AUGUST 1989
COMMISSION DECISIONS
08-21-89
08-21-89
08-21-89
08-24-89
08-24-89
08-25-89
08-28-89

Industrial Constructors Corporation
Sec. Labor for John Bushnell v. Cannelton
Industries, Inc.
Birchfield Mining Company
Rushton Mining Company
Consolidation Coal Company
BethEnergy Mines, Inc.
Tracey & Partners, Randy Rothermel

WEST 89--86-M
WEVA 85-273-D

Pg. 1423
Pg. 1425

WEVA 87-272
Pg. 1428
PENN 88-99-R
Pg. 1432
WEVA 87-343
Pg. 1439
PENN 87-94
Pg. 1445
PENN 87-121-R Pg. 1457.

ADMINISTRATIVE LAW JUDGE DECISIONS
08-01-89
08-02-89
08-03-89
08-03-89
08-04-89
08-11-89
08-11-89
08-11-89
08-11-89
08-16-89
08-16-89
08-17-89
08-22-89
08-22-89
08-23-89
08-30-89

Yaple Creek Sand & Gravel
Donald R. Babbs
Peabody Cbal Company
Sec. of Labor on behalf of 13 miners v.
Ideal Basic Industries, Inc.
Bruce Mitchell v. Asarco, Inc.
Industrial Constructors
Rushton Mining Company
Rushton Mining Company
Mid-Continent Resources, Inc.
Mid-Continent Resources, Inc.
Junior Phillips/Scarab Energy Corp.
V H W Incorporated
Helen Mining Company
Arnold Sharp v. Big Elk Creek Coal Co.
Cyprus Empire Corporation
Ed Yankovich, Paul Branchish, etc. v.
Consolidation Coal Company
Clinchfield Coal Company

v.

CENT 88-93-M
KENT 89-119-D
CENT 88-142-D

Pg. 1471
Pg. 1485
Pg. 1486

WEST 88-244-DM Pg. 1489
WEST 88-256-M Pg. 1490
PENN 89-5
Pg. 1499
PENN 89-17
Pg. 1506
WEST 88-121
Pg. 1509
WEST 88-122
Pg. 1512
SE
89-10
Pg. 1514
CENT 88-140-M Pg. 1518
PENN 88-312
·Pg. 1526
KENT 89-70-D
Pg. 1528
WEST 88-206
Pg. 1553
PENN 89-214-D Pg. 1566
VA

89-67-R

Pg. 1568

ADMINISTRATIVE LAW JUDGE ORDERS
07-12-89
07-20-89
08-02-89
08-09-89

Asarco, Incorporated
Consolidation Coal Company
Sec. Labor on behalf of Harry Ramsey v.
Industrial Constructors Corp.
Sanger Rock & Sand

SE
88-82-RM Pg. 1573
WEVA 89-20
Pg. 1581
WEST 88-246-DM Pg. 1585
WEST 88-275-M Pg. 1604

AUGUST 1989
Review was granted in the following case during the month of August:
Secretary of Labor, MSHA v. Mountain Parkway Stone, Inc., Docket No.
KENT 89-27-M. (Judge Weisberger, July 14, 1989)
There were no cases in which review was denied.

COMMISSION DECISIONS

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

August 21, 1989

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

v.

Docket No. WEST 89-86-M

INDUSTRIAL CONSTRUCTORS
CORPORATION
BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson, Commissioners
ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On June 13,
1989, Commission Chief Administrative LaW-Judge Paul Merlin issued an
Order of Dismissal, stating that the Commission had been informed by the
Secretary that the proposed penalty in this case had been paid. By
letter dated July 24, 1989, addressed to counsel ..for the Secretary and
copied to Judge Merlin, Industrial Constructors Corporation ("Industrial
Constructors") states that its payment of a different civil penalty, for
Citation No. 3065456, appears to have been mistakenly applied to Citation
No. 2876658, the subject of the present proceeding. The operator requests
that this matter be reopened. A copy of this letter was received by the
Commission on July 27, 1989. We deem the operator's letter to constitute
a request for relief from a final Commission order, incorporating a latefiled petition for discretionary review. For the reasons set forth below,
we grant review, vacate the judge's dismissal order, and remand this matter
for further proceedings.
The judge's jurisdiction in this matter terminated when his order of
dismissal was issued. 29 C.F.R. § 2700.65(c). Because the judge's
decision has become final by the operation of law (30 u.s.c. § 823(d)(l)),
we can consider the merits of Industrial Constructors' request, received
by the Commission after the judge's decision became final, only if we
construe it as a request for relief fran a final Commission decision
incorporating a late-filed petition for discretionary review. See, e.g.,
A.H. Smith Stone Company, 11 FMSHRC 796, 797-98 (May 1989), and authorities
cited.

1423

Here, Industrial Constructors asserts in its letter that the reason
that its request for relief from the judge's dismissal order was late was
because it did not receive the judge's order or it was misplaced in the
company's office. Under the circumstances, we excuse the late filing,
and consider the letter as a petition for discretionary review. See
generally, M.M Sundt Construction Co., 8 FMSHRC 1269, 1270-71 (September
1986). See also Ten-A-Coal Co., 10 FMSHRC 1132, 1133 (September 1988).
An operator's payment of a civil penalty extinguishes its right to
contest the penalty and the underlying alleged violation, except where
payment has been made by genuine mistake. Old Ben Coal Co., 7 FMSHRC 205,
207-10 (February 1985). The operator's request for relief questions the
basis upon which the judge's dismissal order rests. The operator's letter
suggests that the operator should be heard with respect to the correctness
of the Secretary's prior notification to the Commission that the proposed
civil penalty for the citation in issue had been paid. See Coal Junction
Coal Co., 11 FMSHRC 502, 503 (April 1989).

Accordingly, we grant the operator's petition for discretionary
review, vacate the dismissal order, and remand this matter to the judge
for further proceedings.

~~-rd..,_~_Ch__.a..._irm__.._.an--·--~~....--

'Ricllard

~t?~
Co~mi~
oyceA:DOyle,

L. Clair Nelson, Commissioner
William T. Murphy, Esq •.
Industrial Constructors Corp.
101 International Way
P.O. Box 7489
Missoula, Montana 59807
S. Lorrie Ray, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Bldg.
1961 Stout Street
Denver, Colorado 80294
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1424

.

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

August 21, 1989

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, on behalf of
JOHN W. BUSHNELL

v.

Docket No. WEVA 85-273-D

CANNELTON INDUSTRIES, INC. ·

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
ORDER·
-

BY THE COMMISSION:
This discrimination case ar1s1ng under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"),
is before us on remand from an opinion of the United States Court of
Appeals for the District of Columbia Circuit reversing our prior
decision in this matter. Secretary of Labor on behalf of John W•
. Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432 (1989), rev'g,
10 FMSHRC 152 (February 1988}: At issue is the scope of the pay
protection afforded miners with evidence of pneumoconiosis (Black Lung
disease) by relevant provisions of the Mine Act and the Secretary of
Labor's regulations at 30 C.F.R. Part 90.
The discrimination complaint filed by the Secretary of Labor on
John W. Bushnell's behalf i~ this matter alleged that Cannelton
Industries Inc. ("Cannelton") discriminated against Bushnell, a "Part 90
miner," in violation of section 105(c)(l) of the Mine Act, 30 U.S.C.
§ 815(c)(l), when, after a job transfer occurring as part of a companywide work force reduction and realignment, he was paid at a rate lower
than the rate he was receiving immediately prior to his transfer. The
transfer at issue occurred several years after Bushnell's initial
transfer without loss of pay to a low-dust job pursuant to 30 C.F.R.
Part 90. Connnission Administrative Law Judge William Fauver determined
that Cannelton unlawfully discriminated against Bushnell when it failed
to compensate him after his second transfer at the same rate of pay that
he had received prior to that transfer. 8 FMSHRC 1607 (October
·
1986)(ALJ). In essence, Judge Fauver concluded that the Part 90 pay
protection provision set forth at 30 C.F.R. § 90.103(b) applies whenever

1425

a Part 90 miner is transferred and is not limited only to transfers as a
result of exposure to respirable dust. 8 FMSHRC at 1608-09. The judge
awarded Bushnell back pay of $161.14 plus interest on that sum to be
"computed in accordance with the Commission's rulings concerning
interest" and assessed Cannelton a civil penalty of $25. 8 FMSHRC at
1609-10. We granted Cannelton's petition for discretionary review,
which was limited to the sole issue of the judge's construction of the
pay protection afforded to Part 90 miners by the Secretary's
regulations.
In our prior decision, we disagreed with the judge. We concluded
that both the general pay protection provisions of section 10l(a)(7) of
the Mine Act, 30 U.S.C. § 811(a)(7), and the regulations set forth in
Part 90 applied only to exposure-related transfers, not to all
transfers. 10 FMSHRC at 155-59. Finding that Bushnell was transferred
as part of a bona fide, non-discriminatory work force reduction and
realignment, we held that the immediate pay protection right enjoyed by
Bushnell when he was initially transferred to a low-dust position did
not obtain on the occasion of his later, nonexposure-related transfer.
10 FMSHRC at 159. In this regard, we stated that "the pay protection
provisions of the Mine Act and the Part 90 regulations do not grant Part
90 miners a vested pay entitlement that insulates them against all
negative business and economic contingencies affecting their employers."
10 FMSHRC at 154-55 (emphasis in original). Accordingly, we reversed
the judge's decision, dismissed Bushnell's discrimination complaint, and
vacated the backpay award and civil penalty.
The Secretary appealed our decision, and the Court, reversing our
decision, stated:
We hold that the Commission failed to extend the
appropriate deference to the Secretary's
interpretation of her own regulations and of the
Mine act. The Commission erred insofar as it held
that section 90.103(b) protects the Part 90 miner's
wage only upon dust-related transfers and that a
contrary interpretation would violate the Mine Act.
Accordingly, we reverse the Commission's decision
and remand this case to the Commission with
directions to adopt the ALJ's decision in favor of
Bushnell.
867 F.2d at 1439.

1426

Accordingly, the judge's decision and assessment of civil penalty
are reinstated. Cannelton is directed to pay Bushnell the back pay
awarded by the judge, with interest calculated in accordance with the
formula set forth at 54 Fed. Reg. 2226 (January 19, 1989). See Loe. U.-·
2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (November--i9"88), pet.
for review filed, No. 88-1873 (D.C. Cir. December 16, 1988).

Distribution
Larry W. Blalock, Esq.
Michael J. Bonmarito, Esq.
Jackson, Kelly, Holt & O'Farrell
P.O. Box 553
Charleston, West Virginia 25322
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Wi.lliam Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

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

August 21, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
Docket No. WEVA 87-272

UNITED MINE WORKERS OF AMERICA

v.
BIRCHFIELD MINING COMPANY
BEFORE: Ford, Chairman; Backley, Doyle, Lastowka, and Nelson, Commissioners
ORDER
BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act" or "Act"),
counsels for petitioner Secretary of Labor and respondent Birchfield Mining
Company ("Birchfield") have filed a Joint Motion for Approval of Settlement.
The motion states that counsel for the United Mine Workers of America ("UMWA")
has no objection to the proposed settlement. For the following reasons, the
parties' settlement is approved and this matter is dismissed.
In January 1989, acting on Birchfield's petition for discretionary
review, we affirmed the decision of Commission Administrative Law Judge
Gary Melick (9 FMSHRC 2209 (December 1987)(ALJ)), which found that
Birchfield had violated 30 C.F.R. § 75.303(a) and that the.violation
resulted from Birchfield's unwarrantable failure to comply with that
mandatory standard. 11 FMSHRC 31 (January 1989). A majority of the
Commission reversed Judge Melick's finding that the violation was of a
significant and substantial nature; a minority of the Commissioners
dissented on that point. Birchfield had also contended that the judge
had erred in assessing a $400 civil penalty for the violation. In view
of its determination that the violation was not significant and substantial,
the majority remanded the case to the judge for reconsideration of the
appropriate civil penalty.
Judge Melick issued a decision on February 2, 1989, assessing a
revised penalty of $300. 11 FMSHRC 198 (February 1989)(ALJ). The Secretary filed a petition for discretionary review, arguing, in essence, for
reconsideration of the Commission's prior determination with respect to
the significant and substantial issue. The UMWA, which had not previously

1428

participated in this proceeding as a party, intervenor, or amicus also
filed a petition for review similarly seeking reconsideration of the
significant and substantial issue. By order issued March 14, 1989, we
granted both petitions and again directed review. In the meantime, on
March 10, 1989, Birchfield had paid to the Secretary the civil penalty
of $300 assessed by the judge, which payment the Secretary subsequently
accepted.
Following the Commission's Direction for Review, the National Coal
Association ("NCA") and Bituminous Coal Operators Association ("BCOA")
jointly and the American Mining Congress ("AMC") individually filed motions
to intervene. Concurrently with their motion, the NCA and BCOA, joined by
Birchfield, filed a motion to dismiss the Secretary's and the UMWA's review
petitions. The AMC, also joined by Birchfield, filed a similar motion to
dismiss. In turn, the Secretary and the UMWA opposed both motions to
intervene and both motions to dismiss.
On June 22, 1989, Birchfield filed a Renewed Motion to Dismiss and
Offer of Judgment. Birchfield asserted that the case was moot due to its
payment of the $300 civil penalty. Birchfield further stated that it
"d[id] not wish to incur further litigation expenses •••• " Pursuant to Fed.
R. Civ. P. 68, Birchfield also "offer[ed] to have a judgment entered
against it and in favor of the Secretary of Labor for $400 ••• , raising the
total payment by Birchfield to the amount of the original penalty proposal."
Following the filing of this motion, settlement discussions ensued among
the parties.

On July 17, 1989, the Secretary and Birchfield filed a Joint Motion
for Approval of Settlement. Noting the Commission's prior divided opinion
with respect to the significant and substantial issue, the parties state
that they "recognize that final resolution of the [significant and
substantial] issue ••• is a matter that is not free from doubt •••• " The
parties further "recognize that extensive resources have been expended in
the litigation to date and that additional resources will be expended in
further pursuit of the litigation should it continue." The motion asserts
that "[i]n light of the above considerations, the operator has determined
that it no longer wishes to contest the [underlying] citation, its
significant and substantial or unwarrantable failure findings, or the
assessment of civil penalty."
As part of the settlement, Birchfield agrees to pay a penalty of $400,
the amount originally proposed by the Secretary and first assessed by Judge
Melick. Birchfield also agrees to withdraw its previous petition for discretionary review that was the subject of our prior decision. In turn, the
Secretary agrees to withdraw her present petition for review. The parties
request the Commission to vacate its initial direction for review of Birchfield' s petition, its January 1989 decision, its subsequent direction for
review of the Secretary's and UMWA's petitions, the judge's original December
1987 decision, and the judge's February 1989 decision on remand. The motion
indicates that counsel for the UMWA has authorized counsel for the Secretary
to state that the UMWA "does not object to the settlement" and that, upon
Commission approval of the stated settlement terms, "agrees to vacation" of
the Commission's direction for review of the UMWA's review petition.
Birchfield's earlier Offer of Judgment represented that the NCA and BCOA

1429

had no objection to the relief sought and, subsequent to the filing of the
joint settlement motion, the AMC submitted a statement of non-objection to
the settlement motion.
Oversight of proposed settlements of contested cases is an important
aspect of the Commission's adjudicative responsibilities under the Mine
Act (30 u.s.c. § 820(k)), and is, in general, committed to the Commission's
sound discretion. See, e.g., Pontiki Coal Corp., 8 FMSHRC 668, 674-675
(May 1986). As we have observed, "our 'responsibility under the Mine Act
is to ensure that a contested case is terminated, or continued, in accordance with the Act.'" Southern Ohio Coal Co., 10 FMSHRC 1669, 1670 (December
1988) ("SOCCO"), quoting, YougQiogheny & Ohio Coal Co., 7 FMSHRC 200, 203
(February 1985). The Commission has granted motions to vacate citations
and orders and to dismiss review proceedings if "adequate reasons" to do
so are present. E.g., SOCCO, supra, and authorities cited. Here, the
real parties in interest, the Secretary and Birchfield, have stated their
mutual desire to terminate a course of litigation that has become expensive
and onerous to them. The operator has agreed to pay in full the civil
penalty originally proposed by the Secretary.
None of the parties who
have filed petitions for review or motions to intervene have raised any
objection to the proposed settlement.
In the past, the Commission has vacated enforcement actions and
directions for review in granting dismissal motions on review. We conclude
that the nature of the relief sought here is not inconsistent with the
Commission's inherent powers as an adjudicative body under section 113(d)
of the Act, 30 U.S.C. § 823(d), and lies within its zone of discretion in
this legal area. We further conclude that, in light of the unique circumstances of this proceeding, adequate cause exists to grant the parties'
joint dismissal motion.
Therefore, upon consideration of the motion, it is granted. Our two
directions for review in this proceeding are vacated and the underlying
petitions for review are dismissed. Our prior decision and the judge's
decisions are also vacated. In view of this action, all other pending
motions are dismissed as moot.

~
/

Richard V. Backley, Commission~r

~tZ.~~
oyceA:riOyle, ComlliiSSiOer

1430

Distrib.ution
Anthony J. Cicconi, Esq.
Shaffer & Shaffer
330 State Street
P.O. Box 38
Madison, West Virginia 25130
William D. Stover, Esq.
MAE Services
40 Eagles Road
Beckley, West Virginia 25801
Henry Chajet, Esq.
Doyle & Savit
919 18th Street, N.W.
Suite 1000
Washington, D.C. 20006
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20.005
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
William E. Hynan, Esq.
National Coal Association ·
1130 17th Street, N.W.
Washington, D.C. 20036
Michael T. Heenan, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N.W.
Suite 400
Washington, D.C. 20005
Mark Ellis, Esq.
American Mining Congress
1920 N Street, N.W. #300
Washington, D.C. 20036
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1431

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

24, 1989

RUSHTON MINING COMPANY

v.

Docket No. PENN 88-99-R

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

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Connnissioners

DECISION

BY THE COMMISSION:
At issue in this contest proceeding ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine
Act"), is whether a violation by Rushton Mining Company ("Rushton") of
30 C.F.R. § 75.1704-2(a), requiring that escapeways follow the "safest
direct practical" route.out of a mine, was significant and substantial
in nature. 1/ Connnission Administrative Law Judge Avram Weisberger
concluded that Rushton violated the regulation but that the violation
was not significant and substantial. 10 FMSHRC 713 (June 1988)(ALJ).
We granted the Secretary of Labor's petition for discretionary review,
which was limited to the issue of whether the judge erred in finding
that the violation was not significant and substantial. For the reasons

1/

30 C.F.R. § 75.1704-2(a) provides as follows:
In mines and working sections opened on and after
January 1, 1974, all travelable passageways
designated as escapeways in accordance with
§ 75.1704 shall be located to follow, as determined
by an authorized representative of the Secretary,
the safest direct practical route to the nearest
mine opening suitable for the safe evacuation of
miners. Escapeways from working sections may be
located through existing entries, rooms, or
crosscuts.

1432

that follow, we affirm the judge's finding.
Rushton owns and operates the Rushton Mine, an underground coal
mine in Pennsylvania employing approximately 257 miners. On December 8,
1987, Donald Klemick, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA"), inspected the 2N-3 section of
the mine. Approximately seven miners were working in rooms 11-15 of
that section. Klemick found that the primary escapeway designated for
those miners was approximately 2,100 feet in length, was roundabout in
nature, and contained four 90 degree turns. See Exh. JX-4.
Klemick believed that Rushton could have designated a shorter,
more direct practical route out of rooms 11-15 of the 2N-3 section.
Tr. 29-30. Accordingly, he cited Rushton for violating section 75.17042. £/ The citation alleged:
The designated intake escapeway from the 2N-3 002
section to the intake shaft escape facility was not
located to follow the safest, direct practical
route. The escapeway was designated outby from the
section to station 7737, through crosscuts to
station 7792, then inby to the shaft a distance of
about 2100 feet. The safest, direct practical route
would be from the section traveling in a direct
route to the shaft of about 500 feet.
Klemick designated the violation to be of a significant and substantial
nature because he believed that there would be a reasonable likelihood
of serious injury in an emergency situation.
After consultation with MSHA, Rushton abated the violation by
designating a new escapeway route from the 2N-3 working section to the
No. 2 shaft. This new route was approximately 500 feet in length and
involved only one turn. - Exhibit JX-4. In the Secretary's view, this
new escapeway was not only the most direct route but also the safest and
most practical.
After Rushton's mining of rooms 11-15 was completed, mining went
outby room 11 to a second set of five rooms, and then continued further
outby to a third set of rooms. For these rooms, Rushton reverted to its
designation of the original escapeway route for which it had been cited.
Use of the original Rushton escapeway for the second set of rooms
involved traveling a distance of 1,600-1,700 feet, while use of the
escapeway designated for purposes of abatement of the violation at issue
would have involved traveling a route of 800 feet. On mining the third
set of rooms, the designated escapeway involved a distance of 1,400
2/
Klemick's citation alleged a violation of 30 C.F.R. § 75.1704Z(b). At the hearing before the judge, the Secretary, without
objection, moved to amend the citation to allege a violation of 30
C.F.R. § 75.1704-2(a) in order to conform to the point in time during
which the affected area of the mine was opened. The judge permitted the
amendment. Tr. 6-7.

1433

feet, while use of the escapeway designated for abatement of the
violation would have involved a distance of 1,200-1,300 feet. Mine
Manager Raymond Roeder, Rushton's witness, testified that an inspector
(not Klemick) examined Rushton's designated escapeway from the second
set of rooms and that, to his knowledge, Rushton was not cited for
redesignation of the escapeway originally found to be in violation.
Tr. 123-24. Roeder also stated that Klemick examined Rushton 1 s
designated escapeway for the third set of rooms but did not issue any
citations for the escapeway. Tr. 125-26.
In his decision, Judge Weisberger concluded that Rushton's cited
escapeway was in violation of section 75.1704-2(a) because it was not a
direct route to the shaft. 10 FMSHRC at 718. He also found that the
escapeway designated in order to abate the violation was direct and less
than one third the distance of the cited escapeway. 10 FMSHRC at 71618. }/ The judge stated:
In the event [of] a hazard necessitating escape from
the section, it is clear that an indirect route
containing three 90 degree jogs and doubling back on
itself, is a greater impediment to a speedy exit
from a dangerous situation as opposed to the MSHA
escapeway, which is direct and less than one third
of the distance of the Rushton escapeway. As such,
it must also be considered to be the "safest" within
the purview of section 1704-2(a) ••••
10 FMSHRC at 718. The judge further determined, however, that the
violation was not significant and substantial. He stated:
Klemick testified that the use of the Rushton
escapeway, as it is longer than the MSHA one, could
result in a fatality by a miner being exposed to
smoke or could result in falls occasioned by the
rush to leave a dangerous situation. However, in
essence, he indicated that in the absence of
specific information, as to a specific hazard, it
would be difficult for him to tell what would occur
if one would have to use the Rushton escapeway. As
such, I must find that the Respondent [Secretary]
has not met its burden in establishing that the
violation herein is to be considered significant and
substantial (see Mathies Coal Co., 6 FMSHRC 1
(January 1984)).
10 FMSHRC at 718.

}/
The judge stated that the length of the cited escapeway was
approximately 1,700 feet. 10 FMSHRC at 716. The evidence in the
record, however, is that the cited escapeway was approximately 2,100
feet, as stated in the citation. See Exhibit JX-4; Tr. 12, 29, 109-10,
123, 158.

1434

No issue as to the fact of violation has been raised before us on
review. The only question presented is whether the judge erred in
concluding that the violation was not of a significant and substantial
nature. The Secretary submits that the seriousness of Rushton's
violation of the escapeway standard must be evaluated within the context
of the occurrence of an emergency and in comparison to the escapeway
subsequently designated. In the Secretary's view, use of the cited
escapeway in an emergency situation would create a significantly greater
likelihood of serious injury than would the shorter, more direct
escapeway designated for purposes of abating the violation. The
Secretary focuses on the greater length and less straightforward
configuration of the cited escapeway, and on the additional escape time
needed for use of the Rushton route.
A violation is properly designated "significant and substantial"
if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission
explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety
hazard -- that is, a measure of danger to safety -contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably
serious nature.
Accord, Austin· Power v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir.
1988).
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," and that the
likelihood of injury must be evaluated in terms of continued normal
mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July
1984). See also Monterey Coal Co., 7 FMSHRC 996, 1001-02 (July 1985).
The operative time frame for determining if a reasonable likelihood of
injury exists includes both the time that a violative condition existed
prior to the citation and the time that it would have existed if normal
mining operations had continued. Halfway, Inc., 8 FMSHRC 8, 12 (January
1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). The
question of whether any particular violation is significant and
substantial must be based on the particular facts surrounding the
violation, including the nature of the mine involved. Texasgulf, Inc.,
10 FMSHRC 498, 500-01 (April 1988); Youghiogheny & Ohio Coal Company,
9 FMSHRC 2007, 2011-12 (December 1987). Finally, the Commission has
emphasized that it is the contribution of a violation to the cause and

1435

effect of.a hazard that must be significant and substantial.
Mining Co., 6 FMSHRC 1834, 1836 (August 1984).

U.S. Steel

Under this precedent and based on our review of the record, we
conclude that substantial evidence supports the judge's finding that
Rushton's violation was not significant and substantial in nature.
The judge's finding of a violation is not at issue on review and,
therefore, the first element of the Mathies test has been established.
The second element of Mathies requires the Secretary to prove that the
violation of section 75.1704 presented a discrete safety hazard. The
Secretary submits that the length of the cited escapeway and the
purported inability in an emergency situation to exit the mine quickly
and directly present a discrete safety hazard. We conclude, however,
that the Secretary has failed to show that the distance, travel time, or
any inherent qualities of the cited route posed a discrete safety
hazard.
The length of a mine escapeway, in and of itself, is not
dispositive of the existence of a discrete safety hazard. Insofar as
this record reflects, the cited escapeway, approximately 2,100 feet in
length, was the shortest escapeway in the Rushton mine. Tr. 109. The
length of the primary escapeways to the surf ace from the other five
working sections of the mine were 11,610 feet, 9,600 feet, 7,060 feet,
4,750 feet, and 2,470 feet. Tr. 100-01. The length of the mine 1 s
secondary escapeways from all six sections varied from 9,100 to over
14,000 feet. Tr. 101. Nothing in this record indicates that the other
escapeways, all longer than the escapeway at issue (some by a quite
considerable extent) have been deemed hazardous by MSHA because of their
distances. See Tr. 101. Thus, the evidence of the length of the cited
escapeway ca~t be viewed as establishing per sea discrete hazard~/.
Additionally, all the evidence of record suggests that the cited
escapeway was in safe condition. Klemick's notes on his December 8,
1987 visit to the mine indicate that the cited escapeway was "maintained
in good condition." S. Response to Interrogatories. Klemick testified
that the escapeway was "in good condition" and that he encountered no
obstacles along the course of the escapeway that would impede passage.
Tr. 62-63. Further, Klemick did not issue a citation to Rushton for any
violation of section 75.1704 requiring that escapeways "shall be
~/

Moreover, the Secretary did not introduce any evidence comparing
the times required to travel the cited escapeway or the subsequently
designated route. Rushton 1 s witness Roeder testified, however, that a
person in a hurry could traverse the cited route in seven minutes. Tr.
110. The Secretary has not disputed the accuracy of Roeder's testimony
on the time required to travel the cited route. Although Roeder
conceded that it would take less time to travel the new escapeway (Tr.
140), the fact that there would be some difference between the seven
minutes travelling the cited route and an unknown, but lesser amount of
time travelling the new route is not, by itself, probative of a
"meaningful" delay in reaching the surface. ~Florence Mining Co.,
11 FMSHRC 747, 755-56 (May 1989).

1436

maintained in safe condition."

Tr. 62.

While the cited route contains several 90 degree turns, it
resembles a rectangle in shape. That configuration was not established
to be so intrinsically confusing as to be a discrete safety hazard.
Also, other factors indicated advantages of the cited route. Rushton
presented evidence through a member of the mine safety committee that
the cited route provided access to the alternative (secondary) escape
route and possible transportation, but that such access was lacking with
respect to the route that was designated for abatement of the violation.
Tr. 169-70; Exhibit JX-4. Furthermore, finding that the cited escapeway
was located in an intake entry while the MSHA-designated escapeway
relied upon leakage of air from a hole around a door in the escapeway,
the judge concluded that the cited escapeway "clearly" provided more
air. 10 FMSHRC 716-17.
Finally, with regard to the third and fourth elements of the
Mathies test, we conclude that the Secretary also has failed to show
that the violation created a reasonable likelihood of reasonably serious
injury. The Secretary argues that, assuming an emergency, there was a
reasonable likelihood of serious injury due to the violation. The
reasons set forth above substantiating the Secretary's failure to prove
a discrete safety hazard apply with equal force here. The Secretary has
failed to show that differences in distance, travel time, or any
inherent qualities between the cited route and the new route posed a
threat involving a reasonable likelihood of reasonably serious injury in
the event of an evacuation. We emphasize in this regard that, as the
judge noted (10 FMSHRC at 718), Klemick was extremely vague as to the
type of injury that he believed was likely to occur (see Tr. 23-24, 61)
and he shed little, if any, light on the likelihood of any injury or its
seriousness. For example Klemick stated that "it's very difficult, if
not impossible, to state what kind of injury [might occur]." Tr. 24.

1437

For the reasons set forth above, we conclude that substantial
evidence supports the judge's finding that the Secretary did not prove
the violation of section 75.1704-Z(a) was significant and substantial in
nature and we affirm his decision.

Richard

Jg':Tt:iie~o1::aA
Connnissioner

Distribution
Colleen A. Geraghty
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Joseph Yuhas, Esq.
Rushton ?fining Comoanv
P.O. Box 367
Ebensburg, PA 15931

1438

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

August 24, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 87-343

CONSOLIDATION COAL COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION

BY THE COMMISSION:
This civil penalty proceeding ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)("Mine Act"
or "Act"), involves three citations issued by the Department of Labor's
Mine Safety and Health Administration ("MSHA") to Consolidation Coal
Company ("Consol") at its Arkwright No. 1 Mine in Osage, West Virginia,
for alleged violations of mandatory electrical safety standards. Consol
contended before Commission Administrative Law Judge Avram Weisberger
that, because the electrical equipment cited for the violations was
exclusively owned and operated by its independent contractor, FrontierKemper, Inc. ("Frontier"), MSHA should not have cited Consol for
Frontier's alleged violations. Judge Weisberger rejected Consol's
arguments as to liability and determined, inter alia, that Consol had
violated the standards in all three instances. 10 FMSHRC 745 (June
1988)(ALJ). The Commission granted Consol's petition for discretionary
review, which asserted that the judge erred in finding Consol liable,
without regard to fault, for its contractor's activities. We conclude
that Consol could properly be cited for the violations in question, and
we affirm.
The underlying facts are not in dispute. Consol contracted with
Frontier to construct, by "raise boring" methods, an 830-foot deep-mine
ventilation shaft in the Jake's Run area of the Arkwright No. 1 Mine.
"Raise boring," also referred to as "up-drilling," is a method of shaft
building whereby the shaft is drilled to the surf ace from an underground
location, following a small diameter pilot hole. Frontier is one of the

1439

few specialists in this particular method of shaft drilling and
construction.
At a preconstruction conference, Frontier and Consol discussed
Frontier's requirements for performing the work and apportioned
responsibilities for roof/rib control, ventilation, and the conduct of
preshift and on-shift examinations. It was agreed that electric power
would be brought to the work site via Consol's power center, that
Frontier would run its cables from the power center, and that Frontier
employees would not leave their work site during the shift. Frontier
also agreed that its certified electricians would conduct inspections of
Frontier electrical equipment and that Consol would conduct all other
required examinations. Subsequently, Consol performed those other
examinations, hazard-trained Frontier personnel, transported Frontier
personnel in and out of the mine, and instructed Frontier personnel as
to escape routes. Consol personnel did not direct the Frontier work
force in any way. 1/
On June 9 and 10, 1987, MSHA Inspector Edwin Fetty, accompanied by
MSHA Inspector Alex Volek, inspected the Main Butt Section in the Jake's

ll

Consol management at the Arkwright No. 1 Mine based its
relationship with Frontier upon a Consol memorandum, "Inspection of
Independent Contractors," issued to mine personnel on or about
December 31, 1985. The memorandum provides in pertinent part that:
[T]he following are reconunended when inspecting
Consol properties on which independent contractors
are working:
No inspection of the workplace of contractor's
employees should be made;
If you casually observe contractor's employees
either conunitting an unsafe act or violating state
or federal statutes or regulations, the contractor's
supervisor may be so informed. Consol personnel
should not attempt to require the contractor or the
contractor's employees to make corrections, or
otherwise take specific actions;
If it appears that Consol employees may be
endangered by the actions of contractor's employees,
all endangered Consol employees should be withdrawn
from the affected area(s) and the contractor's
supervisor should be informed of the actions taken
and the reasons for taking such actions and;
If it appears that Consol property is endangered by
the actions of the contractor's employees the
contractor's supervisor should be notified.
Exh. RX-4 (emphasis in original).

144Q

Run area of the Arkwright Mine. Fetty, who specializes in
electrical/mechanical problems, made the spot inspection because another
inspector had informed him of a reported ignition at the Frontier updrilling site. Inspector Volek had been assigned to "key in" on
independent contractors because their accident rate had risen.
Inspector Fetty observed the violative conditions in issue on
June 9 and took enforcement actions against Frontier on that date,
including issuance of a withdrawal order and citation pursuant to
section 104(d) of the Mine Act. 30 U.S.C. § 814(d). Because no
responsible Consol official was present at the time, he returned the
next day and issued three section 104(a) citations to Consol. Frontier
paid the civil penalties proposed by MSHA for its violations but Consol
contested the alleged violations issued to it.
With respect to the first violation, Inspector Fetty found that an
oil pump motor on a rotary blower was not equipped with a fail-safe
device designed to cause a circuit breaker to open when either the pilot
or the ground wire was broken. The citation issued to Consol pursuant
to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleged a
violation of 30 C.F.R. § 75.902. ~/ Inspector Fetty also opened the
circuit breaker box for a 540 amp, 500 hp. blower motor owned by
Frontier and observed that the circuit breaker was set at 12,000 amps.
The inspector testified that the proper setting for a circuit breaker is
from five to ten times the amperage on the equipment serviced by the
circuit, so that the circuit breaker should have been set for a maximum
of 5,400 amps. The citation issued to Consol pursuant to section 104(a)
of the Mine Act alleged a violation of 30 C.F.R. § 75.518-1. 11 In
addition, the inspector examined the conducting cable to the same blower
motor. He determined that the cable was inadequate to carry safely the
540 amps drawn by the blower motor. The citation issued to Consol
pursuant to section 104(a) of the Act alleged a violation of 30 C.F.R.

~/

30 C.F.R. § 75.902 provides in pertinent part:
[L]ow- and medium-voltage resistance grounded
systems shall include a fail-safe ground check
circuit to monitor continuously the grounding
circuit to assure continuity which ground check
circuit shall cause the circuit breaker to open when
either the ground or pilot check wire is broken •..•

J/

30 C.F.R. § 75.518-1 provides in pertinent part:
A device to provide either short circuit
protection or protection against overload which does
not conform to the provisions of the National
Electric Code, 1968, does not meet the requirement
of§ 75.518 •••.

1441

§

75.513-1. !!_/

At the hearing, Fetty testified that he issued the above citations
to Consol in addition to Frontier because the violations occurred in
Consol's mine, Consol employees were working there a portion of the
time, and any of the cited conditions could affect other employees and
areas of the mine if, for example, a fire occurred. Inspector Volek
understood that no Consol people were allowed into the Frontier work
area to do anything or to direct the Frontier employees but stated that
Consol had overall responsibility for safety of the mine and should have
made an effort to ensure Frontier's compliance with standards~ Volek
indicated that in determining whether to recommend that Fetty issue the
citations to Consol, he considered the nature of the violations,
Consol's work relationship with Frontier, and the fact that the
violations occurred underground and could pose a potential hazard to
Consol's own employees. Volek testified that there are some situations
where only one party -- the production-owner or the independent
contractor
would be cited, but that in some circumstances, as here,
both would be held responsible.
Before the judge, Consol conceded that it was "the rule" of the
United States· Courts of Appeals for the 4th, 9th and D.C. Circuits that
"the production operator can be held strictly liable for the violations
of its independent contractor, permitting the Secretary of Labor to cite
either the owner or the contractor or both," and asserted that it did
not contest the fact that Consol is an "operator" under the Mine Act.
Consol Post-Hearing Brief at 12-13. Consol argued, however, that the
appropriate inquiry was whether the Secretary's enforcement discretion
was properly exercised in this case. Contending that it was not, Consol
asserted that Commission precedent, particularly Phillips Uranium Corp.,
4 FMSHRC 549 (AprH 1982), in which the Commission reversed the judge
who had upheld the citations against the operator, permitted a
Commission judge to consider the circumstances relevant to the citing of
a production-operator as opposed to its independent contractor and that
the judge should adhere to Commission guidance in this regard.
The judge rejected Consol's arguments and determined that the
rationale in Phillips, supra, was inapposite to the instant proceeding.
He stated that Phillips involved a situation where only the operator was
cited for violations in connection with shaft construction by an
independent contractor. The judge held that Phillips was not
controlling on the issue of whether the operator and the independent
contractor, who had been separately cited for the violations, were
jointly liable under the Mine Act. 10 FMSHRC at 749. The judge
concluded that Consol was properly cited by the Secretary, based on a
line of court and Commission cases holding, in essence, that "the owner
!!_/

30 C.F.R. § 75.513-1 provides in part that:
An electric conductor is not of sufficient size to
have adequate carrying capacity if it is smaller
than is provided for in the National Electric Code,
1968 •..•

1442

of a mine is liable for the independent contractor's safety violations
without regard to the owner's fault." Id. The judge cited Bituminous
Coal Operators Association v. Secretary of Interior, 547 F.2d 240 (4th
Cir. 1977); International Union, United Mine Workers of America v.
FMSHRC, 840 F.2d 77 (D.C. Cir. 1988); Cyprus Indus. Minerals Company v.
FMSHRC, 664 F.2d 1116 (9th Cir. 1981); Old Ben Coal Company, 1 FMSHRC
140 (October 1979), aff'd No. 79-2367 (D.C. Cir. January 6, 1981); and
Republic Steel Corporation, 1 FMSHRC 5 (April 1979). 10 FMSHRC at 74950. The judge went on to affirm the three citations and assess civil
penalties of $20 for each of the three violations.
On review, Consol does not take issue with the Secretary's
authority to cite either the owner, the independent contractor or both
for violations of the Mine Act. Rather it challenges whether the
Secretary properly exercised that authority in choosing to cite Consol
as well as its independent contractor. Court precedent makes clear that
the Secretary has retained wide enforcement discretion and that courts
have traditionally not interfered with the exercise of that discretion.
Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir.
1986). In this instance, the Secretary pursued enforcement action
against both a production operator and its contractor for electrical
violations occurring in an underground mine setting wherein the
employees of both the production operator and the independent contractor
were exposed to potential hazards occasioned by the violations. We have
carefully reviewed the record, the judge's decision, and the parties'
arguments. We hold that the judge's conclusion that the Secretary's
discretion was not abused in citing Consol in addition to Frontier for
these particular violations is supported by the record, swnmarized
above, relating to the violations and the inspectors' reasons for citing
both parties, and is also supported by applicable precedent. See, ~'
Old Ben, supra, 1 FMSHRC at 1481-86; Intl. U., UMWA v. FMSHRC, supra,
840 F.2d at 83; Brock v. Cathedral Bluffs Shale Oil Co., supra, 796 F.2d
at 537-38; BCOA v. Secretary, supra, 547 F.2d at 246.

1443

Accordingly, we affirm.

~~
FOrd B. ~ , Chairman

~W'V~~/

Richard V. Backley,'~r

L. Clair Nelson, Commissioner

Distribution
Dennis D. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson ~lvd.
Arlington, VA 22203
Michael R. Peelish, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

1444

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

August 25, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

v.

Docket Nos. PENN 87-94
PENN 87-200-R
PENN 87-201-R
PENN 88-38

BETHENERGY MINES, INC.

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION

BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (the "Mine Act"), and involves three alleged violations of 30
C.F.R. § 75.1704, the mandatory escapeways standard for underground coal
mines. lf The issue is whether the cited areas are "working sections"

lf

Section 75.1704 essentially restates section 317(f)(l) of the Mine
Act, 30 U.S.C. § 877(f)(l), and provides:
Except as provided in §§ 75.1705 and 75.1706, at
least two separate and distinct travelable
passageways which are maintained to insure passage
at all times of any person, including disabled
persons, and which are to be designated as
escapeways, at least one of which is ventilated with
intake air, shall be provided from each working
section continuous to the surf ace escape drift
opening, or continuous to the escape shaft or slope
facilities to the surface, as appropriate, and shall
be maintained in safe condition and properly marked.
Mine openings shall be adequately protected to
prevent the entrance into the underground area of

1445

within the meaning of the standard and, thus, subject to the
requirements of section 75.1704.
Commission Administrative Law Judge Roy J. Maurer concluded that
the subject areas were not "working sections" and vacated the two
citations and the order of withdrawal containing the violations and
dismissed the associated civil penalty proceeding. 10 FMSHRC 224
(February 1988) (ALJ). We granted the Secretary of Labor's petition for
discretionary review and heard oral argument. For the reasons that
follow, we affirm the judge.
I.

