyles and Soto went to the plant and observed less senior
employees than the Complainants were working. All four Complainants then filed grievances with their union contesting their layoff and the refusal to recall them.
The union contract in July and August of 1992 required
Respondent All American to notify the union if the company
planned a layoff and that there be a "bumping meeting." In a
bumping meeting a more senior employee could, if qualified, bump
a less senior employee. At the arbitration it was found the
company violated the union agreement by not having a bumping
meeting.
IV
The provision of All American's contract with the International Union of Operating Engineers, Local 12 in pertinent part
as to seniority, layoffs and bumping privileges are as follows:
Article XIII, Seniority
Section l(a): ... For the purpose of bidding
or bumping, an employee must be qualified in
the opinion of the Employer to perform the
work required by the classification into
which he is bidding or bumping.
Section l(b): Regular Layoff and Recall. At
a reasonable time before a layoff or recall
takes place, the Employer shall notify the
Union and the parties shall meet and effect
the layoff or recall in accordance with the
provisions of this Section.
In cases of
reduction in force, seniority by job classif.ication shall prevail. He shall have
bumping privileges as follows:

2238

1. He shall have the right to bump into
any classification provided he has total
seniority over the employee he is bumping and
is qualified. Bumping shall be on the shift
and at any location his seniority entitles
him to.
Section 3: Seniority Termination. Seniority
shall be terminated by . . . (3) if the employee performs no work for the Employer
within the bargaining unit for a period of
six months .
Article XIV, Grievance Procedures
Section 1 . . . . A "grievance as that term is
used· in this contract means a claim by an
employee or employer, that a term of this
Contract has been violated. . . .No dispute,
complaint or grievance shall be recognized
unles'$ called to the attention of Employer
and the Union within 30 days (except on
discharge, which shall be seven working days)
after the alleged violation occurred.
(b) Step Two:
If the grievance is not
settled in Step One within two working days,
within ten days thereafter, it shall be presented in writing through the Union to the
Employer. A committee of an equal number of
representatives of the Employer and the Union
will meet within 30 working days thereafter
to settle the grievance. If a decision is
reached by this committee, it shall be final
and binding upon all parties involved.

v
The Secretary in his post-hearing brief points out that the
union contract required All American to afford a senior employee
the right to bid on . jobs held by less senior employees in the
event of a layoff or recall, and to reassign the more senior
employee to any job classification which he is capable of performing.
(Tr. 201-202). The Labor Agreement did not require
that the more senior employee who is bidding on the job to be the
best equipment operator, or better or faster than the less senior
employee, in order to be entitled to "bump" into that job.
(Tr.
1660 (Ryan); Government Exhibit No. 51 Arbitrator's Decision at
15, fn. 7].
The Complainants filed complaints of discrimination with
MSHA in September 1992. The Secretary initiated temporary

2239

reinstatement proceedings in January 1993, and the four Complainants were temporarily reinstated on February 11, 1993, by agreement of the parties.
When the four Complainants were temporarily reinstated, All
American had changed the hours of the two shifts. The maintenance shift was changed from the day shift to the second shift,
and the production shift was changed to the first (day) shift.
(Tr. 443) .
The four Complainants were assigned to work on the day shift
performing production job classifications.
Evidence was presented that each of the Complainants experienced a deterioration in
working conditions, including increased scrutiny and verbal harassment.
(Tr. 444-445, 468-470}.
In early March 1993, All American implemented a temporary
third (midnight) shift to run production, temporarily assigning
several of the most senior plant repairmen to perform production
jobs during the third (midnight} shift. Ryan testified that the
third shift wa'~ implemented on a temporary basis, in order to run
wet material through the plant. Hyles testified that the senior
plant repairmen assigned to the third shift, Alex Alegria, Dennis
Simmons, Clemente Nunez, and Mack Crutchfield, had performed
maintenance work on the day shift for many years prior to March
1993.
(Tr. 447). Hyles testified that it was unusual for senior
employees to be assigned to work the midnight shift.
(Tr. 450).
The most senior employees are entitled to the best shift, and
most senior employees bid onto the day shift, · which is considered
the best shift in terms of the working hours.
(Tr. 447).
On March 24, 1993, after having assigned the senior plant
repairmen to p~rf orm the production jobs on the midnight shift
for three weeks, All American announced a layoff. Prior to the
layoff, Ryan stated to McGuire, the union agent, that he had
"four too many operators at the plant," and "had four problem
children on days." McGuire testified that he believed Ryan was
referring to the four Complainants, and that he expected that
Ryan would layoff the four Complainants.
(Tr. 206} . .
When All American discontinued the temporary third shift, on
March 23, Ryan did not reassign the senior plant repairmen to
their regular positions on the maintenance shift. All American
required all of the temporary third (midnight) shift employees to
participate in the formal · layoff meeting and to bid on jobs held
by less senior employees in order to get back onto the day shift.
Ryan testified during cross-examination that he expected the
senior plant repairmen on the temporary third (midnight) shift to
bid back onto the day shift.
(Tr. 1687).
Each of the four Complainants was "bumped" (replaced) by a
senior plant repairman. Plant repair positions were available on

2240

the seniority list. Union official McGuire testified that it was
unusual for a · plant repairman to bump into a conveyerman position, when plant repair positions were available.
(Tr. 798-850) .
The four Complainants were the only employees who were displaced
as a result of the layoff on March 24, 1993.
(Tr. 457).
Alex Alegria, the most senior plant repairman at the mine,
replaced Complainant Gregory Dennis in the conveyerman position,
the least skilled position at the mine and one which involves
primarily manual shoveling. The other three senior plant repairmen, Clemente Nunez, Dennis Simmons, and Mack Crutchfield, who
had been classified as plant repairmen for many years prior to
the March 1993 layoff, replaced ("bumped") Complainants Hyles
(loader operator), Soto (loader operator), and Mears (crusher
operator).
(Tr. 456) . Hyles testified that it was unusual for
senior plant repairmen to bump into production jobs.
(Tr. 4 5 7).
On March 24, 1993, each of the four Complainants was called
into the layoff meeting and instructed that he was to bid on a
job held by a less senior employee because he had been "bumped"
out of his curr~nt job.
(Tr. 452). The four Complainants testified that they were apprehensive and intimidated during the
course of the layoff meeting, and believed that Ryan would refuse
to allow any of them to bump into job classifications (disqualifying them) for which they were qualified in order to terminate
their employment.
(Tr. 452). Complainants Hyles and Soto requested they be permitted to consult with their attorney, due to
the pending MSHA discrimination complaints, prior to selecting a
job bid.
(Tr. 452). Neither Ryan or anyone else advised the
Complainants that their job bids would be considered untimely
after the meeting. Evidence was presented that Complainants
Mears and Dennis did not request to bump during the meeting,
because they believed Ryan would automatically disqualify them
from any job. The Complainants wanted to consult with the
Solicitor handling these discrimination cases before exercising
any bidding or bumping rights they may have had under the
employer's agreement with the union.
Shortly after the layoff meeting, Local 12 business agent,
McGuire, called Ryan to inform him that Hyles requested to bump
into the plant operator position. McGuire testified that Ryan
responded, " You can tell Marty Collins (Business Agent) no
fucking way."
(Tr. 220 - 221). Each of the Complainants later
submitted a written request to bid into jobs held by less senior
employees. All American refused to accept any of the Complainants' requests to exercise their "bumping" rights, alleging that
their requests were untimely.
Union officials McGuire and Collins testified that there is
no requirement in the Labor Agreement that the employee select a
job bid at the time of the layoff meeting.
(Tr. 218, 1096).
Collins testified that the industry practice is to allow

2241

employees to consider their options and consult with their
families for several days.
(Tr. 1102-1103). Collins testified
that he believed that it was improper for All American to refuse
to honor the job bids of the Complainants after the meeting, and
that it was reasonable for Hyles and Soto to request time to . seek
advice of counsel due to the pending MSHA case.
(Tr. 1092,
1095).
VI

Each of the four Complainants filed a second complaint of
discrimination with MSHA alleging that the March 1993 layoff was
in retaliation for their MSHA-related safety activity. The
Secretary initiated temporary reinstatement proceedings, but did
not at that time proceed with the hearing set for reinstatement
when the Complainants were again temporarily reinstated by agreement of the parties on April 26, 1993.
Petitioner presented evidence that when Complainants returned to work in late April 1993, the four Complainants were
again verbally ~harassed by mine management, subjected to increased scrutiny on the job, and given reduced working hours and
constantly changing reporting times.
(Tr. 462-464, 471-472, 729732). The Secretary points out that during the same period in
April 1993, All American began hiring approximately - lo new
employees, including several plant repairmen.
(Tr. 472-474;
Government Exhibit No. 16 Seniority list dated August 25, 1993
and Government Exhibit No. 28 Dispatch records of new employees) .
In August 1993, All American posted a seniority list which
indicated that the seniority dates of Complainants Mears, Soto,
and Dennis were January 1993.
(Tr 732). When Mears asked why
his original seniority date was not on the list, Ryan stated that
he had no seniority.
(Tr. 733).
Petitioner points out that the monthly production records
provided by All American which reflect gross production of aggregate show that All American increased its output of finished
material in July-August 1992, and in March-April 1993.
(Government Exhibit 50). Petitioner also points out that the. charts
introduced by Respondent db not reflect that the company reduced
the number of employees when the national economy was performing
poorly.
(Respondent's Exhibit 40A).
VII
Cathy Ann Matchett, the special investigator with MSHA, who
investigated the discrimination complaints testified that in her
interview with Mr. Smillie, a former employee, he stated that he
had overheard a conversation between Mr. Sisemore and Mr. Ryan
saying that they wish they knew who had reported them to MSHA so
they could make it worth that person's while to leave.

2242

Matchett when asked what information Smillie provided concerning sleeping on the third shi.f t. She replied "lie stated that
Mr. Hyles had--that that had happened quite a bit, and that
everyone did it now and then, including himself".
The special investigator also testified she obtained information that the four employees that bumped the four Complainants
were heavy-duty repairmen, with the highest seniority at the
mine, and at that time there were two plant repair jobs available.
Asked as to what the union officials told her regarding
whether the Complainants' layoff was proper, the investigator
replied as follows:
A.

The three individuals I spoke to
strongly indicated to me that the
Company was trying to manipulate the
bumping procedure and the lay-off
,procedure in order to get rid of the
four Complainants; that, although it was
technically done correctly, it was not
the common way to handle a bumping
procedure.

Q.

And, how strongly did the Union
officials make that statement to you?

A.

Very strongly.

(Tr. 68) .

The special investigator testified as a result of her
investigation that she concluded that discrimination had occurred
and recommended that enforcement of the provisions of 105(c) of
the Act be pursued.
Matchett, the MSHA special investigator in this matter
prepared a Memorandum of Interview immediately after her
March 26, 1993, interview of Patrick McGuire, business representative for the Operating Engineers. The Memorandum of Interview
(Government Exhibit 19) states in part the following;
Mr. McGuire stated that as long as he has
been associated with All American Asphalt (34 years) the repairmen who bumped into the
production jobs held by the four Complainants, had always worked as repairmen.
I
asked if, by working on the third shift for 3
weeks, these men then were qualified to work
in production. He said that the company is
the sole qualifier and if the company says
they are qualified, they are qualified. He
did point out that there were repair jobs

2243

available to bump, but none of the men
(repairmen) did so. McGuire foresees that
Ryan will work the four repairmen on production and then hold them over to do repair.
McGuire said that the bumping procedure
was strange because as the men came in, one
at a time, they didn't say, "I want a loader
position . " They said, "I want Hyles' loader
position . " McGuire stated that this was at
the bounds of legality, and that the men
doing the bumping would not talk to the union
representatives . Ryan had taken the reinstatement order (not a copy of the reinstatement agreement) and posted it on the company
bulletin board three days before the announcement of the lay-off--presumably to show
that he had the right to RIF the reinstated
employees.
McGuire stated that Ryan never directly
said he was going to "get" these men, but
"that was the inference that was made."
McGuire says that Ryan and All American
Asphalt is his worst nightmare. He foresees
that Ryan will work the guys he has 14-16
hours/day rather than put on another shift
and place these guys . . . . .
McGuire thinks the company is trying to
use the union against MSHA to protect the
company. • . . .
McGuire is very disgusted about the latest
developments and believes that the company
and its attorney have planned this for some
time.
Investigator Matchett also prepared a Memorandum of
Interview immediately after her March 26, 1993, interview of
Marty Collins, the business representative for the Operating
Engineers IUOE Local No. 12. The Memorandum (Government Exhibit
18) states in part the following:
I asked Mr. Collins about the latest layoff at All American. He said management had
accomplished it according to the collective
bargaining agreement but that they were sure
the repairmen who did the bumping had been
told where to bump. According to Mr. Collins, it doesn't make sense for a repairman
to bump a conveyorman, who just shovels all

2244

day. The union has no proof that the men
were coached by the company. At the bumping
meeting, Collins and McGuire objected to the
company bumping the two shop stewards (Soto
and Dennis). Management said they didn't
recognize the language in the contract about
stewards.
I asked Mr. Collins if he heard a comment
made by Mr. Ryan to Pat McGuire to the effect
that "one way or another, we'll get rid of
those four." Collins said he did not hear
such a comment.
I asked Mr. Collins if, in setting up the
third shift which was subsequently subject to
lay off, the company had acted in accordance
with the agreement. He said that they had.
He stated that the company told the union the
reason they put on the third shift was because of the wetness of the material.
It was
so wet that the plant would not run to capacity and therefore, they needed another production crew to keep the plant running more
hours. Since the material had dried out, the
company contends that these positions are now
extra. The lay off of this third shift resulted in the bumping of the four complainants. . . . .
He contends that the company is trying to
do through the lay off procedure what they
couldn't do through the grievance procedure.
(Ex. 18) .
VIII
Applicable Law
Section 105(c) (2) of the Mine Act, 30 U.S.C. § 815(c) (1) in
relevant part 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, in-

2245

eluding 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 such miner, representative of miners or applicant for · employment has instituted or caused to be instituted any proceeding under or related to this
Act or has testified or is about to testify
in any such proceeding, or because of the
exercise by such miner, representative of
miners or applicant for employment on behalf
of himself or others of any statutory right
afforded by this Act.
Section 105(c) of the Act was enacted to ensure that miners
will play an active role in the enforcement of the Act by protecting them against discrimination for exercising any of their
rights under the Act.
The basic principles governing analysis of discrimination
cases under the \Mine Act are well settled.
In order to establish
a prima facie case of discrimination under Section 105(c) of the
complaining miner must prove , by a preponderance of the evidence,
that (1) be engaged in protected activity , and (2) that the adverse action taken against him was motivated in any part by that
protected activity.
In order to rebut a prima facie case of discrimination, the operator must show either that no protected
activity occurred , or that the adverse action was in no part
motivated by the miner ' s protected activity.
Secretary of Labor
on behalf of Fasula v. Consolidation Coal Co. , 2 FMSHRC 2786
(1980), rev ' d on other grounds sub nom. Consolidation Coal Co . v.
Marshall, 663 F.2d 1211 {3rd Cir. 1981); Secretary of Labor on
behalf of Robinette v . United Castle Coal Co., 3 FMSHRC 803
(1981) .
If the operator cannot rebut the miner's prima facie case in
this manner , it nevertheless can defend affirmatively by proving
that (1) it was also motivated by the miner's unprotected activities, and (2) i t would have taken the adverse action in any event
for the unprotected activities alone.
The operator bears the
burden of proof with regard to such an affirmative defense.
Haro
v. Magma Copper Co., 4 FMSHRC 1935 {1982)
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence i n time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator. Secretary on behalf of Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, (November 1981), rev ' d on
other grounds sub nom at 2510. See also Boich v. FMSHRC, 719

2246

F.2d 194 (6th Cir. 1983); and Donovan v. Stafford Construction
Company, No. 83-1566 D.C. Cir. (April 20, 1984) (specifically
approving the Commission's Fasula-Robinette test), NLRB v.
Transportation Management Corporation, 462 U.S. 393 , (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
IlC

Adverse Action

Based upon the record and Respondent's representation I find
that as of October 1991 Respondent still had not fou nd out who
"turned in" Ryan and All American to MSHA for the safety violation of April 1991. I further find that the demotion of Hyles
from his leadman position on the graveyard shift to a journeyman
loader position .on the day shift in October 1991 wa s not motivated by Hyles' protected activity. I find that at that time
Hyles' supervisor, Ryan, had received credible substantiation of
the · rumors of Hyles' on the job misconduct in the performance of
his duties as a ' leadman on the graveyard shift. This misconduct
involved sleeping on the job and possible time card fraud.
I
f urther find that even assuming arguendo that Respondent suspected or knew of Hyles' protected activity and had mixed motives in
demoting Hyles, that ·Hyles' unprotected on the job misconduct by
itself would have caused All American to demote him from his
leadman job and assign him to a lower paying journeyman job on
the day shift. There was no violation of lOS(c) in demoting
Hyles from his leadman position.
The major adverse action taken by All American was it's
failure to recall the four Complainants after the temporary July
1992 layoff. Respondent's refusal to recall the Complainants
resulted in termination of their seniority pursuant to section 3
item (3) of Article XIII of the Union Agreement. That section
provides "Seniority shall be terminated by ... (3) if the employee
performs no work for the Employer within the bargaining unit for
a period of six months • . . . "
Based upon the interview statements received in evidence and
the testimony of the four Complainants, the special MSHA investigator, Mr. Smillie, and the Union officials Collins and McGuire,
I find that sometime prior to the July 1992 layoff All American
became acutely aware of the complainants' April 1991 protected
activity and were motivated because of that protected activity to
get rid of the four Complainants. In order to obscure its discriminatory animosity towards the Complainants, Respondent pursued an indirect course of action that resulted in termination of
the employment of the Complainants. This course of action started with the July 1992 temporary layoff that resulted in the
recall of the entire work force except the four Complainants.

2247

The Claimants were again voluntarily reinstated by agreement
of the parties on February 11, 1993. Thereafter, All American
temporarily put on a third (graveyard) shift for a short period
of time, March 6, 1993 to March 27, 1993. Ryan assigned his most
senior employees to this graveyard shift such as the repairmen
who had for a long period of time been doing maintenance work on
the day shift. Respondent changed the first production shift
from a night shift to the day shift. Thus the four Complainants
were reassigned to do their production work on the day shift.
I
agree with the Secretary that the main purpose of Respondent's
convoluted work assignment, shift changes, temporary graveyard
shift and layoff was to terminate the Complainants' employment
while appearing to be simply complying with the union agreement.
The Secretary accurately summarizes the contrived basis for
the layoff of the four Complainants as follows:
Accordingly, Respondent manipulated the
job assignments of the senior plant repairmen, contrary to the normal practice at the
mine, assigning them to the least desirable
working hours on a temporary basis, in order
to have them "bump" the Complainants off of
the day shift.
Instead of simply reassigning the plant
repairmen to their normal jobs on the maintenance shift (which presumably required
their assistance to continually repair and
maintain the finish plant), Respondent implemented a formal layoff which it planned to
result in the four Complainants being
"bumped" by the senior plant repairmen.
In
sum, this convoluted series of work assignments was contrived by Respondent to terminate the Complainants, while appearing to
comply with the contractual requirement of
holding a meeting with the union.

conclusion
Without question the remarks of Mr. Ryan, Respondent's
supervisor and vice-president and those of Mr. Sisemore,
Respondent's president, displayed hostility towards the protected
activity of April 1991 and it was only a matter of time before
Respondent gained knowledge of who engaged in the protected
activity and contrived a way to get rid of Complainants in a
manner that they hoped would obscure their retaliatory animus
towards Complainants for their protected activity.

2248

Based upon reasonable inferences from the evidence presented
I find and conclude that Respondent discriminated against Complainants in violation of 105(c) of the Mine Act.
ORDER
1. The Respondent is ORDERED to reinstate each of the
Claimants to his former position with full back pay, benefits and
interest to the date of his reinstatement, at the same rate of
pay, and with the same status and classification that he would
now hold had he not been unlawfully discharged in July 1992.
Interest shall be computed in accordance with the Commission's
decision in Secretary/Bailey v. Arkansas-Carbona, 5 FMSHRC 2042
(December 1983), and at the adjusted prime rate announced semiannually by the Internal Revenue Service for the underpayment and
overpayment to taxes.
2. The Respondent is ORDERED to expunge from each of the
Claimant's personnel file and company records all references to
the circumstan~es surrounding his employment termination.
counsel for the parties are ORDERED to confer with each
other during the next twenty (20) days with respect to the
remedies due each of the Claimants, and they are encouraged to
reach a mutually agreeable resolution or settlement of these
matters, and any stipulations or agreements in this regard shall
be filed with me within the next thirty (30) days.
In the event counsel cannot agree, they are to notify me of
this within the initial twenty (20) day period.
If there are any
disagreements, counsel ARB FURTHER ORDERED to state their respective positions on those compensation issues where they cannot
agree, with supporting arguments and specific references to the
record in this case, and they shall submit their separate proposals, with supporting arguments and specific proposed dollar
amounts for each category of relief, within thirty (30) days.
If
the parties believe that a further hearing may be required on the
remedial aspects of this matter, they should so state.
I retain jurisdiction in this matter until the remedial
aspects of this case are resolved and finalized.
Until those
determinations are made, and pending a finalized dispositive
order by the undersigned presiding judge, my decision in this
matter is not final.
In addition, assessment of the civil
penalty assessment for the discrimination violations in this
matter is held in abeyance pending a final dispositive order.

Aug st F. Cetti
Administrative Law Judge
2249

Distribution:

J. Mark Ogden, Esq . , Office of the Solicitor, U.S. Department of
Labor, 3247 Federal Building, 300 North Los Angeles Street, Los
Angeles, CA 90012 (Ce rtified Mail)
Naomi Young, Esq., GARTNER & YOUNG, P . C., 1925 Century Park East
#2050, Los Angeles, CA 90067-2 7 09
(Certified Mail)
Eve Chesbro, Esq., Ontario Airport Center, 3 3 7 North Vineyard
Avenue #400, Ontario, CA 91764-445 3 (Certified Mail)
Mr. James Hyles, 1 5 986 Nancotta Road, Apple Valley, CA 92307
(Certified Mail)
Mr. Douglas Mears, 18212 Brightman Avenue, Lake Elsinore, CA
92503
(Certified Mail)
Mr. Derrick Soto, 15394 Dakota Road, Apple Valley, CA 92307
(Certified Mail)
Mr. Gregory Dennis, 11128 Amarillo Street, Alta Noma, CA 91701
(Certified Mail)

sh

2250

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

.NOV .3 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS

v.

FRIEND & RIKALO, INCORPORATED,
RespondEnt

:

Docket No. WEST 94-90-M
A. C. No. 45-00632-05507

:

Docket No. WEST 94-381-M
A. C. No. 45-02614-05515

. Wynoochee Gravel Pit 1
Portable Crusher #1

pecision
Appearances:

· ~ochelle

Before:

Judge Weisberger

Kleinberg, Esq., Office of the Solicitor
U.S. Department of Labor, Seattle, WA for
Petitioner;
John o. Friend, and Chuck Hulet, Aberdeen, WA
for Respondent

Statement of the case
These cases, consolidated for hearing, are before me
based upon Petitions for Assessment of Civil Penalty filed
by the Secretary (Petitioner) alleging violations by Friend &
Rikalo, Incorporated (Respondent) of various mandatory safety
regulations. Pursuant to notice the case.s were heard in Seattle,
Washington on October 4, 1994.
Findings of Fact and Discussion
Citation Nos. 4128560, 4128361 and 4128362 CDocket No. ·wEST 94-90-M)
Dennis Harsh, an MSHA inspector inspected Respondent's
Wynoochee Gravel Pit on October 6, 1993. He testified that there
were no fittings securing a 440 volt electric cable to 3 electric
breaker compartments. He issued three citations alleging
violations of 30 C.F.R. S 56.12008 which provides, as pertinent,
that cables shall enter electrical compartments "· •• only
through proper fittings." Harsh's testimony was not impeached by
Respondent, as Respondent did not cross examine him. Respondent
did not offer any testimony or exhibits to contradict the
testimony of Harsh. Therefore, I accept Harsh's testimony.
Based upon his testimony, I find that Respondent did violate

2251

Section 56.12008, supra. Further, I accept Harsh's
uncontradicted and unimpeached testimony that should an injury
occur as consequence of the violation, the injury would be fatal.
I find that a penalty of $50 is appropriate for ·each of these
citations.
Citation No. 4128363 CDocket No. WEST 94-90-Ml
On October 6, 1993, Harsh continued his inspection of the
subject site. He indicated that the on-off controls for the
various conveyors were at the motor control center. The motor
control center was located . in a van where the plant operator
worked. According to Harsh, when he was at the on-off controls,
he was unable to observe the full length of the two conveyor
systems, and the feeder that was in the pit area. Harsh
indicated that there were no visible or audible warnings
installed on the conveyor system. He issued a citation alleging
a violation of 30 C.F.R. S 56.1420l(b) which, as pertinent,
provides as follows: "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." Respondent did
not impeach the testimony of Harsh. Respondent did not offer any
testimony or evidence to contradict the observation of Harsh. 1
Therefore, based upon the testimony of Harsh which I accept, I
find that Respondent did violate Section 56.1420l(b), supra.
According to Harsh, he observed trucks in the stock pile
area. He indicated that there was "very heavy truck traffic."
(Tr. 32).
He also observed truck drivers standing outside their
trucks approximately 30 to 40 feet from the transfer conveyor.
He opined that the cited conditions would "eventually" cause an
John o. Friend, one of Respondent's owners, manages the
subject pit. He testified that when the conveyor system at issue
was installed approximately two years ago, he contacted MSHA for
a voluntary inspection to ensure compliance. He indicated that
subsequent to the inspection he was told that the system was "in
full compliance." (Tr. 48). He also indicated that the system
has been inspected every six months, and was not cited until the
instant citation was issued by Harsh. Friend further indicated
that the conveyor system has remained in the same configuration
since it was installed. He also indicated, in essence, that the
aotor control center has been kept at the same location . The
fact that previous MSHA inspectors found Respondent not to be in
violation of Section 56.14201, supra regarding the subject
conveyor system, has a bearing on Respondent's negligence .
However, it is not entitled to any probative weight in a ~ I1QY.Q.
proceeding relating to whether Respondent was in violation of
Section 56.14201(b), supra.
1

2252

accident or injury. (Tr. 33). He based his opinion upon his
experience working in mines, "· . • and also reading of equipment
starting up without full warning to persons unaware that it's
going to start, and also accident investigations that I've read
about and been involved with." (Tr. 33). He indicated that he
rated an injury that could reasonably be expected as permanently
dis~bling.
He concluded that the violation was significant and
substantial. He said that this conclusion was based upon MSHA
policy that a violation was deemed significant and substantial if
as a result of a violation an injury is reasonably likely to
occur resulting in loss of work days, or restricted duties.
In Mathies Coal Co., 6 FMSHRC 1 (January 1984), The
Commission set forth the elements of a "significant and
substantial" violation as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result
in an inj\1ry; and, (4) a reasonable likelihood that
the injury in question will be of a reasonable serious
nature.
(6 FMSHRC, supra, at 3-4.)
In United States steel Mining Company. Inc., 7 FMSHRC 1125, 1129
(August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury".
U.S. Steel Mining Co., 6 FMSHRC 1834, 1336
{August 1984) •
I find that as a result of the violation herein an inJury
producing event could have occurred. However, the record does
not present any specific facts to base a conclusion that an
injury producing event was reasonably likely to have occurred.
Hence, following well established Commission precedent I find
that the violation was not significant and substantial.
I accept the testimony of John D ~ Friend, one Respondent's
owners, that the conveyor system at issue was found by MSHA to be
in full compliance when it was set up two years ago, and was not
cited in subsequent inspections. I thus find that Respondent's
negligence herein to be mitigated to some degree. I find that a
penalty of $75 is appropriate for this violation.

