JANUARY 1984
Commission Decisions
1-06-84
1-09-84
1-09-84
1-13-84
1-30-84

Mathies Coal Company
W.Schulte v. Lizza Industries, Inc.
D.Hollis v. Consolidation Coal Co.
Consolidation Coal Company
Energy Fuels Nuclear, Inc.

PENN 82-3-R
YORK 81-53-DM
WEVA 81-480-D
WEVA 80-116-R
WEST 81-385-M

Pg.
Pg.
Pg.
Pg.
Pg.

21
34
41

PENN 84-5-D
CENT 83-44-D
WEST 80-491-D
PENN 83-28
WEVA 80-532-D
WEVA 83-101-D
WEVA 83-93
WEST 83-96-D
WEST 81-402-M
WEST 81-406-M
WEST 82-12-M
WEST 79-49-DM
YORK 79-99-M
KENT 83-117
WEST 83-9-DM
PENN 82-305
WEST 82-13-M
WEVA 83-31
WEST 80-111-M

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

47
49
51
52
57
58
91
109
111
113
115
117
139
140
142
155
162
168
174

1

8

Administrative Law Judge Decisions
1-06-84
1-10-84
1-10-84
1-13-84
1-13-84
1-13-84
1-13-84
1-16-84
1-17-84
1-17-84
1-17-84
1-20-84
1-23-84
1-26-84
1-26-84
1-30-84
1-30-84
1-30-84
1-31-84

H. Gilpin v. Bethlehem Mines Corp.
UMWA/H. Beard v. Midwestern Mining
Stephen Woody v. Mid-Continent Res.
Rushton Mining Company
MSHA/G. Boone v. Rebel Coal Co.
Jack Gravely v. Ranger Fuel Corp.
Bethlehem Mines Corporation
MSHA/Jack Kiefer v. National King Coal
MSHA v. Robert Klein
MSHA v. Wayne Kendall
MSHA v. Ben Powell
Wm. Haro v. Magma Copper Company
Callanan Industries, Inc.
West Va. Rebel Coal Company
Albert Zeisel v. Asarco, Inc.
U.S. Steel Mining Co., Inc.
MSHA v. Robert Riedman
United States Steel Mining Co., Inc.
Southway Construction Co., Inc.

COMMISSION DECISIONS

JANUARY

The following case was Directed for Review during the month of January:
Secretary of Labor on behalf of Michael Hogan and Robert Ventura v. Emerald
Mines Corporation, Docket No. PENN 83-141-D (Judge Koutras, December 19, 1983)
Review was Denied in the following cases during the month of January:
United Mine Workers of America, Local 111197 v. Bethlehem Mines Corporation,
Docket No. PENN 83-234-D (Judge Broderick, December 13, 1983)
Secretary of Labor, MSHA v. United States Steel Corporation, Docket No.
PENN 83-221 (Judge Merlin, December 14, 1983)
United States Fuel Company v. Albert J. Dicaro, Docket No. WEST 82-113-D
(Judge Fauver, December 15, 1983)

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

January 6, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. PENN 82-3-R
PENN 82-15

v.

MATHIES COAL COMPANY
DECISION
This consolidated proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981),
and presents the question of whether a violation of 30 C.F.R. § 75.1403
was "significant and substantial" within the meaning of Cement Division,
National.Gypsum Company., 3 FMSHRC 822 (April 1981). The Commission's
administrative law judge concluded that Mathies Coal Company ("Mathies")
violated the standard, that the violation was significant and substantial,
and assessed a penalty. 4 FMSHRC 1111 (June 1982)(ALJ). We granted
Mathies' petition for discretionary review, which challenges only the
judge's significant and substantial findings. For the reasons that follow,
we affirm.
On September 22, 1981, during a spot inspection of Mathies' underground
coal mine, an inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA") issued a citation to Mathies under section 104(a) of
the Mine Act, 30 U.S.C. § 814(a)(Supp. V 1981). The citation alleged a violation of 30 C.F.R. § 75.1403, ];_/ and stated:

!/

The portions of the standard involved in this citation are:
Section 75.1403, a statutory provision, which requires that
[o]ther safeguards adequate, in the judgment of
an authorized representative of the Secretary, to
minimize hazards with respect to transportation of
men and materials shall be provided;

Section 75.1403-1, which permits the Secretary's authorized representative to require on a mine-by-mine basis, safeguards in addition to those
required in §§ 75.1403-2 through 75.1403-11; and
Section 75.1403-6(b)(3), which requires in part that each track-mounted,
self-propelled personnel carrier be equipped with "properly installed and
well-maintained sanding devices •••• "

1

One of the four sanding devices provided for the
No. 4 self-propelled personnel carrier (mantrip)
was inoperative which was going to transfer personnel from Gamble No. 1 to 4 face 24 Butt Parallel
Section. The sander was empty due to a valve that
was stuck open. Foreman in charge Ron Pietroboni.
Notice to provide safeguard lJWC 12-01-72. [~/]
The citation also alleged that the violation was significant and substantial.
The inspector issued the citation at the start of the day shift, immediately
following the mantrip operator's regular check of the mantrip. The inspector terminated the citation five minutes later after Mathies adjusted the
valve and refilled the defective sander with sand. Thereafter, Mathies filed
with this independent Commission a notice of contest of the citation. The
contest proceeding subsequently was consolidated with the Secretary of Labor's
proposal for a civil penalty.
The mantrip was used by Mathies to transport its production crews of 8-10
miners to and from working areas in the mine. The mantrip traveled along the
haulage track from an area near the mine portal called the "bottom" to the
working sections, at the beginning of each of three shifts and back again at
the conclusion of the shifts. In addition to primary and secondary braking
systems, the mantrip was equipped with a sander above each of its four wheels.
Each sander contained a half-gallon of sand. The sanders supplemented the
mantrip's brakes by dispensing sand in order to increase the friction between
the haulage track and the wheels. The mantrip used only the two sanders at
the front end, as determined by the direction of travel. One hand lever
activated the two sanders at the front end of the mantrip, so that one
inoperable sander would reduce sanding capacity by one-half.
The record evidence indicates that sanders were most likely to be needed
to supplement a mantrip's brakes in wet conditions, on curves, or on grades.
The Mathies mine was considered to be a "wet" mine. Some areas along the haulage track were always damp or wet. In a few locations, Mathies used sump pumps
to reduce excess moisture. On September 22, 1981, the haulage track was wet' at
least in part because it was a high humidity time of year. The mantrip's route
to the working section on the September 22d day shift passed curves, including
blind curves and an S-curve, and hills, the steepest having a 3.4% grade.
At the time the inspector issued the citation, the mantrip was fully
loaded and ready to go. The inoperable sander was on the rear end of the
mantrip. Because the mantrip changed directions five minutes into the
20-minute trip, however, what was the rear end of the mantrip at the start
of the trip would become the front end. Thus, the majority of the mantrip's
6,500-foot trip into the mine and a portion of the return trip could have
required the use of the inoperable sander to supplement the brakes.
]:_/
A general notice of safeguard, issued December 1, 1972, requiring sanding
devices on all self-propelled mantrips, was modified on August 12, 1980. The
modification required that "all mantrips at this mine will be provided with
properly maintained sanding devices sufficient to sand all wheels in hath
directions of travel." 4 FMSHRC at 1112.

The Commission's administrative law judge concluded that the defective
sander constituted a violation of the cited standard, and that the violation
was significant and substantial. He assessed a $130 penalty. Applying the
National Gypsum test for determining when a violation is significant and
substantial, the judge concluded that the hazard associated with the violation
was a sliding derailment or collision with an object on the tracks, and that
the hazard was reasonably likely to result in an injury of a reasonably serious
nature. 4 FMSHRC at 1115, 1117-19. He attributed the likelihood of such injury
to such factors as the "wetness, albeit occasional, of the haulageway, the curves,
and downgrades in the mine and the intrinsic danger of haulage travel itself."
4 FMSHRC at 1118.
The issue on review is whether substantial evidence supports the judge's
conclusion that the violation was "of such a nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard." 30 U.S.C.§ 814(d)(l)(Supp. V 1981). 3/ We have previously
interpreted this statutory language as follows:
[A] violation is of such a nature as could significantly
and substantially contribute to the cause and effect of
a mine safety or health hazard if, based upon the particular facts surrounding that violation, there exists
a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably
serious nature.
National Gypsum, 3 FHSHRC at 825. Noting that the Mine Act does not define
"hazard," we construed the term to "denote a measure of danger to safety or
health." 3 F.MSHRC at 827. We stated further that a violation "'significantly
and substantially' contributes to the cause and effect of a hazard if the
v~olation could be a major cause of a danger to safety or health.
In other
words, the contribution to cause and effect must be significant and
substantial." _!i_. (footnote omitted).
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

J'

3/
The Mine Act's references to significant and substantial violations are
contained in sections 104(d) and (e), 30 U.S.C. §§ 814(d) & (e). The MSHA
inspector's significant and substantial findings in this case were made in
connection with a citation issued under section 104(a) of the Mine Act,
30 U.S.C. § 814(a), which does not expressly refer to this statutory phrase.
Mathies has not challenged the propriety of including such findings in a
section 104(a) citation, and we accordingly express no view on the issue in
this decision. We note, however, that the question is pending before us
in Consolidation Coal Co., FMSHRC Docket No. PENN 82-203-R, etc.
4/
We emphasize that this case involves the violation of a mandatory safety
;tandard. We have pending before us a case raising a challenge to the application of National Gypsum to a violation of a mandatory health standard.
Consolidation Coal Co., FNSHRC Docket No. WEVA 82-209-R, etc.
We intimate
no views at this time as to the merits of that question.

resul~ in an inJury; and (4) a reasonable likelihood that the injury in

[

question will be of a reasonably serious nature. As a practical matter,
the last two elements will often be combined in a single showing.

Here, only two of the four elements necessary to establish a significant and substantial violation are at issue. Mathies does not contest the
judge's finding of a violation or, assuming the existence of a hazard posing
a reasonable likelihood of injury, that the injury would be reasonably
serious. Mathies argues only that the evidence does not support a finding
either that one defective sander could contribute to a hazard or that any
such hazard would involve a reasonable likelihood of injury.
The judge found that the violative condition, the defective sander,
contributed to a hazard of a sliding derailment or collision with some object
on the tracks. 4 FMSHRC at 1115. The record amply supports this finding.
Section 75.1403-6(b)(3) (n. 1 supra), which requires sanders on mantrips,
reflects a broad determination by the Secretary of Labor that a mantrip's
brakes by themselves do not always provide sufficient traction to prevent
derailment or collision and that sanders are necessary to provide added
stopping power. MSHA's modification of the 1972 notice of safeguard to
Mathies (n. 2 supra) reflects a specific determination that conditions at
the Mathies mine required that mantrips be equipped with properly maintained
sanding devices "sufficient to sand all wheels in both directions of travel."
4 FHSHRC at 1112. These determinations support the conclusion that because
brakes alone may not suffice to stop the mantrip at Mathies' mine, sanders
are necessary to supplement the brakes and that a defective sander can
contribute to a derailment or collision hazard.
Moreover, the record also establishes the existence of a hazard on the day
of the citation. The damp conditions in the mine, the wet track, and the fact
that the mantrip's route traversed curves and grades, created travel risks on
September 22, 1981, that could have required the extra traction that sanders are
intended to provide. The foregoing considerations establish the existence of a
hazard. We need not pass on the validity of the additional consideration, relied
on by the judge, of the "intrinsic danger" of haulage travel.
The remaining issue is whether the judge properly concluded that there
was a reasonable likelihood that the hazard contributed to could result in
inJury. As we have noted in our discussion of the hazard, the mantrip's
route encompassed curves and grades. In addition to the chronically wet
conditions at the mine, conditions were exceptionally wet on the day the
citation was issued. If the dampness, curves, or grades had necessitated
use of the defective sander, the absence of sanding capacity could have been
a major cause of a derailment or a collision. We must be mindful of the fact
that the mantrip carried miners, and we agree with the judge that it is
reasonably likely that such a loss of control would have exposed the 8-10
miners riding in the mantrip to .the reasonably serious injury that any
derailment or collision could entail. Thus, we concur with the judge
that the hazard contributed to by the violation created a reasonable
likelihood of injury, and that the violation was therefore a major cause
of a danger to safety.