The facts underlying the cited conditions in this matter are
essentially uncontroverted.
Docket No. PENN 87-94
Several weeks before October 7, 1986, BethEnergy Mines, Inc.
officials began rehabilitating the 1 Right Section in the Mine 84
Complex ("Complex") and assigned workers there, on an intermittent
basis, to ready the section for resumption of coal production, which had
ceased ten months earlier in December 1985. On October 7, 1986, an
inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA"), Lloyd Smith, conducted a regular quarterly
inspection of the Livingston Portal area of the Complex. Before he
proceeded underground, the inspector was advised by a company official
that a crew had been sent into the 1 Right Section. There were several
things that needed to be done on that section before coal production
could begin, including clean-up work.
Upon arriving at the section, Smith observed the crew, as well as
a mechanic and several construction workers. A continuous mining
machine, a roof bolting machine, a shuttle car, an air pump, and a belt
conveyor were present in the area. A load center was also present but
it was not yet operable. Because the load center was not operable,
there was no power in the 1 Right Section. In addition, the belt
conveyor was inoperable because there was no hopper at the end of the
belt to receive coal from the shuttle car. Because of various
difficulties, coal production on the section was not actually resumed
until December 1986.
Inspector Smith reviewed the section map and travelled the No. 2
and No. 3 entries, the routes identified on the map as the designated
the mine of surface fires, fumes, smoke, and
floodwater. Escape facilities approved by the
Secretary or his authorized representative, properly
maintained and frequently tested, shall be present
at or in each escape shaft or slope to allow all
persons, including disabled persons, to escape
quickly to the surface in the event of an emergency.
(Emphasis added.)

1446

intake air and alternate escapeways. Smith discovered that the
escapeways were obstructed by two seven-foot high metal overcasts with
no means for traversing them. ~/ Smith, believing the 1 Right Section
to be a "working section" requiring two travelable escapeways
"maintained to insure passage at all times of any person," concluded
that the obstructed escapeways violated section 75.1704, and he cited
BethEnergy for a violation of the standard. Subsequently, BethEnergy
abated the violation by installing steps with handrails at each
overcast.
Docket No. PENN 87-200-R
Some nine months later, on July 27, 1987, MSHA Inspector William
Brown conducted an inspection of the same general area of the Complex.
This inspection took place at the end of a month long mine shutdown.
Prior to travelling underground, Brown was advised by a union safety
committeeman that a roof fall had occurred in the designated intake air
escapeway for the 53 Parallel Section of the Complex and that miners
were working in the section. The roof fall blocked the escapeway at the
No. 74 stopping. Inspector Brown went to an area where three miners
were grading non-combustible material from the bottom to permit a
mantrip to extend into the Complex 1 s new A-Left Section. Two masons
were constructing an overcast nearby. Because the mine was at the end
of its shutdown status, no coal production was underway, although coal
had been mined there previous to the shutdown and further coal
production was planned after the shutdown ended. (In fact, production
resumed in the A-Left .Section approximately eight days later.) The
inspector believed that the area where the miners were working was a
"working section," and he concluded that the obstructed intake escapeway
violated section 75.1704. Therefore, he cited BethEnergy for violating
the standard.
Docket No. PENN 87-201-R
After leaving the 53 Parallel area, Inspector Brown proceeded to
the 3 Right Longwall Section, which was serviced by the same intake air
escapeway as the 53 Parallel section. Arriving there, Inspector Brown
determined that miners were installing roof supports and preparing the
section for longwall mining. However, coal production was not yet
possible because only one half of the roof support shields were
installed at the face, the headgate drive and the shear, used for
cutting coal, were not at the face (they were in BethEnergy's shops),
and, although the pan line was installed, the conveyor was not connected
to the mining equipment •. In fact, coal production did not commence on
the 3 Right longwall section until some eight days after the inspection.
Believing the longwall section to also be a "working section" and
because the designated intake air escapeway for the section was
impassable, the inspector cited BethEnergy for another violation of
~/

An overcast is defined as an "enclosed airway to permit one air
current to pass over another one without interruption." Bureau of
Mines, U.S. Dep't of Interior, Dictionary of Mining, Mineral, and
Related Terms 780 (1986).

1447

section 75.1704.
II.

After a hearing in Docket No. PENN 87-94 and in Docket Nos. PENN
87-200-R and PENN 87-201-R, Judge Maurer issued his decision holding
that in each instance the Secretary failed to prove a violation of
section 75.1704. Because section 75.1704 requires escapeways to be
provided from each "working section," the judge and the parties agreed
that existence of the three alleged violations turned in each instance
upon whether the cited area was a "working section" within the meaning
of the standard. The judge initiated his analysis of this issue by
referring to 30 C.F.R. § 75.2(g)(3), the regulatory definition of
"working section."]/ The judge noted that the definition of "working
section" dell.ends in turn upon the definition of "working face," which is
defined in the regulations and the Mine Act as "any place in a coal mine
in which work of extracting coal from its natural deposit in the earth
is performed during the mining cycle." 30 C.F.R. § 75.2(g)(l); 30
U.S.C. § 878(g)(l). Because the term "mining cycle," as used in the
definition of "working face," is not defined in the Mine Act or the
Secretary's regulations, the judge considered definitions of the term
offered by the witnesses and agreed with those that defined the term
"mining cycle" as meaning those mining operations most immediately
connected with the extraction of coal -- supporting the roof, cutting
and loading the coal, and transporting the coal out of the mine.
10 FMSHRC at 230-32. The judge rejected BethEnergy's argument that
actual coal extraction must have commenced in order for a working face
or a working section to exist. However, noting that "in order to have a
working section one must have a working face," the judge stated that the
"term is closely related to actual or at least imminent coal production
at the face, i.e., roof bolting, cutting, loading and/or transporting
coal out of the mine." 10 FMSHRC at 232.
In analyzing whether each of the cited areas had the capability
for imminent production, the judge utilized the test proffered by the
Secretary's witnesses John DeMichiei, MSHA District Manager, and MSHA
Inspector Lloyd Smith that the operator must at least have assembled the
equipment that it needs to produce coal. 4/ 10 FMSHRC at 231-32, 233,
237.
Regarding Docket No. PENN 87-94, the judge found that on
October 7, 1986, in the 1 Right Section, although much of the mining
equipment necessary to produce coal was present on the section, not all

11

30 C.F.R. § 75.2(g)(3), which restates section 318(g)(3) of the
Mine Act, 30 U.S.C. §§ 878(g)(3), defines "working section" as follows:
"Working section" means all areas of the coal mine
from the loading point of the section to and
including the working faces.
~/

At the time that he testified, DeMichiei was an MSHA Subdistrict
Manager. Subsequently, he was promoted to District Manager.

1448

of the necessary equipment was present or operable. Specifically, he
found that there was no bin or hopper at the end of the conveyor belt
enabling the shuttle car to unload coal onto the belt. He further found
that the load center that would provide power to the mining equipment
was inoperable. 10 FMSHRC at 228. In addition, he found that
permissibility checks had to be done on the equipment, ventilation had
to be adjusted, waterlines established, and rock dusting completed. Id.
He also noted that BethEnergy did not actually produce coal in the
section until December 1986, some two months after it was cited for the
violation. He concluded, therefore, that at the time of citation on
October 7, 1986, coal production in the section was not actual,
imminent, or even contemplated. 10 FMSHRC at 232. The judge concluded
that the 1 Right Section on that date had no working face or loading
point and, therefore, that the Secretary had failed to prove a violation
of section 75.1704. 10 FMSHRC at 232-33.
Regarding Docket No. PENN 87-200-R, the judge noted that while the
Secretary referred to the alleged violation as having occurred in the 53
Parallel Section, BethEnergy referred to the same area as the A-Left
Section. The judge held that the nomenclature of the area did not
matter, and that the important factors were whether a working face and a
load point were present in the area thus qualifying it as a working
section. 10 FMSHRC at 234. The judge found that the A-Left faces were
"working faces." He also found that there was a loading point that
would be used for removing coal from the A-Left faces during production.
10 FMSHRC at 235-36. He concluded, however, that because the miners
working in the area of the grading job were working outby this loading
point, and the definition of "working section" only encompasses areas
from the face to the loading point, they were not working in an area
that could be termed a "working section" and, therefore, escapeways were
not required. 10 FMSHRC at 235-36.
In Docket No. PENN 87-201-R, the judge reiterated that the term
working face "implies at least imminent capability of coal production
from that face," and noted the Secretary's concession that at the time
of the alleged violation BethEnergy did not have assembled the equipment
necessary to produce coal in the 3 Right Longwall Section. 10 FMSHRC at
237. The judge held, therefore, that the Secretary failed to prove a
violation of section 75.1704.
III.

On review, the Secretary argues that the judge erred in defining
the term "working section" by placing an unduly restrictive definition
upon the term "mining cycle." The Secretary contends that the judge's
conclusion that "mining cycle activity ..• is limited to 'roof bolting,
cutting, loading and/or transporting coal out of the mine,' ••. is
error." PDR 7. The Secretary also argues that the judge failed to
accord the Secretary's interpretation of section 75.1704 due deference.
In addition, the Secretary argues that the judge's holding in Docket No.
PENN 87-200-R, that no violation of section 75.1704 occurred because the
miners were working outby the working section, improperly focuses upon
the location of the miners rather than the existence of the working
section.

1449

BethEnergy responds that the judge properly interpreted the
meaning of "working section" in holding that an area of a mine does not
become a "working section" for the purpose of section 75.1704 until the
equipment necessary to produce coal is present in the area and
production is imminent. BethEnergy contests the Secretary's claim to
deference by pointing to conflicting testimony by the Secretary's
witnesses as to the appropriate definition of "mining cycle" and as to
when a working section comes into existence. BethEnergy also asserts
that substantial evidence supports the judge's finding in Docket No.
PENN 87-200-R that the area cited by the inspector at the grading job
was not a working section.

IV.
All underground mines have routes of ingress and egress that can
be used in emergencies whether or not the miners using them are located
in working sections. These routes must be shown on a map posted where
all miners can acquaint themselves with them. 30 C.F.R. § 75.1704-2(d).
In addition, practice drills must be conducted so that each miner is
familiar with the evacuation system. 30 C.F.R. § 75.1704(e). As
counsel for the Secretary acknowledged at oral argument, even though the
escapeways at issue here were unavailable for use by miners, other
routes were available. Oral Arg. Tr. at 17. However, the presence of
these various evacuation routes does not relieve an operator from the
duty to comply with section 75.1704, i.e., to provide two designated
escapeways from each working section of a mine.
Section 75.1704 provides in pertinent part that "at least two
separate and distinct travelable passageways
shall be provided from
each working section ..•• " The term "working section" first appears in
conjunction with a federal mining escapeways standard in section 6.g. of
the 1953 Federal Mine Safety Code for Bituminous Coal and Lignite Mines
of the United States, issued by the Bureau of Mines, United States
Department of the Interior. Earlier federal mining laws and regulations
used the terms "active sections" and "active face areas" to denominate
areas of the mine now generally encompassed within the definition of
"working section" set forth in section 75.2(g)(3). See, ~, Federal
Coal Mine Safety Act Amendments of 1952, Pub. L. No. 82-552, 66 Stat.
692 (1952).
"Working section" was accorded its present statutory definition in
the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801,
878(g)(3) (1976)("Coal Act"). The Senate Subcommittee report stated
that the Bureau of Mines provided the definition to Congress and advised
that the term was one "commonly understood in the coal mining industry."
S. Rep. No. 411, 91st Cong. 1st Sess. 86, reprinted in Senate
Subcommittee on Labor, Committee on Labor and Public Welfare, 91st Cong.
1st Sess., Part I Legislative History of the Federal Coal Mine Health
and Safety Act of 1969, at 212 (1975). The Coal Act's definition of
working section was also promulgated by the Secretary of the Interior as
part of the Coal Act's mandatory safety standards. 30 C.F.R.
§ 75.2(g)(3).
Subsequently, the definition was carried over into the
Mine Act, 30 U.S.C. § 878(g)(3), and remains part of the Secretary's
mandatory safety standards for underground coal mines. 30 C.F.R.

1450

§ 75.2(g)(3).

A search of the legislative histories of the various mine safety
statutes, mine safety regulations, and the Secretary's published
interpretations of the regulations reveals no further elucidation of
this "commonly understood" term prior to the inception of the
controversy now before us.
Notwithstanding the "common understanding" of the meaning of the
term and the fact that it has been a part of the federal mine escapeway
requirements for over 35 years, the judge in this proceeding was
presented with no less than four distinct constructions of "working
section," and three of these were propounded by MSHA personnel. MSHA
witnesses Smith and DeMichiei testified that a working section comes
into existence when the section contains a loading point and mining
equipment integral to the coal extraction process, and that actual coal
extraction is not required. Contradicting Smith and DeMichiei were the
Secretary's other witnesses, former MSHA District Manager Don Huntley
and Inspector Brown. Huntley testified that in his view section 75.1704
is applicable when the "first event" that facilitates extraction of coal
from an area takes place, however minor that event may be. According to
Huntley, the "first event" may not necessarily involve roof bolting,
cutting or loading, or the movement of equipment necessary for these
operations into the cited area; rather, it may include ancillary
activity outby the loading point, such as belt or track installation
that will ultimately facilitate the extraction of coal. Huntley stated
that his definition could be interpreted to include all areas of the
mine. Tr. III at 469. MSHA Inspector Brown asserted that the standard
applies once a potential working section is delineated; i.e., by
identifying a particular face and its attendant loading point as
discrete geographical locations regardless of whether equipment has been
moved into the area. On the other hand, BethEnergy's witness, Mine
Superintendent Thomas Mucho testified that a "working section" exists
for purposes of section 75.1704 only when actual coal extraction has
commenced in an area of a mine containing a working face and a loading
point. From BethEnergy's point of view, two escapeways need not be
established until the operator starts his equipment and commences
mining.
In view of the divergent "definitions" of "working section"
offered at the hearing by the Secretary's witnesses, we cannot conclude
that the further refined interpretation of this term urged by counsel
for the Secretary on review -- that "working section" be defined broadly
to encompass areas of the mine between the working face and loading
point where the work of preparing, maintaining, or disassembling the
section is occurring, regardless of whether coal is being produced or
the necessary equipment is present (Sec. Br. at 11, 21; Oral Arg. Tr.
at 6) -- is a longstanding or consistent departmental interpretation
justifying the deference that the Secretary claims is merited here.
See, ~' I.N.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987); American
Mining Congress v. EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987).
Indeed, we note that on January 27, 1988, after this matter had
been briefed to the judge, the Secretary published a proposed revision

1451

of the escapeways standard. 53 Fed. Reg. 2704-05 (1988). The revision
retains the existing requirement that at least two travelable
passageways in each mine be designated and maintained as escapeways from
each working section. In connection with this proposed revision, MSHA
has set forth, apparently for the first time, a written interpretation
of when the requirements of section 75.1704 become applicable. In a
Notice of Public Hearings on the proposed revisions the following
appears in Section D.: "As under the existing provisions, MSHA intends
that the proposal would apply not only to areas where coal is being
produced, but to all areas where miners are working underground." 53
Fed. Reg. 16873 (emphasis added). This interpretation of the purported
broad reach of the existing escapeway provision was, however, disavowed
by counsel for the Secretary at oral argument before us. Oral Arg. Tr.
at 10-12, 51. Furthermore, at a public hearing on the proposed standard
on June 6, 1988, the following MSHA position was stated:
MSHA wishes to clarify its position with respect to
the proposed requirement on escapeways which would
retain from the existing rules that two escapeways
be provided to each working section. MSHA believes
that the existing rule and the proposal would
require escapeways to be maintained during the
installation and removal of mining equipment as well
as during the actual production and extraction
phase.
MSHA intends to clarify the final rule to remove any
possible ambiguity with this proposed provision.
That is, any ambiguity that the escapeway would not
have to be maintained during the process of getting
the equipment ready for production.
Submission of counsel for Secretary to Commission, Document 3 (March 17,
1989) (emphasis added). These statements highlight, in our view, the
Secretary's failure to articulate a consistent departmental position
regarding the circumstances under which the requirements of section
75.1704 apply.
Given these varying interpretations offered by MSHA, an operator
could claim with some force that it had no notice of the standard of
conduct expected of it by MSHA under the regulation. Indeed, the
chronology of events in this proceeding starkly reflects the result of
MSHA's equivocal approach to enforcement. The first alleged violation
was cited in October 1986, and an evidentiary hearing on the violation
was held before the second and third citations were issued in July 1987.
District Manager DeMichiei testified at that first hearing regarding the
requirements of section 75.1704. When the subsequent violations were
being cited, BethEnergy officials argued to the inspector that in
determining whether the requirements of section 75.1704 were applicable
to the involved area of the mine, they had relied upon the criteria for
compliance as testified to by DeMichiei at the previous hearing.
Subsequently, at the hearing on the second and third cited violations,
the Secretary's witnesses either disavowed or distinguished DeMichiei's
criteria. In fact, MSHA witness Huntley testified that he could

1452

understand how BethEnergy officials, relying on DeMichiei's testimony,
could reasonably have concluded that escapeways were not necessary until
there was "adequate equipment on the section." Tr. III at 461. We
believe that the above progression vividly illustrates the difficulties
BethEnergy faced in attempting to comply with section 75.1704.
BethEnergy cannot lightly be presumed to be aware of what the standard
required when the Secretary's own witnesses were so uncertain and in
such wide disagreement as to the meaning of "working section." See Jim
Walter Resources, 9 FMSHRC 903, 908 (May 1987).
Given the absence of any consistent Secretarial interpretation of
the meaning of the standard meriting deference, the standard must be
interpreted in a reasonable manner, giving effect to its wording and
intended safety purpose. As the judge essentially found, all relevant
factors pertaining to the status of the cited area of a mine must be
considered. In general, the record suggests that the following broad
factors are chief among those bearing on whether an area of a mine is a
"working section": the hazards associated with the work being done in
the area (hazards); the geographical components of the area (location);
the physical components of the area and their functional readiness
(capability); and the development of the area with respect to actual
production (timeliness).
For example, the hazards associated with the work being done in
the area include the increased dangers associated with the ongoing
activities in a section. As acknowledged by counsel for the Secretary
at oral argument, the activities associated with reasonably inuninent
coal production introduce increased hazards to the particular area of
the mine where production takes place. Oral Arg. Tr. at 12. It is the
presence of the increased hazards to miners attendant to actual or
reasonably close coal production that form a pragmatic basis for the two
escapeways requirement of section 75.1704. It is then that methane is
more likely to be released in larger quantities during extraction of
coal at the face. Also at this time, there may be an increase in the
generation of suspended coal dust, an increase in the possibility of
sparking, and an increased possibility of exposure to unsupported roof.
The geographical components of a working section, as delineated in
section 75.2(g)(3), are the existence of an identifiable face from which
coal is or will be extracted, as well as a section loading point. The
physical components of an area and their functional readiness relate to
the presence of those mechanical mining components integral to the
method of extraction contemplated in the identified location. In this
regard, the presence of a functioning power center, a functional loading
point connected to the mine 1 s main haulage system, and necessary roof
support equipment (such as shields where longwall mining is involved)
are appropriate indicators of a section's capability. On the other
hand, the location of equipment that merely has to be tranuned into
position -- such as a continuous mining machine, roof bolter or shuttle
car -- is not necessarily dispositive of the "capability" of a section
to extract coal. Timeliness is linked to capability and refers to the
inuninence of production. We agree with the judge that while actual
production is not necessary, the term "working section" is inextricably
linked to the term "working face" and that term, we conclude, implies
coal production that is reasonably close in time. Once production is

1453

reasonably close, mechanical and electrical problems that temporarily
interrupt the otherwise established capability of a section to produce
coal do not relieve the operator from compliance with the mandates of
section 75.1704. Other relevant factors also include the status of the
mine's operations at the time of the alleged violation and any evidence
as to the operator's plan for establishing unobstructed escapeways prior
to the start of production activities. See Oral Arg. Tr. at 23-24.

v.
Weighing the facts presented in these proceedings in light of such
factors, we conclude that substantial evidence supports the judge's
finding in each instance that BethEnergy did not violate section
75.1704. We note generally that the mine, or in the case of the first
citation, the area of the mine where the alleged violation occurred, was
in a state of shutdown at the time of each citation and BethEnergy was
maintaining and readying the area for future coal production. Also,
there is no evidence that BethEnergy would have begun coal production
with the escapeways remaining in their obstructed state. Counsel for
the Secretary admitted as much in oral argument before us. Oral Arg.
Tr. at 24.
Specifically, the violation alleged in Docket No. PENN 87-94
concerned the 1 Right Section. In this section, there existed
identified faces from which coal was to be extracted, as well as a
loading point. However, the loading point was not functional because
the hopper or bin needed to permit unloading of coal from shuttle cars
had yet to be constructed and the power center was inoperable. Further,
as the judge noted, mining was not resumed until December 1986. Thus,
there is ample support in the record for a finding that at the time of
citation the section was not capable of coal extraction and that
production was not reasonably close in time. Moreover, setting up the
belt, conducting permissibility examinations, and moving equipment
operations underway when the inspector issued his order -- are not the
type of mining activities generally associated with the increased
hazards of the traditional mining cycle -- roof bolting, cutting,
loading and/or transporting coal out of the mine.
The violation alleged in Docket No. PENN 87-200-R covered an area
where miners were grading the entry and two miners were working nearby
on overcasts. The judge concluded that the miners were not physically
located in an area that could properly be denominated a "working
section" for purposes of section 75.1704. He determined that although
the A-Left Section had an identifiable face and a loading point, the
miners referred to by the inspector in the citation were outby the
physical limits of the A-Left Section.
We agree with the Secretary that the judge erred in focusing
solely on the location of the maintenance crew in determining whether
escapeways were required in the A-left section at the time of citation.
As discussed above, the proper focus must be on an assessment of all the
relevant factors bearing on whether an area of the mine is a working
section. Nevertheless, we conclude that substantial evidence supports
the finding that the A-left was not then a working section. In addition

1454

to the fact that the only work being performed in the area was
maintenance work during the mine shutdown, the A-left was not capable of
coal production because, as part of the maintenance work, the 53 belt
conveyor, necessary for removing coal from the section, was
disassembled. Tr. III at 485-86, 490. In fact coal was not produced in
the A-left until a week after the citation was issued. Id. at 508.
The violation alleged in Docket No. PENN 87-201-R occurred in the
3 Right Longwall Section. The inspector determined that six miners were
installing temporary roof supports (shields) and connecting hoses to
prepare the section for longwall mining. Tr. 345-46. It is undisputed
that only half of the shields were installed at the face, that the
headgate drive and shear were in BethEnergy 1 s shops, and that, although
the pan line was installed, the conveyor was not connected to any of the
mining equipment. Tr. 348-50, 379-81, 517-18. Indeed, the installation
of the longwall was not completed and production did not commence on the
section until approximately one week after the violation was cited.
Therefore, the section was not capable of coal production nor was
production reasonably close in time on the 3 Right Longwall section when
the violation was cited. Thus, the section was not, as of that date, a
working section requiring compliance with the requirements of section
75.1704.

1455

VI.

We thus conclude that the judge's findings that the requirements.·
of section 75.1704 were not applicable to the cited three areas of the
Complex are supported by substantial evidence. Accordingly, we affirm
the judge's decision.

J

oyle,

Lastowka,

~.
Distribution
R. Henry Moore, Esq.
Buchanan Ingersoll
USX Tower, 600 Grant Street
58th Floor ..
Pittsburgh, PA 15219
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
·
Arlington, Virginia 22203
Administrative Law Judge Roy Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1456

Commissioner

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

August 28, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. PENN 87-121-R
PENN 87-122-R
PENN 87-124-R
PENN 87-176
PENN 87-235

v.
TRACEY & PARTNERS,
RANDY ROTHERMEL, TRACEY PARTNERS

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION

BY:

Ford, Chairman; Doyle and Nelson, Commissioners

The issue presented in this proceeding ar1s1ng under the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (1982)("Mine
Act" or "Act"), is whether Tracey & Partners, Randy Rothermel, Tracey
Partners ("Tracey") violated section 103(a) of the Mine Act because of
its refusals to permit an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") to conduct spot inspections
pursuant to section 103(i) of the Act. 1/ MSHA issued Tracey two

lf

Section 103(a) of the Act states:
Purposes; advance notice; frequency; guidelines; right of
access
Authorized representatives of the Secretary •••
shall make frequent inspections and investigations
in coal or other mines each year for the purpose of
(1) obtaining, utilizing, and disseminating
information relating to health and safety
conditions, the causes of accidents, and the causes
of diseases and physical impairments originating in
such mines, (2) gathering information with respect
to mandatory health or safety standards, (3) deter-

1457

mining whether an imminent danger e~ists, and (4)
determining whether there is co~pliance with the
mandatory health or safety standards ot with any
citation, order, or decision issued und~r this
[Act] •••• In carrying out the requirements of
clauses (3) and (4) of this subsection, th~
Secretary shall make inspections of each underground
coal or other mine in its entirety at least four
times a year, and of each surface coal or other mine
in its entirety at least two times a year. The
Secretary shall develop guidelines for additional
inspections of mines based on criteria including,
but not limited to, the hazards found in mines
subject to this [Act], and his experience under this
[Act] and other health and safety laws. For the
purpose of making any inspection or investigation
under this [Act], the Secretary •.• with respect to
fulfilling his responsibilities under this [Act]
shall have a right of entry to, upon, or through any
coal or other mine.
30 U.S.C. § 813(a).
Section 103(i) of the Act states:
Spot inspections
Whenever the Secretary finds that a coal or other
mine liberates excessive quantities of methane or
other explosive gases during its operations, or that
a methane or other gas ignition or explosion has
occurred in such mine which resulted in death or
serious injury at any time during the previous five
years, or that there exists in such mine some other
especially hazardous condition, he shall provide a
minimum of one spot inspection by his authorized
representative of all or part of such mine during
every five working days at irregular intervals. For
purposes of this subsection, "liberation of
excessive quantities of methane or other explosive
gases" shall mean liberation of more than one
million cubic feet of methane or other explosive
gases during a 24-hour period. When the Secretary
finds that a coal or other mine liberates more than
five hundred thousand cubic feet of methane or other
explosive gases during a 24-hour period, he shall
provide a minimum of one spot inspection by his
authorized representative of all or part of such
mine every 10 working days at irregular intervals.
When the Secretary finds that a coal or other mine
liberates more than two hundred thousand cubic feet
of methane or other explosive gases during a 24-hour
period, he shall provide a minimum of one spot

1458

citations under section 104(a) of the Act and a failure to abate
withdrawal order under section 104(b) of the.Act, 30 U.S.C. §§ 814(a)(b), for Tracey's refusals to permit access to its mine. Commission
Administrative Law Judge George A. Kout~as concluded that MSHA's
attempts to conduct the spot inspections under s~ction 103(i) were
improper, vacated the contested citations and withdrawal order, and
dismissed the Secretary's proposals for assessment Qf civil penalties.
9 FMSHRC 2127 (December 1987)(ALJ). We granted the Secretary of Labor's
petition for discretionary review of the judge's decision. For the
reasons that follow, we affirm.
The essential facts were stipulated by the parties. The citations
and order were issued at the Tracey Slope Mine, an underground
anthracite coal mine located in Schuylkill County, Pennsylvania. The
mine employs three to five miners underground and produces approximately
4,000 tons annually. During the 24 months preceding the issuance of the
contested citations and orders, the mine was subjected to 142 inspection
days and cited for a total of 24 citations. Stipulations 16 and 17, 9
FMSHRC 2131. A methane explosion had occurred at the mine on
February 10, 1982, resulting in serious injuries to three miners. As a
result, MSHA placed the mine on a five-day spot inspection cycle under
section 103(i) of the Mine Act. Section 103(i) mandates, in part, that,
whenever the Secretary finds that a methane explosion that results in
death or serious injury has occurred in a mine at any time during the
previous five years, the Secretary shall provide a minimum of one spot
inspection during every five working days, at irregular intervals.
The record reflects that no methane ignitions or explosions that
resulted in serious or fatal injury had occurred at this mine since the
accident on February 10, 1982, nor had the mine liberated "excessive
quantities of methane" as that terminology is defined in section 103(i).
The mine did have a methane ignition in 1985 but there were no injuries.
On September 15, 1986, six months prior to the fifth anniversary
of the February 10, 1982 explosion, Tracey sent MSHA a detailed letter
setting forth its reasons as to why the mine should be removed from the
section 103(i) spot inspection cycle when the five years elapsed on
February 10, 1987. The letter was prompted in part by Tracey's
discovery that a neighboring mine had been removed from the section
103(i) cycle seven years after it had experienced a methane explosion
similar to the one that occurred at Tracey's mine in 1982. No written
response was forthcoming from the agency and one MSHA witness speculated
that Tracey's letter had been lost or mislaid. 9 FMSHRC 2141, 2143,
2146.
On the morning of February 12, 1987, two days after the fifth
anniversary of the 1982 methane explosion, MSHA Inspector Victor G.
Mickatavage arrived at the mine to conduct a section 103(i) spot

inspection by his authorized representative of all
or part of such mine every 15 working days at
irregular intervals.
30 u.s.c. § 813(i).

1459

inspection. Randy Rothermel, an owner and the managing partner of the
mine, denied Mickatavage entry to the mine to· conduct the section 103(i)
spot inspection but stated his willingness to permit any other type of
inspection. Mickatavage thereupon issued to Tracey a citation alleging
a violation of section 103(a) of the Act for denial of entry. After
allowing 45 minutes for abatement, Mickatavage requested entry to
conduct the section 103(i) spot inspection and again was denied entry.
Mickatavage then issued a section 104(b) withdrawal order for failure to
abate the citation, again alleging a violation of section 103(a) of the
Act. The withdrawal order did not prohibit entry into the mine.
On February 17, 1987, the inspector returned to the mine and
issued a modification to the February 12, 1987, citation and withdrawal
order that indicated the entire underground area of the mine was
affected. Tracey again denied entry to perform a section 103(i)
inspection, but the inspector took no new enforcement action. Two days
later, however, when Tracey denied Mickatavage entry to the mine to
conduct a section 103(i) spot inspection, the inspector issued a second
citation alleging Tracey's failure to comply with the section 104(b)
withdrawal order as modified and asserting a violation of section 103(a)
of the Mine Act. On March 23, 1987, a section 103(i) inspection on the
mine was finally permitted. Tracey filed notices of contest of the
citations and order, and the Secretary proposed civil penalties for the
alleged violations. These matters were consolidated and proceeded to
hearing before Judge Koutras.
At the hearing, Tracey contended that the requested section 103(i)
spot inspections were unlawful because none of the criteria set forth in
section 103(i) with respect to such inspections were satisfied at the
time of its denial of entry. Tracey maintained that section 103(i)
inspections are strictly limited by the terms of the statute. In
response, it was argued for the Secretary that, under section 103(a),
she possesses an absolute right of entry to perform inspections
authorized by the Mine Act, and that she has discretion based on the
particular conditions present in a mine to determine whether that mine
should remain subject to the section 103(i) spot inspections that were
originally triggered by a methane ignition resulting in death or serious
1nJury. The Secretary contended that MSHA acted within its statutory
authority in continuing the section 103(i) spot inspections beyond the
five-year anniversary of the triggering methane ignition, based on its
continued concern for methane gas in the mine as well as concern about
the mine's ventilation and roof control systems, escapeways, and
projected development toward impounded water.
Judge Koutras concluded that, although section 103(a) of the Act
gives MSHA a right of entry into the mine for inspection purposes, its
specific authority to conduct spot inspections every five days pursuant
to section 103(i) is subject to the following conditions delineated in
that section: (1) liberation of excessive quantities of methane or other
explosive gases during its operations, namely, more than one million
cubic feet of methane or other explosive gases during a 24-hour period;
(2) a methane or other gas ignition or explosion resulting in death or
serious injury at any time during the previous five years; and (3) the
existence in the mine of especially hazardous conditions. 9 FMSHRC

1460

at 2145.
Concerning the first and second statutory conditions giving rise
to the section 103(i) inspections, the judge noted that MSHA had
stipulated "that the mine had not liberated 'excessive quantities of
methane' as that term is defined by section 103(i)" and that MSHA had
also stipulated that no methane ignitions or explosions resulting in
serious injury had occurred in the mine since the accident of February
10, 1982. 9 FMSHRC at 2148, 2157. Regarding the third condition, the
judge considered MSHA's concern about the mine 1 s ventilation, roof
conditions, escapeways, and planned development, but found that MSHA had
failed to show that this concern warranted inspections every five days
under section 103(i). 9 FMSHRC at 2149-55, 2156-57. The judge also
found there was no credible evidence that MSHA had ever conducted a
detailed methane or ventilation survey at the mine to support its
generalized and speculative conclusions that methane liberation is, in
fact, a hazard at the mine. 9 FMSHRC at 2149, 2152, 2157. ~/
Based on these determinations, the judge concluded that MSHA had
failed to establish good cause for maintaining the mine on a five-day
section 103(i) inspection cycle and that, accordingly, Tracey's refusal
to allow entry into the mine for the purpose of conducting such section
103(i) inspections was justified and not in violation of section 103(a)
of the Mine Act. 9 FMSHRC at 2156-57. The judge vacated the citations
and order and dismissed MSHA 1 s proposals for assessment of civil
penalties. 9 FMSHRC at 2157.
On review, the Secretary argues that the judge erroneously failed
to conclude that MSHA had an unlimited right of entry to the Tracey
Slope Mine under section 103(a) of the Mine Act. The Secretary also
contends that the judge erred in failing to conclude that MSHA properly
exercised its discretion in seeking to conduct section 103(i) spot
inspections. The Secretary submits that under the second statutory
condition or trigger, the terminology as to five-years does not set a
ceiling on a section 103(i) inspection cycle triggered by a death or
serious injury-causing ignition but, in effect, provides only a minimum
floor. The Secretary also argues that further five-day spot inspections
were justified because of the existence of other hazardous conditions in
the mine. We disagree.
There is no question that section 103(a) of the Mine Act confers
upon MSHA a broad right of entry to mines for purposes of inspection and
investigation. Section 103(a) expressly grants authorized
representatives of the Secretary a right of entry to all mines for the
purpose of performing inspections under the Act. !:..&.:._, United States
Steel Corp., 6 FMSHRC 1423, 1430-31 (June 1984). However, the
~/

The judge noted that Tracey, in its September 15, 1986, letter
seeking removal from the section 103(i) inspection cycle, advised MSHA
that recent air samples gathered by MSHA inspectors indicated that the
maximum amount of methane liberated at the mine during a 24-hour period
was 87,000 cubic feet. This is somewhat less than 10 percent of the
amount necessary to invoke the first condition of section 103(i).

1461

Secretary's right of entry is not unlimited or absolute. The Supreme
·Court has acknowledged a mine owner's right to show, in an appropriate
adjudicative forum, that a specific Secretarial_"search" is "outside the
federal regulatory authority" or to seek accommodation of "any unusual
privacy interests." Donovan v. Dewey, 452 U.S. 594, 604-05 (1981). 'J./
Moreover, we concur with the judge that section 103(i) clearly
defines and limits the Secretary's authority to conduct five-day spot
inspections pursuant to the authority of that provision. The parties'
stipulations establish that the Secretary sought entry for the purpose
of carrying out section 103(i) five-day spot inspections. See 9 FMSHRC
at 2130-31; Stips. 10, 13, & 14. The Secretary makes no claim that her
efforts to conduct these challenged section 103(i) inspections were
justified under the first condition set forth in section 103(i)
(liberation of "excessive quantities of methane or other explosive
gases"). Like the judge, we discern no warrant on this record for the
inspections under either the second or third conditions of
section 103(i).
We first examine the Secretary's contention that she possessed
discretion under section 103(i) to maintain the Tracey mine on the fiveday spot inspection cycle. It is a cardinal principle of statutory
construction that, in the first instance, we must seek the meaning of
this statute in the language in which it is expressed. If the meaning
of that language is plain, the statute is to be enforced according to
its terms unless it can be established that Congress clearly intended
the words to have a different meaning. See, e.g., Caminetti v. United
States, 242 U.S. 470, 485 (1916); Chevron, U.S.A. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-43 (1984); Matala v.
Consolidation Coal Co., 647 F.2d 427, 429-30 (4th Cir. 1981). See also
Western Fuels-Utah, Inc., 11 FMSHRC 278 (March 1989), appeal do"Ck;ted':-No. 89-1258 (D.C. Cir. April 20, 1989).
In our opinion, section 103(i), as relevant here, displays a plain
and unambiguous meaning. Whenever the Secretary finds that a methane or
other gas ignition or explosion resulting in death or serious injury has
occurred at any time during the previous five years, she must provide a

11

When entry to a mine is denied, the Secretary may pursue an
injunction to gain entry pursuant to section 108 of the Act, 30 U.S.C.
§ 818 (Dewey, 452 U.S. at 604-05), and/or a civil penalty proceeding
before the Commission alleging a violation of section 103(a) of the Act.
Waukesha Lime & Stone Co., Inc., 3 FMSHRC 1702, 1703-04 (July 1981). In
each instance, the party denying entry is permitted to appear before a
neutral judicial forum to defend its action. Entry to the Secretary is
denied at one's legal peril. If the adjudicatory body determines that
there was no justification for the refusal of entry, injunctive relief
and/or civil penalties under the Act may be imposed. On the other hand,
i f inspection is determined to be "outside federal regulatory
authority," the denial of access will not be punished under the Act.
MSHA indicated at the hearing that a court injunction was not sought
becaus~ the violations in issue had been abated when Tracey finally
permitted access on March 23, 1987.

1462

minimum of one spot inspection by her authorized representative of all
or part of the mine during every five working days, at irregular
intervals. After the five-year period has expired without another
incident of a gas ignition or explosion: resulting in death or serious
injury, it is obvious that there is no longer such an event "during the
previous five years." By the express language of the statute,
therefore, the Secretary is neither required, nor granted "discretion,"
to continue a minimum of one spot inspection every five working days
where she cannot show that such an event has occurred during the
previous five years.
The Secretary asserts that her construction of the statute must be
accorded deference. While the Secretary must be accorded deference when
a statute is silent or ambiguous, effect must be given to the
"unambiguously expressed intent of Congress." Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., supra at 843. We believe that
Congress, when it drafted section 103(i), was quite specific in setting
forth the instances in which it intended the Secretary to deploy her
resources in conducting five, ten, and fifteen day inspections under
that section. We find no support whatsoever in the statute for the
Secretary's interpretation. We conclude that section 103(i) plainly
means that, in this instance, the five-day inspection cycle based on the
second condition terminates upon the fifth anniversary of the initial
ignition, if no further triggering event has occurred during that fiveyear period.
With respect to the Secretary's various arguments concerning
hazardous conditions in the Tracey Slope Mine, it is not entirely clear
whether she is suggesting that these conditions support her claim of
discretion to continue spot inspections pursuant to the second condition
of section 103(i) or whether she is attempting to raise a separate
justification for her enforcement actions. We have already demonstrated
that, under the circumstances presented here, an exercise of discretion
based on the second condition cannot be reconciled with the plain text
of section 103(i). A right of inspection based upon the third condition
of section 103(i) was explicitly waived by the Secretary at the hearing
when her counsel indicated that while "other hazardous conditions" could
be a basis for continued section 103(i) five-day inspections, 'the
foundation for the requested inspections was the second statutory
trigger. Tr. 95, 131, 133-35, 138, 139, 155, 182. The Secretary's
counsel also indicated that there was a procedure used by MSHA for
putting a mine on an inspection cycle based on the third statutory
trigger, which course had not been followed. Tr. 133-35. ~/
~/

As noted above, a combination of section 103(i) spot inspections
and the regular quarterly· inspections mandated by the Act resulted in
142 inspection days expended at the Tracey mine during the 24 months
preceding the instant dispute. Given the evidence of record that the
mine operated an average of four days per week, that translates to more
than one inspection every three days. Yet with such heightened
inspection activity only 24 citations were issued during that 24-month
period, or .17 citations per inspection day. While we are not bound by
the Secretary's civil penalty criteria set forth in 30 C.F.R. Part 100,

.1463

We turn to the Secretary's alternative argument that further spot
inspections under section 103(i) were author~zed under the general
inspection powers conferred upon her by ~ection 103(a). We agree with
the general proposition that all physical inspections of mines under
section 103 are conducted pursuant to the basic authority of section
103(a). We further agree that the Secretary has considerable authority
to conduct inspections under section 103(a) of the Act. Section 103(a)
also grants the Secretary authority to conduct general "spot"
inspections, as distinguished from the more specifically described
"spot" inspections under section 103(i). See United Mine Workers v.
FMSHRC, 671 F.2d 615, 623-24 (D.C. Cir. 1982); Consol. Coal Co. v.
FMSHRC, 740 F.2d 271, 273 (3rd Cir. 1984); Monterey Coal v. FMSHRC, 743
F.2d 589, 593 (7th Cir. 1984). (Tracey concedes that "spot" inspections
under section 103(a) are authorized. Tr. 151-52.)
All this being stated, however, Tracey has been cited for
violating section 103(a) because it did not accede to an MSHA
inspector's section 103(i) inspection requests. Although a valid
section 103(i) inspection is, to an extent, also an inspection made
pursuant to section 103(a) of the Mine Act, we believe that a section
103(i) "spot" inspection must be valid in the first instance under
section 103(i) itself. The Secretary is granted the right of entry into
a mine only as authorized by the Mine Act. 21 The Secretary's proffered
basis for obtaining entry into Tracey's mine was section 103(i) of the
Mine Act and, as discussed, the conditions under which an inspection can
be made pursuant to that section were unavailable to the Secretary at
the time she attempted her inspection.
We emphasize that denial of access to an MSHA inspector, even in
the limited context presented here, is an action not to be taken
lightly. As noted in n. 3, the potential consequences of such a
unilateral step can be severe. What the record makes abundantly clear,
however, is that in this case we have an insistence by the inspector on
an inspection of the mine pursuant only to section 103(i). Tracey
offered access to the mine under the general authority of the Secretary
pursuant to section 103(a). The inspector chose instead to cite Tracey
for its refusal to submit to an inspection pursuant to section 103(i), a
refusal that was based on its sincere belief that the Secretary's
we note that section 100.3(c) of those criteria provides that penalties
are not increased on the basis of past compliance history unless that
history indicates more than .3 violations per inspection day. Thus, by
the Secretary's own criteria and in light of a rather pervasive
inspection presence at Tracey's mine, we find no objective basis for the
Secretary's attempt to extend the five-day cycle.