2253

Violations of 30 C.F.R. S 56.14107Ca l .
Citation No. 4128364 CDocket No. WEST 94-90-Ml
According to Harsh, when he made his examination on .
October 6, there was no guard across the bottom of the tail
pulley on the sand conveyor belt. He indicated that although
there was a guard on the right side of the tail pulley, it
extended only to a point approximately 4 inches below the tail
pulley.
He also indicated that the belt was not guarded across
the bottom. According to Harsh, the lack of a bottom guard, and
the lack of a full guard covering the tail pulley allowed easy
access to a rotating pulley. He indicated that the plant
operator works in the area. He also opined that a person
shoveling under the belt could get entangled in the moving parts
of the belt in the absence of a bottom guard.
On cross examination, it was elicited from Harsh that a
person could be injured by the exposed pulley only if he would
crawl on under the belt. In this connection, Chuck Hulet, the
manager of Respondent's rock pits, testified that there is no
reason for a person to go under the conveyor. He indicated that
if the area under the belt has to be cleaned, the cleaning is
performed with a small front loader ("Bobcat"). Louigi Hanchett,
a ground-man employed by Respondent, is responsible for cleani ng
in and around conveyors.
Hanchett testified that once or twice
a day he cleans under the conveyor at issue with a bobcat and
shovel. He testified that he has never crawled under a conveyor
while it was running. In his opinion the belt was guarded
adequately.
30 C.F.R. S56.14107(a) provides as follows: "Moving machine
parts shall be guarded to protect persons from contacting gears,
sprockets, chains, drive, head, tail, and takeup pulleys,
flywheels, couplings, shafts, fan blades, and similar moving
parts that can cause injury."
Respondent did not impeach or contradict the testimony of
Harsh that (l) there was no guard across the bottom of the
conveyor belt at issue, and (2) the right hand side ~ard
extended only 4 inches below the tail pulley. I therefore accept
his testimony. I find that because of these two conditions,
there was a possibility of contact with a moving tail pulley. I
thus find that Respondent did violate Section 56.14107, supra.
Harsh indicated on cross-examination that a person could be
injured by the exposed rotating pulley only if he were to crawl
under the conveyor.
Such an injury could occur only while the
conveyor is in operation. There is no evidence that persons
regularly work under the conveyor, or in very close proximity to
the conveyor in the area cited, while it is in operation. In
this connection, I accept the testimony of Hanchett that he never

22 54

crawls under the conveyor while it is running. Within this
context I find that it has not been established that there was a
reasonable likelihood of an injury producing event, i.~., contact
with a rotating tail pulley as a consequences of the violation
her~in .
I thus find that the violation was not significant and
aubstantial . 2
Citation No. 4128365
According to Harsh, the guard across the bottom of the 7/8
tail pulley left two inches exposed. Also, there was a 4 inch
gap between the frame and the rear section of the guard. The
tail pulley was 37 inches above the ground. In essence, this
testimony was not impeached or contradicted, and I accept it.
Based upon testimony of Harsh, I find that Respondent did violate
Section 56.14107, supra.
Citation No . 4128366
According to Harsh, on October 6, 1993, ,when he inspected
the Canica feed conveyor, he observed that two inches of the
pulley was exposed below the guard. He also observed a hole in
the left side of the guard that measured 6 inches by 6 inches.
This hole was directly adjacent to the rotating pulley. He said
that the bottom of the pulley was 28 inches above the ground
level .
The testimony of Harsh was not impeached or contradicted,
and therefore I accept it. I find that Respondent did violate
Section 56.14107, supra.
Citation No. 4128801 (Docket No. WEST 94-381-Ml
On November 3, 1993, Harsh observed that there was no back
guard or inside guard next to the motor and gear box on the
shaker screen. The lower portion of the exposed pulley was 49
inches above the ground, and the upper pulley and belt areas were
70 inches above the ground. I accept the testimony of Harsh , and
2

At the hearing, Petitioner indicated that the testimony
Harsh would give pertaining to the issue of significant and
substantial in citation nos . 4128365, 4128366, 4128801 (Docket
No . WEST 94-381) citation no. 4128802 (Docket WEST 94-381), and
citation no. 4128803 (Docket No. WEST 94-381) would be the same
as the testimony given regarding the issue of significant and
aubstantial in citation no. 4128364. No new evidence was
presented in citation nos. 4128365, 4128366, and 4128801 on the
issue of significant and substantial. Thus I find that my
decision regarding the issue of significant and substantial in
citation no . 4128364 is applicable also to citations nos.
4128365, 4128366, and 4128801.

2255

find that as consequence of the lack of adequate quarding there
could have been contact with exposed moving parts. I conclude
that Respondent did violate Section 56.14107(a), supra.
Citation No. 4128802 (Docket No. WEST 94-381-Ml
In essence, according to Harsh, when he examined the ~o. 1-3
conveyor belt he observed that the belt/pulley pinch-points on
the drive motor and on the gear box were exposed . He indicated
that the distance between the drive motor and the guard was
approximately 4 inches from the motor. Hence, contact with
exposed parts was possible. Based on the testimony of Harsh, - I
conclude that Respondent did violate Section 56.14107(a), supra.
Citation No. 4128803
Harsh observed .the 1-1 conveyor, and noted that there was no
horizontal quard for the pulley. He also noted that there was a
gap of approximately 3-4 inches between the quard, and the
exposed motor. Based on the testimony of Harsh, I conclude that
Respondent did violate Section 56.14107(a), supra.
Penalties
I find that a penalty of $50 is appropriate for each of the
violations of Section 56.14107(a), supra.
ORDER

It is hereby Ordered that the following citations are amended
indicate that are not significant and substantial: (1) Citation
Nos. 4128363, 4128364, 4128365, 4128366, 4128801, 4128802, and
4128803.
(2) It is further ordered that Respondent shall pay a civil
penalty of $525 within 30 days of this decision.

~~

AVram Weisberger
Administrative Law Judge
Distribution:
Rochelle Kleinberger, Esq., Office of the Solicitor,
U.S. Department of Labor, 1111 Third Avenue, Suite 945,
Seattle, WA 98101-3212 (Certified Mail)
John Friend, owner/Operator, and Chuck Hulet, Plant Operator,
Friend & Rikalo, Incorporated, P.O. Box 3, Aberdeen, WA 98520
(Certified Mail)
/efw

2256

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N .W., 61li FLOOR
WASHINGTON, D.C. 20006

.NOV 4
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

1994
CIVIL PENALTY PROCEEDING
Docket No. YORK 93 -156-M
A. C. No. 43-00484-05501

v.
Bush Quarry
NORTH AMERICAN SLATE
INCORPORATED,
Responde nt
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before :

Judge Merlin

This case is before me upon a petition for assessment of a
civil pena lty under section 105(d) of the Federal Mine Safety and
Health Act of 197 7. The Sol icitor has fil ed a motion to approve
settlement for the one violation in this case . A reduction in
the penalty from $50 to $20 is proposed. The citation in this
case was issued because a record of h ealth and safety inspections
were not being kept. The Solicitor advise that the failur·e to
have the inspection records available was due in part to the
intermittent operation of the mine. Therefore negligence was
less than originally thought . Al so the operator is small in size
and the facility was newly opened .
I have reviewed the documentation and representa tions made
in this case, and conclude that the proffered settlement i s
appropriate under the criteria set forth in section llO(i) of the
Act .
WHEREFORE , the motion for approval of settlement is GRANTED,
and it is ORDERED that the operator PAY a penalty of $20 within
30 days of this decision .

Paul Merlin
Chief Administrative Law Judge

2257

Distribution :
David L. Baskin, Esq., Office of the Solicitor, U. s. Department
of Labor, One Congress Street, 11th Floor, P. O. Box 8396,
Boston, MA 02114
Rosemary A. Macero, Esq., Morrison, Mahoney & Mi ller, 250 Summer
Street, Boston, MA 02210-1181
/gl

2258

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, V~RGINIA 22041

NOV

7 1994

DERALD WILSON,

.:. DISCRIMINATION PROCEEDING
.. Docket No . LAKE 94-229-D
v.
... VINC CD 94-04
FREEMAN UNITED COAL MINING CO., . Crown II Mine
.
Respondent
Complainant

ORDER OF DISMISSAL

Appearances:

Derald Wilson, Girard, Illi nois, pro se;
Kathryn s. Matkov, Esq., Gould and Ratner,
Chicago, Illinois, for Respondent.

Before:

Judge Melick

At hearing, Complainant, Derald Wilson, requested approval
to withdraw his complaint in the captioned case. At a trial
conference, Mr. Wilson was shown documentary evidence indicating
that the alleged retaliatory event actually preced d his claimed
protected activity . Permissi•n t withdraw was ac rdingly
granted at hearing and is herhby
nfirmed. 29 c. R. § 2100.11.
This case is therefore DISMI ED.

I

I

;

'

!

Gary elick
Admin rtrative

udge

Distribution:
Derald Wilson, 302 North Harrison, Girard, IL 62640 (Certified
Mail and Regular Mail)
Tony Kujawa, 1220 s. Park Avenue, Suite D, Herrin, IL 62948
{Certified Mail)
Kathryn S. Matkov, Esq., Gould and Ratner, 222 North LaSalle St.,
8th Floor, Chicago, IL 60601 (Certified Mail)
\lh

2259

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

NOV

8 1994

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 94 -14
A. c. No. 29-00845-03553

v.
Docket No. CENT 94-48
A. C. No. 29-00845-03554

PITTSBURG & MIDWAY COAL MINING
CO., YORK CNYN COMPLEX,
Respondent

Docket No. CENT 94-65
A. C. No. 29 -0084 5-03555
Docket No. CENT 94-66
A. C. No. 29-00845-03556
Docket No. CENT 94 - 67
A. C. No. 29-00845-03557
Docket No. CENT 94-68
A. C. No. 29-00845-03558
Docket No. CENT 94 -70
A. C. No. 29-00845-03 560
Docket No. CENT 94-71
A. C. No. 29-00845-03561
Docket No. CENT 94-77
A. C. No. 29-00845-03562
York Surface Mine
Docket No. CENT 94-78
A. C. No. 29-00095-03575
York canyon Underground

. Docket No. CENT 94-46

A. C. No. 29-00224-03617
Docket No. CENT 94-47
A. C. No. 29-00224-03618

2260

Docket No. CENT 94-64
A. C. No. 29-00224-03620
Cimarron Mine
ORDER DENYING RESPONDENT'S MOTION
TO STAY DOCKET NO. CENT 94-47
AND

DECISION

Appearances:

Janice L . Holmes, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Petitioner;
John w. Paul, Esq., Pittsburg & Midway Coal Mining
Company, Englewood, Colorado, for the Respondent.

Before:

Judge Feldman

These proceedings concern petitions for civil penalties
filed by the Secretary of Labor pursuant to section 105(d) o f the
Federal Mine Sa~ety and Health Act of 1977, 30 u.s.c. § 80 1
et~' (the Act).
The respondent, Pittsburg & Midway Coal
Mining Company is a subsidiary of the Chevron Company. These
matters were hea rd on July 27 through July 29, 1994, in Santa Fe,
New Mexico. The respondent has stipulated that it is a mine
operator subject to the jurisdiction of the Act.
The parties presented a settlement motion at trial for the
purpose of resolving all of the above docketed cases with the
exception of Docket No. CENT 94-47. The terms of the parties'
agreement were approved on the record and will be incorporated at
the end of thi s decision.
DOCKET NO. CENT 94-47

Docket No. CENT 94-47 concerns 104(d) (1) Citation
No. 3589770 and 104(d)(l) Order No. 3589771 issued on July 15,
1994, by Mine Safety and Health Administration (MSHA) Inspector
Melvin S~iveley for violations of section 75.323(c) (2) (i) and
(ii), 30 C.F.R. §§ 75.323(c) (2) (i) and (ii), as a result of
methane concentrations of 1.8 percent and 8.8 percent in the
working section outby the face in the No . 2 return tailgate entry
at the respondent's 4 left longwall in its Cimarron Mine.
Section 75.323(c) provides, in pertinent part, that when a
split of air returning from any working section contains
1 percent but not more than l v4 percent methane, adjustments in
the ventilation system must be made to reduce the methane
concentration in the return air to less than 1 percent . When the
split of air from the working section in the return entry
contains 1.5 percent methane or more, the operator must withdraw

226 1

personnel pursuant to section 75.323(c) (2) (i) and deenergize
equipment at its source pursuant to section 75.323(c)(2) (ii).
: The respondent has stipulated to the violative methane
reading of 1.8 percent outby the face in the No. 2 return entry. 1
(Tr. 79, 420). Although the respondent asserts that longwall
foreman James Hancock was unaware of the 8.8 percent methane
reading outby the face in the No. 2 entry, the respondent has
admitted that it cannot refute the location and validity of this
reading.
(Tr. 145-146, 153-154, 19 5 , 232, 315-317, 343, 420 ) .
In addition, the respondent repeatedly admitt~d that, given these
high methane readings, immediate deenergizing and withdrawal of
personnel should have been the respondent's response. Therefore,
having recognized the exigency of the circumstances, the
respondent has essentially conceded that the violations in issue
were properly characterized as significant and substantial. (Tr.
117-118, 335, 339-341, 343, 351). What is contested is whether
the violations are attributable to the respondent's unwarrantable
failure.
At trial the respondent declined to call longwall foreman
James Hancock as a witness because Hancock is the subject of an
MSHA special investigation. While I indicated that I would have
entertained a pretrial motion to stay this case for possible
consolidation with a llO{c) proceeding pending completion of
MSHA's investigation, I declined to stay this matter based on a
motion made at trial without opening the record. I stated that
the testimony and evidence presented by the parties would be
received. If the record evidence was insufficient to dispose of
the issues before me, I noted that I would entertain a motion for
stay or a motion for continuance for further depositions and
possible further testimony at the end of the hearing. (Tr.
56-57).
At the conclusion of the hearing, for the reasons noted
below, I concluded that the evidence, including signed statements
by three of the respondent's employees who took pertinent methane
1

The 1.8 percent reading was obtained by the respondent's
employee David Ortiz, who is also the safety committeeman, in
return air located two cribs outby the face along the rib line in
the No. 2 entry. Section 75.323(a) requires that methane air
samples be taken· at least 12 inches from the roof, face, ribs and
floor. Mine personnel, particularly safety committeemen, are
aware of this 12 inch requirement. {Tr. 97, 227). Although the
respondent has stipulated to this 1.8 percent reading and has
conceded that Ortiz probably took the reading "correctly",
respondent's counsel indicated that he would have liked to ask
Ortiz about the precise location of this methane reading. {Tr.
231, 420). The respondent, however, did not call Ort.i z as a
witness.

2262

readings, as well as the testimony of respondent witnesses safety
coordinator Donald Giacomo and safety manager Micha~l Kotrick,
provided an adequate and essentially uncontroverted record that
supp.orts the actions of Inspector Shiveley. (Tr. 407-411). 2
Consequently, I issued a tentative bench decision affirming
Shiveley•s citation and order. (Tr. 418-436). However, I noted
that I would defer making a final written decision until I
considered the respondent's proposed findings and conclusions
addressing the matters raised in my tentative bench decision. 3
(Tr. 417-418).
The respondent filed proposed findings of fact and
conclusions on October s, 1994. The proposed findings were
accompanied by a motion for stay pending MSHA's investigation
results and a motion to consolidate this case with two related
104(d) orders issued 6-weeks prior to trial. A similar motion to
stay made by the respondent was denied at trial . (Tr. 410-411) .
The MSHA investigation and the orders sought to be
consolidated were known to the respondent well in advance of the
hearing. I decline to delay my decision in this matter on the
basis of these ~elated posthearing motions . Accordingly, the
respondent's motions for stay and consolidation ARE DENIED.
Preliminary Findings of Pact
The subject citation and order were issued as a result of
the respondent's failure to deenergize equipment at the power
source and failure to withdraw personnel immediately after ·
methane readings of 1.8 and 8.8 percent were obtained at
approximately 6:00 a . m. on July 14, 1993, outby the working face
2

At transcript page 409 I noted that Ortiz states he
obtained the 8 . 8 percent reading in the working section.
However, I erroneously stated the reading was taken one crib inby
the No. 2 return entry. Ortiz states the reading was taken two
cribs outby in the No. 2 entry.
3

At the conclusion of my tentative bench decision, I
discouraged extensive posthearing briefs and requested the
respondent to limit its proposed findings and conclusions to
three issues. (Tr. 444-445) . Upon further reflection, I realize
parties are entitled to file proposed findings and conclusions
under section 557(c) of the Administrative Procedure Act.
5 u.s . c. S 557(c). Consequently,, on September 24, 1994, I had a
conference call with the parties wherein, with the approval of
the parties, I set October 7, 1994, as the date for the
respondent's filing of unlimited proposed findings and
conclusions and October 20, 1994, as the secretary's reply date.
The respondent's findings were filed on October 5, 1~94, and the
Secretary replied on October 17, 1994.

2263

in the No. 2 return entry. The 1.8 and 8.8 percent methane
readinqs were taken by David Ortiz, a repairman and Qnited Mine
Worker's Union safety committeeman employed by the respondent.
After takinq these hiqh readinqs, Ortiz encountered lonqwall
foreman James Hancock at the lonqwall face. The thrust of the
respondent's defense to the unwarrantable failure charqe is that
Ortiz, the union safety committeeman, did not inform James
Hancock, who had authority to deenerqize power and withdraw
personnel, that he (Ortiz) had obtained high methane readinqs.
Shortly before the high methane readings were obtained by
Ortiz, dangerously high methane readings were also obtained by
lonqwall foreman James Hancock and safety coordinator Daniel
McClain. The high methane condition was known to Angelo Pais,
Hancock's supervisor and lonqwall coordinator, and the
respondent's Cimarron Mine Complex mine manager John Klinger.
As indicated above, the reasons for the respondent's
decision not to call Hancock are clear. However, for reasons
best k.nown by the respondent, the respondent also declined to
call Ortiz, McClain, Pais or Klinger. Inexplicably, citinq
"efficiency", the respondent relied on the testimony of safety
coordinator Giacomo rather than safety coordinator Daniel McClain
or safety committeeman David Ortiz although it was McClain and
Ortiz rather than Giacomo who had direct knowledge of the
pertinent events in this proceeding. (Tr. 72-73, 75-77). The
respondent also called safety manager Kotrick who admittedly
arrived at the mine site at approximately 6:00 a.m. on July 14,
1993, after the events in question had occurred. (Tr. 332) ·.
Thus, neither of the witnesses called by the respondent had
direct knowledge of the facts in issue.
I have relied on siqned statements by Hancock, Ortiz and
McClain in my disposition of this case.' These statements are
essentially consistent with the testimony of Giacomo and Kotrick.
lurther Findings and Conclusions
The incident in question occurred on the "qraveyard" shift
from 11:00 p.m. on July 13 through 7:00 a.m. on July 14·, 1993, at
the 4 left lonqwall section of the respondent's Cimarron Mine.
The Cimarron Mine is ventilated by a blowing system rather than
an exhausting system. Air is circulated by a fan that blows air
down a 400 foot shaft for distribution throuqhout the mine.

• Althouqh Respondent's Ex. 1 is not siqned, it is a typed
summary prepared by the respondent of information provided by
Hancock on July 16, 1993.
It was admitted in evidence without
objection.
·

2264

The 4 left longwall section is developed as a two entry
system. · The No. 2 return entry is on the tailgate side of the
longwall. The No. 2 entry is approximately 17 feet wide by
7 feet high. It is supported by two rows of cribs built on
5 foot spacings with a walkway down the center between the cribs.
(Tr. 302-304). Although the No. 2 entry also serves as a bleeder
entry, the entry's primary purpose is as a return. Therefore, at
trial I ruled that the mandatory safety standards regarding
permissible methane concentrations of one percent for return
entries rather than 2 percent for bleeder entries should apply.
Counsel for the respondent indicated that he had no objection to
my ruling.
(Tr. 311-313, 322).
Shiveley•s contemporaneous July 14, 199 3 , inspection notes
reflect that James Hancock was aware of a high methane
concentration problem on the tailgate side of the 4 left longwall
section since returning from vacation on June 30, 1993. (P.
Ex. 7). Safety Manager Kotrick testified that he had "nothing to
refute" that there was a history of a methane concentration
problem of at least several weeks duration prior to the July 14,
1993 incident.
(Tr. 403-404). Kotrick was aware that Mike
Calango, a miner's representative, had filed a 103(g) complaint
with MSHA concerning high methane levels at the longwall section.
Shiveley arrived at the respondent's mine site at
approximately 10:00 a.m. on July 14, 1993, after receiving
Calango's complaint at 9:00 a.m. concerning continued mining
operations despite high methane readings. Shiveley procee~ed to
the tailgate of the 4 left longwall accompanied by Kotrick and
miner representative Martha Horner. Shiveley took several
methane readings at various locations which were all within
permissible limits. Wing brattice curtain which redirected the
intake air and alleviated the methane concentration problem had
been installed prior to Shiveley•s arrival at the mine. (Tr.
166). Shiveley ascertained that there was a problem of high
methane readings on the "graveyard" shift earlier that morning.
However, personnel from that shift had departed the mine at
7:00 a.m. prior to his arrival. Shiveley gathered information
about the early morning incident and left the mine at
approximately 2:20 p.m.
Shiveley returned to the mine at approximately 10:15 p.m. on
July 14, 1993, and stayed until 2:15 a.m. on July 15, 1993,
acquiring information about the incident under investigation.
Based on his investigation, Shiveley issued 104(d)(1) Citation
No. 3589770 and 104(d) (1) Withdrawal Order No. 3589771 to Hancock
at 12:15 a.m. on July 15, 1993. The citation and order were
terminated when issued as the remedial installation of the
brattice curtain had already occurred. However, Shiveley•s
actions were appropriate as the Commission has concluded that the
Act's 104(d) withdrawal sanctions are not limited to _instances

2265

where an inspector observes an existing violation. NACCO Mining
Company, 9 FMSHRC 1541, 1548 (September 1987). (Tr . 242- 246}.
In this regard, inspectors may cite operators if they believe
violations occurred based upon their investigation of past events
and circumstances. id..:.. at 1549; see also Cyprus Plateau Mining
Corporation, 16 FMSHRC 1610, 1614 (August 1994) .
Shiveley's findings and subsequent MSHA investigation
revealed that at 11:00 p.m . , prior to the start of his July 14
•qraveyard" shift, safety coordinator McClain met with swing
shift longwall foreman Bob Falagrady who expressed concern about
a high level of methane inby the gob at the tailgate. (Resp.
Ex . 4). McClain had been hired by the respbndent only 2 weeks
before.
McClain went to the headgate of the 4 longwall section where
he met Hancock at approximately 1:00 a.m. Hancock had been
taking methane readings that were within normal limits. Sometime
after 3:15 a.m. McClain went to the break line or hinge point of
the tailgate shield in the No. 2 entry where he obtained a
7 percent methane reading at the break line and a 9 percent
reading approximately 15 feet inby the break line. (Resp. Ex. 4;
P. Ex. 8). The location of these readings are illustrated in a
diagram prepared by McClain in Resp. Ex. 4 and a map drawn by
Hancock in Joint Ex. 1. The parties stipulated that these
readings were taken by McClain between 3:15 and 4:30 a.m. (Tr .
369-3 70}.
Understanding the concept of the break line is crucial for
a proper evaluation of the degree of the respondent's negligence
in this case . The "break line", also known as the break point or
hinge point, is defined as "[t]he line in which the roof of a
coal mine is expected to break." Dictionary of Mining. Mineral,
and Related Terms, U.S. Dept. of the Interior , Bureau of Mines,
1968. The break line is the point at which, when coal is
extracted and the longwall shield is advanced, the roof crumbles
and falls creating the gob. It is the point at which the roof
support ends a~ the hinge point of the shield. (Tr. 93-94,
169-171). The parties stipulated that the break point is 12 feet
inby the face . (Tr. 94}. The respondent characterized the
12 foot area between the face inby to the break point as a
"working area of the working section" as it is under supported
roof.
(Tr. 109, 174).
Although the respondent attempted to portray McClain's
7 percent reading as "behind" the break line in the gob, the
preponderance of the evidence, including Kotrick's testimony,
reflects the reading was taken at the break line. (Resp Ex 4,
Joint Ex. 1; Tr. 351, 373-374, 425). Inspector Shiveley•s
uncontroverted testimony establishes that methane testing at the
break line is essential to ensure that methane concentrations are
vented out the bleeder system rather than miqrating outby the

2266

break line through the return air into the working section.
(Tr. 132-135) •
- McClain's 7 percent methane concentration reading at the
break line evidenced a dangerous methane buildup in the working
section. This reading troubled McClain. McClain told Hancock
that he was uncomfortable with the 7 percent methane
concentration at the break line and the 9 percent reading inby
the break line in the gob. However , Hancock told McClain that he
felt the readings from the break line inby into the gob did not
present a problem .
As McClain was a new employee, he asked Hancock who he
should talk to regarding this apparent ventilation problem.
Hancock stated no one was available on the midnight shift but
recommended people he could talk to on the day and swing shifts.
Sometime between 4:30 a . m. and 5:00 a.m. McClain called Hancock
to determine if Hancock had taken any further methane readings in
the tailgate. Hancock informed McClain that he had not taken
further readings but he was about to do so . McClain told Hancock
that he had spoken to Complex Manager John Klinger who told
McClain that Hancock should shutdown the section if the methane
concentrations had not changed in the tailgate. Hancock. asked
McClain to explain the situation to his (Hancock's) supervisor
Angelo Pais. (Resp. Ex . 1) . Hancock was waiting for further
instructions from Pais.
Counsel for the respondent has conced~d that Hancock's
interpretation that McClain's 7 percent methane reading was · not a
problem was not an appropriate response. (Tr. 379). In this
regard, Kotrick testified that McClain's 7 percent reading in the
vicinity of the break line was cause for great concern and that
he did not agree with Hancock's analysis of the situation and
Hancock's decision to continue operations. (Tr. 351, 394) .
Although McClain's 7 percent reading was not a basis for the
citation and order in issue, the testimony of Giacomo and
Kotrick, as well as statements made to McClain by complex manager
Klinger, reflect that consideration should have been given to
withdrawing personnel as a result of this reading alone. (Tr.
339-340, 393-394).
At 5 : 45 a.m. Hancock obtained a 6 percent methane reading at
the tailgate entry approximately 12 feet in.b y the break line at
the back of the shield. (P . Ex. 6). Shortly thereafter, Hancock
spoke to his crew consisting of headgate man Isidro Tapia,
shearer operators Delbert Archuleta and Dan Renner, propmen Jim
Feldman and Gerry .Renner , and mechanic David Ortiz. (P. Ex. 8).
Hancock told them that McClain had found 9 percent methane at the
tailgate and that they had the right to refuse to work in unsafe
conditions·. (Resp. Ex. l; P. Ex. 8). However,_ shifting the
statutory burden placed on operators to withdraw per~onnel when
methane levels are above 1.5 percent to employees to voluntarily

2267

remove themselves from the mine is inappropriate and ineffective.
(Tr. 342).
_ At approximately 6:00 a.m. the power to the longwall shear
automatically shutdown because of a defect in the sensor of the
aethanometer. The shutdown that caused this malfunction was not
related to high methane readings at the tailgate. The automatic
ahutdown of the shear was not the equivalent of shutting off
power at the source as the belt conveyor continued to run. In
addition, all lights and other electric equipment continued to
operate in the section. Thus, the shearer shutdown did not
remove other potential ignition sources. (Tr. 397-399).
Contemporaneous with the shear shutdown, David Ortiz, safety
committeeman, became very concerned and decided to take methane
readings of his own. Ortiz obtained an 8.8 percent methane
reading in the walkway of the No. 2 return entry two cribs outby
the face and a 1.8 percent methane reading two cribs outby the
face along the rib line. (P. Ex. 8; Tr . 105, 145-153). These
readin~s are depicted by an "O" and circled in red on Joint
Ex. 1.

At approximately 6:10 a.m., Ortiz met Hancock carrying a
roll of brattice near the headgate. Hancock told Ortiz that Pais
had instructed Hancock to install brattice curtain to see if they
"could get the problem solved." (P. Ex. 8). Precisely what
Ortiz told Hancock is unclear. Hancock, in an exculpatory
written statement provided to MSHA on May 11, 1994, states that
Ortiz told him about an 8 percent methane reading in the gob at
the tail of the shield rather than an 8.8 percent reading two
cribs outby in the No. 2 entry in the working section. (Resp.
Ex. 5). However, Hancock admits that Ortiz did inform him of the
1.8 percent reading along the rib. l.!L_
Hancock further stated:
Ortiz was excited about the gas. I was too. (About
[one] week later I told him it didn't dawn on me the
significance of the 1.8 t reading. He said likewise it
didn't on him either). (Emphasis added). (Resp. ·
Ex. 5).
5

Early in the trial, the respondent alleged that Ortiz'
8.8 percent reading was taken in the No. 2 entry inby the face in
the gob. This allegation is illustrated on the map in Joint
Ex. 1 prepared by Hancock. However, after telephoning Ortiz for
clarification after the first day of trial, Ortiz informed the
respondent that his 8.8 percent reading was not taken in the gob.
Rather, it was obtained two cribs outby the face in the center
walkaway of the No. 2 entry in the working section. _(See, ~,
Joint Ex. 1; Tr. 145-150).