4

In reaching this conclusion, we note that the judge's decision was
based in large part on his credibility findings and his resolution of
disputed testimony in the Secretary's favor. Such determinations by a
judge should not be overturned lightly, and in any event, we need not
take that exceptional step here. Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 813 (April 1981). First, in light
of our admonition that an inspector's judgment is an important element
in making significant and substantial findings, (National Gypsum, 3 FMSHRC
at 825-26), the judge gave appropriate weight to the inspector's judgment.
Second, as the judge concluded, the inspector's testimony was "reasonable,
logical and credible." 4 FMSHRC at 1115. The inspector observed conditions
first-hand, in contrast to Mathies' sole witness, its foreman, who conceded
he was present only part of the time. Moreover, the inspector's testimony
was more specific than that of the foreman who could not remember the exact
conditions that day. Thus, we conclude that the judge did not err in
crediting the inspector's testimony as to the wet rail, the hazards created
by the loss of sanding capacity, and the likelihood of injury.
For the foregoing reasons, we affirm the judge's holding that the
violation was significant and substantial.

~~~

'Ros~ Co11)7;rochairman

----

Commissioner

5

Commissioner Lawson concurring:
I agree with the majority as to the. result reached and in their
affirrnance of the decision of the judge below. However, for the
reasons expressed in my dissent in National Gypsum, supra, I disagree
with their analytical approach as set forth here and in that decision.

L/
A. E. Lawson, Commissioner

Distribution
H. Juanita M. Littlejohn, Esq.
Mathies Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Michael McCord, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Harrison Combs, Esq.,

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Michael Lasher
Fed. Mine Safety & Health Rev. Conrrnission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

l"'1

'

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

January 9, 1984

WALTER A. SCHULTE

v.

Docket No. YORK 81-53-DM

LIZZA INDUSTRIES, INC.

DECISION
This case involves a discrimination complaint brought by Walter A.
Schulte against Lizza Industries, Inc. ("Lizza"), pursuant to the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~·
(1976 & Supp. V. 1981). At issue is whether Lizza's discharge of
Schulte on October 15, 1980, was in violation of section 105(c)(l) of
the Act, 30 U.S.C. § 815(c)(l)(Supp. V. 1981). Following a hearing on
the merits, the Commission's administrative law judge determined that
Lizza did not violate section 105(c)(l) and dismissed Schulte's complaint. 4 FMSHRC 1239 (July 1982)(ALJ). For the reasons that follow,
we affirm the judge's decision.
Lizza operated a gravel quarry and preparation plant in Mount Hope,
New Jersey, known as the Mount Hope Quarry. Lizza operated the quarry
on a full-time basis, Monday through Friday, and with a reduced work
force on Saturday. Employees were required to report to work daily at
7:00 a.m. The work day ended at 4:30 p.m. Lizza had a policy requiring
employees to notify the operator between the hours of 6:00 a.m. and
7:00 a.m. of unforeseen absences, in order that they might be excused.
Lizza also had a policy requiring employees to work overtime each day.
Failure to comply with either policy was grounds for disciplinary action.
Schulte was hired by Lizza on May 27, 1980. On September 10, 1980,
Schulte left work two hours early. Plant Manager Fred Oldenburg told
Jesse Parzero, Schulte's foreman, to have a talk with him regarding his
early departure. Schulte previously had received two verbal warnings
from Oldenburg concerning his attendance in the period leading up to
September 23, 1980.
Schulte reported for work six to ten minutes late on both September
23 and 24 1980. On the first occasion, Oldenburg prepared a letter
alerting ~chulte to the possible consequences of his actions and personally

8

delivered it to him. By his signature, Schulte acknowledged receipt of
the letter and the accompanying postscript. 1/ On September 30, 1980,
Schulte left work one half hour early. He {~·iled to report for work on
October 2, 1980, and failed to notify Lizza of his absence.
Tension between Schulte and Lizza surfaced on Octcber 4, 1980, when
Schulte was demoted from the position of bulldozer operator to the
position of laborer for his alleged unsafe practices as an operator.
Schulte contended at the Commission hearing that he was removed in order
to make room for a friend of the plant manager. Later that day, an
altercation developed between Schulte and Parzero, his foreman, and
disparaging remarks were exchanged. Ultimately, Oldenburg had to make
peace between the two men. That same day, Oldenburg informed Schulte
that he was being suspended without pay for three days.
On October 6, 1980, the first day of this three-day suspension,
Schulte reported safety complaints to the Department of Labor's Occupational Safety and Health Administration and Mine Safety and Health
Administration ("MSHA"). Apart from these documented complaints, Schulte
indicated at the hearing that he also reported safety complaints to both
his foreman and his shop steward. Both individuals denied the allegations.
Upon Schulte's return from the three-day suspension, Oldenburg gave
him a letter, dated October 6, 1980, advising him of the suspension.
Schulte acknowledged receipt of the letter and the accompanying postscript. '!:_/ On October 10, 1980, Schulte again left work one half hour

1/

The body of the letter dated September 23, 1980, reads:
Your attendance practices leave much to be desired. These practices
cannot be tolerated. I am, therefore, formally informing you that
if these practices continue you will be suspended and subsequently
terminated. If you have any questions, please let me know.
The postscript reads:
I hereby understand that if my poor attendance practices continue
I will be suspended for three days and terminated thereafter if
the practices continue.

2/

The body of the letter dated October 6, 1980, reads:
Your attendance practices and work attitude leave much to be
desired. You have been warned about these practices, yet you
continue to be insubordinate. You are therefore suspended without pay for three days. If your performance does not improve,
your employment will be terminated. If you have any questions,
please let me know.
The postscript reads:
I hereby understand that if my poor attendance practices and work
attitude continue, I will subsequently be terminated.

9

early. He also left work one half hour early on October 14, 1980.
October .15, 1980, he reported for work six minutes late.

On

Responding to Schulte's safety complaints of October 6, 1980, two
MSHA inspectors conducted an inspection of Lizza's Mount Hope Quarry on
October 14 and 15, 1980. On October 14, 1980, MSHA cited Lizza for the
inadequate guarding of a conveyor belt in a walkway near an area where
Schulte worked. MSHA Inspector Robert Held testified that he mentioned
to management that the miner's safety complaint which MSHA had received
involved the guarding of the conveyor belt. Held did not identify Schulte
as the complainant. Schulte testified that Oldenburg, Parzero and
Vincent Crawn·, his shop steward, were present when he directed the MSHA
inspectors to other alleged safety violations.
The decision to terminate Schulte was reached at a meeting of management personnel on the second day of the MSHA inspection, October 15,
1980. Those participating included Oldenburg, Parzero, Crawn and senior
company official James Granito. Both Oldenburg and Parzero admitted
that at the time of the meeting they were aware of rumors that Schulte
had initiated the MSHA inspection. At the hearing, Oldenburg testified
that Granito may have brought up the fact that Schulte's discharge had
absolutely nothing to do with the MSHA inspection.
Schulte was called into the meeting and discharged by Oldenburg,
who gave him a letter detailing the reasons for his discharge. 3/ The
two MSHA inspectors on the mine site were notified by management of
Schulte's termination.
Following his discharge, Schulte's union filed a grievance on his
behalf and the question of whether his dismissal was for just cause
under the applicable collective bargaining agreement was submitted for

]_/

The body of the letter dated October 15, 1980, reads:
You had been warned several times and subsequently suspended
without pay as a result of poor attendance practices and insubordination. At a meeting held on Wednesday, October 15, 1980,
you stated that your attitude had not improved and would not
improve as a result of your no longer operating the bulldozer
at our Mt. Hope plant.
You were reminded on several occasions, and specifically on
Thursday, October 9, 1980, by your foreman, Jesse Parzero, that
your job required overtime each day. You have opted to neglect
these instructions and have left your work area prior to the
designated quitting time.
Our prior verbal warnings, written warnings and disciplinary suspension have obviously failed to rehabilitate you. You have therefore left us no choice but to terminate your employment, effective
today, October 15, 1980, at 1:30 p.m.

10

arbitration. !±_I On January 15, 1981, Schulte filed a complaint of
discrimination with MSHA pursuant to section 105(c)(2) of the Mine Act,
30 U.S.C. § 815(c)(2). Upon investigation, MSHA determined that no
provisions of the Act had been violated and so informed Schulte on
May 4, 1981. On May 14, 1981, Schulte filed his own complaint of discrimination directly with this independent Commission pursuant to section
105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). 2_1 Three separate evidentiary hearings were held. On July 6, 1982, the Commission's judge
issued his written decision dismissing Schulte's complaint. Both parties
filed cross petitions for discretionary review, which we subsequently
granted.
In reaching his decision, the judge employed the discrimination
analysis which we enunciated in Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd
Cir. 1981), and Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (April 1981). The judge found Schulte's safety complaints to MSHA on October 6, 1980, constituted activity protected by
section lOS(c)(l) of the Act and, thus, that Schulte had established the
first element of his prima facie case under Pasula. As to the second
element of that case, whether Schulte's discharge by Lizza was motivated
in any part by his protected activity, the judge found from the circumstantial evidence available that "it could very well be inferred that
Mr. Schulte's discharge was at least partially motivated by his protected
activities." 4 FMSHRC at 1241. However, given the uncontradic ted
evidence regarding his work attendance, the judge further found that
"while Lizza may very well have had a 'mixed motivation' for discharging
Schulte, it had credible 'business justifications' to discharge Schulte
exclusive of any protected activities and it clearly would have discharged
Schulte in any event for his unprotected activities alone." 4 FMSHRC at
l244. The judge also found that Schulte's contention of disparate
treatment, without credible evidence to support it, was not sufficient
to rebut Lizza's affirmative defense. Id.

!±_I

The arbitrator's subsequent decision, dated February 23, 1981, was
admitted as evidence at the hearing before the Commission's administrative law judge. Although the Commission judge did not refer to the
arbitral decision in his own decision, we note in passing that the
arbitrator concluded that Schulte was dismissed for a poor work attitude
and attendance problems, and that his discharge was therefore for just
cause within the meaning of the contract. This result accords with that
reached by the judge.
2_1
After investigation of a miner's complaint, the Secretary of Labor,
acting through MSHA, is required to file a discrimination complaint with
this Commission on the miner's behalf if he determines that the Act was
violated. 30 U.S.C. § 815(c)(2). If the Secretary determines that the
Act was not violated, as happened in this case, he shall so inform the
miner and the miner may then file his own complaint directly with the
Commission. 30 U.S.C. § 815(c)(3).

11

On review Schulte contends that the judge erred in concluding that
Lizza established a successful affirmative defense to his prima facie
case. As a preliminary matter, Lizza argues that Schulte's discrimination complaint to MSHA was not timely filed under the 60-day time
limit contained in section 105(c)(2) of the Mine Act, 30 U.S.C.
§ 815(c)(2), and should have been dismissed on that basis.
Lizza also
contends that, even if the complaint were timely, the judge erred in
finding that Lizza had knowledge of Schulte's protected activity and in
concluding that Schulte established a prima facie case. We first address
the timeliness question.
Lizza initially raised its limitations defense before the judge
during the last evidentiary hearing on April 16, 1982, and, again, by
written motion prior to issuance of the judge's written decision. At
the hearing, the judge expressed doubt about Lizza's own timeliness in
raising the issue at that late stage of the proceedings. He seemed to
be of the opinion that Lizza had waived the affirmative defense by not
raising it in its pleadings and by proceeding with the hearing on the
merits. Lizza maintained that it had not received a copy of the complaint Schulte originally filed with MSHA until April 5, 1982, when it
obtained a copy from the Secretary pursuant to a Freedom of Information
Act ("FOIA") request. Only then, Lizza asserted, was it able to ascertain
that Schulte's complaint was filed out of time. The judge did not
specifically address Lizza's limitations defense in his decision. From
the fact that the judge proceeded to decide the case based upon the
merits, however, it appears, by necessary implication, that he rejected
it. That is the construction of his decision which Lizza urges on
review and is the one which we adopt.
Section 105(c)(2) of the Act establishes the relevant period of
limitations:
Any miner .•• who believes that he has been discharged, interfered with, or otherwise discriminated against by any person in violation of this
subsection may, within 60 days after such violation
occurs, file a complaint with the Secretary alleging
such discrimination. Upon receipt of such complaint,
the Secretary shall forward a copy of the complaint
to the respondent and shall cause such investigation
to be made as he deems appropriate .•••
30 U.S.C. § 815(c)(2)(emphasis added). In Herman v. Imco Services, 4
FMSHRC 2123 (December 1982), we held that the purpose of the 60-day time
limit is to avoid stale claims, but that a miner's late filing may be
excused on the basis of "justifiable circumstances." We relied on the
Mine Act's relevant legislative history, which states:
While this time limit is necessary to avoid stale
claims being brought, it should not be construed
strictly where the filing of a complaint is delayed
under justifiable circumstances. Circumstances

12

which could warrant the extension of the time-limit
would include a case where the miner within the
60-day period brings the complaint to the attention
of another agency or to his employer, or the miner
fails to meet the time limits because he is misled
as to or misunderstands his rights under the Act.
S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in, Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 624 (1978)(emphasis added). "Timeliness questions must be
resolved on a case-by-case basis, taking into account the unique circumstances of each case." Hollis v. Consolidation Coal Co., FMSHRC Docket
No. WEVA 81-480-D, slip op. at 4 (January 9, 1984).
In the present case, Schulte filed his initial discrimination
complaint with MSHA on January 15, 1981, 91 days after his discharge on
October 15, 1980, and, thus, 31 days out of time. In its motion to
amend its answer to include a period of limitations defense, Lizza
apparently concedes that the reason Schulte did not file his complaint
with MSHA on a timely basis was due to his ignorance of any such requirement. To support this contention, Lizza points to the transcript
of MSHA's March 4, 1981, interview with Schulte, wherein Schulte stated:

Q.

Are you familiar that there's a time limit on
the discrimination complaint?

A.

No.

I was not aware of that.

*

*

*

Q.

Ok. Now, so you weren't familiar with the
time limit on this?

A.

No, sir.

Operator's Exhibit 24, p. 4. On the basis of this uncontroverted
evidence, we conclude that Schulte failed to file his complaint with
MSHA within 60 days of the alleged violation because.he was unaware of
the Act's provisions in this regard.
We also conclude that the operator was not prejudiced by Schulte's
31-day delay in filing. Lizza's only claim of prejudice is that, due to
the judge's failure to dismiss Schulte's complaint based upon its period
of limitations defense, it was required to expend the time and expense
of litigating this case. While the expenditure of time and money involved in litigation should not be discounted, neither should it be
overstated. Lizza has not demonstrated to us the kind of legal prejudice which we recognized in Herman, supra, namely, tangible evidence
that has since disappeared, faded memories, or missing witnesses. 4
FMSHRC at 2139. In any event, the record reveals significant evidence
which leads us to conclude that Lizza's conduct before raising the limitations argument was tantamount to waiver.

13

The copy of Schulte' s complaint to MSHA, which Liz-za relies upon as
"newly discovered" evidence, is really not new. In a letter addressed
to Oldenburg dated January 26, 1981, the Secretary of Labor notified
Lizza that Schulte had filed a complaint with MSHA alleging discriminatory
treatment by Lizza. A Summary of Discriminatory Action, also dated
January 26, 1981, was attached to the letter. Included on each item was
the discrimination number, MD 81-46, which MSHA had assigned to the complaint. By letter dated August 3, 1981, Lizza's attorney connnunicated
with then Chief Judge Broderick, concerning Schulte's May 14, 1981,
complaint of discrimination pending before the Connnission. MSHA's
letter to Oldenburg of January 26, 1981, was appended to this letter.
In the body of his letter, Lizza's attorney stated, "For your information,
Mr. Schulte had filed a complaint against the Company in January of this
year in case No. MD 81-46."
A complaint filed by Schulte anytime in January 1981 would have
been outside the 60-day limit. Lizza's August letter thus reveals that
Lizza, in January of 1981, but certainly no later than in August of
1981, had actual notice of Schulte's late filing. This notice substantially predated receipt of its FOIA request in April 1982. §_/
Under these circumstances, Lizza's own delay of many months after it had
such notice before complaining of Schulte's 31-day delay was tantamount
to waiver of its period of limitations claim. Cf. Rule 8(c), Fed. R.
Civ. P.
On the basis of the foregoing considerations, Schulte's delay in
filing his complaint is excused. We emphasize, however, that although a
miner's lack of understanding regarding his rights under the Mine Act is
one of the circumstances that may possibly justify excuse of a delayed
filing, any delay is a potentially serious matter. ]_/

!!_/
While the document Lizza received from the Secretary pursuant to
its 1982 FOIA request clearly identifies January 15, 1981, as the date
Schulte's complaint was actually filed, MSHA's letter to Oldenburg dated
January 26, 1981, nevertheless provided Lizza with sufficient independent
information from which to determine the timeliness of Schulte's complaint.
The newly discovered evidence did little more than advise Lizza that the
complaint was actually filed 11 days earlier than it first might have
been led to believe.
]_/
This case is distinguishable from Herman and Hollis, supra, where
the miners' late filings were not excused. The delay involved here was
less than in those cases. In Herman, we concluded that the delay prejudiced the operator's ability to prepare and present its case. 4
FMSHRC at 2138-39. In Hollis, the Commission concluded (Commissioner
Lawson dissenting on this issue) that the miner knew of his Mine Act
rights, but deliberately chose to pursue other avenues of relief. Slip
op. at 3-5.

14

We now turn to the substantive discrimination issues. Under Fasula
and Robinette, supra, a complainant alleging a violation of section
105(c) of the Act must make a prima facie showing that (1) he engaged in
protected activity and (2) the adverse action complained of was motivated in any part by the protected activity. In order to rebut a prima
facie case, an operator must show either that no protected activity
occurred or that the adverse action was in no part motivated by protected activity. If an operator cannot rebut the prima facie case in
this manner, it may nevertheless affirmatively defend by proving that
(1) it was also motivated by the miner's unprotected activities, and
(2) it would have. taken the adverse action in any event for the unprotected activities alone. The operator bears an intermediate burden
of production and proof with regard to these elements of defense. This
further line of defense applies only in "mixed motive" cases, i.e.,
cases where the adverse action is motivated by both protected and unprotected activity. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937 (November
1982). The ultimate burden of persuasion does not shift from the complainant. Secretary on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC at 818 n. 20. The Supreme Court recently approved the National
Labor Relations Board's virtually identical analysis for discrimination
cases arising under the National Labor Relations Act. NLRB v. Transportation Management Corp., 76 L.Ed. 2d 667 (1983). See also Baich v.
FMSHRC, 719 F.2d 194 (6th Cir. 1983)(approving the Commission's PasulaRobinette test).
At this stage of the proceedings, no one disputes that Schulte
engaged in protected activity. Lizza takes exception only to the
judge's factual conclusion that it had knowledge of Schulte's protected
activity. It contends that such a conclusion is not supported by the
evidence and, consequently, that the judge erred in holding that Schulte
had established his prima facie case.
In Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508 (November 1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir.
1983), we stated that direct evidence of motivation is rarely encountered and that reasonable inferences of motivation may be drawn from
circumstantial evidence showing such factors as knowledge of protected
activity, coincidence in time between the protected activity and the
adverse action, and disparate treatment. 3 FMSHRC at 2510. We also
indicated that knowledge was probably the single most important aspect
of a circumstantial case. Because knowledge also involves subjective
factors, it may be proved by circumstantial evidence and reasonable
inferences. Id. The judge evaluated the evidence and concluded that
Schulte had made a prima facie showing on the issues of knowledge and
motivation. The judge found that officials of Lizza "had some knowledge,
albeit 'rumors', that Schulte had called in the MSHA inspectors," that
there was a coincidence in time between the MSHA inspection and Schulte's
discharge, and that the "peculiar gratuitous denial [by Granito] that
Schulte's discharge was the result of the MSHA inspection" cast doubt on
Lizza's denial of any discriminatory intent. 4 FMSHRC at 124.

15

Although other inferences could have been drawn from the available
evidence, there is a substantial evidentiary basis in the record to
support the judge's conclusion that Schulte's discharge was at least
partially motivated by his protected activity. We find no persuasive
reason to overturn the judge on this point. The next question is whether
Lizza affirmatively def ended by showing that it would have discharged
Schulte in any event for his unprotected activity alone.
The judge found that, although Schulte engaged in protected activity,
he also engaged in unprotected activity as well. The judge concluded
that the uncontradicted evidence of Schulte's poor work attendance
clearly supported Lizza's business justification for discharging him.
Schulte argues that the judge erred by imposing on him, as complainant,
the burden of proving disparate treatment. Schulte contends that once a
prima facie case has been established, the burden of proof shifts to the
operator. Schulte also argues that the judge erred in concluding that
he would have been discharged for his unprotected activity alone. He
maintains that the evidence shows that the discipline meted out to him
was not consistent with that given to other employees similarly situated.
He also asserts that the judge was extremely vague in analyzing the
record evidence in this regard.
Regarding Schulte's burden of proof arguments, we indicated in
Chacon, supra, that if a complainant wishes to allege disparate treatment,
it could serve as one of the possible bases of a prima facie case. 4
FMSHRC at 2412-13. It may also be presented by a complainant in order to
refute an operator's affirmative defense. 4 FMSHRC at 2517. In the
latter instance, the ultimate burden of persuasion still remains with
the complainant who must refute a facially meritorious affirmative
defense in order to prevail. Robinette, 3 FMSHRC at 818 n. 20. Conversely,
in bearing the intermediate burden of proof of establishing an affirmative
defense, the operator is equally free to show consistent treatment. We
do not read the judge's decision as requiring Schulte to prove disparate
treatment. 4 FMSHRC at 1244. A prima facie case can be made without
such a showing. In this case, the evidence presented by Schulte to
demonstrate disparate treatment, however characterized theoretically,
simply amounted to evidence to be weighed·against the evidence favoring
Lizza. The judge did so, and found Schulte's evidence lacking. We find
no merit in Schulte's argument regarding any possible misallocation of
evidentiary burdens.
Turning to the merits of the issue of whether Schulte would have
been discharged for his unprotected activity alone, we set forth in
Bradley v. Belva Coal Co., 4 FMSHRC 982 (June 1982), some of the indicia
tending to show that a miner's unprotected activity alone would have
resulted in the disciplinary action taken:
Ordinarily, an operator can attempt to demonstrate
[that it would have disciplined the miner in any
event for his unprotected activity alone] by showing,
for example, past discipline consistent with that
meted out to the alleged discriminatee, the miner's
unsatisfactory past work record, prior warnings to
the miner, or personnel rules or practices forbidding
the conduct in question.
Id. at 993.

16

To support its position that it would have discharged Schulte in
any event, Lizza points to significant evidence. It maintains that not
only did it discipline Schulte in accordance with its established company
disciplinary policy, but the discipline it administered was consistent
with past discipline and warnings me~ed out to Schulte prior to his
protected activity. Following repeated oral warnings, Schulte was given
a written warning regarding his unsatisfactory attendance. Schulte
continued to be both late and absent. Following his argument with
Parzero, Oldenburg informed Schulte that he was suspended for three days
without pay. During his suspension, Schulte engaged in his protected
activity, that is, made his safety complaints to OSHA and MSHA. When he
returned to work, Schulte was given both written confirmation of the
previous disciplinary action and admonished that termination would
follow if his conduct did not improve. Furthermore, following the suspension, Schulte again was caught in the act of leaving work early and
again was warned (orally) that severe disciplinary action could be
provoked by such a violation of the rules. Lizza argues that, even when
Schulte was discharged, he indicated to his supervisors that his attitude
would not improve as long as he was not permitted to work on the bulldozer.
On the specific issue of consistent treatment of other employees
similarly situated, Lizza argues that even though it had been in
operation for less than six months, two other miners had received written
warnings. Shortly after Schulte received his written warning, two other
miners were suspended for three days without pay under the same disciplinary policy. Lizza also notes that on the same day that Schulte was
terminated, miner Boisvert was suspended for three days without pay for
refusing to work overtime as required by the company.
To support his contention of disparate treatment, Schulte maintains
that the timing of his discharge in relation to Lizza's treatment of
seven other employees with similar attendance records is more than just
coincidence. Not one of these other miners was terminated as early as
Schulte. The only other miner whose employment was terminated on a date
even close to his own termination was Boisvert, who was terminated nine
days after Schulte's discharge. Schulte also relies upon the fact that
the three other miners actually discharged were not terminated until
much later, specifically November 1980, April 1981, and September 1981,
and that the three remaining miners were never terminated and are still