21

For example, in Sewell Coal Co., 1 FMSHRC 864 (July 1979)(ALJ),
cited in Peabody Coal Company, 6 FMSHRC 183, 186 n.5 (February 1984),
the operator's denial of MSHA access to certain business records not
required to be maintained by the Mine Act was upheld. Although that
case, unlike this one, involved expectation of privacy issues, the right
of entry found in section 103(a) was nevertheless circumscribed to the
inspection of records required to be maintained and accessible under the
Act.

1464

authority to co.nduct a section 103(i) inspection had expired. fl/ It is
significant to note that the inspector coulq have performed the
identical tests under the access proferred pursuant to section 103(a)
that he had previously performed under section l03(i). The inspector is
not precluded from making spot inspections of the mine at least every
five days under the auspices of section 103(a). Therefore, we see no
overriding safety issue involved in these proceedings.
Thus, because the Secretary's attempts to conduct section 103(i)
inspections under the circumstances presented by this case were "outside
the federal regulatory authority," Tracey's denial of access did not
violate section 103(a) of the Act. See Donovan v. Dewey, 452 U.S. at
604-05. Tracey indicated its willingness to permit any other type of
inspection. The Secretary could have exercised her discretion to
conduct spot inspections authorized under section 103(a) for purposes of
"determining whether an imminent danger exists" or "determining whether
there is compliance with the mandatory health or safety standards or
with any citation, order, or decision issued under [the Mine Act]."
Accordingly, and for the foregoing reasons, we affirm the judge's
decision.

fl/
We emphasize that Tracey's limited refusal of access to the
inspector under section 103(i) was in large part the result of MSHA's
persistent failure to respond officially to the operator's letter
requesting that the mine be taken off the section 103(i) cycle and
stating its reasons in support thereof. We agree with the judge that
MSHA had "the responsibility and obligation to respond in writing to an
operator's request of this kind." 9 FMSHRC 2146. Furthermore, after
several informal discussions with inspectors regarding the applicability
of section 103(i) to Tracey's circumstances, Rothermel testified that
the inspectors told him that "if you think that's the law, you have to
fight it. So that's what we're doing here today." Id. at 2141.

1465

Commissioners Backley and Lastowka, dissenti-ng:
In its decision, the majority approves a mine operator's denial of
entry to an MSHA inspector at a mine to conduct an inspection to
determine whether the operator was complying with mandatory safety and
health standards. The inspection sought to be performed by the
inspector was one authorized by section 103(a) of the Mine Act and the
inspector therefore possessed a clear right of entry into the mine to
conduct the inspection. 30 U.S.C. § 813(a). Thus, there is no basis in
law or fact for the majority's decision upholding the administrative law
judge's approval of the operator's denial of access. Accordingly, we
dissent.
Section 103(a) of the Mine Act sets forth the Secretary's
authority to make frequent inspections and investigations in our
Nation's mines. In relevant part, section 103(a) authorizes "frequent
inspections" for the purpose of ••• " (3) determining whether an imminent
danger exists, and (4) determining whether there is compliance with the
mandatory health or safety standards or with any citation, order, or
decision issued under this title or other requirements of this Act."
Id. Section 103(a) further provides that "[f]or the purpose of making
any inspection or investigation under this Act, the Secretary ••• or any
authorized representative of the Secretary ••• shall have a right of
entry to, upon, or through any coal or other mine." Id. (emphasis
added).
The Supreme Court has concluded that "the general program of
warrantless inspections authorized by § 103(a) of the [Mine] Act does
not violate the Fourth Amendment." Donovan v. Dewey, 452 U.S. 594, 605
(1981). In upholding the Secretary's right of entry, the Court
emphasized the "substantial federal interest in improving the health and
safety conditions in the Nation's .•• mines", and that "the regulation
of mines .•. is sufficiently pervasive and defined that the owner of
such a facility cannot help but be aware that he 'will be subject to
effective inspection'." 452 U.S. at 602, 603 (citation omitted).
Consistent with Dewey, the Commission has held that a mine operator's
failure to permit inspections authorized by the Mine Act violates
section 103(a) of the Act. Waukesha Lime & Stone Co. Inc., 3 FMSHRC
1702, 1703-04 (July 1981); United States Steel, 6 FMSHRC 1423, 1430-31
(June 1984); Calvin Black Enterprises, 7 FMSHRC 1151, 1156 (August
1985).
Supplementing the broad grant of inspection authority provided in
section 103(a), the Mine Act specifies certain types of more specialized
mine inspections. For example, section 103(i) requires the Secretary to
conduct inspections with increased frequency if she finds that certain
hazardous conditions, including the presence of excessive levels of
explosive gases, have been found to exist at a mine. 30 U.S.C.
§ 813(i). As relevant here, section 103(i) requires the Secretary to
inspect at least once every five working days any mine in which a gas
ignition or explosion has occurred during the previous five years that
resulted in death or serious injury. Id.

1466

This provision requiring more frequent specialized inspections had
its genesis in the Federal Coal Mine Health·and Safety Act of 1969, 30
U.S.C. § 801, 813(i)(1976)(amended 1977)("Coal ,Act"). The legislative
history of the Coal Act reveals that the bill that passed the Senate
required the Secretary to station an inspector at underground coal mines
that liberated excessive levels of explosive gases on a daily basis.
Senate Subcommittee on Labor, Committee on Labor and Public Welfare,
94st Cong. 1st Sess., Part I Legislative History of the Federal Coal
Mine Health and Safety Act of 1969, at 1511 (1975). Comparatively, the
House bill required 26 spot inspections per year at such mines, and at
other especially hazardous mines including mines that had experienced a
gas ignition during any five year period. Id. The Conference Committee
adopted the House bill with certain amendments including a minimum
inspection frequency of once every five working days at such especially
hazardous mines. Id. The House bill, as amended, was adopted because
the Senate requirement to inspect excessively gassy mines on a daily
basis would have depleted the Secretary's finite resources. Id. at
1347-48. Thus, the legislative history makes clear that subsection (i)
of section 103 was adopted to insure that the Secretary would pay
particular attention to those mines that Congress determined to be
especially hazardous and deserving of increased regulation.
Nevertheless, all inspections of mines conducted by the Secretary
for the purpose of determining whether there is compliance with
mandatory safety or health standards or whether an imminent danger
exists, including those inspections made pursuant to section 103(i), are
made pursuant to the basic grant of inspection authority in section
103(a). Section 103(i) does not contain a grant of independent
inspection authority; for example, only subsection (a) authorizes the
Secretary to make warrantless searches of mines. Donovan v. Dewey,
supra. The United States Courts of Appeals for the District of
Columbia, Third, and Seventh Circuits have each specifically held that
under the Mine Act all inspections, including section 103(i)
inspections, are conducted pursuant to section 103(a). In United Mine
Workers v. FMSHRC, 671 F.2d 615 (D.C. Cir.), cert. denied, 459 U.S. 927
(1982), the D.C. Circuit stated that "althoug~spot gas inspection may
be required to be conducted with a certain frequency by subsection (i),
it is nevertheless conducted 1pursuant to the provisions of subsection
(a)' because its purpose is to determine whether an imminent danger
exists and whether there is compliance with mandatory health and safety
standards." 671 F.2d at 624 n.27.
The Seventh Circuit has agreed with the D.C. Circuit's analysis of
the relationship between section 103(a) and (i):
The only statutory authority for the Secretary to
inspect mines without a warrant or prior notice is
section 103(a). That fact suggests that any
inspection - such as the spot inspectipn in this
case - lawfully conducted without prior notice or a
warrant is an inspection conducted pursuant to the
provisions of subsection (a). Even the types of
inspections having more specific authority, e.g.,
section 103(g)(l) and (i), are conducted without

1467

warrants and notice and are thus conducted pursuant
to the provisions of subsection (a~.
Monterey Coal Co. v. FMSHRC, 743 F.2d 5~9, 593 n.8 (7th Cir. 1984).
Accord, Consolidation Coal Co v. FMSHRC, 740 F.2d 271, 273 (3rd Cir.
1984)("We find ourselves in agreement with the District of Columbia
Court -- that spot inspections of the type challenged here are
authorized by and made 'pursuant to subsection 103(a).'" (citation
omitted)).
It is therefore evident that the phrase "103(i) spot inspection"
is simply a convenient label to describe inspections made pursuant to
section 103(a) at the increased frequency set forth in subsection (i).
Such inspections, however, are still inspections authorized by and made
pursuant to section 103(a). l/
We agree with the Secretary that section 103(i) "represents a
mandate to, rather than a restriction on, the Secretary in the exercise
of her enforcement function." Sec. Br. 10. The language of subsection
(i) and its legislative history make clear that the sole purpose of this
provision is to require the Secretary to conduct inspections with
increased frequency in certain circumstances that Congress determined
required increased vigilance. In enacting subsection (i), Congress did
not seek to in any manner reduce the Secretary's pervasive inspection
authority.
In light of the Supreme Court's upholding in Donovan v. Dewey,
supra, of an MSHA inspector's right of entry into a mine to conduct an
inspection, the majority errs in concluding that a mine operator can
deny an MSHA inspector access based on its belief that its mine no
longer meets the criteria of section 103(i). In this case, the owner of
the mine stated his willingness to permit any type of inspection other
than a section 103(i) inspection and the majority endorses his ability
to so control the terms of the inspector's entry. In doing so, the
majority fails to recognize that section 103(i) inspections are made
pursuant to section 103(a) and that section 103(i) does not limit the
Secretary's right to conduct inspections. Contrary to the majority's
assertions, the inspection that the inspector attempted to conduct in
this case was not "outside the federal regulatory authority." (Slip op.
at 9). Rather, the inspection was to be conducted for a basic and
eminently lawful purpose, that is, to determine whether the operator was
complying with the Secretary's mandatory safety and health regulations.

1/
Analogously, citations issued under section 104(a), which include
;ignificant and substantial and unwarrantable failure findings, are
frequently referred to as "104(d)(l) citations." Yet, as the Commission
has unanimously held, "the commonly used phrase 'section 104(d)(l)
citation' is merely a term of convenience and does not indicate a
separate basis for issuance of citations independent from section
104(a)." Utah Power and Light, 11 FMSHRC 953, 956 (June 1989).

1468

Our colleagues elevate form over substance in concluding that
because the inspector indicated that section 103(i) was the authority
for his presence, entry to the mine could be denied if, in fact, the
Secretary was no longer required as a matter of law to inspect the mine
every five working days under subsection (i). As discussed above,
however, all inspections are conducted pursuant to the basic grant of
authority in section 103(a). Furthermore, the inspector did not charge
the operator with violations of section 103(i). Rather, the citations
and withdrawal orders issued in this case charge that the operator
violated section 103(a) by denying the inspector entry into the mine.
For example, citation No. 2840770 states in part, that "on 02-12-87,
Randy Rothermel, partner and mine foreman, refused to allow Victor G.
Mickatavage, an authorized representative of the Secretary, entry into
the Tracey Slope mine for the purposes of conducting an inspection of
the mine pursuant to section 103(a) of the Act." Joint Exh. 1.
(Emphasis added).
Thus, it is clear that the essential basis for the Secretary's
assertion of authority to inspect the mine was section 103(a). The
majority's endorsement of the operator's right to deny entry to the
inspector unless the inspector would state that he was conducting a
section 103(a) inspection, rather than a section 103(i) inspection,
reduces the Secretary's role from enforcer of the Mine Act to
participant in an operator-controlled game of "Simon Says"; the
inspector is powerless to enter the mine until he says "May I" in a
manner satisfactory to the operator. Section 103(a)'s broad grant of
inspection authority cannot be so constrained.

1469

In sum, we conclude that the inspection of the Tracey Slope Mine
was done for a lawful purpose -- to determine whether the mine operator
was complying with the Secretary's safety and health standards. Thus,
the inspection was not "outside.the federal regulatory authority," but
was squarely within it. We would therefore hold that the denial of
entry was unlawful. We would reverse the administrative law judge's
decision, affirm the citations and order and remand for assessment of
civil penalties.

Distribution
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James P. Diehl, Esq.
Williamson, Friedberg & Jones
One Norwegian Plaza
Pottsville, PA 17901
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
One Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

1470

ADMINISTRATIVE LAW JUDGE DECISIONS

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

AUG

11989

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

.:
.:
:

CIVIL PENALTY PROCEEDING

v.

:
:

Yaple Creek Pit

YAPLE CREEK SAND & GRAVEL,
Respondent

Docket No. CENT 88-93-M
A.C. No. 29-00425-05501

.
DECISION

Appearances:

Janice L. Holm, Esq., Jack F. OStrander, Esq.
Office of the Solicitor, U.S. Department of
Labor, Dallas, Texas,
,.-for Petitioneri
Jay Rubin, Esq., Stout & Rubin, Truth or
Consequences, New Mexico,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the· Mine Safety and
Health Administration CMSHA), charges respondent with violating
eight safety regulations promulgated under the Federal Mine
Safety and Health Act, 30 u.s.c. § 801 et seq., Cthe Act).
After notice to the parties a hearing on the merits was
held in El Paso, Texas on July 18, 1989.
The parties waived their right to file post-trial briefs,
and waived receipt of the transcript. Respondent submitted its
case on oral argument. The parties further requested an expedited decision.
Stipulation
At the commencement of the hearing the parties stipulated
that the Commission had jurisdiction to determine the issues
herein. Further, it was stipulated that respondent is a sand
and gravel operator and is subject to the Act1 however, since
this operator has only one employee engaged in the actual mining
and processing of the sand and gravel, it is asserted that in
this unique circumstance the MSHA lacks jurisdiction.

1471

Issues
The issues raised are whether a one-man operation is subject
to the Act. Further, should the issues of estoppel and vagueness
cause a dismissal of the complaint herein. Additional issues
concern whether respondent violated the regulations and, if a
violation occurred, what penalty is appropriate.
Threshold Issues
The initial threshold issue is whether a one-man operation
is subject to the Mine Safety Act.
The evidence on this issue is uncontroverted. Mr. Robert
Huffman is the owner of Yaple Creek Sand & Gravel. He is the
sole individual involved in processing the sand and gravel.
Mrs. Pat Huffman handles the book work for the company but she
does not engage in the actual mining process.
On the foregoing facts I conclude that although the
respondent has no employees engaged in the removal of the sand
and gravel other than Mr. Huffman, the company is nevertheless
subject to the Act.
In Marshall v. Sink, 614 F.2d 37, 1980, the United States
Court of Appeals for the 6th Circuit noted that the respondent
therein was subject to federal regulations even though he owned
and operated a small mine without employees, 614 F.2d at 38.
The foregoing case law, which is now generally established,
rests on the broad Congressional definition of a mine. The
definition as enacted by the Congress provides:
(h)(i)

"Coal or other mine" means (a) an
area of land from which minerals in
a non-liquid form ••• are extracted.
30 u.s.c. § 802(3).

Further, there is no indication in the Congressional history
that Congress intended to exclude a one-man operation from complying with safety and health regulations. To like effect see
C.D. Livingston, 7 FMSHRC 1485 (1985).
On the basis of the existing case law I conclude that a
one-man operation is indeed subject to the Act.

1472

Respondent also raises the defense that other MSHA inspectors had indicated to the operator that his operation was
in compliance with the law. Since no previous citations have
been issued, the citations issued here in the instant case
should be vacated on the doctrine of estoppel.
The argument is rejected for several reasons. The
Commission has ruled that estoppel does not apply against the
federal government, King Knob Coal Company, Inc., 3 FMSHRC 1417,
1421. Further, it is clear that lack of previous enforcement
does not support a claim of estoppel. See J & R Coal Company,
3 FMSHRC 591 (1981); Burgess Mining and Construction Corporation 3 FMSHRC 296 (1981); Price River Coal Company, 5 FMSHRC
1734 (1983). The defense of estoppel should not prevent the
Secretary from enforcing the Act. This is because inspectors
have different areas of expertise. One inspector might not
consider a factual circumstance to constitute a violation.
However, another inspector might clearly conclude a violation
exists. For these reasons the doctrine of estoppel in safety
and health matters cannot be invoked against the Secretary.
Respondent also raises the issue that the regulations
involved in this case are unconstitutionally vague and fail
to give a one-man operator fair notice of what is required of
him to comply with the regulation. I reject respondent's views.
Regulations such as are involved in the instant case are not
considered in a vacuum. Generally such safety regulations are
examined and must be looked at in light of the conduct to which
they are applied. Ray Evers Welding Company v. OSHRC, 625 F.2d
726, 732, 6th Cir. (1980). General terms such as "unsafe or
dangerous" frequently appear in federal safety and health regulations. This approach has been recognized as necessary where
narrower terms would be too restrictive. Specifically, standards
of this type must often be made simple and brief in order to be
broadly adaptable to myriad circumstances, Kerr-McGee Corporation, 3 FMSHRC 496 (1981); Alabama By-Products Corporation,
4 FMSHRC 2128 (1982); Evansville Material, Inc., 3 FMSHRC 704
(1981). Specifically, I do not find that the regulations herein
are unconstitutionally void.
Summary of the Case
William Tanner, Jr., an MSHA inspector experienced in
mining, testified for the Secretary. Inspector Tanner inspected
respondent and issued citations on February 18, 1988. On subsequent f ollowup inspections the alleged violations had not been
abated. Mr. Huffman, owner of the company, requested that the
inspector issue orders so the issues could be contested. In
fact, orders were issued under section 104(b) of the Act.

1473

Robert Huffman (owner) and his wife, Mrs. Huffman,
testified for the company. It is apparent in the case that
the inspector and Mr. Huffman had difficulty communicating
during the inspections. Respondent introduced photographs of
some of the areas cited by the inspector. The judge considers
these photographs to be pivotal to a disposition of the issues.
Citation Nos. 2867903, 2867904, 2867905, 2867906, and
2867908 charge respondent with violating 30 C.F.R. § 56.14001,
which provides as follows:
Gears1 sprockets1 chains1 drive,
head, tail, and takeup pulleys1
flywheels1 couplings1 shafts; sawblades1 fan inlets1 and similar
moving machine parts which may be
contacted by persons, and which may
cause injury to persons, shall be
guarded.
Citation No. 2867903
The Secretary's evidence by its inspector indicates that
the chain drive assembly on the hopper feeder conveyor belt was
not guarded. The drive assembly was 2 or 3 feet off the ground.
The inspector considered this hazard to be open and obvious;
other inspectors had said that it needed to be guarded. The
inspector indicated that the operator would have to get under
the hopper in order to contact the chain drive. Injury in this
circumstance could result in loss of fingers. The inspector
believed the negligence of the operator was moderate. Particularly, the operator had been previously told about this
guarding requirement. The operator had further indicated that
the machinery had been running on weekends and that he had
recently been running it.
Respondent's case consisted of three photographs (Exhibit
R-4). These photographs indicated a gate was available to keep
people away from the chain drive.
In rebuttal the inspector reviewed Exhibit R-4 and concluded
that the gate failed to provide a guard such as the type required
by MSHA.

1474

Discussion
In connection with this citation I credit the Secretary's
evidence.
It is true that Exhibit R-4Ca) and R-4Cc) show the
presence of the gate but it is apparent, particularly from
Exhibit R-4(a) that the unguarded chain drive assembly was at
least 4 to 5 feet from the gate.
I further conclude that the
condition was open and obvious and therefore the operator was
negligent. However, the gravity is low since the the unguarded
assembly is quite low to the ground. This citation should be
affirmed.
Citation No. 2867904
The Secretary's evidence in this case shows that the flat
belt drive assembly on the crusher was not adequately guarded
and the hand control was located between the wheel and the frame.
Inspector Tanner testified that respondent attempted to
guard this assembly. The hazards involve a miner becoming entangled in the equipment or being injured if the· belt should
break. He considered that the level of exposure was reasonably
likely and he believed the operator was moderately negligent in
that he knew of this violation.
Respondent's evidence indicated that the clutch handle had
been moved and he offered a series of photographs (Exhibit R-5).
In rebuttal the inspector reviewed the photographs and he
indicated that they showed an attempt to guard the tail pulley.
He further clearly identified an unguarded and exposed pinch
point, marking it with an "x" on Exhibit R-S(b).
Inspector
Tanner further indicated that Exhibit R-5 shows an unguarded
condition. Exhibit SCd) shows the head and tail pulley where
a person could walk to the area and reach the unguarded portions
by hand. Exhibit SCd), according to the inspector, shows the
flat belt guarded in front.
Discussion
The photographic evidence shows the flat belt drive assembly
was not adequately guarded; further, the hand control was located
between the wheel and the frame. Exhibit R-5Ca) shows the hand
control. I conclude that the photographs support the testimony
of Inspector Tanner and a violation of the guarding standard has
been established. Citation No. 2867904 should be affirmed.

1475

Citation No. 2867905
The Secretary's evidence indicates that the head and tail
pulleys on the conveyor belt system were not guarded.
The inspector wanted these pulleys guarded because a person
could contact them. The hazards would involve persons coming
entangled with such pinch points. Hand and arm injuries were
possible and the inspector considered it reasonably likely that
an injury would occur. He further believed the negligence of
the operator to be moderate. He had designated this as an S&S
violation. The inspector estimated that the head and tail pulley
was 5 to 6 feet off the ground.
Respondent offered photographs of the head pulley and tail
pulley. Exhibit R-6(a) seems to indicate that both the head
and tail pulley are over 6 feet off the ground. Exhibit R-6Cb)
shows the unguarded pulley to be 8 feet off the ground and
Exhibit R-6Cc> shows the head pulley to be 15 feet off the
ground.
In rebuttal the inspector reviewed the photographs and
indicated that a person could reach the pinch points by standing on the opposite side of the head and tail pulley shown in
Exhibit R-6(a). He further marked an arrow to the pinch points
in the photographs.
In addition, he indicated that Exhibit R-6Cb> shows the
head pulley. An arrow was marked to the pinch point. Such a
pinch point could be readily reached without using a ladder or
by walking up the muck piles. Most operators leave muck piles
there so they can get to the pinch point to perform maintenance.
In the inspector's view Exhibit R-6Cd) possibly shows the head
pulley 8 feet high and the inspector agrees that it may be that
the head pulley was not covered by the particular citation.
Exhibit R-6Cd) shows where the inspector asked the operator
to guard the equipment. In his view the head pulley was not
guarded.
Discussion
The testimony and the photographic exhibits cause me to
conclude that the head and tail pulleys were at least in excess
of 6 feet off the ground and, in fact, as high as 15 feet off
of the ground. For these reasons I conclude that the unguarded
equipment and these moving machine parts are not likely to be
contacted by any person nor injure any such person within the
meaning of the regulation. For these reasons no violation of
the guarding standard occurred and Citation No. 2867905 should
be vacated.

1476

Citation No. 2867906
In connection with this citation, the Secretary's evidence
showed that the V-belt drive assembly on the jaw crusher was not
guarded on the inside and outside. Inspector Tanner considered
this the worst of the guarding violations he saw. This was particularly hazardous because at this unguarded point Mr. Huffman
poured oil into the machinery. It was 4 to 6 inches from the oil
cups to the gears. There was oil dripping on the side. The
inspector told Mr. Huffman that this condition must be fixed
before he operated the equipment. If a person became caught in
the unguarded assembly a fatality could result. The inspector
considered this an S&S violation and, further, he believed the
operator was negligent because the operator knew of the problem.
The operator offered to write a letter stating if anything
happened the inspector would not be responsible.
Respondent's evidence indicated that one guard had been
added on the V-belt side since the citation was written. He
further offered photographs of the condition (Exhibit R-7).
Exhibits R-7Ca), Cb> and Cc> depict the V-belt drive
assembly and show the conditions as they existed in February 1988.
The additional guard had in fact been added at the suggestion of
respondent's attorney.
In rebuttal, Inspector Tanner reviewed the photographs.
Exhibit R-7(a) shows the place where Mr. Huffman checks the
bearings and also shows the piece of steel where he stands.
Mr. Huffman had added a guard between the cups and the flywheel
but in the inspector's opinion the right hand side was still
unguarded.
Exhibit R-7Cb) shows the outside of the V-belt assembly and
shows it to be unguarded. A person would have to reach out to
"get it". When the inspector was there these were unguarded.
Inspector Tanner marked an arrow to the unguarded area and
indicated a person could reach the motor drive by hand.
Exhibit R-7 shows an area where Mr. Huffman oils the equipment which was unguarded at the time of the inspection. He asked
for a guard on the side and indicated that there is a guard on
the left hand side.

1477

Respondent agrees that one guard on the V-belt side was
added since the citation was written. The photographs,
particularly R-7Cb) and R-7(a), show the unguarded assembly.
Discussion
This citation should be affirmed.
Inspector Tanner's testimony.

The photographs support

Citation No. 2867907
Citation No. 2867907 charges respondent with violating
30 C.F.R. § 56.11012, which provides as follows:
Openings above, below, or near
travelways through which persons
or materials may fall shall be
protected by railings, barriers,
or covers. Where it is impractical
to install such protective devices,
adequate warning signals shall be
installed.
The Secretary's evidence shows that the screw on the sand
washer was not protected to prevent persons from falling into
it. The evidence further indicated to Inspector Tanner that the
sand washer was 2 to 5 feet high and it was necessary to have a
cover over the lower half. The equipment was supposed to have
a travelway and nearby footprints indicated that someone had been
in the area.
In the inspector's view this was a large size screw1 the
hazard could involve possible loss of leg or hand or an arm.
He further considered that it was likely that such an accident
could occur. In addition, he considered this to be an S&S
violation.
The inspector believed the operator was moderately negligent
because the company knew the hazard was there and had been so
advised by previous inspectors. The screw conveyor itself was
between 6 to 8 feet to a.low of 2 feet. The inspector asked that
the lower part be covered.
Respondent's evidence consisted of photographs, Exhibit R-8.
Respondent indicated that both screens had been taken off
the shaker but the Mr. Huffman felt safe with the condition.

1478

In rebuttal Inspector Tanner reviewed the photograph and
noted that the cover was not in place on the occasion of his
first and second inspections. The inspector required that it be
put in place.
Discussion
Mr. Huffman agrees that both screens had been taken off the
shaker. Exhibit R-8 was taken after the citation was written. I
accordingly credit the inspector's testimony that the violative
condition existed at the time of the inspection.
It accordingly follows the citation should be affirmed.
Citation No. 2867908
This citation charges a violation of the guarding standard,
30 C.F.R. § 56.14001.
Inspector Tanner testified the screw drive assembly for the
sand screw washer was unguarded. It was unlikely that a person
would get into the screw drive assembly but if it occurred he
would suffer the possible loss of a hand, fingers, arms, or in
any event, lost days.
He believed the operator was moderately negligent since he
knew of the violative condition. The assembly was between 2 feet
on the wall to a high of 6 to 8 feet off the ground. The bottom
of the assembly was filled with sand.
Mr. Huffman indicated that the assembly was at least 8 feet
off the ground. In support of his position he offered Exhibit
R-9. The photograph shows the end of the screw sand washer which
is 8 feet above ground. This is the condition that was depicted
in February 1988. The operator believed the condition was safe
because it was necessary for him to use a ladder in order to
reach it to service it. He usually services the areas that are
to be maintained before he to runs his equipment.
In rebuttal Inspector Tanner drew an arrow to the area he
believed should have been guarded. Due to the build up of a
muck pile underneath, a person could reach it. It was in this
same condition in February 1988. He wrote this as a non-S&S
violation.

14 79

Discussion
I credit Mr. Huffman's version of this condition. The
existence of a muck pile is not shown in the photograph nor
does the equipment indicate that there would be a build up of
such a pile in this particular area. It accordingly follows
that workers could not contact or be injured by the exposed
parts.
This citation should be vacated.
Citation No. 2867909
Citation No. 2867909 charges respondent with violating
30 C.F.R. § 56.12032, which provides as follows:
Inspection and cover plates on
electrical equipment and junction
boxes shall be kept in place at
all times except during testing or
repairs.
The Secretary's evidence shows that the cover on the
electrical junction box to the screw drive motor was missing.
There were electrical connections inside the box and there
were wires sticking out. The hazard involved improper insulation and a fatality could result if a person contacted
such equipment. The inspector believed the operator was
moderately negligent. The condition was open and obvious,
and the box itself was 6 to 8 feet off the ground.
Respondent indicated and concurred that the cover was
missing but he did not see that it would make any difference
since there were no exposed wires. Exhibits R-lO(a)(b) and
Cc> were received in evidence and the operator indicated he
had never had a problem with this particular junction box.
In rebuttal Inspector Tanner drew arrows to the junction
box. In Exhibit R-lOCb> you can observe where a person could
contact the junction box by walking up the muck pile.
Discussion
The operator admits the cover on the electrical junction box
was missing and he failed to prove in the inspection that there
was testing being done or that repairs were being undertaken.

1480

The particular standard in question, namely § 56.12032, is a
mandatory standard. The regulation does not require a potential
for contact or injury as does the guarding regulation.
This citation should be affirmed.
Citation No. 2867910
Citation No. 2867910 charges respondent with violating
30 C.F.R. § 56.12028, which provides as follows:
Continuity and resistance of
grounding systems shall be tested
immediately after installation,
repair, and modification7 and
annually thereafter. A record
of the resistance measured during
the most recent tests shall be
made available on a request by
the Secretary or his duly authorized representative.
The Secretary's evidence shows that a test of the
continuity of resistance of the grounding systems had not
been done on the plant and a record of such test had not been
made.
The purpose of the regulation is to insure that plant
generators are grounded. The hazard in this situation is
that a possible fatal injury could occur and there have been
numerous such fatalities.
The inspector considered this to be an S&S violation
particularly because of the volume of water in close proximity to the crusher. Water could establish an effective
ground.
The inspector believed the operator had been moderately
negligent and he should have known that electrical equipment
had to be grounded. Mr. Huffman indicated that it had not been
tested.
Mr. Huffman testified that he had not had an electrician
run a test but he believed the grounding wires were apparent.
In connection with this he offered Exhibit R-ll(a), (b} and
(c) which show the ground wires. This was the condition existing
in February 1988.

1481

In rebuttal Inspector Tanner reviewed the photographs
and stated that Exhibit R-ll(a) does not show if the grounding
is adequate and that cannot be determined until a grounding
check has been done. Further, Exhibit R-ll(b) shows the power
cable was wrapped in tape. In addition, Exhibit R-ll(c) shows
the frame was grounded but it doesn't show, nor does it establish, if the grounding system was effective.
Discussion
The evidence established by the inspector and confirmed
by Mr. Huffman is that a test of the continuity of resistance
of the grounding system had not been done on the plant nor had
a record of such tests been made.
For the foregoing reasons this citation should be affirmed.
Civil Penalties
The statutory criteria to assess civil penalties is contained in section llO(i) of the Act.
One criteria involves the operator's history of previous
violations. However, in this case there was no evidence of the
prior history. However, inasmuch as the inspection occurred
shortly after a start-up, I infer that the operator's history
is favorable to the company.
Additional criteria is whether the penalty is appropriate
in relation to the size of the business and whether the penalty
will affect the operator's ability to continue in business.
It is apparent that this is a small operator and in fact only
Mr. Hoffman engaged in the actual preparation of the sand and
gravel. Mrs. Huffman indicated the company is doing better
than breaking even.
Concerning the operator's negligence, the evidence establishes that the operator was negligent in that the conditions
were open and obvious.
The Mine Safety Act provides for a credit for good faith
in attempting to achieve rapid compliance. However, in this
case the operator requested that an order be issued in order
that he might litigate the issues involved. However, issues of
good faith fall under a broad umbrella and I find

1482

from the credible evidence that Mrs. Huffman was in contact
with MSHA in a conference call in an effort to resolve these
citations. In addition, she previously advised MSHA of their
most recent start-up of the business (Exhibit R-5). I conclude
that such activities fall within the broad umbrella of good
faith.
The foregoing conditions apply to all of the statutory
criteria for assessment of the civil penalty except the criteria
of gravity. This criteria is now considered.
Citation No. 2867903 (chain drive assembly): the gravity
in this situation is low since a person would have to be within
2 or 3 feet of the ground to contact the unguarded chain drive.
Citation No. 2867904 (flat belt drive assembly): the gravity
here is likewise low. The guard did not fully enclose the belt
but the pinch points are enclosed by the guard and the position
of the hand control as shown in Exhibit R-5(a) would not cause
any serious problems.
Citation No. 2867905 (head and tail pulleys on conveyor):this citation is to be vacated.
Citation No. 2867906 CV-belt assembly): the gravity involved in this guarding violation is particularly troublesome
in that the operator must pour oil to maintain the equipment
while it is running. No doubt the oil in the immediate vicinity
would cause a slippery condition. I believe the gravity in this
violation is high.
Citation No. 2867907 (sand washer): the gravity connected
with this violation is high. Due to the size of the screw
involved a person could lose a limb.
Citation No. 2867908 (screw drive assembly for sand washer):
this citation is to be vacated.
Citation No. 2867909 (cover for electrical junction box):
I consider the gravity for this violation to be low. In
addition, the positioning of the box, 6 to 8 feet off the ground,
would render likelihood of any serious injury to be remote.
Citation No. 2867910 (checking grounding system): the
gravity involved in this violation is high since an inadequate
grounding system could result in a fatality.
I conclude that the penalties set forth as to each of these
citations in the order in this decision are appropriate.

1483

ORDER
Based on the foregoing findings of fact and conclusions of
law it is hereby ordered that:
1. Citation No. 2867903 is affirmed and a civil penalty of
$25 is assessed.
2. Citation No. 2867904 is affirmed and a civil penalty of
$25 is assessed.
3.

Citation No. 2867905 is vacated.

4. Citation No. 2867906 is affirmed and a civil penalty of
$100 is assessed.
5. Citation No. 2867907 is affirmed and a civil penalty of
$50 is assessed.
6.

Citation No. 2867908 is vacated.

7. Citation No. 2867909 is affi·rmed and a civil penalty of
$25 is assessed.
8. Citation No. 2867910 is affirmed and a civil penalty of
$50 is assessed.

Law Judge

Distribution:
Janice L. Holm, Esq., Jack F. Ostrander, Esq., Office of
the Solicitor, U.S. Department of Labor, 525 Griffin Street,
Suite 501, Dallas, TX 75202 (Certified Mail)
Jay Rubin, Esq., Stout & Rubin, 418 Main Street, P.O. Drawer 151,
Truth or Consequences, NM 87901 (Certified Mail)
/ot

1484

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

AUG
DONALD R. BAB BS,.
Complainant

2 1989
DISCRIMINATION PROCEEDING

.
.
.
.

v.
PEABODY COAL COMPANY,
Respondent

Docket No. KENT 89-119-D
MADI CD 89-02
Camp 9

DECISION
Before:

Judge Fauver

On June 7, 1989, a show cause order was issued allowing
Complainant until June 17, 1989 to show cause why his
complaint should not be dismissed for lack of jurisdiction.
Complainant has not filed a response to the show cause
order. Accordingly, the complaint will be dismissed for lack
of jurisdiction.
ORDER
WHEREFORE IT IS ORDERED that this proceeding is
DISMISSED.

u}~
7-~v~
William Fauver
Administrative Law Judge
Distribution:
Mr. Donald R. Babbs,
(Certified Mail)

~oute

2, Box 248, Sturgis, KY 42459

Eugene P. Schmittgens, Jr., Esq., P.O. 13ox 373, St. Louis, MO
63166 (Certified Mail)
iz

1485

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

AUG 3 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF THIRTEEN
COMPLAINANTS,
complainant
v.

..
..
..
.

DISCRIMINATION PROCEEDING
Docket No. CENT 88-142-D
Ada Quarry & Plant

.
.
IDEAL BASIC INDUSTRIES, INC.,
.
Respondent

.

DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

The parties have reached an amicable resolution of this
matter and on July 28, 1989, filed their motion for approval of
settlement.
..

Pursuant to their settlement agreement, the parties reached
the following accord:
1. Respondent agrees (a) not to impose requirements or
restrictions upon its employees solely due to the employees'
filing of State Workers Compensation claims based on disabilities
allegedly caused by hazardous conditions existing in their work
environment, (b) to comply with the provisions of Section 105(c)
of the Federal Mine Safety and Health Act, and (c) that the
employment records of the individual complainants will be
completely expunged of all references to the circumstances involved in these matters.
2. Respondent agrees to submit to the counsel for
Petitioner (Complainant> a certified or cashier's check payable
to individual Complainant R. Gene Myers in the amount of $637
less statutory deductions for FICA, state and federal tax
withholding in full settlement of a claim for backwages due to R.
Gene Myers arising from his five-day suspension for failing to
comply with Respondent's work rules regarding respiratory and
noise protection. This payment in no way prejudices R. Gene
Myers' right to pursue his allegation of discriminatory
discharge.

1486

3. Respondent agrees to submit to the "Mine Safety and
Health Administration-Labor" (Office of Assessments, 4015 Wilson
Boulevard, Arlington, VA, 22203) a certified or cashier's check
in the amount of $11,000, which civil money penalty represents
the full penalties to be assessed against Respondent in
connection with all complained of activity, excluding discharge,
asserted by complainants.
4. Petitioner agrees to withdraw from prosecuting its
claims of discriminatory discharge. Complainant (Petitioner),
i.e., the Secretary of Labor, after further review and
evaluation, has determined that there is an insufficient basis
for the Secretary to proceed with the claim of discriminatory
discharge of any of the complainants. Pursuant to the parties'
agreement, the individual complainants have been advised of this
decision by the Solicitor's Office and have been informed that
they can reserve their statutory rights to proceed independently.
Accordingly, upon dismissal of the Secretary's case, the
complainants are to be afforded their full statutory rights
pursuant to 30 u.s.c. § 815(c)(3) and 29 C.F.R. § 2700.40(b),
4l(b) and 42(a). See Roland v. Secretary of Labor, 3 MSHC 1770
(1985).
(Complainant and Respondent have agreed that the Secretary
of Labor's withdrawal shall not prejudice the rights of the
individual claimants to pursue, pursuant to 30 u.s.c. § 815(c)(3)
and 29 C.F.R. § 2700.40(b), 41Cb) and 42(a), their allegations of
discriminatory discharge).
5. Each party has agreed to bear its own fees and other
expenses incurred by such party in connection with any stage of
this proceeding.
6. The parties have agreed that, except for actions under
the Federal Mine Safety and Health Act, none of the foregoing
agreements, statements, stipulations and actions taken by
Respondent shall be deemed an admission by Respondent of the
allegations contained in the Complainant's (Petitioner's) charge
or the complaint filed by the Petitioner or the Motion to Approve
this settlement agreement. The agreements, statements,
stipulations, findings and actions taken herein are made for the
purpose of amicably and economically settling disputed issues of
fact and law and they shall not be used for any purpose except
for proceedings arising under the enforcement of the Federal Mine
Safety and Health Act or the terms of their agreement.
It is concluded that the settlement reached is appropriate
and such is here approved.