2268

This statement is glaringly inconsistent. It is difficult to
reconcile the admitted excitement of Ortiz and Hancock over the
methane readings if they failed to recognize the significance of
thos.e readings.
Vltiaat• Conclusions
As discussed above, the respondent has stipulated to the
1.8 percent methane concentration detected by Ortiz along the rib
line in the working section in the No. 2 return entry.
Similarly, the respondent cannot refute the 8.8 percent reading
taken by Ortiz near the 1.8 percent reading in the center walkway
of the No. 2 entry two cribs outby the face. It is also
undisputed that the respondent failed to deenergize power at the
source or withdraw personnel after these readings were obtained.
In this regard, the evidence reflects that the automatic shutdown
of the longwall shear at 6:00 a.m. on July 14, 1993, because of a
faulty sensor in the methanometer, did not constitute
deenergizing at the source as the belt conveyors and lights
continued to operate. Consequently, the evidence establishes the
fact of the violations of sections 75.323(c) (2) (i) and (ii) cited
by Shiveley in Citation No. 3589770 and Order No. 3589771,
respectively.
A violation is properly characterized as significant and
substantial if it is reasonably likely that the hazard
contributed to by the violation will result in injuries of a
reasonably serious nature if mining operations were permitted to
continue without abatement of the violation. Ordinarily, the
appropriate analysis for determining whether a violation is
significant and substantial is set forth in the commission's
decision in Mathies coal Company, 6 FMSHRC l (January 1984).
In the instant case, the respondent has stipulated to the
fact that the cited violations were properly characterized as
significant and substantial in view of Ortiz' statement that his
8.8 percent reading was obtained in the return entry outby the
face in a working se~tion. (Tr. 117-118). Although the
respondent has stipulated to the significant and substantial
question, I wish to note that applying the traditional· Mathies
test in this case is unnecessary. High methane concentrations in
working sections, as much as nine times the permissible limit in
this instance, are presumptively significant and substantial
under section JOJ(i) of the Mine Act. 30 u.s.c. S 863(i).
In section 303(i), Congress requires the immediate shutdown
and withdrawal of personnel when methane concentrations are
1.s percent or higher. High methane concentrations are so
aerious that Congress has removed any discretion from MSHA
inspectors. In fact the statutory burden to cease operations and
withdraw until methane concentrations are below l percent is
placed directly on the operator without the necessity for

2269

intervention by any MSHA official. Given this congressional
mandate, the gravity of these violations easily satisfies the
criteria for a significant and substantial designation.
Finally, we arrive at the question of unwarrantable failure.
In Ellery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the
Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. This
determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure"
("neglect of an assigned, expected, or appropriate action"), and
"negligence" (the failure to use such care as a reasonably
prudent and careful person would use • • • characterized by
'inadvertence,' 'thoughtlessness,' and 'inattention'"). ~at
2001. Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference" or
a "serious lack of reasonable care." ~at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991).
Resolution of the question of whether the respondent's
inaction in this case constitutes unjustifiable or. inexcusable
conduct requires an analysis of what management personnel knew on
July 14, 1993, and when they knew it. At the outset I note that
management knew there was a methane concentration problem at the
longwall tailgate since late June 1993. At 11:00 p.m. on
July 13, 1994, at the beginning of the graveyard shift in
·question, swing shift longwall foreman Falagrady told safety
coordinator McClain about high levels of methane inby the gob at
the tailgate .
Conscious of Falagrady's concern, between 3:15 a.m. and
4:30 a.,m. McClain obtained a 9 percent methane reading in the gob
approximately 12 to 15 feet inby the break line and a 7 percent
methane concentration in an outby direction from the gob at the
break line in the direction of the return air. The 7 percent
reading was cause for grave concern because, as Kotrick admitted,
it was taken approximately at the break line rather than in the
gob. (Tr. 351, 374, 378). As discussed earlier, the
significance of this 7 percent reading is that it indicated that
the methane in the gob was migrating into the working .section
rather than being effectively ventilated through the bleeder
system.
Despite the fact that McClain told Hancock that he was
concerned about these readings, mining operations continued even
after McClain reported these readings to complex manager John
Klinger. In this regard, at trial even the respondent did not
contend that its failure to react to McClain's the 7 percent
reading was appropriate . (Tr. 379). Thus, the respondent should
have seriously considered withdrawing personnel as· early as
J :.15 a. m. to 4: Jo a. m.
Instead, Hancock continued mining

2270

operations while waiting for further instructions from supervisor
Angelo Pais •
. At approximately 5:45 a.m. Hancock obtained a 6 percent
methane concentration at the back of the tailgate shield
approximately 15 feet inby the break line. Once again
consideration should have been given to withdrawing personnel .
Instead, Hancock informed the longwall crew that they could
voluntarily leave the mine if they felt it was unsafe. Although
I am certain Hancock was well intentioned, attempting to transfer
the decision to withdraw from the mine operator as mandated under
section 303(i} of the Mine Act to the individual miner is
inexcusable. Peer pressure and the fear of retribution, whether
or not such fear is warranted, could dissuade employees from
evacuating . Thus, the respondent missed a second opportunity to
cease operations and withdraw.
While the McClain and Hancock readings are not the basis for
the citation and order in issue, the respondent clearly had ample
notice of a serious methane problem in the No. 2 tailgate entry.
At approximately 6:00 a.m., safety committeeman David Ortiz
obtained methane concentrations of 1.8 percent along the rib line
and 8.8 percent in the center walkway two cribs outby the face in
the return air. It is undisputed that Ortiz met Hancock at the
longwall near the headgate shortly after obtaining these
readings. Hancock has admitted that Ortiz informed him of the
1.8 percent concentration.
Hancock's statement that he failed to appreciate the
significance of this 1.8 percent reading given the obvious
concern, if not fear, of McClain and Ortiz, as well as the
concern of manager Klinger, defies belief . The respondent's
failure to deenergize sources of ignition such as the belt
conveyor and other electric lights and equipment and withdraw
personnel on the basis of Ortiz' 1.8 reading alone constitutes
inexcusable and unjustifiable conduct.
I reach this decision without addressing the respondent's
vigorous assertion that Ortiz never informed Hancock of the
8.8 percent reading. While I find it difficult to imagine that
safety committeeman Ortiz would have neglected to communicate
this information to Hancock , there is no direct evidence or
written admissions on this issue. In this regard, I find the
respondent's suggestion at trial that Hancock's purported lack of
knowledge of Ortiz' 8.8 percent reading is attributable to noise
at the longwall which interfered with Hancock's ability to hear
Ortiz as notably unconvincing. (Tr. 192-194).
It was, however, incumbent on Hancock to obtain all
pertinent information from Ortiz to assist Hancock in his
decision whether to withdraw personnel. Taking the respondent at
its word, Hancock's failure to obtain all relevant information,

2271

given management's notice of a significant methane condition, in
and of itself manifests an unwarrantable failure by. the
respondent.
Accordingly, 104(d) (1) Citation No. 3589770 and 104(d) (1)
order No. 3589771 shall be affirmed. As noted in my tentative
bench decision, given the respondent's size as well as the
serious gravity and high degree of negligence collectively
aanifested by the respondent's management staff, the $17,500
total civil penalty proposed by the Secretary for the citation
and order in issue shall also be affirmed. 6
SETTLBMENT TERMS

As indicated above, the parties reached settlement of all
other matters in this consolidated ·docket proceeding. The
settlement terms include the respondent's payment of $4,291. The
settlement terms were presented by the parties and approved on
the record as being consistent with the civil penalty criteria in
section llO(i) of the Act. The settlement with respect to the
proposed and agreed upon penalties is as follows:
pocket No. CENT 94-14
Citation No.
3589188

Proposed Penalty
$ 2,300

Settlement
$1,700

Docket No. CENT 94-48
Citation No.
3589587

Proposed Penalty
$ 3,500

Settlement
$

617

pocket No. - CENT 94-65
Citation No.
3589543
3589548
3589550
3589551

Proposed Penalty

Settlement

50
50
50
431

50
50
Vacated
Vacated

$
$
$
$

6

$
$

The Secretary proposes a civil penalty of $8,000.00 for
Citation No. 3589770 and $9,500.00 for Order No. 358~771.

2272

Docket No. CENT 94-66
citation No.
3589560
3589582
3589462

Proposed Penalty

Settlement

so
so
288

$
so
Vacated
$ 288

Proposed Penalty

Settlement

$
$
$

Docket No. CENT 94-67
Citation No.
3589594
3589617
3589618

$
$
$

50

so

50

$

so
so

$

50

$

Docket No. CENT 94-68
Citation No.
3590391

Proposed Penalty

Settlement

so

Vacated

Proposed Penalty

Settlement

$

Docket No. CENT 94-70
Citation No.
3S90589

$

431

$

200

Docket No. CENT 94-71
Citation No.
3590712
3590713

Proposed Penalty
$
$

288
288

Settlement
$

$

288
130

Docket No. CENT 94-77
citation No.
3590479

Proposed Penalty

$

59S

Settlement

$

so

(S&S Deleted)
Docket No. CENT 94-78
Citation No.
34088S3

Proposed Penalty

Settlement

178

$ 100
(S&S Deleted)

$

2273

Docket No. CENT 94-46
Citation No.
2930235

Proposed Penalty

Settlement

900

Vacated

Proposed Penalty

Settlement

50
50
50
309
309

Vacated
Vacated
Vacated
$ 309
$ 309

$10,417

$4,291

$

Pocket No. CENT 94-64
Citation No.
3589568
3589569
3589570
3589572
3590487

$

$
$
$
$

TOTAL

QRDER
Accordingly, IT IS ORDERED .that 104(d)(l) Citation
No. 3589770 and 104(d) (1) Order No. 3589771 in Docket No.
CENT 94-47 llE APJ'IRMED. IT IS l'URTBER ORDERED that the
respondent shall pay a total civil of $17,500 in satisfaction of
this citation and order. In addition, consistent with the
approved settlement terms noted herein, the respondent IS ORDBRED
to pay total civil penalties of $4,291 in satisfaction of the
captioned docket proceedings referenced above. The respondent
has already paid the $1,700 agreed upon civil penalty in Docket
No. CENT 94-14. Consequently, the respondent SHALL PAY a total
civil penalty of $20,091 in these matters within 30 days of the
date of this decision. Upon timely receipt of payment, these
cases llB DISMISSED.

(?Q9::sw__·

-==-=>-

~:!"old
Feldman
Administrative Law Judge
Distribution:
Janice L. Holmes, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)

John W. Paul, Esq., The Pittsburg & Midway Coal Mining Co., P.O.
Box 6518, Englewood, co 80155-6518 (Certified Mail)
/fb

227 4

FKDBR&I. IOllB SAFBTY AJID BBAill'll JUtVJJS11 0 •.-xss:rOB
OfFICE Of AllMUIJSTRATJVE LAW .u>GES
2 IKYLllE, 10th FLOOR
5203 LEHIURG PIKE
FALLS C...CH, VIRGINIA 22041

NOV
RAYMOND OTIS STIEFEL, III,
Complainant

v.
LANG SAND & GRAVEL COMPANY,
INCORPORATED,
Respondent

8 1994

.: DISCRIMINATION PROCEEDING
: Docket No. SE 94-128-DM
.. SE MD 93-06
. Lang Pit
. I.D. No. 01-02959
.
DECISION

Appearances:

Raymond Otis Stiefel, III, Albertville,
Alabama, pro se;
David Lee Jones, Esq., Jones and Milwee,
Guntersville, Alabama, for Respondent.

Before:

Judge Barbour
STATEMENT OF THE CASE

This case involves a discrimination complaint filed
by Raymond Otis Stiefel, III, against Lang Sand & Gravel
Company, Inc. (Lang Sand and Gravel or the company) under
section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977 (Mine Act or Act), 30 u~s.c. § 815(c)(3). Stiefel
alleges that on July 1, 1993, he was demoted because he called
the Secretary of Labor's Mine Safety and Health AdDiinistration
(MSHA) to repo;t safety violations. Stiefel further alleges
that after he was demoted, he was, in effect, forced to quit.
Stiefel requests back pay and expenses.
Lang Sand & Gravel responds that Stiefel had to return to
his previous job with the company and rather than return, be
gave his two week notice. The company adds that Stiefel had
to return to his previous job because the ·company eliminated
the shift on which he worked for economic reasons.
Stiefel filed an initial discrimination complaint with
llSHA. Following an investigation of the complaint, llSHA deterained that a violation of section lOS(c) had not occurred and
Stiefel then filed a complaint with the Commission. Pursuant
to notice, a hearing was conducted in Huntsville, Alabama.
Prior to the hearing Stiefel amplified the remedies he was
seeking to include certain medical bills and restitution for
a truck that he allegedly lost while unemployed.
2275

The fundamental issues are whether Stiefel engaged in any
activities protected under the Mine Act and, if so, whether his
demotion and subsequent loss of employment were motivated in
any part by those activities.
THE TESTIMONY

Tbe Complainant's Witnesses
Baymond Otis Stiefel. III.
Stiefel testified on his own behalf. He stated that on
July 1, ~993, Greg Johnson, supervisor of Lang Sand & Gravel's
Lang Pit, came to his home. According to Stiefel, Johnson was
there pursuant to the instructions of Leon "Pete" Lang, owner
and president of Lang Sand & Gravel (Tr. 18-19). In the presence
of Mark Bouska, a co-worker of Stiefel's, who was also Stiefel's
neighbor and friend, Johnson informed Stiefel that he was demoted
from a night shift supervisor to a day-shift front-end loader
operator . According to Stiefel, Johnson stated that the action
was taken because Stief el had informed MSHA about an accident at
the company's pit. Stiefel stated, "Lang • • • directed • • •
Johnson to remove me from the night shift to day shift as a
loader operator where he could keep an eye on me because I could
no longer be trusted since I had called MSHA" (Tr. 19).
Stiefel further stated that on July 2, he met with Lang
and Johnson and Lang reiterated what Johnson had said on July 1
(Tr. 19-20). Stiefel characterized his response as follows :
"Because of the unsafe conditions existing at Lang Sand & Gravel
during the period of time and being wholly concerned with my
safety and the safety of others, I was forced to tender my
resignation" (Tr. 20).
Stiefel stated that he began working for the company as a
laborer in approximately July 1992. Prior to that he had worked
as a heavy equipment operator, but he never before had worked in
the sand and gravel industry (Tr. 28). He worked approximately
three months as a laborer and in the Fall of 1992 transferred to
the job of front-end loader operator.
As Stiefel recalled, the pit was operating on two 12-hour
shifts at that time. However, some time during April 1993, the
company began working three eight hour shifts (Tr . 30).

Stiefel believed that he was making $5.00 an hour when
he began working as a front-end loader operator. Three or
four months later Stiefel transferred to a position loading
aand products into dump trucks for transportation (Tr. 25-26) .
In this position Stiefel earned $5.50 an hour. SUbsequently,
his pay was raised to $6.00 an hour, and when he left the
company he was making $6 . 50 an hour (Tr. 26-27).

2276

Stiefel testified that around June 22, 1993, the job of
plant operator on the night shift became available. · He and Lang
discussed it and decided that he was the right person for the
job (Tr. 33, 35). The job consisted of supervising two workers
and operating the plant -- i.e, operating the machinery that
processed sand and gravel (Tr. 34-35). According to Stiefel,
the supervisory responsibilities consisted solely of authority
to abut down the plant if something happened or if the equipment
broke down. Once he had shut down the plant he was supposed to
call Lang or Johnson and to do nothing until he checked with
them (Tr. 92).
Stiefel began the job on June 23, at a rate of $6.50 an
hour (Tr. 36). He claimed he usually worked six days a week
and averaged between 45 and 50 hours a week when he worked on
the third shift (Tr. 70). Thus, he worked five to ten hours
of overtime a week spread out over a six day period (Tr. 71).
Stiefel also claimed he was supposed to receive a pay raise,
but Lang never told him how much it would be and he never got
one. ~ Stiefel stated that whenever he asked about a raise
Lang told him that he, Lang, was "hard up for money" (Tr. 89).
In Stiefel's view, things went "rather smoothly," during
the first three or four days after he became night supervisor,
although there were problems with some of the equipment that
caused the company to be short of sand {Tr. 37).
There were four front-end loaders at the pit. On June 28,
two were running and two were out of service. On June 30,
Stiefel came to work around 10:00 p.m (Tr. 66). A miner named
OUther Stampler was running one of the front-end loaders. At
some point Bouska took over. Bouska was going to use the frontend loader to load the processing plant {Tr. 117). According to
Stiefel, Johnson and a miner named Albert Pridmore told Bouska
to get off the front-end loader so that Pridmore could use it
to load trucks (Tr. 40).
Stief el claimed that he had operated the same front-end
loader on June 30, and had noted that the brakes did riot work
properly. He stated that he bad complained about the brakes
(Tr. 48).
Pridmore loaded trucks the night of June 30 - July 1.
Stiefel testified that around 1:10 a.m. on July 1, he heard the
engine of the front-end loader stall. Stiefel was working in
the electric room. He looked out and saw the front-end loader
going backward down the hopper loading ramp. The equipment went
off of the ramp and overturned. Stiefel ran to help Pridmore.
Pridmore, who had hurt his back, slowly removed himself from the
equipment (Tr. 41-42).

2277

Johnson told Stiefel to take Pridmore to the hospital,
which Stiefel did. Around 6:00 a.m., Pridmore was · released
from the emergency room (his back injury was not severe) and
Stiefel returned to the pit (Tr. 42).
Back at the pit Stiefel spoke with Johnson for approximately
an hour about what bad happened . Around 7:00 a.m. or 7:30 a.m. ,
Lang appeared (Tr. 74). The front-end loader bad been righted
and the company's mechanic, Billy Chambers, was inspecting it.
Lang, Johnson, Bouska and Stiefel were there while Chambers
checked the equipment's condition {Tr. 43). Stiefel believed
that Chambers did not check the brakes {Tr. 42, 74). Around
7:30 a.m., Stampler got back on the front-end loader and started
loading trucks.
Stiefel went home around 8:45 a.m. However, prior to going
home, Stiefel had words with Lang concerning "why [Lang] couldn't
fix his equipment properly" (Tr. 43). Lang told Stiefel it was
none of his business and, as Stiefel explained, "I peeled out of
there. I was extremely hot" (Tr. 43). Stiefel maintained that
everyone who worked at the pit knew that the brakes on the frontend loader did .not work, but that Lang's attitude was that if a
miner did not want to operate the equipment Lang would find
someone who did (Tr. 50).
Stiefel claimed that when he asked Lang why equipment could
not be fixed at the pit and when Lang told him it was none of
his business, Stiefel responded, "if we can't get stuff [fixed]
around here I guess I'll give my two-week notice" (Tr. 55)'.
Stiefel maintained that in so doing he was not really giving
Lang his two-week notice, rather he was ma.king clear he was not
going to be responsible for hurting anyone or for telling someone
to operate the front-end loader out of fear that he would lose
bis job. ~
Once home Stiefel called MSHA to advise the agency what
had happened and to ask for an inspector to be sent to "check the
plant" (Tr. 43). He placed the call around 9:00 a.m. (Tr. 83).
Stiefel was not certain but believed he might have spoken with
Terry Phelps in MSHA's Birmingham, Alabama office (Tr. 52, 83) .
Stiefel testified he also reported that the front-end loader did
not have brakes and that it was a practice at the pit for the
equipment to be used in an unsafe condition (Tr. 127-128).
· Stiefel believed that in response to his call MSHA came
to the pit, but the company, by a ruse, prevented a meaningful
inspection of the equipment. Stiefel speculated that the
company might have "hosed down" the front-end loader so it
would not be bot and the MSHA inspector would not recognize
that the equipment had been used. or, the company aight have
placed a "red tag" on the front-end loader to indicate it had
not been operated the day of the accident (Tr. 54, 110).

2278

Stiefel acknowledged he was not present when the inspector
came to the pit, but stated he was told by someone that this
is what had happened. He asserted that previously he had been
ordered to park a front-end loader he had been using in order
to make it appear to a visiting inspector that the equipment
had been removed from service (Tr. 112-113, 124-125). Stiefel
did not report this to MSHA "because of fear of losing [his]
job" (Tr. 126).
Later that day, as Stiefel was preparing to go to work,
Johnson came to Stiefel's home and told Stiefel, at Lang's
direction, that because he had been the one who called MSHA he
was going to be returning to the second shift and was going to
drive a front-end loader. In addition, he was not going to get
a pay raise and would no longer be a supervisor (Tr. 84).
Stiefel maintained he responded that he would not operate
another piece of equipment at the pit. Stiefel did not go to
work that night because Johnson told him to report the following
morning (Tr. 86). Johnson did not tell Stiefel that the third
shift had bee~ terminated (Tr. 86).
Stiefel stated that the next day, July 2, he called MSHA
again and asked if Lang or Johnson could demote him because he
had contacted MSHA. The MSHA representative stated he could
not be demoted for that reason {Tr. 86).
Around noon, he returned to the pit. Johnson and Lan9
were there. In Johnson's presence Stiefel asked Lang why he
was "demoted" and Lang replied, "You're demoted because you
called MSHA, and I can't trust you no more" {Tr. 44). Stiefel
considered it a "demotion" because he was not going to be a
supervisor, he was not going get the raise he had been promised
and he was going to have to operate unsafe equipment (Tr. 45-46).
Stiefel responded by telling Lang he could not be demoted for
calling MSHA and that to do so was a violation of federal law
(Tr. 44-45). Lang replied, "I can do whatever I want" (Tr. 45).
.
After Stiefel left the mine on July 2, he did not return to
seek re-employment (Tr. 57). Had he returned he would have been
making the same amount of money as when he left -- $6.50 an hour
(Tr. 90). Subsequently, Stiefel filed for state unemployment
compensation, which was denied. Stiefel maintained he failed to
get the compensation because he could not attend the hearing
(Tr. 119).
llark Bouska
Bouska testified that he initially worked for the company
as a truck driver and later worked as a laborer. xn the latter
position, he operated front-end loaders from time to time
(Tr. 130-131).

2279

on June 29, Bouska was loading sand with the front-end
loader that was involved in the July 1 accident (Tr. 132). He
was working on the day shift and operated the equipment for about
45 minutes (Tr . 137). On June 30, he operated it again. The
front end loader was not "red tagged" on either day (Tr. 138).
on July l, he arrived at the pit around 6:00 a.m. Be
checked in and found Johnson who asked him to shovel underneath
•ome of the conveyor belts. Bouska shoveled until around
7:30 a.m, when Johnson asked him to do other tasks (Tr. 152) .
When Bouska checked in, some of the other employees were
talking about the accident that had occurred earlier that
morning.
Bouska spoke with Stiefel who described the accident
to Bouska (Tr. 153).
Around 11:00 a.m., Bouska maintained that Stampler, who had
been operating the front-end loader that morning, parked it by
the break room shed. Johnson came over and told Bouska to hose
it down in order to cool the engine.
Bouska stated that he left the company that morning . He
walked off the job because of "[f]ear for my safety" and because
of an apparent dispute with Lang about who was Bouska'& boss,
Johnson or Lang (Tr. 146). Bouska did not complain to MSHA
about his safety concerns.
After he quit, Bouska went to Stiefel's home to ask what
Stiefel was going to be doing over the July 4 .weekend (Tr • . 155).
I..eon "Pete" I..anq
Stiefel also called Lang as a witness. Lang denied he ever
told Stiefel that he was demoted for calling MSHA (Tr. 161).
Brenda Crist
Finally, Stiefel called his fiancee, Brenda Crist, to
testify concerning a June 13, 1994, conversation involving her,
Stiefel and Johnson. Crist stated that Johnson told Stiefel,
"You called MSHA on Mr . Lang, therefore, you were demoted because
you could no longer be trusted, and he needed to keep you within
bis sights" (Tr. 168).
In addition, Johnson stated that Lang told him Stiefel
was supposed to get a raise after be started bis job on the
third shift. Johnson wondered why Stiefel never got the raise
(Tr. 169). Crist believed Johnson was not employed by the
company when the conversation took place (Tr. 172).

2280

Tbe Company's Witnesses
I.eon "Pete" Lana
Lang is the president of the company and owns a controlling
interest in it. Lang stated he also owns and operators Lang
construction, a company involved in site preparation (Tr. 174175).
Lang Sand & Gravel was formed in 1990. The property on
which the pit and plant are located is leased. The first day
of operations was January 16, 1991 (Tr. 176). In July 1993,
Lang was dividing his time by spending half of it with the
construction company and half of it at the sand and gravel
operation. Lang described Johnson as the person responsible
for the day-to-day operations of the sand and qravel company
(Tr. 178). Lang said of Johnson, "[H]e operated the plant,
did quality control, and supervised people, and he could even
hire them and fire them. I guess you'd call him just a general
superintendent" (Tr. 179).
Turning tc>'. the accident of July 1, Lang stated that fines
had been imposed on the company because the front-end loader
had overturned -- "$5,000 for the company and $5,000 personal"
(Tr. 180). Although he was not sure, Lang believed the fines
had to do with the brakes on the equipment (Tr. 181). He added
that within a week of the accident the company obtained a new
front-end loader.
Lang stated that when he arrived at the pit between 7:00
and 7:30 a.m. on the morning of July 1, he was informed of the
accident. Shortly thereafter he and Stiefel went to the accident
site and Lang asked Stiefel why Stiefel had allowed the use of
the front-end loader that night. (Lang observed that while
Stiefel, whom he described as a good worker, did not have hiring
and firing authority, he had the responsibility not to use a
piece of equipment if it was in unsafe condition (Tr. 183, 210).
Lang maintained that Stiefel tried to change the subject
by asking Lang why Pridmore was allowed .to operate a front-end
loader when Pridmore "couldn't see" (Tr. 184). (Lang explained
that Pridmore had hurt his eyes before he started working for
the company, but that when he was hired his vision was not a
problem (Tr. 185). "I have a doctor's excuse his eyes [were]
okay," he stated • .lsL..) According to Lang, he told Stiefel it
was none of his business, that when he hired someone he was sure
they were fit to work. Lang testified that as he and Stiefel
turned and started to walk back to the electric shed, Stiefel
•aid that he was turning in his two-week notice. Lang did not
aake any response to Stiefel's announcement. As Lang stated,
W[H]e just turned his notice in and I just let him leave"
(Tr. 212).

2281

Lang stated that to the best of his knowledge~ the frontend loader was righted and transported to an area near the plant
office and was not put back into service again (Tr. 186).
Lang also explained that at first the plant operated on
one shift. However, when new equipment was installed, Lang
decided to add a second shift and, ultimately, a third shift to
try to keep up with the demand for sand and gravel (Tr. 187).
Lang was not certain how long the plant had been operating on
three shifts when the accident occurred. However, on July 1
he decided to terminate the third shift and it has not been
reinstituted.
Lang maintained the reason for terminating the third shift
was "mainly economic," but he also decided to end it because
he did not have control over what went on at the operation in
the middle of the night (Tr. 188). Once the third shift was
eliminated the company went to two nine-hour shifts. Had Stiefel
stayed Lang believed he would have been able to work as many
hours as he wanted, given the fact that there would have been
plenty of overtime work available (Tr. 189). Lang did not recall
making any representations to Stiefel about when he would receive
a raise (Tr. 189, 214).
Lang stated that at the time of his discussion with Stiefel,
he was unaware Stiefel had called MSHA. It was not until MSHA
personnel arrived on the morning of July 1 that he learned someone had contacted the agency. Although he subsequently found out
it was Stiefel, he could not remember when (Tr. 190, 210). Lang
observed that because he would have been required to report the
accident to MSHA in any event, there was no particular detriment
to the company based on Stiefel's report since MSHA would have
known about the accident whether or not Stiefel called (Tr. 200).
Lang also testified that he never authorized Johnson to
tell Stiefel he was being demoted and that the reason he was
moved back to the job he had before he went to the third shift
was because of.the termination of the third shift. In that
position he was not going to suffer any reduction in salary
or reduction in benefits or in the number of hours he had the
opportunity to work (Tr. 191).
KAY Derek
Kay Derek is the office manager and bookkeeper. She works
at the office trailer located near the plant entrance. She
testified that on July 1, after Stiefel spoke with Lang, Stiefel
came by the office and told her he had quit. At this time no
one from MSHA had come to the property (Tr. 221). She described
his mood as "so-so" and she added, "I've seen him .are upset"
(Tr. 216). However, he was upset enough that she did not inquire
why he had quit. ~

2282

Derek acknowledged that she bad previously advised personnel
at the plant that MSHA inspectors or investigators were on the
property just to let the company personnel know the federal
personnel were present. However, she never gave any instructions
to company personnel to bide or to shut down anything and she bad
no knowledge of such a thing ever happening (Tr. 218).

THE LAW
Section l05(c)(l) of the Act protects miners from retaliation for exercising rights protected under the Act. The purpose
of the protection is to encourage miners "to play an active part
i~ the enforcement of the 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. 95-181, 95tb Cong. 1st Sess., at 35 (1977), reprinted in
95tb Cong., 2d Sess. I,,egislative History of tbe Federal Mine
Safety and Health Act of 1977 at 623 (1978).
A miner alleging discrimination under the Act establishes
a prima f acie case by proving that be or she engaged in protected
activity and that the adverse action complained of was motivated
in any part by that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980),
rev'd on other grounds sub nom. Consolidation Coal co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal co., 3 FMSHRC 803, 817-818 . (April
1981). The operator· may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity. Pasula,
2 FMSHRC at 2799-2800. If the operator cannot rebut the prima
facie case, it nevertheless may defend affirmatively by proving
that it also was motivated by the miner's unprotected activity
and would have taken the adverse action in any event for the
unprotected activity alone. Pasula, 2 FMSHRC at 2800; Bobinette,
3 FMSHRC at 817-818; see also Eastern A&soc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th cir. 1987): Donovan y. Stafford
Const. Co., 732 F.2d 954, 958-959 (D.C. Cir. 1984); eoich v.
FKSHRC, 719 F. 2d 194, 195-196 (6th Cir. 1983) (specifically
approving the Commission's Pasula-Bobinette test).
STIEFEL'S PRIMA FACIE CASE
Under this case law, Stiefel must first establish that
be engaged in protected activity and as a result suffered
discrimination.

2283

PROTECTED ACTIVITY
I conclude that Stiefel has established he twice engaged
in protected activity. First, I accept his testimony that on
July 1, following his return to the mine from the hospital, he
had a discussion with Lang in which he complained about the
aafety of equipment at the mine and specifically about the
brakes on the front-end loaders {Tr. 43, SS, 75). Stiefel and
Lang agreed that a conversation took place . In Stiefel's veraion, Stiefel asked Lang why equipment, including the brakes on
the front-end loaders, could not be fixed at the mine (Tr. 43,
SS). In Lang's version, Lang challenged Stiefel as to why
Stief el let miners use the brakeless front-end loader and Stief el
challenged Lang as to why Lang let Pridmore operate the front-end
loader when he knew Pridmore had vision problems (Tr. 18S).
I do not discount entirely Lang's description of the
discussion, in that I believe the exchange involved Pridmore
and his use of the front-end loader. Because the conversation
came close upon the heels of the accident, it is logical that
at least part of it would have related to what Pridmore was
doing and why he was operating the equipment. Indeed, Stiefel's
initial discrimination complaint suggests that some of the
discussion involved who was responsible for Pridmore using the
front-end loader. (In the complaint Stiefel wrote: "I told them
it was not my fault that the loader don't have brakes on it and
that the loader man was on that loader when I started by shift"
(Complaint, Exhibit 1, p . 3).)
It strikes me as likely that in such a discussion Stief el
would have tried to dilute his own responsibility, whatever it
may have been, by complaining about safety and the brakes. His
testimony that he complained about the brakes is also essentially
consistent with what he is reported to have told MSHA Investigator Steve Kirkland, who interviewed Stiefel 13 days after the
accident and who memorialized the interview on July 27, 1993
(Complaint, Exh. s at 2). I therefore credit Stiefel's account
of the discussion to the extent of finding it included a
complaint by Stiefel about the safety of the brakes.
It bas long been settled that a miner bas a right under
the Act to make safety complaints about equipment to his or her
employers and that such complaints are protected activity. See
Secretary on behalf of Nantz v . Nally & Hamilton Enterprises.
in£., 14 FMSHRC 1858, 1884 (November 1992) (A.LJ Koutras) and
cases cited therein.
Second, I accept Stiefel's contention that on July l
he called MSHA to report the accident and the brake problem.
Indeed, the company does not disagree. Lang stated that sometime after MSHA inspectors arrived at the mine on the aorning

2284

of July 1, he found out that Stiefel had called the. aqency
(Tr. 190, 210) •

. As with safety complaints to employers, the riqht of a
miner to make safety complaints to MSHA has long been recoqnized.
Secretary on behalf of Chacon v. Phelps Podge corp., 3 FMSHRC
2508, 2510 (November 13, 1981).