employed by Lizza.
The judge credited Lizza's evidence. There is no question that
Schulte had a poor attendance record, and indications are that he was
also insubordinate. As a matter of bona fide company policy, Lizza
employed a system of progressive discipline, which incorporated both
notice and an opportunity to conform errant conduct. Schulte was warned
of the possibility of discharge and disciplined within the strictures of
established company policy. While the evidence concerning consistent
and disparate treatment is not to~ally harmonious, the substantial

17

evidence standard governs our review. We conclude that . sufficient
credible·evidence exists to support the judge's conclusion that Schulte's
discipline was consistent with that administered to other employees. ~/
We briefly address Schulte's final argument that the judge was
vague in his analysis of the evidence regarding disparate treatment.
his decision, the judge stated:

In

Schulte claims that co-workers Harley, Bell, and
Brock had attendance records as poor as his own but
were not similarly discharged. The time cards for
those employees are in evidence, however, and Schulte
has not shown how those records support his argument.
Moreover, from my own independent appraisal of those
records, I do not find that they support Schulte's
contention in this regard.
4 FMSHRC at 1244. While we can agree with Schulte that the judge was
extremely brief in his analysis of the evidence regarding disparate
treatment, we do not find his decision to be impermissibly vague. Both
at the hearing level and on review, Schulte has failed to show specifically
how the time cards in evidence support his position. Presented as raw
data, the evidence is open to various interpretations. We will not
disturb the interpretation adopted by the judge because, as we have
already indicated, it is supported by substantial evidence.
In sum, the evidence shows that other miners received warnings,
suspensions, and discharges under the company's disciplinary policy.
Taken in conjunction with the evidence of Schulte's poor attendance and
insubordination over a relatively limited period of time, we find substantial evidence to support the judge's conclusion that Lizza would
have discharged Schulte in any event for his unprotected activity alone.

'§_/
At the hearing, Schulte testified that immediately following the
meeting on October 15, 1980, when he was terminated, his foreman, Parzero,
stated to him "This is what you get, mister, for bringing in MSHA .••• "
Parzero denied the statement. Boisvert, who was in the vicinity at the
time, testified that he was not able to hear their conversation. Schulte
additionally testified that shop steward Crawn, stated to him, "[Y]ou
stirred up a hornet's nest. It's a new company. They didn't need the
trouble. That's why they routed you out." Had this evidence been
credited, it would have cast severe doubt on Lizza's defense. The judge
specifically discredited Schulte's testimony regarding Parzero and
discounted his testimony regarding Crawn. Nothing appears in the record
that would support the extraordinary step of reversing these credibility
resolutions. 4 FMSHRC at 1241 n. 3 •. We also note that the record in
this case does not support Schulte's further argument that Boisvert,
terminated after Schulte's discharge, was also a victim of discrimination.

18

For the reasons stated above, we affirm the decision of the administrative law judge.

L. Clair Nelson, Commissioner

19

Distribution
Frederick D. Braid, Esq.
Rains & Pogrebin, P.C.
Rains Building
210 Old Country Road
Mineola, New York 11501
for Lizza Industries, Inc.
G. Martin Meyers, Esq.
Suite 106
Denville Professional Plaza
35 W. Main Street
Denville, New Jersey 07834
for Walter Schulte
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

20

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

January 9, 1984

DAVID HOLLIS

v.

Docket No. WEVA 81-480-D

CONSOLIDATION COAL COMPANY
DECISION
This case arises under section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V 1981). In his
decision below, the Commission's administrative law judge dismissed the
miner's discrimination complaint on the grounds that it had been untimely
filed and that the discharge of the miner by Consolidation Coal Company
("Consol") did not violate the Mine Act. 4 FMSHRC 1974 (November 1982)(ALJ).
We affirm the judge's decision on both grounds.
The complaining miner, David Hollis, was employed at Consol's Osage
No. 3 Mine, an underground coal mine located near Morgantown, West Virginia.
Hollis was active in safety matters and in the affairs of Local Union 4043,
United Mine Workers of America, which represented miners at the mine. In
April 1980, Hollis was elected to the union safety committee. The President
of the UMWA Local appointed him chairman of the committee, and he served in
that capacity until his discharge on September 29, 1980.
The circumstances leading to Hollis' discharge occurred on September 26,
1980. At the end of the afternoon shift that day, Hollis and another miner,
William Coburn, were waiting to take an elevator out of the mine. Hollis
confronted Coburn for attempting to leave work early and an altercation
ensued. The evidence shows that Hollis was the instigator, or at best the
more aggressive of the two, in the incident. At some point, Hollis either
struck or grabbed Coburn. While riding up in the elevator with a number of
other miners, Hollis had to be restrained on several occasions from grappling
with Coburn. At the time of the altercation, Consol's mine rules proscribed
fighting and described it as a dischargeable offense.
On September 29, 1980, Consol discharged Hollis and Coburn for fighting.
Both miners then filed grievances under the collective bargaining agreement
in effect at the mine. The arbitrator in Coburn's case ordered Coburn reinstated on the grounds that Coburn was the victim in the fight and that he had
acted in self-defense. The arbitrator in Hollis' case issued a decision on
October 20, 1980, upholding Hollis' discharge for fighting.

21

On October 15, 1980, five days before the arbitrator's decision concerning his grievance, Hollis filed complaints with respect to his discharge with the National Labor Relations Board and the West Virginia Human
Rights Commission. The specific nature and outcome of his NLRB complaint
are not disclosed by the record. His complaint to the Human Rights Commission alleged that his discharge was racially discriminatory. The record
does not show the outcome of this complaint. Following the arbitrator's
decision, Hollis discussed appealing the decision with the union personnel
who had represented him before the arbitrator. Hollis decided not to appeal,
and was subsequently advised by a law professor whom he consulted to retain
a labor lawyer •. Hollis did not do so for some time.
Hollis testified that in late Harch 1981, he was gathering information,
which he believed might be relevant to his Human Rights Commission case, at
the Morgantown office of the Department of Labor's Hine Safety and Health
Administration ("MSHA"). Hollis also testified that it was at this point he
first learned of his right to file a complaint of discriminatory discharge
under section lOS(c) of the Mine Act, 30 U.S.C. § 815(c)(Supp. V. 1981).
On April 7, 1981, Hollis filed his initial section lOS(c) complaint with
MSHA.
After investigating Hollis' complaint, MSHA made an administrative
determination that his discharge did not violate the Hine Act and declined
to file a complaint with this independent Commission on his behalf. Hollis
then filed his own discrimination complaint with the Commission pursuant
to section 105(c)(3) of the Act, 30 U.S.C. § 815(c)(3). At the ensuing
hearing before the Commission's administrative law judge, Consol moved
to dismiss the case on the grounds that Hollis' initial complaint under
the Hine Act, filed April 7, 1981, was untimely.
The Commission's judge concluded that Hollis' complaint was untimely
under the 60-day time limit set forth in section 105(c)(2) of the Mine Act,
30 U.S.C. § 815(c)(2). 4 FMSHRC at 1974-77. 1/ The judge discredited
Hollis' testimony that he had been ignorant of his rights under the Mine
Act until his March 1981 visit to the Morgantown HSHA office. 4 FMSHRC at·,
1976-77. The judge found instead that Hollis had known of his Hine Act-remedies during the 60-day period following his discharge but had deliberately chosen to pursue other avenues of relief before filing his
1/

Section 105(c)(2) states in pertinent part:
Any miner ••• who believes that he has been
discharged, interfered with, or otherwise
discriminated against by any person in violation of [section lOS(c)] may, within 60
days after such violation occurs, file a
complaint with the Secretary [of Labor]
alleging such discrimination ••••

30 U.S.C. § 815(c)(2)(emphasis added).

22

section 105(c) complaint over four months past the Act's 60-day time limit.
Id. Relying in part on the arbitrator's detailed findings, the judge also
concluded that Hollis was discharged entirely because of his unprotected
conduct in the fighting incident, and not because of his protected activities. 4 FMSHRC at 1978-96. The judge further concluded, however, that
even if Hollis' termination were motivated in some part by his protected
activities, the operator would have discharged him in any event for the
fighting incident alone. 4 FMSHRC at 1996. We agree with the judge's
conclusions.
We first address the timeliness of Hollis' initial section 105(c) discrimination complaint. In relevant part, section 105(c)(l) of the Mine Act
prohibits the discharge of a miner, or other discrimination against him,
because of his exercise of any statutory right afforded by the Act. }:_/ If
a miner believes that he has been discharged in violation of the Mine Act
and wishes to invoke his remedies under the Act, he must file his initial
discrimination complaint with the Secretary of Labor within 60 days after
the alleged violation. 30 U.S.C. § 815(c)(2). ]_/

!:_/

Section 105(c)(l) provides:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise
of the statutory rights of any miner, representative of
miners or applicant for employment in any coal or other
mine subject to this Act because such miner, representative of miners or applicant for employment has filed or
made a complaint under or related to this Act, including
a complaint notifying the operator or the operator's agent,
or the representative of the miners at the coal or other
mine of an alleged danger or safety or health violation in
a coal or other mine, or because such miner, representative
of miners or applicant for employment is the subject of
medical evaluations and potential transfer under a standard
published pursuant to section 101 [30 U.S.C. § 811 (Supp. V
1981)] or because such miner, representative of miners or
applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or
has testified or is about to testify in any such proceeding,
or because of the exercise by such miner, representative of
miners or applicant for employment on behalf of himself or
others of any statutory right afforded by this Act.

30 u.s.c. § 815(c)(l).
3/
After investigation of the miner's complaint, the Secretary is
;equired to file a discrimination complaint with this independent
Commission on the miner's behalf if the Secretary determines that the
Act was violated. 30 U.S.C. § 815(c)(2). If the Secretary determines
that the Act was not violated, he shall so inform the miner, and the
miner may then file his own complaint with the Commission. 30 U.S.C.
§ 815 (c) (3).

23

We have held previously that the purpose of the 60-day time limit is to
avoid stale claims, but that a miner's late filing may be excused on the basis
of "justifiable circumstances." Joseph W. Herman v. TMCO Services, 4 FHSHRC
2135 (December 1982). The Mine Act's legislative history relevant to the
60-day time limit states:
While this time-limit is necessary to avoid
stale claims being brought, it should not
be construed strictly where the filing of
a complaint is delayed under justifiable
circumstances. Circumstances which could
warrant the extension of the time-limit
would include a case where the miner within the 60-day period brings the complaint
to the attention of another agency or to
his employer, or the miner fails to meet
the time limit because he is misled as to
or misunderstands his rights under the Act.
S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at
624 (1978)(emphasis added). Timeliness questions must be resolved on a
case-by-case basis, taking into account the unique circumstances of each
situation.
In the present case, there is no dispute that Hollis was discharged
on September 29, 1980, but did not file a complaint of discrimination with
the Secretary until April 7, 1981, more than four months after the statutory
deadline for filing such a complaint. The judge did not find Hollis' claimed
ignorance of his rights under the Act to be credible. 4 FMSHRC at 1977.
Rather, the judge concluded that Hollis knew of his section lOS(c) remedies
within the 60-day period following his discharge but deliberately elected to
seek other avenues of relief. The judge based these determinations, in part,
upon the following findings:
It is not disputed that [Hollis] had been an active,
if not militant, chairman of the Safety Committee
since his appointment hy the local union in April
1980, and that in that capacity he frequently met
with state and Federal (MSHA) safety officials.
He had access to copies of the Federal law and
Hollis himself asserts that he "knew the law"
and had more knowledge of the Federal Mine
Safety law than any other member of the Safety
Committee. Moreover, the successor chairman of
the Safety Committee, Edward Pugh, acknowledged
that it was one of the duties of that position
to advise miners of their rights under section
lOS(c) of the Act. The fact that Hollis has
also achieved a high level of education, having
completed two years of college, also reflects
on his ability to have understood and waived
his rights.
4 FMSHRC at 1977.

The judge also found that even if Hollis had not known of his Mine Act
rights initially, the arbitration decision provided adequate notice of these
rights at a time when more than half of the statutory filing period remained.
The relevant portion of the arbitration decision stated: "In both the Mine
Health and Safety Act and the National Labor Relations Act, there are
prohibitions against an employer taking disciplinary action against an
employee for making charges or filing claims under the particular
legislation." Operator's Exhibit 15, at p. 37.
When reviewing a judge's credibility resolutions, as here, our role is
necessarily limited. The judge observed Hollis as a witness and did not
believe his testimony of ignorance concerning his Mine Act rights. We
discern nothing in the record that would justify our taking the extraordinary step of overturning this credibility resolution.
Furthermore, apart from Hollis' discredited testimony, substantial
evidence supports the judge's inference that Hollis did know of his Mine
Act rights during the 60-day time period. The record shows that Hollis was
an aggressive safety committee member. He asserted that he "knew the law."
During Hollis' tenure as safety committee chairman, he had filed over 30
safety complaints and had met frequently with federal and state officials
on his own time to discuss safety matters. The inference from this evidence
that Hollis knew of his section 105(c) remedy is convincing. Additionally,
we are not prepared to say that the further inference of notice, which the
judge drew from the arbitrator's decision, was impermissible.
We are cognizant of the fact that Hollis filed complaints with other
agencies within 60 days from the date of his discharge. We conclude,
however, as did the judge, that he pursued these alternate avenues of
relief with knowledge of his section 105(c) rights.
We do not believe
that Congress, in the passage of legislative history quoted above,
intended for us to excuse a miner's late-filing where the miner has
invoked the aid of other forums while knowingly sleeping on his rights
under the Hine Act.
In sum, the record affords ample support for the judge's findings that
Hollis knew of his Mine Act rights but fai.led to exercise them within the
statutory time restriction set forth in section 105(c)(2) of the Act. We
therefore conclude that "justifiable circumstances" are not present to excuse
Hollis' serious delay in filing.
Moreover, even assuming the timeliness of Hollis' discrimination complaint,
we also conclude that substantial evidence supports the judge's determination that Hollis was discharged for non-discriminatory reasons.
We first established the general principles for analyzing discrimination cases in Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786 (October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co., v. Marshall, 663 F. 2d 1211 (3d Cir. 1981), and Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981). 1n these
cases, we held that a complainant, in order to establish a prima facie case
of discrimination, bears the burden of production and proof to show (1) that
he engaged in protected activity and (2) that an adverse action was taken
against him motivated in any part by the protected activity. In order to

25

rebut a prima facie case, an operator must show either that no protected
activity occurred or that the adverse action was in no part motivated by
protected activity. If an operator cannot rebut the prima facie case in
this manner, it may nevertheless affirmatively defend by proving that (1)
it was also motivated by the miner's unprotected activities, and (2) that
it would have taken the adverse action in any event for the unprotected
activities alone. The operator bears an intermediate burden of production
and proof with regard to these elements of defense. This further line of
defense applies only in "mixed motive" cases, i.e., cases where the adverse
action is motivated by both protected and unprotected' activity. Haro v.
Magma Copper Co., 4 FMSHRC 1935, 1937 (November 1982). The ultimate""""burden
of persuasion does not shift from the complainant. Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FNSHRC at 818 n. 20. The Supreme
Court recently approved the National Labor Relations Board's virtually identical
analysis for discrimination cases arising under the National Labor Relations
Act. NLRB v. Transportation Management Corp., 76 L.Ed. 2d 667 (1983). See
also Baich v. FHSHRC, 719 F.2d 194 (6th Cir. 1983)(approving the Commission's
~la-Robinette test).
In this case, there is no dispute that Hollis engaged in protected
activity, largely in the form of making safety complaints, prior to his
termination. The judge concluded, however, that Hollis was discharged
solely for his unprotected conduct in the fighting incident. On review,
Hollis argues that the judge erred in relying to some extent on the
arbitrator's findings concerning the fight and Consol's reasons for firing
him. Hollis also asserts that the judge erred in his analysis of Consol's
motivation for the discharge. We find these contentions lacking in merit.
In Secretary on behalf of Pasula v. Consolidation Coal Co., supra, we
held that in discrimination cases our judges may admit arbitral decisions
and accord them such weight as may be appropriate. 2 FMSHRC at 2794-96. 4/
We indicated that according weight to the findings of arbitrators may aidthe Commission's judges in finding facts under our Act, "'especially
where the issue is solely one of fact, specifically addressed by the parties,
and decided by the arbitrator on the basis of an adequ?te record.'" 2 FMSHRC
at 2795, quoting Gardner v. Alexander-Denver Co., 415 U.S. 36, 60 n.21
(1974)(emphasis added).

4/
In line with the Supreme Court's analogous approach in Alexander v.
Gardner-Denver, 415 U.S. 36 (1979), we declined to enunciate rigid
standards governing the weight that should be accorded arbitral findings.
We indicated, however, that relevant factors for determining the appropriate weight included such considerations as whether the arbitrator had
addressed the miner's Mine Act rights; the similarity, if any, between
relevant rights under the collective bargaining agreement and e1e Act;
whether the findings in question were factual in nature; the adequacy of
the arbitral record; the procedural fairness of the arbitral proceedings;
and the special competency of the arbitrator. 2 FMSHRC at 2795-96.

26

The only aspects of the arbitral decision relied upon by the judge are
the factual findings regarding the fight and Consol's reasons for discharging
Hollis. Both subjects were thoroughly tried and argued before the arbitrator.
The judge carefully applied the Pasula criteria iri making use of these
findings (4 FMSHRC at 1980-81 & n. 5), and we agree with him that the
criteria are satisfied. We perceive no error in the judge's reliance on
the arbitrator's decision concerning the factual issues of the fight and
Consol's reasons for discharge. Moreover, the judge himself reviewed the
record de nova and arrived at the same conclusions reached by the arbitrator.
4 FMSHRC-at 1981. 5/
With respect to the merits of the discrimination case, it is clear that
Hollis was the instigator of the fight with Coburn on September 26, 1980.
The judge incorporated the arbitrator's detailed findings on this point
(4 FMSHRC at 1981-88), which included Hollis' admission that the confrontation got out of hand and that his conduct set a bad example. 4 FMSHRC at
1985. Moreover, in Coburn's arbitration proceeding, the UMWA Local
representing Hollis argued that Hollis was the aggressor in the fight and
Coburn, the victim. The arbitrator of the Coburn grievance agreed.
The judge also found that Hollis, prior to September 26, 1980, had
notice of the operator's rules of conduct, and that one of the rules stated
that "fighting is a dischargeable offense." Operator's Exhibit 6. Hollis
argues that the operator did not strictly enforce the rules of conduct
until the fighting incident. The record discloses, however, that following a
raucous 1979 Christmas party, the union requested mine management to do something about the fighting at the mine. Tr. 813, 944. The mine superintendent
replied that something would be done, and thereafter the rules were tightened
and fighting was expressly labeled a dischargeable offense. Tr. 65-66. We
conclude, as did the judge and arbitrator, that management was impelled to
enforce strictly the fighting rules because the union wanted the fighting
at. the mine stopped. We also concur with the judge that Hollis' fight with
Coburn "was a serious breach of the known rules of conduct of a severity

5/
Hollis claims that certain evidence adduced at the hearing before the
judge had not been introduced at the arbitration hearing and, accordingly,
should have been considered by the judge in deciding the issues surrounding
the discipline over the fighting incident. The judge did take this evidence
into account:
While the evidence developed at the hearing before
me provided some greater detail than was available
to the arbitrator, there is nothing in that additional evidence that would warrant any change in
the analysis and conclusions of these incidents
made by the arbitrator.
4 FMSHRC at 1995.

2'7

far beyond that of any other incident cited [by Hollis to prove discriminatory discipline.]" 4 FMSHRC at 1996. 6/
Accordingly, we conclude that substantial evidence supports the judge's
finding that Hollis was discharged solely for his unprotected conduct in the
fighting incident. Thus, Hollis failed to establish a prima facie case of
discriminatory discharge. We are mindful, as was the judge, that some
evidence exists that could support an inference of a nexus between Hollis'
safety complaints and his discharge. Even had a prima facie case of
discrimination been made out, however, we find that substantial evidence
supports the judge's further finding that Consol affirmatively defended
by proving that Hollis would have been fired anyway solely on the basis of
the fighting incident.
For the foregoing reasons, we affirm the judge's dismissal of the discrimination complaint. 7/

st~,

Fra

C

dJ{l.:.,j ;~
L. Clair Ne~1on, Commissioner
~
.

6/
Pointing to Coburn's reinstatement, Hollis also maintains that he was
the victim of disparate treatment. In the Hollis arbitration decision, the
arbitrator found that "[t]here was nothing in the record to raise any inference that the employer prosecuted the case against Mr. Coburn with any less
vigor than it has this case." Operator Exhibit 15, at p. 34. After reviewing
the record, we agree.
7/
Certain exhibits, introduced and received into evidence before the judge,
-;ere not contained in the record before us on review. Accordingly, we issued
an order directing the parties to submit these exhibits so that the record
could be made complete. The parties did so, and we have accepted the exhibits
and made them part of the record.

28

Commissioner Lawson concurring and dissenting:
I concur in the result reached by the majority, and agree that
substantial evidence supports the judge's finding that Hollis was
discharged solely for his unprotected conduct in the fight out of which
this case arose. I disagree with their conclusion that the complaint
was untimely filed. The majority has determined that Hollis "knew of
his section 105(c) remedy", because "he had filed over 30 safety complaints and had met frequently with federal and state officials on his
own time to discuss safety matters, and " ..• was knowingly sleeping on
his rights."
They.found "convincing" the inference from this evidence
that Hollis knew of his Mine Act rights, and credited the "further
inference of notice which the judge drew from the arbitrator's decision".
S1i p op . at 5 •
The difficulty with this double inference analysis is that the only
evidence of record on the question of Hollis knowledge of 105(c) is the
unshaken denial thereof by the complainant. Nor did any witnesses testify
to the contrary. Tr. 668, 701-704. The record thus confirms that complainant
was unaware of his 105(c) ~ights until a few days before he actually filed
the complaint. TR. 666, 668. 4 FMSHRC 1975. This is unsurprising,
given Hollis' short tenure as a member of the safety committee, and the
uncontroverted testimony that no 105(c) cases had ever arisen at this
mine, either during Hollis' committee service, or in the seventeen years
preceding Hollis' discharge. Tr. 891, 904. There is no dispute that
filing was promptly had, once, as complainant testified, he became aware
of his 105(c) rights. No reason appears evident why a miner as "aggressive"
as Hollis would not have filed under 105(c) if he were aware of such: the
logical inference would appear to be to the contrary.
Indeed, counsel for the operator conceded that Consol " .•• cannot
bring forth any direct evidence that he (Hollis) did have knowledge (of
his 105(c) rights) but ••• it is reasonable to assume that he would know
section 105(c)". Tr. 6.
In Schulte v. Lizza Industries, Inc.,
FMSHRC
(issued today), my
colleagues agreed with me that the miner's testimony that he was ignorant
of 105(c)'s timeliness strictures, conceded by the operator in that case
also, was a consideration sufficient to excuse a (31-day) delay in filing
the complaint. In the instant litigation, however, identical ignorance is
found by the majority to be insufficient, notwithstanding this operator's
admitted inability to present any contrary evidence.
Our standard of review is the familiar one of "substantial evidence",
required in most federal administrative proceedings. Section 113(d)(2)(A)(ii).
Substantial evidence has been defined as "more than a mere scintilla ... mere
uncorroborated hearsay or rumor does not constitute substantial evidence";
"it must do more than create a suspicion of the fact to be established".
The record may not be "wholly barren of evidence". Universal Camera v.
National Labor Relations Board, 340 U.S. 474, 477 (195l)(citing Consolidated
Edison Company v. National Labor Relations Board, 305 U.S. 197, 229 (1938)).

29

Here, given the uncontradicted testimony of the complainant, and
the admitted inability of this operator to adduce any evidence to the
contrary, other than the contention that it woul.d be "reasonable to
assume" knowledge by this miner of section 105(c), the finding of the
judge, affirmed by the majority, is sub-scintilla. The record is,
indeed, "wholly barren of evidence", and fails to meet the test of
substantial evidence.
The language of the Act as to time limits, of course, is precatory,
not mandatory: "Any miner ••. who believes that he has been .•• discriminated against by any person in violation of the subsection may,
within 60 days after such violation occurs, file a complaint with the
Secretary ..•. " Section 105 (c) (2).
(Emphasis added.) This language is
obviously not accidental, as the majority concedes, the judge below
acknowledged, and the legislative history makes evident. Slip op. at 4.
This operator was unable to demonstrate any prejudice it suffered
because of the fact that miner Hollis did not file his complaint within
60 days. Tr. 815-822. Nor, as the record reveals, was Consol able to
show that any instruction was ever given by it to Mr. Hollis concerning
the time limits for filing claims under section 105(c). Tr. 863. There
is no dispute that Hollis had brought his complaint to the attention of
not only his employer, through the contractual grievance procedure, but