1487

ORDER
(1) The Complaint herein is dismissed with prejudice except
as to any charges of discriminatory discharge brought directly by
individual complainants which shall be without prejudice to any
rights that they may have pursuant to statute, 30 u.s.c. Section
815(c) and 29 C.F.R. Sections 2700.40Cb>, 41Cb) and 42(a).
(2) Within five working days of receipt of this order of
the Administrative Law Judge approving the Settlement Agreement,
counsel to the Secretary of Labor will send to each complainant a
copy of the order and settlement agreement, certified mail,
return receipt requested. This action by the Solicitor shall be
the formal notification of withdrawal pursuant to 30 u.s.c.
S 815(c)(3) and 29 C.F.R. § 2700.40Cb).
·
(3) Respondent, shall pay a civil penalty totaling
$11,000.00 to the Secretary of Labor within 30 days from the date
hereof.
(4) Within 30 days from the date of issuance hereof,
Respondent shall pay to R. Gene Myers back pay de~cribed herein
($637.00 less deductions).

tl;;;.,~/1 4 ~~I A'

Michael A. 'f,';;h-;~, Jr.
Administrative Law Judge

Distribution:
Michael Olvera, Esq., and Terry K. Goltz, Esq., Office of the
Solicitor, U.S. Department of Labor, 525 Griffin Street, Suite
501, Gallas, TX 75202 (Certified Mail)
Michael Towers, Esq., Fisher and Phillips, 1500 Resurgens Plaza,
945 East Paces Ferry Road, Atlanta, GA 30326 (Certified Mail)

/bls

1488

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER. CO 80204

AUG
BRUCE MITCHELL,
Complainant
v.
ASARCO, INC.,
Respondent

3 1989

.
...
:
..

DISCRIMINATION PROCEEDING
Docket No. WEST 88-244-DM
MD 87-59
Troy Mine

DECISION
Before:

Judge Lasher

The parties have reached an amicable resolution of this
matter. On July 17, 1989, the parties, through counsel filed
herein a duly executed "Stipulation of Voluntary Dismissal With
Prejudice", requesting dismissal of this matter with prejudice
based on their settlement agreement. Based on their Stipulation,
which inter alia constitutes in essence a withdrawal of
Complainant's action herein, pursuant to Commission Rule 11 (29
C.F.R. § 2700.11), this proceeding is DISMISSED with prejudice.

Distribution:
Henry Chajet, Esq., Doyle & Savit, 919 Eighteenth Street, Suite
1000, N.W., Washington, D.C. 20006 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900
Fifteenth Street, N.W., Washington, D.C. 20005 (Certified Mail)
Mr. Bruce Mitchell, Box 681, Libby, MT

/bls

1489

59923 (Certified Mail)

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

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

v.
INDUSTRIAL CONSTRUCTORS,
Respondent

1989
.. 4CIVIL
PENALTY PROCEEDINGS
.. Docket No. WEST 88-256-M
. A.C. No. 04-04917-05501
. Docket No. WEST 88-311-M
. A.C.
No. 04-04917-05502
.
. Colosseum Mine

DECISION
Appearances: Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California,
for Petitioneri
Michael Tanchek, Esq., Industrial Constructors
Corporation, Missoula, Montana,
for Respondent.
Before:

Judge Lasher

This matter was commenced by the filing of proposals for
assessment of civil penalties by Petitioner, seeking penalties
for two alleged violations described in two Citations -numbered
3286940 in Docket No. WEST 88-256-M and 3286684 in Docket No.
WEST 88-311-M -issued by MSHA Inspector Vaughn D. Cowley on
February 3, 1988 and May 11, 1988, respectively.
Separate discussion of these Citation follows.
Docket No. WEST 88-256-M
Citation No. 3286940, alleging a "significant and
substantial" violation was issued pursuant to Section 104(a) of
the Federal Mine Safety. and Health Amendments Act of 1977, 30
.u.s.c. Section 801 et seq., and charges Respondent with an
infraction of 30 C.F.R. S 56.9022, as follows:
"The wash water pond located at the shop area was not
provided with a berm or guard to prevent equipment from
driving into the pond."
30 C.F.R. § 56.9022 provides:
•serms or guards shall be provided on the outer bank of
elevated roadways."

1490

Respondent concedes that there were no berms around the wash pond
in question, but alleges that because it intended to build a
fence around the pond and had materials present with which to do,
that the "significant and substantial" (S & S) designation on
the Citation was not warranted (T. 11-12).
Inspector Cowley described the activities conducted at the
shop area which he observed on his inspection on February 3,
1988, as follows:
"Maintenance of the mining equipment, servicing of
equipment, maintenance, breakdowns, hoses break, brakes
fail, whatever, they have mechanics working there,
service equipment working." (T. 14)
Located in this shop area, which is about 1 acre in size CT.
34), is a "wash pad" where trucks and equipment are washed (T. 15
Ex. P-3). Adjacent to the wash pad is the subject water
collection pond or wash pond into which the wash water runs and
which is about 28 feet x 28 feet in dimension and 10 feet deep
(T. 15, 32, 38, 52, 60, 66). The pond is created by the runoff
from wash water CT. 38, 41). The depth of the water in the pond
would not have been ascertainable by the operator . of a vehicle
traveling along an adjacent roadway CT. 32, 33, 38).
Inspector Cowley indicated that running a "complete circle"
around the flat shop area is this gravel roadway which extends
"right to the edge of the pond" and on which various types of
vehicles frequently travel CT. 16, 17., 18, 20, 21, 33, 34, 35,
39). Traffic flows in both directions adjacent to the pond CT.
25, 27) and runs along 2 sides of the pond CT. 33, 35).
At the time of his inspection Ca) there was a drop of one to
two feet from the roadway to the water level of the wash pond and
there was 8 to 9 feet of water in the pond CT. 17, 32), and (b)
there were no berms, guards, fences or other obstacles between
the roadway and the pond CT. 17, 21, 24). Inspector Cowley
observed vehicle tire tracks-rubber tire tracks-- within
approximately 3 feet of the northwest corner of the pond CT. 19,
22, 31).
The roadway, which was wide enough to accommodate 4 pickup
trucks- or two 15-foot wide haulage trucks -- side by side CT.
43, 70) did not have marked lanes, nor were there "Red lights" or
flagmen present to control traffic CT. 47). Respondent did post
a 5 mph speed limit for the area and its drivers were instructed
in its "left-hand traffic" rule CT. 52, 70).
Inspector Cowley described the hazard presented by the
violative condition in this manner:

1491

"A vehicle running off into the pond, overturning, -seriously injuring a person or even possibly in the event
he went in and overturned, was trapped in the cab, he
could possibly drown.
So the basic hazard would be going over the edge into
the pond and sinking to the bottom?

Q.

A.

Yes."

(T. 17)

It was the Inspector's opinion that a serious injury, i.e.,
one resulting in "lost time (T. 25, 47), was posed by the hazard
(T. 25). He explained further:
"It would be a serious injury if a guy was in the truck
and it went into the pond and tipped over, the least that
could be expected would be at least a lost time accident,
and a very possible fatal if he was trapped in the---cab
went under water and the guy was trapped in the cab, it
could have been a drowning."
(T. 25, 26)
From the outer edge of the pond, the slope of the pond drops off
sharply to its maximum depth (T. 36, 37, 65). Because of the
severity of the drop off, a vehicle is more likely to flip over
(T. 36-38).
The violative condition was abated immediately by Respondent
by having a front-end loader put up a berm (T. 22).
Although Respondent contends that it was planning to install
a fence around the wash pond, Inspector Cowley did not observe
fence materials in the area (T. 23, 44), he was not advised on
the inspection day that management was planning to install such a
fence (T. 24, 25), and it was his opinion, and conceded by
Respondent--that a fence would not have been sufficient to have
stopped large equipment having mechanical failure (T. 24, 55,
56).
Respondent's Maintenance Superintendent, Lewis Young,
testified that fence materials had been acquired for the pond
which were stacked alongside a building CT. 50) on the day the
Citation was issued. However, no part of the fence had been
constructed (T. 50, 55), and all of the materials for the fence
had not been acquired (T. 55) 1/.

1/ It is thus found that even had the fence been in place it
would not have complied with the berm/guard standard, and
further, by Respondent's own admission, that all the fence
materials for the fence had not been acquired on the day the
hazard was observed and the violation cited.

1492

Mr. Young offered only the following explanation as to why
the fence (not berms or guards) had not been put up:
"We had been busy, we'd just moved into the new shop.
We were trying to get our maintenance program, the equipment, on line. we were still organizing in the building."
(T. 50).

Water had been in the pond for approximately two weeks (T.
51).

Respondent established that some of the larger vehiclesbecause of the height of their cabs-- would not have exposed
their drivers to the drowning hazard mentioned by the Inspector
had such vehicles tipped over into the pond (T. 26). Nevertheless Respondent's witness, its Maintenance Superintendent,
admitted that small vehicles were subject to the hazard described
by the Inspector (T. 51) and that such vehicles did traverse the
area around the pond CT. 51, 52).
Discussion
It was conceded and the evidence clearly established that
there were no berms or guards provided on the outer bank of the
roadway at the time the condition was cited. There is no
question but that the violation charged did occur and that it was
very serious and resulted from Respondent's negligence since it
had existed for approximately two weeks without the hazard being
recognized. Respondent's primary, if not sole contention,
involves the propriety of the "significant and substantial"
(S & S) designation to the violation.
A violation is properly designated S & S "if, based upon the
particular facts surrounding· the violation there exists a
reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonably serious nature." Cement
Division, National GYPSUID co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1 (1984), the Commission
listed four elements of proof for s & S violations:
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 standard1
(2) a discrete safety hazard--that is, a measure of danger
to safety--contributed to by the violation1 (3) a reasonable likelihood that the hazard contributed to will result
in an injury1 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 (1985), the Commission expounded thereon as follows:

1493

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)(l), it is the contribution of a violation
to the cause and effect of a hazard that must be signif icant 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).
It is concluded that Petitioner carried its burden of proof
under Mathies, supra, with respect to this violation since the
violation was clearly established and the violative condition
involved contributed a "measure of danger" to the vehicle
operators who were exposed to the hazard credibly described by
the Inspector. There is no question but that had an accident
occurred, the miners (employees) involved would have been exposed
to injuries ranging from broken bones to fatalities. Because of
the slope of the pond from its outer edge, the likelihood that a
vehicle might overturn was increased. In addition, the
likelihood of a vehicle going into the pond was increased not
only by the absence of berms and guards, but by the absence of .
other warning respect to the nature of the hazard posed by the
pond. The roadway itself was relatively uncontrolled and a
vehicle operator could not visibly determine the depth of the
water because of its muddy CT. 33) constituency. Thus, I
conclude that there was a reasonable likelihood that the hazard
contributed by by the violation would result in an injury, and
also that such injury would be of a reasonably serious nature,
including fatalities.
The designation of this violation as "significant and
substantial" is affirmed.
Docket No. WEST 88-311-M
Citation No. 3286684, also alleging a "significant and
substantial" violation was issued pursuant to Section 104Ca)of
the 1977 Mine Act, and charges Respondent with an infraction of
30 C.F.R. § 56.9087, as follows:
"The backup alarm was not operating on the large service
truck. n
30 C.F.R. § 56.9087, pertaining to "Audible warning devices
and back-up alarms", provides:
"Heavy duty mobile equipment shall be provided with audible
warning devices.

1494

When the operator of such equipment has an obstructed view
to the rear, the equipment shall have either an automatic
reverse signal alarm which is audible above the surrounding
noise level or an observer to signal when it is safe to
back up."
Respondent concedes the occurrence of this violation but
challenges its designation as "significant and substantial" (T.
89).
During the course of an inspection of the Colosseum mine on
May 11, 1988, Inspector Cowley again inspected the shop area and
observed a large flat-bed service truck parked outside the shop
area (T. 80, 85). The truck, which travels all over the mine and
over grades, carries diesel fuel and oil (T. 80-81).
At this time, the Inspector saw the driver of the truck get
into the truck and he asked the driver if his back-up alarm
worked. The driver said yes. Inspector Cowley then asked him to
put the truck in reverse and the alarm did not work. (T. 82).
The driver's view to the rear was obstructed because of the
oil barrels, fuel tanks mounted on the back of the· truck (T. 82).
There is no question but that the vehicle operator had an
obstructed view to the rear. The Inspector actually described
the nature of the visibility obstruction in this manner:
"Standing behind the truck approximately 25 feet looking
you could not see either one of the mirrors on the truck
at an angle, a "V" shape, from the back of the truck back
to where I was standing approximately 25 feet, both mirrors
was out of sight. Both mirrors was out of sight, he
could n ' t see. "
( T. 8 2 ) 2 I
The area of the mine most susceptible to the hazard posed by this
violation was the pit area (T. 84, 86). The driver told the
Inspector at the time that he was on his way to the pit area to
service equipment there during the lunch hour (T. 83). During
the lunch hour, various employees are in the pit area--normally
6 in number -- and they are free to go where they want (T. 84).
The Inspector gave this description of the hazard posed by
the violation:

2/ I infer from this testimony that if one standing behind the
truck at a given point cannot see the mirrors that the driver-looking through the mirrors--- could not see the reflected image
of someone standing at such point.
1495

"Employees on foot being in the area is the biggest danger
of not -- of the truck backing up and them not being -- the
alarm not going off, or the bell going off, buzzer, whatever, not making noise to warn whoever was behind the truck·
that it was backing up. (T. 82-83).

xxx

xxx

xxx

xxx

"Well if the vehicle backed over an employee, hit him,
knocked him down and backed over him, it very likely be
fatal, or at least broken legs, or if he run over his
legs, or whatever.
(Pause)
Judge Lasher: What are the dimensions, weights approximately of this vehicle?
The Witness: Of this vehicle? Well, approximately eight
feet wide and maybe 20 feet long, and the weight with a
full load on it, probably 30,000 pounds, would that be
close? I don't -- I don't know. With a ful~ load of diesel
fuel and oil and--?
(T. 85).
The Inspector gave this description of the pit area and the
service truck's function there:
"The pit area itself depends on which level they're working
on. Most of the ~reas are large, open, flat areas where
they're mining ore or waste out of a blast area, there's
a large area behind them, possibly in front of them,
possibly on three sides of this work area, where the
trucks come in, back up, the shovels load them. The trucks
will leave the shovel area, come over and park away from
the work area. The truck drivers will -- some of them stay
in their truck. I talk to them generally. Some of them
get out, they walk around their trucks, they generally eat
lunch at this time. The service truck comes into the pit
area at that time, pulls up and greases, changes oil,
pumps oil in or whatever is necessary as far as servicing
goes, during this lunch break."
The Inspector was of the opinion that the service truck
would be required to back under certain situations obtaining in
its operation (T. 93) and he also indicated that there was no
alternate means of alerting someone behind the truck when the
truck was backing up (T. 100-101).
other factors bearing on the question of the likelihood of
the hazard coming to fruition were the presence of ex~raneous
noise in the pit area beyond that created by the service truck

1496

CT. 101, 103) and the significant level of foot traffic in this
area CT. 91, 102-103, 104-106, 113). Thus, the Inspector
testified:
"The fact that the truck in question, the service truck,
works in the pit area during the noon hour when there is
quite a bit of exposure of employees on foot in the area.
Employees not only of Industrial Constructors, but Bond
Gold Corporation's engineers and geologists in the area
during the lunch hour when the service truck is in the
process of servicing the large mining equipment in the
pit area."
While Respondent's Maintenance Superintendent, Lewis Young,
was of the opinion that there would "normally" CT. 109) be no
reason for the service truck to back up while servicing other
equipment in the pit area, he also conceded the likelihood of the
truck's striking employees had it been put in reverse CT. 112).
Discussion
The issue presented with respect to this Citation is whether
the Inspector's determination that the violation was significant
and substantial CS & S) should be upheld. Applying the
Commission's analytical formula for making such determination -set forth succinctly in its Mathies decision, supra, it is
readily seen that there is no question as to the establishment of
three of the four prerequisite elements. Thus, Respondent admits
that the violation occurred, and the record strongly supports the
finding that the violation contributed a measure of danger to
safety. Had the violative condition resulted in an accident, it
is equally clear that an injury of a reasonably serious nature
would have resulted therefrom CT. 85, 86).
The question remains: was there a reasonable likelihood that
the hazard contributed to by the violation would result in an
event in which there would have been an injury?
Here, the record is clear that there was considerable foot
traffic in the area in which this large truck was operating -which must be considered in conjunction with the size of the· pit
area and the potential proximity of employees to the truck CT.
91, 94, 101-103, 112). The nature of the violation itself
inherently carries a considerable threat of risk to the safety of
miners: Cl> a large piece of mobile equipment, (2) operating
without a backup alarm, where (3) the operator's vision is
obstructed to the rear. Add to this mix the presence of a
considerable number of miners on foot in proximity to the truck,
no alternate means of alerting such employees of the vehicle's
being put into reverse, extraneous noise, and one must conclude

that a reasonable likelihood existed that the hazard contributed
to by the violation would occur and cause an injury. The
Inspector's determination that this violation was significant and
substantial is affirmed.
Penalty Assessment Factors
The parties stipulated that Respondent, ~/ a large company
{T. 73) with a large mine, had no history of assessed violations
within the pertinent 24-month period preceding the occurrence of
the violations in question {T. 13, 76). It was also stipulated
that (1) Respondent, after notification of the violations,
proceeded in good faith to abate the same and (2) that assessment
of penalties would not jeopardize Respondent's ability to
continue in business {T. 13, 76). Both violations involved have
been previously found to be "significant and substantial". I
have also previously found that the violation charged in Citation
No. 3286940 was very serious and resulted from Respondent's
negligence.
In connection with Citation No. 3286684, the parties
stipulated that the violation resulted from a "lo~ degree of
negligence" and I so find. It is also found that this violation
was very serious.
Having considered the above mandatory penalty assessment
criteria, penalties of $150.00 for Citation No. 3286940 and
$100.00 for Citation No. 3286684 are found appropriate and are
here assessed.
ORDER
Citations numbered 3286940 {Docket No. WEST 88-256-M) and
3286684 {Docket No. WEST 88-311-M), including the designations
"Significant and Substantial" thereon, are affirmed.
Respondent is ordered to pay the Secretary of Labor within
30 days from the date hereof the total sum of $250.00 as and for
the civil penalties above assessed.

~~~~~~~,
Michael A. Lasher, Jr.
Administrative Law Judge

ll

Respondent operates a "multiple bench level type" of gold
mine and at material times had a payroll of approximately SO
employees {T. 14).

1498

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

AUG 111989
OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS

SECRETAR~

v.
RUSHTON MINING COMPANY,
Respondent

.
..

Docket No. PENN 89-5
A.C. No. 36-00856-03615
Rushton Mine

DECISION
Appearances:

Before:

Linda M. Henry, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner;
Joseph A. Yuhas, Esq., Greenwich Collieries,
Ebensburg, Pennsylvania for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seq., the "Act," in which the
Secretary has charged Rushton Mining Company (Rushton) with
two violations of· regulatory standards. At hearings the
parties submitted a Motion to Approve a Settlement agreement
with respect to Order No. 2885754 in which Rushton agreed to
pay a civil penalty of $500 -- a reduction of $100 from the
initially proposed penalty. I have considered the evidence
submitted in support of the motion and find that it comports
with the requirements set forth under Section llO(i) of the
Act. Accordingly the motion is approved.
Citation No. 2885977 remains at i~sue. The citation,
issued pursuant to Section 104(d)(l) of the Actl/, alleges a
"significant and substantial" violation of the standard at
30 C.F.R. ~ 75.303Ca), and charges as follows:

1/ Section 104(d)(l) of the Act provides
follows:

ad

If, upon any inspection of a coal 0£ other mine, an
authorized representative of the Secretary finds
that there has been a violation of any mandatory
health or safety standard, and if he also finds
that, while the conditions created by such

1499

Preshift examinations of the N-14, No. 2 supply
haulage entry were not being conducted. The supply
haulage entry begins one crosscut inby station 8013
for a distance of approximately 2500 feet.
No
dates, times or initial3 were preoent in the entry
to signify that examinations were conducted nor
were [sic] any record of preshift examinations
available. The No. 2 entry track-trolley haulage
ends at station 8032 where the S&S rubber tired
battery motor transports the supplies to the
section. Within the 2500 feet there were 3 full
rubber tired supply cars containing cement blocks,
for permanent type stoppings, roof bolts and roof
bolt plates. There were others supplies stored in
crosscuts that had been removed from supply cars.
It was necessary this shift for the S&S tractor to
go off the section into the No. 2 entry for roof
straps and it was necessary for the section foreman
to conduct a preshift examination. This
examination was conducted after a discussion about
the situation with the safety inspector and
section foreman. This entry was identified as the
secondary escapeway from the N-14, 016 section, on
all mine maps such as temporary notation map,
section map, the map posted for the miners and the
main map retained in the engineers office.
cont'd fn.l
violation do not cause imminent danger, such
violation is of such nature as could significantly
and substantially contribute to the cause and
effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused
by an unwarrantable failure of such operator to
comply with such mandatory health or safety
standards, he shall include such finding in any
citation given to the operator under this Act. If
during the same inspection or any subsequent
inspection of such mine within 90 days after the
issuance of such citation, an authocized
representative of the Secretary finds another
violation of any mandatory health or safety
standard and finds such violation to be also caused
by an unwarrantable failure of such operator to so
comply, he shall forthwith issue an order requiring
the operator to cause all persons in the area
affected by such violation, except those persons
referred to in subsection Cc> to be withdrawn from,
and to be prohibited from entering, such area until
an authorized representative of the Secretary
determines that such violation has b9en abated.

1500

The cited standard, 30 C.F.R. § 75._303(a), prov!_des in
part as follows:
Within 3 hours immediately preceding·the beginning
of any shift, and before any miner in such shift
enters the active workings of a coal mine,
certified persons designated by the operator of the
mine shall examine such workings and any other
underground area of the mine aesignated by the
Secretary or his authorized representative. Each
such examiner shall examine every working section
in such workings and shall make tests in each such
working section for accumulations of methane with
means approved by the Secretary for detecting
methane, and shall make tests for oxygen deficiency
with a permissible flame safety lamp or other means
approved by the Secretary; examine seals and doors
to determine whether they are functioning properly;
examine and test the roof, face, and rib conditions
in such working section; examine active roadways,
travelways, and belt conveyors on which men are
carried, approaches to abandoned areas, and
accessible falls in such section for hazards; test
by means of an anemometer or other device approved
by the Secretary to determine whether the air in
each split is traveling in its proper course and in
normal volume and velocity; and examine for such
other hazards and violations of the mandatory
health or safety standards, as an authorized
representative of the Secretary may from time to
time require.

* * *
Such mine examiner shall place his initials and the
date and time at all places he examines.

* * *
Upon completing his examination, such mine exam.ine.c
shall report the results of his examination to a
person, designated by the operator to receive such
reports at a designated station on the surface oi
the mine, before other persons anter the
underground areas of such mine to work in such
shift. Each such mine examiner shall also .cecord
the results of his examination with ink or

1501

indelible pencil in a book approved by the
Secretary kept for such purpose i~ an area on the
surface of the mine chosen by the operator to .
minimize the danger of destruction by fire or other
hazard, and the record shall be open for inspection
by interested persons.
Rushton admits that its mine examiner did not in fact
place his initials and the date and time of his examination
within the cited No. 2 supply haulage entry and therefore
admits to this extent that a violation of the cited standard
was committed. Rushton denies however that a proper preshift
examination was not performed and was not recorded in the
preshift examination book. Rushton also argues that the
violation was neither "significant and substantial" nor the
result of its "unwarrantable failure" to comply with the
cited standard.
Accocding to the undisputed testimony of MSHA Inspector
Donald Klemick, he was present in the cited No. 2 supply
haulage entry on both May 8 and May 9, 1988. On May 8, 1988,
neither Klemick nor the company representative, Safety
Inspector Bob Crain, were able to locate any dates, times or
initials within the entry. Again on May 9, 1988, neither
KlemicK nor Crain (nor on this occassion the miner's
representative) were able to locate any evidence of dates,
times or initials in the cited entry. According to Klemick
there was no evidence of even old dates, times or initials
evidencing earlier examinations of the entry.
Dennis Stoltz the section foreman responsible for
performing the preshift examination in the cited entry within
three hours of the commencement of the 8:00 a.m. to 4:00 p.m.
shift on May 9, 1988, testified that he in fact did preshift
the cited area between about 6:15 a.m. to 7:00 a.m. He
explained at hearing why he was unable to place the date,
times and his initials in the No. 2 entry as required by the
cited regulation. His testimony was as follows:
All right. My normal routine because I had done
this other, was to travel to the end. Well, I
engaged in this pump by myself which weighs
hundr~ds and hundreds of pounds and I got into a
mess and got tied up. On the way b3.ck, I was
negligent and I was in a hurry and did not stop
and date my usual areas of datings. (Tr. 63)

1502

Stoltz was unable to satisfactorily explain why the
inspection party had been unable to locate any older dates,
times or initials anywhere in the cited
entry.
.
.
I find Stoltz's testimony to be less than credible. He
maintains that he conducted all of the examinations required
by section 303(a) in the cited entry but was·in too much of a
hurry to place, the date, time and his initials in the entry.
Section 303Ca) requires, among other things, tests for
accumulations of methane, oxygen deficiency, examination of
seals and doors to determine whether they are functioning
properly, examinations and testing of the roof and ribs
examination of active roadways, etc. In particular I note
that the regulation requires not only the examination but
also the testing of roof conditions. Stoltz admitted that he
was "negligent" and "in a hurry" and made only a visual
examination of the roof as he rode through the entry. Thus
even if he did perform a cursory observation of conditions
while passing through the entry it is clear that he did not
properly perform all of the required tests.
Indeed I do not
find credible that Stoltz had sufficient time to perform a
proper preshift examination in the entry yet did not have
sufficient time to place the time, date and his initials in
that entry. Under the circumstances I cannot find that the
a preshift examination was performed on May 9, 1988, in the
cited entry.
The testimony of Inspector Klemick regarding gravity and
negligence is however largely unhelpful. In this regard the
record shows the following colloquy:

Q [By Government Counsel] Now, looking at what has
been admitted as Government's Exhibit Number 1
under Section 10, Gravity. It is chec~ed off as
"Reasonably likely to result in lost work days of
restricted duty."
Could you explain the lose work days or the
restricted duty injury that you were referring to
in this citation?
A [Inspector Klemick] More likely from the fall
of the roof and anything else. This, up near
the section there was seine roof that had been
supported~ however, it was a fall coming
through there or a car. It was taking water
and throughout the area that the pre-shift
examinations are intended to preclude any
hazardous situation which from day to day,
shift to shift can occur.

1503

Q Why did you rate it as "reasonalily likely."
A Because of the fact that as ·far as evident
records or evident that people were in that
area pre-shift, there was not any and this was
a high negligent situation because the operator
is well aware of his requirement.

Q You say that it was a high negligent situation.
Why was it a high negligent situation?
A Because of the lack of the operator going into
these areas and making pre-shift examinations.

Q Do you or do you not believe that the operator
engaged in aggravated conduct in this
violation?
A I

do, because, I have never encountered a
situation like this at Rushton Mine that they
did make any examinations of this particular
situation or area; especially, pre-shift as
important as they are.
(Tr. 37-38)

There is nevertheless sufficient evidence elsewhere in
the record to conclude that the violation was the result of
Rushton's "unwarrantable failure".
The evidence is
undisputed that co.mpany representative Bob Crain,
accompanying Inspector Klemick, was unable to locate any
dates, times, or initials within the cited entry on
May 8, 1988, thereby placing management on notice that
pre-shift examinations were probably not being conducted in
that entry. On the following day when the citation was
issued, again no dates, times or initials were found in the
cited entry. It may reasonably be inferred from this
evidence that even after notice the operator continued in its
failure to conduct required pre-shift examinations in the
cited entry. This is evidence of gross negligence and
aggravated conduct sufficient to constitute "unwarrantable
failure".
Emery Mining Co., 9 FMSHRC 1997 (1987), appeal
pending (D~C. Cir. No. 88-1019).
The violation was also serious and "significant and
substantial". See Mathies Coal Co., 6 FMSHRC 1 (1984).
I
agree with the Secretary's analysis of this issue in her
brief:

1504

The intent of the pre-shift requirement is to
prevent miners from entering ar~ai that may contain
unexpected or unanticipated ha~ards. · Miners
travelled this supply haulageway to mqve equipment
through the haulageway while inspector KlemicK was
still at the mine, on the day he issued the
citation; mine management used this hauiageway to
transport equipment. The failure to pre-shift this
area exposed these miners to any variety of
unforeseen hazards. The failure to pre-shift
contributed to a discrete safety hazard that would
result in a reasonably serious injury. Therefore,
the order was properly rated as significant and
substantial.
ORDER
Section 104(d)(l) Order No. 2885754 and
Section 104(d)(l) Citation No. 2885977 are hereby affirmed.
Considering the available criteria under Section llO(i) of
the Act Rushton Mining Company is directed to pay civil
penalties of $500 and $600 respectively for the violations in
the above order and citation within 30 days of the date of
this decision.

Law Judge
Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Joseph A. ~uhas, Esq., Greenwich Collieries, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
nt

1505

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

AUG 11 \989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA),
Petitioner

v.
RUSHTON MINING COMPANY,
Respondent

.

CIVIL PENALTY PROCEEDING

..
.

Rushton Mine

Docket No. PENN 89-17
A.C. No. 36-00856-03616

DECISION
Appearances:

Before:

Linda Henry, Esq., Office of the Solicitor
U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner;
Joseph A. Yuhas, Esq., Rushton Mining Company
Ebensburg, Pennsylvania for Respondent.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor against the Rushton
Mining Company (Rushton) pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act·," in which the Secretary has charged one
violation of the regulatory standard at 30 C.F.R. § 75.301.
The issue before me is whether Rushton has committed the
violation as alleged and, if so, what is the appropriate
civil penalty for the violation.
The citation at issue, No. 2884010, charges a
"significant and substantial" violation of 30 C.F.R.
and alleges as follows:

S 75.301

The active workings on the outby side of bleeder
evaluation point No. 9 was [sic] not being
ventilated by a current of air containing not less
than 19.5 volume per centum of oxygen as ~as
indicated using and approved MX240 oxygen-methane
detector. The detector indicated that 19.l volume
per centum of oxygen was ventilating the immediate
outby side of the evaluation point where pecsons
are required to evaluate the 3, 4 and 5 butts

1506

bleeder systems. Bottle sample No. 1 was collected
to substantiate the condition.
The citation was subsequently modified on
March 21, 1988, as follows:
Citation No. 2884010 is being modified to reflect
the analytical results of the air sample. The per
centum of 6xygen was 19.2. The per centum of
carbon dioxide was 1.4 which was more than the
allowable 0.5 per centum. This additional
information shall therefore be inclusive in the
citation as part of the violation.
The cited standard, 30 C.F.R. § 75.301, provides in part
as follows:
All active workings shall be ventilated by a
current of air containing not less than 19.5 volume
per centum of oxygen, not more than 0.5 volume per
centum of carbon dioxide, and no harmful quantities
of othec noxious or poisonous gases •••
Rushton does not dispute the oxygen and carbon dioxide
readings obtained by MSHA Inspector Donald Klemick but
maintains that the area in which these readings were
obtained, bleeder evaluation point Number 9, was not within
the "active workings" of the mine. Indeed it is not disputed
that this bleeder evaluation point is part of the bleeder
system. If the cited bleeder evaluation point was not within
the "active workings" then clearly there was no violation of
the cited standard.
The same issue has previously been litigated before
several judges of this Commission. In U.S. Steel Corp., 6
FMSHRC 291 {1984) Judge Koutras concluded that "when read
together with the other standards in Part 75, a bleeder entry
is not active workings is a sound and logical interpretation
and application of the cited standard." Recently in
Rochester and Pittsburgh Coal Co.,
FMSHRC
{July 18,
1989) {Docket Nos. PENN 88-164-R and PENN 88-2~Judge
Weisberger similarly concluded that a bleeder system is not a
part of th~ "active workings" of the mine. These decisions
are based on sound logic and policy reasons and are therefore
followed here. I therefore find that bleeder evaluation
point Number 9 here cited is not within the "active wor~ings"
of the subject mine. Accordingly there can be no violation
of 30 C.F.R. § 75.301 as charged.

1507

ORDER
Citation No. 2884010 is vacated and these proceedings
are dismissed.

./,

·~/Judge
Distribution:

Linda Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Room 14480 Gateway Building,
Philadelphia, PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., Rushton Mining Company, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
nt

1508

~

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

AUG 111989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

.
.
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-121
A.C. No. 05-00301-03629
Dutch Creek No. 1 Mine

MID-CONTINENT RESOURCES, INC.,:
Respondent
:

DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

Upon motion for approval of a proposed settlement of the 16
Citations and Orders originally involved, and the same appearing
proper and fully supported in the record, the settlement is
approved.
A summary of the agreement reached follows:
Citation/Order No.
3043587
3043593
3044798
3944799
2504970
2832602
2832603
2503932
2503864
2503867
2503868
2503869
2334828
2334829
2334830
2503874

Proposed
Penalty
$1,400.00
1,300.00
1,100.00
1,350.00
1,300.00
1,000.00
1,000.00
1,100.00
1,000.00
1,300.00
1,000.00
900.00
1,100.00
1,200.00
1,100.00
1,000.00

Amended
Proposed Penalty
$1,400.00
780.00
1,100.00
810.00
5 0 0 • O0 <10 4a >
250.00
250.00
1,100.00
1,000.00
1,300.00
600.00
500.00 (104a) ·
660.00
O. 00 <vacated)
340.00
300.00

As part of the overall settlement, Respondent Mid-Continent
agrees to withdraw all defenses in all pending cases, specifically as to the "MSHA enforcement abuse" issue.

1509

The above settlement actually reflects and incorporates
various agreements reached at formal hearing in March, 1989.
Thus, as to two 104(d)(2) Orders listed below, MSHA agreed
at the hearing Cl> that such did not result from the mine
operator's "unwarrantable failure" to comply with the pertinent
standard, (2) that such should be modified to 104(a) Citations,
and (3) that the penalties should be reduced from the original
assessments as follows:
Section/Order No.
104(d)(2) Order
Order No. 2503869

Modification
TO 104(a)
Citation

104(d)(2)
Order No. 2504970

To 104(a)
Citation

Original
Assessment

Agreed
Penalty

$ 900.00

$500.00

$1,300.00

500.00

As to two 104Ca) Citations, numbered 2832602 and 2832603,
since neither violation was charged to be "significant and
substantial" or considered serious, Petitioner at the hearing
agreed to penalty reductions for both from $1,000.00 to $250.00.
Also at the hearing, Petitioner, after a re-evaluation of
its case, withdrew its prosecution of Section 104Cd)(2) Order No.
2334829, and moved to vacate such. Such motion was granted on
the record, is reflected in the written settlement motion, and is
here affirmed.
ORDER
1. Withdrawal Orders numbered 2503869 and 2504970 are
modified to 104Ca) Citations and withdrawal Order No. 2334829 is
vacated.
2. Respondent, if it has not previously done so, is ordered
to pay to the Secretary of Labor on or before OCtober 1, 1989,
the sum of $10,890.00 as and for the civil penalties agreed on
and above assessed.

~~.I~.tf: ~JI,

~[chael A. Lasher, Jr.

Administrative Law Judge

1510

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 Federal Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 790,
Glenwood Springs, CO 81602 (Certified Mail)

/bls

1511

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

.
.
.
.
v •.
.
.
MID-CONTINENT RESCXJRCES, INC.,:
.
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

AUG 111989

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-122

A.c. No. 05-00301-03630
Dutch Creek No. 1 Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

Upon Petitioner's motion for approval of a proposed
settlement of the 7 Orders involved, and the same appearing
proper and fully supported in the record the settlement is
approved.
A summary of the agreement reached follows:
Order No.
2503875
2503876
2503877
2503878
2503879
2503880
2334839

Proposed
Penalty
$1,100.00
1,300.00
1,100.00
1,300.00
1,000.00
1,100.00
1,100.00

Amended
Proposed Penalty
$ 660.00
780.00
660.00
810.00
600.00
660.00
660.00

As part of the overall settlement, Mid-Continent agrees to
withdraw all defenses in all pending cases, specifically as to
the "MSHA enforcement abuse" issue.
Respondent, if it has not previously done so, is ordered to
pay to the Secretary of Labor on or before August 1, 1989, the
sum of $4,830.00.

~~~/~~A

Michael A. Lasher, Jr.
Administrative Law Judge

1512

Distribution:
Margaret Miller, Esq., Office of the Solicitor, u.s. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Edward Mulhall, Jr., Esq., Delaney & Balcomb, Drawer 790,
Glenwood Springs, CO 81602 (Certified Mail)

/bls

1513

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

AUG 16 1989

.
.

SECRETARY OF LABOR,
MINE SAFE·ry ANO HEALTH
ADMINISTRA'rION (MSHA),
Petitioner

v.
JUNIOR PHILLIPS, Employed by
SCARAB ENERGY CORPORATION,
Respondent

.
.

CIVIL PENALTY PROCEEDING

..

No. 2 Mine

Docket No. SE 89-10
A.C. No. 40-02611-03563-A

DECISION
Appearances:

Before:

J. Philip Smith, Esq., Office of the Solicitor
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Junior L. Phillips, Clinton, Tennessee, pro se.

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to
Section llO(c) of the Federal Mine Safety artd Health Act of
1977, 30 u.s.c. § 801 et seq., the "Act," charging
Junior Phillips as an agent of a corporate mine operator with
knowingly authorizing, ordering, or carrying out the
corporate mine operator's violation of a mandatory safety
standard under _30 C.F.R. § 1725(a).
The alleged corporate mine operator, Scarab Energy
Corporation (Scarab), was charged with a violation of the
mandatory.safety standard at 30 C.F.R. § 1725(a) under
Citation No. 2789152. The citation alleged as follows:
The 488 S&S Scoop (approval No. 2G-2831-5, Serial
No. 4481951) was not maintained in safe operating
condition in that the 128-volt motor leads and the
control cables were run over the top of the scoop,
and at the center s~ction on the scoop the bearingretaining nut and retaining ring were missing
allowing the center section to 1nove up and down.
The brakes on the scoop were not in operative
condition. This condition was one of the factors
that contributed to the issuance of Imminent Danger

1514

Order No. 2789161 on 6/15/87. Therefore no
abatement time was set. (Defective-for one month.)
The cited standard provides that "mobile and stationery
machinery and equipment shall be maintained· in safe operating
condition and machinery or equipment in unsafe condition
shall be removed from service immediately."
Section llO(c) of the Act provides in part as follows:
Whenever a corporate operator violates a mandatory
health or safety standard ••• , any director,
officer, or agent of such corporation who knowingly
authorized, ordered, or carried out such violation,
failure, or refusal shall be subject to the same
civil penalties, fines and imprisonment that may be
imposed upon a person under subsection (a) and (d).
The evidence set forth by the Secretary at hearing is
essentially undisputed. The Secretary's evidence establishes
that Scarab was indeed a corporate mine operator and that
Junior Phillips at the time of the alleged violation on
June 11, 1987, was an agent of that corporate mine operator.
The undisputed evidence further shows that on June 11, 1987,
at about 5:15 a.m., shuttle car operator William K. Disney
was killed as he was driving a mantrip scoop under an
overcast. The work crew had entered the mine at about
4:45 a.m. that day under the supervision of foreman Kenneth
Jackson. They traveled on a flat bed rail car to the end of
the track then boarded the subject scoop operated by Disney
for transportation to the working section. As the scoop
traveled under the belt overcast in the No. 2 entry of the
001 section, a powered lead placed on top of the scoop was
pinched against an "I" beam supporting the overcast. Disney
reversed the scoop and traveled about two feet backward when
his head was crushed against a second "I" beam.
According to the undisputed testimony of MSHA Special
Investigator Lawrence Layne, Disney's death was caused in
part by the defective condition of the scoop. In particular
Layne noted that the absence of bushings, retainer rings and
nuts on the pin connecting the two sections of the scoop .
allowed the center section to flex 4 to 5 inches. Because of
this f leKing the scoop was unable to pass under the
protruding "I" beam. It was then necessary for Disney to
reverse the scoop thereby causing his head to be crushed
against another "I" beam. This deficiency in the scoop ~as
clearly an unsafe condition, a violation of the cited
standard and of high gravity as evidenced by the resulting
fatality.

1515

The evidence is also undisputed that at the time of the
fatality Junior Phillips was second-in-command at the subject
No. 2 Mine and had served in that capacity during the time
that the scoop had been ope.eating in an unsafe condition.
Phillips was also the direct supervisor of foreman Jackson
and served under mine superintendent Sherman Carroll.
According to MSHA Inspector Don McDaniel either Phillips or
Carroll had informed him that parts had been ordered for the
repair of tne center section of the subject scoop more than a
month before the accident.
Alvin Goad was working as a roof bolter operator at the
time of the accident. He testified that the defective
conditions in the cited scoop had been "general knowledge" at
the mine. He opined that Phillips in particular was aware of
the defective condition of the scoop. He also confirmed that
Phillips was acting in a supervisory capacity at the time of
the accident. The undisputed statement of general laborer
William Gouge further corroborates the evidence that the
center section of the scoop had been defective long before
the accident. Gouge stated that he told Phillips concerning
the condition of the scoop about siK months before the
accident.
Within this fra,nework of undisputed evidence it is clear
that Phillips knew of the defective condition of the cited
scoop at least a month before the fatal accident and failed
to have this scoop removed from service._ It is therefore
clear that he was grossly negligent in his duties as an agent
of the mine operator~ In this regard I have not disregarded
the testimony of Scarab owner Terry Reaves, that Carroll was
superintendent of the_No. 2 mine at the time of the fatality
and that Phillips waa the "number two man" serving under
Carroll at that time. Clearly Phillips was in a position in
which, knowing of the defective condition of the scoop, he
had the authority and responsibility to have the scoop
removed fro1n service until it was in safe wor.1<.ing condition.
In assessing a civil penalty in this case I have also
considered other relevant criteria under section llO(i) of
the Act. Mr. Phillips declined to present any evidence
concerning his financial condition or ability to pay a civil
penalty in this proceeding. The Secretary acknowledges that
there is no history that Mr. Phillips has pre~iously been
subject to proceedings under section llO(c) of the Act.
Under the circumstances I find that the Secretar~'s proposed
penalty of $2,000 is appropriate.