Thus, I conclude that Stiefel has established the first
part of his prima facie case.
ADVERSE ACTION AND MOTIVATION
Having established that he engaged in protected activities,
the question is whether Stiefel also has established he sUffered
adverse action because of them. Here, I conclude the answer is
no.
With regard to his safety complaint to Lang, and as the
following exchanges make clear, Stiefel was adamant that he was
not forced to quit work and in fact did not quit work because
of Lang's response:
JUDGE: Did you advise the company on (July] 1st
that you were going to be leaving in two weeks?
MR. STIEFEL: I did not tell him that I was
leaving in two weeks . • • • I didn't give my two-week .
notice. I did not state to the man that I was quitting
in two weeks. I told him I wasn't qong to be
responsible for hurting another person or ••• telling
another (p]erson to get on this piece of equipment for
fear of my job.
Tr. 55.

MR. JONES:
two weeks?

(W]hat was it you told ••• Lang about

MR. STIEFEL: I said if he could not get his
equipment running right and safe that I would have to
give my two-week notice. I did not state in fact that
I was qivinq my two-week notice. I said if.

*

*

*

I said that I'm not qiving my two-week notice, but we
have to qet something done. I said exactly we have to
get something done to this equipment because I can't
stand here and watch people qet hurt.

Tr. 74-75.

2285

I take Stiefel at his word and conclude that he did not
choose to leave work or was not forced to leave work because of
his safety complaints to Lang on the morning of the accident.
Rather, he adopted what was essentially a "wait and ••e"
attitude.
That leaves the question of whether Stief el suffered any
adverse action because he reported the accident and the condition
of the brakes to MSHA. Stiefel's initial contention was that he
was demoted because he called MSHA (Complaint, Exh. l, p. 3).
This bare-bones assertion was fleshed-out in Stiefel's interview
with Kirkland.
Kirkland describes Stiefel as stating that he
reported safety violations to MSHA around 10:00 a.m. on July l,
that Johnson arrived at his home around s:oo p.m., that Johnson
told him Lang said because he had called MSHA, Stiefel could not
be trusted as a supervisor and that Lang and Johnson had decided
to return him to his previous job as a front-end loader operator
during a day shift. Kirkland also reports Stiefel as stating
that Johnson told him to come to work the next day in that
capacity, that ·Bouska was present during the conversation and
that Stiefel did not go back to work anymore except to go to the
mine on July 6 to pick up his pay check (Complaint, Exhibit s
at 2-3).
At the hearing, Stiefel testified that the conversation with
Johnson occurred essentially as described to Kirkland (Tr. 19,
84-86). In addition, he added an incident that Kirkland did not
report. Stiefel asserted he returned to the mine on July 2 and
there, in the presence of Johnson, asked Lang why Lang had
demoted him. According to Stiefel, Lang replied it was because
Stiefel had called MSHA and could not be trusted (Tr. 44-46).
I find that Stiefel was in fact advised he would have to
return to his old position . Lang testified the change was
based upon economic reasons and a desire for better control at
the mine (Tr. 188-189). According to Lang, he was able to meet
customer demand by working two shifts and overtime rather than
three shifts. This assertion was not challenged, and I find
it is true. Given the fact that he could meet customer demand
if he eliminated the night shift, it is logical to me that he
would have wanted to do so in order to have better control at
the mine. Afterall, a presumably preventable, and potentially
fatal, accident had just happened on Stiefel's "watch." Although
Stiefel maintained he was essentially a supervisor in name only,
I do not believe it (Tr. 92). It strikes me as highly unlikely
Stiefel would have considered the loss of supervisory status part
of a "demotion" if all he lost was a meaningless title. Rather,
I accept Lang's description of Stiefel's responsibilities
(Tr. 183, 210). Therefore, I do not infer any prohibited adverse
action or retaliatory intent from the elimination of the night
shift.

2286

It is true that had Stief el returned to work during the
day he would have lost his supervisory responsibilities. However, Stiefel had switched to the night shift one week prior to
the accident . Lang testified that Stiefel's job status was
probationary, and this testimony was not challenged (Tr. 189) .
It is a common practice to place an employee on probationary
atatus when the employee is switched to a new job. Xn such a
situation I believe the company could terminate Stiefel's
aupervisory status and not run afoul of the Act, provided its
motivation was not proscribed. Here, where Stiefel was on duty
when a serious accident occurred, it was not unreasonable that
Lang wanted to relieve him of his responsibilities .
Further, Stiefel did not establish that he suffered a
loss of pay. Although one of Stiefel's contentions was that
he was denied a promised pay raise, there was nothing in writing
regarding the raise, nor was any testimony offered that such
raises were customary. Lang could not recall promising Stiefel
a raise and even if he had remembered such a promise, in the
absence of a written agreement or evidence of a practice to award
such raises, I -would not find that reneging on the promise was
discriminatory, especially when the employee held the position
on a provisional basis (Tr . 189, 214). Moreover, had Stiefel
returned to his old position he would have been paid at the same
hourly rate, and Stiefel did not offer any testimony or evidence
to counter Lang's contention that overtime work, which would have
allowed Stiefel to earn as much or more than he had earned at
night, was readily available (Tr. 189).
Nor did Stiefel establish that had he returned to day work
to operate a front-end loader he would have been forced to work
under unsafe conditions. Stiefel would have been returning to
the mine after MSHA had conducted an inspection . Presumably ,
unsafe conditions would have been detected during the inspection
and would have been corrected or have been in the process of
being corrected . Stiefel did not appear to believe that the
conditions were generally so unsafe that he was forced to refuse
to work. On Ju1.y 1, and before MSHA inspectors had even been
called to the mine, he decided not to give his two week notice.
(It also is important to note that if he had returned to the mine
he would have retained the right to refuse to work if he believed
in good faith that conditions were unsafe.)
Finally, and most important, I do not believe that Stiefel
established that any of the allegedly adverse actions were motivated by his telephone call to MSHA. The record is inadequate
to support a finding that on July 1 Johnson told Stiefel he was
demoted because he had called MSHA. Although Stiefel testified
Bouska was present during the July 1 conversation with Johnson,
when Bouska was called to testify on Stiefel's behalf, Stiefel
asked him not one question about the conversation or even about

2287

his whereabouts at the time, except to establish th~t he came
to Stiefel's home on the afternoon of July 1 to inquire about
Stiefel's plans for the July 4 weekend (Tr. 155).
Fundamental to Stiefel's failure of proof is the fact that
Stiefel did not call Johnson to testify. Stiefel stated that
Johnson would not appear unless subpoenaed, but he neither
aubpoenaed Johnson nor offered any explanation why Johnson could
not appear. Rather, Stiefel attempted to offer an "affidavit"
from Johnson in lieu of testimony. Counsel for Lang Sand &
Gravel objected, and I sustained the objection (Tr. 63-64). I
agreed with counsel that it would prejudice the company to permit
a statement to be entered when it could not be subjected to cross
examination and when the best evidence -- the witness - - was
apparently available but simply not called.
Stief el also offered the testimony of his f iance concerning
a conversation with Johnson in which she as involved approximately two weeks before the hearing (Tr. 168-172). She
remembered Johnson as saying that Stiefel was demoted because
he called MSHA and because Lang could no longer trust him. She
was allowed to testify over the objection of counsel because she
was recounting a conversation she had heard. Ber testimony was
admissible, but I accord it no weight. once again the best
evidence -- Johnson's -- was not presented.
Moreover, I note
that Stiefel made no reference to the substance of this supposed
conversation during his testimony, even though he was said to
have been present during it.
Thus, the essential portion of Stiefel's case for unlawful
motivation rests solely upon his and Crist's uncorroborated
testimony. They hardly were disinterested witnesses and the
lack of corroboration, when it seemingly could have been obtained
with ease, in my view fatally undermines their credibility.
Further, I do not credit Stiefel's testimony that on July 2
when Stiefel returned to the mine to pick up his pay check, Lang
told him "You'Te demoted because you called. MSHA, and I can't
trust you no more" (Tr. 44). I find it highly significant that
this purported conversation appears no where in Stiefel's initial
complaint. Indeed, Kirkl~d reports Stiefel as stating that
after July 1 he did not go back to the mine, except on July 6 to
pick up his check (Complaint, Exhibit 5 at 2-3). Lang denied he
ever made such a statement and Johnson, the only other person
said to have been present during the conversation, did not
testify.

2288

CONCWSION
Accordingly, I conclude that while Stiefel bas established
be engaged in protected activity, be bas failed to prove be
auffered any adverse action because of it. Therefore, Stiefel
has not established a prima f acie case and bis complaint •ust be
and is DISMISSED.

Ytv/Cl£g~~
David F. Barbour
Administrative Law Judge

Distribution:
Raymond Otis Stiefel, III, 560 Doyle Drive, Albertville,
AL 35950

David Lee Jones, Esq., Jones and Milwee, P.O. Box 909,
Guntersville, AL 35976
\lh

2289

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

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

a 1994
.

CIVIL PENALTY PROCEEDINGS
Docket No . YORK 92-117-M
A. C. No. 30-00012-05516

v.
Docket No . YORK 92-128-M
A. C. No. 30-00012-05517

BUFFALO CRUSHED STONE,
Respondent

DECISION ON REMAND
Before:

Judge Weisberger

On October 31, 1994, the Commission issued a decision in
these cases, 16 FMSHRC
, which reversed my determination 1
that five similar violations of 30 C.F.R. § 56.9301 were not
significant and substantial. The decision contains the following
directive "we remand for reassessment of civil penalties in light
of our determination."
Considering the Commission's conclusion that the cited
violations were significant and substantial, I find that these
violations were of a high degree of gravity. I find that a
penalty of $136 is appropriate for each of these violations.

1

Buffalo Crushed Stone, 15 FMSHRC 1641 (August 1993).

2290

ORDER
It is ORDERED that Respondent, within 30 days of this
decision, shall pay a civi l penalty of $430. 2

Distribution:
James A. Magenheime r, Esq., Office of the Solicitor,
U.S. De partment of Labor, 201 Varick Street, New York,
NY 10 014 (Certified Mail)
Susan E. Long, Esq . , Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Mr. Salvatore Castro, Safety Director, Buffalo Crushed stone,
2544 Clinton Street, P.O. Box 710, Buffalo, NY 14224 (Certified
Mail)
/ efw

2

The initial decision I issued on August 11, 1993, 15
FMSHRC, 1641, supra ordered Respondent to pay a penalty of $820,
which included a $50 penalty for· each of the five citations which
are the subject of this remanded decision. Hence, Respondent is
presently ordered to pay a civil penalty of $86 for each of these
citation, i.~., the difference between the original penalty of
$50, and the present finding of a penalty of $136.

22 9 1

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

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

9 1994
CIVIL PENALTY PROCEEDING
Docket No. CENT 94-96-M
A.C. No. 14-00124-05544
Monarch Cement Mine

MONARCH CEMENT COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Feldman

This case is before me upon petition for assessment of civil
penalties under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). The Secretary has filed a motion
to approve a settlement agreement and to dismiss this case. A
reduction in penalties from $506.00 to $350.00 is proposed.
I
have considered the representations and documentation submitted
in this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section ll O(i) of the
Act.
WHEREFORE, the motio n for approval of settlement IS GRANTED,
and it IS ORDERED that the respondent pay a total penalty of
$ 3 50.00 with i n 30 days of this order, and, upon receipt of
payment, this matter IS DISMISSED.

>

Jerold Feldman
Administrative Law Judge
Distribution:
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Mr. Daniel E. Cretiz, Monarch Cement Company, P.O. Box 1000,
Humboldt, TX 66749 (Certified Mail)
\rb
2292

FBDBRAL llZD SAPB'l'Y UD BBAL'l'B RBVZBW COIOllSSIOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV .1 5 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-233
A.C. No. 36-04109-03520

v.

.. Ambrosia Tipple

AMBROSIA COAL & CONSTRUCTION
COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 94-15
A.C. No. 36-04109-03522-A

v.

Ambrosia Tipple

WAYNE R. STEEN, Employed by
AMBROSIA COAL & CONSTRUCTION
COMPANY,
Respondent
DECISION

Appearances:

Nancy F. Koppelman, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
William P. Getty, Esq., Meyer, Unkovic & Scott,
Pittsburgh, Pennsylvania, for Respondent Ambrosia
Coal & Construction Company;
Frank G. Verterano, Esq., Verterano & Manolis, New
Castle, Pennsylvania, for Respondent Wayne R.
Steen.

Before:

Judge Fauver

These consolidated cases were brought under §§ 105(d) and
llO(c) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 ~ seq, for civil penalties for alleged violations
of a safety standard.
Having considered the hearing evidence, the judge's view of
the mine, and the record as a whole, I find that a preponderance
of the sub~tantial, reliable and probative evidence establishes
the following Findings of Fact and further findings in the
Discussion below.
2293

FINDINGS OP PACT

1. The Ambrosia Tipple, owned and operated by . Respondent
Ambrosia Coal & Construction Company, produces about 58,000 tons
of coal a year for sale or use in interstate commerce.·
2. William Carr, a miner, operated a Caterpillar 966-C
Highlift, Serial Number 76J 1007, on June 3, 1992, at the
Ambrosia Tipple. About 11:10 a.m. MSHA Inspector David Weakland
and MSHA Inspector Trainee Charles J. Thomas arrived at the
tipple to conduct a health and safety inspection.
3. As they drove up to the property, Inspector Trainee
Thomas saw the highlift loading a coal truck in the area behind
the stacker belt, and observed that the operator was having
difficulty bringing it to a stop.
4. The inspectors first went to the scale house to identify
themselves, explain the purpose of the inspection, and determine
who was in charge and who would be the company representative to
accompany them. There they met Respondent Steen, who identified
himself as the ~oreman and accompanied them on their inspection.
5. After leaving the scale house, Inspector Trainee Thomas
asked Inspector Weakland if he could go over and inspect the 966C
highlift. Inspector Weakland agreed and directed Thomas to
notify him if he observed any problems.
6 . Thomas approached William Carr while he was loading
coal, and asked him about the condition of the brakes. Carr told
him that the brakes were "bad" and had been that way for several
weeks. Thomas then asked Carr to position the highlift on an
incline ramp in front of the crusher. The ramp has a 30 to 40
degree incline.
7. When Thomas asked Carr to engage the parking brake, he
observed that ~he highlift rolled down the incline ramp. He then
asked Carr to reposition the highlift on the incline ramp and
apply the foot brake. Thomas observed that the foot brake would
not hold the vehicle, ·and the highlift rolled down the incline.
8. Thomas then called to Inspector Weakland, who came over
to the machine. Weakland asked Carr if he had any brakes on the
highlift and Carr responded that there were no brakes and there
had not been any for several weeks.
9. Inspector Weakland asked Carr to try the brakes on
fairly level ground. When he asked Carr to raise the bucket of
the highlift and to apply the foot brake, he observed ..that the
highlift drifted backwards. When he asked Carr to raise the
bucket and to apply the parking brake, he observed that the
highlift still drifted backwards.

2294

10. After this demonstration, Inspector Weakland interviewed
Carr in the presence of Respondent Steen. Carr stated that the
highlift had no brakes, it had been that way for several weeks·,
he had notified his foreman, Steen, about it, and had noted bad
brakes in his maintenance log. When Carr stated that ·he had
netified Steen about the bad brakes, Weakland asked Steen why he
did not have the brakes fixed. Steen stated that he had called
the maintenance shop to try to get a mechanic to fix them, but
"it's like pulling teeth to get things fixed around here."
Tr. 37, 38. I do not credit Steen's statement that he had called
the maintenance shop when Carr informed him the brakes were bad.
11. Inspector Weakland continued his inspection of the
highlift and observed that, in addition to unsafe brakes, the
vehicle had no seatbelt, there was an accumulation of combustible
fuel at the pivot point of the machine and motor compartment, and
the machine was not equipped with a fire extinguisher.
Inspector Weakland then informed Steen that the highlift was
unsafe to operate.
12 . Inspe,c tor Weakland and ·Inspector Trainee Thomas went to
the scale house around 12:30 p.m. to look for the maintenance
log, discuss the violations they had observed, refer to the
regulations, and write citations. When Weakland was preparing
Citation No. 3700771, at issue in this case, Thomas showed him
the maintenance log for the highlift. The log, entitled "Daily
Work and Cost Record," contained daily entries noting "bad
brakes" on May 1, 4, 5, 6, 7, 8, 22, 26, 27, and 28, 1992. Some
entries were initiated "B.C." (for Carr) and some were initialed
"W.S." (for Steen), indicating they operated the highlift on
those dates .
13. After preparing the citations to be served on "Wayne
Steen, Foreman," Weakland and Thomas met Steen in the scale house
for a closing conference.
14. Steen did not raise any objection to being identif ied as
the "Foreman" on the citations or being treated as foreman by the
inspector and trainee.
15. During the inspection, Steen gave work instructions to
Carr to abate some of the safety violations discovered in the
inspection.
16. In two prior health and safety inspections of Ambrosia
Tipple, Steen identified himself as the tipple foreman to MSHA
Surface Mine Inspector Thomas Sellers, accompanied Sellers on the
inspections, attended the closing conference, oversaw the
abatement of conditions cited and accepted the citations issued
to "Wayne Steen, Tipple Foreman" without objecting to the title .

2295

17. Steen was the certified mine examiner for the Ambrosia
Tipple. He conducted daily safety examinations and entered
findings in the official MSHA record of examinations. All of his
entries were signed in the place printed for "Foreman."
18. After the closing conference on June 3, 1992, Carmen
Ambrosia, owner of the company, told Weakland he wanted to see a
demonstration of the highlift brakes. Weakland asked Carr to
back the highlift up the ramp (leading to the crusher). He then
asked him to remove his foot from the foot brake and to apply the
emergency brake. The highlift rolled down the ramp without any
hesitation. When it was driven back up the ramp, Weakland asked
Carr to apply the foot brake. The highlift slid down the incline
without any hesitation.
19 . Upon observing the defective brakes, Ambrosia told
Steen, "We can't stay in business like this," and he further
stated, "We can't operate equipment like this . " Tr. 176.
20. After the demonstration of the highlift for Carmen
Ambrosia, Weakland informed Ambrosia that the highlift would have
to be removed from service. Ambrosia asked whether they could
drive the highlift to the maintenance building and park it there.
Weakland agreed, and followed behind the highlift in Weakland's
vehicle while Carr drove the highlift to the maintenance
building.
21. Inspector Weakland then "red-tagged" the highlift and
both inspectors departed the premises. This was around 2:07 p.m.
22. The operator of the highlift, William Carr, had notified
the tipple foreman, Wayne Steen, prior to June 3, 1992, that
there were no brakes on the highlift.
23. During the inspection on June 3, 1992, Carr falsified
the maintenance log for the highlift by adding notations of "bad
brakes" for all the dates listed in Fdg. 12, above. Carr
falsified the log to avoid blame for failing to record the bad
brakes in May. He wrote his initials for some of the entries and
Steen's initials for some of the other entries.
All the
falsified entries were written by Carr.
24. During May 1992 and up to June 3, 1992, Steen did not
record any unsafe condition of the brakes on the highlift in the
official MSHA examination record. However, William Carr notified
him of bad brakes during this period. Also, Steen operated the
highlift in May when the brakes were bad but did not record bad
brakes in the examination book or take any steps to have them
repaired or have the machine removed from service.
-·
25. On the day of the inspection, June 3, 1992, after the
inspectors left, Carr told Steen he had falsified the log to add

2296

notations of "bad brakes" in May 1992, and had made some entries
with Carr's initials (B.C) and some entries with Steen's initi~ls
(W.S.). Tr. 352-353. Steen concurred in the deception -stating, "I guess that's okay" (Tr. 352) -- and around June 6
Steen falsified the official MSHA examination record (which he
was charged to keep as certified mine examiner) by adding false
entries to note "bad brakes" on the highlift for the dates
May 30, 1992, and June 2 and 3, 1992. Tr. 20a ("a" denotes
June 29, 1994, transcript). He falsified the book in an effort
to cover-up his failure to report the defective brakes on those
dates and to conform to the false records created by Carr.
26. As stated, Carr told Steen on June 3, 1992, that he had
falsified the maintenance log to show "bad brakes" entries. Carr
told Carmen Shick, the Company's Chief Executive Operating
Officer, "shortly after that" (Tr. 342). When he told Shick,
Shick said, "that wasn't a very good idea"; however, nothing was
done to change the log. Tr. 352-353. I find that Shick knew
about the false maintenance log before December 29, 1992, when he
sat through Special Investigator John Savine's interview of
Respondent Steen. Savine's investigation on December 29 was to
see whether a § · llO(c) action should be brought against any
corporate agent for knowingly authorizing, ordering or carrying
out the violation cited as to the highlift on June 3, 1992.
27. When Carmen Shick attended Investigator Savine's
interview of Respondent Steen, on December 29, 1992, Shick knew
that Carr had falsified the maintenance log on the highlift by
making numerous entries of "bad brakes" on past dates as if they
had been written in the log on those dates but in fact all were
written June 3, 1992. Shick sat in on Savine's interview of
Steen December 29, 1992, in which Steen gave a false account to
Savine about Carr's entries in the log. Steen falsely told
Savine that Carr made the entries on the dates indicated and when
Carr signed Carr's initials it meant Carr operated the highlift
on those dates and when Carr signed Steen's initials it meant
Steen operated the highlift on those dates. Steen deliberately
concealed from Savine the fact that Carr had falsified the log by
writing all the "bad brake" entries on the same date (June 3,
1992).
28. Carmen Shick knew through Carr's statement to him that
Carr had falsified the log and that Steen gave a false account
about Carr's entries in the maintenance log to investigator
Savine. Despite this, he did not require that the corporate
records be corrected to state the truth and did not tell
Investigator Savine that Savine was given false accounts by both
Steen and Carr as to the accuracy of the maintenance log for the
highlift. I reject Shick's statement that Steen did riot tell him
about the falsified log until a week after Savine's
investigation, and I find that Steen told him on or before the
day of the investigation, December 29, 1992. I also reject

2297

Shick's statement that he had only "suspicions" and not proof of
the false maintenance log when he sat through Steen's interview
by Savine since Carr told him "shortly after" June 3, 1992.
·
Tr. 342. It is clear that once Shick learned the maintenance log
was false, he participated in the cover-up.
DISCUSSION WITH FURTHER FINDINGS, CONCLUSIONS

These cases involve a § 104(d) (1) citation against the
corporation for violating 30 C.F.R. § 77.404(a) and a § llO(c)
charge against Wayne Steen as an agent of the corporation for
knowingly authorizing, ordering or carrying out the cited
violation.
Charge Against the corporation
§

Citation No. 3700771 charges a violation of 30 C.F.R.
77.404(a), which provides:
Mobile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from
service imrriediately.

Section 77 . 404(a) imposes two duties: (1) to maintain
machinery and equipment in safe operating condition; and (2) to
remove unsafe equipment from service immediately. Violation of
either duty violates the regulation. Peabody Coal Co., 1 FMSHRC
1494 ( 1979) .
The evidence demonstrates that Ambrosia Coal violated both
of these duties.
In the MSHA inspection on June 3, 1992, the highlift brakes
were tested and neither the foot brake nor the emergency brake
would stop the vehicle. The operator of the highlift, Carr,
testified that in order to avoid hitting coal trucks being
loaded, he had to "slip it into reverse and back up." I find
that the highlift did not have operable brakes.
The lack of brakes was an unsafe condition. The machine
operator could misjudge distances in trying to fast-reverse as a
means of stopping, and could collide with a truck being loaded or
strike a pedestrian (including a truck driver who might be on
foot to check his truck). The danger of the inoperable brakes
was increased by the fact that the highlift did not have a
seatbelt. Also, the highlift was used on a ramp with a 30 to
4~ degree incline.
I find that the corporation violated § 77.404(a) by failing
to maintain the highlift in safe condition and failing to remove
it from service immediately.

2298

I also find this was a "substantial and significant
violation," which the Commission has defined as a violation that
is reasonably likely to result in an injury of a reasonably
serious nature. Mathies coal Company, FMSHRC 1, 3-4 (1984). The
lack of operable brakes posed a number of discrete sa~ety
hazards: (1) without operable brakes the highlift could not stop
immediately and could collide with a coal truck or pick-up truck
being loaded, a pedestrian or a structure at the tipple; (2) the
highlift was used to load the crusher on a 30 to 40 degree ramp
upon which the brakes would not hold; (3) the highlift was driven
throughout the tipple yard and could roll out onto the highway
causing a traffic collision since there was no berm, curb or
divider separating the tipple yard from the highway; (4) the fact
that the highlift was not equipped with a seatbelt significantly
increased the hazards to the driver caused by inoperable brakes.
I find that this was an "unwarrantable" violation, which the
Commission has ~efined as a violation involving aggravated
conduct beyond ordinary negligence. Virginia Crews, 15 FMSHRC
2103 (1993); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (1987).
The record demonstrates that the foreman, Respondent Steen, knew
the brakes wer~ bad and failed to have the brakes repaired or to
remove the highlift from service immediately. The driver of the
·h ighlift, William Carr, told Inspector Weakland that the highlift
had bad brakes for several weeks, and he had informed his
foreman, Respondent Steen, about the bad brakes. In addition,
during the interview with Carr, Inspector Weakland inquired of
Respondent Steen, who was also present, why he did not get the
brakes fixed. Steen acknowledged that he had been aware of the
condition and stated "it's like getting teeth pulled to get
things fixed around here." Furthermore, Steen himself operated
the highlift during the period when the brakes were bad and he
was the company's certified surface mine examiner as well as
foreman. I find from all the evidence that the highlift had no
operable brakes and the corporation, through its foreman and mine
examiner, 1 was guilty of high negligence in violating
§ 77.404(a).
Charge Against Respondent Steen
The Secretary has charged Respondent Steen under § llO(c) of
the Act, which provides in part:
Whenever a corporate operator violates a mandatory health or
safety standard • • • , any director, officer, or agent of
1

Steen's status as certified mine examiner is relevant to
the issue of an "unwarrantable" violation by the corporation.
However, since it was not alleged as a basis for § llO(c) agency,
I do not decide the issue whether a certified mine examiner
qualifies as a § llO(c) corporate agent.

2299

such corporation who knowingly authorized, ordered, or
carried out such violation • • • shall be subject to the
same civil penalties, fines and imprisonment that may be
imposed upon a person under subsections (a) and (d).
Section 3{e) of the Act defines "agent" as "any person
charged with respons ibility for the operation of all or part of a
coal or other mine or the supervision of the miners in a coal or
other mine."
I find that Mr. Steen was a foreman, and therefore a
corporate "agent" under § llO(c) of the Act. 2
Steen routinely identified himself as the tipple foreman
when MSHA inspectors entered the property to perform health and
safety inspections. During the June 1992 inspection, Steen
identified himself as the tipple foreman, accompanied Inspector
Weakland on the inspection, gave work instructions to William
Carr to abate some of the conditions cited by Inspector Weakland,
and represented the company in the closing conference in which
Inspector Weakland issued and explained citations to Steen, and
Steen accepted the citations issued to "Wayne Steen, Foreman"
without objecting to that title.
MSHA Inspector Thomas Sellers testified that he commences
his surface mine inspections by asking who is the superintendent
or foreman, and in inspections of the Ambrosia Tipple in July
1991 and March 1992 Steen identified himself as the foreman,
accompanied him as the company representative, attended the
closing conferences, telephoned the mechanics to arrange for

2

In its brief, the Secretary contends that if Mr. Steen
were found not to be a foreman he would still be liable under
§ llO(c) as an agent because he was a certified mine examiner.
Mr. Steen contends that this theory should not be allowed because
it was not all~ged in the Secretary's petition or prehearing
statements. I agree. A § llO(c) respondent is entitled to a
hearing in accordance with the Administrative Procedure Act,
specifically 5 u.s.c.A. § 554 . Subsection (b) (3) requires timely
notice of "the matters of fact and law asserted." The facts and
law provided to Mr. Steen by the Secretary charged him with
§ llO{c) liability as the foreman at the tipple or the person in
charge of operations, not as a certified mine examiner.
The Secretary's theory of agency of a mine examiner,
introduced after the hearing, comes too late. Accordingly, the
§ 110 (c) agency issue is limited to the question whether
Mr-. Steen was a foreman or the person in charge of operations at
the tipple .

2300

abatement of violations, and accepted citations issued to "Wayne
Steen, Tipple Foreman" without objecting to that title.
On December 29, 1992, when MSHA Special Investigator John
Savine interviewed Steen, Steen identified himself as the tipple
foreman.
Steen was paid a flat weekly salary without overtime pay for
hours over 40 per week. Rank and file employees were paid an
hourly rate with time and a half for overtime. Steen was the
certified mine examiner who conducted the daily surface mine
examinations required by the Act and regulations. He signed the
official MSHA examination record in the place for the "Foreman,"
not as a rank and file employee.
The corporation and Steen may not represent to MSHA through
official documents and oral statements by Steen that he is the
foreman and then be heard to deny that fact when a question of
imputation for his conduct arises.
In addition, the behavior of Carr and that of the corporate
owner support the conclusion that Steen was the tipple foreman.
The highlift operator, William Carr, told Inspector Weakland that
he had reported the bad brakes to the foreman, Steen. Steen was
present and did not correct Carr's statement. If Steen was not
his foreman, it is unlikely that Carr would make a point of
telling the MSHA . inspector that he reported the condition to him.
When Inspector Weakland asked Steen why he did not have the bad
brakes repaired, Steen acknowledged he was aware of the condition
and commented on how hard it was to get the company to make
repairs. Steen did not reply, as pne would expect if he were
merely a rank and file miner, that it was not his job to remove
equipment from service and arrange for repairs. Finally, when
the owner, Carmen Ambrosia, observed the demonstration of the
highlift on the incline ramp, when the brakes could not stop the
highlift, he exclaimed to Steen, "We can't stay in business like
this" and "We can't operate equipment like this." Thus it
appears that the owner of Ambrosia Coal believed that Steen held
a position of authority which made him responsible for overseeing
the conditions in the tipple yard.
Respondent contends that since Steen lacked authority to
hire or fire employees he was not a foreman. I do not agree.
Upper management held a tight reign on the hiring and firing of
employees, but they still employed a supervisor at the tipple.
on balance, I find that the reliable evidence establishes that
Steen was the day shift foreman at the tipple, and therefore
qu~lified as a corporate agent under§ llO(c).
I now consider the issue whether Steen "knowingly"
authorized, ordered or carried out the cited violation.