to the West Virginia Human Rights Commission, and the National Labor
Relations Board as well.
This miner had thus indisputably met at least two of the three
tests enumerated in the legislative history (slip op. at 4), either of
which would have been sufficient under the guidelines set forth in the
legislative history. As we noted in the analogous decision of UMWA v.
Consolidation Coal, 1 FMSHRC 1300, 1302 (September 1979): 1./
In interpreting remedial safety and health legislation,
"[i]t is so obvious as to be beyond dispute that .. .
narrow or limited construction is to be eschewed .. .
[L]iberal construction in light of the prime purpose
of the legislation is to be employed." St. Mary's
Sewer Pipe Co. v. Director, U.S. Bureau of Mines,
262 F.2d 378, 381 (3rd Cir. 1959); Phillips v.
Interior Board of Mine Operations Appeals, 500 F.2d
772, 782 (D.C. Cir. 1974), cert. denied, 420 U.S. 938
(1975). We believe that a liberal construction of the
30-day filing period for compensation claims requires

1./ Herman v. Imco Service is inapposite (slip op. at 4).

There the miner
took no action of any sort until eleven months after his discharge, when
he filed a complaint with a state (Nevada) employment agency. That decision
correctly reflected that record, and that the miner's failure to file a complaint "until eleven months after his discharge was simply because he did
not want to do so". 4 FMSHRC 2138.

30

a conclusion that the period may be extended in appropriate circumstances. See, Dartt v. Shell, 539 F.2d
1256, 1260 (10th Cir. 1976), aff'd by equally divided
court, 434 U.S. 99 (1977); Kephart v. Institute of Gas
Technology, 581 F.2d 1287 (7th Cir. 1978); Moses v.
Falstaff Brewing Corporation, 525 F.2d 92 (8th Cir. 1975).
Furthermore, while section 111 of the 1977 Act does not
specify a time limit for the filing of compensation
claims, the Act's discrimination provisions contain
analogous time limits.
The majority's approval of the judge's further reliance on the
arbitrator's minimal mention of the Act, (as well as the National Labor
Relations Act, to which this miner had already resorted), is even less
explicable. On its face that decision provides no notice of either
section 105(c) or the time limits thereunder, and obviously makes no
reference to remedies under the Act. Slip op. at 5. In any event, many
of the Act's prohibitions are enforceable only by the Secretary, not by
an individual miner (see e.g., sections 104, 108, 109 and 110). '];../
Further, contrary to the judge's finding, the arbitrator did not reject
Hollis "claim that he had been fired for activities protected by the
Act". 11 The only section of the Act referred to by the arbitrator was
section 103(g), which has no bearing on the issue here disputed. Dec. at
4. Obviously, the arbitrator had no authority or jurisdiction to rule
either for or against this miner on any issue over which the Commission
has jurisdiction.
Imputing knowledge of 105(c) to this, or any other, miner thus has
no precedential support, and is contrary to both the spirit of the Act
and its legislative history. The latter, and not by inference, clearly
sanctions filing 105(c) complaints even though 60 days may have passed.
Slip. op. at 4.
The majority's upholding the judge's finding of Hollis knowledge
consequently only affirms judicial speculation, not record evidence. It
is, under the rationale adopted here today, apparently insufficient now
for a miner to present uncontroverted evidence that he or she had no
knowledge of section 105(c). The trier of fact may henceforth find
knowledge, notwithstanding the absence not only of affirmative testimony,
but the existence of testimony to the contrary. This error is especially
egregious here, given the assertion that the miner "should have known"
of his rights, and the judge's failure to comment on Hollis' demeanor,
or to find him to be unpersuasive or untrustworthy. Hollis' "access to
copies of the Federal law .•. his safety committee chairman successor's

2/ The judge, without explanation, asserts that the arbitrator's decision
clearly advised (Hollis) of those rights" (emphasis added). (Dec. at 4).
I fail to find either advice or clarity in that language, nor is there any
explanation of "those rights" elsewhere in the decision.
11 Hollis was discharged pursuant to the collective bargaining agreement.
(Oper. Exh. 13). As the arbitration decision noted: "The question presented is whether just cause has been established for the discharge of
the Grievant for fighting underground and on the cage on September 26, 1980".
The Award of the arbitrator found that "the Employer has established just
cause for the discharge of the Grievant." Oper. Exh. 15 at 1 & 42.
11

31

"acknowledge[ment]" that one of Hollis' duties was to advise miners of
their rights under 105(c) .•. his "high" level of education" (slip op.
at 4), could equally persuasively lead a disinterested observer to the
conclusion that this miner was, in truth, ignorant of 105(c), or perhaps
even neglectful of his duties as a union representative.
More importantly, acceptance of the majority's rationale subverts
the burden of proof allocations so carefully constructed in Pasula and
Robinette, supra, and their requirement that the employer must justify
disciplinary action. See also National Labor Relations Board v.
Transportation Management Corp., 51 U.S.L.W. 476 (June 15, 1983). The
majority's ready acceptance of the judge's "inference" that Hollis "knew"
of his section 105(c) remedy, and additional "inference" of notice drawn
from an arbitrator's decision such as this, thus impermissibly eases an
operator's duty to present the evidence necessary to establish a nondiscriminatory motive for any discharge or other discipline it chooses
to impose.
Mere assertion that this miner "should have known of his rights
under the Act to file complaints", supra, (Dec. at 4), is not evidence,
much less substantial evidence. Although the judge and the majority here
seek to frame the issue in credibility terms, there is no escaping the
fact that this record is devoid of any evidence Hollis knew of the
existence of section 105(c), much less its time filing requirements.
I therefore dissent from the majority's holding that the filing
hereunder was untimely, but concur in the dismissal of the complaint.

A. E. Lawson, Commissioner

32

Distribution
Jerry F. Palmer, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Jay Montgomery Brown, Esq.
515 Devany Building
P.O. Box 269
Fairmont, West Virginia 26554
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

33

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

January 13, 1984

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

Docket Nos. WEVA 80-116-R
WEVA 80-117-R
WEVA 80-118-R
WEVA 80-659

v.

CONSOLIDATION COAL COMPANY
DECISION
This consolidated proceeding presents the question of whether roof control
violations cited in a section 104(d)(l) citation were significant and substantial,
within the meaning of Cement Division, National Gypsum Co., 3 FMSHRC 822 (April
1981). The Commission's administrative law judge concluded that the violations
by Consolidation Coal Company ("Consol") were significant and substantial, and
affirmed the citation. 4 FMSHRC 747 (April 1982)(ALJ). 1/ We granted Consol's
petition for discretionary review, which challenged only-the judge's significant
and substantial findings. For the reasons that follow, we affirm.

1/
This same proceeding was originally before another Commission administrative law judge, who affirmed the citation after finding a significant and
substantial violation under the then-applicable, pre-National Gvpsum case law.
2 FMSHRC 2862 (October 1980)(ALJ). We declined to grant Consol's petition for
review of that decision. Thereafter, Consol petitioned the United States Court
of Appeals for the Fourth Circuit for review of the judge's decision, which had
become a final decision of the Commission pursuant to 30 U.S.C. § 823(d)(l)(Supp.
V 1981). The Court remanded the case with instructions that the Commission
reconsider the issues in light of our intervening decision in National Gypsum,
supra. Consolidation Coal Co. v. FMSHRC, No. 80-1862, 4th Cir., October 13,
1981 (unpublished opinion). Because the Commission judge who originally heard
the case had left the Commission, the case was reassigned on remand to the
judge whose decision is now before us on review.

34

On October 30, 1979, during an inspection of Consol's Shoemaker Mine,
near Moundsville, West Virginia, an inspector of the Department of Labor's
Mine Safety and Health Administration ("MSHA") issued a citation to Consol
under section 104(d)(l) of the Federal Hine Safety and Health Act of 1977
("Mine Act"), 30 U.S.C. § 814(d)(l)(Supp. V 1981). The citation alleged a
violation of 30 C.F.R. § 75.200. 2/ This citation, which is the sole subject
of this proceeding, stated:
The approved mine roof control plan was not being
followed in 4 Right 5 North section (037) and on the
section supply track in that roof bolts were spaced
from 4 feet 7 inches to 7 feet 6 inches apart and from
bolt to coal rib in approximately 350 different locations
that were measured in the (intake air) No. 1 entry from
30 to 33 room and 31, 32, and 33 rooms, and in the track
from 6 to 18 stopping for a total of approximately 1500
feet in length and more bolts may be spaced wide .•.•
The inspector included in the citation his findings that the violations were
significant and substantial and were caused by the operator's unwarrantable
failure to comply with the standard.
As alleged by the inspector, the spacing of roof bolts in about 350 locations in the 4 Right 5 North working section exceeded the 4 foot-6 inch maximum
permitted by Consol's roof control plan. The greatest concentration of overwide bolts, including some that were 7 feet or more apart, was along the
section's supply track. The inspector testified that although roof conditions
generally were good, the roof was cracked, loose, or unsupported between halts
in three unspecified locations and could fall at any time. A roof fall caused
by a clay vein had occurred under supported roof when Consol first advanced this
s,ection, in about August or September 1978. Roof falls also had occurred in
unsupported areas of the section. Two witnesses had observed pieces of fallen
rock under supported roof at unspecified times and in unspecified locations.
One of these witnesses had heard of employees receiving minor lacerations from
pieces of falling rock. However, no lost-time injuries from roof or rock falls
apparently had been reported in this section.
All miners working in the section had been exposed to the over-wide bolts
on every shift for at least six months, because they walked under the widestspaced bolts in the supply track on the way to the dinner hole and the tool
storage area. Fewer employees than the normal production crew of 7-8 were
working in the section on October 30, 1979, when the citation was issued.
Consol had voluntarily closed the section on October 26 after receiving a
citation that day for roof bolting violations. Nonetheless, on October 30
at least one mechanic and one maintenance foreman were working in the
section, and an unspecified number of roof bolters were also abating
violations there.

2/
In relevant part, 30 C.F.R. § 75.200, a mandatory safety standard dealing
with roof control, requires operators to adopt and comply with roof control
plans approved by the Secretary of Labor.

35

On remand from the Fourth Circuit, Consol conceded before the Commission
judge that the over-wide roof bolts violated its roof control plan and hence
constituted a violation of 30 C.F.R. § 75.200, but denied that the violations
were significant and substantial. The judge analyzed this case in light of
National Gypsum, relying in large part on the the findings of fact made hy
the Commission judge who originally heard the case. In concluding that the
violations were significant and substantial, the judge acknowledged the
evidence establishing generally good roof conditions. He attached greater
weight, however, to the evidence that there had been at least one prior roof
fall and that widely-spaced bolts increased the possibility of roof falls.
He also relied on the inspector's testimony that the roof was loose, cracked,
or unsupported in three locations and could fall at any time.
The judge narrowly interpreted the original judge's finding that there
was no evidence of roof cracks, splits, or loose bolts, as not including the
widest-spaced bolts in the supply track. 4 FMSHRC at 769-io:- In the judge's
view, the fact that employees had worked and traveled safely in the section for
six months prior to the October 30 citation did not prove the absence of a
hazard which could result in a serious injury. In this regard, he noted that
after the initial October 26 citation, a considerable amount of additional
bolting had been necessary and that the abatement work was proceeding on the
day of the section 104(d)(l) citation. 4 FMSHRC at 769. Therefore, the
judge concluded that there was
a reasonable likelihood that the hazards presented by
the widely-spaced roof bolts as well as the areas described by the inspector as being loose between the bolts
at several locations, constituted a significant and
substantial hazard to those miners working and traveling
through the cited areas. The danger presented was a roof
fall, particularly in the track entry, where the roof
bolt spacing was the widest, and the real potential for
a fall in any of the locations was the direct result of
the violation.
4 FMSHRC at 770.
The sole question before us is whether the roof control violations were
''of such a nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard.'' 30 U.S.C.
§ 814(d)(l).
We have previously interpreted this statutory language as follows:
[A] violation is of such a nature as could significantly
and substantially contribute to the cause and effect of
a mine safety or health hazard 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.
National Gypsum, 3 FHSHRC at 825. Noting that the Mine Act does not define
"hazard," we construed the word to "denote a measure of danger to safety or

36

health." 3 FMSHRC at 827. We indicated further that a violation "'significantly
and substantially' contributes to the cause and effect of a hazard if the
violation could be a major cause of a danger to safety or health •••• In other
words, the contribution to cause and effect must be significant and substantial."
Id. (footnote omitted).
As we stated recently, 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; 3/ (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. Mathies
Coal Co., FMSHRC Docket No. PENN 82-3-R, etc., slip op. at 3-4 (January 6,
1984).
On review, Consol does not contest the first and fourth elements of proof
that is, the judge's finding of a violation or the reasonably serious nature of
the injury. Rather, Consol argues that the evidence does not support the judge's
conclusions that the over-wide spacing between the roof bolts could contribute
to a hazard, and that there was a reasonable likelihood any such hazard would
result in injury. We disagree.
As to Consol's first argument, substantial evidence amply supports the
judge's finding that the large numbers of over-wide roof bolts created a hazard
of roof falls. Mine roofs are inherently dangerous and even good roof can fall
without warning. 4/ As Consol's roof control plan states, the plan merely
establishes the minimum requirements for adequate roof support. Exh. G-1, at 4.

3/
We note that this case involves a violation of a mandatory safety
standard. Pending before us is a case which challenges the application of
National Gypsum to a violation of a mandatory health standard. Consolidation
Coal Co., FMSHRC Docket No. WEVA 82-209-R, etc. We intimate no views at this
time as to the merits of that question.
4/
Roof falls have been recognized by Congress, the Secretary of Labor, the
industry, and this Commission, as one of the most serious hazards in mining.
As we have stated:
A prime motive in enactment of the 1969 Coal Act was to
"[i]mprove health and safety conditions and practices at
underground coal mines" in order to prevent death and
serious physical harm. One of the problems that greatly
concerned Congress was the high fatality and injury rate
due to roof falls. The legislative history is replete
with references to roof falls as the prime cause of
fatalities in underground mines. [Citations and footnotes
omitted.]
Eastover Mining Co., 4 FMSHRC 1207, 1211 & n. 8 (July 1982).
(Footnote continued)

37

On October 30, the day of the citation, roof bolts were spaced in excess
of Consol's. plan in about 350 locations. Some of the bolts in the supply track
were 7 to 7 and a half feet apart, i.e., they exceeded by 2 and a half to 3 feet,
the 4 and a half foot spacing permitted by the plan. Consol's own general mine
foreman conceded that such overwide spacing increased the possibility of roof
falls. 4 FHSHRC at 769; Tr. 74. Further, the operator did not rebut the
inspector's testimony that in three locations the roof was cracked, loose, or
unsupported, and could fall at any time. Thus, we conclude that despite the
generally good conditions and the absence of reportable injuries in the
previous six months, these over-wide bolts created "a measure of danger to
safety or health." National Gypsum, 3 FHSHRC at 827. We therefore affirm
the judge's holding that there was a hazard.
The remaining question is whether the judge properly concluded that there
was a reasonable likelihood that the hazard contributed to by the roof control
violations would result in injury. Substantial evidence also supports this
conclusion. The widely-spaced bolts found in 350 locations on October 30,
in some instances up to 3 feet wider than permitted, represented a serious
deviation by Consol from the minimum requirements of its roof control plan.
(As the judge noted, bolts were too widely spaced in these 350 locations
even after Consol had added 140 bolts as a result of the October 26 citation.)
This large number of widely-spaced bolts and the often considerable distances
between the bolts amounted to a widespread and serious departure from the
minimum requirements for adequate roof support in the mine. Such major noncompliance dangerously increased the likelihood of roof fall accidents.
As noted above, every miner on every shift for six months was exposed to
the hazard created by the over-wide bolts along the supply track.
The fact
that no one was injured during that period does not ipso facto establish that
there was not a reasonable likelihood of a roof fall. There was testimony as
to past falls, and the inspector also stated that there was bad roof in three
locations in the section. While fewer miners than usual were in the section
on October 30 (because Consol had closed the section on October 26), at a
minimum the mechanic and the maintenance foreman working there were exposed
to the hazard. Had a roof fall occurred, there is a reasonable likelihood
of injury because of this exposure. In light of the foregoing, we affirm
the judge's holding that a reasonable likelihood existed that the hazard
contributed to by the roof control violations would result in injury, and
consequently that the violations were a major cause of a danger to safety. 5/
Fn. !:!_/ continued
Roof falls remain the leading cause of death in underground mines.
Despite decreased production and an overall decline in fatalities from 1981
to 1982, fatalities resulting from falls of roof, face, and rib in underground coal mines increased from 41 deaths in 1981 to 52 deaths in 1982.
Mine Safety and Health Administration, U.S. Department of Labor, Mine
Injuries and Worktime, Quarterly 17 (Closeout Ed. 1981); Hine Safety and
Health Administration, U.S. Department of Labor, 8 Mine Safety and HeaLth,
inside back cover (Spring-Summer 1983); see also Hine Injuries and \Jorktime,
Quarterly 17 (Closeout Ed. 1982).
~--~'}_/
We affirm the judge's holding on the bases specified above, but <lo not
otherwise endorse his evidentiary analysis of this issue.

38

In reaching this result, we reject Consol's subsidiary argument that the
judge's holding is inconsistent with National Gypsum. Consol's widespread and
serious noncompliance with the minimum requirements of its roof control plan,
which created the likelihood of serious injury, is indeed the type of situation
we contemplated in National Gypsum. 3 FMSHRC at 825-27.
For the foregoing reasons, we affirm the judge's holding that the violation was significant and substantial.

~C~er,~k

r

Clair! Nel,on, Commissioner
I

!

I

Commissioner Lawson concurring:
I agree with the majority as to the result reached and in their
affirmance of the decision of the judge below. However, for the reasons
expressed in my dissent in National Gypsum, supra, I disagree with their
analytical approach as set forth here and in that decision.

A. E. Lawson, Commissioner

39

Distribution
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Anthony J. Polito, Esq.
Corcoran, Hardesty, Ewart, Whyte & Polito, P.C.
Suite 210, Two Chatham Center
Pittsburgh, PA 15219
Michael Holland, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

40

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

20006

January 30, 1984

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

Docket No. WEST 81-385-M

ENERGY FUELS NUCLEAR, INC.
DECISION
This case involves an alleged violation of 30 C.F.R. § 57.6-116, a
mandatory blasting standard. A Commission administrative law judge held
that the operator, Energy Fuels Nuclear, Inc. (EFNI), did not violate
the standard, and vacated the citation. 4 FMSHRC 1970 (November 1982)(ALJ).
We granted the Secretary of Labor's petition for discretionary review.
For the reasons that follow, we reverse.
On September 9, 1980, Bryan Tate, a contract miner at EFNI's underground uranium mine, was injured in a blasting accident. A Department
of Labor Mine Safety and Health Administration (MSHA) inspector issued a
citation the following day after completing an accident investigation.
The citation alleged a violation of 30 C.F.R. § 57.6-116, which provides:

Mandatory. Fuse shall be ignited with hotwire
lighters, lead spitters, igniter cord, or other
such devices designed for this purpose. Carbide
lights shall not be used to light fuses.
On the day of the explosion, Tate drilled about 50 holes in the
face and 20 holes in the rib. Working alone, he loaded the holes with
explosives with full knowledge of the operator's requirement that two
miners be present when loading explosives and lighting fuses. See 30
C.F.R. § 57.6-114. Before igniting the fuses, Tate lit a test fuse to
determine how long it would be before the first fuse lit in the round

41

detonated the explosives. Using either a propane or butane torch, 1./
Tate proceeded to apply the torch flame directly to the thermalite
connectors that had been affixed to the ends of the safety fuses. 2/
This ignition procedure was contrary to EFNI's established policy that
miners must ignite multiple fuses by using igniter cord linked to safety
fuses by thermalite connectors. See also 30 C.F.R. § 57.6-114.
Although Tate believed that the test fuse indicated that he had 66
seconds remaining, the explosives in the first hole detonated sooner,
knocking him to the ground. A 10-12 second delay in the firing of the
second two holes, instead of the anticipated 4-5 seconds, permitted Tate
to crawl around the corner before the remainder of the round went off.
When the rest of the explosives detonated, Tate was injured by flying
rock. ll
The judge concluded that the Secretary did not establish a violation
of the cited standard. He reached this result even though both parties
had agreed at the hearing that the standard prohibits lighting of thermalite connectors with a torch, and even though the operator stated in its
post-hearing brief that it did not deny the fact of violation. The
judge construed the standard literally. He distinguished between thermalite connectors and safety fuses. Because he found that Tate used the
torch to light the thermalite connectors and that the connectors in turn

]:_/
From the record it is not clear which type of torch was used, but
the conflict is immaterial for purposes of our review.
'!:_/
A thermalite connector is a small metal capsule about 1 to 1-1/2
inches long, filled with an ignition compound that burns with intense
heat when ignited. One end of the thermalite connector is crimped onto
a safety fuse. The other end has a lip that can be pressed down to
secure igniter cord passed under the lip if multiple fuses are to be
linked together. Igniter cord is a "fuse, cordlike in appearance, which
burns progressively along its length with an external flame at the zone
of burning, and is used for lighting a series of safety fuses in the
desired sequence." 30 C.F.R. § 57.2. Igniter cord is marked at onefoot intervals, so a series of explosions can be detonated according to
the burning rate of the cord. Thermalite connectors can be attached at
different points along a length of igniter cord. The miner lights one
end of the igniter cord and leaves the blasting area. The cord burns at
a speed determined by the burning rate of the particular cord used,
igniting each thermalite connector seriatim. The ignition of the compound in the connectors instantaneously ignites the safety fuses. 4
FMSHRC at 1970; Exh. P-2.
3/
The flying rock tore a hole in Tate's back about 3 inches wide and
l-1/2 inches deep. According to Tate, he tried to return to work the
next day but was given three days off for disciplinary reasons.

42

ignited the fuses, he concluded: "Using a ••• torch to light the [thermalite connectors] may violate company policy, but it does not violate the
regulation." In dicta, he observed that he would have found a violation
if Tate had ignited the fuses directly with a torch. 4 FMSHRC at 1972.
Taking into account the intended purpose of section 57.6-116, we
hold that the judge erred in concluding that Tate's use of a torch to
light the thermalite connectors attached to the safety fuses did not
constitute a violation. The purpose of section 57.6-116 is to accomplish
fuse ignition in a safe manner. Safety fuse burns inside its cover.
Consequently,. there can be difficulty in determining if the fuse, rather
than just the cover, has been lit and precisely when ignition of the
fuse occurred. When a miner does not know with certainty whether, or
for how long, a fuse is burning, he may fail to leave the blasting area
in time. The fuse ignition devices specified in the standard accomplish
safe and reliable fuse ignition by means of an intensely hot flame and
a heat source that does not obscure or conceal evidence of the ignition
"spit," a visible jet of flame that shoots out of the safety fuse at the
moment its powder core is ignited. !±_/ The evidence shows that use of an
open-flame torch, such as that used in the present case, may obscure the
ignition spit emitted by the safety fuse. Thus, ignition of a safety
fuse by use of a torfh defeats the purpose of the standard by preventing
a miner from accurately determining when and if he has ignited the fuse.

4/ The problems attendant to ignition of safety fuses are described in
Exhibit P-6, the E.I. duPont de Nemours and Co., Blasters' Handbook,
175th Anniversary Ed. (1977):
The powder core of safety fuse burns inside its wrapping and
cannot be seen after the fire from'the initial spit. Some
brands emit smoke through the wrapping as the powder burns.
Visual discoloration on the outside of the fuse is readily
apparent; however, this may be some distance behind the
point of the burning core. For this reason it is not a
reliable indication of where the core is burning. The end
spit is a jet of flame about two inches long that shoots out
of the end of the fuse the moment it is lighted. It lasts
at least a second and is followed by smoke which rises from
the end of the fuse.
Here are some important reminders:
The fuse burns at the core and not at its cover. The cover
may burn without the ignition of the core. When properly
ignited, the core ignites with a jet of flame called the
"ignition spit". This spit shows the core is lit. Practice
ignition until you know the ignition spit. Persons who
fail to recognize the ignition spit, or who are misled by
the burning of the cover, have been killed or injured by
trying to relight fuse which has been ignited.
Exh. P-6 at 121-22 (emphasis in original).

43

vfuen a thermalite connector is crimped onto a safety fuse, the
spit emitted upon ignition passes through the end of the thermalite
connector. Therefore, as with the direct ignition of safety fuses, when
igniting thermalite connectors attached to safety fuses it is essential
that the ignition spit be observable and recognizable, and that it not
be obscured or concealed by the ignition source. The record in this
case indicates that application of the open-flame torch to the thermalite connectors could obscure the spit and result in uncertainty as to
when and if the safety fuse ignited. Thus, in the present case, the
precise hazard sought to be avoided by the standard is created by the
miner's application of an open-flame torch to thermalite connectors
attached to safety fuses. Keeping in mind that we are interpreting a
mine safety standard, we conclude that on the facts of this case the
judge erred in interpreting the standard too narrowly. Rather, we find
that the miner's application of an open-flame torch to thermalite
connectors attached to the ends of safety fuses def eats the purpose and