1516

ORDER
Mr. Junior L. Phillips is directed to
penalty of $2,000 within 30 days of-the da
decision.

ay a civil
of this

Law Judge
Distribution:
J. Phillip Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Suite 400,
Arlington, VA 22203 (Certified Mail)
Mr. Junior L. Phillips, Rt. #5, Box 186-A, Clinton, TN
(Certified Mail)
nt

1517

37716

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

AUG 161989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

. CIVIL PENALTY PROCEEDING

Docket No. CENT 88-140-M
A.C. No. 41-02522-05513

v.

Damon Quarry

V H W INCORPORATED,
DECISION
Appearances:

Brian L. Pudenz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Petitioner;
Russell E. Mackert, Esq., Mackert & Garrett,
Houston, Texas, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a),
seeking civil assessments for 17 alleged violations of certain
mandatory safety standards found in Part 56, Title 30, Code of
Federal Regulations. The respondent filed an answer denying the
alleged violations, and a hearing was held in Houston, Texas.
Issues
The issues presented in this proceeding are (1) whether the
respondent has violated the provisions of the Act and implementing regulations as alleged in the proposals for assessment of
civil penalties and, if so, (2) the appropriate civil penalties
that should be assessed against the respondent for the alleged
violations based upon the .criteria set torth in section llO(i) of
the Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.

1518

2.

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

3.

Commission Rules, 20 C.F.R. § 2700.1 et seq.

Stipulations
The parties stipulated in relevant part to the following
(Exhibit AIJ-1):
1. The respondent is subject to the jurisdiction of the
Act, and the alleged violations took place in or involves a mine
that has products which affect commerce.
2. The name of the mine is Damon Quarry, and it is located
near Damon, Texas in Brazoria county. The size of the company is
21,166 production tons or hours worked per year and the size of
the mine is 21,166 production tons or hours worked per year.
3. The imposition of any penalty in this case will not
affect the operator's ability to continue in business.
4. The total number of inspection days in the preceding
twenty-four months is seventeen.
5. The total number of assessed violations (including
single penalties timely paid) in the preceding twenty-four months
is twenty two.
6. On March 10 through April 26, 1988, an inspection was
conducted by MSHA Inspectors James s. Smiser and Robert J.
Kinterknecht, and ·they issued 17 section 104(a) citations. All
of the citations were abated by the respondent.
Findings and Conclusions
Inspector Smiser testified that the respondent is a crushed
stone operator who operates a small surf ace quarry producing
abrasive black limestone from different areas of one pit. He
stated that the respondent employs 12 to 14 miners, has a very
good compliance record,· and has always attempted to address any
safety problems in a timely manner. He characterized the respondent as a small-to-medium sized operator, and stated that the
quarry pit is a small operation. Respondent's mine supervisor
John Duke agreed that the respondent's normal employment consists
of 12 to 14 miners (Tr. 30-31).
Contested section 104(a) non-"S&S'' Citation Nos. 3273935.
3273939, 3273894, and 3273898, are all ''single penalty" citations
which were issued during regular mine inspections on March 10,
and April 21, and 26, 1988. MSHA seeks civil penalty assessments
in the amount of $20 for each of the citations. The respondent

1519

agreed to pay the proposed civil penalties for these citations,
and to withdraw its contests {Stipulation #3 (exhibit ALJ-1; Tr.
6). I considered the respondent's request as a motion to approve
a settlement pursuant to Commission Rule 30, 29 C.F.R. § 2700.30,
and after review of the citations and the pleadings, the motionwas approved from the bench, and my decision in this regard is
herein reaffirmed.
With regard to section 104Ca) ''S&S" Citation Nos. 3273897
and 3273899, issued on April 26, 1988, citing violations of
mandatory safety standards 30 C.F.R. § 56.9002 and 56.5003, the
respondent agreed to pay the full amounts of the proposed civil
penalty assessments of $85 and $98, and to withdraw its contests
and request for a hearing {Tr. 8-9). I considered this request
as a motion for approval of a settlement, and approved it from
the bench. My decision in this regard is herein reaffirmed.
Section 104Ca) "S&S" Citation No. 3273893, was issued by
MSHA Inspector Robert J. Kinterknecht on April 20, 1988, and he
cited a violation of mandatory safety standard 30 C.F.R.
§ 56.12019.
The cited condition or practice states as foliows:
The access to the electrical switch gear in the N.
West wall of the shop was not being maintained in that
misc. diesel motor parts and {l) electrical Toshiba
40 H.P. 4-pole Nema design, serial No. 80905691 was in
the walkway to the switch gear.
Mandatory safety standard 30 C.F.R. § 56.12019, provides as
follows:
"Where access is necessary, suitable clearance shall be
provided at stationary electrical equipment or switchgear."
The evidence establishes that MSHA Inspector James s. Smiser
accompanied Inspector Kinterknecht during the inspection on
April 20, 1989, and that the citation was served on respondent's
mine supervisor, John Duke. Mr. Smiser and Mr. Duke were present
at the hearing, and they testified in this proceeding. Both
Mr. Smiser and Mr. Duke viewed the cited conditions in question,
and petitioner's counsel asserted that the citation should be
reduced to a non-"S&S" citation because the likelihood of an
injury was unlikely, and that the materials which were present in
the area were from an engine which was being dismantled and that
it was a temporary, rather than a continuing condition. The
violation was immediately abated by simply moving the engine
parts to one side.
Petitioner's counsel confirmed that the intent of the
standard is to provide clearance so that someone could have ready
access to the electrical switch controls, and that the presence
of the engine parts did not provide ''straight-line" access.
Although the only conceivable hazard was a tripping hazard if
someone stumbled over the engine parts, counsel confirmed that

1520

there was enough room to go around the parts to access the
switch, and that someone would likely go around the parts to do
this.
Counsel proposed to reduce the proposed civil penalty
assessment of $74 to $20 as a non-"S&S'' single penalty citation,
and Inspector Smiser agreed (Tr. 14-16). I considered the argument presented by petitioner's counsel as a motion for approval
of a proposed settlement pursuant to Commission Rule 30,
29 C.F.R. § 2700.30, and it was approved from the bench (Tr. 16).
My bench decision in this regard is herein reaffirmed, and the
section 104(a) "S&S" citation is modified to a single penalty
non-"S&S" citation. The respondent agreed to pay the modified
civil penalty assessment of $20 for the violation in question,
and to withdraw its contest.
Section 104(a) "S&S" Citation No. 3273896, was issued by
Inspector Kinterknecht on April 26, 1988, and he cited a violation of mandatory safety standard 30 C.F.R. § 56.12032. The
cited condition or practice states as follows:
The Dieplex box on the side of the crusher frame
located just under a transformer was not provided with
a cover plate. There was an orange colored extension
cord plugged into it. This is a 120 VAC.
Mandatory safety standard 30 C.F.R.
follows:

§

56.12032, provides as

Inspection and cover plates on electrical equipment and junction boxes shall be kept in place at all
times except ·during testing or repairs.
Petitioner's counsel stated that the parties proposed to
settle this violation by a slight reduction in the original civil
penalty assessment, from $74 to $60, and that the respondent has
agreed to pay the settlement amount in satisfaction of the violation.
In support of this proposal, counsel stated that after
consulting with the inspectors, they agreed that the box in
question was located out of sight under a transformer, and that
the respondent's negligence was "low" rather than "moderate."
The inspectors also agreed that cover plates were in place on·
other equipment, and that the plate in question had been removed
for some unexplained reason, and simply not replaced (Tr. 17).
Abatement was achieved immediately by the replacement of the
cover plate. The proposed settlement was approved from the
bench, and my decision in this regard is herein reaffirmed (Tr.
17) .

1521

Section 104(al "S&S" Citation No. 3273937, was issued by
Inspector Kinterknecht on March 10, 1988, and he cited a violation of mandatory safety standard 30 C.F.R. § 56.14001. The
cited condition or practice states as follows:
The head pulley on the shaker belt was not
guarded, thus exposing a pinch point to persons that
would have to work around this area cleaning up and
maybe grease (sic) and maintenance work (sic).
Mandatory safety standard 30 C.F.R. § 56.14001, requires
that pulleys and similar exposed moving machine parts which may
be contested by persons, and which may cause injury to persons,.
be guarded.
Resnondent•s Mine Supervisor John Duke testified that the
unguarded pulley belt in question was located out of reach and
approximately 10 feet above a platform on which the shaker was
located. He confirmed that while one could stand on the shaker
and reach the belt, no one is permitted to stand on a vibrating
shaker at any time, and that any maintenance work which would
place someone in close proximity to the belt while standing on
the shaker would only be done while the equipment was deenergized
and inoperative (Tr. 18-20).
Inspector Smiser, who accompanied Inspector Kinterknecht
when he issued the citation, agreed with Mr. Duke's testimony and
~greed that it would be unlikely that anyone would come in contact with the unguarded belt during the normal operation of the
shaker (Tr. 20-21).
Petitioner's ·counsel stated that in view of the fact that it
was unlikely that anyone would contact the unguarded belt and
sustain an injury, he proposed to modify the citation to a non"S&S" citation, and to reduce the civil penalty assessment from
$136 to $20. Respondent's counsel joined in the motion, and
agreed that the respondent would pay the modified civil penalty.
Upon further consideration of the proposed settlement disposition
for this citation, it was approved from the bench (Tr. 21) . My
bench decision in this regard is herein reaffirmed.
Section 104(a) "S&S" Citation Nos. 3062190, 3062191, and
3062192, were issued sequentially by Inspector Smiser on
March 17, 1988, after he found that three motors on a shaker
conveyor were not being ~rotected against excessive overloads by
fuses of the correct type and capacity. Two of the motors were
7.5 horsepower, and the third one was a 5 horsepower motor, and
they were all protected by one 100 amp. fused disconnect.
Inspector Smiser cited violations of mandatory safety standard
30 C.F.R. § 56.12001, which requires that all circuits be protected against excessive overloads by fuses or circuit breakers
of the correct type and capacity.

1522

Petitioner's counsel stated that the parties proposed to
settle these violations by joining the three citations into one
citation which would be assessed at $136, and that the inspector's "S&S" finding would stand (Tr. 21-22). Counsel proposed to
vacate Citation Nos. 3062191 and 3062192, and to modify Citation
No. 3062190, to include all three of the cited motors, and that
this citation will be affirmed as an "S&S" citation, and assessed
a civil penalty in the amount of $136 (Tr. 29).
Inspector Smiser confirmed that he issued the citations
after finding that the three motors were being protected by one
100 amp. disconnect fuse system rather than three individual
fuses, and that this was contrary to the National Electrical Code
which requires individual fuse protection for each motor. He
stated that protecting each of the motors by one large 100 amp
fuse disconnect would not afford adequate short circuit protection for each of the motors, and that section 75.12001 requires
circuits to be protected against excessive overload by fuses of
the correct type and capacity.
Mr. Smiser stated that the hazard presented involved inadequate short circuit protection which could result in an electrical shock should anyone touch any energized equipment frames. He
agreed that such a hazard would only be present in the event of a
fault condition, which may cause a short circuit in the motors.
Mr. Smiser confirmed that the violations were timely abated
by the respondent by providing adequate fuse protection for each
of the individual motors. Although he extended the abatement
times because of the difficulty encountered by the respondent in
obtaining the nec~ssary parts to correct the conditions, he
confirmed that the respondent exercised good faith in correcting
the conditions.
Mr. Smiser confirmed that all of the conditions cited in the
three individual citations were all the result of one violation,
namely, the failure to provide fuses of the correct capacity to
protect the motors from short circuits. He also confirmed that
he issued three separate violations because of office policy, but
agreed that the issuance of one citation incorporating the same
violative conditions with respect to each of the motors would
effectively take care o~ the problem.
With regard to the proposed settlement by vacating Citation
Nos. 3062191 and 3062192, and incorporating the conditions as
part of Citation No. 3062190, Mr. Smiser expressed agreement with
this proposal and confirmed that it was a reasonable resolution
since all of the citations essentially stemmed from one common
violative condition. Mr. smiser also agreed that payment of the
full amount of $136 for "S&S" Citation No. 3062190, as amended,
to incorporate the two other motors was reasonable and that he

1523

would have no objection to the proposed settlement disposition
for the three citations which he issued (Tr. 22-29).
The proposed settlement was approved from the bench (Tr.
29), and my bench decision in this regard is herein reaffirmed.With regard to section 104(a) Citation Nos. 3273934,
3273936, 3273938, 3273887, and 3273895, the parties agreed to
settle these violations. The respondent agreed to pay the full
amount of the proposed civil penalty assessment of $74, for
Citation No. 3273895. With respect to the remaining citations,
the parties proposed to settle these citations by reducing the
proposed civil penalty assessment of $85 to $75 for Citation
No. 3273938: $112 to $100 for Citation No. 3273887; $112 to $100
for Citation No. 3273934; and $136 to $68 for Citation
No. 3273936.
In support of the proposed settlements, Inspector
Kinterknecht testified as to the facts and circumstances surrounding the issuance of the violations, and he confirmed that
all of the violations were timely abated by the respondent, and
that they all resulted from moderate negligence on the part of
the respondent. He also testified as to certain mitigating
factors in support of the proposed settlement reductions, and
confirmed that he was in agreement with the proposed settlement
dispositions for all of these violations (Tr. 7-25). The proposed settlements were approved from the bench, and my decision
in this regard is herein reaffirmed (Tr. 33).
ORDER
On the basis.of the foregoing findings and conclusions, and
taking into account the civil penalty criteria found in section
llO(i) of the Act, I conclude and find that the approved settlement dispositions for the violations in question are reasonable
and in the public interest. The respondent IS ORDERED to pay to
MSHA the following civil penalty assessments for the violations
which have settled and affirmed, and payment is to be made within
thirty (30) days of the date of this decision.
Citation No.

Date

30 C.F.R. Section

Assessment

3273934
3273935
3273936
3273937
3273938
3273939
3062190
3273887
3273893
3273894

03/10/88
03/10/88
03/10/88
03/10/88
03/10/88
03/10/88
03/17/88
04/07/88
04/20/88
04/21/88

56.14001
56.12032
56.14007
56.14001
56.14003
56.12013
56.12001
56.14003
56.12019
109)a) Act)

$100
$ 20
$ 68
$ 20
$ 75
$ 20
$136
$100
$ 20
$ 20

1524

3273895
3273896
3273897
3273898
3273899

04/20/88
04/26/88
04/26/88
04/26/88
04/26/88

56.12008.
56.12032
56.9002
56.15002
56.5003

$ 74
$ 60
$ 85
$ 20
$ 98

Citation Nos. 3062191 and 3062192, ARE VACATED.

,f/0-t,,
,,; Ir;{~
G~~/A. ~K~utras
Administrative Law Judge

Distribution:
Brian L. Pudenz, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Russell E. Mackert, Esq., Mackert & Garrett, 2024 Bissonnet,
Suite E, Houston, TX 77005 (Certified Mail)
/fb

1525

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

AUG 171989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
HELEN MINING COMPANY
Respondent

.
.
.

CIVIL PENALTY PROCEEDING

:

Homer City Mine

Docket ~o. PENN 88-312
A.C. No. 36-00926-03753

.
DECISION

Appearances:

Sef ore:

Judith L. Horowitz, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner~
Ronald B. Johnson, Esq., Volk, Franovitch,
Anetakis, Recht Robinson & Hellersted, Wheeling,
West Virginia, for Respondent.

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801, et seq, (the Act).
Pursuant to notice, a hearing was commenced in Pittsburgh,
Pennsylvania on June 27, 1989. At that hearing, prior to the
taking of any testimony, the parties proposed a settlement
agreement. The petitioner proposed reducing the specially
assessed penalty for Order ?>Jo. 2888642 from $600 to $300 based on
reducing the negligence factor from "high" to "moderate" and
therefore modifying the section 104(d)(2) order to a citation
issued under section 104Ca> of the Act. I approved that motion
on the record at the hearing.
t have considered this matter in that light and under the
criteria for civil penalties contained in section llOCi) of the
Act and I conclude that the proffered settlement is appropriate
under the circwnstances.

'Pursuant to the Rules of Practice before this Commission,
this written decision confirms the bench decision I rendered at
the hearing, approving the settlement.

1526

Since the respondent already paid the $600 civil penalty
originally assessed by mistake, and only $300 is actually owed,
respondent should be given a $300 credit by MSHA, and upon such
credit, this proceeding IS DISMISSED.

/J
Ji l 1l
.'
1Zl~./-f'' 'V ~

Roy J • ';Majlr er

Admintjt~ative Law Judge

Distribution:
Judith L. Horowitz, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Ronald B. Johnson, Esq., Volk, Franovitch, Anetakis, Recht,
Robertson & Hellersted, 3000 Boury Center, Wheeling, WV 26003
(Certified Mail)
/ml

1527

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

AUG 2 2 1989
ARNOLD R. SHARP,
complainant
v.

DISCRIMINATION PROCEEDING
:

Docket No. KENT 89-70-D
MSHA Case No. PIKE CD 89-02

BIG ELK CREEK COAL COMPANY,
Respondent
DECISION
Appearances:

Arnold Sharp, Bulan, Kentucky, pro se, for the
Complainant;
Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs,
Louisville, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a pro se discrimination complaint
filed by Mr. Sharp with the Commission on January 25, 1989,
against the respondent pursuant to section 105(c) of the Federal
Mine Safety and Health Act of 1977. Mr. Sharp initially filed
his complaint with the Secretary of Labor, Mine Safety and Health
Administration (MSHA), at its Hazard, Kentucky Field Office, on
November 3, 1988. In a statement executed by Mr. Sharp on that
day on an MSHA complaint form, he made the following complaint:
M. c. Couch, Jim Neece (sic), and Big Elk Coal co.,
Inc., are harassing me because I have missed work to
stay home to take care of my sick wife. She is confined to bed rest and under a doctor's care. I have
notified management and taken them a statement from the
doctor. They still call my residence and harass me and
my family, saying that this is no excuse for me to miss
work. I want the harassment to stop.
MSHA conducted an investigation of Mr. Sharp's complaint,
and by letter dated January 12, 1989, advised him that on the
basis of the information gathered during the course of its
investigation, a violation of section 105(c) of the Act had not

1528

occurred. Mr. Sharp pursued his complaint further with the
Commission, and filed it on January 25, 1989, stating as follows:
"I disagree with MSHA determination and I'm asking for all
expenses and damage (sic) in case number PIKE CD-89-02."
The respondent filed an answer to the complaint denying that
it has harassed Mr. Sharp for any reason, including his staying
home to take care of his sick wife. Respondent asserted that it
took reasonable action in handling Mr. Sharp's absences from
work, including the absences attributed to his wife's illness.
A hearing was held in Pikeville, Kentucky, on May·16, 1989,
and the parties appeared and participated fully therein. The
parties filed posthearing briefs, and I have considered their
respective arguments in the course of my adjudication of this
matter. I have also considered all oral arguments and representations made by the parties on the record during the course of
the hearing.
Issues
The critical issue presented in this case is whether or not
the respondent's alleged harassment of Mr. Sharp in connection
with his absences from work was motivated in whole or in part by
any protected safety activities on the part of Mr. Sharp. I take
note of the fact that in his complaint filed with MSHA, as well
as the Commission, Mr. Sharp does not allege that the alleged
harassment by the respondent was in any way "safety related."
His complaint simply states that the alleged harassment resulted
from Mr. Sharp's missing work to stay home with his sick wife.
However, during the course of the hearing, Mr. Sharp alleged, for
the first time, that the respondent harassed him for missing work
because it sought to punish his wife for preparing a brief on his
behalf in connection with an earlier discrimination proceeding
which he initiated against the respondent, and that the respondent harassed him for missing work in order to retaliate against
him for filing several prior discrimination complaints against
the respondent. These and other issues raised by Mr. Sharp
during the course of the hearing are identified and discussed in
the course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seq.
2. Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1), (2) and
( 3) •

3.

Commission Rules, 29 C.F.R.

1529

§

2700.l et seq.

Complainant's Testimony and Evidence
Complainant Arnold Sharp testified that he took his wife to
the hospital emergency room on October 28, 1988, when she became
ill, and also took her back on October 30, when her condition
worsened. He took her to the family doctor on October 31, who
prescribed bed rest, gave her medication, and advised her that
she needed a back operation because of a ruptured disk and
pinched leg nerve condition. He stated that he tried to hire
people to take care of his wife while she was restricted to bed
so that he could work, but that he could not find anyone to stay
with her (Tr. 16).
Mr. Sharp stated that he telephoned the respondent on
November 1, 1988, and spoke to Mr. Jim Meese at his office in
Lexington, and advised him that he needed to be off work "a few
days" to stay with his wife, and that Mr. Meese told him that he
could be off work as long as he had a doctor's statement attesting to his wife's condition. Mr. Sharp stated that he obtained a
doctor's statement and took it to the mine office at Isom,
Kentucky, and gave it to Mine Superintendent M. c. Couch's secretary, Gloria. When asked to produce a copy of the statement,
Mr. Sharp stated that had lost it (Tr. 17-19).
Mr. Sharp stated that Mr. M. c. couch telephoned him at home
on November 1, 2, and 3, 1988, and advised him that "my place was
at work, not home with my wife." Mr. Sharp stated that Mr. Couch
also stated to him that "Doctor's statements don't mean shit to
him. He could care less if my wife lived or died" (Tr. 20) .,
Mr. Sharp confirmed that after taking a doctor's statement to the
mine office on November 1, he took off work, and Mr. Couch kept
calling him, and that his wife would listen in on the calls
through a cordless telephone in her bedroom (Tr. 21).
Mr. Sharp stated that as a result of Mr. Couch's telephone
calls, he filed a complaint with MSHA on November 3, 1988, and
also swore out a warrant against him for harassment because the
telephone calls were upsetting his wife. Mr. Sharp explained the
status of his court complaint against Mr. Couch and he stated
that the state district court judge informed him that the matter
belonged in the criminal circuit court and that "its turned over
to my attorney right now, but we ain't never filed it in court
yet" (Tr. 23). Mr. Sharp confirmed that the district court
dismissed his case, but that he intends to pursue it in the
circuit court (Tr. 25).
Mr. Sharp stated that after leaving court on November 16,
1988, Mr. Couch called him and changed his working hours from
6:00 p.m. to 4:00 a.m. to 5:00 p.m. to 3:00 a.m., and reassigned
him (Tr. 24). Mr. Sharp stated that Mr. Couch changed his working hours "to keep me from helping my wife with the kids of an
evening, getting them from school. So I couldn't help her none

1530

of an evening" (Tr. 26). Mr. Sharp confirmed that he worked
these new hours until he was fired on February 28, 1989 (Tr. 27).
Respondent's counsel raised an objection to Mr. Sharp's
testimony concerning the steam jenny on the ground that he filed
a subsequent MSHA complaint on February 8, 1989, PIKE CD 89-07,
claiming that his assignment to the steam jenny was in retaliation for filing the November 3, 1988 complaint which is the
subject of the instant case (Exhibit R-6).
Counsel stated that
MSHA dismissed his complaint, and Mr. Sharp stated that he did
not appeal the dismissal of his complaint (Tr. 28-30; 35).
Mr. Sharp confirmed that he did not work for 2 weeks, from
November 1, 1988, through November 14, 1988, and stayed home with
his wife, and that he returned to work on November 15, 1988 (Tr.
32). He contended that when he returned to work, his new foreman
Mack Cornett informed him that his job was to "steam jenny," and
that he performed these duties until he was fired (Tr. 33). He
claimed that he was taken off his job as a truck driver, and was
assigned as a laborer in order to harass him "because I was off
with my wife, because she took sick" and "because I filed that
complaint on the 3rd of the month" (Tr. 34).
When asked to produce any evidence of his claim of harassment while he was off work for the 2-week period and home with
wife, Mr. Sharp referred to certain notes which he kept concerning his work duties after he returned to work, and he stated that
the harassment began after he returned to work on November 15,
1988 (Tr. 39-40). When asked whether he viewed these job assignments after he returned to work as harassment, Mr. Sharp replied
"No," but again referred to the matter of being required to
"steam jenny" in ~reezing weather (Tr. 40-41).
The notes produced by Mr. Sharp were daily notes made during
November and December, 1988, and January 1989, and one noted item
dated November 28, 1988, concerned an unexcused absence given to
him that day when Mr. Sharp took his wife to a doctor for a
checkup (Tr. 41). Mr. Sharp explained that his job foreman
Harlan Couch, (not related to M. c. Couch), gave him an unexcused
absence after he called in to advise that his wife was sick, and
that he did so in order to harass him because his wife wrote up
the brief in one of his earlier discrimination cases, and in
spite of the fact that he produced a doctor's excuse for that
absence. Mr. Sharp also stated that Harlan Couch told him "Don't
lay out no more or you will be fired" (Tr. 42-45; 49).
Mr. Sharp produced a memorandum dated October 27, 1988,
addressed to all mine employees from M. c. Couch, advising them
that they must advise the off ice when they know they are going to
be late or off work, and must produce a written doctor's excuse
when going to a doctor. Mr. Sharp identified this memorandum as
the respondent's work absence policy, and he asserted that prior

1531

to this, respondent had no rules regarding work absences, and
that employees could take off without calling in or producing a
doctor's excuse (Tr. 50).
Mr. Sharp stated that mine employee J. R. Deaton missed 33·
work days in the past 5 months and was not required to produce a
doctor's excuse. Mr. Sharp stated that he did not know the
reason for Mr. Deaton's absences, and stated that "he just took
off any time he wanted to" (Tr. 51). He also stated that
employee Jack Johnson missed 2 weeks of work, but did not know
why (Tr. 52). Mr. Sharp further identified employee Rick Stacy
as an individual who told him that he missed 3 days of work and
was charged with unexcused absences for those days and was told
that he would be laid off for 3 days after his third unexcused
absence (Tr. 53).
Mr. Sharp confirmed that the respondent fired him after he
missed work with strep throat, and that he has a pending complaint with respect to the discharge (Tr. 55).
Mr. Sharp referred to a November 8, 1988, letter mailed to
him by Mr. Jim Meese, and he claimed that Mr. Meese advised him
that he would give him a leave of absence to stay home with his
wife (Tr. 56). Mr. Sharp also produced a copy of a letter which
he stated was drafted by his attorney, and then rewritten by
Mr. Sharp, concerning his need to have time off work (exhibit
C-3). Mr. Sharp stated that a copy of this letter was sent to
Mr. Meese (Tr. 57-60).
Mr. Sharp stated that he requested Mr. Meese to give him
until November 14, 1988, to advise him further as to his need for
a leave of absence, and after taking his wife to the doctor again
on that day, he went back to work the next day and did nothing
about Mr. Meese's suggestion that he take a leave of absence
"because I didn't need it" (Tr. 62). Mr. Sharp stated that he
did not in fact take a leave of absence and did not inform
Mr. Meese that he did not need it because "I went back to work.
There wasn't no use to tell him that" (Tr. 62).
Mr. Sharp produced copies of his payroll records, and he
contended that they establish that pursuant to the respondent's
work "show up" pay policy, he was required to work 2 hours before
being sent home for lack of work, while other employees were
allowed to go home and receive 2 hours pay without being required
to work. Mr. Sharp cited November 16, 19, and 23, 1988, as days
he was required to work before being sent home pursuant to this
policy (Tr. 65-68).
On cross-examination, Mr. Sharp stated that he was not aware
that as of the end of October 1988, he had missed 56 days of
work, but was aware that "I missed with a broke foot," and he
denied that anyone had ever discussed his absenteeism with him

1532

(Tr. 70). Mr. Sharp could not recall speaking with Mr. Meese on
October 24, and 26, 1988, about being off work on October 28,
1988, to watch his daughter perform as a cheerleader (Tr. 72).
He confirmed missing 2 weeks of work, beginning on October 31,
1988, to be with his wife when she was sick because he had no one
to take care of her (Tr. 72).
Mr. Sharp confirmed that when he was off work on October 31
and November 1, 1988, he advised Mr. Meese that he would go to
work if he could find someone to stay with his wife, but after
trying, he could find no one to stay with her (Tr. 72-73).
Mr. Sharp denied that he told Mr. M. c. Couch's secretary
that he was going "to shut the company down" when he took her a
doctor's statement on November 1, 1988, but admitted telling her
that he was going to "indict" Mr. Couch for making false statements against him (Tr. 73). Mr. Sharp confirmed that he swore
out a warrant against Mr. Couch for upsetting his wife with
telephone calls threatening to fire him (Tr. 75). Mr. Sharp
confirmed that his complaint against Mr. Couch was dismissed and
voided by the district court judge, and although the court's
order advised him to file his action in the circuit court,
Mr. Sharp confirmed that he has not done so (Tr. 77).
Mr. Sharp confirmed that when he returned to work his pay
rate remained the same (Tr. 77). He confirmed that his wife has
not had an operation, and that Mr. Harlan Couch informed him at
the end of November, 1988 that if he missed any further work
because of his wife's condition he would be fired (Tr. 80).
Mr. Sharp confirmed that Mr. M. c. Couch spoke with him on
November 1, 2, and 3, 1988, about his absences, and that on each
occasion told him that he could "care less about my wife, if she
lived or died, that wasn't his problems, that was mine, and he
could care less. My place was at work, not home with her, taking
care of her" (Tr. 84).
Mr. Sharp stated that he made notes concerning Mr. Couch's
comments about his wife, and after producing them, he admitted
that he prepared them "a couple of weeks ago" from his original
notes which he did not have with him (Tr. 85). He explained that
his original notes which were made the day that Mr. Couch called
him "got folded up in a drawer and wadded up" and that is why he
copied them down (Tr. 87).
Mr. Sharp confirmed that he spoke to M. c. Couch on
October 28, 1988, and told him that he needed the day off because
his wife had to be taken to the emergency room. Mr. Sharp stated
that Mr. Couch told him to either come to work or be fired, and
Mr. Sharp stated that he made no notes of this conversation (Tr.
87) .

1533

Mr. Sharp produced copies of documents, showing that he was
off for 2 days on January 9, and 10, 1989, with the flu and that
he was granted excused leave for January 9, when he produced a
doctor's excuse, but was charged with an unexcused absence for
January 10. The "slip" for that day contains a notation that
Mr. Sharp did not call the office, and he claims that he did. He
asserted that he called the office on January 9, and informed the
respondent that he would be off for 2 days, and that Mr. Harlan
Couch advised him that he was supposed to call on each day (Tr.
90) •
Mrs. Imogene Sharp, the complainant's wife, testified that
on October 28, 1988, her husband took her to the emergency room
after she became ill, and when they returned home, her husband
called the mine office at Isom, Kentucky, and asked to speak to
Mr. M. c. Couch. Mr. Couch returned his call while her husband
was picking up their children from school, and she advised
Mr. Couch that her husband had to be off work that evening
because she had been taken to the emergency room. Mrs. Sharp
stated that Mr. Couch told her that "you tell Arnold he needs to
be at work tonight or else he's fired" (Tr. 92).
Mrs. Sharp stated that when her husband returned home, he
called Mr. Couch, and that after Mr. Couch told him "you're to be
at work tonight, or you're fired," her husband reported for work
that evening. Mrs. Sharp stated that she has a ruptured disk,
and that her condition worsened, and that she visited her family
doctor Elmer Ratliff, on October 31, 1988, and he advised her to
stay in bed, and that she would require further tests and x-rays
(Tr. 92) •
Mrs. Sharp stated that her husband called Mr. Couch on
November 1, 1988, and informed him that he needed to be off work
that day, but that Mr. Couch would not let him off and "Arnold
hung the phone up" and called Mr. Jim Meese who informed him that
he could take the day off if he had a doctor's statement documenting Mrs. Sharp's condition. Mrs. Sharp stated that her
husband obtained the doctor's statement and took it to the mine
office that day, but that Mr. Couch continued to call Mr. Sharp,
and told him that if he didn't come to work he would be fired
(Tr. 93). Mrs. Sharp stated that she was aggravated because
Mr. Meese told her husband he could take off work, and Mr. Couch
threatened to fire him. She confirmed that her husband received
a letter from Mr. Meese concerning his need to be off work, and
that Mr. Sharp obtained a·warrant against Mr. Couch because she
was upset, and to keep him from calling her home about her
husband.
Mrs. Sharp confirmed that she typed the brief filed by her
husband in his first discrimination case, and she believed that
she was resented because of this and her husband was being
harassed and punished (Tr. 95). Mrs. Sharp stated that she

1534

phoned the mine office on February 15, 1989, and left a message
for her husband to come home because she was sick, but that he
never received the message (Tr. 96). She believed that her
husband was being harassed because Mr. Couch threatened to fire
him (Tr. 98).
Mrs. Sharp confirmed that her husband missed 69 days of work
in 1 year, which "couldn't have been helped," and she believed
that he was not being treated equally because "he's not the only
one who missed work" (Tr. 98-99). Mrs. Sharp confirmed that her
husband told her that Mr. J. R. Deaton missed 33 days of work in
the past 5 months, and that Mr. Richard Sexton fell off a horse
and missed 6 months of work with a broken foot (Tr. 100). She
also confirmed that some of the 69 days of missed work by her
husband was due to the fact that he broke his foot, and that the
2-weeks of missed work which is at issue in this case resulted
from the fact "that he was off with me" (Tr. 101). Mrs. Sharp
also believed that another employee, Danny Napier, missed work
when his wife had an operation (Tr. 101).
In response to further questions, Mrs. Sharp stated that
when Mr. Couch spoke with her husband over the telephone he made
the statement that the doctor's excuse "didn't mean shit," and
that she listened in on the conversation on another occasion when
Mr. Couch stated that "he didn't care if she lived or di£d. 11 (Tr.
104). She confirmed that on this occasion, Mr. Sharp and
Mr. Couch were arguing with each other and that she started to
cry (Tr. 104).
Mrs. Sharp stated that Mr. Meese gave her husband permission
to be off work for 2 weeks, and that Mr. Meese did not state that
this was contingent on Mr. Sharp bringing in doctor's slips (Tr.
106). Mrs. Sharp believed that the telephone calls to her home
were made because the respondent resented her for writing her
husband's brief in a prior case, and that Mr. Couch's calls were
made to harass her because they were always made when her husband
left home to pick up their children (Tr. 107). Mrs. Sharp also
believed that Mr. Meese gave her husband permission to stay home
from work to take care of her as long as her husband supplied a
doctor's excuse attesting to her condition (Tr. 108-109).
Respondent's Testimony and Evidence
James Meese testified that he is employed by the respondent
in its Lexington, Kentucky office, and that he is in charge of
administration. He stated that he was at the mine site on
Monday, October 24, 1988, and on his way back to Lexington he
encountered Mr. Sharp at a gas station in Isom, Kentucky.
Mr. Sharp spoke to him and requested to be off on Friday,
October 28, and Mr. Meese told Mr. Sharp to take it up with his
foreman Harlan Couch.

1535

Mr. Meese stated that he subsequently received a telephone
call from Mr. Sharp on Wednesday, October 26, 1988, and Mr. Sharp
informed him that Mr. M. c. Couch had denied his request to be
off on Friday. Mr. Meese stated that it was his understanding
that Mr. Sharp wanted the day off to attend a school event with·
his daughter, and at that time, Mr. Sharp had missed approximately 56 days of work.
Mr. Meese stated that Mr. Sharp called him again on Friday,
October 28, and again informed him that Mr. Couch would not give
him the day off. Mr. Sharp further informed Mr. Meese that he
had a doctor's appointment that evening and did not know whether
he would be able to report to work. Mr. Meese again informed
Mr. Sharp to take it up with his supervisor, and Mr. Meese called
Mr. Couch to advise him of Mr. Sharp's calls. He also suggested
to Mr. Couch that he call Mr. Sharp to determine whether he was
going to report to work, and Mr. Meese confirmed that Mr. Sharp
did in fact report to work {Tr. 114-117).
Mr. Meese stated that Mr. Sharp called the mine office on
Monday morning, October 31, 1988, and "reported off" for that
day, as well as Tuesday, November 1, and that he stated that "he
needed to attend to his wife at home. He was going to get some
sort of doctor's slip" {Tr. 118). Mr. Sharp did not report for
work on October 31.
Mr. Meese stated that Mr. Couch telephoned Mr. Sharp on
Tuesday morning, November 1, to check on his leave status.
Mr. Sharp called Mr. Meese that same day and advised him that he
was taking his wife to the doctor and was not going to come to
work {Tr. 118). Mr. Meese stated that Mr. Sharp again telephoned
him on two more occasions on Tuesday and advised him that his
wife was confined to bed rest and that he would try to find
someone to sit with her, but that he was not coming to work.
Mr. Meese called Mr. Sharp back and advised him to obtain a
doctor's excuse for his absences {Tr. 119).
Mr. Meese stated that he and Mr. Couch jointly decided to
excuse Mr. Sharp's absence of October 31, and Mr. Meese advised
Mr. Sharp that he could be off that day, as well as November 1st
{Tr. 120) .
Mr. Meese stated that on Wednesday, November 2, 1988,
Mr. Sharp brought a doctor's excuse to the mine office, and the
excuse indicated that his wife would need bedrest for at least a
week (Tr. 120). At that time, Mr. Sharp informed the office
secretary, Gloria Stacy, that he would not be at work that evening and he "reported off." Mr. Meese telephoned Mrs. Sharp's
doctor on the morning of November 2, to ascertain whether the
doctor believed that Mrs. Sharp needed around the clock attention. Mr. Meese stated that the doctor said nothing about
Mrs. Sharp's condition, and with respect to whether she needed

1536

daily attention, stated to Mr. Meese "That's something you'll
have to work out with your employee. I cannot tell you one way
or the other, if she needs it or not" (Tr. 122).
Mr. Meese stated that he was present when Mr. Couch tele- ·
phoned Mr. Sharp on November 2, and advised him to have someone
stay with his wife so he could come to work. Mr. Couch also
advised Mr. Sharp that the doctor's excuse was for his wife and
that he was expected to do his job and to be at work. Mr. ~eese
stated that he never heard Mr. Couch state that he didn't care
whether Mrs. Sharp lived or died, and did not hear him use any
curse words (Tr. 123).
Mr. Meese stated that after Mr. Couch called Mr. Sharp,
Mr. Sharp called his office, and they exchanged several calls
that same day. Mr. Sharp advised him that he was swearing out a
criminal complaint against Mr. Couch for harassment, and stated
that he had the right to stay home with his wife. Mr. Meese
stated that he reminded Mr. Sharp that he had taken time to find
someone to stay with his wife and needed to pursue this search
(Tr. 124).
Mr. Meese confirmed that he was again present when Mr. couch
telephoned Mr. Sharp on November 3, 1988. He explained that
Mr. Sharp had called the mine office that morning and advised
Mrs. Stacy that he had filed an MSHA complaint and would not
report to work. Mr. Sharp advised Mr. Couch that he filed the
complaint because he was being harassed. Mr. Couch and Mr. Meese
advised Mr. Sharp that "we have a rock truck sitting, we have a
job open, we feel that you have had plenty of time to find someone to sit with your wife, and we just reminded him of those
facts" (Tr. 126). ·
Mr. Meese stated that during Mr. Sharp's initial absences
from October 31 to November 3, 1988, his truck was parked, but he
was not replaced because management did not know exactly when he
would be returning to work (Tr. 127). Mr. Meese confirmed that
he wrote Mr. Sharp a letter on November 8, 1988, after Mr. Sharp
called the mine office on November 7, and advised that he would
have to be off another week because he had taken his wife to the
doctor again, and she would be confined to bed for a week.
Mr. Meese stated that he had spoken to Mr. Sharp about
taking a leave of absence, and asked Mr. Sharp to provide him
with a firm date for his return to work. After Mr. Sharp failed
to respond, Mr. Meese decided to send him the letter concerning a
leave of absence (Tr. 128, exhibit R-3).
Mr. Meese confirmed that he received a letter dated
November 10, 1988, from Mr. Sharp on November 14, and on
November 15, Mr. Sharp called him at his office and informed him
that he would be returning to work that evening, but that his

1537

wife would need to return to the doctor on November 28, that she
may need an operation, and that he may have a need to be off in
the future, but was unclear and did not know for certain (Tr.
129, exhibit R-4).
Mr. Meese stated that he wrote Mr. Sharp a letter on
November 15, 1988, and informed him that his absences disrupted
the scheduling of equipment, that he failed to give management a
timely response with respect to his absences, and that he was
being reassigned to another position "until he could get this
situation worked out" (exhibit R-5, Tr. 130).
Mr. Meese stated that no action has been taken against
Mr. Sharp because of any safety complaints on his part, or
because of his filing of discrimination complaints against the
company (Tr. 131).
Mr. Meese stated that he was aware of one employee who was
off work for 2 days when his wife gave birth, but he could not
recall the employee's name. Mr. Meese confirmed that he knew
J. R. Deaton, as a mine employee, but in the absence of his
attendance records, he had no knowledge as to whether he had any
absences from work. Mr. Meese had no independent recollection of
any absences by employees Jack Johnson and Richard Sexton, but
confirmed that he would be aware of any leave problems if they
were off for any extended periods of time (Tr. 132-133).
Mr. Meese stated that employees with excessive absenteeism
are notified of their absences by certified mail, as was
Mr. Sharp, and that similar letters have been sent to other
employees. Mr. Meese stated that his November 15, letter to
Mr. Sharp was part of his effort to deal with his work attendance
(Tr. 134).
Mr. Meese explained the respondent's "two hour show up pay"
procedure, but stated that he was not clear as to the exact
policy, and was not aware of the particular circumstances concerning Mr. Sharp and this policy. Mr. Meese stated that as a
general rule, an employee who reports for work when major machinery is down and there is no work for him to do is sent home with
2 hours of pay. The question of how each employee is treated
with respect to this policy depends on the nature of his job and
is discretionary with the employee's foreman (Tr. 135-136).
Mr. Meese confirmed that when Mr. Sharp came to work on
November 15, he was assigned to a laborer's position and operated
a steam jenny from time to time (Tr. 137). He denied that he
took any action against Mr. Sharp because his wife wrote a brief
in connection with his prior discrimination complaint. He also
denied ever telling Mr. Sharp, or instructing anyone else to tell
him, that he was on a leave of absence for an indefinite period
of time. He also denied having any conversations with Mrs. Sharp

1538

about Mr. Sharp's leave, except for one telephone call in which
he left a message for Mr. Sharp to call him back. He denied
saying anything to Mrs. Sharp indicating that Mr. Sharp could
have any time off (Tr. 138).
During his cross-examination of Mr. Meese, Mr. Sharp stated
that mine employee Richard Sexton missed 6 months of work with a
broken foot and crushed leg which he sustained when he got drunk
and fell off a horse (Tr. 141). Mr. Sharp also indicated that
mine employee J. R. Deaton missed 33 days of work in the last
5 months, and that Jack Johnson missed 2-1/2 weeks in February,
1989, because he was sick (Tr. 143).
When asked why he did not produce these two individuals for
testimony in this case, Mr. Sharp replied that "both of them is
mixed up in Labor cases, and they say they don't want to get them
mixed up in that." Mr. Sharp conceded that he never attempted to
subpoena these individuals (Tr. 144).
Mr. Sharp also questioned Mr. Meese about employees Bony
Banks and Ricky Stacy, missing work to be with their wives in an
emergency, and Mr. Meese stated that he had no knowledge of these
matters (Tr. 145, 150). He also denied any personal knowledge of
the circumstances concerning Mr. Sexton, Mr. Deaton, and
Mr. Johnson without reviewing their employment records (Tr. 152).
Mr. Meese denied that mine management required Mr. Sharp to
steam clean coal equipment knowing he would become ill in order
to punish him (Tr. 148). He also denied ever telling Mr. Sharp
that he would steam clean equipment as long as he worked for the
respondent, and that he would continue to harass him (Tr. 153).
In response to further questions, Mr. Meese stated that the
respondent's leave policy was reduced to writing in letter form,
and that it was a restatement of prior unwritten policy which
required employees to call in and bring in doctor's excuses
(Exhibit C-2; Tr. 154). He confirmed that under this policy an
employee would state the time period he will need to be excused
from work so that the respondent can work out a schedule to cover
his work and position, and that any leave of absence granted by
the respondent would be without pay. He also confirmed that the
respondent was willing to work this out with Mr. Sharp (Tr.
154-155).
Mr. Meese stated that Mr. Sharp missed 41 days of work
during January and February, 1988, when he broke his foot in a
home accident, and that he had scattered absences during the
remainder of the year, for a total of 69 absences for 1988 (Tr.
160). Mr. Meese stated that absences resulting from job related
injuries for which an employee receives workmen's compensation
are excused absences and are treated differently from non-work

1539

injury related absences under the respondent's leave policy (Tr.
163).
Mr. Meese stated that the respondent has no written formal
leave discipline policy, but that employees do receive warnings·
and are notified of their absentee record by certified mail.
They are also informed when they need to discuss their leave
record with their supervisors or when there is a need for
improvement in their work attendance (Tr. 163-164).
Mr. Meese summarized the respondent's position in this
matter as follows (Tr. 159-160: 164-165):
So what you're telling me, Mr. Meese, is that,
beginning with the onset of Mr. Sharp's illness with
his wife, that your position for the company in this
case is that, absent any specific information from him
as to specifically when he wanted to be off, how long
he wanted to be off, and all that business, you took
the position that the company could no longer afford to
be without him as a rock truck driver, and that's why
they gave that job to someone else or let the truck set
or whatever, and then put him on as a laborer?