2301

The Commission has reviewed the legislative history for the
term "knowingly" as used in§ llO(c) and determined .that
"knowingly" means "knew or should have known":
"Knowingly," as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent. Its meaning is rather that used in contract
law, where it means knowing or having reason to know .
A person has reason to know when he has such
information as would lead a person exercising
reasonable care to acquire knowledge of the fact in
question or to infer its existence . • • • We believe
this interpretation is consistent with both the
statutory language and the remedial intent of the Coal
Act. If a person in a position to protect employee
safety and health fails to act on the basis of
information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute . [Kenny Richardson v. Secretary
of Labor; 3 FMSHRC 8, 16 (1981), 689 F.2d 632 (6th Cir.
1982), cert. denied, 461 U.S. 928 (1983).)
The Commission has also ruled that a "knowing violation
under § llO(c) involves aggravated conduct, not ordinary
negligence." Bethenergy Mines. Inc., 14 FMSHRC 1232, 1245
(1992).
The record demonstrates that Steen had actual knowledge of
the bad brakes on the highlift for at least five and possibly
6 working days prior to June 3, 1992, when the .violation was
cited . The highlift operator, Will i am Carr, notified Steen of
the bad brakes on May 27 or 28, 1992, and Steen himself drove the
highlift in the period when it had bad brakes. I find that
Steen, as foreman, knowingly authorized and permitted the
violation by failing to have the brakes repaired and to remove
the vehicle from service immediately .
The Falsified Safety Records
During the June 3, 1992, inspection, Carr falsified the
maintenance log for the highlift by adding entries of "bad
brakes" for 10 dates in May 1992. He did this to avoid blame or
possible liability for himself and Steen for failing to record
bad brakes on the days they operated the vehicle. For some
entries he signed his initials (B.C . ) and for other ·entries he
signed Steen's initials (W.S.) as the operator of the highlift.
Carr then placed the doctored log where the inspectors were
likely to find it. The inspectors found the falsified.· log, and
transcribed Carr's entries of "bad brakes" a·s evidence that the
company and the foreman showed "reckless disregard" for the
safety of personnel by not repairing the brakes or removing the

2302

vehicle from service immediately. On the day of the inspection,
after the inspectors left Carr told Steen that he had doctored
the maintenance log. Steen concurred in the cover-tip and, a
couple of days later, Steen falsified the official MSHA
examination record to add entries of bad brakes on various dates
in order to avoid blame for failing to report the bad brakes and
to conform to the false records created by carr. 3
The Chief Executive Operating Officer, Carmen Shick,
participated in the cover-up. When Carr told him about the false
log "shortly after" on June 3 (Tr. 342), Shick took no action to
correct the corporate records to show the truth, permitted Carr
and Steen to continue their cover-up, and failed to tell MSHA
that it was being deceived by the false maintenance log and by
the statements of Carr and Steen. On December 29, 1992, the day
MSHA Special Investigator Savine was investigating the events of
June 3, 1992, Shick sat through Savine's interview of Steen in
which Steen gave a false account of the maintenance log.
Civil Penalties
The Secretary has proposed a civil penalty of $7,000 for the
violation by the corporation and a civil penalty of $3,500 for
Respondent Steen's violation as a corporate agent.
Assessment of civil penalties, based upon the criteria in
llO(i) of the Act, are de novo before Commission judges.
Consolidation Coal Company, 11 FMSHRC 1935 (1989). Section
llO(i) provides:
§

The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator's
history of previous violations, the appropriateness of such
3

Steen and Carr defend their falsification of mine safety
records on the ground that MSHA Inspector Trainee Thomas
"frightened" them by discussing possible civil fines and "jail
time" for their failure to record the unsafe brakes and have them
repaired. They contend that Carr "panicked" and falsified the
maintenance log to report "bad brakes" (for 10 dates in May),
signing his initials for some entries and signing Steen's
initials for others. Steen went along with this and falsified
the MSHA examination records because he also "panicked."
I
reject this explanation for falsifying mine safety records. I do
not decide the question of what language was used by Thomas and
whether he unduly alarmed Carr and Steen. This is something MSHA
ma·y wish to consider in its further training of Thomas·. However,
whether Carr and Steen felt intimidated or not, there is no
justification for their falsifying the mine safety records and
perpetrating a deliberate deception of MSHA.

2303

penalty to the size of the business of the operator charged,
whether the operate~ was negligent, the effect on the
operator's ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties
under this Act , the Secretary may rely upon a summary review
of the information available to him and shall not be
required to make findings of fact concerning the above
factors.
I find that Ambrosia is a small sized operator.
produces about 58,000 tons of coal a year.

The tipple

In the two years preceding the issuance of Citation
No. 3700771, Ambrosia Coal had 19 violations, 13 of which were
assessed as significant and substantial.
With regard to the negligence factor, the Secretary has
charged "reckless disregard" for safety in Citation No. 3700771
and in the §llO (c) charge. This allegation is based, in part,
upon Carr's entries of "bad brakes" in the maintenance log for
the highlift, and the fact that Steen failed to have the brakes
repaired or to remove the highlift from service immediately. I
find that the maintenance log was falsified by Carr post-event,
and is not evidence of contemporaneous written notice of bad
brakes. Also, I find that Steen's mine examination record was
falsified by Steen post-event, and is not evidence of
contemporaneous written notice of bad brakes. However, Steen had
actual knowledge of the bad brakes and knowingly failed to have
the vehicle repaired or removed from service immediately. I find
that the violation by the corporation and Steen was due to high
negligence and an unwarrantable failure to comply with the safety
standard.
The falsifying of safety records by Steen, as foreman and
certified mine examiner, has some bearing on the degree of his
negligence concerning the violation of§ 77 .404(a). He testified
that when he falsified the official MSHA examination records on
June 6, three days after the MSHA inspection, he did not consider
whether the inspectors had photographed or transcribed the pages
he was falsifying . Had he thought of this, he stated, he would
not have falsified the records. This indicates that Steen was
not only prepared to commit a dishonest act in an attempt to
avoid liability, but took a reckless risk of exposure by not
recognizing that the inspectors may have already photographed or
transcribed the pages he falsified. This sheds some light upon
the risk-taking nature of Steen's judgment, and his high
negligence, in permitting a highlift to operate without operable
brakes.

2304

With regard to gravity, I find that the violation was
reasonably likely to result in a serious injury and therefore was
a "significant and substantial" violation within the meaning o·f
§ 104(d) of the Act.
One of the criteria of § llO(i) is the good faith effort of
the operator to achieve rapid compliance after being notified of
the violation. Since the inspector red-tagged the vehicle, the
question of the operator's abatement does not arise. That is,
the red tag provided instant compliance with§ 77.404(a).
Once the criteria of § llO(i) have been evaluated, a civil
penalty should be assessed in a reasonable amount sufficient to
deter the company or person charged, and others similarly
situated, from committing a similar violation in the future. I
find that the deliberate cover-up by Steen and Shick (both of
whom were corporate agents) increases the deterrence needed
concerning the amount of civil penalties for the violation of
§ 77.404(a).
Steen, as foreman, condoned and concealed Carr's act of
falsifying the maintenance log. Steen also falsified the
official MSHA examination record to conform to the cover-up.
Later, on December 29, 1992, Steen and Carr lied to MSHA .S pecial
Investigator Savine about the "bad brakes" entries in the
maintenance log. That is, they told Savine that Carr wrote all
the entries on the dates indicated and when he signed his
initials it meant Carr operated the highlift and when he signed
Steen's initials it meant that Steen operated the highlift.
Carmen Shick participated in the cover-up by condoning
Carr's falsification of the maintenance ·log, failing to have the
log corrected once he learned it was false, concealing the
falsity of the log from the MSHA special investigator, and
permitting Carr and Steen to lie to MSHA about the maintenance
log. I find that Carr told Shick about the false log "shortly
after" June 3, 1992. 4
·

4

Even if Shick's statement were credited, that he did not
know of Carr's falsified log until one week after Investigator
Savine's investigation on December 29, 1992 (a contention I
reject), the facts clearly show that Shick participated in the
cover-up by Carr and Steen. Once Shick knew the log was false
and Carr and Steen lied to Investigator Savine, Shick did not
cause the corporate records to be corrected to show the truth and
took no steps to tell MSHA that it was being deceived by the
false log and false statements of Carr and Steen. Shick condoned
the falsification of corporate records and the deliberate scheme
of Carr and Steen to deceive the MSHA inspectors.

2305

Considering all of the above factors, I find that a civil
penalty of $11,000 is appropriate for the corporation's violation
of 30 C.F.R. § 77.404(a) and a civil penalty of $4,-000 is
appropriate for Steen's § llO(c) violation as a corporate agent.
CONCLUSIONS OF LAW

1. The judge has jurisdiction.
2 . Respondent Ambrosia Coal & Construction Company violated
30 C.F.R . § 77.404(a) as alleged in Citation No. 3300771.
3. Respondent Wayne R. Steen, a corporate agent within the
meaning of § llO(c) of the Act, knowingly authorized and
permitted the corporation's violation of 30 C.F.R. § 77.404(a).
ORDER
WHEREFORE IT IS ORDERED that:
1. Respondent Ambrosia Coal & Construction Company shall pay
a civil penalty of $il,OOO within 30 days of this decision.
2. Respondent Wayne R. Steen shall pay a civil penalty of
$4,000; provided: in light of his financial obligations he shall
be permitted to pay the penalty according to the following
schedule:
a. To pay $500 on the 10th day of each month, beginning
December 10, 1994, for eight consecutive months.
b. If Respondent Steen fails to make any monthly payment
when due, the balance of his civil penalty shall immediately
become due with interest due from such date until paid at the
same interest rate imposed by IRS for late payments of federal
income taxes.
·

U.)~~~1/y_

William Fad;er _..\..
Administrative Law Judge

2306

Distribution:
Nancy F. Koppelman, Esq., Office of the Solicitor,
U.S. Department of Labor, Room 14480-Gateway Building,· 3535
Market Street, Philadelphia, PA 19104 (Certified Mail)
William P. Getty, Esq., Meyer, Unkovic & Scott, 1300 Oliver
Building, Pittsburgh, PA 15222 (Certified Mail)
Frank G. Verterano, Esq., Verterano & Manolis, 2622 Wilmington
Road, New Castle, PA 16105 (Certified Mail)
/lt

2307

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

NOV 1 7 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

MANALAPAN MINING COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-614
A. C. No. 15-16318-03576
Docket No. KENT 93-615
A. C. No. 15-16318-03577
Mine #6

DECISION ON REMAND
Before:

Judge Weisberger

on September 14, 1994, the commission granted Respondent's
petition for discretionary review of my decision in these cases.
On October 25, 1994, the Commission remanded these cases to me to
rule on the joint motion to approve settlement which had been
filed before the Commission on October 14, 1994.
I have reviewed the motion, and the record in these cases.
conclude that the terms of the motion meet the criteria set
forth in Section llO(i) of the Act. Accordingly, the motion is
GRANTED.

I

It is Ordered that, within 30 days of this decision,
Respondent pay a civil penalty of $5,922 for the violations found
in these cases.

cL~

Avram Weisberger
Administrative Law Judge

Distribution:
Colleen A. Geraghty, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA
(Certified Mail)

22203

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Susan c. Lawson, Esq., Buttermore, Turner, Lawson & Boggs,
111 South First Street, Harlan, KY 40831 (Certified Mail)
/efw
2308

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

NOV 1 8 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 94-327
A. C. No. 36-08102-03509

v.

Merrill Strip

REDSTONE MINING INCORPORATED,
Respondent
DECISION
Appearances:

Howard K. Agran, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA 14480
for Petitioner;
Charles F. Erickson, President, Windber, PA
for Respondent

Before:

Judge Weisberger

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner has filed a Motion to
approve a settlement agreement and to dismiss the case. A
reduction in penalty from $2,500 to $1,700 is proposed. I have
considered the representations and documentation submitted in
these cases, and I conclude that the proffered settlement is
appropriate under the criteri a set forth in Section llO(i) of the
Act.
WHEREFORE, the Motion for Approval of Settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $1,700 within
30 days of this Order.
~

i~.----/~

.,

~

Avram Weisberger
Administrative Law Judge
Distribution:
Howard K. Agran, Esq., Office of the Solicitor,
U.S. Department of Labor, 14480 Gateway Building,
3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Charles Erickson, President, 318 Spruce Street, Windber, PA
15963 (Certified Mail)
/efw
2309

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-3993/FAX (30J) 844-5268

NOV 1 8 1994
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 91-233
A.C . No. 48-00677-03523

v.

Jim Bridger

BRIDGER COAL COMPANY,
Respondent

DECISION
Appearances :

Carl

c. Charneski,

Esq . , Office of the Solicitor,
Department of Labor, Arlington, Virginia,
for Petitioner;
Henry Chajet , Esq., Jackson & Kelly,
Washington, D.C.,
for Respondent.
U~S.

Before:

Judge c ett i
I

The stay in this case is lifted . This case is before me
upon a petition for assessment of civil penalty under Section
lOS{d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et~' the " Act " . The Secretary of Labor on behalf of the Mine Safety and Health Administration (MSHA), seeks a
civil penalty of $192 from the Respondent for the alleged violation of 30 C. F . R. § 71.101 . This safety standard in relevant
part provides:
When the respirable dust in the mine
atmosphere of the active workings contains
more than 5% quartz , the operator shall
continuous ly maintain the average concentration of respirable dust in the mine
atmosphere du~ing each shift to which each
miner is exposed at or below a concentration
of respirable dust computed by dividing the
percent of quartz into the number 10.
The Respondent, Bridger Coal Company, filed a timely answer
contesting the alleged violation. After due notice to the
parties, a hearing was held . in Denver , Colorado. At the hearing,
the Petitioner presented the testimony of Thomas F. Tomb , chief

2310

of the Dust Division at the Department of Labor's Pittsburgh
Health and Safety Technology Center and Joseph William Pavlovich,
Subdistrict Manager of MSHA, Coal Mine Safety and Health, District 9. Respondent presented the testimony of Dr. Morton Corn.
Dr. Corn since 1980 has been the John Hopkins University professor of Enyironmental Engineering and director of the division of
the same name in the School of Hygiene and Public Health, which
is a graduate school. Respondents also presented the testimony
of Mr. Robert E. McCartney, the miner's representative of the
miners employed at the Bridger Mine.

II
ISSUES
The issues presented at the hearing were whether Respondent
violated the cited standard and if it did, was the violation S&S
a nd the amount of the appropriate penalty. The underlying basic
issue is the validity of using a single shift dust sample to set
a reduced quartz standard under Section 71.101 and then using
that reduced standard four years later to issue the citation in
question.

III
STIPULATIONS
All the essential basic facts involved in this case are set
forth in the stipulations whi ch the parties entered into the
record as follows:
1.
Bridger Coal Company (Bridger) operates a surface coal
mine in Sweetwater County, Wyoming.
2.
Bridger is subject to the provisions of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. 801 et .§.fill:_
3.
The Mine Safety a nd Health Administration (MSHA) issued
Citation No. 2931949 to Bridger on October 11, 1990, through an
authorized representative of the secretary.
citation No. 2931949
alleges a violation of 30 C .F.R. 71.101. The citation narrative
states :
Based on the results of five valid dust
samples collected by the operator, the
average concentration of respirable dust in
the working environment of the designated
work position #384, Pit 001-0, was 0 .7 mg/m 3
which exceeds the applicable limit of 0 . 6
mg/m3 , when quartz is present. Management
shall take corrective steps/action to lower

2311

the respirable dust, then sample each production shift until five valid samples are
taken and submitted to the Pittsburgh
Respirable Dust Processing Laboratory.
4.
Designated work position (DWP) 384 is located within
the enclosed cab of a Drilltech D-60 drill.
5.
Citation No. 2931949 was issued pursuant to Section
104(a) of the Mine Act.
It charges that the violation of Section
71.101 was of a "significant and substantial" nature and that it
was the result of Bridger's moderate negligence.
6.
Bridger admits that the citation was issued by an
authorized representative of the Secretary, denies that it
violated Section 71.101, denies that it was negligent and denies
that the alleged violation was significant and substantial.
7.

The citation was abated on October 31, 1990.

8.
The civil penalty proposed by MSHA will not affect
Bridger's ability to continue its business operations.
9.
The sampling results and silica analysis of DWP 384,
Pit 001-0, are as follows:
(a)
On September 16, 1986, MSHA established
a .6 mg/m3 respirable dust standard for DWP
384 based on a single sample quartz analysis
of 19%.
(Underlining added).
(b)
From September 16, 1986, through
July 18, 1990, DWP 384 was the subject of 52
respirable dust samples collected by the
operator and analyzed by MSHA.
(c)
On July 18, 1990, an MSHA respirable
dust sample of DWP 384 was analyzed at 10%
quartz.
Bridger was provided notice of the
opportunity for it to take an optional sample ·
for quartz analysis or to accept the MSHA
result of 10%, which would have resulted in a
1.0 mg/rn3 standard.
(d)
Bridger elected to take an additional
sample and did so on September 4, 1990. This
sample was analyzed by MSHA at 14% quartz.
Because Bridger's September 4, 1990, sample
had a greater than 2% quartz difference from
MSHA's July 18, 1990, sample, the operator

2312

was provided with another opportunity to
resample.
(e) Bridger took another respirable dust
sample of DWP 384 on September 27, 1990 .
The
results of this sampling showed the level of
quartz at 15%.
(f)
Based on the average of the quartz
analysis for the July 18, 1990, MSHA sample
(10%), and Bridger's samples of September 4
and 27, 1990 (14% and 15%, respectively),
MSHA established a new -respirable dust
standard for DWP 384 of .8 mg .
Bridger was
notified of this new standard on October 2,
1990.
(g) On September 5, 1990, Bridger had
submitted a bimonthly sample for DWP 384
pursuant to 30 C.F.R . 71.208(a). This sample
was weighed by MSHA and reported to Bridger
as resulting in a concentration of 1.2 mg/m3 ,
thus triggering the requirements of 30 C.F.R .
71.208(c) for five respirable dust samples to
determine compliance with 30 C.F.R. 71.101 .
(h)
Pursuant to 30 C.F.R. 71.308(c), Bridger
submitted five samples for DWP 84.
These
samples were taken on September 27 and 30,
1990, and on October 1, 3, and 4, 1990.
(i)
The average concentration for these five
compliance samples submitted by Bridger was
reported by MSHA as . 7 mg/m3 and served as
the basis for Citation No. 2931949 issued on
October 11, 1990 .
10.
The Time Line attached as Exhibit A reflects the
respirable dust sampling activities relative to DWP 384 described
above.
(Referenced in the briefs as stipulation no. 12).
11. On February 10, 1992, MSHA Subdistrict Manager Joseph W.
Pavlovich sent a letter (attached as Exhibit B) to Bridger
removing DWP 384 from bimonthly sampling status because the
samples taken by the operator and MSHA were below the applicable
.8 mg/rn 3 standard for a one-year period.
(Referenced in the
briefs as stipulation no. 13).
12.
Bridger had not been cited for a violation of 30 C . F.R .
71 . 101 for five years prior to the citation at issue.
(Referenced in the briefs as stipulation no . 14).

2313

IV
Dr. Morton corn of John Hopkin's University, professor of
Environmental Engineering was Respondent's expert witness.
Dr.
Corn testified at the hearing in this matter that a single shift
sample, such as that taken in this case in September 1986 to
establish the reduced dust standard , "is practically meaningless." Thomas Tomb, chief of the Dust Division at the Pittsburgh
Health and Technology Center , Respondent 's expert, agreed that
"one sample doesn't do the job for either an enforcement purpose
or health risk in terms of understanding exposure of miners
. . . . " The Commission in its recent decision, Keystone Coal
Mining Corporation, 16 FMSHRC 6 (January 4, .1994) held that
MSHA's program for issuing citations for excessive levels of
respirable dust based on a single shift sample is invalid in view
of the 1971 "legislative type " rule that compliance
determinations may not be based on a single sample. Notice of
that rule published in the Federal Register and states in part:
Notice is hereby given that, in accordance
with section 101 of the Act, and based on the
data summarized ... , the Secretary of the
Interior and the Secretary of Health, Education, and Welfare find that single shift
measurement of respirable dust will not,
after applying valid statistica l techniques
to such measurement , accurately represent the
atmospheric conditions to which the miner is
continuously exposed .
In April 1971, a statistical analysis was
conducted by the Bureau of Mines, using as a
basis the c urrent basic samples for the 2.179
working sections in complian ce with the dust
standard on the data of the a nal ysis ....
(R)esults of the comparisons .. . (show) that
a single shift measurement would not, after
applying valid statistical techniques, accurately represent the atmospheric conditions to
which the miner is continuously exposed.
36 Fed . Reg. 13286 (July 17, 1971).
The Commission decision in Keystone affirming the vacat ing
of a citation based on a single shift sample, demonstrates that
single shift sampling such as used in this case to establish the
reduced dust standard in September 1986 does not approximate exposure with reasonable accuracy, and logically mandates dismissal
of the citation in this case.

2314

v
The basic fundamental respirable . dust standard required by
the Mine Act (Section 202(b) (2)] and codified as part of MSHA's
regulations at 30 C.F.R. § 70.lOO(a) is that the average concentration of dust be continuously maintained at or below 2 milli grams per cubic meter of air (2.0 mg/m3 ) .
It is only "where" (Section 205 of the Act) and "when" (30
C.F.R. § 70.101) the respirable dust in the mine atmosphere of
the active workings contain more than 5 percent quartz that the 2
milligram standard must be lowered and the operator required to
maintain the respirable dust below the 2 . 0 milligram average concentration.
"When" the mine atmosphere of the active workings
contains more than 5 percent quartz, the operator is required to
maintain the average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in the active
workings is exposed at or below the respirable dust standard
computed under the formula set forth in 30 C.F.R. § 70 .101.
In, Southern Ohio Coal Co ., 16 FMSHRC 1096 (May 13, 1994),
Judge Koutras vacated the citation alleging a violation of Section 70.101 stating that MSHA's policy of having a reduced dust
standard follow the mechanized mining units when it moves to a
different part of the mine, regardless of reduced quartz levels
at the new location, was not logical or rational.
An operator
should not be held liable for failing to compl y with a reduced
dust standard at a location "based upon a quartz exposure that
may not exist ."
In the present case I agree with Respondent's contention
that if the Secretary cannot determine compliance with the dust
standards through single shift sampling, it surely cannot set a
reduced standard based on a single shift sample .
Furthermore,
the Secretary should not be permitted to ignore concurrent 1990
quartz analysis and use the outdated 1986 reduced dust standard
based on a single shift sample to issue the citation in question .
I am satisfied from the record that the best indicator of the
quartz content during the time frame of this citation is the .
average of the three samples taken in July and September 1990
which established a new respirable dust standard for DWP 384 of
.8 mg.
CONCLUSION

Based upon the stipulations which I accept as established
facts and the testimony of the expert witnesses, particularly the
testimony of Dr. Morton Corn, I find and conc lude that the citation in question should be vacated.

2315

ORDER

In view of the foregoing finding~ and conclusions citation
No. 02931949 citing an al l eged violation of 30 C.F.R. § 70.101 is
VACATED and the related p roposed civil penalty is set aside .

~6L

Aug st F. Cetti
Administrative Law Judge

Distribution:
Carl Charneski, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Henry Chajet, Esq., James Zissler, Esq., JACKSON & KELLY, 2401
Pennsylvania Avenue, NW, Suite 400, Washington, DC 20037
(Certified Mail)

sh

2316

Bridger
coal
samples
for Quartz
at D-60
Drill
(MSHA
analyzed
at 14\
Quartz)

MSHA
samples for
Quartz at
D- 60 Drill

( analyzed
at 10\
Quartz)

"DWP"

9/ 4/90

7/18/90

I

. 6mg/m1
std. in
effect

I

Bridger
Coal
sample for
Quartz at
D-60 Drill
(MSHA
analyzed
at 15\
Quartz)

9/27/90
Sample l
(of 5)
taken by
Bridger
(MSHA
weight
. 1 mg/mJ

9/27/90

1. 2

mg/ml

1. 1

mg/ml)

§

Sample 3
(of 5)
taken by
Bridger
(MSHA
weight

10/1/90

Sample 2
(of 5)
taken by
Bridger
(MSHA
weight

9/30/90

Triggers 5 compliance samples pursuant to 30 C.F.R.

(MSHA
analys is
equals 1. 2
mg/ml

"DWP"

Bridger
Bi-month ly
sample at
D-60 Drill

9/5/90

New Std
set by
MSHA of
. 8 mg/m3

10/2/90

71.208{c)

MSHA sample triggers 2 operator guartz samples and a new standard set by MSHA

EXHIBIT A

r

Sampl e 4
(of 5)
taken by
Bridger
(MSHA
weight
. 5 mg/ml)

10/3/90

Sample 5
(of 5)
taken by
Bridger
(MSHA
weight
. 8 mg/ml

10/4/90

r

MSHA
Citation
#2931949
Issued
based
I'
.-1
upon
("')
average
N
of
. 7 mg/m3
for 5
samples
exceeding
limit of
• 6 mg/ml

10/11/90

FEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3812/FAX 303-844-5268

NOV 2 1 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WE~T 92-771-M
A.C. 04-04240-05518-R

v.
Navajo Concrete Inc.
NAVAJO CONCRETE INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Morris

This case is before me upon a petition for assessment of civil
penalties under Section 105 (d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801, et~ (the "Act").
The parties filed a motion seeking to settle the ten citations, originally assessed for $1,571.00 for the sum of $1,256.00.
In support of the motion, the parties further submitted
information relating to the statutory criteria for assessing civil
penalties as contained in 30 U.S.C. § 820(i).
I have reviewed the settlement and the proposed payments and
I find they are reasonable and in the public interest.
The
settlement should be approved.
Accordingly, I enter the following:
ORDER
1.

The settlement is APPROVED.

2.

The citations and the amended penalties are AFFIRMED.

3.
Respondent is ORDERED TO PAY to the Secretary of Labor
the total sum of $1,256.00. Said amount shall be payable in eight

2318

equal installments of $157 . 00 each . The first installment shall be
payable on or before January 1 , 1995, and subsequent installments
shall be paid on or before the first day of each month thereafter.

~
~is
Adminis~~lve Law Judge
ohn J.

Distribution :
J. Mark Ogden, Esq., Office of the Solicitor, U.S. Department of
Labor, Federal Building, Suite 3247, 300 North Los Angeles Street,
Los Angeles, CA 90012 FAX 213 - 894-2064
Mr. Albert A. Lewis, President, NAVAJO CONCRETE,
117, Templeton, CA 93465 FAX 805-238-0140
/ek

2319

INC., P.O.

Box

l'BDBDL llDIB SUBTY DD BBAL'l'll uvzn COlllUSSXOll
OFFICE OF ADMJNJSTRATIVE LAW Jll>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Nov 2 5 1YY4
ROX COAL, INC . ,

v.

Contestant

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

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

. CONTEST PROCEEDINGS
... Docket No. PENN 94-192-R
. Citation No. 3712004 ; 1/24/94
.. Docket No . PENN 94-193-R
. Order No. 3959742 ; 1/24/94
Docket No. PENN 94-194-R
. Order
No. 3959743; 1/24/94
. Diamond T C Mine
.: CIVIL PENALTY PROCEEDING
.
. Docket No . PENN 94-360
A.C . No . 36-08214-03537

v.

:

ROX COAL INCORPORATED ,
Respondent

.

Diamond T c Mine

DECISIONS
Appearances:

John M. Strawn, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for the Respondent;
Joseph A. Yuhas, Esq., Barnesboro, Pennsylvania,
for the Contestant/Respondent.

Before :

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern Notices of Contests
filed by Rox Coal Incorporated (hereafter Rox Coal), pursuant to
Section 105(d) of the Federal Mine Safety and Health Act of 1977,
challenging the legality of one section 104(d)(l) •s&S" citation
and two section l04(d) (1). "S&S" orders issued on January 24,
1994, citing Rox with three alleged "unwarrantable failure"
violations of certain mandatory safety standards found in Part
75, Tit1e · 30, Code of Federal Regulations . The civil penalty
case concerns proposed penalty assessments filed by the

2320

petitioner pursuant to section llO(a) of the Act, seeking penalty
assessments against Rox for the alleged violations. A consolidated hearing was held in Somerset, Pennsylvania, and the
parties appeared and participated fully therein. The parties
subsequently informed me that they agreed to settle their
disputes and they filed their settlement proposals pursuant to
Commission Rule 31, 29 C.F. R. § 2700.31.
Issues
The issues presented in these proceedings are whether the
cited conditions or practices constituted violations of the cited
safety standards; whether the alleged violations were
"significant and substantial"; whether the alleged violations
resulted from Rox•s "unwarrantable failure" to comply with the
cited standards; and the appropriate civil penalties to be
imposed for the violations, taking into account the penalty
criteria found in section llO{i) of the Act.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of
1977; 30 u.s .c. § 301 et~·

2.

Sections 104(d), lOS{d), and llO{a) and (i)
of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.1 et seq.