is contrary to the intent of 30 C.F.R. § 57.6-116. Therefore, on the
facts of this case we find a violation.
Accordingly, the judge's decision is reversed, the citation is
reinstated, and the case is remanded for assessment of an appropriate
civil penalty.

44

Distribution
Michael McCord, Esq.
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
William W. Maywhort, Esq.
Holland & Hart·
555 Seventeenth Street
Suite 2900
P.O. Box 8749
Denver, Colorado 80201
Administrative Law Judge Charles C. Moore
Federal Mine Safety & Health Review Conunission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

45

ADMINISTRATIVE LAW JUDGE DECISIONS

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

DISCRIMINATION PROCEEDING

HARRY J. GILPIN,
Complainant

v.

Docket No. PENN 84-5-D

BETHLEHEM MINES CORPORATION,
Respondent

MSHA Case No. PITT CD 83-11
Marianna Mine No. 58

ORDER OF DISMISSAL
Before:

Judge Broderick

On November 2, 1983, Complainant filed documents with the
Commission which were accepted as a complaint of discrimination
under section 105(c) of the Federal Mine Safety and Health Act
of 1977 (the Act) . The documents included a copy of the
original complaint filed with MSHA dated July 27, 1983. This
complaint alleges that Respondent Bethlehem Mines Corporation
(Bethlehem) has had a policy of requiring miners to pass a
welding test before being awarded jobs as mechanics. On June 6,
19S3, employees were awarded jobs as mechanics without taking
and passing the welding test. During the week of January 18,
1983, Complainant bid on a mechanic's job and was told that he
must take and pass the welding test before he would be awarded
the job. Complainant contends that this is discrimination in
that some employees have to take and pass the welding test before
becoming mechanics and some do not.
In his letter to the
Commission, Complainant states that he should have been awarded
the job, being the senior employee.
On December 8, 1983, Respondent filed an answer, a Motion
to Dismiss, a Memorandum of Law in Support of the Motion to
Dismiss, and a Motion for a Protective Order.
Complainant, who
is not represented by counsel, has not responded to the motions.
A complainant appearing pro se is not held to the same
pleading requirements that might be expected of a lawyer. He
must, however, assert a claim under the Act.
The Mine Act does
not protect an employee from all forms of discriminatory conduct

47

on the part of his employer, but only from discrimination for
activity protected under the Act, that is, activity related in
some way to mine safety and health. The Act does not enforce
seniority rules or work rules unrelated to safety.
There is no hint in the documents submitted to the Commission
that Complainant was denied a promotion or a job opportunity
because he made safety complaints. Rather, he complains of
generally unfair application of job promotion rules and failure
to follow seniority rules.
These are not matters within the
jurisdiction of the Com..~ission. See Lane v. Eastern Associated
Coal Corp., 2 BNA MSHC ,! 1082 (1980) (ALJ).
Because I find that the complaint herein does not state a
cause of action under section 105(c) of the Act, this proceeding
is DISMISSED.

J

a/'/vlL-S

1
·

A13~'() cfeA/v ell\.....

James A. Broderick
Administrative Law Judge

Distribution:
Mr. Harry J. Gilpin, R.D. #1, Marianna, PA 15345 (Certified Mail)
R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver
Building, Pittsburgh, PA 15222 (Certified Mail)

/fb

48

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

22041

JAN 101984

DISCRIMINATION PROCEEDINGS

UNITED MINE WORKERS OF
A.MERICA (UMWA) ,
ON BEHALF OF
HENRY BEARD,
Complainant
v.

Docket No. CENT 83-44-D
Bronaugh Mine

MIDWESTERN MINING & RECLAMATION,
INC.,
Respondent
UNITED MINE WORKERS OF
AMERICA (UMWA) ,
ON BEHALF OF
TERRY LOUDERMILK,
Complainant
v.

Docket No. CENT 83-45-D
Bronaugh Mine

MIDWESTERN MINING & RECLAMATION,
INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Broderick

In each of the above cases, the Complainants filed motions
to withdraw their respective discrimination complaints on the
grounds that the issues raised in these proceedings have been
addressed and remedied by the NLRB in cases brought before that
tribunal.
Respondent does not object to the motion.
Therefore, IT IS ORDERED that the motions are GRANTED and
these proceedings are DISMISSED.

J

/,f~d~~~
James A. Broderick
1

Administrative Law Judge

49

Distribution:
Joyce A. Hanula, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, DC 20005 (Certified Mail)
Robert A. Lieberman, Esq., Linde, Thomson, Fairchild, Langworthy,
Kohn & Van Dyke, P.C., 2700 City Center Square, 12th & Baltimore,
P.O. Box 26010, Kansas City, MO 64196 (Certified Mail)

/fb

50

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

STEPHEN B. WOODY,
Complainant

v.

:

JAN 10 1984

DISCRIMINATION PROCEEDING

:

..:
..

MID-CONTINENT ~ESOURCES, INC.,:
Respondent
:

Docket No. WEST 80-491-D
MSHA Case No. ID 05-00301
Dutch Creek No. 1 Mine

:

ORDER OF DISMISSAL
Before:

Judge Carlson

In response to an order to show cause why this discrimination case should not be dismissed for lack of prosecution,
complainant has filed a motion to withdraw his complaint.
Pursuant to Commission Rule § 2700.11, the motion is
granted. Accordingly, the complaint is dismissed with prejudice
and this proceeding is terminated.
SO ORDERED.

John A. Carlson
Administrative Law Judge
Distribution:
Mr. Stephen B. Woody, 200 Church Street, Grant Town,
West Virginia 25674 (Certified Mail)
J. Davitt McAteer, Esq., Center for Law and Social Policy
1751 N Street N.W., Washington, D.C. 20036 (Certified Mail)
Edward Mulhall, Jr., Esq., Andrew o. Norell, Esq.,
Delaney & Balcomb, 818 Colorado Avenue, P.O. Box 790
Glenwood Springs, Colorado 81601 (Certified Mail)

/ot

51

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

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

JAN 131984

22041

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-28
A.C. No. 36-00856-03504

v.
Rushton Mine
RUSHTON MINING COMPANY,
Respondent
DECISION
Appearances:

Mark V. Swirsky, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Joseph T. Kosek, Jr., Esq., Rushton Mining Company, Ebensburg, Pennsylvania, for Respondent.

Before:

Judge Melick

Hearings were held in .this case on November 15, 1983, in
Philipsburg, Pennsylvania.
A bench decision was thereafter rendered and appears below with only non-substantive changes. That
decision is now affirmed.
This case was of course presented before me
upon the petition for assessment of civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and Health
Act of 1977 for one violation of the regulatory
standard at 30 CFR Section 75.201. The general
issue is whether the Rushton Mining Company, which
I will refer to as Rushton, has violated the cited
regulatory standard and, if so, what is the appropriate penalty to be assessed.
The order before me (No. 1150256) was issued
pursuant to Section 104(df(2) of the Act by MSHA
Inspector Donald Klemick on May 7, 1982, and reads
as follows:
"The method of mining that was followed in
the F-butt 008 section during the 12:00 to 8:00
a.m.- shift under the supervision of Ed Snyder,
section foreman, exposed the miners to unusual
danger from roof falls due to faulty recovery of

52

the pillar between the number 25 and 26 rooms in
that the right side final pushout stump was mined,
recovered first head-on and the continuous miner
continued to mine toward the caved area, almost
removing the entire right side fender."
I should note that the order was amended at
the beginning of this hearing and that amendment
was subsequently modified. As finally agreed to
by the parties, the modification to the order added that the method of mining also violated the
roof control plan drawing 7(a).
The standard cited, 30 CFR § 75.201, reads as
follows:
"The method of mining followed in any
coal mine shall not expose the miner to unusual
dangers from roof falls caused by excessive widths
of rooms and entries or faulty pillar recovery
methods."
Now, the determinative issue in this case, as
both parties have stipulated in essence, is whether, in taking the right side final pushout of the
cited stump, the continuous miner operator placed
himself under unsupported roof.
If the continuous
miner operator did indeed place himself under unsupported roof, it is conceded that the operator
would have been exposed to unusual dangers from a
potential roof fall in violation of the cited standard. On the other hand, if he did not proceed
beyond unsupported roof, then it is recognized and
conceded that there was no violation.
In this regard, there is evidence on the one
hand from the government through the testimony of
MSHA Inspector Klemick, based on his observations
of the number of support posts placed adjacent to
the pushout area and an estimate of the distance
between these posts, that the final pusho.ut was
cut to a depth of some 24 to 30 feet.
I observe
at this point that this estimate was itself given
with a six foot margin of error, thereby in itself
raising some question as to its accuracy.
Since it is undisputed that the miner operator would have been under unsupported roof because
of his position on the machine if he cut to a
depth of 15 feet or more, according to the testimony of Inspector Klemick the miner operator would
have been some 11 to 15 feet beyond supported roof.

53

I note, however, that even though the inspector h~d a cloth tape measure with him at the time
of his inspection, he did not use it to obtain a
more precise measurement.
I also note that it is
a well established practice for MSHA inspectors to
throw such tapes with a weighted object attached
into an area too dangerous to enter personally in
order to obtain a more precise measurement. This
procedure is ordinarily followed in the presence
of a representative of the mine operator, and that
under those circumstances there can be little dispute over the distance.
You have then an objective basis on which you can establish the distance.
As I say, this procedure was not followed in this
case.
Moreover, according to Mark Naylor, the representative of the mine operator who accompanied
Inspector Klemick, he told Inspector Klemick that
he thought the cut was only 13 to 14 feet deep.
While Mr. Klemick apparently disagreed with this
estimate, stating something to the effect that he
felt the cut was deeper than that, I note that
even then, in spite of the knowledge at that point
that his estimate was being questioned and would
indeed undoubtedly be questioned and challenged
at future proceedings, the inspector nevertheless
did not even at that point take a more precise
measurement or receive some sort of concurrence as
to the depth of the cut from the representative of
the operator.
I must point out also that the government's
evidence is also tempered by the testimony of the
operator's witnesses - miners who were present
when the cut was taken - namely, roof bolter Lemuel Hollen; the continuous miner operator, Donald
Baker; and the section foreman, Ed Snyder.
In
addition, there was the te£timony of Mr. Naylor,
who accompanied Klemick during his inspection.
All of these witnesses confirmed that the cut in
the final pushout on the right side of this stump
did not place the continuous miner operator under
unsupported roof.
I find with respect to the operator's witnesses, that the testimony of Don Baker, the continuous miner operator, is particularly significant.

54

He had only moments before working on the final
pushout on the right side been working on the f inal pushout on the left side. According to his
undisputed testimony, some material from the roof
had begun falling on him, or falling on the continuous miner, while he was working on the final pushout on the left side. Around the same time he
along with the other gentlemen on the scene observed serious roof problems further up. Mr. Baker was, as he testified, also quite aware at that
time of other roof falls that had occurred in this
mine in which continuous miners had been buried.
He was, in fact, in my opinion freshly aware of
his mortality at that time and, under the circumstances, would certainly be the last person to
work under unsupported roof.
I therefore give his
testimony that he was not working under unsupported roof special credence.
Under the circumstances, I am compelled to
find that the government has just not been able to
sustain its burden of proof of the violation.
By
so finding, this does not mean that I do not believe in the veracity of the government's testimony. Nothing could be further from the truth.
I
am convinced that the inspector testified truthfully to the best of his ability.
I am absolutely
convinced of that.
I am just compelled to find,
for the reasons stated, that I am not convinced
that his observations have been sufficiently corroborated by any objective measure and particularly in light of the opposing credible testimony, I
just cannot sustain the government's case.
I cannot find based on the credible evidence that the
continuous miner operator had cut the final pushout to a depth that would have exposed him to unsupported roof.
Accordingly, I find that the violation has
not been committed. The order is therefore vacated, and this case is drsmissed.

55

ORDER
Order No. 1150256 is vacated and t

~ic .l

Gary
Assistant

is case is dismissed.

Admi~'strative Law Judge

\
Distribution:
Mark v~ Swirsky, Esq., Office
the Solicitor, U.S. Department
of Labor, 14480 Gateway Build' g, 3535 Market Street, Philadelphia, PA 19104 (Certified Mail)
Joseph T. Kosek, Jr., Esq., Rushton Mining Company, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
/nw

56

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of
GERALD D. BOONE,
Complainants

JAN 131984

DISCRIMINATION PROCEEDING
Docket No. WEVA 80-532-D
HOPE CD 80-67

v.
REBEL COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Appearances:

Edward H. Fitch, Esq., and Robert A. Cohen,
Esq., Office of the Solicitor, U.S. Department of Labor, Arlington, Virginia, for
Complainants;
Douglas D. Wilson, Esq., Gardner, Moss,
Brown & Rocovich, Roanoke, Virginia, for
Respondent.

Before:

Judge Melick

The Complainant on behalf of Gerald Boone requests
approval to withdraw the Complaint in the captioned case
acknowledging receipt in full of the monetary damages,
costs, and attorney's fees ordered by the undersigned to be
paid.
Under the circumstances h rein, permission to withdraw is granted.
29 CFR § 2700.l • The case · therefore
dismissed.

Gary Melic
Assistant
Distribution:
Robert A. Cohen, Esq. and
the Solicitor, U.S. Depar
vard, Arlington, VA 2220

wa~d

H. Fitch, Esq., Office of
nt of Labor, 4015 Wilson Boule(Certified Mail)

Mr. Gerald Boone, Robertson Subdivision, Prichard, WV
(Certified Mail)

25555

Douglas D. Wilson, Esq., Gardner, Moss, Brown & Rocovich,
P.O. Box 13606, Roanoke, VA 24035
(Certified Mail)
Larry Harless, Esq., United Mine Workers of America, P.O.
Box 1313, Charleston, WV 25325 (Certified Mail)

/nw

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

JAN 131984

DISCRIMINATION PROCEEDING

JACK E. GRAVELY, JR.,
Complainant

Docket No. WEVA 83-101-D

v.
HOPE CD 82-52
RANGER FUEL CORPORATION,
Respondent

Beckley No. 2 Mine
DECISION

Appearances:

Belinda S. Morton, Esq., Fayetteville, West
Virginia, for Complainant;
W. H. File, Jr. and John L. File, Esqs.,
File, Payne, Scherer & Brown, Beckley,
West Virginia; Fletcher A. Cooke, Esq., Lebanon,
Virginia, for Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged discrimination filed by the complainant against the respondent pursuant
·
to Section 105(c) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. 801 et seq. The complaint was initially
filed pro se by the complaIIlant after he was advised by the
Secretary of Labor, MSHA, that an investigation of his complaint determined that a violation of Section lOS(c) had not
occurred. The complainant then retained counsel to pursue
his case before this Commission.
The respondent .filed an answer denying the allegations
of discrimination, and pursuant to notice a hearing was
conducted at Beckley, West Virginia, on October 4, 1983,
and the parties appeared and participated fully therein. They
were given an opportunity to file post-hearing proposed
findings and conclusions, with supporting briefs, and the
arguments presented therein have been reviewed and considered
by me in the course of this decision.
Issue
The issue in this case is whether or not Mr. Gravely's
discharge was prompted by his engaging in protected activity

58

under the Act. Mr. Gravely asserts that he was fired because the respondent held him responsible for a roof fall.
According to Mr. Gravely, the respondent expected him to
take his work crew beyond a danger board to perform work
in supporting the roof area which fell.
The respondent
contends that Mr. Gravely was discharged because of his
asserted failure to properly and adequately supervise his
work crew. Respondent contends that this failure on
Mr. Gravely's part resulted in damage to two pumps, and that
Mr. Gravely's work performance as a foreman was less than
adequate.
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 CFR 2700.1, et seq.

Testimony and evidence adduced by the Complainant
Ralph D. Carr, shuttle car operator, testified that on
or about July 27 1 1982, he was working on Mr. Gravely's
crew and he was instructed to operate a uni-track machine
hauling crib blocks and headers to be used in supporting
the top. During the operation of this machine he ran over
a pump which was placed in the road'\>ray, and he did so after
believing that the person assigned to watch it and move it
had done so. Mr. Carr believed that mine foreman Dennis Myers
had assigned the person to watch the pump (Tr. 11-15).
Mr. Carr confirmed that a danger board was posted on
the section in July 1982, and it was located approximately
"one break back from where the top worked" (Tr. 14). Work
to support the top was started at the location of the danger
board and Mr. Gravely instructed him to start work at the
danger board and that is what he did. Mr. Carr stated that
Mr. Myers wanted the crew to go further into the dangered
area, but he did not do so because it was against the law
to go beyond the danger board (Tr. 15).
In response ·to questions from the bench, Mr. Carr
stated that Mr. Gravely was a foreman in charge of his crew
and that Mr. Myers was the night shift foreman and was
Mr. Gravely's supervisor (Tr. 16).

59

Mr. Carr confirmed that Mr. Gravely's crew was working
on roof support, starting at the danger board and working
towards the face and the fall area.
Roof headers were
installed at the danger board and work proceeded towards
the face to support the top. He later learned that Mr. Gravely
had been discharged, and Mr. Gravely advised him he had been
fired because "we wouldn't go in behind and work on the top
and where he had run over the pump" (Tr. 21).
On cross-examination, Mr. Carr stated that starting
work at the danger board and working toward the face supporting
the roof as they progressed was the normal and proper procedure
(Tr. 24). He explained the circumstances surrounding his
running over the pump (Tr. 27-30).
Bernard R. Campbell, Jr., testified that he works on
the mine "hoot owl" shift, and that he knew Mr. Gravely
when he worked as a foreman.
Mr. Campbell stated that he
was on Mr. Gravely's shift in July 1982, working at the
posted danger board area installing roof supports at the
track entry. Mr. Gravely was supervising the work.
The
work began at the danger board and progressed inby, and no
one "coaxed" him to go any further than where they were
actually working (Tr. 34).
Mr. Campbell stated that during the time he worked for
Mr. Gravely he never asked him to do anything which would
violate the law. Mr. Campbell stated that while there was
no roof fall at the danger board area, the area at the crosscut inby that area "fell some" (Tr. 35).
In response to bench questions, Mr. Campbell stated
that there was no violation at the danger board area because
the roof was permanently supported there. No MSHA inspectors
were present on the evening in question, and as far as he
knows the company was not cited for any loose roof violations
(Tr. 37).
Mr. Campbell stated that he is a UMWA safety
was aware of the danger board situation, and that
complained about the roof being loose, when asked
what this case was about, he responded as follows
JUDGE KOUTRAS:
is all about?
THE WITNESS:

committeeman,
no one
if he knew
(Tr. 38-39):

Do you know what this case
Not exactly.

JUDGE KOUTRAS:
Do you know what Mr. Gravely
is complaining about?

GO-

THE WITNESS: Being discharged over pumps
and bad top is the only thing I can understand.
JUDGE KOUTRAS: He claims -- at least part
of his claim here is that he was required to
take -- that part of the reason for discharge
was that he refused to take his crew into an
area that he thought was unsafe.
Do you have anything to contribute to that
allegation, based on your own personal knowledge?
THE WITNESS: Well, if Mr. Gravely says that
we have to go in here to save this place, if
I hadn't of been there the employees still
didn't have to go in by it, they could ask
for a committeeman, then they would have had
to have got a hold of me and the mine foreman.
But still, for a bad top, it's common knowledge
to try to save it if you can.
Mr. Campbell stated that when work started at the danger
board Mr. Gravely had the responsibility to make sure the
area was safe to start work and he made the decision that it was.
i'brkwascompleted the first night, and he returned to the
area on the next working shift and continued installing roof
supports (Tr. 41). Mr. Gravely never indicated that he did
not want to go beyond the danger board (Tr. 43).
Jim L. Ellis, currently employed by Phillips Coal Company,
testified that he was employed by the respondent from December 1980
until November 1982, as a foreman.
He worked with Mr. Gravely
over a period of a year and a half, but on different shifts
(Tr. 45-46).
Mr. Ellis stated that it was company policy to post a
list of persons assigned to work weekends. He recalled a
shift during the Memorial Day weekend in 1982, and that
Mr. Gravely's name was not posted. Mr. Ellis worked that
weekend as a fire-boss (Tr. 47-48).
Mr. Ellis confirmed that a member of his crew destroyed
a pump approximately a year and half ago during the summer
of 1982. He also confirmed that the shuttle car operator
who ran over it was not disciplined because it was not his
fault (Tr. 50). Mr. Ellis also stated that it was his
responsibility to watch the pumps, that he assigned no one
to watch them, and that no one was written up over this
incident (Tr. 53).

61

On cross-examination, Mr. Ellis confirmed that the
shuttle car operator was not careless or negligent and that
is why he was not reprimanded (Tr. 54). He also confirmed
that he left the respondent's employ when the mine shut down
and he found another job (Tr. 55).
Eric Coleman, roof bolter operator since 1979, testified
that in July 1982, he worked the "hoot owl" shift, and that
he "probably" worked on Mr. Gravely's shift as he had done
on several different occasions (Tr. 57). He recalled the
posted danger board and indicated that he and his roof bolter
helper were assigned there to bolt the top.
The roof "was
working too bad" and no bolting took place until the area was
cleaned up (Tr. 58). He considered Mr. Gravely to be a safe
foreman (Tr. 59).
When asked about the danger board incident, Mr. Coleman
responded as follows (Tr. 62):
JUDGE KOUTRAS: At any time during this
entire episode, this one or two nights now
that this incident took place about the headers
and the danger board and all that business,
did anyone ever instruct you specifically to
go beyond the danger board to expose yourself
to any hazard or anything?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

No.
Mr. Gravely or anybody else?
No.

JUDGE KOUTRAS~ Do you know whether Mr. Gravely
asked any of his crew to do that?
THE WITNESS:

Not that I recall.

JUDGE KOUT.RAS: Did Mr. Myers or anyone else
from management, to your personal knowledge,
instruct Mr. Gravely to take his crew beyond
the danger board?
THE WITNESS:
remember.

Not that I can recall.

I don't

Clifton P. Chandler, testified that he previously
worked for the respondent for 12 years in various foreman
positions but left when the mine shut down in November 1982.

62

He worked with Mr. Gravely, and he did not see Mr. Gravely's
name on any list to work the Memorial Day weekend in 1982.
Mr. Chandler stated that he didn't work, but that he checked
the posted list and did not see Mr. Gravely's name on it
(Tr. 6 7) •
In response to further questions, Mr. Chandler stated
that while his name was not posted to work the weekend
in question, if he were notified by a superior to work he
would do so (Tr. 68-69).
Gary Lee Kiblinger testified that he has been employed
by the respondent for four years as a plow operator. He
stated that in July 30, 1982, he was working under Mr. Gravely's
supervision while operating a continuous miner "scraping
bottom." He explained the circumstances under which he ran
over and damaged a pump. He was not disciplined by Mr. Gravely,
and he believed the pump could have been avoided if the pump
line had been moved (Tr. 160-163).
Mr. Kiblinger confirmed that he worked the "hoot owl"
shift on July 27, 1982, and that the work involved pinning
and timbering the roof at the area where it had been dangered
off with a danger board. He worked again on July 28, but
he was not there when the roof actually fell, but he did
indicate that at the time he was working to support it
"it had bellied, it hadn't lacked much falling.
It was bellying
when we was putting them six by eight headers up" (Tr. 164).
He also indicated that the roof condition was bad, and that
"It was going to fall, don't matter what they put under it,
it was going to fall", and that "when we put the three by
eights up it started bowing" (Tr. 165-166).
On cross-examination, Mr. Kiblinger stated that the pump
casing was pierced, and that in order to use it again it
would have to be repaired.
The usual way to repair it is
to install a new casing (Tr. 167). He also indicated that
pumps have been "burned up" through negligence when they
are allowed to "sit there and burn up" (Tr. 167).
Jack E. Gravely, Jr., testified that he is currently
employed as a salesman for the 84 Lumber Company, and that
he previously worked for the respondent from February 13, 1981
to July 30, 1982, as a section and construction foreman.
As construction foreman on the midnight shift his job entailed
doing "everything," and he worked on different sections with
different crews (Tr. 75). His salary during 1982 was approximately
$2600 a month (Tr. 98).

63

Mr. Gravely stated that he was never reprimanded in
March 1982, and he denied ever being verbally reprimanded
by Harrison Blankenship or Dennis Myers during his employment
with the respondent.
He did confirm that he received a
three day suspension from Bill Ward for missing a day of work
the Saturday, May 29, before Memorial Day. Mr. Gravely stated
that he was told he was scheduled to work, but he insisted
that his name was not on the work list and no one told him
to work (Tr. 77). Mr. Gravely explained the procedure for
posting the work list, and he indicated that while he was
informed that his suspension would be without pay, he was in
fact paid for the three days he was suspended (Tr. 78-82).
Mr. Gravely denied that he was ever reprimanded over
an incident concerning a continuous,rniner operator being
off center on a 20 foot cut, and that he in fact had reprimanded
the miner operator over that incident (Tr. 82-82).
With regard to the incident concerning Mr. Carr running
over a pump, Mr. Gravely explained the circumstances.
He
indicated that Mr. Carr was not at fault, and that the
person assigned to watch and move the pump was moved to another
location by Dennis Myers, and since Mr. Myers was his supervisor, Mr. Gravely did not question his decision (Tr. 84-86).
Mr. Gravely stated that on July 27, 1982, his crew was
composed of Ralph Carr, Gary Kiblinger, and Kenny Davis.
The crew intended to work on scraping the bottom, and after
some preparation work he checked the roof and found that
"it was working pretty bad." He instructed the crew not to
scrape bottom and they began setting timbers. Mr. Myers
came to the area, and after looking at the topfordered some
headers~and Mr. Gravely's crew worked the rest of the shift
on the top. Mr. Gravely left the danger board for the next
shift corning on the section (Tr. 88).
Mr. Gravely stated that he next returned to work on the
midnight shift on July 28., 1982, and Mr. Myers was his shift
supervisor that night. Assistant shift foreman Larry Burgess
informed him that the top on the section was bad and that
he had placed the danger board all the way out into the entry
and that any roof support work would have to be started at
the location where the danger board had been moved. Mr. Gravely
then proceeded to work his crew for the entire shift, starting
at the danger board, and they proceeded inby to secure the
roof, but at 5:00 a.rn. that morning a roof fall occurred inby
the area where they were working (Tr. 90).

64

When asked whether anyone told him to go any further
than where he was working on July 28, Mr. Gravely responded
as follows (Tr. 90-91):

Q. Did anyone tell you to go any farther
than where you were working?
A. Well, Mr. Myers told me that, you know,
it would have been a lot better if I could