Q.

A.

That's correct.

I guess what this boils down to is Mr. Sharp wants
to be home to take care of his wife, who is ill and
needs and operation, and the company says, "I'm sorry,
we can't accommodate you because we need you at work."
Is that what it boils down to?

Q.

A.

Basically, yes, sir.

And when you tell him that we can't accommodate
you, Mr. Sharp, I'm sorry, you have to get somebody to
look after your wife, Mr. Sharp comes back and says the
reason they're doing that to me, Judge, is they're
trying to take it out on me, because my wife wrote the
brief in the first case that I prevailed against them?
Is that what you thing this case is all about, or am I
being oversimplistic about it?

Q.

A. No, I believe Mr. Sharp has it in his mind that his
family comes first, and he's related that to me several
times over the telephone, and I view work as more, as
equal, or more important. You have to go to work. You
have to provide for your family. I've related that to
him several times, and whenever he cannot get a favor
able decision in one area, he wilr keep going to everywhere he can to try to get it. And I feel in this
instance that he felt that because we weren't giving

1540

him a favorable response to his request, he issued a
warrant for harassment, and he filed an MSHA complaint.
At that point, we had no--didn't quite know what to
know.
Mr. Meese denied Mr. Sharp's assertions that he resents
Mr. Sharp's family, or that he "set up" and fired Mr. Sharp and
canceled his insurance coverage in order to punish his wife (Tr.
166).
Marcus "M.C." Couch, Jr., respondent's surface mine supervisor, stated that Mr. Sharp telephoned him during the latter
part of October, 1988, and informed him that he would not be at
work on Friday, October 28, 1988, because of some athletic or
cheerleading event concerning his daughter. Mr. Couch stated
that Mr. Sharp said nothing about his wife during this conversation, and that after he informed Mr. Sharp that he was needed on
the job, he did report for work that day (Tr. 168).
Mr. couch stated that during the week of October 31, 1988,
he returned several calls that Mr. Sharp had made to him at the
mine office. During the first call, Mr. Couch stated that he
asked Mr. Sharp to try and find someone to stay with his wife and
that he was needed at work. Mr. Sharp advised him that he would
try to find someone to stay with his wife (Tr. 170).
Mr. Couch stated that he had a second short telephone conversation with Mr. Sharp on Tuesday, November 1, 1988, and that
he explained to Mr. Sharp that he was needed at work (Tr. 170).
Mr. Couch stated that he had a third telephone conversation
with Mr. Sharp after Mr. Sharp swore out a warrant against him
accusing him of harassing his wife, and as a result of this
action by Mr. Sharp, Mr. Couch stated that he had no further
telephone contact with Mr. Sharp, and that he "stayed away from
him from there out" (Tr. 170).
Mr. Couch vehemently denied that he ever told Mr. Sharp that
he "didn't care weather his wife lived or died." He also denied
ever telling Mr. Sharp that he "didn't give a shit about any
doctor's excuses that he brought in" (Tr. 171). He also denied
any telephone conversations with Mrs. Sharp concerning
Mr. Sharp's coming to work during the week of October 31, 1988
(Tr. 171). Mr. Couch further denied that he ever threatened to
fire Mr. Sharp for not coming to work (Tr. 172).
Mr. Couch explained the circumstances under which
Mr. Sharp's working hours were changed when he returned to work
on November 15, 1988. He stated that all laborers are required
to report to work at 5:00 p.m., an hour prior to the equipment
operators who report at 6:00 p.m., in order to fuel and prepare
the equipment for the second shift operation. He confirmed that

1541

the laborers work until 3:00 a.m., and that the equipment operators work until 4:00 a.m. (Tr. 172).
With regard to Mr. Sharp's operating the steam jenny or
steam cleaner in the winter time, Mr. Couch stated that all 90
employees under his supervision have operated the steam jenny at
one time or another, regardless of the weather. He denied that
he has ever taken any action against Mr. Sharp because of any
complaints that he may have filed with MSHA, complaints about
safety, or because of any discrimination complaints which he has
filed. He also denied taking any action against Mr. Sharp
because his wife was involved in the typing of his brief in an
earlier discrimination case (Tr. 173-174).
On cross-examination, Mr. Couch confirmed that the respondent purchased a new steam jenny in April, 1989, and now has
three of these machines (Tr. 174). He also confirmed that he
informed Mr. Sharp that he would perform the duties of a laborer,
including steam cleaning, fueling equipment, and cleaning up, and
that he changed his working hours after he was relieved of his
rock truck duties and assigned as a laborer (Tr. 177-178).
Mr. Couch stated that he recently notified employee J. R.
Deaton that he was missing too much work and that he would
receive a written notice to this effect (Tr. 179). He confirmed
that employee Jack Johnson was hospitalized, and that employee
Bony Banks has had a written notice served on him for several
weeks for missing too much work (Tr. 180).
Mr. Couch confirmed that employee Mike Campbell was transferred from the reclamation day shift to the production second
shift to drive the truck that Mr. Sharp was previously assigned
to (Tr. 185-186). With regard to Mr. Sharp's "show up" time,
Mr. Couch stated that as a laborer, Mr. Sharp would be required
to work cleaning off a piece of machinery, and if the equipment
did not operate, he could be sent home. He could also be
assigned to cleaning up coal on his night shift, and Mr. Couch
did not recall ever requiring Mr. Sharp to work for 2 hours, and
then sending him home (Tr. 192).
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.

1542

Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no pro- .·
tected activity occurred or that the adverse action was in no way
motivated by protected activity. If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that (1) it was also motivated by the miner's
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Robinette,
supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Fasula-Robinette test). See also NLRB v. Transportation
Management Corporation,
U.S.
, 76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2.d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965) :
It would indeed be the unusual case in which the
link between the discharge and the [protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence,
circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.

1543

In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:
As we emphasized in Pasula, and recently
re-emphasized in Chacon, the operator must prove that
it would have disciplined the miner anyway for the
unprotected activity alone. Ordinarily, an operator
can attempt to demonstrate this by showing, for
example, past discipline consistent with that meted to
the alleged discriminatee, the miner's unsatisfactory
past work record, prior warnings to the miner, or
personnel rules or practices forbidding the conduct in
question. Our function is not to pass on the wisdom or
fairness of such asserted business justifications, but
rather only to determine whether they are credible and,
if so, whether they would have motivated the particular
operator as claimed.
The evidence in this case establishes that on or about
Monday, October 24, 1988, at a chance meeting with Mr. Meese,
Mr. Sharp made a verbal request of Mr. Meese to be off work on
Friday evening, October 28, 1988. Mr. Meese informed Mr. Sharp
to contact his supervisor to discuss the matter, and that he
(Meese) could not give him the day off. Subsequently, on
Wednesday, October 26, 1988, Mr. Sharp telephoned Mr. Meese at
his office in Lexington and informed him that Mr. Couch would not
give him the day off, and Mr. Sharp again requested Mr. Meese to
allow him to be off on Friday evening. Mr. Meese informed
Mr. Sharp that it was not his decision to make, and Mr. Meese
believed that Mr. Sharp wanted the evening off to attend a school
event with his daughter. Mr. Sharp telephoned Mr. Meese again on
Friday, October 28·, 1988, and again informed Mr. Meese that
Mr. Couch would not give him the evening off. Mr. Sharp also
informed Mr. Meese at this time that he had a doctor's appointment for Friday evening, and did not know whether he would be
able to report for work. Mr. Meese again informed Mr. Sharp to
take the matter up with his foreman, and Mr. Sharp did in fact
show up for work that evening.
Mr. Meese•s credible testimony reflects that Mr. Sharp
telephoned the mine office on Monday morning, October 31, 1988,
and "reported off" for that day, as well as Tuesday, November 1,
1988, in order to stay home with his wife who was ill. Mr. Sharp
confirmed that he telephoned Mr. Meese on November 1, 1988, and
advised him of his need to be off work for "a few days" to stay
home with his wife, and that Mr. Meese informed him that he could
be off as long as he had a doctor's statement attesting to his
wife condition. Mine policy, as reflected by a memorandum issued
on October 27, 1988, by mine superintendent M. c. Couch (exhibit
C-2), required all employees to inform the mine office when they
know they will be off work, and to produce a written excuse when
they miss work to go to a doctor. Mr. Sharp produced a statement

1544

from a doctor dated October 31, 1988, which attests to the fact
that he brought his wife to the doctor that day. The doctor also
indicated in his statement that Mr. Sharp's wife "needs to be on
bed rest for one week." Mr. Sharp could not produce a doctor's
statement for his absence of November 1, 1988, claiming that he·
gave the original excuse to Mr. M. C. Couch's secretary, and that
he had lost the copy of the excuse.
In any event, Mr. Meese
confirmed that he and Mr. M. c. Couch jointly decided to excuse
Mr. Sharp's absence of October 31, 1988, and that Mr. Meese
excused his absence of November 1, 1988.
The evidence further establishes that on Wednesday,
November 2, 1988, Mr. Sharp went to the mine with a copy of the
doctor's excuse of October 31, 1988, for his wife, which indicated that she was in need of bed rest for at least a week. At
that time, Mr. Sharp advised Mr. M. c. Couch's secretary that he
would not be at work that evening, and Mr. Sharp "reported off"
and did not work. Mr. Meese confirmed that he telephoned
Mrs. Sharp's doctor that same morning to inquire about her condition and to determine whether she required daily attention.
Mr. Meese testified that the doctor advised him that he could not
state whether or not Mrs. Sharp required daily attention, and
that this was a matter for Mr. Meese "to work out with your
employee."
A copy of Mr. Sharp's attendance record (exhibit C-5),
reflects that he was absent from work from November 3, 1988,
through November 13, 1988, and Mr. Sharp confirmed that he did
not report for work for 2 weeks, from November 1, through
November 14, 1988, when he was home with his wife, and that he
next reported for work on November 15, 1988. Mr. Sharp produced
a copy of a doctor's statement dated November 7, 1988, which
reflects that his wife had an appointment with a neurosurgeon for
"a possible ruptured disk," and that she was confined to bed rest
until she could see that doctor. He also produced a copy of a
doctor's statement which states that his wife visited a doctor's
clinic and that she was brought in by Mr. Sharp. The statement
is dated in November, but the day of the visit is not clear, and
it appears to be 11 11/14. 11
Mr. Meese testified that after he learned that Mr. Sharp had
called the mine office on November 7, 1988, to advise that he
would be off work for another week because he had again taken his
wife to the doctor and that she would be confined to bed for a
week, he sent Mr. Sharp a letter on November 8, 1988 (exhibit
C-3(a).
In the letter, Mr. Meese informed Mr. Sharp that his
absences from work on November 3, 5, and 7, 1988, were considered
by mine management as unexcused. Mr. Meese further informed
Mr. Sharp in the letter that management had a need for someone to
perform his rock truck driver's duties, and that if he could not
return to work within a reasonable time, management would be
forced to hire a permanent replacement to fill that job, and that

1545

Mr. Sharp should consider taking a leave of absence for the time
that he needed to be off work. Mr. Meese confirmed that he had
previously spoken to Mr. Sharp about taking a leave of absence
and requested him to provide a firm date for his return to work.
However, when Mr. Sharp could not provide him with the requested
information, Mr. Meese confirmed that he decided to send the
letter in question.
Mr. Meese confirmed that he received a response to his
letter from Mr. Sharp on November 14, 1988 (exhibit R-4).
In
that letter, Mr. Sharp states that after another doctor's
appointment on an unspecified Monday, he "will know whether or
not a temporary leave of absence is in order," and that he complied with company policy by calling the mine office to report
off work on the dates mentioned in Mr. Meese's letter, and that
he also supplied management with doctor's excuses for the days in
question. Mr. Sharp alluded to another letter which he claimed
had been drafted by his attorney, and which he had rewritten and
mailed to Mr. Meese, explaining his need to be off work.
I have
reviewed that purported letter, and it is an unsigned "rough
draft" in some unknown individual's handwriting.
I find no
credible evidence that Mr. Sharp sent Mr. Meese any letter other
than the one dated November 10, 1988, with his signature. This
is the same letter received by Mr. Meese on November 14, 1988.
Further, I find no credible support for Mr. Sharp's assertion
that Mr. Meese in fact granted him a leave of absence (Tr. 56).
The letter clearly states that Mr. Sharp should consider a leave
of absence, and Mr. Sharp confirmed that this was the case (Tr.
57). I also find no credible evidence to support any conclusion
that Mr. Sharp ever made a decision to request a leave of
absence, or to otherwise inform Mr. Meese of his desire to do so.
Mr. Meese's credible testimony reflects that Mr. Sharp
telephoned Mr. Meese at his office on November 15, 1988, and
informed him that he would return to work that evening, but that
his wife would need to return to the doctor again, that she may
need an operation, and that Mr. Sharp may have a need to be off
work again at some further uncertain time. Mr. Sharp did in fact
return to work on November 15, 1988, and he confirmed that he did
not take any leave of absence, and did nothing about Mr. Meese's
suggestion that he request a leave of absence.
Upon Mr. Sharp's return to work on November 15, 1988, he was
reassigned from his rock truck driver's position to a laborer's
position at the same rate of pay, and his work hours were changed
from 6:00 p.m. to 4:00 a.m. to 5:00 p.m. to 3:00 a.m. Mr. Meese
confirmed that he sent Mr. Sharp a letter on November 15, 1988,
informing him of his reassignment, and the letter states as
follows (exhibit R-5):

1546

This is to confirm our conversation in which we
discussed your assignment to a laborer position
effective immediately.
This past year you have missed a total of 69 work
days.
Most recently, you have been off due to a
medical problem in your family.
Although we pressed
you for a firm date of return so that we could put you
on a leave of absence and plan for our production
needs, you refused to give us a firm date.
Therefore,
we are compelled to put someone who is more dependable
in your former position. Your absences over the past
year have been very disruptive to our ability to
schedule your truck in an orderly manner, thereby
contributing to inefficiencies.
In the next 90 days, we expect to see an improvement in your attendance.
If improvement is not forthcoming, we will have no alternative but to take
disciplinary action.
Mr. Sharp continued to work for the respondent until he was
terminated on February 28, 1989.
Mr. Sharp's Complaint
The basis of Mr. Sharp's discrimination complaint in this
case is his assertion that mine superintendent Marcus "M.C. 11
Couch harassed him by making telephone calls to his home during
the period November 1-3, 1988. Mr. Sharp confirmed that his wife
listened in on the calls through a cordless telephone in her
bedroom, and that she was upset by the calls. Mr. Sharp confirmed that the telephone calls prompted the filing of his complaint with MSHA on November 3, 1988, and also prompted him to
swear out a criminal warrant against Mr. couch for harassment.
The record reflects that this complaint was dismissed by a local
Kentucky state court judge on March 7, 1989.
Mr. Sharp alleges that Mr. Couch's motive in calling him at
home was to harass him for having filed a prior discrimination
complaint against the respondent in which he prevailed, and to
punish his wife because she drafted some of his briefs which he
filed in connection with prior discrimination complaints which he
had filed against the respondent.
He also alleges that other
employees had missed work for illnesses or to stay home with a
sick wife, but were not accorded the treatment that he received
from the respondent because he missed work to stay with his wife.
In the course of the hearing in this case, Mr. Sharp alluded
to several additional alleged acts of discrimination by the
respondent which are not the subject of his present complaint.
He claimed that the respondent discharged him out of retribution

1547

for his prior discrimination complaints and to punish him for
staying home with his wife. Mr. Sharp has filed a complaint
concerning this discharge, and it is my understanding that it is
still pending. Under the circumstances, I will make no findings
or conclusions concerning Mr. Sharp's discharge.
·
With regard to Mr. Sharp's allegations of disparate treatment in connection with his absences from work, he claimed that
other employees missed work because of illnesses to themselves or
their spouses, but were not subjected to any discriminatory
treatment by the respondent. Although I find no connection
between this allegation and the alleged telephone harassment of
Mr. Sharp by Mr. Couch, I do note in passing that Mr. Sharp
failed to call any of the employees in question to testify in
this case, and he did not produce any credible facts or evidence
to support such a claim.
Further, in view of Mr. Sharp's pending
discrimination claim resulting from his discharge, and his asser- .
tion during the course of the hearing that he was terminated
after missing work with a strep throat (Tr. 55), I believe that
any further findings and conclusions on this issue is best left
to the judge who will adjudicate that claim.
Mr. Sharp claimed that his reassignment as a laborer after
his return to work on November 15, 1988, and his work assignments
in connection with that job (steam cleaning equipment), were made
to punish and harass him for filing the November 3, 1988, complaint which is the subject of this case, and because he missed
work to stay home with his ill wife (Tr. 34). With regard to
this complaint, the record reflects that Mr. Sharp filed a complaint with MSHA on February 2, 1989, Complaint Docket No. PIKE
CD-89-07 (exhibit R-6). MSHA apparently investigated the complaint and found rio violation of section 105(c) of the Act.
Respondent's counsel confirmed that MSHA dismissed the matter,
and Mr. Sharp confirmed that he took no further appeal to the
Commission with respect to MSHA's decision. Under the circumstances, I conclude and find that this complaint is moot, and
since it is outside the scope of the instant complaint filed by
Mr. Sharp, I decline to make any findings or conclusions with
respect to Mr. Sharp's allegations.
Mr. Sharp also raised an issue concerning the respondent's
work "show up" policy, and claimed that he was treated differently from other employees because he was required to work on
November 16, 19, and 23, 1988, before being sent home pursuant to
this policy.
I find that Mr. Sharp's allegations in this regard
are outside the scope of the complaint and issues which are the
subject of the instant proceeding, and I declined to make any
findings or conclusions regarding Mr. Sharp's allegations. My
findings and conclusions in this case will be limited to
Mr. Sharp's complaint concerning the alleged harassing telephone
calls by Mr. couch.

1548

With regard to the telephone calls in question, I take
initial note of the fact that the record in this case clearly
reflects that the issue concerning Mr. Sharp's absences from work
is unrelated to any illness on the part of Mr. Sharp. His
absences from work were the result of his desire to stay home to
be with his sick wife, and Mr. Sharp obviously made a judgment
that his first priority was to be with his wife rather than to
report for work when the respondent expected him to be there.
Although I sympathize with Mr. Sharp's predicament, particularly
in light of his wife's illness, I must balance his concern for
his wife and the legitimate business interest of the respondent
in attempting to maintain the continuity of its day-to-day mining
operation.
The record in this case establishes that some of the calls
were initiated by Mr. Couch, and some were "call backs" by
Mr. Couch in response to prior calls initiated by Mr. Sharp.
There is no evidence that the calls were made during other than
normal business hours, or that they were made at unusual hours of
the day or evening. Although Mr. Sharp indicated that some of
the calls were taken by his wife while he was away from the house
picking up his children from school, I find no credible evidence
that Mr. Couch deliberately timed his calls so that he could
harass Mr. Sharp's wife. Although Mrs. Sharp believed that this
was the case, and stated that all of the calls made by Mr. Couch
were at a time when her husband was not at home, Mr. Sharp
testified that he received the calls made on November 1-3, 1988,
by Mr. Couch during which they discussed his absences from work.
With regard to the frequency of the calls prior to the
filing of the complaint on November 3, 1988, Mr. Couch testified
that he returned several calls that Mr. Sharp had placed to him
at the mine office during the week of October 31, 1988, during
which he discussed with Mr. Sharp his need to be at work and to
find someone to stay with wife. Mr. Couch confirmed another
telephone conversation with Mr. Sharp on November 1, 1988, when
he again discussed the need for Mr. Sharp to come to work.
Mr. Couch confirmed a subsequent telephone conversation with
Mr. Sharp after he swore out the warrant against him on
November 3, 1988, and as a result of the warrant, Mr. Couch
confirmed that he had no further telephone contact with
Mr. Sharp.
With regard to the alleged harassing nature of the calls,
Mr. Sharp claimed that Mr. couch's alleged threats to fire him
for not reporting to work, and Mr. Couch's alleged statements
that "doctor's statements don't mean shit" and that "he could
care less whether his wife lived or died," were upsetting to his
wife and were intended to punish his wife for assisting him with
his prior complaints. The evidence establishes that these statements attributed to Mr. couch were not made directly to
Mrs. Sharp. She was listening in on another telephone, and she

1549

testified that Mr. Couch made the statements, and that she began
to cry after Mr. Sharp and Mr. Couch began arguing. Mr. Couch
vehemently denied making the statements, denied that he ever
spoke to Mrs. Sharp and told her that he would fire Mr. Sharp for
not coming to work, but he confirmed that he returned some calls
made by Mrs. Sharp after Mr. Sharp was terminated. Mr. Meese
testified that he was present when Mr. Couch spoke with Mr. Sharp
over the telephone from his office concerning his failure to come
to work, and that he never heard Mr. Couch make the statements in
question.
Having viewed Mr. Sharp's demeanor during the course of the
hearing in this case, it is more than obvious to me that he has a
most extreme personal dislike for Mr. Couch. Although
Mr. Couch's demeanor reflects a rather outward calm and
dispationate nature, given the fact that Mr. Sharp obtained a
warrant and took him to court for allegedly harassing his wife,
and has on several occasions caused Mr. Couch to be called to
answer for his alleged discriminatory actions against Mr. Sharp,
I would venture a guess that Mr. Couch is not particularly fond
of Mr. Sharp. However, the issue here is not whether Mr. Couch
or Mr. Sharp like each other. The issue is whether or not one
can conclude from the credible evidence in this case that the
telephone calls made to Mr. Sharp's home by Mr. Couch establish
harassment, and if so, whether the harassment was motivated by
Mr. Couch's desire to punish Mr. Sharp or to otherwise discriminate against him for engaging in any safety activity protected by
the Act.
Having viewed Mr. Couch and Mr. Meese during the course of
the hearing, I find them to be credible witnesses. I find it
very difficult to believe that the telephone calls in question
were made by Mr. Couch to punish or otherwise harass Mr. Sharp's
wife for simply preparing some of his briefs in prior discrimination cases.
I find no credible evidentiary support for any such
conclusion.
I also find it difficult to believe that Mr. Couch
did not care whether Mr. Sharp's wife lived or died. Mr. Couch
simply did not impress me as being that type of an individual.
Even if Mr. Couch did make the statements attributed to him,
Mrs. Sharp would not have heard them had she not been listening
in on the conversation. Further, given Mr. Couch's obvious
frustrations in attempting to determine when Mr. Sharp would
return to work, the argumentative and hostile mood which prevailed during the conversation, and Mr. Sharp's provocative
nature and propensity for.making indiscriminate accusations
against Mr. Couch, I believe that if the statements attributed to
Mr. Couch were in fact made, they were made in the anger of the
moment, and that Mr. Sharp more than likely provoked Mr. Couch,
and he reacted in kind. Mr. Couch testified that Mr. Sharp had
cursed him on several occasions during telephone conversations
(Tr. 170) •

1550

After careful review of all of the testimony and evidence in
this case, I conclude and find that the telephone calls and
conversations initiated by Mr. Couch, as well as Mr. Sharp,
during which the subject of Mr. Sharp's absences from work
because of his wife's illness were discussed, do not constitute·
harassment by Mr. Couch because of any protected activity on the
part of Mr. Sharp. Mr. Sharp's absences from work because of his
wife's illness is not protected activity under the Act.
I find
no credible evidence to support any conclusion that the respondent acted unreasonably in its attempts to determine when
Mr. Sharp would be able to return to his normal work schedule at
the mine.
I conclude and find that the respondent had a legitimate,
reasonable, and plausible concern for Mr. Sharp's absences, and
the need to insure that he either return to work, or at least
give the respondent some assurance as to when he would be able to
return to his normal scheduled work. Mr. Sharp did neither. As
a result of his failure to respond, and his sporadic day-to-day
attendance record, Mr. Sharp placed the respondent in a position
of not knowing from day-to-day if or when he would show up for
work, when he would return to work on a regular basis, or whether
he would request a leave of absence to stay home with his wife.
I conclude and find that mine management's actions in dealing with Mr. Sharp, including the telephone calls by Mr. Couch,
were prompted by a legitimate and rational effort to determine if
and when Mr. Sharp would return to his normal work schedule at
the mine. Given Mr. Sharp's overall attendance record, and his
rather erratic and unpredictable practice of reporting on and off
work during late October, and early November, 1988, when he wife
was ill, I cannot conclude that the telephone calls made by
Mr. Couch to Mr. Sharp's home, or the conversations Mr. Sharp had
with Mr. Meese, were anything more than a reasonable effort by
mine management to resolve a work attendance problem with one of
its employees.
I further conclude and find that Mr. Sharp has
failed to present any credible evidence to support his claim that
management's actions were motivated by its desire to harass or
punish him for any safety related activities protected by the
Act.
ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all of the credible testimony and
evidence adduced in this case, I conclude and find that Mr. Sharp
has failed to establish that the respondent has discriminated
against him or has otherwise harassed him or retaliated against
him because of the exercise of any protected rights on his part.

1551

Accordingly, Mr. Sharp's complaint IS DISMISSED, and his claims
for relief ARE DENIED.

d· ~,/ ai::'-vv--6--~
~~J A-#··Kbutras
Administrative Law Judge

Distribution:
Mr. Arnold Sharp, General Delivery, Bulan, KY 41722
(Certified Mail)
Edwin S. Hopson, Esq., Wyatt, Tarrant & Combs, 2600 Citizens
Plaza, Louisville, KY 40202 (Certified Mail)
/fb

1552

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

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

v.
CYPRUS EMPIRE CORPORATION,
Respondent

.
.
.
.
.
.

AUG 2 2 1989

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-206
A.C. No. 05-01370-03573
Eagle No. 5 Mine

DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Peti tioneri
Michaels. Beaver, Esq., Holland & Hart, Englewood,
Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges respondent with violating
a safety regulations promulgated under the Federal Mine Safety
and Health Act, 30 u.s.c. § 801 et seg., (the "Act").
After notice to the parties a hearing on the merits was held
in Steamboat Springs, Colorado on July 26, 1989.
The parties waived receipt of the transcript and waived the
filing of post-trial briefs. They also submitted the issues on
oral argument and requested an expedited decision.
Summary of the Case
Citation No. 2504948 charges respondent with violating
30 C.F.R. § 75.316, which provides as follows:
§ 75.316

Ventilation system and methane and
and dust control plan.
[Statutory Provisions]

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

1553

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 revlewed by the operator and the
Secretary at iE{ast every 6 months.
Citation No. 2504948 states as follows:
The ventilation system and methane and
dust control plan was not being complied with
in that the setup entry at 16 East - longwall
did not have enough air movement to turn the
anemometer to take a reading. A smoke tube
was used and the smoke just went up to the roof
and spread in all directions. Visability (sic)
was restricted because of the diesel equipment
that was being used in the intake entry. The
plan requires 200 FPM at Shield #10.
Stipulation
At the hearing the parties stipulated as follows:
1. The Commission and the Administrative Law Judge have
jurisdiction to hear and determine this matter.
2. Citation No. 2854948 was properly issued and served on
respondent.
3. Respondent's history is shown by the computer printout
which can be received in evidence (Exhibit P-1).
4. The penalty as proposed is appropriate and such a
penalty will not hinder the ability of the operator to continue
in business.
5. The parties agree on the authenticity of exhibits submitted by both parties.
6. The photographs received in evidence in the case are for
illustrative purposes.

1554

Issues
The principal issues are whether the presence of 10 percent
of the shields needed to mine coal and one-half of a pan-line
cause a setup entry to be a •working face• within the meaning of
30 C.F.R. § 75.316.
Summary of the Testimony
ERNEST L. MONTOYA of Craig, Colorado has been a coal mine
inspector for 11 years. He is experienced in mining, safety and
ventilation.
Eagle No. 5 is an underground coal mine 8 miles south of
Craig, Colorado.
Inspector Montoya has inspected this particular
mine from 1 to 3 years.
On December 10, 1987, Inspector Montoya arrived at the
company site and contacted company representatives. He was
accompanied by Robert Stelter of the safety department when he
went underground.
When the inspector arrived in the 16 East Longwall section
of the mine, he observed that the entry was foggy. He could also
see a welding flash and an accumulation of welding smoke. These
conditions caused him to believe that the ventilation was not
good. At the time there were 6 to 8 miners in the entry.
·
Inspector Montoya drew Exhibit P-2 • The exhibit shows the
intake entry Cat the left), the "setup entry" Cat the top) and
the return entry Con the right side of the exhibit).
After he observed the conditions in the entry the inspector
used an anemometer to determine the flow of the air. But the
blades would not turn. By using a smoke tube he then put a puff
of smoke into the air. He observed the air go into the tailgate
and spread in all directions. Due to these conditions he concluded that there was insufficient air in the entry. However,
there were times when there was air movement in this entry. Such
movement occurred when the diesel equipment went into the entry.
However, at that time the air velocity was between 30 to 80 CFM.
CThe witness marked an x on the left side of Exhibit P-2 showing
where the diesel equipment would enter the area; he further
marked an xx on the right side of Exhibit P-2 indicating where
the equipment would exit the area.)
Inspector Montoya stayed on the site until about 5 or
6 p.m.; he terminated the citation when the second shift came
to work.

1555

On Exhibit 2 witness Montoya marked the air direction with
double arrows in red. He also marked the direction of the return
air.
There were no curtains directing the air into the setup
entry. Two curtains kept the air from entering the bleeder
entry1 the net result was to direct the air into the setup entry.
Mr. Montoya and two management representatives reviewed the
company's ventilation plan. The ventilation plan (Exhibit P-3)
applies to the 16 east section. The ventilation plan provides
in part that "the minimum quantity reaching the intake end of
the longwall face shall be 40,000 CFM" (Paragraph 1 of Exhibit
P-3). Further, paragraph 3 of the ventilation plan provides that
the minimal velocity of air maintained across the longwall face
shall be 200 feet/min. at shield No. 10 (on the intake side) and
100 feet/min. at shield No. 115 (on the return side).
It was the inspector's view that the setup entry did not
have 200 feet per minute of air, which is a requirement of the
ventilation plan.
The crux of the Secretary's case: the ventilation plan
refers to the longwall face1 the setup entry cited by the inspector is the same as the longwall face (Exhibit P-6).
The inspector took 25 to 30 readings in the area but he did
not record them each time.
Mr. Cobb, the company's fire boss was present and he also
took readings. Cobb stated to the inspector that he could not
observe any readings because there was no air and they discussed
the lack of air movement.
In the inspector's opinion, Citation No. 2504948 was an S&S
violation.
The hazard from the described condition is that a miner
will breath air containing carbon monoxide from the diesel equipment and he would also breath welding fumes. These contaminants
can cause cancer in the long term.
There were miners working in the setup entry when Mr. Montoya took his readings and there were workers continually moving
in and out of the entry.
An anemometer measures cubic feet of air per minute.
Witness Montoya discussed how the flow of air is calculated.
Measurements that were taken when the anemometer would turn
would indicate an average flow of 3200 CFM.

1556

It was the inspector's opinion that when the very first
piece of equipment goes into the setup entry the area becomes
a longwall face.
Along the longwall is equipment called the pan-line.
It
contains the electrical wiring, the chain conveyor and related
equipment. The pan-line when in operation also conveys coal from
the face and it is located ahead of the shields. The pan-line
itself was 250 to 300 feet in length (about half of the length
when the pan-line is in operation).
The setup entry is the same as the setup room and it
measures 22 to 25 feet wide. This is wider than a normal entry.
The setup entry is used to set up equipment but actual mining
does not take place in the entry.
At the time this citation was issued active mining was
taking place in the 17 east intake entry.
(It is apparent that
the active mining was taking place at some place other than
where this citation was issued.)
The company was also developing the No. 6 mine located
underneath Eagle No. 5 mine. There was at least one worker
present in the setup entry at all times while the inspector
was in the area.
Shields used in mining can be raised up to 12 feet high
and they are 4! to 5 feet wide. When all shields are in place
the mining then proceeds. The normal longwall face consists
of 130 to 140 shields. The top of the shield defines the roof.
The floor is coal; the backwall is the shield and at the front
of the shield is the coal face.
At the time of the inspection there were 8 to 14 shields in
the setup entry. These was about 10 percent of the shields that
would be needed before any mining could commence.
The shields are moved into the setup entry one at a time.
It would take about 28 additional days to move all of the shields
into position. The operator had just started the process of
moving the shields.
When it is set up, the pan-line is some 600 feet long; at
the time of the inspection about 300 feet of the pan-line was in
place. It would have taken the operator an additional 3 weeks to
set up the balance of the pan-line. The shield was not in place
and the mining equipment was not energized. No mining could take
place in this area until the drums are installed and energized
and the shields are in place.

1557

Workers were using diesel equipment to set up the mining
equipment. The presence of such diesel equipment in the setup
entry affects and partly blocks the entry. The cooling fans on
the diesel equipment will affect the air in the entry.
Company representative Stalter did not complain when Inspector Montoya took readings next to a piece of diesel equipment. Cobb's reading shows there was no carbon monoxide present
but at that time the foggy area had cleared up. From everything
that could be seen the inspector concluded that the carbon
monoxide was within the limits of the applicable regulation.
No respirable dust measurements were taken.
Inspector Montoya reiterates his opinion: in this section of
the mine there was a lack of air or, as he described, "no air."
Measurements by Cyprus were consistent with the inspector's
readings and a couple of times Cobb took readings that were
1,000 to 1,200 CFM in excess of the inspector's readings.
Towards the end of the shift Cobb had readings of 1,000 to
1,500 more CFM than Inspector Montoya would measure.
Montoya was with company representative Pike when Pike took
a measurement in excess of 50,000 CFM on the intake end of the
longwall face. The inspector agreed at the hearing that there
was plenty of air on the intake roadway where Pike had taken his
measurements.
If there is no ventilation plan in effect, MSHA regulations
provide for a minimum airflow but the company was not cited for
such a violation.
The minimum MSHA requirements apply if there is no ventilation plan and miners are present in the area.
An MMU (mechanized mining unit) is identified by an MSHA
I.D. number.
The ventilation plan (Exhibit P-3) follows this particular
longwall section. (The idea is the MMU number stays the same
regardless of the locati~n of the equipment.)
MSHA requires that ventilation be directed at active mining
areas. The purpose of the ventilation plan is to provide sufficient air for miners.

1558

A "working section" to Inspector Montoya means the presence
of miners working on equipment in a setup entry.
The setup entry itself is cut with a continuous miner.
When it is being cut, a continuous miner ventilation plan would
apply. Once the company starts to move mining equipment into
the entry, then the longwall ventilation requirements apply.
The continuous mirier plan requires a lower air movement.
The longwall and the shear both carry the same MMU number.
If the section does not have an MMU number designation the
ventilation plan would apply.
The inspector obtained no anemometer readings at all.
However, there were times when he had 2,000 to 3,000 CFM. These
readings would last for 5 minutes then go to zero.
Respondent's Evidence
ROSS STOLTER is a safety director for respondent. His
responsibilities include inspections, test devices, and workman's
compensation. He also oversees the safety department.
On the date of this inspection he accompanied Inspector
Montoya and was present when the air measurements were taken.
They initially went to the take-down room where most of the
shields (115 to 120) were located.
When they arrived at the setup room there were two
mechanics and a maintenance foreman present. The purpose of
the setup entry is to set up the mining equipment. The entry
is 26 feet wide and it can be as wide as 28 feet. A regular
entry is 18 feet wide but it will not exceed 20 feet.
The common air comes into this area on the left-hand side
of Exhibit P-2 and the air is then split into three entries.
There were a few shields in the setup room. The back of
the shields make up the back wall. It is not over 15 feet from
the longwall face to the back of the shields. (The witness
illustrated his testimony on a blackboard).
The shields themselves were not in place at the time of this
inspection. The company could not mine coal until the shields
were situated. The company was at least 14 days from mining any
coal. All equipment must be totally installed before coal mining
can begin.