Stipulations
The parties stipulated to the following (Exhibit ALJ-1):
1. Rox Coal is subject to the Act and the presiding judge
has jurisdiction in these proceedings.
2. The subject citation and orders were properly served by
a duly authorized representative of the Secretary of Labor
upon an agent of Rox Coal at the dates, times and places
stated therein, and may be admitted into evidence for the
purpose of establishing their issuance, and not for the
truthfulness or relevancy of any statements asserted
therein.
3. Rox Coal demonstrated good faith in the abatement of the
citation and orders .
4. The assessment of civil penalties in these proceedings
will not affect Rox Coal's ability to continue in business.
5. The appropriateness of the penalties, if any, to the
size of Rox Coal's business should be based on the company's

2321

annual production tonnage of 2,478,856, and the Diamond TC
mine annual production tonnage of 225,074 .
6. The Diamond TC Mine was assessed 102 violations over
111 inspection days during the 24 months preceding the
issuance of the subject citation and orders.
7. The parties stipulate to the authenticity. of their
exhibits, but not to their relevance, nor to the truth of
the matters asserted therein.
Discussion
Docket No . PENN 94-192-R
Section l04(d) (1) "S&S" Citation No. 3712004, issued at
9:00 a.m., on January 24, 1994, cites an alleged violation of
30 C. F.R . § 75.203(d), and the condition or practice cited is
described as follows:
Proper mining methods are not being followed in the
4 Right Two Main active section.
The working face of the crosscut between the No. l and
No . 2 entries has been mined through from the No. 2
entry to an unsupported area of the the No. l entry.
The condition occurred inby survey station No. 1031 of
the No. l entry. Also, the crosscut from the No. 3
entry to the No. 2 entry, inby survey station 1022 of
the No. 3 entry has been mined into an unsupported area
of the No. 2 entry.
In order for this citation to be terminated all
employees shall be reinstructed in proper mining
methods and aspects of the approved roof control plan.
Docket No. PENN 94-193-R
Relying on the previously issued section 104(d) (1) Citation
No. 3712004, the inspector issued a section 104(d) (1) "S&S" Order
No. 3959742, at 9:45 a.m., on January 24, 1994, citing an alleged
violation of 30 C.F.R. § 75.220(a) (1), and the cited condition or
practice states as follows:
The approved roof control plan (March 9, 1992), in
effect at the subject mine was not being followed in
the 4 right submains working section (Safety precaution
No. 20, page 8). Inby the next crosscut of survey
station No • .1022 in the No . 3 entry a visible clay
vein, l to 4 feet wide, extended rib to rib across the
entry. Two crosscuts, T-5 channels or equivalent were
not installed on each side of clay vein. Also, at the

2322

working face of No. 3 entry a clearly visible clay vein
1 to 5 (sic) wide approximately 40 feet long r.an up the
middle of the entry. Bacon skins were installed in
this area but they are not equivalent to which is
required in safety precaution No. 20. Also, there was
an area approximately 15 feet where nothing was
installed according (sic) precaution No. 20.
Pocket No. PENN 94-194-R
Following the issuance of the aforementioned section
104(d) (1) citation and order, the inspector issued section
104(d) (1) "S&S" Order No. 3959743, at 9:~0 a.m., January 24,
1994, citing an alleged violation of 3o · ·~F.R. § 75.360(b) (3),
and the cited condition or practice states as follows:
Improper (sic) pre-shift examinations were not being
made in the 4 right submains working section in that
when conducting an inspection in the section obvious
hazards of the approved roof control plan was observed
and citations/ orders were issued on these conditions.
The areas the preshift examiner placed his dates, time,
and initials. The record book had no hazards observed.
The order was subsequently modified on February 15, 1994,
and the following was added to the description of the cited
conditions or practices:
An adequate preshift examination was

the 4 Right Submains working Section.

not being made in

In support of the alleged violations, the Secretary
presented the testimony of Acting Subdistrict Manager Theodore w.
Glusko (Tr. 11-142); and MSHA electrical inspector William
Kerfoot (Tr. 144-178).
Rox Coal presented the testimony of mine assistant safety
engineer David Flick (Tr. 178-202); roof bolter operator Robert
Smith (Tr. 203-215); section foreman Ralph Young (Tr. 215-224);
and section foreman Michael J. Phillips (Tr. 222-237)."
The parties subsequently informed me that they proposed to
settle the disputed citation and orders and the petitioner filed
a motion seeking approval of the proposed settlements. Upon
approval of the proposed settlements associated with the civil
penalty proceeding (Docket No. PENN 94-360), Rox Coal has agreed
to withdraw its contests challenging the disputed citation and
orders.
In support of the proposed settlement dispositions of the
section l04(d) (1) citation and orders, the petitioner states that
based on the testimony presented at the trial of these matters,

2323

the parties are in agreement that there is insufficient evidence
to establish gross negligence or aggravated conduct by Rox Coal
with respect to the three cited violations. Under the
circumstances, the petitioner states that MSHA has agreed to
reclassify the section 104(d)(l) citation and orders as
aection 104(a) citations, with corresponding proposed penalty
assessment reductions .
Conclusions
After careful review and consideration of the pleadings, the
testimony and evidence p~esented at the hearing, as reflected in
the trial transcript, and the arguments presented in support of
the proposed settlements, I conclude and find that the proposed
settlement dispositions are reasonable and in the public
interest. Accordingly, pursuant to 29 C.F.R. § 2700.31, the
motion filed by the petitioner IS GRANTED, and the settlements
ARE APPROVED.
ORDER
In view of the foregoing, IT IS ORDERED AS FOLLOWS:
1. Section 104(d) (1) "S&S" Citation No. 3712004,
January 24, 1994, citing a violation of 30 C.F.R.
§ 75.203(d) IS MODIFIED to a section 104(a) "S&S"
citation, and as modified IT IS AFFIRMED. Rox Coal IS
ORDERED to pay a civil penalty assessment of $300, in
settlement of the violation.
2 . Section 104(d) (1) "S&S" Order No . 3959742,
January 24, 1994, citing a violation of 30 C. F. R.
§ 75.220(a) (1), IS MODIFIED to a section 104(a) "S&S"
citation, and as modified IT IS AFFIRMED. Rox Coal IS
ORDERED to pay a civil penalty assessment of $300, in
settlement of the violation.
3 . Section 104(d) (1) "S&S" Order No . 3959743,
January 24, 1994, citing a violation of 30 C. F . R.
§ 75.360(b) (3), IS MODIFIED to a section 104(a) "S&S"
citation, and as modified IT IS AFFIRMED. Rox Coal IS
ORDERED to pay a civil penalty assessment of $300, in
settlement of the violation.

2324

IT IS FURTHER ORDERED that payment of the aforesaid civil
penalty assessments shall be made by Rox Coal to MSHA within
thirty (30) days of the date of these decisions and Order, and
upon receipt of payment, these proceedings are dismissed.

4~~
Administrative Law Judge

Distribution:
Joseph A. Yuhas, Esq., 1809 Chestnut Avenue, P.O. Box 25,
Barnesboro, PA 15714 (Certified Mail)
John M. Strawn, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Room 14480, Gateway Building,
Philadelphia, PA 19104 (Certified Mail)
/ml

2325

nDBDL llDIB SAl'B'l'Y UD BB&L'l'B uvzn co:massxo•
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 2 5 1994

PHILLIP R. ELSWICK,
Complainant
v.
COPPERAS COAL CORPORATION,
Respondent

DISCRIMINATION PROCEEDING
:

.

Docket No. WEVA 94-119-D
HOPE CD 93-20
No. l Mine

DECISION
Appearances:

Robert Lee White, Esq., Madison, West Virginia,
for the Complainant:
Anthony J. Cicconi, Esq., Shaffer & Shaffer,
Charleston, West Virginia, for the Respondent .

Before:

Judge Koutras
Statement of the Proceeding

This proceeding concerns a discrimination complaint filed by
the complainant against the respondent pursuant to section 105(c)
of the Federal Mine Safety and Health Act of 1977. The
complainant filed an initial complaint with the U.S. Department
of Labor, Mine Safety and Health (MSHA), and after investigating
the complaint, MSHA informed the complainant of its decision not
to pursue the matter. The complainant then filed his ·complaint
~ ~ with the Commission, and subsequently retained counsel to
represent him.
The complainant alleged that he was employed by the
respondent as a certified electrician for six days at the
respondent's mine, and was reassigned as a greaser after he had
reported an unsafe breaker and panic switch on a mining machine
to aine management. The respondent took the position that the
complainant quit his job for reasons other than his •afety
complaint and denied any discrimination. A hearing was convened
in Charleston, West Virginia, and the parties appeared and
participated fully therein. However, as discussed hereafter, the

2 326

parties agreed to settle their dispute, and the complainant's
oral motion to withdraw his complainant based on the settlement
was granted from the bench. After considering the terms of the
settlement on the record, it was approved from the bench, and the
matter was dismissed.
Issue
The issue presented in this case is whether or not the
respondent discriminated against the complainant by reassigning
him from his certified electrician's job to a greaser's job after
he complained to mine management about an unsafe condition on a
continuous mining machine •
.Applicable Statutory and Regulatory Provisions
1.

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

2.

Sections 105(c) (1), (2) and (3) of the
Federal Mine Safety and Health Act of 1977,
30 U.'S . C. § 815(c) (1), and '(2) and (3).

3.

Commission Rules, 29 C.F . R.

§

2700.1, et seq.

Discussion
The complainant presented the testimony of Billy Cook, a
former employee of the respondent who commuted to the mine and
worked with the complainant at the time he left his employment.
The complainant, Phillip Elswick, also testified, and both
witnesses were cross-examined by the respondent's counsel, and
responded to several questions from the presiding judge. At the
conclusion of all of this testimony and during a break in the
hearing, counsel for the parties informed me that the parties
reached an agr~ement to settle their dispute and that Mr. Elswick
decided to withdraw his complaint on the basis of the settlement
reached by the parties.
The proposed settlement was made on the record, and it was
approved by the presiding judge. Mr. Elswick's request to
withdraw his complaint was granted, and the case was dismissed
from the bench .

2327

Order
The parties ARE ORDERED to comply with the terms of the
aettlement. In view of the settlement and the withdrawal of the
complaint, this matter IS DISMISSED.

~~.Cu~
Administrative Law Judge

Distribution:
Robert Lee White, Esq., 55 Avenue B, P.O. Box 157, Madison,
WV 25130-0157 (Certified Mail)
Anthony J. Cicconi, Esq., Shaffer & Shaffer, Bank One · center,
707 Virginia Street E, Suite 1710, P.O. Box 3973, Charleston,
WV 25339 (Certified Mail)
/ml

2328

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

NOV 2 B 1994
SECRETARY OF LABOR,
MINE AND SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 94-35-M
A.C. No. 0301597-05504

v.

Docket No. CENT 94-42-M
A.C. No. 0301597-05505

CHRISMAN READY-MIX, INC.,
Respondent

Clarkville Quarry
DECISION

Appearances:

Nancy B. Carpentier, Esq., Robert A. Goldberg,
Esq., Office of the Solicitor, U.S. Department
Of Labor, Dallas, Texas, for the Petitioner;
Lonnie c. Turner, Esq., Turner & Mainard, Ozark,
Arkansas, for the Respondent.

Before:

Judge Feldman

These proceedings concern proposals for assessment of civil
penalties filed by the Secretary of Labor against the respondent
corporation pursuant to section llO{a) of the Federal Mine Safety
and Health Act of 1977 {the Act), 30 u.s.c. S 820{a). · These
matters were called for hearing on August 2, 1994, in Fort Smith,
Arkansas.
Docket No. CENT 94-35-M concerns a total proposed civil
penalty of $250.00 for five citations alleging nonsignificant and
substantial violations of mandatory safety standards contained in
Part 56 of the mine safety regulations, 30 C.F.R. Part 56.
Docket No. CENT 94-42-M involves three citations for alleged
significant and substantial violations of Part 56 mandatory
standards. The civil penalty proposed by the Secretary for each
of these alleged violations is $63.00 for a total proposed
penalty of $189.00.
At trial, the Secretary relied upon the testimony of Mine
Safety and Health Administration {MSHA) Inspector James Clifton
Enochs and Robert Newton Chrisman, the respondent's Chairman of
the Board. The respondent's direct case consisted of the
testimony of its Chairman Robert Chrisman. At the culmination of
the hearing I scheduled September 27, 1994, as the filing date
for proposed findings and conclusions. The filing date was
extended to October 27, 1994, at the request of the Secretary.

2 329

In lieu of filing posthearing proposed findings, on
November 21, 1994, The Secretary, pursuant to Commission
Rule 31, 29 C.F.R. § 2700.31, filed a joint motion to approve
settlement of all matters in issue in these proceedings. With
respect to Docket No. CENT 94-35-M, the Secretary moves to vacate
Citation No. 4116731. The respondent has agreed to pay the total
proposed civil penalty of $200.00 for the remaining four
citations. Similarly, the respondent has agreed to pay the total
proposed penalty of $126.00 for two of the three citations that
are the subject of Docket No. CENT 94-42-M. The Secretary seeks
to vacate remaining Citation No. 4116732.
In support of their agreement, the parties state the
settlement terms are consistent with the statutory civil penalty
criteria in section llO(i) of the Act, 30 u.s.c. § 820(i). While
I am concerned that the agreed upon civil penalty of $63.00 for
each of the two significant and substantial violations in Docket
No. CENT 94-42-M may undermine the public's confidence in the
enforcement of the Act by trivializing the serious nature of such
violations, even where the respondent is a small operator, I will
defer to the parties' agreement.
ORDER
After considering the evidence adduced at trial as well as
the submission in support of the proposed settlement, the parties
joint motion for the approval of settlement IS GRANTED.
Accordingly, consistent with the parties' agreement, the
respondent IS ORDERED to pay, within 30 days of the date of this
decision, a total civil penalty of $326 . 00 in satisfaction of the
citations in issue in these proceedings. Upon timely receipt of
payment, these cases ARE DISMISSED.

Jerold Feldman
Administrative Law Judge

Distribution:
Nancy B. Carpentier, Esq., and Robert A. Goldberg, Esq., Office
of the Solicitor, u. s. Department of Labor, 525 Griffin st.,
Suite 501, Dallas, TX 75202 (Certified Mail)
Lonnie c. Turner, Esq., Turner & Mainard, 110 West Commercial,
Ozark, AR 72949 (Certified Mail)
/rb

2330

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

NOV 2 8 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
:
:

Docket No. PENN 92-849
A. C. No. 36-02173-03572

:

A. C. No. 36-02713-03579

.
: Docket No. PENN 93-13
.: A. C. No. 36-02713-03574
: Docket No. PENN 93-166

v.

POWER OPERATING COMPANY,
Respondent

Docket No . PENN 93-171
A. C. No. 36-02713-03581
Docket No. PENN 93-286
A. C. No. 36-02713-03583

.
Docket No. PENN 93-499

A. C. No. 36-02713-03589
Docket No . PENN 93-500
A. C. No. 36-02713-03590
Docket No. PENN 94-7
A. C. No. 36-02713-03591
Docket No. PENN 94-8
A. C. No. 36-04999-03541
Leslie Tipple
DECISION

Appearances:

Richard w. Rosenblitt, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, PA for Petitioner
Michael T. Farrell, Esq . , Stradley, Ronon,
Stevens & Young, Philadelphia, PA
for Respondent

Before:

Judge Weisberger
Statement of the Case

These cases, consolidated for hearing, involve Petitions for
Assessment of Civil Penalty filed by the Secretary (Petitioner)
alleging violations of various mandatory regulatory safety
2331

standards set forth in Part 30 of the Code of Federal Regulations .
Subsequent to the f ilinq of Answers by the Operator· (Respondent)
and subsequent to discovery, these cases were heard in Johnstown,
PA on Auqust 30 and 31, 1994. On November 14, Petitioner and
Respondent filed post-hearinq briefs .
Findings of Fact and Discussion
I.

Docket No. PENH 93-166
A.

Violation of 30 C.F.R . S 77.1104Cbl

On December 3, 1992 , Charles s. Lauver, an MSHA inspector,
inspected the 009 Pit at the Frenchtown Mine. Lauver initially
observed the hiqhwall from his vehicle when he was approximately 80
to 100 feet from the hiqhwall. The hiqhwall was approximately 100
feet lonq, and approximately 50 feet hiqh. Lauver approached the
hiqhwall by foot. When he was approximately 20 feet from the base
of the hiqhwall, he observed loose rocks scattered alonq the full
lenqth of the hiqhwall at all levels of the hiqhwall . He estimated
that approximately 25\ of the vertical area of the hiqhwall was
covered with loose material. He said that the size of the loose
material that was round in shape, ranqed from the size of golf
balls up to twelve inches in diameter. The size of the loose
material that was square in shape ranqed from 2 inches by 2 inches
to 10 to 12 inches by 4 to 6 inches . In addition, he observed
approximately 10 to 12 deep cracks in the highwall. He estimated
that the longest cracks were 5 to 8 feet in length, and the
shortest ones were 2 feet in lenqth. He estimated that, at the
most, they extended 10 to 12 inches deep into the hiqhwall.
According to Lauver, the cracks were scattered alonq the lenqth of
the highwall. He opined that the presence of cracks indicates some
deqree of deterioration of the hiqhwall . Also, he noted that cracks
allow water to enter the highwall. He indicated that upon
freezinq, the water would expand, causing material to become loose
from the highwall.
He also observed a thin layer of mud in at least one area. He
estimated that the mud was probably 12 inches square, .and a quarter
inch thick. He opined that the mud layer was evidence of a "mud
slip." (Tr. 69).
He described a mud slip as a very thin layer of
mud that exists inside the highwall between two layers of rock or
shale. He said that, in general, because a mud slip is slippery,
it can cause rocks to slide off the hiqhwall at any time .
Lauver also described a void or undercut at the base of the
highwall which was 5 feet deep, 10 feet high, and extended
approximately 30 feet in length. He explained that because of
the void, there would be less support for the overhang (area
immediately above the void) causing instability to the highwall.

2332

Lauver issued a citation alleging a violation of 30 C.F . R.
S 77.1104(b) which provides as follows: "Overhanging highwalls
and banks shall be taken down and other unsafe ground conditions
shall be corrected promptly, or the area shall be posted . "
On cross-examination, it was elicited from Lauver that
during his inspection he did not see any material falling
from the highwall and that, in essence, cracks on highwalls are
common. He also agreed that standing at a point on the ground
20 feet from the highwall, which was the closet he got to the
highwall, and "· •• looking up at a so foot highwall at objects
that were as small as golf balls at some point, you would have
a hard time telling for certainty whether they were loose . "
(Tr. 102) (sic).
Larry Kanour, Respondent's safety director, was the only
witness on behalf of Respondent. He had not inspected the
highwall on Deeember 3, prior to the time it was cited by Lauver
at approximately s:oo a.m. However, he indicated that in his
examination of the highwall on December 2, 1992, he had not
noticed any loose material. He indicated that after he had
inspected the highwall, he did not believe that it had any unsafe
loose rocks, mud slips, cracks, or undercuts. On crossexamination, it was elicited that the examination that he had
made of the highwall on December 2, was from his vehicle,
approximately 70 feet from the highwall .
I find that the general testimony of Kanour regarding his
opinion that there were no unsafe conditions on December 3, as
observed from his vehicle 70 feet from the highwall, is
insufficient to rebut or contradict Lauver•s detailed testimony
regarding the quantity, size, and extent of the various
conditions he observed from approximately 20 feet from the base
of the highwall. Based on the nature and extent of the
conditions observed by Lauver, I find that on December 3, there
were unsafe conditions on the highwall that had not been
corrected. Also a portion of the highwall was overhanging a
void. I also find that the unsafe areas of the highwall were not
posted. I thus find that Respondent violated Section 77.1004(b),
supra.

B.

Unwarrantable Failure

In order to establish that a violation resulted from an
operator's unwarrantable failure, it must be established that the
operator engaged in aggravated conduct which is more than
ordinary negligence (Emery Mining Corp., 9 FMSHRC 1997, 2203-2204
(1987)).

2333

According to Kanour, he had not noticed any loose material
in his inspection of the highwall on December 2. He indicated
that on December 3, he had not yet inspected the highwall prior
to the time it was cited. Lauver opined that on December 3, the
loose material on the highwall was "very obvious" to him, and it
was "very visible." {Tr. 87). 1 He also said that the undercut
was "very visible." (Tr. 87). He opined that the loose material
and other conditions that he observed , had been in existence over
two to three 12 hour shifts. He based his opinion upon the
extensive loose materials seen on October 3. There is no
evidence as to when the void or overhang had been created.
I accept the detailed testimony of Lauver regarding the
extent and types of various conditions he observed on the
highwall. Also, in light of his experience, I accept his
conclusion that the conditions were very visible, and very
obvious. Due to the extent and nature of these conditions, I
find that the violation herein resulted from Respondent's
aggravated conduct in not having observed these conditions from
a position where they could have been observed, and not having
taken steps to have these conditions corrected, or having had the
area posted. I thus find that the violation herein resulted from
Respondent's unwarrantable failure.

c.

Significant and Substantial

A "significant and substantial" violation is described in
Section 104(d)(l) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R . S 814(d)(l).
In Mathies Coal co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows :
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: {l) the underlying violation of a
1

On cross examination he indicated that two-thirds of the
"condition" was totally obscured "as I approached it." {Tr. 125)
(emphasis added).
I find this admission to be insufficient to
dilute his testimony on direct examination that the undercut was
"very visible." (Tr. 87).

2334

mandatory safety standard; (2) a discrete safety hazard-that is, a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of
a reasonably serious nature.
In United States Steel Mining Company. Inc., 7 FMSHRC 1125 ,
1129 , the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury . " U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance with the language of section 104(d} (1), it
is the contribution of a violation to the cause and
effect of 'a hazard that must be significant and
substantial . u.s . Steel Mining Company. Inc . , 6 FMSHRC
1866, 1868 (August 1984) ; U. S. Steel Mining Company •
.In£. , 6 FMSHRC 1573, 1574-75 (July 1984) .
I have found that the cited conditions herein constituted a
violation of Section 77.1104(b}, supra. Also the evidence
indi cates that these conditions created the hazard of an injury
from falling rock. Lauver indicated on cross-examination that
when he examined the highwall, he stood in the area that he had
previously described on direct-examination as being exposed to
the danger of falling rocks or other material. Kanour indicated
that the drill operator who worked on December 2 had not
complained about any dangerous conditi on. Kanaour also indicated
that he had not received any complaints from the drill operator
who worked on December 3, a Mr . Eckburg, about dangerous
conditions "in·that Pit." (Tr. 134). Kanour also indicat,ed that
the cab of the drill rig was steel enclosed.
I accept Lauver •s uncontradicted and unimpeached testimony
that the drill operator spends approximately 15% to 20% of his
time outside the cab performing various duties such as moving the
drill, or removing chips from the drill holes. This individual
would then be exposed to the danger of being hit by falling
aaterial from the highwall . Taking into account the size and
extent of unsafe material on the highwall, I conclude that it has
been established that the violation contributed to the hazard of
an injury from falling material, and that this injury was
reasonably likely to have occurred. Due to the extent and size

2335

of the loose material on the highwall, I find that there was a
reasonable likelihood that the resulting injury would be of a
reasonably serious nature. I find that the violation was
aiqnificant and substantial.
o.

repalty

I find that the violation herein was of a high level of
gravity, and resulted from more than ordinary negligence. I find
that a penalty of $9,000 is appropriate.
11. · Docket No. PENN 93-286 (Citation No. 3709747)
According to Lauver, on December 3, 1992, while continuing
to inspect the highwall, he traveled to the upper bench above the
highwall. Using a slope meter, he sighted along the slope of the
highwall, and the meter indicated a slope of o degrees. He
issued a citation pursuant to 30 C. F.R. S 77.1000, alleging a
failure to follow the Ground Control Plan ("Plan") because the
highwall was vertical for a 300 foot distance "· •
and there
is loose material on the highwall and the highwall was undercut
for over 30 ft." (sic).
The Plan provides for the slope of the highwall to be as
follows"± 12°" (Government Exhibit 9, p. 5). The Plan also
provides as follows: "Note: All loose material remoyed from
hiqhwalls by drag line or other equipment during the progress of
the operation." (Government Exhibit 9, p. 5). (Emphasis added).
Further, as pertinent, the Plan provides that "Where the height
of the highwall is such where it cannot be reached with the
equipment to remove loose material, a barricade will be provided
along the highwall to prevent falling material from injuring
workmen . "
Kanour indicated that he was instrumental in creating the
Plan . He opined that the slope of the highwall did conform to
the Plan. Lauver indicated on cross-examination all highwalls
"curve," and are "not uniform all the way across." (Tr. 185) . He
also explained that it is nearly impossible to maintain an exact
degree of slope on a highwall, and hence, a 3 to 4 degree
variance is allowed.
I find, as set forth above, I(A) infra, that the evidence
establishes that there were loose materials throughout the
highwall. Since the highwall was 50 feet high, some of the
loose material could not have been reached with equipment.
Since a barricade was not provided as required by the Plan, I
conclude that the plan has been violated. Also, since the

2336

operation continued in spite of loose material being on the _
highwall I find that there was a violation of the section of the
Plan which requires the removal of such material "during the
progress of the operation." Hence I f i nd tha~ it has been
established that Respondent did violate its Plan, and hence did
violate Section 77 . 1000, supra. I find that the violation was
significant and substantial, essentially for the same reasons
setforth above, I(C) infra . I find that a penalty of $1,779 is
appropriate .
III.

Docket No . PENN 92-849
A.

Violation of 30 C. F. R. S 1607CalCal

According to Lauver, on July 1, 1992, he observed three to
five Caterpillar 777 and 785 rock trucks.
He said that the.
trucks were loaded with overburden consisting of rocks, shale,
soil, and clay. He said the largest items were approximately 2
feet by 4 feet.· Accordi ng to Lauver, the material in the trucks
"· •• was far above the sides of the bed . " (Tr. 215). Lauver
further indicated that materials were falling off both the sides
and the rear of the trucks as they traveled down the road. He
said that some areas of spillage on the roadway extended 10 feet
in strips, and that in addition, in some areas "· •• there would
be a pile approximately a foot to 18 inches in depth." (Tr. 220).
Lauver issued a citation alleging a violation of 30 C.F.R.
"Railroad cars and
all trucks shall be trimmed properly when they have been loaded
higher than the confines of their cargo space."
'

S 77.1607(a) (a), which provides as follows :

Greenawalt opined that there were not enough ~ocks spilling
out of the trucks to constitute any danger . According to
Greenawalt, once a coal truck is loaded with coal by a loader ,
the operator of the loader trims the coal truck as follows:
"(he) will pack the top down and pack the side down with the
bucket on the loader •• • • " (Tr. 333). Greenawalt explained
that in contrast, rock trucks are loaded by hydraulic shovels .
He said that in loading the Caterpillar 785 rock trucks, the
hydraulic loader loads until a red light appears on a computer,
signaling that the truck is loaded . Kanour testified that
pedestrians are not allowed in the area where rocks fall off
trucks. He also said that vehicles are not allowed to. drive so
as to be in danger of being hit by falling rocks. Greenawalt
explained that trucks straddle, or go around spillage . He said
that in normal operations, spillage is cleaned by a grader or
dozer. Also, loaded trucks are given the right-of-way on the 100
foot wide roadway.

2337

Richard Dufour, who operated the hydraulic shovel that
loaded the trucks at issue, opined that the trucks were not
improperly loaded, and they did not constitute any danger to him.
Lauver indicated on cross-examination that it is not
possible to trim a rock truck after it has been loaded.
The term "trimmed properly" as contained in Section
77.1607(aa) supra, is not defined in the Act, or Title 30 of the
Code of Federal Regulations. "Trim" is defined in Webster's
Third New International Dictionary (1986 Edition), as pertinent,
as follows: "to reduce by removing excess or extraneous matter."
Hence, applying the common meaning of the term "trim" I find
that, the term "trimmed properly" means that if a truck contains
excess material that juts out beyond the confines of the cargo
area, the material must be trimmed. (See, Peabody Coal Company),
2 FMSHRC 1072, (May 7, 1990) (Judge Laurenson); Power Operating
Company, 16 FMSHRC 591 (March 23, 1994) (Judge Weisberger); Power
Operating Company, 16 FMSHRC 1380, 1394 (June 30, 1994). (Judge
Weisberger)).
I accept the testimony of Lauver, inasmuch as it was not
contradicted or impeached, that the trucks at issue were loaded
with materials above both sides and the rear of the trucks at
issue. Hence, I conclude that the cited trucks were loaded
higher than their cargo space. I thus conclude that Respondent
violated Section 77.1607(a)(a), supra.
B.

Significant and Substantial

Lauver described having observed material falling off both
sides, and the rear of the trucks at issue as they traveled down
the roadway. He also described piles of material on the road 1
to 1 1/2 feet deep. He said that other areas of spillage
extended in 10 foot strips. He said that there were
approximately 200 to 300 pounds of spillage on the roadway.
Lauver described the rocks that had been spilled as being
extremely sharp. He also indicated that because the material was
falling off the trucks as they travelled, other trucks that
travel on the road could be hit by the falling material. Also,
on occasion, miners work in the area where the trucks travel, to
fuel the rock trucks from a fuel truck.
Greenawalt indicated that it is standard . procedure for a
qrader to clean spilled material as soon as such material is
noted by the operator of the grader, or as soon as the operator
is notified of the spillage by him (Greenawalt), or one of the
other truck drivers. Greenwalt indicated that the major portion
of the graders• workday is spent cleaning spillage. He further

2338

indicated that Respondent has guidelines which require other
vehicles in the area to yield the right-of-way to loaded rock
trucks . He also stated that it is Respondent's policy to u.n load
a rock truck with a shovel prior to any repair work being
performed on it. Kanour indicated that vehicles are not allowed
to be driven in such a fashion as to be in danger of being hit by
falling rocks. He also stated that pedestrians are not allowed
in the area of falling rock.
I take cognizance of Respondent's guidelines and work
practices which are intended to minimize any risk of an
accident due to the spillage of material from the trucks at
issue. However, I place more weight upon the existence of the
following physical factors: the number of trucks in violation of
Section 77.1607(a) (a), supra; the fact that materials were above
both sides and the rear of the trucks and were falling off of
these areas; the extent of the spilled material on the roadway;
and the presence of other vehicular traffic in the area. Within
this framework ' I conclude that it has been established that, over
time, there was a reasonable likelihood of an injury producing
event resulting in injuries of a reasonably serious nature. I
thus find that the violation was significant and substantial.
(See U. S. Steel, supra).

c.