have started further in, but it would have
plaqed my whole crew and myself in imminent
danger had we went any further in. And
the next day, Harrison Blankenship told
me that I definitely should have went
further in there and secured the area that
fell.

Q. Did you hear any crackling noise from
the top?
A.
Oh, you can always hear the top breaking
up if it's bad. You see it dripping.
Q.
Had you had anvrun-ins before with
Mr. Blankenship or Mr. Burgeffi as to the
techniques that you used with your men?

A.

No, ma'am.

When asked why the respondent terminated him, Mr. Gravely
responded as follows (Tr. 91-92):

Q. So why do you believe that Ranger Fuel
terminated you?
A. They told me -- on Friday the 30th, I worked
that same section. There was another roof fall
that wouldn't have been classified as a legal
roof fall by MSHA regulations because it wasn't
bolted yet. Larry Burgess again told me that
he had been on that section, that they had cut
a break-through through from both sides and
the top was too bad -- they bolted it on one
side and they cut it on the other side without
it being bolted, and then give me two men,
Eric Coleman and Dennis Cello to bolt it and
three men to scrape bottom.
I called Dennis Myers,
and he come and looked at it and decided that he
wanted to take the miner in and clean the rock
up. So he called and got more people and got

65

all kinds of timbers and headers and stuff
and started securing the area into that
roof fall.
We timbered the roadway down
there and everything and made it pretty safe
just to get in the area, but by the time we had
done all that it had fell in some more. And
at that time, Dennis decided that we just crib
it-off and leave it and go ahead and take them
down and scrape the bottom, but he told me
they were thinking about firing me over allowing
the first roof fall.
And, at Tr. 99:

Q. Are you sure that's the only reason that
Ranger Fuel discharged you was because of the
danger board incident?
A.

Yes , ma ' am.

Q. He specifically said that when he discharged
you?

A. Harrison Blankenship, yes, ma'am, he told me
specifically that I should have gotten that top
secured. And Dennis Myers had already told me
before that, that they were thinking about firing
me over that fall.
Mr. Gravely testified as to the circumstances surrounding
a second pump which was damaged at the same water hole where
the first pump had been destroyed. Miner operator Gary Kiblinger
caught the pump hose with his miner while it was laying by
the rib after being disconnected by electrician Randy Johnson:
The pump was dragged some 75 to 100 feet, and Mr. Gravely
believed that only the "goose neck" used to hook on the
discharge hose was damaged and that this piece cost eight to
ten dollars. Mr. Kiblinger was not reprimanded and the
electrician was under the supervision of maintenance foreman
Floyd Holthouser (Tr. 95-97).
Mr. Gravely stated that the value of the second pump
was probably two or three thousand dollars, and he denied
that he had ever previously been blamed for destroying
material on his shift (Tr. 98).
Mr. Gravely confirmed that he was not given a written
letter of discharge. He was advised orally by Mr. Blankenship
and mine manager Walt Crickmer that he was discharged
(Tr. 100) .

66

On cross-examination, Mr. Gravely denied that he was
ever given a company personnel termination form.
He also
denied that Mr. Blankenship ever advised him he was being'
discharged because two pumps were damaged during his shifts
and that he had been warned about this on July 27, 1982.
He also denied that Mr. Crickmer ever told him that he was
being discharged for these reasons. Mr. Gravely stated
that Mr. Blankenship "gave me the reason that I was being
discharged over the roof fall, and on the 30th there was
the second roof fall" (Tr. 101).
Mr. Gravely denied that Mr. Blankenship ever advised
him that he would be suspended on March 16, 17, or 18, 1982,
because cribs had to be installed on the No. 3 entry when
the ribs were cut off center. He also denied that he was
in fact suspended on those days (Tr. 103-104).
Mr. Gravely identified exhibit R-2 as a report he
prepared and filed with his superior as part of his duties
as a foreman.
The report reflects that miner operator
Rick Stewart cut certain areas too wide on March 3, 5, and
12, 1982, and that Mr. Gravely verbally warned Mr. Stewart
about the incidents (Tr. 109-112). Mr. Gravely denied that
Mr. Blankenship reprimanded him on March 12, 1982, nor did
he suspend him (Tr. 113).
Mr. Gravely identified exhibit R-3 as a mine map, and
that the No. 2 entry is the intake air entry, a track entry,
and a belt entry. He confirmed that this is the entry where
the pump incidents occurred and where the danger board in
question was placed (Tr. 115-117). He denied that the principal
roof fall occurred in the No. 1 entry, and stated that it
occurred in the break-through between the No. 1 and 2 entries,
and that it actually blocked the break-through and not the
entry. He indicated that the fall was some 30 feet from the
No. 2 entry and that it was not possible to approach that
area from another direction other than going by the danger
board on No. 2. He also indicated that the area could not
be approachedby going in the No. 1 entry outby the danger
board because the area was solidly cribbed off (Tr. 121).
Referring to the mine map, Mr. Gravely contended that
the area where he was criticized for not going with his crew
was "inby that danger board and to the left in the break"
(Tr. 122). Mr. Gravely stated that at no time did he refuse
to go into an area because it was beyond the danger board, and he
further testified as follows (Tr. 123-124):
Q. And did anyone direct you to go into
an area beyond the danger board?

67

A.

Did anyone "direct" me?

Q.

Yes; order you to?

A.

No.

Q. And did any of your men refuse to go intc
an area that was marked or dangered off?
A.
I had better sense than to take my men
into an ·area like that; and, because I didn't
take them in there, they didn't have to refuse~

Q.
So you didn't refuse to go and the men didn't
refuse to go.
Is that correct?
A. We didn't go.
that area.

My men, nor myself went into

Q. And the fall that later occurred, and it
was a rather large fall, was over at the breakthrough near or in the No. 1 entry.
Is that
not correct?
A.

It was in the break-through, yes.

Q. But no one ever specifically
did anyone
ever specifically tell you to go to correct that?
A.

Specifically tell me to correct that; yes, sir.

Q.

Who did that?

A.

Dennis Myers and Larry Burgess.

Q.

And why did you not do it?

A.

I started where they told me to start.

Regarding his conversations with Mr. Myers and Mr. Blankenship over the pumps, Mr. Gravely testified as follows (Tr. 124125) :
Q. Now, when you were called in after the
second event relating to the pump, who was
present at that time?
A.

After the second one?

Q.

Yes.

68

A.

Dennis Myers and Harrison Blankenship.

Q.

And was anyone else present?

A.

No, sir.

Q. Did you have a conversation with
Walter Crickmer about it?
A.
That was later, that wasn't at the time
that I was called in.
Q. And what did Walter Crickmer state to
you?
A. Walt just told me that I was being discharged.
Harrison Blankenship had already talked to me,
all I was seeing Walt for was to turn my equipment
in.
Q. What did Mr. Blankenship say to you in
particular as to why you were being discharged?
A.
For not getting in that area and timbering
that fall.
Q.
Did he say anything else to you about the
pumps?
A.

No, sir, not to my knowledge.

Q. Now, he talked to you.
to your knowledge?

Would it have been

A. Well, that's a year and a half ago and I
don't remember word for word his specific
conversation.
Q. You're not prepared to state under oath that
he did not tell you that you were being fired
because of the pumps, are you?
A.
I'm not prepared to say under oath that he
did or didn't.
I'm saying under oath that it was
a year and a half ago and I don't remember word
for word what he said.
And, at Tr. 126:
Q. Mr. Gravely, then you do not deny that you
were told -- since you cannot recall, you do not

69

deny that you were told that you were being
discharged because you had permitted an
employee to run over and destroy a pump on
the 27th, and that you had permitted the
same thing to occur and seriously damaged
a pump on the 30th?
A.

Yes, sir, I do deny that.

Q.

You deny it?

A.

Yes, sir.

Q. Well, a minute ago you said you couldn't
remember.

A.
I couldn't remember his exact words, but
I can remember that I wasn't told all of that.
Mr. Gravely stated that he was never told to go into
an unsafe area, and that therefore, he did not refuse to
go into an unsafe area (Tr. 128). He confirmed that a danger
board is moved as the work progresses inby to support the
roof, and that he would always be working in the vicinity
of the danger board as it is moved inby with the roof support
work (Tr. 129).
Mr. Gravely denied that Mr. Blankenship, Mr. Burgess,
or Mr. Crickmer ever specifically counseled him about his
work or the way he was carrying out his duties (Tr. 129-130).
When asked about the roof fall that Mr. Gravely contends
caused his discharge, he stated as follows (Tr. 147-152):
JUDGE KOUTRAS: Mr. Gravely, in your
earlier statement that you filed, the
written statement, you say that Mr. Myers
had told you that Mr. Blankenship had
said that they were going to fire you for
the fall that occurred on the 28th.
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: And then your statement says
that Mr. Blankenship told you that he was
firing you because of the fall that occurred
on the 28th.
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Did he blame you for the fall
that occurred on the 30th, too?

70

THE WITNESS: He didn't mention the fall.
I just said there had been another fall there
and he didn't say that I was to blame for that.
JUDGE KOUTRAS: So he didn't lay the responsibility
for the July 30th fall on your shoulders?
THE WITNESS:

*

*

No, sir.

*

*

JUDGE KOUTRAS: What was your response to him
when he allegedly told you that's why they were
firing you?
THE WITNESS:
I told him that the top was too bad,
that we started where I had been instructed to
start.

*

*

*

*

JUDGE KOUTRAS: Did you tell Mr. Crickmer that
Mr. Blankenship fired you because he wanted you
to go into an area that you thought was unsafe?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS:

And what was his response?

THE WITNESS: His response was that there was
nothing wrong and that I had destroyed the pump.
And, at Tr. 153-155:
JUDGE KOUTRAS: Okay. So the nuts and bolts of
your complaint is your contention that the
company fired you for failing to take care of a
roof fall to the satisfaction of your supervisor
or your superior?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: And your response to that is that
you weren't responsible for the roof fall and
that you weren't about to go into an unsecured
area with your crew and do some work?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: But nobody from the company,
none of your superiors or anybody ever suggested
to you directly that you do that.
Is that right?

71

THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Mr. Blankenship did.
But this happened after the fact.
Oh, he told me that after.

JUDGE KOUTRAS: But at all times when you and your
crew were down in the section addressing the roof
fall conditions starting at the danger board and
all that, did anybody suggest to you specifically
how you were to go about your duties of uddressing
the roof fall?
'l'HE WITNESS: Well by the time anybody came to
check on me -- which would have been Mr. Myers
I was already doing it.
JUDGE KOUTRAS: But nobody from management, none
of your superiors, suggested to you that you were
to take your crew in by a danger board?
THE WITNESS: Well, Dennis said it would have been
better if I would have got started further in,
which would have been in by the -JUDGE KOUTRAS:

When was this though?

THE WITNESS: That would have been during the
shift, probably two or three o'clock in the morning.
JUDGE KOUTRAS: And you told Dennis -- what did
you say to him?
THE WITNESS:
I started where Larry Burgess had
told me.
Larry Burgess was the man who had
dangered the area off initially.
JUDGE KOUTRAS: But no one said anything to you
at that point, Mr. Myers or no one else said
anything to you other than maybe you should have
started in a little further?
THE WITNESS:

No, not at that point.

Testimony and Evidence Adduced by the Respondent
Walter B. Crickmer, III, testified that he is a graduate
geologist and has worked for the Pittston Company for eight
years. At the time of Mr. Gravely's discharge he was the
mine manager at Ranger Fuel Company's Beckley No. 2 Mine.
He stated that prior to Mr. Gravely's discharge, he discussed
his work performance with him. He described the nature of
these discussions as follows (Tr. 178-179):

72

A. Well, it was a repeated history. Over
a period of time -- it could go back as far
as maybe even up to a year or eight or nine
months before the discharge took place.
I
had five superintendents working for me at the
time, Harrison was one in charge of production;
I had people in charge of construction; a
superintendent at each level, and it was our
job to reorganize the mine and get the mines
back on the right track. We discussed all
the. foremen at different times.
We had Harrison, and Jack worked for him on
production. He had a problem with keeping
Jack's crew on-center.
I'm not saying that
that was the only problem with Jack. We had
Jack -- we moved him from production to construction, construction to general work all
over the mine, on every shift, on every production
shift, you know, day, evening and owl, trying
to find a place for Jack to work. We had
problems in each category.
It kept going right along, and all of a sudden
I started noticing, one of the miner foremen
mentioned something to me that well, maybe
Jim Campbell, one of the general work superintendents, said we have a problem with
absenteeism with Jack. We looked at this
record and started to see that every Friday and
every Monday he was off; every Friday and every
Monday he was off -- I mean not every one but
a tremendous majority, 30 or 32 days or something
within a year's period. He was always off
Mondays and Fridays.
And we kept moving him from shift to shift and
from one section of the mine from construction
to production and these pump episodes came up
and, you know, I've been through this with the
Unemployment Commission and MSHA and all this
before and there wasn't ever any question of
Jack's discharge ever being involved with this
roof problem.
When Harrison approached me that morning after
he had talked with Dennis about a second pump
being destroyed -- it wasn't destroyed, we
repaired it for $800 -- he approached me with
the thought that: okay, we have another pump

73

incident; we already had the first une, we
lost it totally, $3500.
I knew Jack had been
involved with the center episode, with the
absenteeism, with this and that all the way
along continuously, continuously. He had been
reprimanded before. He said: now, we've got
two pumps back to back, what are you doing
to do? He said: I'd like to fire him.
I
said: I agree.
Mr. Crickmer identified exhibit C-1 as Mr. Gravely's
"discharge ~aper", and he confirmed the "W.C." shown at the
bottom of the document are his initials evidencing the fact
he approved the discharge (Tr. 180).
Mr. Crickmer stated that in 1982 it was possible for
a foreman to be paid when in fact he had not reported to
work. He explained that this was possible because of poor
management and record keeping and that foremen were permitted
to turn in their own time sheets. Since that time, company
policy brought about changes and improvements (Tr. 182).
Mr. Crickmer stated that Mr. Gravely was paid for three days
on June 2, 3, and 4, 1982, because he turned in his own time.
Mr. Crickmer stated that he was aware that Mr. Gravely had
been suspended on those days, but he didn't know that he had
been paid "until all these things started taking place"
(Tr. 183) •
Mr. Crickmer stated that while Mr. Gravely's discharge
paper lists only the pump as the reason for his discharge,
every other reason is not always listed (Tr. 181).
On cross-examination, Mr. Crickmer confirmed that his
present employer is Clinchfield Coal Company, and that Ranger
Fuel and Clinchfield are divisions of the Pittston Company
.,
Coal Group. Mr. Crickmer confirmed that he appeared and
testified at a hearing before the West Virginia Department of
Employment Security on September 23, 1982 (Tr. 185).
Mr. Crickmer s~ated that Mr. Gravely's alleged absenteeism
was not a factor in the decision to discharge him, and he
explained his answer as follows (Tr. 188):
A. No, not a factor of his discharge. His
discharge was brought about by his inability to
control his crew; his inability to perform under
each one of the superintendents; his constant
moving from one job area to another; my discussions with Jack personally on these problems
that he was having with staying on-centers;

74

Harrison talked to me about staying oncenters; Jim Campbell talking to me about
problems, whatever, and then came up with
these back-to-back destruction of the pumps;
you know, you go to a certain point you reach,
you say; is this man worthwhile keeping.
You know, always in the back of your mind you
think about the days absent and so forth,
why does a man miss so many days; but, you
can't discharge a person because of that, ma'am.
Mr. Crickmer testified as
which were "destroyed," and he
was "completely destroyed" and
severely." He could not state
(Tr. 198-201).

to the value of the two pumps
stated that the first pump
that the second one was "damaged
the precise costs for the pumps

Mr. Crickmer stated that Mr. Blankenship suspended
Mr. Gravely on March 16 and 17, 1982, for "being off-center;
controlling his crew," but he did not know whether it was
written or verbal (Tr. 201-202).
Mr. Crickmer identified exhibit R-4 as a copy of an
invoice from the respondent's records indicating that the
cost to repair the second pump in question was $854 (Tr. 206).
He also identified exhibit R-5 as copies of Mr. Gravely's
attendance record for the period February to December 1981,
and January to July 1982 (Tr. 208).
After referring to Mr. Gravely's attendance records,
Mr. Crickmer stated that they reflect that he worked on
March 17 and 18, 1982, but missed March 16 (Tr. 218).
Respondent's counsel conceded that Mr. Crickmer had no
personal knowledge as to whether Mr. Gravely was actually
suspended on March 16 and 17, 1982 (Tr. 224-225). Under
the circumstances, the payroll records, exhibits R-5 and R-6
were rejected and not admitted (Tr. 226).
With regard to Mr. Gravely's alleged failure to work
over the Memorial Day weekend, t.1r. Crickmer conceded that
his name was not posted on a work list but that he was
personally informed verbally by his immediate supervisor that
he had to work (Tr. 229-230).
In response to bench questions, Mr. Crickmer stated
that aside from the matter of Mr. Gravely not working on
the Memorial Day weekend, none of the other asserted disciplinary actions, counseling, warnings, etc., were ever
reduced to writing (Tr. 235).

75

Billy G. Smith, testified that he is employed by the
respondent and was employed at the mine in 1982. He stated that
on the Memorial Day weekend of May 29 and 30, 1982, Larry Burgess
was scheduled to work, and after "kidding him" about it,
Mr. Burgess informed him that he was going to put Mr. Gravely's
name on the work list for that weekend. Later, when Mr. Smith
mentioned this to Mr. Gravely, Mr. Gravely told him "I'm not
working Saturday" (Tr. 262).
On cross-examination, Mr. Smith stated that while he
did not hear Mr. Burgess tell Mr. Gravely that he had to work,
he did see Mr. Gravely's name "on the board where Larry had
marked his out and put Jack's" (Tr. 262). The board is in
the foremen's office where a foreman would normally go to
make notations in the books (Tr. 263). Mr. Smith did not
know whether Mr. Gravely ever saw the list when it was posted
on Wednesday (Tr. 267).
Larry Burgess, assistant shift foreman, second shift,
testified that he was so employed in 1982. He stated that
he scheduled Mr. Gravely to work the Memorial Day weekend
by crossing out his own name from the posted list and inserting
Mr. Gravely's. He did so after clearing it through mine
foreman Bill Ward and Mr. Blankenship, and he stated that
he told Mr. Gravely about the change (Tr. 271-272). The change
was made on a Wednesday, and Mr. Gravely informed him that
"hell, no, I ain't going to work" (Tr. 274).
When asked to evaluate Mr. Gravely's work performance,
Mr. Burgess responded as follows (Tr. 274-276):
Q. Well, in the time that he worked for
you prior to ~ay and up until the time he
was discharged, did you have any opinion
about the type of work he was doing and whether
or not -A.
Q.

Yes, sir, I did.
it was satisfactory work?

A.
It was very unsatisfactory. Jack
resented me for some reason or another, and
it was my section to look after and I would
make checks of it and I'd give him my opinion
of what needed to be done and what I wanted
him to do and so forth.
Q.

And what reaction did you get to that?

76

A.
Well, he acted like he resented me all the
·time, and he didn't pay a whole lot of attention
to what I had to say. And there was several
problems I had with Jack; one of them was the
centers; one of them was with floating out
through dinner, running the miner through dinner,
which we're supposed to do, and I asked Jack to
do it and he never did do it. And several times
I come on the section and everybody would be in
the dinner hole.
Q.
Had you ever recommended that he be terminated
prior to the time he was?
A.
Yes, sir.
I had been in trouble over Jack
several times through my superiors for center
lines, how critical it would have to be for the
belt going through. Mr. Campbell, which is over
construction, he was over the belt lines and all,
he called me into his off ice several times over
it; and, Harrison, we had discussed Jack several
times.
I couldn't do a thing with him.
Q.
Is it true from what you say that the center
lines are very important in driving the -A.

Yes, sir.

Q. And that if they're off three to six feet,
does that create a problem?
A.

It sure does if it's in your belting, absolutely.

Q.
So you would have to come back and straighten
it out.
Is that right?
A.
Yes, sir. What time that you have to back up
to shear your ribs, that's time that you're losing
in production in the face.
You know, you could
be getting· a cut of coal for what time you was
getting two or three buggies to straighten up
the miss and taking it back to the face up here
and bolting the ribs, and it's a lot of time and
a lot of loss in production.
Q.
Is there also a lot of risk of violations of
regulations?
A. Well, sure.
It's a state law that all places
must have a center line in before the cut. Several

77

times I had went on a section and caught them
cutting without a center line. They'll put
a center line up and get two cuts before they
would put the next one up.
I mean there's a
lot of that that went on.
Q.

Was this under Jack's supervision?

A.

Yes, sir.

On cross-examination, Mr. Burgess stated that no
violations were ever issued against the respondent for cutting
the places in question too wide (Tr. 276). He also stated
that while he could have disciplined Mr. Gravely for not
working over the weekend in question, he did not do so and
turned the matter over to Mr. Ward and Mr. Blankenship
(Tr. 282) .
When asked about the events of July 27 through 30, 1982,
and the roof fall, Mr. Burgess testified as follows (Tr. 284285, 286, 288):
JUDGE KOUTRAS: Are you aware of the events
of July 27th, 28th, 29th, and 30th, this
roof fall business and all that?
THE WITNESS:

Yes, sir, I was.

JUDGE KOUTRAS: Tell me in your own words
what you know about that.
THE WITNESS: Well, it's my opinion if it was
taken care of the way it should have been to
start with we wouldn't have had all the problems
that we had.
JUDGE KOUTRAS:
too general.

That's a little too broad and

THE WITNESS: No. Seriously, if the intersection
where the top had give way had been supported
like it was supposed to have been to start with,
the top wouldn't have took off.
I mean it
has to break out somewhere.

*

*

*

*

JUDGE KOUTRAS: All right. But on the 27th, do
you agree that they were sent down to do some
scraping and that they encountered a bad top?

78

THE WITNESS:
I don't know what the dates were,
but I know that Harrison give me the same diagram
that he give Jack to go by. And Harrison explained
it to me -- you know, Harrison was the day shift
man and I was the evening shift man and he knowed
I'd seen Jack before Jack went in.
JUDGE KOUTRAS:

Okay.

THE WITNESS: Harrison explained to me what he
wanted done up there, and I had the map. All right.
When I come out that evening I told Jack, I said:
Jack, I've got a map here -- he said I've got one,
too. And I said, well, let me show you what
Harrison wants, and he said:
I know what he wants.

*

*

*

THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

*
No, sir.

I showed him the map of

Of what he was expected to do?
That's right.
At what area?
In No. 1 intersection.
In No. 1 intersection?
That's right.
And his response to you was?
He knowed what to do.
Did he take the map from you?
No, he had his own map.

Harrison L. Blankenship, Jr., assistant mine foreman,
testified that in 1982 he was the mine production superintendent,
and that he has 12-1/2 years of mining experience. Mr. Blankenship stated that he first became aware of a problem in the
No. 1 and No. 2 entry area on the morning of July 26, 1982,
when either Mr. Gravely or an electrician reported a bad
top in the No. 1 entry and asked him to look at it.
Mr. Blankenship went to the area, which he described as
the last open cross-cut in the No. 1 face between the No. 1
and No. 2 entries (Tr. 298). The entry itself is used for
air return.

79

Mr. Blankenship stated that he found some cracks in
the roof.and he instructed evening shift foreman Burgess
to install some "turn cribs" to support the roof and to
allow "a hallway to work No. 1 Face" (Tr. 299). He described
the area on exhibit R-7, and he stated that he gave Mr. Burgess
a sketch, and also gave one to the "hoot owl" shift supervised
by Mr. Myers. Mr. Myers sent Mr. Gravely to install the
cribs, but they were not installed according to his instructions
and the sketch, and he explained how they were installed
(Tr. 301-303).
Mr. Blankenship stated that when he returned to the
area the next morning, July 27, he found that the cribs had
been installed improperly and contrary to his instructions.
He examined the roof, and while it did not look any worse
he decided to let Mr. Gravely's "hoot owl" shift install
additional cribs in the way he had explained the day before.
He personally drew a diagram on a yellow pad and told him
how he wanted the roof cribs installed. At that time no
danger board had been put up, and he does not know when the
board was put up or who put it up.
He was aware of a danger
board in the No. 2 entry approximately 130 to 140 feet out
by the bad top area (Tr. 306).
Mr. Blankenship stated that when Mr. Gravely went to
the area which he sketched out for him, he found a danger
board and started his work at that point. Mr. Blankenship
believed the danger board "was put or set much too far out
by the bad top," and six hours after his shift the top in
the No. 1 entry intersection fell in, and it sheared off at
the extension over the area where the cribs had been installed.
Mr. Blankenship stated that there was no doubt that the fall
would not have occurred if his initial orders to install
"turn cribs" had been followed (Tr. 308).
Mr. Blankenship stated that at the time the roof
condition initially developed it was possible to approach
the intersection from two directions.
He stated that six
cribs were set in the No. 1 entry along the left rib, but
there was still room.to take a piece of equipment up to the
entry.
There was no danger board at the approach to the
No. 1 entry, and the only danger board was set at the No. 2
en try (Tr . 3 0 9) .
When asked whether it would have been unsafe for
Mr. Gravely and his crew to have done anything that he either
ordered or asked him to do in regard to the roof situation,
Mr. Blankenship responded as follows (Tr. 309-310):

80

A. To start with, the conditions changed from
my shift to his shift, it was a period of at
least eight hours, that the top conditions is
subject to change in minutes. At the time I
left the top was safe enough for even equipment
to run through it. The danger board was put
there after I left and by the time I got there
the top had fallen in. So to answer your
question truthfully I can't.

Q. Well, I think what you're talking about is
on the 28th.
A.

Yes, sir.

Q. Now, on the 27th, was there anything that you
asked him to do or which your plan required which
would have been in your opinion unsafe for them
to have done at that time?
A. No, sir.
There was no danger board; the top
hadn't started to fall.
They took the unitrack
and hauled cribs all the way through this work
site, but just set them improperly.
Mr. Blankenship identified exhibits R-8 through R-12
as records which he maintained on Mr. Gravely, and they
include references to an incident on March 12, 1982, his
suspension of March 16 and 17, 1982, his failure to work on
May 29, 1982, his suspension of June 2-4, 1982 for his