1559

Diesel equipment moves the shields into the setup area.
In addition, the pan-line is moved into the area in 15 foot
sections.
Inspector Montoya took readings near the scoop. The scoop
fan blew air against the normal flow of air into the entry.
In effect the scoop was creating resistance to the normal airflow. This phenomena only occurs during setup and take-down
procedures.
The inspector concentrated his measurements near the
headgate area. The witness did not recall how many times the
inspector took air measurements. Low air movements were recorded near the scoop.
Company representative Pike also took measurements at the
intake and the longwall face. These measurements indicated an
airflow of 55,400 CFM.
At the time of the inspection, Shield No. 10 and Shield
No. 115 had not been moved into the setup entry.
The entry behind the setup entry is the one that Mr. Montoya
referred to as a bleeder entry.
During the set up it is not possible to seal off the bleeder
entry because that entry must be used by the equipment and because the setup entry was blocked by the shields. The shields
increase the velocity of the air.
The ventilation plan was submitted to MSHA and it was intended that it would be applicable when there was active cutting
of the coal.
During the inspection the witness took carbon monoxide
measurements which measured less than 10 PPM. The threshold
limit is 50 PPM. Mr. Montoya took no dust samples.
Mr. Stalter and Mr. Pike also took measurements. There
were fluctuations in the airflow depending on the diesel equipment that was checked.
After Mr. Montoya took measurements showing insufficient
air, he asked for the ventilation plan and threatened the
company with a Cd) order. He also stated he wanted 30,000 to
35,000 CFM before he would abate the citation. He also wanted
the company to change the ventilation. Stalter did not have
the authority for such a change so he contacted Jim Pike, the
company's foreman.

1560

When there was no diesel equipment in the setup entry the
airflow was 31,000 CFM but that was insufficient because it was
not constant. Inspector Montoya believed it to be insufficient.
Mr. Montoya does not understand the delicate nature of the
ventilation of the mine; further, Mr. Stelter did not have the
authority to change the ventilation. Such change could affect
and heat the gob.
At the time the company was under an MSHA Ck) order due
to a previous fire. The Ck) order had critical restrictions
and because of this the company could not randomly move the
ventilation.
Regarding the MMU number: After the longwall was finished
the company would send a letter to MSHA deactivating the MMU.
It would then be reactivated when the company cut coal again.
When this citation was issued the MMU unit was not active and
MSHA had been so advised.
At the time of the inspection there were some shields in
place and there was a pan-line about half way down the entry.
Mr. Stelter did not know how many times Inspector Montoya
had taken air samples and he didn't recall the number of measurements that he had taken himself. It was somewhere between ten
and twenty measurements. Montoya took measurements on both sides
of the shields.
Also measurements were taken throughout the area but most
of them at the tailgate side in the entry.
Mr. Stelter used an anemometer and the smoke tube; CFM can
be determined with an anemometer.
Mr. Stelter did not take any readings near zero and he was
present when Mr. Cobb, the fire boss, was in the area. He agreed
that there was little air movement when Mr. Montoya took his
readings.
Between 6:30 p.m. and 7:30 p.m. there was more active air
movement.

1561

In order to attain an airflow of 200 feet per minute at
a given point you would need 49,400 CFM. The witness did not
know what it would take to establish a 200 feet/min. airflow
with 3 shields in the setup entry but it would be something
less than 49,400 CFM. The ventilation plan also serves to
control methane.
State law requires that the company maintain a certain
amount of air.
A working section is defined in the regulations as being
where coal is extracted and loaded out.
The ventilation plan goes into effect when the shear goes
into operation. Less than 10 percent of the shields were in
place and most of Mr. Montoya's measurements were taken in the
middle of the face.
During the continuous miner operation the company transports materials such as roof bolts into the section.
CLIFFORD J. PIKE, General Mine Foreman, is a person experienced in mining and he is responsible for the enforcement
of the company's ventilation plan.
On December 10, 1987, he made the plan available to
Mr. Montoya and Mr. Stelter. He measured the air in the intake entry at 53,000 CFM. He was also present during the
rest of the inspection. He let Mr. Cobb do most of the air
readings. While measurements were being taken he was concerned
with directing into the area the amount of air that Inspector
Montoya wanted. He felt the company had a sponton l/ problem.
It is the witness' policy that he tries to make MSHA happy
whether they are right or wrong. But to him there was nothing
in this section that indicated a lack of air movement. However,
the company did not delay and tried to get Mr. Montoya what he
requested. However, the witness had to make sure that ventilation changes did not cause detrimental things to happen elsewhere
in the mine. In addition to putting more air into the setup
entry, he put up a directional air current that did not cause
any emissions problem in the area.

1/

Spontaneous combustion.

1562

By way of illustration Mr. Pike indicated that if one were
to place an anemometer at a window, he would get a certain CFM
airflow. On the other hand, if you take the same anemometer and
place it in the corner of a room, you would get a lower airflow.
In his opinion, the flow of air is similar to the flow of water.
The CFM remains the same. In short, the measurements should be
on the intake side and the return side.
The witness agrees he took a few readings in the setup
entry and found very little movement on the anemometer. However,
velocity does not have to be constant. Mr. Pike took measurements at the mouth of the section and the measurements measured
78,000 CFM. At the end of the section the second reading indicated a flow in excess of 50,000 CFM but these measurements
were not taken in the setup entry.
In the witness' opinion the amount of airflow required
by the ventilation plan would not apply to the setup entry.
Other portions of the law would apply such as the required
concentration of oxygen or a perceptible movement of air.
Concerning scoops that might be in the area: airflow is
required by the ventilation plan at half of the nameplate of
the braking power. Some machines go to 7,000 to 9,000 CFM.
The witness did not see any dust in the air but there was smoke.
That is common to diesel and welding activity.
When the witness examined for air he didn't see any dust
in the area but there was smoke. This is common to diesel and
welding activity.
Evaluation of the Evidence
A credibility issue arises in this case as to the airflow
in the setup entry. Inspector Montoya indicated that the airflow
was so minimal that the anemometer would not turn. He then used
a smoke tube. These two factors establish a lack of air movement
in the setup entry. The operator's witnesses essentially concede
the above condition in the setup entry.
On the other hand, measurements taken by company representatives on the intake side and return entry side indicate
a sufficient airflow. The inspector does not dispute that
there was sufficient air at these places.

1563

However, the pivotal issue in this case is whether the
operator violated the ventilation plan. The ventilation plan
mandates the quantity and velocity of air reaching each working
face.
The ventilation plan, as evidenced by Exhibit P-3, requires a minimum quantity of air reaching the intake end of
the longwall face to be 40,000 CFM. Further, the minimum
velocity of air maintained across the longwall face shall be
200 feet/min. at Shield No. 10 (intake side) and 100 feet/min.
at Shield No. 115 (return side). The pivotal issue in turn
requires a definition of what constitutes a working face.
MSHA believes that the term "working face" is to be read
broadly, that any time there is some work which is the beginning
of activity which will result in the extraction of coal, then
the ventilation plan is in effect.
I disagree. The evidence here is uncontroverted that the
pan-line and shields were not in place and they are necessary
predicates to establish a working face. Obviously no coal was
being produced.
Respondent argues that this case is controlled by the
Secretary's own definitions as contained in 30 CFR § 75.12(g)(3)
and§ 75.2(g)(l).
30 CFR § 75.2(g)(l) provides as follows:
"Working face" means any place in a coal
mine in which work of extracting coal
from its natural deposit in the earth is
performed and during the mining cycle.
30 CFR § 75.12(g)(3) provides as follows:
"Working section" means all areas of the
coal mine from the loading point of the
section to and including the working
faces."
The facts involved in this case fail to fall within either
of MSHA's definitions. A working face, in part, is where "work
of extracting coal from its natural deposit in the earth is
performed".
It is apparent on the uncontroverted evidence that no such
work as comtemplated by the regulation was performed. No coal
was extracted from its natural deposit in the earth. The only
work being performed was the work preparatory to the actual extraction of coal. Nor was there a mining cycle. To like effect

1564

see the decision of Commission Judge Roy Maurer in BethEnergy
Mines, Inc., 10 FMSHRC 224 (1988).
(Pending on review.)
The Secretary also relies on the velocity of air required
by the ventilation plan at shield No. 10 and No. 115. However,
it is uncontroverted that these shields were not in the entry
when the citation was issued.
§

In sum, the setup entry was not a working face and 30 C.F.R.
75.316 is not applicable.

It follows that the Secretary has not established a violation of the ventilation plan. It accordingly follows that
Citation No. 2504948 should be vacated.
At the conclusion of the hearing, in her closing argument,
the Secretary stated that if the ventilation plan is not applicable then 30 CFR § 75.301 applies and the court should rely on
that section to establish a violation.
The Secretary did not move to amend her complaint.
the Secretary's "suggestion" was not timely made.

Further,

ORDER
For the foregoing reasons the following order is appropriate:
Citation No. 2504948 and all proposed penalties therefor
are vacated.

Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Michaels. Beaver, Esq., Holland & Hart, 7887 East Belleview
Avenue, Suite 1250, Englewood, CO 80111 (Certified Mail)
/ot

1565

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

22041

AUG 2 3 1989
DISCRIMINATION PROCEEDING

ED YANKOVICH, President
PAUL BRANCHISH, Chairman
et al.,
Complainants

v.

Docket No. PENN 89-214-D
:

Dilworth Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
several UMWA miners against the respondent pursuant to section
105(c) (3) of the Federal Mine Safety and Health Act of 1977. The
complaint alleges that on or about October 5, 1988, respondent's
mine management met with complainants Yankovich and Snyder,
officials of Local Union 1980, who represent the miners, and
announced the proposed implementation of "a new approach" to the
reporting of work related accidents. The complaint alleges that
after explaining the new approach to the local union officials,
management called in approximately eight or nine employees,
including the named complainants Stockdale, Adams, Azzardi,
Kridle, and Reed, and informed them that they were considered
"high risk" because of their previously reported accidents, and
that a future reportable accident could subject them to
discipline or discharge. The complainants assert that this new
program inhibits miners from filing accident reports required to
be submitted to MSHA, and is an interference with their rights
under section 105(c) of the Act.
The respondent filed·an answer to the complaint, and
admitted that it had met with the complainants and informed them
of management's intentions to adopt and implement "a safety
awareness approach" with respect to reportable accidents.
However, the respondent denied that it threatened any employees
with discipline solely because of any accident reports that they
may file, and denied that its program interfered with the

1566

statutory rights of the complainants. The respondent further
asserted that its "safety awareness approach" has been
permanently suspended and does not exist at the mine.
The respondent has now filed a motion to dismiss the
complaint, and in support of its motion states that the issue
raised by the complaint concerning its "safety awareness
approach" is now moot because of an adverse arbitration decision
which has caused mine management to permanently suspend the
approach. The United Mine Workers of America (UMWA) has
responded to the motion and states that it "would not oppose
dismissal without prejudice to refile with the Commission should
the complained of program be reinstituted."
ORDER
The respondent's motion to dismiss IS GRANTED, and the
complaint IS DISMISSED, without prejudice to its refiling by the
complainants.

Judge
Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America (UMWA),
900 15th Street, N.W., Washington, DC 20005 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
/fb

1567

FEDERAL MINE SAFETY AND HEALTH REVIEW COMM-1-5510~
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE.
FALLS CHURCH, VIRGINIA 22041

AUG 3 0 1989
CLINCHPIELD COAL

COMPA~Y,

Contestant

v.
SBCRE'rARY OF LABO'R.,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent
and

.

CONTEST PROCEEDING

.

Docket No. VA 89-67-R
Order No. 2965464; 8/1/89
McClure No. 1 Mine

..

UNITED MINE WORKERS OF
AMERICA C UMWA),

Intervenor
DECISION
Appearances:

Before:

Laura E. Beverage, Esq., and David J. Hardy, Esq.,
Jackson & Kelly, Charleston, West Virginia, for
Contestant; James Crawford, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Respondent, the Secretary of
Labor (Secretary); Mary Lu Jordan, ~sq.,
Washington, D.C., for Intervenor, United Mine
workers of America CUMWA).

Judge Broderick

STATEMENT OF THE CASE
On August 2, 1989, Contestant Clinchfield filed a Notice of
Contest of an order of withdrawal issued August 1, 1989, under
section 104Cb) of the Act for failure to abate a citation issued
June 5, 1989. On the same day Clinchfield filed a Motion for
~xpedited Proceedings.
Following a telephone conference call
with counsel for Clinchfield and the Secretary, t scheduled a
prehearing conference in Falls Church, Virginia, on August 3,
1989, and notified counsel for the UMWA as ·the putative
representative of the miners. The Secretary's counsel stated the
Secretary's answer to the notice of contest on the record at the
prehearing conference. Th~ parties informed me that a Petition
for Modification had been filed by Clinchfield, which, if
granted, would permit the condition for which the citation and
order were issued. The Secretary supports the Petition, but it
ls opposed by the UMWA, and a hearing was requested, and is

1568

scheduled in November 1989, before a Department of Labor
Administrative Law Judge.
Clinchf ield also filed an Application for Temporary Relief·
on August 3, 1989, and a memorandum in opposition to UMWA's
request to intervene on August 4, 1989.
Pursuant to notice issued August 3, 1989, the hearing
commenced in Abingdon, Virginia, on August 7, 1989. Following
oral argument, I granted UMWA's request to intervene and denied
Clinchfield's motion to dismiss UMWA as a party. The case was
heard on August 7, 8, and 9, 1989. James A. Baker,
Robert A. Elam and Harry c. Verakis testified on behalf of the
Secretary. George Strong, Donald Mitchell, and Thomas Asbury
testified on behalf of Clinchfield. George P. Willis,
Thomas J. Rabbit, Robert J. Scaramozzino, James Weeks,
Samuel J. Clay, and Danny Davidson testified on behalf of the
UMWA.
At the conclusion of the testimony, counsel for all parties
waived their right to file post-hearing briefs and each argued
his/her client's position on the record. Following the oral
arguments, I issued the following decision from the Bench:
JUDGE BRODERICK:

All Right.

First, there are a couple of matters that I
on.

will rule

Number one, the motion to certify my order permitting
UMWA intervention, to certify that order to the
Commission for Interlocutory Review is denied.
Secondly, because I have heard the entire testimony on
the merits of this proceeding, the motion for relief
under section 105(c} of the Act is denied.
Now, on the basis of the entire record made before me,
and the contentions of the parties, I issue the
following Decision.
I should preface that with the
observation that the overriding value in the Mine Act
is the health and safety of the miners, and all
Commission decisions interpreting the Mine Act have to
keep that overriding value foremost.
Citation Number 2911079 was issued June 5, 1989, to the
McClure Number One Mine alleging that the conditions in
the Decision and Order modifying the effect of 30 C.F.R.
75.326, which were in effect at the subject mine, were
not being complied with, in that air velocity in excess

1569

of three hundred feet per minute was found to exist on
the belt entry; namely, at one location, a velocity of
seven hundred twenty feet per minute was found.
Because the citation was not abated in the time fixed
and extended for abatement, an order of withdrawal was
issued on August 1, 1989, under section 104(b) of the
Act for failure to abate.
Clinchfield filed a notice of contest of the order. It
is not contested that the conditions found in the
citation and order existed; nor is it contested that
these conditions violated the provisions of 30 C.F.R.
75.326, as modified. The contest is based on the
contention that complying with those provisions would
create a diminution of safety in the mine.
The Secretary who issued both the Citation and the
Order agrees that compliance with the present
requirements, that the air velocity in the belt entry
not exceed three hundred feet per minute, would result
in a hazard to miners.
The Intervenor, United Mine workers of America,
representative of the miners, disagrees with the
Secretary's position and urges that the Order of
Withdrawal be affirmed. The Secretary and the operator
have introduced substantial evidence that to enforce
the present belt entry air velocity requirements would
result in serious danger to miners in the subject mine
because of the possibility of a methane fire or
explosion.
The United Mine workers of America have introduced
substantial evidence that permitting an increase in the
belt entry air velocity would result in serious danger
to miners in the subject mine because of the potential
for propagating belt fires and because of the potential
of causing float coal dust and respirable dust.
Whether the belt entry air velocity requirements should
be increased or remain unchanged is, I believe, the
primary issue in the Petition for Modification
proceeding presently pending before the Department of
Labor. I have heard substantial evidence relating to
that issue and I permitted evidence to be introduced by
all parties in order to complete the record because I
believe the case before me is a case of first
impression.

1570

This evidence has been perhaps far ranging beyond the
scope of my responsibility in this hearing, but I
believe it is important to have as complete a picture
as I can. However, I do not have, fortunately or
unfortunately, the responsibility or jurisdiction to
determine whether the belt entry air velocity
requirements should be increased or should be kept at
the same level. The question before me, as I see it,
is whether to affirm, vacate, or modify the contested
order and its underlying citation.
On the bases of the substantial evidence submitted by
Contestant and the Secretary, and particularly that
submitted by the Mine Safety and Health Administration,
which is the government agency charged with enforcing
the Act in the interests of the safety of miners, and
because there is a pending petition for modification
which is intended to resolve the conflicting views
relative to safety and hazards presented by the belt
entry air velocity, I hereby order that Order of
Withdrawal, Number 2965464 is DISSOLVED.
I further order that the underlying Citation 2911079,
is modified to extend the time of abatement to the date
of the commencement of hearing on the 10l(c) Petition for
Modification.
By these orders, I am not in any way discounting or
minimizing the substantial safety issues raised by the
Intervenor, the United Mine workers of America.
Neither am I attempting to weigh the evidence on either
side of the issue, which is the responsibility of the
authorities charged with deciding the Petition for
Modification.
I am, however, ruling that in view of the Secretary's
position and the evidence introduced in support of it,
that complying with the contested citation and order
may result in a diminution of safety, and in view of
the pending petition for modification, relief should be
granted. I am granting it from the terms of the order
until this matter is submitted for decision on the
Petition for Modification.

1571

I hereby reaffirm the above Bench Decision. I GRANT the
Notice of Contest and VACATE the contested order. I MODIFY the
underlying citation by EXTENDING TH~ TIME FOR ITS ABATEMENT to
the date the hearing commences on the pending Petition for
Modification.

l/r(faiuz5

A-/J:ocliie/

~v~ames A. Broderick

Administrative Law Judge
Distribution:
Laura E. Beverage, Esq., David J. Hardy, Esq., Jackson & Kelly,
1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322 (Certified
Mail)
James Crawford, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
St., ~.W., Washington, D.C. 20005 (Certified Mail)
slk

1572

ADMINISTRATIVE LAW JUDGE ORDERS

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

JUL 12 1989
CONTEST PROCEEDING

ASARCO, INCORPORA.'rED,
Contestant

Docket No. SE 88-8.2-RM
Citation No. 3252969; 7/lo/88

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

.

.

Docket No. SE 88-83-RM
Citation No. 3252970; 7/16/88
Immel Mine
MINE ID 40-00170
CIVIL PENALTY PROCEEDING

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

Docket No. SE 89-67-M
A. C. No. 40-00170-05520

v.
Immel Mine
ASARCO, INCORPORATED,
Respondent
ORDER

I.
On April 12, 1989, the Secretary (Petitioner) served ASARCO
(Respondent) with a Deposition Notice and Request for Production
of Documents. The Notice requested the Respondent to designate
representatives to testify, in essence, as to the Tennessee Mines
Division's history of compliance with various standards of the
Federal Mine Safety and Health Act and applicable regulations, as
well as its safety policies and procedures, management structure
and responsibility for determining electrical maintenance procedures and policies, and the factual events leading up to the death
of Ronald Miller on July 15, 1988, and ASARCO's actions immediately
following the fatality.
In addition, Petitioner requested depositions be taken of certain.enumerated individuals including Fred
Cain, John Ellis, John Jacques, Don Walter, and Jim Bales.
On April 21, 1989, Respondent filed a Motion for Protective
Order.
In its Motion, Respondent seeks protection from the
depositions of a corporate designee along with the tallowing
individuals Cain, Ellis, Walter, Bales and Jacques. In essence,

1573

Respondent .indicates that its "would be,_" corporate designee
Donald R. Ledbetter was deposed on Oc_c.ober 12, 19 88, and testified
regarding all the matter requested by Pe~itioner, and that
Petitioner extensively cross-examined him, and that deposing
another corporate representative would "contribute nothing to
resolving the Secretary's questions • • •
" Respondent also
alleges, in essence, that nether Cain, Ellis,- Walter, Bales, nor
Jacques have personal knowledge of the circumstances of the
incident in question nor could they testify as to ASARCO's
relevant electrical policies and procedures.
On May 12, 1989, Petitioner filed a response to Respondent's
Motion for a Protective Order. Along with its response it
attached a copy of Ledbetter's Deposition.
On May 15, 1989, Respondent filed a state~ent in which it
indicated that, pursuant to an understanding it reacned with
Petitioner's Counsel, its reply to Petitioner's opposition to its
Motion for Protective Order would be filed on or before May 31,
1989. On June 1, 1989, Respondent's reply to the Secretary's
response to its Motion for Protective Order was filed.
The subject citations which are being contested by Respondent
in the above captioned cases, allege violations of 30 C.F.R.
§§ 5712017 and 5712019, and that the violations therein resulted
from Respondent's high negligence. Accordingly, it is clear that
an examination of Respondent's representatives with regard to the
matters set forth in Petitioner's Motion, is relevant to these
proceedings. It is manifest that an examination with regard to the
events leading up to the cited incident and ASARCO's actions
immediately following the incident, as well as an examination as to
Respondent's policies and procedures and management structure as
well as its history of compliance with various regulations, would
be relevant to the issue of its negligence, which is a factor to be
considered in determining the amount of a penalty to be assessed,
should it be_found that Respondent has violated a mandatory safety
standard. Thus, pursuant to Rule 30(b)(6) of the Federal Rules of
Ciyil Procedure, Respondent shall designate a representative or
representatives to testify as to the matters set forth in paragraph l.(a-d) and produce the documents set forth in paragraphs
i, ii, and iii of Deposition Notice and Request for Production of
Documents. The fact that Ledbetter had already been deposed by
Respondent, and cross-examined by Petitioner, shall not serve to
deprive Petitioner of its right to prepare for trial by examining
Respondent's representatives who have knowledge of the matters
set forth in paragraph 1 of Petitioner's Notice.
~side from asserting that Cain, Ellis, Jacques, Walter, and
Bales " . • • represent an apparent chain of authority of ASARCO's
Immel Mine, one leading ultimately to Ronald Miller, the miner

1574

who was killed," Petitioner does not set forth any facts to support a conclusion that an examination of these individuals would
be relevant to the subject matter involved in the pending action.
Indeed, there are no facts presented to conclude that an examination of these individuals is reasonably calculated to lead to a
discovery of admissible evidence. Respondent .has asserted that
the enumerated individuals, in essence, do not have knowledge of
the matters set forth in Petitioner's Notice. However, aside
from its own assertion, there are no affidavits setting forth any
facts to support these assertions. I thus conclude that there
are not sufficient facts set forth before me to conclude that an
examination of the above enumerated individuals would be relevant
to the subject matter at hand. However, should it appear from
the deposition of the individual or individuals designated by
Respondent, and examined pursuant to this Order, that other
individuals have knowledge of the matters sought to be deposed as
set forth in Petitioner's Notice, then Petitioner shall be
afforded the right to depose these individuals.
Inasmuch as.Petitioner, in its response to Respondent's
Motion, indicated that it has withdrawn the request made in its
Notice that Larry E. Thomas be present at the time of a requested
inspection of the mine and accident site, it appears £rom
Respondent's reply that it no longer objects to Petitioner's
request to inspect and photograph the mine and accident site.
Accordingly, this request is GRANTED and it is ORDERED that
Respondent permit the Petitioner to inspect the subject mine and
accident site, and photograph the same, and such inspection is to
be performed at a time to be agreed upon by Counsel £or both
Parties. It is further ORDERED that Respondent shall produce for
deposition all individuals having knowledge of the matter set
forth in paragraph 1 of Petitioner's Notice, and these individuals shall produce all documents referred to in paragraph 1 of
Petitioner's Notice. The depositions are to be taken within
10 days of this Order, unless the Parties agree upon an extension,
at a site to be mutually agreed upon.
II.
On March 9, 1989, Respondent served upon Petitioner a First
Set of Interrogatories requiring an answer and response on or
before 15 days after service. On April 21, 1989, Respondent
filed a Motion for an Order to Compel Answers to Interrogatories.
On May 12, 1989, Petitioner filed its Answers to Respondent's
First Set of Interrogatories.
In its Answer it objected to a
number of the Interrogatories. On June 1, 1989, Respondent filed
a Motion to Compel Answers to Interrogatories. Petitioner did
not file any response to this Motion.

1575

a.

Interrogatory No. 2

Interrogatory No. 2 requests as· follows:
Please state the names, addresses, and employment
positions of each person assisting in any way, directly
or indirectly in the preparation of the answers to
these Interrogatories, and state the answer(s) which
each person so listed has assisted in preparing.
Petitioner in its response has indicated that a Mr. Daugherty
in answering the Interrogatory was assisted by an attorney for the
Secretary and "These communications are privileged pursuant to the
attorney-client privilege." It should be noted that Respondent
does not seek to discover any communications between the attorney
for the Secretary of Labor and his client. The Interrogatory
merely request the identification of any person assisting in the
preparation of Answers to the Interrogatories. As such a response
to Interrogatory No. 2 does not violate an attorney-client
privilege and should be answered.
b.

Interrogatory No. 7

Interrogatory No. 7 requires the listing by name of each
person the MSHA Inspectors contacted in the course of the MSHA
investigation prior to and after the issuance of each of the citations in issue. Petitioner as a response indicated that "Contacts
after the initiation of these proceedings would be privileged as
'work product' under Rule 26(b)(3), Fed. R. Civ. P."
This Interrogatory, in essence, seeks the identity of persons contacted by an MSHA Inspector, rather than material prepared
by Counsel in preparation of trial. As such, the listing of names
would be beyond the "work product" protection (see cases cited in
Moores Federal Practice at 26-354, 355).
In its Answer, Petitioner further indicates that "consultation with miners and informants would be nondiscoverable except
as provided under Commission Rule 59." In this connection,
Respondent has requested that information requiring informants be
provided 2 full days before the hearing pursuant to 29 C.F.R.
§ 2700.59.
Section 2700.59, supra, prohibits the disclosure of names of
miners who are informants, except in "extraordinary circumatances."
Respondent has not alleged any extraordinary circumstances herein.
Accordingly, in complying with Interrogatory No. 7, Petitioner shall
not divulge names of informants wha are miners. Also, pursuant to
Section 2700.59, supra, Petitioner, in answering Interrogatory
No. 7, shall, 2 days prior to the hearing, disclose the names of
miners who are expected to testify at the hearing.

1576

c.

Interrogatory No. 11

Interrogatory No. 11 requests as follows:
Please state, if not in writing and subject to one
of the following requests for productionr MSHA's policy
or policies regarding (a) findings of high negligence;
Cb) interpretation of 30 C.F.R. § 57.12017; and Cc>
interpretation of 30 C.F.R. § 57.12019.
Petitioner's response to this interrogatory was as follows:
"None." Respondent in its Motion argues as follows:
"It is
unclear whether 'none' means none exist, or none exist other than
those in writing and not produced pursuant to the request for
production." Accordingly, Respondent's position, in the interests
of justice, is sustained, and Petitioner shall clarify, in its
response to Interrogatory No. 11, whether MSHA does not have any
policy with regard to matters referred to in Interrogatory No. 11,
or whether it does not have any such policy other than those in
writing and not produced pursuant to the requeat for production.
d.

Interrogatory No. 14

Interrogatory No. 14 which was objected to by Petitioner on
the ground that it was not relevant nor would it lead to relevant
evidence, requires the identification of individuals who initiated,
consulted on, and/or participated in the special assessment of
civil penalties relating to the citations in issue and a description of their roles in the assessment process.
Respondent's
position is that the request for these name~ is relevant as they
are the ones who determined the penalty which is a relevant issue
to the case at bar. Inasmuch as the Commission has the authority,
de novo, to assess all·civil penalties provided for in the Federal
Mine Safety and Health Act of 1977, based upon factors enumerated
in section llOCi), supra, it is clear that the identity of individuals who participated in the special assessments of civil
penalties would not be relevant to a decision by the Commission.
Such a decision, on the issue of a penalty is to be based upon the
factors in section llOCi) of the Act, which have to be established
in an evidentiary hearing. Further, aside from indicating that
those who participated in the special assessments are the very ones
who determined the penalty found by MSHA herein, Respondent has not
articulated in what fashion the identity of these individuals would
be reasonably calculated to lead to the discovery of evidence which
would be relevant to the establishment of any of the factors set·
forth in section llO(i) of the Act, and thus a resolution of the
issue of a penalty to be set by the Commission.
Cc.f. see cases
cited in Moores Federal
Practice, supra, at 26-96.) As such, the
objection ot Petitioner to Interrogatory No. 14 is sustained.

1577

e.

Interrogatory No. 16

Interrogatory No. 16 requests

a~

foll6ws:

Identiiy the individuals who initiated, consulted
on and/or participated in the special inv.estigation of
the alleged violations which are at issue in this
proceeding and describe each of their roles in the
special investigation.
Petitioner has objected to this Interrogatory on the ground
that it is not relevant nor would it lead to relevant evidence.
In the alternative Petitioner asserts that in order to avoid the
appearance of impropriety and protect the rights of the individuals who many be targeted for investigation under criminal
provisions of the Act, it has kept the civil p~oceedings segregated from any criminal investigation.
Respondent has alleged, that the investigation involved the
same subject matter as that involved the incident proceeding.
This allegation has not been contested by Petitioner. Further,
Petitioner has indicated that the criminal investigation has been
completed. Also, importantly, it is clear that the Petitioner's
interest in avoiding 11 • • • the appearance of impropriety and
protect the rights of those individual who may be targeted for
investigation under criminal provisions of the Act," would not be
thwarted by identifying individuals who "initiated, consulted on,
and/or participated," in the special investigation. Respondent
has not requested, and no identification shall be allowed, of any
list or identification of those individuals who may be the target
of or subject of the investigation. Hence, Petitioner shall
answer this Interrogatory.
Thus, it is ORDERED, that within 10 days of this Order,
Petitioner shall serve Respondent with a full and complete answer
to Interrogatories 2, 7, 11, and 16. It is further ORDERED that
Petitioner's ·objection to Interrogatory No. 14 is sustained.
It is ORDERED that, with regard to Interrogatory No. 7,
Petitioner shall not divulge names of informants who are miners.
Also, pursuant to section 2700.59, supra, Petitioner, in answering
Interrogatory No. 7, shall 2 days prior to the hearing, disclose
names of miners who are expected to testify at the hearing.
III.
On March 9, 1989, Respondent served Petitioner with a Request
for Production. On April 21, 1989, Respondent filed a Motion for
Order to Compel Document Production. On May 12, 1989, Petitioner

1578

filed its Responses and Objections to Re~pondent's Request for
Production of Documents. On June 1, :1989, .Respondent filed a
Motion to Compel Production of Documents~
In essence, Respondent's requests one through four-require
the production of documents pertaining to Petitioner's enforcement policies for Respondent's mine including documents exchanged
between various MSHA personnel, contacts between MSHA personnel
and Respondent with regard to its violations and documents
received by MSHA personnel or provided by these personnel to various investigative agencies concerning alleged violations or
mining practices of Respondent. Also requested were any documents
pertaining to the initiation, criteria, review, and processing of
special assessment violations during the past 2 years.
In
Respondent's Motion to Compel Production of Documents it indicates
that the latter request (request No. 3) seeks not all individuals
special assessment documents "but rather the policies underlining
them."
In essence, Petitioner refuses to respond to these requests
on the ground that it does not have any enforcement policies
peculiar to one operator, and if it did have such policies they
would not have any relevance to the instant, de novo, proceeding.
In addition, Petitioner argues that the requests are so broad "as
to be impossible to comply with," and as to be "unduly burdensome."
In general, in order to eliminate surprise and allow the
Parties to adequately prepare for trial, in general, the rules of
discovery should be broadly applied (see, Hickman v. Taylor,
329 U.S. 495 (1947)). Further, Rule 26(b)(l), suora~ provides
for the discovery of material which is "relevant to the subject
matter." It is not ne6essary for the matter sought to be
discovered to be admissible in evidence as long as it is
reasonably calculated to lead to the discovery of admissible
evidence (see cases cited in Moores Federal Practice, supra, at
26-96). In this connection, Respondent has alleged that the
information sought is " • • • essential to explore and expose
bias, undercover the bases for agency's actions and reveal
potential exculpatory information." Respondent has also
indicated that request No. 3 does not require the production of
all individual special assessment documents, but is limited to
the production of policies underlining them • . Accordingly, I
conclude that the information sought in requests 1 - 4 are
relevant.
Petitioner in its objection to request No. 2 argued that the
request seeKing documents made from contacts with MSHA personnel
and "hourly personnel," regarding Respondent's operations seeks
documents which "will or could identify miners" in violation of

1579

Rule 59. Thus, in complying with requesL No. 2 the Petitioner
shall not disclose, until 2 days before the hearing, the name of
any miner who was expected to testifi at .the hearing, nor shall
it disclose the name of any informant who is a miner, unless the
Respondent establish the existence of "extraordinary circumstances."
Respondent also requested documents initiating the special
investigation, documents initiating and relating to the special
assessment, and relating to the special investigation of the
events of July 15, 1988. Petitioner essentially argued that
these requests are overly broad and that the matters sought to be
disclosed are not relevant. In addition, with regard to the
request for production of documents relating to the special
investigation of the events of July 15, 1988, Petitioner incorporated the objections that it had made to Interrogatory No. 16,
inira, and indicated in addition that the documents are protected
as a "work product" of the Secretary's employees.
Respondent has argued that the material requested in
request Nos. 5 to 9, i.e. the investigatory and assessment files
specific to the citations at issue, " • • • are essential to
testing the accuracy of witnesses' percepcions: to probe the
truthfulness of witnesses: to question memory: to explore and
expose bias: to uncover the basis for opinions ana actions: and,
to reveal potentially exculpatory information which may aid a
respondent, such as ASARCO, in the preparation of its case."
Petitioner has not filed any response to Respondent's Motion to
Compel and thus has not rebutted Respondent's assertions. As
such, I conclude that the material sought to be discovered is
relevant.
Petitioner has not definitively indicated that the material
sought by Respondent in request No. 9 was prepared in anticipation of litigation. Also the material sought would not impede
the investigatory process as Petitioner, in its objection to
Interrogatory No. 16, filed May 12, 1989, indicated that although
the investigation was "not technically clo~ed," the Solicitor had
been informed that the investigation "has been completed."
Accordingly, Respondent shall comply with this request.
It is ORDERED that, within 10 days of this Order, the
Petitioner shall respond to Interrogatories 1 through 13, 15, and
16 and Request for Production of Documents 1 . through 9 served by
Respondent on March 9, 1989.

~L

Avram Weisberger
Administrative Law Judge
(703) 756-6210

1580

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

July 20, 1989
SECRFTARY OF LABOR,
MINE SAF~TY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.
CONSOLIDATIO!i. COAL COMPANYt
Respondent

.:
.

CIVIL PENALTY PROCEEDINGS

.:
.
.
.:

Loveridge No. 22 Mine

:

Docket No. WEVA 89-162
A. C. No. 46-01318-03872

:

Docket No. WEVA 89-170

:

A. C. No. 46-01318-03873

:
:

Docket No. WEVA 89-171
A. C. No. 46-01318-03877

:
:

.
.
.

Docket No. WlWA 89-20
A. C. No. 46-01433-03848

Docket No. WEVA 89-159
A. C. No. 46-01968-03800
Blacksville No. 2 Mine

Robinson ~un No. 95 Mine

:

Docket ~o. WEVA 89-183
A. C. No. 46-01453-03848

:

Humphrey No. 7 Mine

ORDER DF.NYING SECRETARY'S MOTION FOR CHANGE OF HEARING
SITE AND FOR CANCELLATION OF PREHEARING
By notices dated June 16, 1989, and June 30, 1989, the
above-captioned cases were set for prehearing conferences at
2:30 p.m. on September 11, 1989, and hearings at 8:30 a.m. on
September 12, 1989. On July 13, 1989, the Arlington Solicitor
filed a motion objecting to the hearing site and to the prehearings. On July 18, 19~9, the operator responded requesting
that the prehearings and hearings remain unchanged.
After pointing out the operator in its answer initially
requested a Morgantown site, the Arlington Solicitor asserts that
Pittsburgh is not a convenient location. However, in its
response to the ~olicitor's present motion the operator advises
that it has no objection to the Pittsburgh site and in fact
prefers it. Obviously, the operator does not need the Solicitor
to speak for it. ~he Solicitor's reference to a two hour drive

1581

(which would be the maximum time> to the-designated site (which
has a nearby airport) is not persuasive. ~he operator clearly
does not view this as unduly burdensome and neither do I.
~he Arlington Solicitor further complains about the prehearing conference. He alleges that 29 C.F.R. § 2700.54(b) which
provides that the judge may require prehearing statements or prehearing conferences, means that he cannot ask for both. ~his
interpretation is rejected. ~here is no indication that subparagraph (b) is intended to so limit the judge. Rather the
choice is left to the judge of those procedural devices which in
his view will best advance the many purposes enumerated in items
(1) through (5) of the subparagraph. Also, subparagraph (b)
follows subparagraph (a) of § 2700.54 which enumerates the
powers of an administrative law judge to conduct and regulate
administrative hearings.

That the Arlington Solicitor's approach makes no sense is
demonstrated by the recent case of Consolidation Coal Company v.
Secretary of Labor, (Docket ~os. WFVA 88-290-R, WFVA 89-4) heard
on May 9, 1989, and also assigned to the ~rlington Solicitor. In
that case which involved significant and complex ventilation
issues, preliminary statements were required and filed.
Only
after receipt of those statements did it become clear that there
was substantial confusion and lack of understanding, particularly
on the Solicitor's part, with respect to the issues presented.
In order to assist the parties and expedite the hearing, t
scheduled a prehearing conference for the afternoon preceding the
day set for hearing. Crucial to the trial and disposition of
that case was a mine map with more than 100 separate markings.
~he meaning and relevance of the map were explored and resolved
at the prehearing and remaining areas of dispute were identified.
Because of the prehearing the subsequent hearing proceeded
efficiently and expeditiously.
~o meet the Arlington ~olicitor's allegation of lack of
adequate notice for the prehearing in WBVA 88-290-R and
W~VA 89-4, the date of the conference in those cases was rescheduled to the day of the hearing. T.n order to meet possible
future objections regarding adequate notice, subsequent prehearing conferences have been scheduled in the notice which sets
the case for hearing. Now the Solicitor wants to do away with
prehearing conierences whenever he files a preliminary statement
regardless of how much advance notice he has or what the case
involves.

Prehearing conferences held the day before the hearing have
proved particularly helpful because the judge and counsel are
free to consider relevant mattecs without pressure and time
constraints arising from the immediate presence of witnesses
waiting to. testify. ~hus in Secretary of Labor v. Consol
Pennsylvania Coal Company, (Docket ~o. P~NN 89-111) heard on

1582

July 11, 1989, where a Philadelphia Solrcitor appeared, comprehensive stipulations were reached at :the prehearing held on the
afternoon before the hearing. ~s a result, the hearing in that
case took approximately one half the time it would have, had
there been no prehearing.
It is astonishing for the Arlington Solicitor to assert that
"Prehearing conferences are not critical because these are not
complex cases." '!'he .~rlington 8olici tor supplies no basis for
this sweeping generalization. If he is referring to the
above-captioned cases set for September 11 and 12, I do not
believe he has sufficiently familiarized himself with them to
make such an ·:argument. The preliminary statements in these cases
are not due for another month. In this respect also the
~rlington Solicitor's position is wholly at odds with that of the
operator whose response expresses the belief that such
conferences can clarify and simplify the issues involved in the
~eptember cases.
The operator asks that the prehearings remain
as scheduled.
If the Arlington ~olicitor's assertion of non-complexity
includes all MSHA cases, I must disagree at least insofar as
cases which have come before me, are concerned. Note again the
mine map which had more than 100 separate markings. If indeed,
all MSHA cases are simple for the Arlington 8olicitor, then he
must be patient so that this Chief Judge and the operator may
attain his level of understanding.
As the .~rlington Solicitor undoubtedly is aware, the number
of cases filed with the Commission and going to hearing are
increasing. ~he Commission spends tens of thousands of dollars
annually on reporting services for administrative transcripts.
Preliminary statements and prehearing conferences are intended to
handle cases not only promptly but economically. ~o identify
issues and discuss preliminary matters for the first time at the
hearing is a waste of time and money. I am sensitive to the
Arlington Solicitor's desire to hold down his travel expenses and
to the logistics whereby he prepates for hearings. In its
response the operator suggests that in some cases prehearing
conferences may not be of assistance and that each case should be
judged individually. If the parties agree a prehearing would not
be useful in a particular case and if I am notified sufficiently
in advance for a conference call to be held at which time I can
consider their views, the prehearing may be canceled where
appropriate.
In conclusion, I must state the Solicitor's motion comes as
a surprise since t understand that the Arlington off ice operates
under the aegis of Office of the Philadelphia ~egional Solicitor.

1583

For the past two decades I have found the Philadelphia Off ice
preeminent not only for the timelines:s and substance of its
filings, but for its cooperative attitude.
Tn light of the foregoing, the ~olicitor's motion is DENIED.