Unwarrantable Failure

In essence, Respondent's witnesses opined that there was
no hazard resulting from the conditions observed by Lauver.
Respondent did not contradict the testimony of Lauver that on
June 19, 1992, Lauver had previously cited Respondent for a
violation of Section 77.1607(a) (a), supra, based upon conditions
similar to those noted in the citation at issue. Respondent did
contradict or impeach Lauver•s testimony, that after he issued
this citation he discussed with Respondent's agents the hazards
connected with · material falling from trucks. He indicated that
after this discussion, Kanour told him that, referring to
material being loaded above the cargo space, it would .not happen
again . Since this testimony of Lauver was not impeached or
contradicted, I accept it. I thus find, based upon Lauver•s
testimony, that the violation herein was as a result of more than
ordinary negligence, and constituted aggravated conduct . I thus
find that the violation resulted from Respondent's unwarrantable
failure (See Emery. supra). I find that a penalty of $8,000 is
appropriate.
IV.

Docket No. PENN 93-13 (Citation No. 3490430)

Lauver testified that he could not recall what he observed
during an inspection on July 14, 1992. Specifically, he could

2339

not recall citing a truck on that date. He stated that he did
not remember any facts that led to the issuance of a citation on
that date. Nor could he tell why he issued a Section 104(d) (2)
order at that time. Accordingly, due to the lack of proof on the
part of Petitioner, Order No . 3490430 is dismissed. 2

v.

Docket No. PENN 93-171 (Citation No. 3709755)

Lauver testified that on December 8, 1992, he observed
material falling from the bed of a rock truck. He indicated
that the manner in which the material fell from the truck was the
same as testified to him previously concerning Order No. 3490421.
He indicated that the material that had fallen contained sharp
edges, and was high enough to do damage to the tires or tie-rod
of a pickup truck driven in the area. He opined that should
damage occur, the steering of the vehicle would be affected,
"causing a sudden stop which would in return jolt the operator,
the driver of the truck." (Tr . 395).
Lauver issued a citation alleging a violation of
30 C.F.R . S 77.1607(a) (a), supra. Essentially for the
reasons discussed above, III(A) infra, I find that
Respondent did violate Section 77.1607(a) (a).
Greenawalt, who was driving a pickup truck behind the truck
in question, testified that he did not see material falling off
the back of the truck. He did however see material on the road
which he indicated was no danger to him, as the truck that he was
driving could have driven around, or straddled the material.
Greenawalt said there were no other vehicles in the area that
were in any danger. He said had he seen material rolling off the
back of the truck, he would have called to have the road cleaned.
He also indicated that when he saw the material on the road he
told the bulldozer operator to clean it up immediately, and the
operator informed him that he was already on his way to clean it
up.
For the reasons discussed above, III(B) infra, I ·conclude
that the violation herein .was significant and substantial, as
well as the result of Respqndent•s unwarrantable failure.
I find that a penalty of $7,500 is appropriate.

2 Since Lauver

had no recollection of the facts that formed the
basis of the order he issued, I place no probative weight on
Government Exhibits 15 (the citation issued by Lauver) and 16
(Lauver•s notes).

2340

VI.

Docket No. PENN 93-499 CCitation No. 3709734)

On June 21, 1993, Keith Russell Thompson was employed by
Operators Unlimited, and was working at Respondent's Ginner Mine
operating a Caterpillar 777 rock truck dumping material from a
dumping site . Thompson estimated that the berm at the edge of
the dumping site was 12 inches high, and was composed of dirt and
rock. According to Thompson, after he had dumped at least 10
times, he picked up a load of materials, transported it to the
dumping site, put the rock truck in reverse, and backed up to the
berm traveling approximately l to 2 miles an hour. Thompson
stated that once the back tire touched the berm, he "pushed the
brake on" (Tr. 443), and the back of the truck slid beyond the
berm for a distance of approximately SO feet.
Perry Ray McKendrick, an MSHA inspector, was at the Ginner
Mine on June 21, but did not observe the accident involving
Thompson. Once McKendrick was informed of the accident, he went
to ·t he site of the accident . He estimated that the berm was
three feet high · in the area of the tire marks left by Thompson's
vehicle . However, McKendrick indicated that at least part of the
berm was at shoulder level. 3
McKendrick said that the berm was
loose, and was not packed down or consolidated . He estimated
that the bas~ of berm was 3 feet wide. He indicated that the
slope of the dumping site averaged 45 degrees.
McKendrick issued a citation alleging a violation of
S 77.1605(1) on the ground that the berm that was in
place did not keep the truck at issue from traveling beyond the
berm.
30 C.F . R.

McKendrick indicated, on cross-examination, that he could
not say that a berm at the mid-axle height of a 777 rock truck
would definitely stop the truck from going beyond the berm. 4 He
also indicated on cross-examination that most berms are made of
loose material. He further indicated that a driver of a 777 rock
truck would have to "give some fuel to get the CAT 777 over the
berm" i.g,. , a berm 3 feet high. (Tr. 525) (sic).
David Jackson, project administrator for Operators
Unlimited, opined that it is not appropriate to bump into the
berm in order to stop the vehicle. Jackson said that prior to

' McKendrick is 5'7" tall.
4

McKendrick stated that the diameter or the rear tires of the

777 truck in issue is 105 inches.

2341

the accident Thompson was told not to hit the berm when backing
up. Jackson fired Thompson, after the accident for negligently
running through the berm.
30 C.F.R. S 77.1605(1) provides as follows : "berms • • • •
shall be provided to prevent overtravel and overturning at
dumping locations . " 30 C.F.R. S 77.2(d) provides that the term
~ "means a pile or mound of material capable of restraining a
vehicle."
The plain language of S 1605(1) requires berms to prevent
overtravel. Adequacy of a berm may be an issue involving a
violation of 30 C.F.R. S 77.1605(k),' relating to elevated
roadways . However, section 77.1605(1) supra has different and
stronger wording. Thus, the only issue here is whether the berm
prevented overtravel. It is undisputed that the rock truck
overtraveled the berm in a dumping area. I thus find that
Respondent did violate Section 1605(1), supra. 6
I find tha.t the violation of Section 1605 (1), supra,
contributed to the accident that occurred in June 1993. The
operator of the vehicle that overtraveled the berm was not
injured. The berm was three feet high, in the area of the
accident, and about a foot high elsewhere in the area. The
midpoint of this diameter of the rear tires on the 777 rock truck
in issue is approximately 4 1/2 feet. According to McKendrick,
the driver of a 777 truck would have to "give some fuel to get
the 777 over the berm" ,i.~., a berm three feet high. Within this
context, I find the violation was not significant and
substantial.

5

Section 1605(k) supra requires only that berms "shall be
provided" on the outer bank of elevated roadways. As such, the
critical inquiry regarding an alleged violation of Section 1605 (k) ,
supra is whether the berms were adequate (U.S. Steel Corp, 5 FMSHRC
3 (1983).
In contrast, Section 1605(1) specifies an9 qualifies
that the berms are to be provided "to prevent overtravel."
6

In essence, Respondent argues that driver negligence caused
the berm's failure, and therefore no violation occurred. I reject
this argument. A miner's negligence is irrelevant to whether an
operator violated a standard (it is relevant in rating its
negligence). A mine operator is liable without regard to fault for
all violations of mandatory safety standards occurring in its mine
committed by its employees, even if caused by unforeseeable
misconduct of a non-supervisory employee. ASABCO. Inc., 8 FMSHRC
1632 (1986), aff'd., ASABCO.Inc. y . fMSffRC, 868 F.2d 1195 (10th
Cir. 1989); Southern Ohio Coal Co., 4 FMSHRC 1459, 1462 (1982).

2342

A.

Penalty

According to Thompson, during the one month that he worked
at the site prior to the accident, he was never disciplined or
told that he was not doing his work properly. On the other hand,
Greenawalt testified that he reprimanded Thompson because on the
Friday before the accident, Thompson had "bumped hard into the
berm causing the berm to actually move backwards." (Tr. 541-542).
Based on my observation of the witnesses' demeanor, I accept the
testimony of Greenawalt. According to McKendrick, in essence, in
order for a Caterpillar 777 to go over the berm, the operator
must accelerate. Within this context, I find that the low level
of Respondent's negligence should mitigate to some degree, the
penalty to be imposed. I find that a penalty .of $200 is
appropriate.
VI.

Settlements

Subsequent to the hearing, on September 16, 1994, Petitioner
filed Motions for Decision and Order Approving Settlement,
pertaining to Docket Nos. PENN 93-500, PENN 94-7. 7 Penn 94-8,
and Order No. 3709750 (Docket No. PENN 93-171). A reduction in
total penalties from $14,790 to $10,745 is proposed. I have
considered the representations and documentation submitted in
these cases, and I conclude that the proffered settlement is
appropriate under the criteria set forth in Section llO(i) of the
Act. Accordingly, the Motions are GRANTED.
ORDER

It is Ordered that: (1) the following citations/orders be
amended to non-significant and substantial: 3715434, 3708654,
3710040, and 3709734; (2) the following orders be amended to
citations that are not the result of Respondent's unwarrantable

7

The Motion filed September 16, 1994, concerns citation no.
3709736. A Motion to approve settlement concerning the remaining
citation, No. 3710040, had been served on Respondent on May 5,
1994, and filed, via fax, on November 14, 1994.

2343

failure: 3715434 and 3708654; (3) citation No. 3715432 be
vacated; (4) citation No. 3490430 be dismissed; and (5)
Respondent shall pay a total civil penalty of $37,224 within 30
days of this decision.

~

vram Weisberger
Administrative Law Judge
Distribution:
Richard w. Rosenblitt, Esq., Office of the Solicitor,
U.S. Department of Labor, 3535 Market Street, Room 14480,
Philadelphia, PA 19104 (Certified Mail)
Michael T. Farrell, Esq., Stradley, Ronon, Stevens & Young,
2600 One commerce Square, Philadelphia, PA 19103-7098
(Certified Mail)
/efw

2344

FEDERAL Ml~- SAFETY AND HEALTH REVIE\

.:OMMISSION

OFFICE OF ADMINISTRATI VE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

November 29, 1994
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
ABM COAL COMPANY, INC.,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No . KENT 94-320
A. C. No. 15-16973-03538
Docket No. KENT 94-329
A. c . No . 15-16208-03576
Docket No . KENT 94-330
A. C. No. 15-16208-03577
Docket No . KENT 94-5 33
A. C. No. 15-16208-03 578
No .

1

Mine

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee f or
Petitioner;
Roger Blair, Office Manager, ABM Coal Company,
Inc., Pro Se, Mary Alice, Kentucky for Respondent .

Before:

Judge Hodgdon

These cases are before me on petitions for assessment of
civil penalti es filed by the Secretary of Labor, acting through
his Mine Safety and Health Administration (MSHA), against ABM
Coal Company , Inc. , pursuant to Sections 105 and 110 of the
Federal Mi ne Safety and Health Act of 1977 , 30 u.s.c. § § 815 and
820. The petitions allege 32 violations of the Secretary's
mandatory health and safety standards . For the reasons set forth
below, I vacate one citation, affirm the rest, while modifying
three of them, and assess penalties in the amount of $5,743.00.
A hearing was held in these cases on August 17, 1994, in
Pineville, Kentucky. MSHA Inspector Robert D. Clay, testifying
for the Secretary, was the only witness at the hearing. In
addition to the ev idence presented at the hearing, I have also
considered the parties post-hearing briefs in my disposition of
these cases .

2345

SITTLED VIOLATIONS
At the beginning of the hearing, the parties advised that
they had reached a settlement agreement in Docket Nos.
KENT 94-320 and KENT 94-533. In addition, ABM's representative
stated that there were several citations in the two remaining
dockets· that ABM did not wish to contest.
With regard to Docket No. KENT 94-320 the parties agreed to
reduce the total amount of proposed penalties from $1,664.00 to
$1,152.00. This was accomplished by reducing the proposed
penalty for Citation No. 4039883 from $431.00 to $50.00 and the
penalty for Citation No. 4039880 from $431.00 to $300.00. All of
the other proposed penalties would remain as assessed.
The reduction in the first citation occurred because the
citation had been subsequently modified by the inspector from
"significant and substantial" to "non-significant and
substantial" but the modification had not caught up with the
file.
(Tr. 9.) The other penalty was reduced because of a
reduction in the number of miners affected by the violation.
(Tr. 9-10.)
The parties agreed to reduce the proposed penalty in
Docket No. KENT 94-533 from $1,008.00 to $800.00 by modifying
Citation No. 4241932 to delete the "significant and substantial"
designation and reducing the penalty from $168.00 to $50.00 and
by modifying the level of negligence for Citation Nos. 3164811
and 3164812 from "moderate" to "low" and reducing the penalties
for $168.00, each, to $123.00, each. (Tr. 11-12.) The penalties
for the remaining three citations would be as originally
assessed.
The Respondent did not contest Citation Nos. 3164862,
3164863, 3164864, 4258059, 4241744 and 4241745 in Docket No.
KENT 94-329 and Citation Nos. 4241750, 4241755, and 4258021 in
Docket No. KENT 94-330. Mr. Blair stated that he understood that
the proposed penalty would be assessed for these citations.
(Tr. 20.)
.
Having considered the representations and documentation
presented, I conclude that the proffered settlements are
appropriate under the criteria set forth in Section llO(i) of the
Act, 30 u.s.c. § 820(i). Accordingly, approval of the settlement
agreem~nts is granted and their .provisions will be carried out in
the order at the end of this decision.

2346

CONTESTED VIOLATIONS
Docket No. KENT 94-329

Citation No. 3164865 was issued by Inspector Clay on
October 26, 1993. It alleged a violation of Section 75.400 of
the Regulations, 30 C.F.R. S 75 . 400, and stated that
"[c)ombustible material in the form of float coal dust has
accumulated in the 004 face belt starting box and its energized
electrical components." (Gov. Ex. 8 . ) Citation No. 3164868 sets
out the same violation, on the same date, for "the energized belt
starting box at the No. 4 belt drive." (Gov. Ex. 9.)
The inspector testified that float coal dust had accumulated
on the electrical components and the floor of both starting
boxes. He stated that it was black in color, appeared to be "an
eighth of an inch, or so, deep," was "extremely flammable" and
"extremely explosive when suspended • • • within any type of
enclosed area."
(Tr. 26, 4 7.)
Section 75.400 requires that "[c]oal dust, including float
coal dust deposited on rock-dusted services, loose coal, and
other combustible materials, shall be cleaned up and not be
permitted to accumulate in active workings, or on electric
equipment therein." In its brief, ABM implicitly admits that the
violations occurred by arguing only that the violations were not
"significant and substantial." (Resp. Br. at 1.) Consequently,
I conclude that ABM violated Section 75 . 400 in both of these
instances. Old Ben Coal Co., 2 FMSHRC 2806, 2808 (October 1980).
Turning next to the question of whether the violations were
"significant and substantial," a "significant and substantial"
(S&S) violation is described in Section 104(d) (1) of the Act,
30 u.s.c . § 814(d) (1), 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 exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co . , 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained:

2347

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

See also Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04
(5th Cir. 1988), aff'g 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 substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984) .
This evaluation is made in terms of "continued normal 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).
.
As is usually the case, whether these violations were S&S
turns on the third element of the Mathies criteria. In
connection with this element, Inspector Clay testified that:
Inside [these] starting box[es] there are exposed
conductors, there are electrical components; there is
constant arcing. Every time the conveyor belt is

2348

stopped or started there's a line starter contained
herein; there's other electrical components, circuit
breakers that have a tendency to arc anytime the power
was removed from the conveyor belt due to any type of
malfunction or any type of repair work.
(Tr. 26-7, 47.)
The inspector stated that if arcing occurred with an
accumulation of fine coal dust a "fire" and "an explosion which
would initially b l ow the lids off of the box or blow doors open
and spread it to the mine outby area" would result. (Tr. 27,
47.) He further testified that if the fire spread out to the
mine, the ribs could catch fire, miners could be overcome by the
smoke and that float coal dust in the mine air, which was present
around the conveyor belts, "would intensify the explosion of the
fire." (Tr. 27-8, 47-8.)
ABM argues that the violations were not S&S because as part
of its weekly cleanup program the starting boxes are routinely
vacuumed by the company's electrician and, therefore, only a
minute amount of coal dust could accumulate between cleaning
periods. It states that "[o]ur cleanup program was approved by
MSHA and there has never been an incident caused by dust in these
starting boxes." (Resp. Br. at 1.)
The Commission has held that "[a) cleanup plan cannot
establish procedures that allow coal and other combustible
materials to accumulate in violation of section 75.400," nor
preclude the violation from being S&S. Uta.h Power & Light co.,
12 FMSHRC 965, 969-71 (May 1990). I conclude that the
uncontroverted testimony of Inspector Clay establishes "that the
hazard contributed to by the violation, an ignition or explosion
in the active workings in question, posed a reasonable likelihood
of injury to any miners working there." Id. at 971. See a.lso
Mid-Continent Resources, Inc., 16 FMSHRC 1226, 1231-32 (June
1994). Accordingly, the violations were "significant and
substantial."
The next contested citation was issued on November 28, 1993.
Citation No. 3164879 is for a violation of Section 75 . 512, 30
C.F.R. § 75.512, and states that "(t]he energized 4,160 volt
silpak power center, serial No . B-799-578[,] located 1 cross cut
from the No. 6 belt head was not maintained in a safe operating
condition. The lid over the energized 4,160 volt power wires was
not secured . " (Gov. Ex. 11.)

23 49

Section 75.512 requires that "[a] ll electric equipment shall
be frequently examined, tested, and properly maintained by a

qualified person to assure safe operating conditions." In
connection with this violation, Inspector Clay testified that
there are three lids on the power center, secured by eight bolts,
and that three bolts were missing from one of the lids. He
estimated that in this unsecured condition the lid could be
raised five or six inches and access gained to the inside by an
unqualified person, i.e. someone other than a certified
electrician. Based on this evidence, I conclude that the
regulation was violated.
The inspector believed that this violation was "significant
and substantial" because "there were energized power conductors
there. There was nothing to hinder anyone from coming over there
had there been a malfunction." (Tr. 62.) On the other hand, he
also testified that even if the power center had all its bolts in
place, anyone with "[e]ither a half-inch socket and a ratchet or
a pair of adjustable pliers or possibly a crescent wrench" could
get into it. (Tr. 62-3.)
In view of the fact that such tools would not appear to be
that hard for an unauthorized person to acquire in a mine, and
the fact that the lid could only be raised five or six inches,
I do not believe that three missing bolts raises the likelihood
of a serious injury in this instance from possible, which would
exist even if the bolts were present, to reasonably likely.
Accordingly, I conclude that the third element of the Mathies
criteria has not been met, and that the violation was not
"significant and substantial."' I will adjust the penalty
appropriately.
citation No. 3164880 was also issued on November 28. It
sets out a violation of Section 75.202(a), · 30 C.F.R. § 75.202(a ) ,
and relates that "[l]oose inadequately supported draw rock was
observed at various locations along the No. 5 belt line. This
draw rock ranged in thickness of 2 to 5 inches." (Gov. Ex. 13.)
Inspector Clay testified that this was in the No. 3 entry and
that the belt line also served as a secondary escapeway. He
opined that ~f the unsupported draw rock should happen to fall on
someone it could result in a fatal injury.
Section 75.202(a) provides that " [t]he roof, face and ribs
of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock bursts." The
inspector stated that he observed miners working in the entry and
on the belt line. Consequently, I conclude that ABM violated
this regulation.

2350

Inspector Clay testified that one of the loose hanging rocks
was three feet by four feet and was four inches thick. He said
that some of the small rocks could be scaled down with a pry bar
and that the rest had to be supported by straps and bridge bars.
Applying the Mathies criteria, I conclude that this violation was
"significant and substantial."
Citation No. 4241742 also alleges a violation of Section
75.202(a). It says that "[d]islodged roof supports in the form
of timbers were missing & broken at various locations along the
No. 5 belt conveyor." (Gov. Ex. 14.) In connection with this
violation, the inspector testified that he observed 20 to 25
timbers at various locations on the right and left rib of the
No. 5 belt entry that were broken, missing or dislodged, which
indicated to him that "the area obviously had been taking
excessive weight from the overburden and the i111111ediate roof
located above that entry." (Tr. 70.)
Inspector Clay further testified that the timbers were
necessary to prci¥ide adequate roof support in that area and that
their absence could have resulted in a fatal roof fall. Based on
this evidence, I conclude that the regulation was violated and
that the violation was "significant and substantial."
Docket Bo. KENT 94-330
The first two contested citations in this docket were issued
on November 3, 1993, for splices at different locations on a
trailing cable for a continuous miner. Citation No. 4242751
states that "(a] permanent splice in the 4/0 3 conductor 480 volt
energized cable extending to & serving the 101 Jeffery Continuous
Miner on the 004 MMU was not effectively insulated and sealed so
as to exclude moisture at a location approximately 60 feet from
the starting box" in violation of Section 75.604(b), 30 c:F.R.
§ 75.604(b).
(Gov. Ex. 22.) Citation No. 4241752 sets out an
identical violation for a splice "approximately 90 feet from the
starting box." (Gov. Ex. 23.)
Section 75.604(b) states that "(w]hen permanent splices in
trailing cables are made, they shall be: . . • (b) Effectively
insulated and sealed so as to exclude moisture." Inspector Clay
testified, with respect to the first splice, that "(t]he ends of
this particular permanent splice were open, there was an opening
an eighth to a quarter of an inch on each ends [sic] indicating
that an insufficient amount of material, glue or putty, had been
pressed or applied during the course of the splice." (Tr. 88.)
He testified that he found the same problem with respect to the
second splice.

2351

According to the inspector, the glue or putty material
"prevents water and moisture from coming inside of the boot
(splice)." (Tr. 87.) The violations were abated by wrapping
electrical tape at both ends of the splice.
Relying on language in the instructions which come with the
splice kit, the Respondent argues the splices complied with the
regulation without the tape. In particular, the Respondent
points to the note to instruction No. 6 to support its position.
Instruction No. 6 states " [ l ) ook for adhesive exposed and melted
at each end of sleeve. Allow assembly to cool and adhesive to
harden before shifting or bending splice area." The note says
"[e)nds may be taped if insufficient cooling time is available.
Tape may wear off with use. Loss will not impair function."
(Resp. Ex. A.)
ABM apparently interprets the statement that loss of the
tape will not impair the function of the splice to mean that the
splice will still be moisture proof without the tape. I do not
accept this interpretation for two reasons. First, it is more
likely that the. statement "loss will not impair function" refers
to the function of the splice, that is that the cable be able to
conduct electricity, not that the splice keep out moisture.
Secondly, the note when read in its entirety plainly refers to
putting tape over uncooled adhesive so that when the tape wears
off with use, the adhesive will have cooled and function as it is
supposed to.
In these two instances, the problem was not uncooled
adhesive, but a lack of adhesive resulting in gaps at the ends of
the splices which could admit water . Accordingly, I conclude
that the splices violated Section 75.604(b).
In connection with his "significant and substantial"
designation of these two violations, the inspector testified that
the cable is frequently handled by the continuous miner operator,
the miner helper, ventilation technicians and bridge operators;
that if water got in the cable it could result in electrocution;
and, that water was present in the mine from the coal ·seam, from
the water spray system on the continuous miner, from the dust
suppression system on continuous hauling system and from water
sprayed to wet the roadways down. Based on this undisputed
evidence, I conclude that the violations were "significant and
substantial."

2352

The next citation, Citation No. 4241754, alleges a violation
of Section 75.214(a), 30 C.F.R. § 75.214(a), because "(a) supply
of supplementary roof support materials (were) not available at a
readily accessible location on the 004 working section or within
4 cross cuts of the working section." (Gov. Ex. 24.) Section
75 . 214(a) requires that "(a] supply of supplementary roof support
materials and the tools and equipment necessary to install the
materials be available at a readily accessible location on each
working section or within four crosscuts of the working section."
Inspector Clay testified that during his inspection of the
No. 3 Entry he asked the section foreman where the supplementary
roof support materials were located and the foreman could not
show him any, other than 16 timbers and some 36-inch resin bolts,
either on the section or within . four crosscuts of the section.
The inspector further testified that after he got out of the
mine, a mine official told him that the material was in the No. 4
Entry, but he was not taken back into the mine and shown where
the materials were located.
Even if there were supplementary roof support materials in
the No. 4 Entry at a location within four crosscuts of the
working section, ABM has still violated the regulation. If the
section foreman does not know where the supplementary roof
materials are located and cannot immediately take the inspector
to them, it can hardly be said that the materials are at a
"readily accessible" location. Therefore, I conclude that ABM
violated Section 75.214(a).
As Section 75.214(b) indicates, the purpose of this
regulation is to have additional materials available to be used
if adverse roof conditions or a roof fall are encountered. 1 In
other words, this is material to be used in an emergency. As the
Commission has stated, "[t]he hazards of roof falls are well
known." Cyprus Empire Corp., 12 FMSHRC 911, 915 (May
1990) (citation omitted). The failure to have the material
necessary to react to such an emergency in a readily accessible
location is clearly a "significant and substantial" v~olation.

Section 75.214(b), 30 C.F.R. § 75.214(b), provides that
"[t]he quantity of support materials and tools and equipment
maintained available in accordance with this section shall be
sufficient to support the roof if adverse roof conditions are
encountered or in the event of an accident involving a fall."

2353

Citation No. 4241756 alleges a violation of Section 75.517,
30 C.F.R. S 75.517, in that "[t]he remote line extending to the
102 Jeffrey continuous miner in use and located on the 005 MMU
was not insulated adequately and f .u lly protected at the ·1ocation
where it entered the rear of the machine connecting device. 2
exposed conductors were visible." (Gov. Ex. 26.) Section 75.517
requires that "[p]ower wires and cables, except trolley wires,
trolley feeder wires, and bare signal wires, shall be insulated
adequately and fully protected."
Inspector Clay testified that the cable from the remote
control to the continuous miner, " [w]here the cable entered the
rear of the machine, either the cable had been pulled loose
through some kind of strain or it had not been properly installed
to begin with, because if a cabl e is loose , then two conductors
can be seen . " (Tr. 129.) He stated that the cable is handled
frequently by the miner operator, the mi ner helper or a
ventilation technician and that if the insulation wore off of the
conductors during the normal course of mining, electrocution
could result if someone touched the exposed wires.
I conclude that ABM violated the regulation as alleged .
I further conclude that the violation was "significant and
substantial." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573 (July
1984).
Citation No. 4241757 is the next citation. It states that
Section 75.514, 30 u.s.c. § 75.514, was violated because "[t]he
electrical connections made in the remote line at the No. 2
506 Jeffrey Bridge carrier on the 005 MMU were not reinsulated at
least to the same degree of protection as the remainder of the
cable." (Gov . Ex. 27.) Section 75. 514 requires, in pertinent
part, that "[a]ll electrical connections or splices in insulated
wire shall be reinsulated at least to the same degree of
protection as the remainder of the wire."
The inspector testified that for some reason the outer
jacket of the cable had been removed and that it had been
replaced by wrapping electrical tape around the inner .wires. He
said that he concluded that the cable was not reinsulated to the
same degree as the rest of the cable because the wrapped part of
the cable was of a smaller diameter than the remainder of the
cable . He explained that his determination that the wrapped
section of the cable was not insulated to the same degree was
"merely by observation . " (Tr. 145.)

2354

Inspector Clay further testified if one layer of the tape
afforded the sa.me degree of protection as the vulcanized rubber
insulation on the cable, then that "would be fine and dandy," but
that "[n]o one indicated to me that it did." {Tr. 154-55.) He
related that the violation was abated by wrapping more tape
around the repaired section, but he was not sure whether that
tape was the same type as that used to repair it originally.
The evidence on this citation fails to establish a violation
for two reasons. First, Section 75.514 only applies to
connections or splices and there is no evidence that this was
either. 2 Secondly, the fact that the repaired section of the
cable was not as large as the rest of the cable does not
necessarily prove that the degree of protection was not the same.
Accordingly, I conc lude that ABM has not been shown to have
violated the regulation and will vacate the citation. 3
The last contested citation is Citation No. 4241758.
alleges a violation of Section 75.4004 because:

It

Combustible material in the form of loose coal &
float coal dust has accumulated on the mine floor to a
depth of 3 to 8 inches over a distance of approximately
30 feet intermittentl y in the No . 3 Entry of the 005
MMU. This mine has a history of methane liberation and
energized trailing cables are constantly on the mine
floor. The area is dry and [sic ]
(Gov. Ex • 2 8 . )
The inspector testified that he observed accumulations of
loose coal and float coal dust in the No. 3 Entry that he
understood from the foreman had been left overnight. He stated
that he based his statement in the c itation that the "mine has a
history of methane liberation" on an MSHA Laboratories "Analyses
of Air Samples Received 02 / 07/ 94 11 for ABM which shows readings
between 0.000 percent and 0.020 percent. (Gov. Ex. 21.)

2

The inspector opined that "(i ] t was probably a splice -it may have been a damaged area. I did not have them remove the
tape to inspect the inside of the conductor." (Tr. 144.)
3

It appears that this situation would more properly have
been cited under Section 75.517 of the Regulations.
4

The text of Section 75.4 00 is set out on p. 3, supra.