failure to work, the pump incidents of July 27 and 30, 1982
(Tr. 310-318).
Mr. Blankenship reviewed the actions shown on the
records in question and stated that he personally informed
Mr. Gravely of the first suspension, that he approved of
the second one and that Mr. Ward informed Mr. Gravely of
this. Mr. Blankenship also stated that he personally
discussed the pumps with him (Tr. 314, 318).
With regard to Mr. Gravely's failure to timber the fall
area as instructed, Mr. Blankenship stated as follows
(Tr. 316-317) :
Q. Now, you did not take any action or
give any reprimand or discipline as a result
of this event that took place, did you?
A. No, sir.
I did talk to Mr. Gravely about
this.
I explained to him that there was a time

81

frame between the time I had written this
note and the time that he was actively engaged
in this type work and that things happened
and that there was a danger board there which
wasn't when I left; that he has to correct the
danger board first and that the top fell in and
that that 1 s something we will have to deal
with later, but I did also mention to him
that if it had been cribbed right to start with
that it wouldn't be on the ground.
Q. But you did not take any disciplinary action,
did you?
A.

No, sir.

With regard to the second pump incident, Mr. Blankenship
stated (Tr. 317-319):
Q. On July the 30th, which is two days later,
of course; you state that the same or a similar
occurrence with regard to the loss of a pump
took place.
Is that not correct?
A.

Yes, sir.

Q. Was this pump located at the same spad number
as the one before?
A.

Yes, sir.

Q. 1944. And that's the same sump area that
served the same pump.
Is that correct?
A.

Yes, sir.

Q. And you state here:
"When I asked Mr. Gravely
about this, he said he had no explanation." Did
that take place?
A.

Yes, sir.

Q. And then, did you tell him that you had no
choice but to relieve him from his duty because
of negligence?
A.

Yes, sir.

Q. Now, what did you do after that in carrying
out your statement as to what you should do?

82

A. Well, the first thing I done, I got
the pump and made sure that the pump had been
destroyed as called out by the owl shift.
And after I saw the pump, then I brought
Mr. Gravely in and Mr. Myers and we talked
about it and decided to discharge him. And I
got the okay from my superior to discharge
him.
Q.

And who was your superior?

A.

Walter Crickmer.

Q. Did you at the time you terminated Mr. Gravely
prepare a personnel termination form?
A.

Yes, sir, I did.

Q.
I hand you what purports to be such a form
dated July the 30th.
Is that filled out by you?
(Witness examines the above-referred to document.)
(Pause in proceedings.)
A.

Yes, sir, it is.

Q.

And did you give Mr. Gravely a copy of that?

A.

Yes, sir, I did.

Q. And I believe you said you did that after talking
to Mr. Crickmer?
A.

Yes, sir.

With regard to the discharge, Mr. Blankenship stated
as follows (Tr. 324):
Q. Do you remember the gist of the discussion
you had with him about the reasons for discharging
him?
A. Yes, sir. We talked about it several minutes
and we decided -- and we even talked with Jack in
our presence -- that the reason that he was being
discharged wasn't because of the top falling in
and not going in by the danger board, but just
multiple events that led up to the discharge.

83

Q. Well, was this a true and correct statement
of your reason for the discharge?
A.

Yes, sir, it was.

Q. Mr. Blankenship, if a foreman, or a man or
employee, not a foreman, were to tell you they
were apprehensive or afraid to go in an area in
which the top was working, would you respect their
opinions on that?
A. Yes, sir. And on occasion I have even gone
out on an out-shift and worked with them on a top
that they were afraid of.
Mr. Blankenship could not recall asking Mr. Gravely to sign
the termination form in question. Mr. Gravely, Mr. Ward,
and Mr. Myers were all present at the time the form was
completed, and Mr. Ward completed part of the form from
information from Mr. Gravely's personnel files.
The form
was presented to Mr. Gravely with an explanation as to why
he was being discharged (Tr. 327-330).
With regard to Mr. Gravely's suspension on March 16 and
17, 1982, Mr. Blankenship stated that if Mr. Gravely in
fact worked on those days "it was an oversight on somebody's
part." He explained that 60 or 65 foremen are at the mine
and it is difficult to keep up with all of them (Tr. 343).
Mr. Blankenship stated at least four or five other foremen
have been suspended, fired, or asked to resign for offenses
similar to those engaged in by Mr. Gravely, and that Mr. Gravely
has not been treated in any harsher manner. Some of these
actions against foremen were before and after Mr. Gravely's
discharge. Mr. Blankenship named at least four foremen who
were suspended. One was suspended for five days for a first
offense for "getting off centers" (Tr. 369). He also
indicated that three of the foremen opted to quit rather than
being fired (Tr. 370).
Mr. Kiblinger and Mr. Carr were recalled in rebuttal by
Mr. Gravely's counsel.
They testified further with respect
to the roof control cribs which were set at the break between
the No. 1 and No. 2 entries, as well as the danger boards
mentioned in this case.
Mr. Gravely was recalled by me, and except for his
suspension for three days in June 1982, which he readily
acknowledged, he denied that he had otherwise been disciplined,
su~pended, o: coun~eled about his work (Tr. 383).
Mr. Gravely
reiterated his belief that when Mr. Blankenship attempted to

84

blame him for the roof fall, he (Gravely) concluded that the
only way he could have prevented the fall was to go inby the
posted danger board to do something to prevent it (Tr. 387).
Findings and Conclusions
Mr. Gravely's discrimination complaint is based on his
belief that he was discharged by the respondent after being
held accountable and to blame for a roof fall which occurred
on the section where his crew had engaged in some roof support
work. Mr. Gravely asserted that assistant mine foreman
Harrison Blankenship expected him to take his work crew inby
an area which had been "dangered off" by the posting of a danger
board sign to perform certain work to support the roof.
The respondent's defense in this case is based on its
assertion that Mr. Gravely was discharged from his management
position as a foreman because of an accumulation of prior
incidents and conduct which occurred during his employment
tenure.
These incidents and allegations by the respondent
with regard to Mr. Gravely's work performance include the
following:
1. Lack of proper supervision by Mr. Gravely
over his work crew which resulted in the
destruction or damage to two sump pumps.
2. Lack of proper supervision by Mr. Gravely
over his work crew which resulted in the continuous miner operator making certain coal cuts
"off center."
3. Excessive absences during weekends, and
the failure by Mr. Gravely to report for work
on a weekend when he was previously scheduled
to work.
In support of its allegations concerning Mr. Gravely's
work performance, the respondent presented testimony by former
mine manager Walter Crickmer, assistant shift foreman Larry Burgess,
and assistant mine foreman Harrison Blankenship.
Mr. Crickmer testified that prior to the discharge,
he had discussed Mr. Gravely's work performance with him and
that Mr. Gravely had been assigned and reassigned to various
foreman positions in an effort to find a place for him to work,
but that in each instance management had problems with him.
Although conceding that none of the prior warnings or suspensions
given to Mr. Gravely for his work performance were reduced

85

to writing, Mr. Crickmer confirmed that he was aware of
Mr. Gravely's alleged absenteeism, his failure to report
to work when scheduled, his suspension which resulted
because coal was cut "off center," a~d the incidents concerning
the damaging of the sump pumps. Mr. Crickmer also confirmed
that after the pump incidents, Mr. Blankenship advised him
that he wanted to fire Mr. Blankenship, and Mr. Crickmer
agreed that this should be done.
Mr. Burgess testified that he considered Mr. Gravely's
work performance to be unsatisfactory, and that he had
previously made recommendations that Mr. Gravely be terminated
because of the incidents concerning the "off center" coal cuts.
Mr. Burgess conceded that he had been in trouble with his own
superiors over these incidents, and he 9elieved that Mr. Gravely
resented him and paid little attention to his instructions.
Mr. Blankenship testified as to certain suspensions
given to Mr. Gravely prior to his discharge, and he produced
his personal records and notes to support these suspension
actions. Mr. Blankenship stated that he personally informed
Mr. Gravely of the first suspension, and that he approved a
second suspension. He also confirmed that he personally
discussed the damaged pumps with Mr. Gravely, as well as
Mr. Gravely's failure to follow instructions as to how certain
roof cribbing should have been installed at the roof fall
area.
Mr. Blankenship testified that after the second sump
pump was damaged he decided to discharge Mr. Gravely for
negligence, and he did so after obtaining Mr. Crickmer's
approvel. Mr. Blankenship also testified that he advised
Mr. Gravely that he was not being discharged because of
the roof fall, but because of "multiple events."
Mr. Gravely took issue with the reported prior disciplinary
actions taken against him.
In his defense, he testified as
to certain mitigating circumstances surrounding the damaged
pumps, and attempted to establish that even though he was
the foreman in charge, the damage to the pumps resulted
from actions by other foremen and by the negligence of the
individuals who were assigned to watch the pumps.
Although Mr. Gravely denied that he was ever reprimanded
by Mr. Blankenship or ~r. Myers, he confirmed that he received
a three day suspension for missing a day of work over a
Memorial Day weekend. Mr. Gravely insisted that he was not
scheduled to work, and even though the suspension was to be
without pay, he stated that he was in fact paid for the
days he was suspended.

86

Mr. Gravely denied that he was ever suspended or
reprimanded during March 16-18, 1982, because an entry was
cut too wide.
In fact, he asserted that he verbally reprimanded
the miner operator. Mr. Gravely made reference to certain
mine records which he stated support his claim that he worked
on the days of the purported suspension. ~
Mr. Gravely's arguments in defense of his prior disciplinary
encounters with his management superiors were obviously offered
to support inferences that the respondent is somehow attempting
to conceal the real reason for his discharge. While it may
be true that the respondent's personnel practices leave much
to be desired, particularly with respect to the lack of specific
documentation and lack of record-keeping concerning the
prior suspensions and disciplinary actions taken against
Mr. Gravely, I cannot conclude that the respondent has somehow
fabricated these incidents so as to support the discharge
after-the-fact.
To the contrary, I find Mr. Crickmer,
Mr. Burgess, and Mr. Blankenship to be credible witnesses,
and I find their testimony concerning the prior suspensions,
warnings, and counseling with regard to Mr. Gravely's work
performance to be believable. Further, absent any showing
of a violation of the Act, or a showing that the discharge
was motivated by protected safety activities, I believe that
disciplinary matters between mine management and its management
staff are best left to those parties for resolution.
I find nothing in the record here to support a conclusion
that Mr. Blankenship or any other member of mine management
ever directly or indirectly requested, directed, ordered, or
otherwise suggested that Mr. Gravely take his work crew inby
any danger board, or inby any hazardous area of the mine at
any time prior to any "work refusal." Although shuttle car
operator Ralph Carr stated that night shift foreman Myers asked
the crew to go further into the dangered area, the crew did
not proceed any further, and Mr. Carr's assertion is not
further supported by any credible testimony or evidence.
Two members of Mr. Gravely's crew who testified at
the hearing in this case did not support Mr. Gravely's assertion
that the crew was expected to work inby the danger board.
Bernard Campbell worked on Mr. Gravely's shift, and
Mr. Campbell is also a member of the UMWA safety committee.
He testified that work to support the roof started at the
danger board, and that no one "coaxed" him to go any further
inby than where the roof was supported. He also testified
that Mr. Gravely said nothing to him about not wanting to
go beyond the danger board.

*/ Submitted post-hearing by Mr. Gravely's counsel by letter
and enclosures of October 28, 1983. The records are copies
of shift reports for March 16 and 17, 1982, containing
Mr. Gravely's signature.

87

Eric Coleman, a roof bolter who believed he worked on
Mr. Gravely's shift during the danger board incident,
testified that no one ever instructed him to go beyond the
posted danger board. Mr. Coleman als~ testified that he could
not recall or remember Mr. Gravely, Mr. ayers, or any other
manager instruct Mr. Gravely to take his crew beyond the danger
board.
Gary Kiblinger, another member of Mr. Gravely's crew,
said nothing about anyone ever instructing or ordering the
crew to work inby the danger board in question.
Mr. Gravely himself testified that at no time did he
take his crew beyond the danger board, and that at no time
did anyone ever direct or order him to do so.
I take note of the fact that while Mr. Gravely asserted
on the one hand that Mr. Blankenship blamed him for the first
fall which occurred on July 28, Mr. Gravely also asserted
that Mr. Blankenship never mentioned the subsequent fall which
occurred on July 30, nor did he blame him for it. Mr. Gravely's
testimony in this regard is rather contradictory, and it
occurs to me that if Mr. Blankenship wanted to rely on the
roof falls as the basis for Gravely's discharge, he would
have blamed both of the falls on him.
Even if I were to accept Mr. Gravely's assertion that
the roof fall was the reason for his discharge, there is no
evidence to support a conclusion that Mr. Gravely was ordered
or requested to do anything which was not safe. Further,
there is no evidence that Mr. Gravely's discharge resulted
from his refusal to take his crew inby the danger board area
in question.
I believe that Mr. Gravely's belief that Mr. Blankenship
"expected" him to take his crew inby the danger board stems
from the fact that Mr. Gravely believes that he was fired
for allowing the roof to fall.
In this regard, he apparently
relied on a purported statement by Mr. Myers that he should
have started the roof support work further in from where he
actually did,·and Mr. Blankenship's purported statement that
he should have started his work further in to secure the roof
area that fell. Mr. Gravely also apparently relied on
Mr. Myers' purported statement that mine management was thinking
about firing him over an earlier fall. Mr. Myers did not
testify in this case, and Mr. Blankenship denied that Mr. Gravely's
discharge was in any way connected with the danger board situation.
It seems clear to me from the record in this case that
any criticism of Mr. Gravely's asserted failure to properly
set the roof cribs to Mr. Blankenship's satisfaction,
as well as Mr. Blankenship's belief that the roof fall could
have been avoided had Mr. Gravely followed his instructions, came
after the roof fell.

88

With regard to the sketch and Mr. Blankenship's
instructions as to how the roof was to be supported, Mr. Gravely
did not believe that he ever received a copy of the sketch.
However, he did acknowledge a conversation the morning after
the fall when Mr. Blankenship became "disgusted" with him over
the fall (Tr. 384). Further, when asked whether Mr. Myers
ever gave him any instructions as to how to crib the roof
area in question, Mr. Gravely first answered "no," and he
then said "if he did, it was on-the-spot instructions when
he was there with me" (Tr. 384). Mr. Gravely then stated
that he was sure that Mr. Myers did instruct him as to how
to crib the area (Tr. 385). Mr. Gravely also acknowledged
that he was aware of the method of using roof supports laid
out in an "arc," and that there is nothing unusual about
this type of roof support. However, in his opinion, even
if he had cribbed the roof in this fashion, it would still
have fallen (Tr. 401). Given these circumstances, Mr. Gravely's
initial assertions that he had no instructions or knowledge
that Mr. Blankenship wanted the roof area which fell cribbed
in any particular manner are less than candid.
Mr. Blankenship's testimony reflects that his displeasure
over the roof fall stemmed from his belief that Mr. Gravely
failed to follow certain instructions which he had'given him
as to how to support the roof which eventually fell. Mr. Gravely
testified that he took corrective action to support the roof
at the danger board location where Mr. Myers and Mr. Burgess
instructed him to start. Mr. Burgess testified that when
he attempted to discuss the proposed roof support work with
Mr. Gravely, including going over a diagram or a map, Mr. Gravely
advised him that he knew what Mr. Blankenship wanted done.
Mr. Burgess also said that Mr. Gravely had his own map.
After careful review of Mr. Blankenship's testimony,
I conclude that his explanation as to how he expected the
bad roof area to be corrected is both reasonable and
plausible. After viewing Mr. BJ.ankenship on the stand during
the hearing, I find him to be a credible and straightforward
witness. I believe that Mr. Blankenship had given Mr. Gravely
certain instructions as to how the roof support work should
have proceeded, but that Mr. Gravely did not follow instructions.
It seems obvious from the record in this case that the
respondent was not too enchanged with Mr. Gravely's work
performance as a foreman, and that his discharge came about
after a series of incidents which finally convinced mine
management that Mr. Gravely should not continue on as a
foreman.

Conclusion and Order
In view of the foregoing findings and conclusions, and
after careful consideration of all of the evidence and testimony
adduced in this case, I conclude and find that Mr. Gravely
was discharged because of poor work performance and not because
of his refusal to take his work crew inby any dangered off
mine area.
I further conclude and find that the respondent
did not discriminated against Mr. Gravely, and that his rights
under the Act have not been violated. Accordingly, his
discrimination complaint IS DISMISSED.

Distribution:
Belinda S. Morton, Esq., Fayette County Nat'l Bank Bldg.,
Box 636, Fayetteville, WV 25840 (Certified Mail)
Fletcher A. Cooke, Esq., P.O. Box 4000, Lebanon, VA 24266
(Certified Mail)
W. H. File, Jr., Esq., File, Payne, Scherer & Brown, P.O.
Drawer L, Beckley, WV 25801 (Certified Mail)

/slk

90

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

JAN 131984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-93
A.C. No. 46-03887-03505
Mine No. 108

BETHLEHEM MINES CORPORATION,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Thomas W. Ehrke, Esq., Bethlehem Mines
Corporation, Bethlehem, Pennsylvania, for
Respondent.

Before:

Judge Kennedy

This matter came on for an evidentiary hearing on the
operator's notice of contest of a 104(d) (1) citation and
•a 104(a) S&S citation issued in connection with a fatal
roof fall accident.
During the recess between the first
and second day of the hearing, the parties negotiated a
settlement which, after adducing further evidence, they
asked the trial judge to approve.
Because the record disclosed some unusual and troubling
aspects of the operator's compliance procedures and MSHA 1 s
enforcement procedures, I deem it advisable to set forth the
following findings and conclusions as a preamble to conf irmation of my bench decision.
•·

Anatomy Of An Institutional Failure
On the afternoon shift of Monday, August 2, 1982, a massive
roof fall occurred in the No. 3 entry, 1 Left Section of Mine
No. 108. The fall resulted in the death of Louis N. Hodges

91

who, at the time, was performing the duties of a continuousminer operator helper !_I and the temporary entrapment of
William D. Singleton, continuous-miner operator. Mr. Singleton
was protected by his canopy and extracted himself from the
fall without injury. 2/ Mr. Singleton had 12 years mining
experience of which 7-were as a continuous-miner operator.
The section foreman was Thomas J. Binns. Mr. Binns had
11 years mining experience of which 7-1/2 years were as a
foreman.
The accident occurred while the operator was engaged
in a full pillar recovery operation. ~ More specifically,
while Singleton was making his initial or "A" cut of 18' x
10' in the No. 3 Pillar from the No. 3 Entry he noticed a
slip crack running diagonally across the roof from the left
rib. He ignored or did not appreciate the significance of
the condition and when he finished the "A" cut, backed the
miner into the entry to position it to make the "B" run and
square up the split.
Both Binns and Singleton as well as their superiors
were aware of the fact that to make the "B" cut a full 10
feet in width would require the removal of coal from the No.
3 Pillar on a line immediately adjacent to or under a clay
vein six inches in width that ran at a right angle across
the roof of the No. 3 entry and into the pillar. The clay
vein was plainly visible to anyone who looked and had been
supported with 2 by 8 headers and bolts since the entry was
originally developed in 1975.
(See attached sketch.)
1/ Mr. Hodges was a 23 year-old miner with five years underground experience. This was the second roof fall fatality at
the #108 Mine in 1982.
2/ Where continuous-miner operators are protected by
canopies, their instructions are to stay in their cabs and
to try to tram their machines out from under imminent roof
falls. While this may be good for production, it is hard
on helpers if the CMO does, as was shown in this case, and
cuts down loose roof that triggers a massive roof fall.
In
the last nine years 435 miners have been killed on the job
as a result of roof falls.
Thus, on the average 4 miners
a month die as the result of roof falls.

?/ Pillar removal is inherently dangerous--perhaps one of
the most hazardous operations conducted in the underground
mining environment. To accomplish it safely requires special
training and rigid adherence to the safety precautions set
forth in the mandatory standards, including the operator's
roof control and pillar recovery plans.

92

Singleton knew of should have known that it was
highly likely that the crack running from the left rib might
intersect the clay vein if he made a full cut on the "B"
run. Further, Binns and Singleton both knew that when a
clay vein was encountered the "B" cut should be shortened so
that sufficient coal would be left to support the roof until
permanent additional support could be supplied. Despite
this Binns did not tell Singleton to shorten the "B" cut and
made no preparations to provide additional roof support.
While Binns and Singleton denied knowledge of the
existence of the clay vein, 4/ Singleton admitted he knew of
the crack and counsel for the operator judicially admitted
that "the clay vein just inby the head of the continuous
mining machine (as shown in the sketch) was visible to the
crew well in advance of the fall." I find that because
cracks and clay veins are very common in the Redstone Coal
Seam and Mine No. 108, neither Binns nor Singleton considered
the crack or the clay vein's presence unusual. 5/ Both men
visually observed the roof conditions in the No~ 3 Entry and
Binns may have drummed it once or twice. Neither man drummed
the entry or the split in the area of the crack in the "A"
cut before the "B" cut was begun. Both miners knew, of
course, that cracks and clay veins are signs of an abnormal
or dangerous roof condition and that when encountered they
should be carefully evaluated and supported before proceeding
to mine coal.
After Singleton loaded two shuttle cars of coal from
the "B" run a large piece of draw slate (18" x 6" x 4") fell
from the roof near the rib through which the clay vein ran.
It hit the continuous miner and startled Singleton and the
other miners in the area. Singleton stopped the miner and
4/ I find Binns position on this incredible. He should
have seen the clay vein during his onshift roof check of the
entry on August 2 and during his preshif t examination of the
area on Friday, July 30, 1982, just two days before the
accident occurred. Why Binns chose to absent himself from
the face during the time Sing~eton was making the "B" cut
was never explained.
5/ Nevertheless every properly trained miner knows that "a
clay vein area is very hazardous and must be treated with
extreme caution." Guide to Geologic Features Affecting Coal
Mine Roof, MSHA Information Report 1101 (1979).

93

got out of the cab to observe the roof. He saw some flaking
and dribbling of the roof near the clay vein but quickly
decided the roof was not working and without advising Binns
of the incident started cutting coal again.
After taking one or two more shuttle cars of coal,
Norman Woods the roof bolter who was standing with Hodges
inby the miner near the right rib of the pillar split
watching the clay vein observed the roof commence to work
violently.
He shouted a warning and ran down the right rib
behind the miner and looked at the roof on the left rib.
It
was creaking, groaning and starting a heavy dribble of rock,
slate and clay. He yelled to Hodges and Singleton that the
roof was coming down and to get out. Singleton, following
his standing instructions, put the miner in reverse and
started to back out. Hodges started to run, but stopped to
lift the trailing cable from where it had jammed at the
corner of the split and was cut down and crushed by a
massive fall of rock before he could get to the crosscut.
Lanny Rauer, the mine superintendent, testified he
believed both Singleton and Binns acted in accordance with
the operator's standing instructions and good mining practice.
He said Singleton's instructions were to cut down loose
roof, wherever encountered, and therefore he could not fault
Singleton for proceeding with the "B" run even in the
presence of clear evidence of an abnormal roof condition.
He also believed Binns adequately checked the roof in the
entry before the shift began and while the pillar recovery
was in progress. He admitted, however, that his standing
instructions on how to handle loose roof in the presence of
clay veins might have contributed to the roof fall.
Mr. Crumrine, a roof control expert for MSHA, said
Singleton should have backed the miner out of the "B" cut as
soon as he saw the rock fall from the area of the clay vein.
At that point, Binns should have been advised and should
have taken action to provide additional roof support as
required by safe mining practice, the mandatory standards
and the roof control plan. He was, however, sympathetic to
Mr. Rauer's claim that Mr. Binns should not be stigmatized
with an unwarrantable failure violation and agreed, as
conference officer, to change the (d) (1) citation to an (a)
citation.
As a result of its investigation, the West Virginia
Department of Mines found that all persons should have been
withdrawn from the area when the roof was first observed to

94

be working, i.e., when the draw slate fell ai:id hit the
continuous.miner.
The UMWA Safety Committee issued a statement saying
that "after hearing the testimony of the people involved,
we feel that [the roof fall fatality of August 2, 1982) was
an unavoidable accident and that Management, the Section
Foreman or any one else involved was in no way responsible."
The Manager of the Bethlehem Mines Division as well as
MSHA's accident investigation found the immediate cause of
the roof fall was the undermining of the intersection of the
crack running diagonally across the split from the left rib
with the clay vein running down the right rib of the split.
Neither investigation expressed any doubt about the presence
and visibility of the clay vein or the crack. The clay vein
was six inches in width and the crack at least l/64th of an
inch. The area was well illuminated and Singleton saw the
crack while making the "A" run.
It was not until Singleton undercut the intersection of
the crack and the clay vein that the farmer's significance
became apparent to him and by then it was too late. Singleton's
failure to appreciate the significance of the crack can only
be attributed to a lack of adequate training in the evaluation of abnormal roof conditions. Singleton's and Binn's
failure to appreciate the significance of the clay vein was
inexcusable.
Binn's failure to supervise the operation and
to instruct Singleton to shorten his cut in the presence of
the clay vein was responsible for the creation of an imminent
danger.
Rauer's instructions to cut down loose roof, wherever
encountered was contrary to safe mining practice. Further,
for Rauer to permit partial pillaring on the left side of
the section was, as the Division Manager found, a factor
that contributed to override pressure on the roof.
Responsibility for the roof fall must be attributed to
the entire chain of cornrnand--f rom the mine superintendent to
the continuous miner operator. What occurred was not an act
of God nor an unavoidable accident. Both Mr. Singleton's