~---_\-r-\~
Paul Merlin
Chief ~dministrative Law Judge
Oistribution:
~onald Gurka, F.sq., Office of the Solicitor, u. s. Department of
Labor, 4015 Wilson Boulevard, ~com 516, ~rlington, VA 22203
(Certified Mail)

Michael R. Peelish, ~sq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
Marshall Harris, Bsq., Regional Solicitor, Office of the Solicitor, U. s. Department of Labor, Room 14480-Gateway Building, 3535
Market Street, Philadelphia, PA 19104 (Certified Mail)
~homas

Mascolino, Bsq., Deputy Associate Rolicitor, Office of the
qolicitor, U. ~. Department of Labor, Room 420, 4015 Wilson
Boulevard, Arlington, VA 22203 (Certified Mail)

/gl

1584

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

August 2, 1989

.
..:

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF HARRY RAMSEY,
Complainant
v.
INDUSTRIAL CONSTRUCTORS CORP.,
Respondent

.
.
.
.

DISCRIMINATION PROCEEDING
Docket No. WEST 88-246-DM
MD 87-51
Colosseum Mine

INTERIM ORDER
Appearances:

Before:

Norman J. Reed, Esq. and Nathaniel J. Reed, Esq.
Reno, Nevada,
for Complainant;
William T. Murphy, Esq., Washington Corporations,
Missoula, Montana,
for Respondent.

Judge Morris

This case involves a complainant discrimination filed by
the Secretary on behalf of complainant pursuant to the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et seq.
After the case was at issue, and after other counsel appeared,
the Solicitor of Labor moved to withdraw as counsel for complainant. After notic·e, no person objected and the Solicitor's
motion to withdraw was granted (Orders: January 9, 1989 and
January 23, 1989).
After notice to the parties a hearing on the merits was held
in Las Vegas, Nevada, on January 31, 1989. A subsequent hearing
on the issue of attorney's fees is scheduled for October 24,
1989.
The applicable portion of the Mine Act, Section 105(c)(l),
in its pertinent portion, provides as follows:
Discrimination or interference prohibited;
complaint; investigation; determination; hearing
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

1585

other mine subject to this [Act] because such
miner, representative of miners or applicant
for employment has filed or made a complaint
under or related to this [Act], including a
complaint notifying the operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged
danger or safety or health violation in a coal
or other mine •••• 30 u.s.c. § 815Ca)(l).
Post trial briefs on the merits were filed by the parties.
Applicable Case Law
The general principles 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· Act, a complaining miner bears the burden of production and proof in
establishing that Cl) he engaged in a protected activity, and
(2) the adverse action complained of was motivated in any part
by that particular 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 (3rd Cir. 1981): Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 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. If an operator
cannot rebut the prima facie case in this manner, it nevertheless
may def end 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,
supra: Robinette, supra. See also Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987>: Donovan v. Stafford
Construction Co., 732 F.2d 954, 958-59 CD.C. Cir. 1984): Baich
v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Pasula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 U.S. 393, 397-413 (1983)
(approving nearly identical test under National Labor Relations
Act).

1586

SUMMARY OF THE EVIDENCE
This case does not lack for credibility issues: The
prior employment of HARRY C. RAMSEY, SR., included 20 years
with Mobil Oil Company. He retired from Mobil in 1987. While
working for Mobil his work schedule permitted him to own and
operate a construction company. His company employed up to
100 workers. The business was sold in 1983 when it became too
large (Tr. 27-30).
Since July 1988 Ramsey has been a ranger at a golf ·course
in Las Vegas, Nevada (Tr. 24, 26).
Between 1976 and 1987 Ramsey has owned and operated many
pieces of heavy construction equipment (Tr. 27, 28, 33-34). He
has been trained in fire fighting, safety training and first aid
(Tr. 26, 29).
After leaving Mobil, Ramsey went to work for respondent,
He was hired to operate all types of equipment on the job site
(Tr. 30-33). He was also a pick and shovel laborer for one or
two weeks (Tr. 35, 36).
-In late June, or early July, when the company set up a
crusher operation, Ramsey·· became the loader operator. He spent
most of his time on the loader but he didn't receive a reclassi~ication ~lip (Tr. 36, 37).
The crusher operator has various duties. He is involved
with the continuous flow of material, monitoring personnel and
signaling personnel by hand and horn signals if a problem occurs
(Tr. 38, 39) (Exhibit C-3 is an unscaled drawing showing the
equipment layout for the crusher spreader) (Tr. 40).
Cliff Morrison, the crusher foreman, instructed Ramsey in
the manner and use of signals.
The 8 foot by 8 foot.building (control· tower) where Ramsey
operated the crusher had windows on all sides. It was 20 feet
above ground level so the operator could see everything in the
work field (Tr. 41, 42). Ramsey's duties required him to remain
in the control tower structure.

I

1587

If a build-up of material occurred the mechanic or foreman
would indicate this to the crusher operator. The operator would
then, by whistle signal, bring in the rest of the workers. When
he could see all of the workers, the operator would then shut
down the equipment. This is normal procedure for shutting off
the machine CTr. 44). Morrison told Ramsey to operate under
these procedures (Tr. 45).
On the swing shift of August 12/13, 1987, Ramsey was in the
control tower. The evening shift had started at 4:00 or 4:30 p.m.
The normal shift lasts 10 hours. The foreman was in and out of
the tower all of the time (Tr. 42, 43).
About 45 minutes before the end of the shift they were
crushing rock. At this point Superintendent Morrison came into
view and gave Mr. Ramsey a hand signal to shut off the water.
The signal was given from the normal signaling area. Ramsey
hesitated when he saw the signal. There was still 30 to 45
minutes of production left and he wasn't anticipating a shutdown at that exact time (Tr. 45, 46). When the water remained.
on, Morrison signaled again. Ramsey had no idea why he should
shut down the water but he followed the second direction (Tr. 46,
47). In a couple of minutes Ramsey could not see the window of
the control tower in front of him (Tr. 47).
The main function of the water is dust control (Tr. 47).
Ramsey agreed that they have operated a few times without
water. If a worker walked through the area it is necessary to
see that person to know if he is safe. If an employee cannot be
seen on the site, the control operator automatically shuts down
"real quick" (Tr. 48). There have been occasions where Ramsey
shut down the equipment without signaling (Tr. 49). Ramsey has
followed normal procedure by shutting off the machine and getting
all employees out in front of the tower (Tr. 49, 50).
On this occasion, after shutting off the water, in two or
three minutes, Ramsey couldn't see anything. He listened but he
heard nothing unusual (Tr. SO, 57). About two or three minutes
elapsed after he shut off the machine CTr. 51).

1588

Ramsey estimated that five minutes elapsed from when he
couldn't see at a·ll until he could make out shadows and equipment
{Tr. 52). As soon as visibility cleared Morrison came·up to the
control tower and asked Ramsey why he had shut down the crusher.
Ramsey said he couldn't see. Morrison, who was hostile, told
Ramsey that he'd tell him when to shut the water on and off
{Tr. 54).
Morrison then tore the daily work paper off the wall and
went down the stairs {Tr. 54).
Ramsey then ran the crusher {to clean off the accumulated
material). It took about three to five minutes to clean the
machine {Tr •. 55).
Ramsey then approached Morrison and asked if he had the
authority to turn the water on and off {as he had been previously advised when he started as an operator) (Tr. 57). In
a three to five minute conversation, Morrison replied that he
(Morrison) would be the one to tell him when to turn the water on
and off (Tr •.58, 59). Ramsey then replied that he wouldn't work
for him under these conditions (Tr. 59). Ramsey was trying to
get Morrison to tell him there was no problem. But he would only
say that he'd be the one to. tell him what to do (Tr. 60). Ramsey
repeated that he wouldn't work under those conditions. Morrison
asked if he was quitting and Ramsey replied he was.
Ramsey felt
if he didn't have this latitude he would quit because it was not
safe CTr. 6o, 61). However, Ramsey didn't intend to quit working
for ICC 1 1 {Tr. 61).

!/

While Ramsey stated he didn't intend to quit ICC, his actions
of turning in his hard .hat and flashlight and saying he "quit"
establish that he did, in fact, quit (Tr. 162, 164).

1589

Ramsey and the rest of the crew spent another 15 minutes
completing normal clean-up work. Ramsey then got in Morrison's
truck to ride to the bus and eventually home. There was no
conversation between Ramsey and Morrison on the way to·the bus
CT r. 61-6 3 ) •
About 9:30 a.m. the following morning Ramsey called Mine
Superintendent Hildebrandt and told him what had occurred at the
end of the shift (Tr. 65). Hildebrandt said he'd check into it
and get back with him (Tr. 65, 66). When he again contacted
Hildebrandt, about a week later, Ramsey was adv!.sed by the
company secretary that there was no work available CTr. 68,
69, Ex. C-18).
Ramsey talked to loader operator Boudreaux and company
mechanic Chris Norskog. They concurred with what Ramsey had
done (Tr. 70).
Ramsey subsequently filed a discrimination complaint with
MSHA (Tr. 72, 73, Ex. C-5). He also took statements from com-·
pany employees Chris Norskog, Alvin Boudreaux, Hildebrandt and
Morrison (Tr. 75). The Norskog and Boudreaux statements were
taken at the MSHA inspector's request (Tr. 78, Ex. C-16). Ramsey
also heard the company had been cited for dust problems CTr. 76,
Ex. c-12).
After he was terminated Ramsey sought other employment.
He sent 60 to 70 resumes to potential employers CTr. 81, 84,
Ex. C-7, C-8). He has continued to seek employment in his field.
In addition, he has held several jobs (Tr. 87-90).
Respondent's Evidence
CLIFFORD MORRISON, a person experienced in construction, was
laid off together with the entire crew at the Colosseum site when
the crushing job was finished (Tr. 153, 154).
Morrison, as supervisor, reclassified and gave Ramsey a
raise CTr. 156). He felt the raise was deserved as Ramsey was
doing a good job in the short period of time he was there
CTr. 157, 158). After the raise Ramsey was receiving the money
crusher operators were worth (Tr. 158). However, there were a
few unsatisfactory incidents involving Ramsey.
[These incidents
did not cause Ramsey to be discharged.]

1590

On August 12, 1987, Ramsey and Morrison had· a disagreement
over crusher dust and safety procedures for the crusher (Tr. 158,
159, Ex. C-4).

On this occasion, about ten or fifteen minutes bef or-e the
end of the shift the miners were standing in front of the parts
trailer. At that point Morrison asked Ramsey to shut off the
water so they could clean the screens~/ (Tr. 160).
Ramsey turned the water off and then he turned off the
crusher. Morrison went up into the tower and asked him why he
had taken that action. There was no reason to shut off the
crusher because Morrison was standing right below him. Morrison
could see Ramsey and part of the plant. Before he signaled the
shutoff of the water Morrison signaled him to assure the safety
of the other workers. All of the workers were safe and they were
standing next to Morrison or they were in the parts van.
Ramsey
could have seen them. Morrison agrees that Ramsey could have
shut down if he hadn't seen the employees.
This is standard
procedure (Tr. 160).
In the tower, when Morrison asked Ramsey why he had shut
down, Ramsey said he couldn't see. Morrison replied that there
was only a little material left to run.
It would only take a
minute. Morrison then tore off the daily log and left (Tr. 161,
162).
Morrison finished his paper work and took it to the office.
When he returned Ramsey· handed him his hard hat and flashlight.
He then said he quit. Morrison asked if he was going to quit
over a little bit of dust.
Ramsey said, "Yes, if it continues."
Morrison walked away. The disagreement involved turning the
water on or off (Tr. 162, 164). Ramsey never argued about
turning the crusher on or off (Tr·~ 162). Ramsey had the authority to turn it on or off if there was a safety hazard. This was
a standard procedure (Tr. 163). Ramsey requested no further
consultations over the issues. Morrison was laid off a month
later. Ramsey didn't contact him during that period (Tr. 163,
164).

~/

The screens are cleaned by letting the material hit them
without the water being turned on. The material chips off the
buildup of mud. By proceeding in this manner the miners
do not have to crawl up inside the equipment to remove the
accumulations by hand (Tr. 160).

1591

When Morrison hired workers for the crusher crew, none of
them were told that they would have long-term employment. Such
employment is not standard in the industry. When crushing is
complete the crew is laid off. Ramsey wasn't given any reason to
believe he'd be kept on when the project was completed (Tr. 164).
Morrison told Ramsey to shut the water off -- not the
crusher. He was also standing where he could view the dust once
the water was shut off. Morrison could see every bit of the
crusher. Visibility was not reduced to the extent that it was
dangerous. Morrison could also see Ramsey in the control tower.
He could have signaled him in the tower, even after the water was
shut off, had he wanted to do so (Tr. 165, 166).
Morrison agrees that Ramsey was performing adequately as an
operator when Morrison suggested he receive a raise (Tr. 174).
On Ramsey's separation slip Morrison wrote "quit" (Tr. 176,
186, Ex. C-4, R-1).
DICK NASH, ICC's personnel manager, identified certain
records and testified the crusher crew was laid off September 25,
1986 (Tr. 200-202, Ex. R-1). He further testified concerning the
401Ck) plan involving waged employees as compared to salaried
employees (Tr. 211, 212, Ex. C-1, R-1). [Discussed under
damages, infra].
ORVILLE HILDEBRANDT, ICC's project manager, worked on the
Colosseum job (Tr. 244).
When he hired Ramsey he gave him a safety tour which is
standard for all new employees. On one occasion while running
the loader, ICC supervisor Brown gave Ramsey some instructions.
Ramsey felt he was abusing the equipment and he might quit
sometime over that issue. But he still wanted to work some other
area of the project. Hildebrant believed that Ramsey felt he
was probably more qualified than the foreman. As a result
Hildebrandt felt [Ramsey] resented the foreman giving him
directions (Tr. 247, 248).
The morning after the August 12th incident Hildebrant
learned of the conflict between Ramsey and Morrison. Ramsey said
he'd quit but he would like to remain in another position on the
project (Tr. 248). Ramsey said he'd return to the crusher if
Hildebrant would authorize him to have control (Tr. 248).

1592

Hildebrant and Morrison talked. Morrison told Hildebrant
that Ramsey had quit over the dust and who was turning off
the water and such (Tr. 249). Hildebrant did return Ramsey's
call and he decided not to rehire him because of two incidents. These two incidents involved the loader and the crusher
(Tr. 249). ~/
On September 8, 1987, an MSHA investigator came to the
plant and issued citations due to crusher dust ~/ CTr. 251, 252,
Ex. C-12). Hildebrant, in abating the citation, wrote a letter
to control the dust from the crusher CTr. 252, Ex. C-15).
Hildebrant also testified concerning the company's 401Ck)
plan (Tr. 254).
Superintendant Hildebrant also indicated that Ramsey
received a raisei further, he was transferred to a different
position at a later date (Tr. 259).
As a crusher operator a part of Ramsey's duties relate to
when to shut the water and the machine on and off (Tr. 259).
The crusher operator could shut down the machinery if he didn't
know where the workers were located. In an emergency he could
also shut the water on or off CTr. 260).
When Ramsey called Hildebrandt he told him he had quit
because he had a disagreement with Morrison over the way the
water should be shut off or how the dust should be controlled
(Tr. 278). He also stated he would like to work in some other
area of the project CTr. 278, 279). In addition, he would go
back to the same position if Hildebrant would give him control
of the crusher (Tr. 279).

11

The loader incident was when supervisor Brown directed Ramsey
as to how the loader should be operated. Ramsey complained to
Hildebrandt and stated this particular use was an abuse of the
loader teeth (Tr. 246, 247). The crusher incident was the
cqnflict with Morrison over the pressure dust.
~

ii

The MSHA inspection on September 8, 1987, is entitled to zero
weight because it is not shown how the conditions of that date
related to the conditions on the morning of August 12, 1987.

1593

The Colosseum mine is still operating. Further, miners
are using heavy equipment used in the production of gold
(Tr. 280, 289).
1987.

BEN BROWN was an ICC night shift foreman in the summer of
He has since been laid off (Tr. 283, 284).

Brown considered Ramsey's skill as a loader operator to be
below average. He further considered Ramsey to be a poor dozer
operator (Tr. 285).
Brown and Ramsey were involved in two conflicts. These
didn't cause Ramsey to be terminated. One involved Ramsey
running the loader at half throttle or lower. The other involved loading with the front of the bucket rather than the heel.
He considered that Ramsey's ability to take orders was poor
(Tr. 286, 289).
Brown admits Ramsey received a raise after two conflicts
between them. However, it was Morrison and not Brown who
recommended the raise (Tr. 288, 289).
CHRIS NORSKOG testified by deposition. Norskog has spent
15 years working around rock crushers (Dep. 5, 6).
Norskog had to show Ramsey some basic matters concerning
the rock crusher (Dep. 8).
Norskog recalls an· argument between Ramsey and Morrison
about whether to fire the crusher up again with or without water.
Both men were angry (Dep. 8). Ramsey did not want to fire the
crusher up. Morrison replied he was the boss and he'd fire the
crusher up. Ramsey said he was going to quit (Dep. 8, 9). The
two men didn't appear to be acting rationally (Dep. 9). Phillip
Boudreaux heard less of the argument (Dep. 9, 10).
There was a little more dust than usual when they shut the
water off but it was not enough to be dangerous (Dep. 11).
It was standard procedure to let the machine run without
water.
It would only take a short while to clean the screens.
Ramsey hadn't complained about it prior to that time (Dep. 11).
There aFe other options besides running the equipment without
water but Norskog didn't know if Ramsey knew about them CDep. 12,
13).

1594

Within a day or two later Norskog refused Ramsey's request
to sign a statement that it was unsafe to work in the area.
However, Boudreaux signed the document. Norskog later gave a
statement to an MSHA inspector CDep. 15).
Discussion on the Merits
The credible evidence adduced by complainant establishes
that Ramsey was engaged in a protected activity when he complained to his supervisor Morrison about the dusty conditions
that precluded him from seeing the workers who were in close
proximity to the crusher. He was thus constructively discharged
since he has shown that ICC created or maintained conditions so
intolerable that a reasonable miner would have felt compelled to
resign.
One act of discrimination occurred at the time of the
constructive discharge. A second act of discrimination occurred
when the company refused to rehire Ramsey.
ICC contends that Ramsey was not engaged in a protected
activity but merely disagreed with his supervisor about the
crusher operation.
In support of its view, ICC points to several facets of the
case. Specifically, in his complaint, it is asserted that Ramsey
never indicated the dispute with Morrison involved anything other
than turning the crusher on or off.
(Ramsey could do this any
time a hazard developed.) Further in support of ICC's position
is found in MSHA's interview with Morrison (Ex. C-10, p.4-6).
I reject ICC's arguments. I question whether any discrepancy exists but the facts here involve a mix of what would
occur when the crusher operator turned off the crusher and/or the
water. The critical point is that Ramsey's complaint was clearly
safety related.
Supporting Ramsey's testimony is his statement to MSHA.
statement reads in part as follows:
And on the morning of the 13th which is a
continuance of, you know, the same shift, we work
from 5 in the evening 'til 3 in the morning. It
was approximately 2:30 and Cliff, the foreman,
walked down to, this one area is kinda designated
as a signal area for the men down below where I
can see them. He walked into that area and signaled me to shut the water off to the whole spread

1595

The

and I hesitated. He very abruptly motioned again.
So I shut it off and within a matter of two to three
minutes the visibility was just, I mean absolutely
zero.
I mean I couldn't, I couldn't see the window
that I was looking out of let alone monitor the
people, the equipment or anything else so I just
shut the feeder and the jaws down which feeds
material to the whole area and the minute that I
felt that there was nothing else through it, just
be noise, I shut the whole spread down and about
seven to ten minutes later when everything cleared
enough where a person could see to walk ten feet,
Cliff come boiling up the steps.
I mean he was
hostile, attitude and asked me what the hell I
was doing shutting the spread down.
I said,
"Well, if I can't see, I'm damn sure not going
to run anything." I said "Well you know, when
we shut that water off, I can't see nothing."
And he's very, very verbally, I mean loud.
"I've run one of these G-D things for so many
years. I'll tell you when to shut it down."
And I says "Hey, you know, if I'm operating
the damn thing, I've got to have the option
whenever I can't see and I can't see the men
down there to knock her off. You know, until
we can safety operate." And he went boiling
down the steps so I just went ahead and run the
belts clear, what was on them, you know, so you
don't leave them for the next shift and then
I went downstairs and I confronted him again.
I says "Cliff, you know, under those conditions,"
I says "we can't operate." "God damn it," he
says, "I'll tell you when to run and when not
to run." I says "Hey," I said, "if you're going
to be like that," I said "I can't work for you."
I said "I have got to have the option to be
able to shut the damn thing down when we can't
see.
The first thing you told me when you
hired me was that even if a man has got to go
to the john, that he's got to check out with
me because I've got to be able to see him and
know where he's at.
And now you tell me that
you're going to tell me when to shut it down
and half the time you're not even here." I
says "Hey," I said "I'm not working for you
under those conditions." He said "Are you

1596

quitting?" I said "Under those conditions,
you're damn right." And it was the end of the
shift then so we went ahead and finished our
normal 3 o'clock clean-up and I got in the
truck with him, drove up to the impound area
more or less, and we got in the buses and
everything and went downhill.
(Exhibit R-2, pages 3, 4)
It necessarily follows that I disagree with ICC's view that
the argument over when and how the screens are cleared is not a
protected activity. For the reasons s~ated I find that Ramsey's
complaints were safety related.
ICC further contends that Ramsey's refusal to work was not
based on good faith belief that a hazard existed. This is so
because Ramsey had operated the crusher for five weeks and it was
standard procedure to turn the water off so the screens could be
cleaned. Further, Ramsey's failure to voice his concerns for the
safety of fellow employees (before August 13th) does not suppor't
his position that a hazard existed.
I disagree. The evidencing hearing focused on the events
of August 12th, but in any event ICC's position lacks merit.
Ramsey's testimony is unrebutted that if an employee cannot be
seen on the site, the crusher operator automatically shuts down
"real quick" (Tr. 48). Further, there have been times where
Ramsey shut down the equipment without signaling (Tr. 49).
In addition, on the issue of good faith, Ramsey's testimony is further supported by Morrison, Hildebrandt and Norskog.
Morrison, after the confrontation, asked Ramsey if he was going
"to quit over a little bit of dust" (Tr. 162, 164). Morrison
also told Hildebrant that Ramsey quit over the dust and an
argument as to who would be turning off the water (Tr. 249).
See also separation slip (Ex. C-4). The slip, signed by
Morrison, states, "We had a disagreement on the way to run the
crusher." Further, Norskog recalled an angry argument between
Ramsey and Morrison about. whether to fire up the crusher again
with or without water. Ramsey did not want to fire the crusher
up. Morrison replied he was the boss and he'd fire the crusher
up. Ramsey then said he was going to quit CDep. pages 8, 9).

1597

The above evidence causes me to conclude that Ramsey acted
in good faith and he did not invent a safety complaint on August
13th.
ICC further argues that a difference of opinion over a
proper way to perform a task are not a protected work refusal
citing Secretary on behalf of Cameron v. Consolidation Coal Co.,
7 FMSHRC 319 (1985).
The evidence shows more than a difference of opinion. It
shows concern by Ramsey for the safety of miners at the worksite.
In the instant case the nexus is clear between the complaint and
possible injury to workers.
ICC asserts that Ramsey's work refusal, and his voluntary
"quit", occurred after the end of the shift when the crusher had
been shut down and the belts cleaned.
I agree that it is uncontroverted that Ramsey quit at the
end of the shift. However, Ramsey's action was a constructive
discharge as discussed infra. It is also apparent.why Ramsey
quit and the timing was closely related to the protected
activity.
Cameron is not inopposite this view.
It is also ICC's view that Ramsey failed to communicate any
hazard to ICC.
The thrust of ICC ' ..s argument is that Ramsey and Morrison did
not communicate, rather they were "angry," "not listening to each
other" and "excited." Further, when they rode down the hill it
is undisputed that the two men did not talk.
It is apparent from the record here that the words spoken
encompassed and communicated the safety hazard. Further, by
their very nature safety complaints often revolve in a heated
and argumentative manner. Compare, Secretary on behalf of John
Gabossi v. Western Fuels - Utah, Inc., 9 FMSHRC 1481 (1987).
ICC also states that even if Ramsey was engaged in a
protected activity no adverse action was taken against him in
retaliation for the complaint, citing Fasula, supra~ Thurman v.
Queen Anne Coal Co. et al, 10 FMSHRC 131 (1988) and Edwards v.
Aaron Mining Co., 5 FMSHRC 2035 (1983). Further, a single act of
alleged discrimination standing alone would not constitute an
aggravated situation which would force a reasonable person to
resign, citing Simpson v. FMSHRC, 842 F.2d 453 CD.C. Cir. 1988).

1598

In considering the doctrine of constructive discharge,
different appellate courts have different views. For example,
the Court of Appeals for the Fourth Circuit requires proof of
the employer's specific intent to force an employee to le~ve ~/.
Bristow v. Daily Press, Inc., 770 F.2d 1251 (1985). The Commission adhered to this position in Robert Simpson v. Kenta
Energy, Inc., 8 FMSHRC 1034 (1986).
On the other hand, the Commission's decision in Simpson
was specifically reversed by the U.S. Court of Appeals for the
District of Columbia, 842 F.2d. 453. The Court reversed the
Commission and held that the proper application of the law involves an objective approach to constructive discharge. In
short, the intent of an operator to cause a miner to quit is
not relevant.
The Court summarizes its view that whether conditions are
so intolerable that a reasonable person would feel compelled to
resign is a question for the trier of fact, 842 F.2d at 463.
The Commission on May 11, 1989, adopted the view of the
Court of Appeals. I am constrained by the Commission's adoption
of the Court of Appeals decision in Simpson.
In the instant case two acts of discrimination occurred.
Ramsey was constructively discharged when he quit at the end of
the shift on August 13th. Further, he was discriminated against
(as was Robert Simpson) __ when the company refused to rehire him.
Whether the company was justified in refusing to rehire
Ramsey requires a review of conflicting evidence.
Ramsey's evidence shows he has had extensive experience in
operating heavy equipment. This appears from the testimony of
his background and the resumes he has forwarded to potential
employers.

~/

The record in this case is devoid of any facts indicating
ICC intended to force Ramsey to quit on August' 13th.

1599

On the other hand, the operator's evidence indicates
Ram·sey' s skill as a loader operator was below average to poor.
Further, he was inexperienced and not competent as a crusher
operator. In addition, it was believed Ramsey didn't like to
take orders because he felt he was more experienced than the
foreman.
I do not find ICC's evidence to be credible. If
Ramsey was such a poor worker it seems incredible that.he would
receive a pay increase after a short time on the job. Compare:
Secretary on behalf of Patricia Anderson v. Stafford Construction
Co., 732 F.2d 954 (D.C. Cir. 1984).In any event superintendent
Hildebrant identified two reasons not to rehire. One reason
involved Ramsey's claim that the instructions from Brown required
him to abuse the loader teeth Can unprotected activity since it
did not involve safety). The additional reason was the crusher
incident of Ramsey and Morrison Ca protected activity).
In sum, ICC discriminated against Ramsey in refusing to
rehire him.
ICC also states that Ramsey failed to attempt_ to resolve the
conflict. It argues such failure constitutes a bar to recovery.
In support of its position ICC cites Bourgue v. Powell
Electrical Manufacturing Co., 617 F.2d 61 (5th Cir., 1980) and
Alicea Rosado v. Garcia Santiago, et al, 562 F.2d 114 Clst Cir.
1977).
Specifically ICC contends that Ramsey had two honest alternatives open to him. He could have simply refused to work until
he discussed the matter with Morrison's superior, or he could
have made sure all the other employees were away from the crusher
for the final few minutes required to clean the screens.
The position urged by ICC would invoke a new doctrine not
presently contemplated under the Mine Act. Further, the cases
relied on by ICC do not arise under the Mine Act.
For the foregoing reasons the complaint of discrimination
filed herein is sustained.
REINSTATEMENT
Complainant herein sought to be reinstated (Tr. 22).
If charges of discrimination are sustained then Section
105(c)(3) authorizes reinstatement of a miner to his former
position with backpay and interest.

1600

The evidence here is uncontroverted in several respects.
On behalf of ICC the evidence shows that none of the workers
were given any indication that their job was long term. Such
long term employment is not standard in the industry. The
evidence also shows that the work shift was in fact shut down in
its entirety about a month after the Ramsey/Morrison incident.
On behalf of Ramsey the evidence is uncontroverted that the
Colosseum Mine is still operating. Further, the operator is
presently using heavy equipment in the production of gold.
Discussion
If a miner has been discriminated against then he should be
restored, as nearly as possible, to his position as if the discrimination had not occurred.
Accordingly, an order of reinstatement to his former
position as a crusher operator at the Colosseum Mine is appropriate. If the position of crusher operator is no·longer available (an uncontroverted fact in the record) then complainant is .
to be reinstated to a comparable position without any loss of
pay or benefits. Kenneth A. Wiggins v. Eastern Associated Coal
Corporation, 7 FMSHRC 1766, 1773 (1985).
Damages
The Act provides that a miner should be reinstated to his
former position with backpay and interest.
Ramsey was constructively discharged on August 13, 1987.
He is entitled to backpay with interest from that date until the
date of his reinstatement.
Accordingly, the parties are directed, within 20 days, to
agree on the wage loss incurred by complainant.
In calculating the interest the parties are directed to make
their calculations on the bases of the attached memoranda from
the Commission's Executive Director dated January 10, 1989, and
Apr i 1 6 , 19 8 9.
Further Damages
A further credibility issue in this case concerns whether
Ramsey is entitled to certain retirement benefits under the
company's 40l(k) retirement plan.

1601

In connection with this issue Ramsey testified that if you
are with the company 30 days, an employee can contribute up to
15 percent of your paycheck.
In turn, ICC will match the employee contribution up to the legal limit allowed by law.
Ramsey
asserts he contributed $553.50 to this plan, as shown by his
check (Tr. 91-93, Ex. C-6). Witness Wallis Hack, a certified
public accountant, testified as to the benefits due Ramsey under
the company plan CTr. 127-149, Ex. C-1).
I credit the contrary evidence adduced by ICC's personnel
manager DICK NASH.
The witness, familiar with the plan, indicates there is a difference between the 401Ck> plan for waged
employees (such as Ramsey) as compared to salaried employees
(Tr. 211).
Salaried employees receive a matching contribution up
to 50 percent of the first 4 percent of the base salary of that
employee (Tr. 212). On the other hand, waged employees receive
75 percent per hour for every hour of straight time and overtime
the employees work (Tr. 212).
Ramsey was a waged employee.
The ICC pay stub for Ramsey
(for 8/14/87) shows a figure of $553.50 (Ex. C-6). That number
is not related to the 40l(k) plan but is ICC's matching con..
tribution under FICA, social security tax CTr. 215-220). Hourly
employees do not receive a matching contribution. However,
Ramsey received payment for the 590.5 hours he worked at 75 cents
per hour or $442.88. That amount was contributed by ICC to
Ramsey's personal accounts.
Discussion
Ramsey is entitled to his lost pay until reinstated.
Further, the pay would include ICC's 75 cent per hour contribution for each hour worked by Ramsey.
I credit ICC's evidence because a personnel manager would
know the benefits the company provides its employees. ICC's
position is also supported on this issue by the testimony of
Hildebrandt CTr. 254).
In addition, Ramsey, as a waged employee of less than
14 weeks, would not have the requisite expertise to know if he
could participate in ICC's 401Ck) plan.

1602

ORDER
Based on the foregoing findings of fact and conclusions of
law, IT IS ORDERED:
1. Respondent reinstate complainant to his position as a
crusher operator, or if the position of crusher operator ls
unavailable, a comparable position.
2.
Respondent shall pay to complainant backpay from
August 13, 1987, until complainant is reinstated. Said backpay
shall bear interest thereon in accordance with the memoranda
attached to this order.
3. Complainant shall file a statement, within 20 days of
the date of this order, showing the amount he claims as backpay
and interest under paragraph 2 above. Complainant, within said
20 days, shall also file a statement showing the amount he claims
for attorneys' fees and necessary legal expenses.

The foregoing statement shall be served on respondent who
shall have 20 days from the date of service to reply thereto.
4. This decision is not final until a further order is
issued with respect to the amount of complainant's entitlement
to backpay, attorneys' fees and litigation expenses.

5. If the parties cannot agree a hearing on the issue of
attorneys' fees will proceed as heretofore scheduled on October
24, 1989, in Las Vegas. Nevada.

Law Judge
Distribution:
Nathaniel J. Reed, Esq., Norman J. Reed, Esq., 1405 South
Parkway, Las Vegas, NV 89104 (Certified Mail}

M~ryland

William T. Murphy, Esq., Washington Corporations, 101 International Way, P.O. Box 8192, Missoula, MT 59807 (Certified
Mail}
/ot

1603

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

August 9, 1989
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
SANGER ROCK & SAND,
Respondent

.
.
.
.
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-275-M
A.C. No. 04-01937-05505
Docket No. WEST 89-71-M
A.C. No. 04-01937-05506
Sanger Pit and Mill

ORDER
The issue in the above cases is whether respondent, Sanger
Rock & sand (Sanger>, is subject to MSHA's jurisdiction.
As a threshold matter, Sanger asserts MSHA has not acquired
jurisdiction over it for the reason that the federal government
has failed to comply with Article I, Section 8, Clause 17 1/
of the United States Constitution. Specifically, it is argued
that since the United States does not possess fee simple title
to Sanger's property and since the State of California did not
cede the property to the United States then the case should be
dismissed for lack of "territorial jurisdiction."
For the purpose of this ruling I assume the federal government does not own this property and I further assume the property
has· not been ceded to the federal government by the State of
California. But I nevertheless conclude that Sanger's arguments
are misdirected. The ~ited portion of the Constitution relied on

1/ The cited portion of the Constitution provides that Congress
shall have the right:
"To exercise exclusive Legislation in
all Cases whatsoever, over such District
(not exceeding ten Miles square> as may,
by Cession of particular States, and the
Acceptance of Congress, become the Seat
of the Government of the United States,
and to exercise like Authority over all
Places purchased by the Consent of the
Legislature of the State in which the
Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other
needful Buildings; ••• "

1604

by Sanger relates to the District of Columbia, the seat of
government of the United States. Its plain words do not constitute a grant of power to the Congress to. regulate commerce
nor is it a restriction on the power of Congress to regulate
commerce.
Specifically, this section of the Constitution relates
to the Congress having exclusive authority over the District of
Columbia, (the seat of government), as well as all other places
purchased by the federal government.
In support of its position Sanger relies upon and cites
United States v. Benson, 495 F.2d 475 (1974).
The Benson case is not controlling. In Benson the defendants were convicted of robbery that was.committed within the
territorial jurisdiction of the United States. The territorial
jurisdiction of the United States in the case was Fort Rucker,
Alabama, a military installation. The federal military code,
by virtue of Clause 17, was exclusive in this area which was a
federal military reservation.
Contrary to Sanger's views, the grant o{ authority for
Congress to regulate mines rests in Article 1, Section 8,
Clause 3 2/ of the Constitution, the "Commerce Clause."
When Congress enacted the Mine Act it considered and defined
commerce as it related to mining. Specifically, Section 4 of the
Act provides:
Each coal or other mine, the products of
which enter commerce, or the operations or
products of which affect commerce, and
each operator of such mine and every miner
in such mine shall be subject to the provisions of this Act.

2/ The cited portion of the Constitution provides that Congress
shall have the right
"To regulate Commerce with foreign Nations
and among the several States, and with the
Indian Tribes."

1605

Further, "Commerce" is defined in section 3(h) of the Act
as:
Trade, traffic, commerce, transportation
or communication among the several states,
or between a place in a state and any place
outside thereof, or within the District of
Columbia, or a possession of the United
States, or between points within the same
state but through a point outside thereof."
The use of the phrase "which affect commerce" in Section 4
of the Act, indicates the intent of Congress to exercise the full
reach of its constitutional authority under the commerce clause.
See: Brennan v. OSHA, 492 F.2d 1027 C2nd Cir. 1974)1 U.S. v. Dye
Construction Co., 510 F.2d 78 (10th Cir. 1975)1 Polish National
Alliance v. NLRB, 332 U.S. 643 (1977); Godwin v. OSHRC, 540 F.2d
1013 C9th cir:-1976>.
In Perez v. United States, 402 U.S. 146 (1971), it was
held that Congress may make a finding as to what activity affects
interstate commerce, and by doing so it obviates the necessity
for demonstrating jurisdiction under the commerce clause in
individual cases. Thus, it is not necessary to prove that any
particular intrastate activity affects commerce if the activity
is included in a class of activities which Congress intended
to regulate because that class affects commerce.
In short, mining is among those classes of activities
which are regulated under the Commerce Clause of the United
States Constitution and thus is among those classes which are
subject to the broadest reaches of Federal regulation because
the activities affect interstate commerce. Marshall v. Kraynak,
457 F. Supp. 907, (W.D. Pa. 1978), aff'd, 604 F.2d 231 (3d Cir.
1979), cert. denied, 444 U.S. 1014 (1980). Further, the legislative history of the Act as well as court decisions, encourage
a liberal reading of the definition of a mine found in the Act
in order to achieve the Act's purpose of protecting the safety
of miners. Westmoreland Coal Company v. Federal Mine Safety and
Health Review Commission, 606 F.2d 417 (4th Cir. 1979). See
also: Godwin v. Occupational Safety and Health Review comiii'ISsion,
supra, where the court held that unsafe working conditions of one
operation, even if in initial and preparatory stages, influences
all other operations similarly situated, and consequently affect
interstate commerce.

1606

The courts have consistently held that m1n1ng activities
which may be conducted affect commerce sufficiently to subject
the mines to federal control. See: Marshall v. Kilgore, 478 F.
Supp. 4 (E.D. Tenn. 1979)1 Secretary of the Interior v. Shingara,
418 F. Supp. 693 (M.D. Pa. 1976)1 Marshall v. Bosack, 463 F.
Supp. 800, 801 (E.D. Pa. 1978). Likewise, Commission judges
have held that intrastate mining activities are covered by the
Act because they affect interstate commerce. See: Secretary of
Labor v. Rockite Gravel Company, 2 FMSHRC 3543 (December 1980):
Secretary of Labor v. Klippstein and Pickett, 5 FMSHRC 1424
(August 1983)1 Secretary of Labor v. Haviland Brothers Coal
Company, 3 FMSHRC 1574 (June 1981)1 Secretary of Labor v. Mellott
Trucking Company, 10 FMSHRC 409 (March 1988).
In· a decision involving the same parties, Commission Judge
August· F. Cetti ruled against Sanger's "territorial jurisdictional argument." Sanger Rock & Sand, 11 FMSHRC 403 (March 1989).
Sanger also states that the State of California has its own
laws and regulations that protect the safety and health of its
people.
This argument has been raised in a number of cases. Commission judges have consistently held that state and federal
OSHA statutes do not preempt the 1977 Mine Act. See: BrubakerMann, Inc., 2 FMSHRC 227 (January 1980>1 Valley RO'Ck and Sand
Corporation, 4 FMSHRC 113 (January 1982)1 Black River Sand and
Gravel, Inc., 4 FMSHRC 743 (April 1982>1 San Juan Cement Company,
Inc., 2 FMSHRC 2602 (September 1980) 1 Sierra Aggregate Co.,
9 FMSHRC 426 (March 1987). I agree with these holdings, and I
also take note of the fact that section 506 of the 1977 Mine Act
permits concurrent state and federal regulation, and that under
the federal supremacy doctrine, a state statute is void to the·
extent that it conflicts with a valid federal statute. Dixie Lee
Ray v. Atlantic· Richfield Company, 435 U.S. 151, 55 L. Ed. 2d 179
(1978>1 Bradley v. Belva Coal Company, 4 FMSHRC 982, 986 (June
1982) •.
In WEST 89-71-M Sanger has also moved to dismiss the case on
the grounds that MSHA has lost or misplaced records.
It is not possible at this time to identify what records,
if any, may be lost. Further, any evidence on that issue will
relate to the merits of the cases.
For the foregoing reasons I conclude that the Secretary
of Labor, on behalf of MSHA, has jurisdiction in this matter.
Further, Sanger, as a sand and gravel operation, is generally
subject to the Secretary's authority by virtue of MSHA.

1607

For the foregoing reasons the following order is appropriate:
ORDER
1. In WEST 88-275-M: -Petitioner's motion for a preliminary finding that respondent is subject to the jurisdiction of
the Secretary under the authority of the Federal Mine Safety and
Health Act is granted.
2. In WEST 89-71-M·: :Respondent's motion to dismiss on the
meri£i and for a lack of territorial jurisdiction are denied.
·-3.

These cases will be shortly ·set ·for a hearing on the

merits.

Judge

Distribution:
Susanne Lewald, ·Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson Street, P.O. Box 3495, San Francisco, CA
94119-3495
J.F. Baun, President, Sanger Rock and Sand, 17125 E. Kings Canyon
Road, Sanger, CA 93657
/ot

1608

~u.s.covtRNlll£NT

PRINTING orr1ct.1989-241-155104759