2355

Based on this unrebutted evidence, I conclude that the
violation occurred as alleged. The very low methane readings for
the mine would not normally lead one to conclude that the mine
has a history of methane liberation. However, I find that the
violation was "significant and substantial" for the same reasons
discussed on page 5, supra, concerning the accumulations of loose
coal and float coal dust in the starter boxes.
CIVIL PENALTY ASSESSMENTS
Section llO(i) of the Act, 30 u.s.c. § 820(i), sets out six
criteria to be considered in determining an appropriate civil
penalty. In connection with these criteria, the parties
stipulated that ABM produced 305,605 tons of coal in the 12
months proceeding the proposed assessment in these cases, 238,284
tons of which were produced at the No. 1 Mine; that the proposed
penalties are appropriate to ABM's size and will not affect its
ability to continue in business; and that ABM demonstrated good
faith in attempting and achieving rapid compliance after
notification of the violations. (Tr. 13-14.) ABM's history of
prior violations was also received into evidence.
(Gov. Exs. lA
and lB.)
Applying the six criteria to the contested and uncontested
citations, I conclude that the penalties assessed by the
Secretary are appropriate, with the exception of Citation
No. 3164879, which I will reduce in accordance with my findings.
I also conclude that the agreed upon penalties in the settled
dockets are appropriate.
Accordingly, I have assessed a penalty for each citation as
follows:
Docket No. KENT 94-320
Citation No. 4036879

$189.00

Citation No. 4039880

$300.00

Citation No. 4039881

$189.00

Citation No. 4039883

$ 50.00

Citation No. 4039884

$235.00

citation No. 4039886

$189.00

2356

Docket No. KENT 94-329
Citation No. 3164862

$ 3 09.00

citation No. 3164863

$189.00

Citation No. 3164864

$309.00

Citation No. 3164865

$189 . 00

citation No. 3164868

$189.00

Citation No. 4258059

$189.00

citation No. 316487 9

$ 50.00

citation No. 3164880

$189.00

Citation No. 4241742

$189.00

Citation No. 4241 744

$189.00

citation No. 4241745

$189.00

Docket No. KENT 94-330
Citation No. 42417 5 0

$189.00

Citation No. 4241751

$189.00

Citation No. 4241752

$189.00

Citation No. 4241 7 54

$189.00

Citation No. 4241755

$189.00

Citation No. 4241756

$189.00

Citation No. 4241758

$189.00

citation No. 4258021

$288.00

Docket No. KENT 94-533
Citation No. 3164772

$168.00

citation No. 3164773

$168.00

2357

Citation No. 3164809

$168.00

Citation No. 4241932

$ 50.00

citation No. 3164811

$123.00

citation No. 3164812

$123.00

Total Penalty

$5,743.00
ORDER

Citation No. 4241757 in Docket No. KENT 94-330 is VACATED
and the civil penalty petition DISMISSED . Citation No. 4039883
in Docket No. KENT 94-320, Citation No. 3164879 in Docket
No. KENT 94-329 and Citation No. 4241932 in Docket
No. KENT 94-533 are MODIFIED to delete the "significant and
substantial" designations and the citations are APPIRMED as
modified. Citation Nos. 4036879, 4039880, 4039881, 4039884 and
4039886 in Docket No. KENT 94-320 ; citation Nos. 3164862,
3164863, 3164864, 3164865, 3164868, 4028059, 3164880, 4241742,
4241744 and 4241745 in Docket No. KENT 94-329; Citation
Nos. 4241750, 4241751, 4241752, 4241754, 4241755, 4241756,
4241758 and 4258021 in Docket No. KENT 94-330; and Citation
Nos. 3164772, 3164773, 3164809, 3164811 and 3164812 in Docket
No. KENT 94-533 are AFFIRMED.
ABM Coal Company, Inc., is ORDERED to pay civil penalties in
the amount of $5,743.00 within 30 days of the date of this
decision. On receipt of payment, these proceedings are
DISMISSED.

J.~~~"T. Todd Hodg n
Administrative Law Judge
(703} 756-4570
Distribution:
Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, suite B-201, Nashville, TN
37215-2862 (Certified Mail}
Roger Blair, Office Manager, ABM Coal company, P.O. Box 220,
Mary Alice, KY 40964 (Certified Mail)
/lbk

23 5 8

FEDERAL MINE SAFE1Y AND HEALTH REVIEW COMMISSION·
1730 K STREET, N.W., 6Tii FLOOR
WASHINGTON, D.C. 20006

NOV 2 9 1994

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 94-587
A. C. No. 36-05466-04022

v.
Emerald Mine No. 1
CYPRUS EMERALD RESOURCES
CORPORATION,
Respondent
ORDER ACCEPTING APPEARANCE
DECISION APPROYING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY

Before:

Judge .Merlin

This case is before me upon a petition for assessment of a
civil penalty filed on Octqber 11, 1994, under section 105(d) of
the F ederal Mine Safety and Health Act of 1977.
The penalty petition was filed on behalf of the Secretary
by a "Conference and Litigation Representative", hereafter·
referred to as a CLR.
In the cover letter to the petition the
CLR advis es that he is an employee of the Mine Safety and Health
Administration who has been trained and designated as a CLR and
is authorized to represent the Secretary in accordance with an
attached Limited Notice of Appearance. In the appearance notice
the CLR states that he is authorized to represent the Secretary
in all pre h earing matters and that he may appear at a hearing if
an attorney from the Solicitor' s office is also present.
Subparagraph (4) of section 2700.3(b) of the Commission ' s
regulations, 29 C.F.R. § 2700.3(b) (4), provides that an individual who is not authorized to practice before the Commission as an
attorney may practice before the Commission as a representative
of a party with the permission of the presiding judge. In
reviewing this matter, I take judicial notice of the fact that
more than 5,000 new cases were filed with the Commission in
FY 1994. Obviously, a caseload of this magnitude imposes strains
upon the Secretary's resources as well as those of this Commission.
It appears to me that the Secretary is attempting to
allocate his resources in a responsible matter. Therefore, I
exercise the discretion given me by the regulations, cited above,
and determine that in this case the CLR may represent the Secretary in accordance with the notice he has filed.

2359

on November 17, 1994, the CLR filed a motion to approve
settlement for the one violation in this case . The originally
assessed amount was $252 and the proposed settlement .is also
$252. However, the CLR requests that the citation be modified to
delete the significant and substantial designation. The violation was issued because a continuous miner operator stood inside
the chain conveyor on a continuous mining machi ne while he was
cleaning and servicing the machine. The electrical power to the
trailing cable for the machine had not been removed and the plug
was not tagged out of service. According to the CLR, the circuit
breaker on the mining machine had been placed in the "off"
position.
In order for the conveyor chain to move, both the
circuit breaker and the conveyor switch on the machine would have
to be activated.
The individual responsible for operating the
machine was the one standing inside the conveyor chain.
The CLR
represents therefore, that it was unlikely the machine would be
energized while the miner operator was servicing it.
I accept
the representations of the CLR and based thereon approve the
deletion of the S&S designation.
The violation nevertheless,
remains serious and warrants the agreed upon penalty assessment
which is appropriate under the criteria set forth in section
llO(i) of the Act.

WHEREFORE, it is ORDERED that the motion for approval of
settlement be GRANTED.
It is further ORDERED that Citation No . 3671905 be MODIFIED
to delete the significant and substantial designation.
It is further ORDERED that the operator PAY a penalty of
$252 within 30 days of this decision .

~--\~\~
Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Gerald F. Moody, Jr., Conference and Litigation Representative,
s. Department of Labor, MSHA, 200 James Place, Monroeville, PA
15146

U.

Michael R. Peelish, Esq., Cyprus Emerald Resources Corp., 9100
East Mineral Circle, Englewood, co 80112
/gl

2360

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

November 4, 1994
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-615
A.C. No. 05-00294-03504 ZW5
Somerset

v.
ART BEAVERS CONSTRUCTION CO.,
Respondent

PARTIAL SUMMARY DECISION
Before:

Judge Cetti

Pursuant to 29 C.F.R. § 2700.67, the Secretary of Labor,
Mine Safety and Health Administration (MSHA), through counsel,
moves for a partial summary decision disposing of the issue as to
whether the civil money ~enalty assessment was made within a
reasonable time as required by 30· u.s.c. § 815(a).
Respond~nt,
Art Beavers Construction Company, sought to have the citation at
issue, Citation No. 4060718, dismissed, and has asserted that the
Secretary has failed to comply with the provisions of 30 U.S.C.
§ 815(a) .
(See, Respondent's Answer at paragraph 8) . The
Secretary asserts that the Secretary complied with the provisions
of 30 U.S.C. § 8 15(a) as a matter of law. The parties agree that
no disputed material issues of fact remain with regard to that
issue and that this issue can be appropriately resolved by
summary decision based on the agreed Stipulations and exhibits,
the subject citation, the Petition for Assessment of Penalty and
the Respondent's answer.
I

STIPULATIONS
The parties jointly stipulate and agree to the following:
1.
Citation No. 4060718 was issued for an alleged nonsignificant and substantial violation of 30 C.F.R. § 48.29(a).
A
true and accurate copy of said citation is attached as Exhibit 1.
2.
The cited standard requires that " (u ]pon a miner's
completion of each MSHA approved training program, the operator
shall record and certify on MSHA Form 5000-23 that the miner has
2361

received the specified training •.. The training certificates for
each miner shall be available at the mine site for inspection by
MSHA
II
3. MSHA Inspector Larry Ramey issued said citation following an inspection, and he alleged that the MSHA Form 5000-23 for
one miner was not available for inspection.
4. MSHA Inspector Larry Ramey terminated said inspection on
September 10, 1992, and th e citation was issued on the same date.
5 . On that same date, MSHA Inspector Larry Ramey also
issued Order No. 4060 7 14. A notice of proposed assessment of
penalty was issued by MSHA on November 25, 1992, for that order.
6. On August 4, 199 3, MSHA issued the notice of proposed
assessment of penalty for Cita tion No . 4060718. A true and
accurate copy of the notice of proposed assessment is attached as
Exhibit 2.
7.
The notice of proposed assessment of penalty was issued
330 days after the citation was issued.
(September 10, 19 92 to
August 4, 1993).
8. Respondent received a copy of the notice of proposed
assessment of penalty on or about August 19, 1993.
9. On or about September 1, 1993, the Respondent filed a
timely notice of contest with MSHA. The notice of contest was
received on September 10, 199 3 . A true and accurate copy of that
notice of contest is attached as Exhibit 3.
10. On October 13, 1993, the Secretary filed a timely
Petition for Assessment of Penalty within 4 5 days of receipt of
the operator's timely notice of contest.
11. On November 3, 1993, the Respondent filed a timely
answer to the Petition for Assessment of Penalty within 30 days
from the date of receipt of the petition.
12. The Respondent has not alleged that it has suffered any
actual harm as a result of the 330 ·day delay.
13. The delay in filing of the notice of proposed assessment
arose out of the unusually high caseload at the time of the
issuance of the citation and a lack of clerical help to process
these cases. The Commission has agreed to take official notice
of the unique events that transpired in 1992. This is a matter
of public record as stated in Rhone-Poulenc of Wyoming Company,
FMSHRC ~-' (October 13, 1993), (15 FMSHRC 2089). A copy of this
decision is attached as Exhibit 4.

2362

II

This proceeding arises out of the Respondent's contest of
Citation No. 4060718 issued on September 10, 1992, by MSHA
Inspector Larry Ramey following an inspection of that same date.
(Stipulation Nos. 3 and 4). The subject citation alleged that "A
copy of the MSHA Form 5000-23, for the employee 'Fred English'
was not available for inspection by the writer at the mine site."
(See Citation No. 40608718, attached as Exhibit 1 to Stipulation). As such, the company's actions were alleged to be in
violation of 30 C.F.R. § 48.29(a).
(Stipulation 1). The cited
standard requires that
[u]pon a miner's completion of each MSHA
approved training program, the operator shall
record and certify on MSHA form 5000-23 that
the miner has received the specified training ... The training certificates for each
miner shall be available at the mine site for
inspection by MSHA ...
(Stipulation No~ 2). Inspector Ramey terminated the inspection
and issued the citation on September 10, 1992.
(Stipulation No.
4). According to the citation, the condition was abated on
September 10, 1992, when the employee in question left the mine
property.
(See Citation No. 4060718, attached as Exhibit 1 to
Stipulation). It is noted that on the same date, MSHA Inspector
Larry Ramey also issued Order No. 4060714. A notice of proposed
assessment of Penalty was issued by MSHA on November 25, 1992,
for that order.
(Stipulation No. 5).
On August 4, 1993, MSHA issued the notice of proposed
assessment of penalty for Citation No. 4060718.
(A copy of the
notice of proposed assessment is attached as Exhibit 2 to the
Stipulation).
(Stipulation No. 6). The notice of proposed
assessment of ' penalty was issued 330 days after the citation was
issued.
(September 10, 1992 to August 4, 1993).
(Stipulation
No. 7). Respondent received a copy of the notice of proposed
assessment of penalty on or about August 19, 1993.
(Stipulation
No. 8). Respondent is contending that the 330 days between the
issuance of the citation and the notice of proposed assessment is
in contravention with 30 U.S.C. § 815 (Respondent's Answer,
paragraph 3). However, Respondent has not alleged that it has
suffered any actual harm as a result of the 330-day time period.
(Stipulation No. 12).
On or about September 1, 1993, Respondent filed a timely
notice of contest with MSHA . The notice of contest was received
on September 10, 1993. {Stipulation 9, Exhibit 3). on October 13, 1993, the Secretary filed a timely Petition for Assessment of Penalty, within 45 days of receipt of the operator's
timely notice of contest. On November 3, 1993, R~spondent filed

2363

a timely answer to the Petition for Assessment of Penalty within
30 days from the date of receipt of the petition. (Stipulation
No. 11}. Thus, the parties are not contesting whether the Secretary filed his Proposal for Penalty in a timely manner within
45 days of receipt of the Respondent's timely contest of the
proposed penalty assessment pursuant to 29 C.F.R. § 2700.28. The
only unresolved issue for partial summary decision is whether the
Secretary complied with 30 u.s.c. § 815(a) when the Secretary
issued the proposed civil penalty 330 days after the issuance of
the citation.
Section 105(a) of the Act, 30 u.s.c. § 815(a) in relevant
part provides that after the issuance of a citation, the
Secretary shall:
within a reasonable time after the
termination of such inspection or
investigation, notify the operator by
certified mail of the civil penalty proposed
to be assessed under section llO(a) for the
violation cited ... (emphasis added).
The Act does not define the term "within a reasonable time." In
addition, in the new Procedural Rules of the Federal Mine Safety
and Health Review Commission, 29 C.F.R. Part 2700, effective
May 1, 1993, the Commission declined to set a specific time limit
in which to require the Secretary to notify the operator of a
proposed penalty assessment. See 29 C.F.R. § 2700.25. 1 In the
comments to the new rules the Commission stated:
One commenter noted that neither the present
nor the proposed rule sets forth a time limit
within which the Secretary is to notify the
operator of a proposed penalty assessment,
and suggested that the Commission prescribe
such a time limit. Section 105(a) of the
Mine Act states that the Secretary shall
provide such notice 'within a reasonable
time.' Disputes over the meaning of that

1

Section 2700.25 states:

Proposed Penalty Assessment.

The Secretary, by certified mail, shall notify the operator
or any other person against whom a penalty is proposed of
the violation alleged, the amount of the proposed penalty
assessment, and that person shall have 30 days to notify the
Secretary that he wishes to contest the proposed penalty
assessment.

236 4

phrase will be resolved in the adjudicative
process.
Section-by-section Analysis 58 Fed. Reg. 12161 (1993).
The Secretary in his motion points out that the legislative
history of 30 u.s.c. § 815(a) indicates that Congress did not
intend for the citation to be dismissed where a penalty is not
proposed promptly. As stated by the Senate Subcommittee on
Labor:
To promote fairness to operators and miners
and encourage improved mine safety and health
generally, such penalty proposals must be
forwarded to the operator and -miner representative promptly. The Committee notes, however, that there may be circumstances, although rare, when prompt proposal of a
penalty may not be possible, and the Committee does not expect that the failure to
propose a penalty with promptness shall
vitiate any proposed penalty proceeding.
(emphasis added).

s. Rep. No. 95-181, 95th Cong., 1st Sess. 24 34, reprinted in
Senate Subcommittee on Labor, Comm. on Human Resources, 95th
Cong., 2 Sess., Legislative History of the Federal Mine Safety
and Health Act, at 622 (1978).
In the instant case, admittedly there was a 330-day time
period between the issuance of the penalty and the issuance of
the citation. The parties have stipulated that the delay in
filing of the notice of proposed assessment arose out of the
unusually high caseload at the time of the issuance of the
citation and a lack of clerical help to process these cases. The
Commission has agreed to take official notice of the unique
events that transpired in 1992. This ·is a matter of public
record as stated in Rhone-Poulenc of Wyoming Company, 15 FMSHRC
2089, (October 13, 1993), at 2093-2094.
(Stipulation No. 13;
copy of decision attached as Exhibit 4). Given this course of
events, this constitutes one of the circumstances, although rare,
when the prompt proposal of a penalty was not possible. In
addition, Respondent has not suffered any actual harm as a result
of the 330-day delay.
(Stipulation No. 12). Dismissal of the
penalty proceeding in such circumstances would be in contravention of the legislative intent of Congress and would be a harsh
result where no harm has come to the operator.
CONCLUSION

It satisfactorily appears from the record, including the
stipulations, that the Secretary established an adequate cause

2365

for the delayed filing on the basis of MSHA's unusually heavy
1992 caseload and its shortage of personnel to process this caseload. The Commission has taken official notice of the unique
events that occurred in 1992, in which the Commission played a
part as more fully set forth in the Commission Decision RhonePoulenc of Wyoming Company, 15 FMSHRC 2089 (October 13, 1993).
It is also clear from the record that Respondent has not
established, demonstrated nor even alleged that it was prejudiced
or suffered any harm by the delay.
ORDER
The Secretary's motion is GRANTED. I find, under the facts
and circumstances of this case, that the civil penalty assessment
of $50 was made within the reasonable time required by 30 U.S.C.
§ 815(a).
Counsel for the parties having indicated to me that they
would be able to resolve all other issues without need for formal
hearing, Counsel are ORDERED to confer with each other during the
next fifteen {15) days with respect to final resolution of thi s
matter either by settlement or request for an order approving
penalty.
In the event Counsel cannot agree, they are to notify me of
this within the initial fifteen (15) day period.
If there are
any disagreements, Counsel ARE FURTHER ORDERED to state the-ir
respective positions on any remaining issues where they cannot
agree, with supporting arguments and specific references to the
record in this case, within thirty (30) days.
If the parties
believe that a further hearing is required on any aspects of this
matter, they should so state.
I retain jurisdiction in this matter until all aspects of
this case are resolved and finalized.

Aug t F. Cetti
Administrative Law Judge
Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 stout Street, Denver, co
80294
(Certified Mail)
James E. Masson, Esq., ART BEAVERS CONSTRUCTION CO., P.O. Box
400, Crawford, co 81415 (Certified Mail)
sh

2366

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

IOU 2 8 1994

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

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 94-104
A.C. No. 36 02053 03548

v.

BUCK MOUNTAIN COAL COMPANY,
and RICHARD KOCHER, SR.,
OSCAR BLOUGH, JR., DAVID
ZIMMERMAN, PAUL ZIMMERMAN,
and HAROLD SCHNOKE, as
PARTNERS,
Respondents

Docket No. PENN 94-63
A.C. No. 36-02053-03544

.

Docket No. PENN 94-64
A.C. No. 36-02053-03545
Docket No. PENN 94-65
A.C. NO. 36-02053-03546
Docket No. PENN 94-66
A.C. No. 36-02053-03547
Buck Mountain Slope

PARTIAL DECISION
AND

NOTICE OF BEARING
Appearances:

Gayle Green, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, .
Pennsylvania, for the Petitioner;
David Zimmerman, Paul Zimmerman, Harold Schnoke,
Richard D. Kocher, Sr., and Oscar Blough, Jr.,
pro se, partners Buck Mountain Coal Company,
Pine Grove, Pennsylvania, for the Respondent.

Before:

Judge Feldman

These proceedings concern numerous citations issued to Buck
Mountain Coal Company (Buck Mountain) during the period
September 1992 through July 1993. Buck Mountain Coal Company is
a partnership.

2367

Pursuant to a Notice of Hearing issued on October 17, 1994,
a preliminary hearing in these matters was conducted on
October 25, 1994, in Harrisburg, Pennsylvania. The 'Notice of
Hearing limited the issues to be addressed at the preliminary
:h earing to whether the named partners in this proceeding are
jointly or severally liable for any/or all of the citations in
issue, and, if so, the financial ability of each partner to pay
the proposed penalties. The Notice of Hearing also noted that
the court would entertain any jurisdictional objections raised by
any party .
At the preliminary hearing, Richard Kocher moved to dismiss
for lack of jurisdiction based on his assertion that his
partnership's mining activities did not affect interstate
commerce. At the hearing, the Secretary called an owner of the
Pine Creek Coal Company (Pine creek) who purchases the coal
extracted by Buck Mountain Coal Company. Pine Creek mixes the
coal obtained from Buck creek with coal from other suppliers.
Pine Creek sells the coal to numerous customers including power
utility companies and custo~ers located in Maryland and New
Hampshire. The coal is shipped over interstate highways.
Kocher's motion to dismiss was denied on the record as it is
evident that Buck Mountain's coal extraction affects interstate
commerce as contemplated by section 4 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 803. 1 See Jerry Ike Harless
Towing, Inc., 16 FMSHRC 683, 686-687 (April 1994).
With respect to the liability question, the evidence
reflects that David Zimmerman, Paul Zimmerman and Harold Schnoke
were general partners of Buck Mountain coal Company since
April 1986. 2 On April 10, 1986, partners D. Zimmerman,
P. Zimmerman and Schnoke leased the right to extract anthracite
coal from the Buck Mountain Slope from the G.M.P. Land Company,
Inc., in return for a payment of $7.00 per net ton of coal
removed.
(P. Ex. 3). A Legal Identity Report completed May 5,
1986, by Paul Zimmerman lists the partners of Buck Mountain Coal
Company as David Zimmerman, Harold Schnook (sic) and Paul
Zimmerman.
On April 14, 1993, the Zimmermans and Schnoke ass.igned their
mineral rights under the lease with the successor of the G.M.P.
Land Company to Richard Kocher and Oscar Blough, Jr.
(P. Ex. 4).
Consequently, the Legal Identity Report for Buck Mountain Coal

1

Kocher was advised that the period for appealing the
denial of his jurisdictional objection would not begin until a
final decision is issued in this matter.
2

David Zimmerman appeared on behalf of his father Paul
Zimmerman.

2368

Company was amended on April 14, 1993, to reflect the partners as
Oscar Blough, Jr., and Richard Kocher, Sr.
In view of the above, it is apparent that D. Zimmerman,
P. Zimmerman and Schnoke are jointly and severally liable for all
citations issued to Buck Mountain on or before April 13, 1993.
Similarly, Kocher and Blough are jointly and severally liable for
all citations issued to Buck Mountain after April 13, 1993. I am
reserving a decision on whether the Zimmermans and Schnoke are
also jointly and severally liable for citations issued to Buck
Mountain after April 13, 1993. This determination will be based
on whether these individuals remained substantially involved with
mining operational decisions and whether they retained any
control over the extraction process. See, ~' W-P Coal
Company, 16 FMSHRC 1407, 1410-1411 (July 1994) .
Finally, the parties requested that I defer a decision on
their financial ability to pay the proposed civil penalties in
order to enable them to obtain and submit additional pertinent
documentation.
The Notice" of Hearing scheduling the preliminary hearing
noted that a hearing on the merits of the citations in issue
would be held within 60 days. Accordingly, further proceedings
in these matters are scheduled for 9:00 a.m. on Tuesday,
January 24, 1995, in Barrisburq, Pennsylvania. The hearing
location will be specified in a subsequent order. The parties
are advised that any motions to approve settlement by any partner
of any/or all of these matters must be filed on or before ·
Tuesday, January 10, 1995. Any motions filed after that date
will not be considered and the parties will be required to
proceed to trial. The parties are further advised that any party
who fails to appear at the hearing may subject himself to the
entry of a default )udgment for the entire civil penalty proposed
by the Secretary.

.~:::ld
• 12m~ --.

Feldman
.
Administrative Law Judge

2369

Distribution:
Oscar Blough, Jr., R.D. 2, Pine Grove, PA

17963

(Certi~ied

Mail)

Oscar Blough, Jr., Buck Mountain Coal Company No. 2, R. D. #2,
Box 425 B-2, Pine Grove, PA 17963 (Certified Mail)
Richard D. Kocher, Sr . , R.D. 4, Box 393A, Pine Grove, PA 17963
(Certified Mai l )
Richard D. Koc her, Sr., Buck Mountain Coal Company No. 2,
R.D. #2, Box 425 B-2 , Pine Grove, PA 17963 (Certified Mail)
David Zimmerman, Partner, R.D. 4, Box 357B, Pine Grove, PA 17963
(Certified Mail)
David Zimmerman, Partner, Buck Mountain Coal Company No. 2,
R. D. #2, Box 4 2 5 B-2, Pine Grove, PA 17963 (Certified Mail)
Paul Zimmerman, Partner, R.D. 4, Box 3 5 70, Pine Grove, PA 17963
(Certified Mail)
Paul Zimmerman, Partner, Buck Mountain Coal Company No. 2,
R.D. #2, Box 425 B-2, Pine Grove, PA 17963 · ccertified Mail)
Harold Schnoke , Partner, R.D. 3, Box 77C, Pine Grove, PA 17963
(Certified Mail)
Harold Schnoke, Partner, Buck Mountain Coal Company No. 2,
R.D. #2, Box 425 B-2, Pine Grove, PA 17963 (Certified Mail)
Gayle Green, Esq., Office of the Solicitor, U.S. Dept. of Labor,
3535 Market Street, Room 14480, Philadelphia, PA 19104
(Certified Mail)
/rb

2 37 0

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

NOV 3 0 1994

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
CLETIS R. WAMSLEY,
ROBERT A. LEWIS,

DISCRIMINATION PROCEEDINGS
Docket No. WEVA 93-394-D
Hope CD 93-01, 93-05
Docket No. WEVA 93-395-0
Hope CD 93-02

JOHN B. TAYLOR,
CLARI< O. WILLIAMSON, AND

Docket No. WEVA 93-396-D
Hope CD 93-04

SAMUEL COYLE,

Docket No. WEVA 93-397-D
Hope CD 93-07

v.

Complainants

MUTUAL MINING, INC.,
Respondent

Docket No. WEVA 93-398-0
Hope CD 93-11
Mutual Mine I

DECISION ON DAMAGES, ASSESSMENT OF CIVIL PENALTY,
AND ORDER DENYING RESPONDENT'S MOTION FOR AN
EXTENSION OF TIME IN WHICH TO RESPOND TO THE
SECRETARY OF LABOR'S MOTION FOR SUMMARY JUDGMENT

Before:

Judge Amchan

On June 24, 1994, I found that Respondent had violated
section 105{c) of the Act in discharging the Complainants on
December 21, 1992. I ordered the parties to confer and advise me
within 30 days as to whether they were able to stipulate to the
amount of back pay due the Complainants and to facts that would
allow me to calculate an appropriate civil penalty pursuant to
the criteria in section llO{i) of the Act.
The parties were subsequently ·given an extension of time
until August 24, 1994, to respond to this order. In a conference
call with counsel for both parties on August 24, 1994, the
complainants' counsel advised me that he had submitted a
calculation of back pay to Respondent, but had not received a
response.

2371

On August 26, 1994, I ordered that: 1) No later than
September 14, 1994, Respondent respond to the Complainants'
counsel regarding back pay due; 2) No later than September 28,
1994, both parties file with the undersigned their final
submissions regarding the amount of back pay due Complainants and
the appropriate civil penalty to be assessed.
A motion for summary judgment was filed by the Secretary on
October 28, 1994, representing that no formal written respons e to
his calculations had been filed by the Responde nt, nor h a d
Respondent provided any suggested calculation of backwages . No
timely response to the Secretary's motion has been filed.
Instead, on November 14, 1994, the last day on which a response
could b e timely filed, Respondent filed a request for an
extension of time until November 30, 1994. Respondent's counsel
states that, "respondent has been unable to gather certain
documents and compile certain information relative to the
proceeding and get same to counsel . . . "
In view of the fact that Respondent was required by my
August 26, 1994, order to respond to the Secretary's calculations
no later than September 14, I find that the reasons for which an
extension of time is requested are completely inadequate.
Therefore, I deny the motion for such an extension. The
Secretary of Labor's motion for summary judgment on the issue of
damages is GRANTED. Respondent is ORDERED to pay the following
amounts to the respective Complainants 1 :
Cletis Wamsley
Clark D. Williamson
Samuel Coyle
John B. Taylor
Robert A. Lewis

$35,880.88
$ 5,203.31
$19,667.81
$23,132.15
$46,825 . 73

The aforementioned figures have been calculated pursuant to
the information contained in the Secretary's October 28, 1994
motion for summary judgment and supporting attachments.
Assessment of Civil Penalty
Section 104(a) of the Federal Mine Safety and Health Act
provides that a mine operator shall be assessed a civil penalty

1

The Secretary's motion does not indicate receipt of unemployment
insurance compensation by any of the complainants . Commission precedent,
Clifford Meek v. Essroc Corporation, 15 FMSHRC 606 (April 1993), is that
complainants must subtract any amounts received in unemployment compensation
from the back-pay award. Therefore, if any such amounts were received they
should be deducted from the amount of back-pay. The secretary is, therefore,
ordered to determine whether any of the complainants received unemployment
compensation benefits and, if so, to return those amounts to Respondent within
60 days of this order.

2372

of not more than $50,000 for each violation of an MSHA standard,
or provisions of the Act. Section llO(i) of the Act provides
that the Commission shall assess such penalties, taking into
account the operator's history of previous violations, the size
of the operator's business, the gravity of the violation, the
negligence of the operator, the good faith demonstrated in
attempting to achieve rapid compliance after notification of a
violation and the effect of the penalty on the operator's ability
to stay in business.
The Secretary in its amended complaint proposed a civil
penalty of $15,000. I assess a civil penalty of $5,000 ($1,000
per complainant). Although the record indicates that Respondent
intentionally discriminated against complainants in the lay-off
of December 21, 1992, it also indicates that Respondent has
serious financial difficulties. These problems, in conjunction
with the large amounts of back-pay being awarded to complainants,
lead me to conclude that $5,000 is an appropriate civil penalty
pursuant to the criteria in section llO(i).
ORDER

Respondent is ordered to pay the complainants the amounts
set forth herein as back-pay awards within 4S calendar days of
th>is order. Respondent is ordered to pay to the Secretary the
civil penalty within 60 days of this order. Upon payment of
these amounts these cases are dismissed.

Art(J~
Administrative Law Judge
Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
W. Jeffrey Scott, Esq., 311 Main Street, P.O. Box 608, Grayson,
KY 41143 (Certified Mail)
jf/

2373

•U.S. GOVERNMENT P'RINTING OFFICE : 199~-387- 720-23380

2374