and Mr. Binns's evaluation of the situation was deplorable.
And if Mr. Rauer is to be bel~eved, their training and
instructions were fatally deficient. Mr. Rauer's sharp
disagreement with his own Division Manager over the contributing
causes of the fall indicates a disarray on the part of top
management that is hardly reassuring. Based on the evidence
considered as a whole, I would have to agree that as MSHA found:
The accident occurred due to the failure of
management and the workmen to properly evaluate

95

the roof where a clay vein and roof crack
existed and was intersected.
The Rounded Corner Violation
As a result of the accident investigation a 104(a) S&S
citation was issued for creating an excessive width (23') in
the mouth of the pillar split. The evidence clearly supported
MSHA's determination that under accepted practice as well as
the drawings attached to the roof control plan the operator
was allowed to round or notch the corner of a pillar split
and thereby widen the mouth to more than 20' and narrow the
outby fender to less than the 12.5 feet for a distance of 12
to 18 inches in order to get the continuous miner positioned
to make the "A" run.
The technical violation involved did
not contribute to the roof fall. Accordingly, the motion to
vacate this citation was approved as part of the overall
settlement of this matter.
The District Conference
Shortly after the investigative report 1 issued, this
matter came on for a conference at the District Off ice in
Morgantown, West Virginia.
30 C.F.R. 100.6. 6/ The District
Manager designated Robert L. Crumrine, an experienced CMI
and roof control expert, to act as the Conference Officer.
Present at the conference was Larry Rauer, the mine superintendent, and later John Dower the inspector responsible for
the citations and investigative report.
Mr. Dower was about 45 minutes late for the conference
and by then Mr. Crumrine had made up his mind about the
matter. 7/ This was not unusual as in 9 out of 10 cases the
issuing rnspector is not permitted to attend the conference. 8/

§/ The conference procedure is a method of informal adjudication not specifically provided for under the Act. Under
this procedure, District Managers are encouraged to eschew
the role of vigorous enforcers and become "cooperative
regulators."
7/ Mr. Dower said he was late because he was not alerted to
the fact that his presence was· requested until shortly
before the conference convened on the morning of October 6,
1982. He said he was delayed by his unsuccessful efforts to
obtain copies of the citations and his notes which were
locked up in his supervisor's office.
8/ While the governing instructions provide that "MSHA
inspectors will participate in the review of the citations
and orders," this is subject to the discretion of the
District Manager.
47 F.R. 22293 (1982).

96

While Mr. Rauer had a copy of the fatal roof fall
accident report approved and signed by the District Manager,
Mr. Keaton, and reviewed, approved and issued by headquarters
of MSHA in Arlington, Virginia two weeks earlier, neither
Mr. Crumrine nor Mr. Dower had a copy of the report at the
time of the conference. Mr. Crumrine said he did not need
to read the report to decide the matter. He made his decision
on the basis of his discussion with Mr. Rauer and after
reading a statement by Mr. Binns. Mr. Binns statement
claimed he sounded the roof in the No. 3 entry in the area
where the "B" cut was to be started while Mr. Singleton was
positioning the continuous miner for the "B" run. He did
not deny that he left the area after sounding the roof
instead of staying to supervise and control the dimensions
of the "B" cut.
Mr. Crumrine said he was satisfied there was a violation
of 75.205 but felt the charge of an unwarrantable failure to
sound the roof was unfair to Mr. Binns. 9/ Mr. Crumrine
believed Binns had adequately sounded the roof in the No. 3
entry before the "B" run was started. Since he left the
area immediately thereafter and was not present when Singleton
encountered the loose roof, Crumrine did not think he could
be held accountable for Singleton's failure to properly
evaluate the situation.
With respect to Mr. Singleton's actions, Mr. Crumrine
said it is against MSHA policy to hold an operator responsible
for unwarrantable failure violations attributable to contract
miners. 10/ Thus when he concluded that Mr. Binns, the
section foreman, had sounded the roof adequately and was not
r~sponsible for the failure to provide additional roof

2/

The graveman of the case presented by the solicitor
turned on the failure of Binns and Singleton to provide
additional roof support in the presence of the dangerous
condition revealed by the initial working of the roof near
the clay vein with knowledge, by Singleton, of the crack
observed while making the "A" run.
10/ This policy fails to take into account situations where
the contract miner's actions are properly imputable to the
operator because of faulty training or instructions.
Whether miners acting as adjudicators under the informal
procedures that prevail at district conferences can be
expected to.apply the nuances of the law of vicarious
liability seems doubtful.

97

support in the face of an obviously abnormal roof condition
he advised ~r. Rauer and Mr. Dower that the (d) (1) citation
would be converted to a 104(a) S&S citation.
Mr. Rauer was satisfied with this disposition as it
removed the stigma of the unwarrantable failure finding
both as to Mr. Binns and the operator. Mr. Dower on the
other hand felt that he had not had a fair opportunity to
be heard especially in view of Mr. Crumrine's haste to
convene and conclude the matter without considering the
report and findings, so recently approved by the District
Manager and MSHA, with respect to management's responsibility for the fatality.
He protested Mr. Crumrine's
decision to his supervisory inspector Mr. Vasicek. Mr. Vasicek,
after consultation with Mr. Lawless, assistant to the District
Manager, told Mr. Dower that Mr. Crumrine's ruling would not
be adopted by the District Manager and that the citations
were affirmed as issued. This was confirmed by letter of
October 14, 1982 from the District Manager to Mr. Rauer.
To placate the operator, Mr. vasicek told the assessment
office on December 14, 1982 that "The negligence of both the
foreman and the machine operator (Binns and Singleton) contributed to the accident. The machine operator should have
backed out all the way and stayed out when he saw the roof
was 'working.' The penalty should be fairly low."
(Emphasis
supplied.)
Why the supervisory inspector undertook to suggest the
assessment office ignore the inspector's evaluation of the
operator's negligence is puzzling. Especially since the
inspector who wrote the citations and the investigative
report was, until the hearing, never told that his supervisor,
whom he was led to believe supported his evaluation, had
sought to persuade the assessment off ice to let the operator
off with a "fairly low" penalty. 11/
11/ If this account accurately reflects MSHA's policy of
conferencing in action, it is small wonder there are widespread reports of how the new enforcement philosophy has
demoralized rank-and-file inspectors. Such behind-the-scenes
manipulation of MSHA's ostensible role as chief enforcer
of the Mine Safety Law can lead to the perception that
cooperation is being used as a cloak for capitulation. A
recent report by the International Health and Safety Committee
of the UMWA expressed concern over "the frequency with which
MSHA supervisors cave in to operator pressure and downgrade

98

Following the suggestion from the District Office,
MSHA's assessment office in Arlington, Virginia wrote a
special assessment that found that while the violation
resulted from management's negligence and was serious the
amount of the penalty warranted was only $2,000. Prior to
the era of nonadversarial enforcement such a violation
would have been specially assessed at $5,000 to $10,000.
Compare, Southern Ohio Coal Company, 4 FMSHRC 1459 (1982).
Bethlehem, not satisfied with this ''fairly low" assessment, filed a notice of contest.
In due course, the solicitor
filed the Secretary's proposal for penalty with the Commission.
After assignment, the trial judge issued a pretrial order. ·
In response, the operator raised as a defense, Mr. Crumrine's
ruling at the conference of October 6, 1982.
On or about May 19, 1983, the solicitor called the
trial judge to seek a postponement for compliance with Part B
of the outstanding pretrial order on the ground the District
Manager had decided to settle the matter by reinstating
Mr. Crumrine's ruling of October 6, 1982 and accepting a
penalty of $500. To expedite the matter, the District
Manager directed the inspector, Mr. Dower, to issue the
modifications necessary to effect a reduction of the charge
in the (d) (1) citation and to vacate the 104(a) citation.
Mr. Dower followed orders but the modifications were
rescinded when the trial judge refused to approve the
settlement.

fn. 11 (continued)
citations that have been issued by the inspectors in the
field." The same report also noted that:
Unfortunately, these days, it seems that the MSHA
inspectors who are not afraid to enforce the
Act wind up having to defend themselves, not only
against the operators but also against their own
supervisors. Committee members related conversations with MSHA inspectors that confirmed the view
that the weakened enforcement approach we have seen
in the field results from the message that has been
sent down from the top agency heads. Vigorous enforcement of mandatory health and safety standards has been
viewed as "nit picking" and the message to the inspector
in.the field has been clear: back off, and if you cite
a condition at all, cite it as a non s&s (nonserious)
violation.

99

Thereafter the matter came on for trial of the operator's
defense, inter alia, that Mr. Crurnrine's ruling of October 6,
1982, as confirmed by the District Manager on May 19, 1~83,
was res judicata and therefore the Commission had no authority
to adjudicate the matter de novo.
This defense dissolved
in the light of disclosures that, to say the least, reflected
poorly on the independence, objectivity and neutrality of the
district conference procedure.
As pictured in this record, the district conference procedure has. a potential for seriously undermining the deterrent
effect of the civil penalty provisions of the Mine Safety
Law. 12/ In this case, the conference officer on the basis
of an-rnformal discussion with a representative of the
operator chose to dismiss the unwarrantable failure charges
on the roof fall violation because he did not want to
stigmatize a member of supervisory management. This
myopic view of what actually occurred was then used to
justify a reduction in the amount of the civil penalty
warranted for the institutional failure responsible for
the fatality.
Without even reading the official MSHA fatal
accident report, Mr. Crumrine, based solely on what the
operator's mine superintendent told him, concluded that
because Mr. Binns was not alone guilty of an unwarrantable
failure violation and Mr. Singleton was not, under MSHA
policy, chargeable with such a violation Bethlehem, as
operator, was responsible only for a strict liability, no
fault violation to which no culpability would attach.
The
District Manager sub silencio, followed through on this
evaluation by indicating to the assessment off ice that the
negligence of Binns, Singleton and the operator be considered
12/ While a new administration has the right to try a new
philosophy of enforcement implicitly endorsed by the democratic
process, it is axiomatic that the leaders of every administration are required to adhere to the dictates of statutes that
are also products of democratic decisionmaking. Unless this
administration can convince Congress to change those provisions
of the Mine Safety Law it finds objectionable, it is its
duty to enforce the statutory mandate in a manner consistent
with the original Congressionql intent. A new administration
may not refuse to enforce a law of which it does not approve.
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual
Automobile Ins. Co.,
U.S.
77 L. Ed 2d 443 n.
June 24, 1983) (Rhenqu1st, J. in concurring). Prosecutorial
discretion does not extend to nullifying or recreating law
without changing it through the legislative process. There
are statutory and constitutional limits on the discretion of
policy makers to disavow the will of Congress.

100

"low" and the penalty "fairly low." As we have seen, the
District.Manager thought "fairly low" meant $500. Under the
circumstances, I believe it would have been shockingly low.
The solicitor was compelled to seek approval of the
settlement only because Congress, in its wisdom, changed the
law in 1977 to require approval of penalty settlements by
the Commission's judges. The legislative history of section
llO(k) of the Act shows that Congress felt the public
interest in vigorous enforcement is best served when the
process by which penalties are assessed is carried out in
public, "where miners and their representatives, as well as
the Congress and other interested parties, can fully observe
the process." S. Rpt. 95-181, 95th Cong. 1st Sess. 44-45
(1977). As the Senate Report continued, "the Committee
intends to assure that the abuses involved in the unwarranted
lowering of penalties as a result of off-the-record negotiations are avoided.
It is intended that the Commission and
the Courts will assure that the public interest is adequately
protected before approval of any reduction in penalties." Id.
The conference procedure permits MSHA to circumvent the
statutory protection against the abuses found by Congress.
Recent studies show that the average penalty assessed has
dropped from $177 to $80, a reduction of some 45%, since the
conference procedure was inaugurated.
The disturbing conclusion is that the philosophy of deregulation made manifest in
the conference procedure has led to a marked reduction in the
deterrent effect of the civil penalty and thereby encouraged
operators to flout the law. 13/
The civil penalty assessment was designed to encourage
management at all levels to respond positively to health and
safety concerns. The legislative history of the Mine Safety
Law shows Congress intended to place responsibility for
compliance with the Act on those who control or supervise
the operation of mines as well as on those who operate them
on a day-to-day basis. S. Rep. 91-411, 9lst Cong. 1st Sess.
39 (1969); S. Rep. No~ 95-181, 95th Cong. 1st Sess. 40
(1977). Upper level management decisions such as those
13/ Since May 1982, approximately 75% of all violations
charged have been assessed at $20. A recent study shows
that the policy of cooperative enforcement has resulted in a
sharp upturn in fatality rates in underground and surface
bituminous coal mines. Weeks and Fox, Fatality Rates
and Regulatory Policy in Bituminous Coal Mining, United
States, 1959-1981, 73 AJPH 1278 (1983).

101

affecting capital expenditures, the basic nature and scope
of corporate safety and health programs, the hiring of top
mine management officials, and other policy matters have a
profound effect upon safety and health conditions at individual
mines. Civil penalties should therefore be structured to
influence all levels of decisionmaking. An average penalty
of $80 for serious violations provides no incentive to voluntary
compliance, and does violence to the principle of proportionality. Further, the single or de minimis penalty assessment
of $20 is a positive disincentive to management's commitment
to safety and a triumph of expediency over effective enforcement.
As a recent report by the National Academy of Sciences
found, top managements' commitment is of primary importance
in achieving compliance with safe mining practices and
must be constantly reinforced by strict and effective
enforcement at the federal level. The movement toward
compromise and dilution of the federal enforcement effort
reflected in this record indicates the forces of change may
have shifted too far in the direction of deregulation. 14/
14/ Thought should be given to returning enforcement to its
traditional role. Experience under the Coal Act demonstrated
that confusion of the policing or enforcement function with
the consultative and adjudicatory functions is bad policy
and detrimental to both effective enforcement and fair
adjudication.

I thought that in 1977 Congress made a conscious decision
to structure the regulatory scheme so as to preclude tradeof f s to vigorous safety enforcement. The legislative history'
of the Mine Act shows the enforcement function was transferred
from the Department of the Interior because of its conflict
with that Department's responsibility for maximizing production
of the nation's coal resources.
It was felt that "no conflict
could exist if the responsibility for enforcing and administering the mine safety and health laws was assigned to the
Department of Labor since that Department has as its sole duty
the protection of workers and the insuring of safe and healthful working conditions." Sen: Rep. 95-181, supra, 5.
A safe mining operation is not a function of the art of the
cost accountant.
It requires a strong, almost a "religious,"
commitment by management, labor, and the regulatory agency.
BNA Interview With David A. Zegeer, Assistant Labor Secretary
for Mine Safety and Health, December 9, 1983, published in
Current Report, Mine Safety & Health Reporter, December 26,
1983, at 605.

102

The Problem With the Mandatory Standard
The (d) (1) Citation charged a violation of section 302(f}
of the Act, 30 C.F.R. 75.205, Roof testing. The standard
provides:
Where miners are exposed to danger from falls of
roof face and ribs the operator shall examine and test
the roof, face and ribs before any work or machine
is started, and as frequently thereafter as necessary
to insure safety. When dangerous conditions are found
they shall be corrected iromediately.
By contrast, the approved roof control plan provides:
Where miners are exposed to danger of falls of
roof, face and ribs the workmen shall examine and
test the roof, face, and ribs before any work or
machine is started, and as frequently thereafter as
necessary to insure safety. The roof shall be examined
visually and by the sound and vibration method.
Except the sound and vibration method shall not be
conducted where adverse roof conditions (slips, clay
veins, etc.} are detected during visual examinations.
When dangerous conditions are found, they shall be
corrected immediately.
(Emphasis supplied.}
Inspector Dower testified that his understanding of the
mandatory standard and the roof control plan was that the
~ontinuous miner operator, Singleton, who denied knowing of
the existence of the clay vein in the right rib of the "B"
cut, was required to examine the roof visually and by the
sound and vibration method when he observed the large rock
(18" by 6" by 4"} fall on his machine during his first cut
of the "B" run and that his failure to do so was unwarrantable.
Mr. Dower felt the standard made no exception for the "adverse
roof conditions" referred to in the roof control plan but
recognized that it might be unsafe to use the sound and
vibration method to "test" a roof as loose and dangerous as
that encountered in the "B" cut.
Mr. Crumrine, MSHA's roof· control expert, said that when
visual observation such as the falling rock and/or the
flaking and dribbling from the clay vein signalled the presence
of a loose roof condition the safe and prudent course of
action was to withdraw the machine to a position under supported
roof and then set such roof support as would be necessary to
insure the hazardous condition was abated. He cautioned
against drumming or sounding the roof until some temporary
support was provided as this might in itself trigger a roof
fall.

103

He did not subscribe to Mr. Rauer's instruction which
was to cut down loose roof wherever encountered at the face
with the continuous mining machine. Mr. Crumrine said the
reason the roof control plan differs from the mandatory
standard is because the standard, literally applied, is
hazardous to the safety of the miners. MSHA, he explained,
was aware of the ambiguity but, he said, repeated efforts
to have the standard modified or amended were to no avail.
The language added to the safety precaution in the roof
control plan was intended to ameliorate, if not resolve, the
conflict.
It is intended that the language of the precaution
take precedence over the standard and to say, in effect,
that notwithstanding the provisions of the mandatory standard
a roof should not be "tested" by the sound and vibration
method 1n the presence of a dangerous, hazardous or adverse
condition such as a slip or clay vein.
A further difficulty that should be clarified is· the
fact that the Inspection Manual states that "The word
'Operator' in this provision [75.205] means the operator
as defined in Section 3(d) of the Act. However, roof tests
can be made by persons designated by the operator."
Inspection Manual II-219 (1978).
If this means what I
think it means, Singleton may not have been the individual
designated by the operator.to make a sound and vibration
test of the roof. At least no evidence was offered by MSHA
to show that he was.
The evidence shows only that Binns
the section foreman made the tests. And certainly if
Singleton and the other facemen were not qualified to make
a sound and vibration test there is reason to question their
competency to correctly evaluate a hazardous roof condition
on the basis of visual observation alone--a much more dif f icult task.
The roof control plan, on the other hand, authorizes
"workmen" to "examine and test" the roof which may mean that
Singleton, as a faceman, was presumably qualified to test
the roof. Thus we have another inconsistency between the
standard and the roof control plan which makes for difficulty
in assigning individual responsibility for the alleged
unwarrantable failure to evaluate properly the roof condition.
On September 2, 1983, MSHA issued a preproposal draft of
revisions to the roof control standards.
48 F.R. 40165. The
standard on roof testing has been redesignated as 75.210 and
in pertinent part provides:

104

§

75.210 Roof Testing and Scaling
(a) A visual examination of the roof, face
and ribs shall be made in all underground areas
immediately before any work or machine is started
and thereafter as conditions warrant.
If the
visual examination does not disclose a hazardous
condition in areas that are not permanently supported,
sound and vibration roof tests shall be made. The
sound and vibration test shall:
(1) Be conducted after the ATRS system
is pressured against the roof inby the
area to be tested; or
(2) Begun under permanently supported
roof and progress no more than 5 feet
into the unsupported area. This test
shall be made only for the purpose of
preparing to manually install roof support
when an ATRS system is not required by
§ 75.207.
(b) When a hazardous condition is detected, the
condition shall be corrected immediately or a
danger sign posted at a conspicuous location prior
to leaving the area.
(c) Overhangs and loose roof, faces and ribs shall
be taken down or supported.
(1) A bar for taking down loose material
shall be provided on all face equipment,
except haulage equipment.
(2) Each bar used to take down loose
material shall be of a length and design
that will enable a person to perform
work from a location that will not expose
the persons to injury from falling material.
(3) Loose material shall be taken down
from an area supported by permanent roof
supports or an ATRS system.
If an ATRS
system is not required by § 75.207 and the
loose material cannot be taken down from
a permanently supported area, at, least two
temporary supports on not more than 5 foot
centers shall be set between any person and
the material being taken down.

105

Adoption of this revision would do much to clarify and
resolve .the confusion that attends the present roof testing
provision.
Some provision should be made, however, for
assigning responsibility to either the section foreman or
his designee for making roof tests. Designations of contract
or day rate miners should be in writing and furnished to MSHA
to be kept as part of the operator's records.
A review of the proposed revision confirms that Mr. Rauer's
instructions for cutting down loose roof with the mining machine
does not accord with commonly accepted safety standards. 15/ It
confirms Mr. Crumrine's view that the existing standards do not
contemplate using the sound and vibration test under unsupported
roof for more than 5 feet into the unsupported area.
It
also establishes that once the rock fell Singleton should have
withdrawn his machine, set temporary supports, tested the roof,
"discovered" the clay vein, traced the slip crack, consulted
with Binns and, if necessary Rauer, and then on the basis of a
considered judgment decided whether to go for the coal or
abandon the pillar as too risky.
Instead Singleton on the
basis of faulty training and instructions made a snap judgment to go for production and subordinate safety that cost
Hodges his life and put several other lives at risk. And
in the long run, as Rauer testified, the operator had to
abandon the coal in the entire pillar line. Once again the
teaching is that a safe operation is the most productive
operation.
Since enactment of the Coal Act in 1969 over 1200 miners
have died in the nation's underground mines--42% of them as
the result of roof or rib falls. MSHA's studies show that
fatalities due to roof and rib falls are attributable to two
main reasons: (1) failure to follow safe procedures, and
(2) hazardous conditions that went undetected until too late.
Both of these reasons were present in the case of Mr. Hodges'
death.
Summing Up
Summing up I conclude there was more than enough blame
to go around. The contract miners had the last clear chance
to prevent the roof fall; instead they triggered it. The
15/ See also, Bureau of Mines Instruction Guide 17, Roof and
Rib Control; Programmed Instruction Book, Roof and Rib Control,
National Mine Health and Safety Academy.

106

section foreman failed in his responsibility to supervise
and oversee. an operation which he knew or should have known
was hazardous.
The mine superintendent failed to provide
the training, instruction and leadership that would have
instilled in his subordinates an attitude toward safe mining
practices and procedures that would have prevented the accident.
Lastly the division manager took no steps to discipline
the mine superintendent for his failure to supervise his
subordinates properly or to provide the training and instructions that would insure a safe operation.
The real problem at the #108 mine, of course, was
attitudinal. At every level the supervisors and workers had
been indoctrinated with the need to subordinate safety to
production. How else explain such a take-a-chance policy
as that embodied in the superintendent's instructions to
cut down loose roof in the presence of clay veins and slip
cracks. Mr. Crumrine's sympathy for Mr. Binns notwithstanding,
it is beyond doubt there was an institutional failure here
that demands immediate correction.
The collective failure of management and the contract
miners warranted the imposition of a penalty that underscores the gravity of the institutional failure--a failure
that resulted from faulty engineering, poor training and
lax enforcement.
Such a di$position is fairer than singling
out Mr. Binns. While it is natural to seek a scapegoat for
disaster, the institutional responsibility in this case
transcends the individual responsibility of Mr. Binns.
For these reasons, I approved a settlement that involved
the payment of a $5,000 penalty and vacation of the unwarrantable
failure charge as to Mr. Binns.
Accordingly, it is ORDERED that the bench decision
approving settlement of this matter be, and hereby is,
CONFIRMED and the captioned
DISMISSED .

.Attachment
Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market St., Philadelphia, PA 19104
(Certified
Mail)
Thomas W. Ehrke, Esq., Bethlehem Mines Corporation, Room 1871
Martin Tower, Bethlehem, PA 18016
(Certified Mail)
/ejp

107

Breaker posts - Coui~ not
measured due to roof
conditions.

ATTACHMENT

.,,---~e

No. 3 Entry
0

0

0

0

0

Clay vein extending across
t...-""-----No. 3 entry into working fa
Joy 12 CM Continuous miner

Pillar Split
working
----'~
face
in roof across entry

under canop

Vertical -roof
crack extending
about 58 feet

vie ti:
0
0
0

Woods uni.::lj ured

-----~
0

a
Crosscut to No. 4 entry S:

Joy 21 SC shuttle car
partially under fallen material
Smith

Leze:::id
Vertical roof crack
't;·;·:
Clay Vein
• - - R.:>of bolt holes i::. cavity
!loaf bolts wi.th 5''x6''
0 - - plates in undist-~=bed
mine roof
\ - -Roof bolts exten.tli=lg from
roof fall cavity
r=:::::i - ~ood planks
l" = 10'
P

0

·-

0

,....., D

u
I I

®--

0
0

iI

0
n

1-

0
0

~o.

:>

0

Ci

1 Sketch of Fatal Roof Fall Accident
~tine

No. 108 (ID No. 46-03887)
Bethlehem Xines Corporation
=odgesville, Upshur County, West Virginia
August 2, 1982

108

The high limits of cavity

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF
JACK LEWIS KIEFER,
Complainant
v.

80204

JAN 1-61984

DISCRIMINATION PROCEEDING
Docket No. WEST 83-96-D
MSHA Case No. DENV CD 82-26
King Coal Mine

NATIONAL KING COAL, INC.,
Respon,dent
DECISION APPROVING SETTLEMENT
Before:

Judge Carlson

The parties have submitted a stipulation and settlement
agreement which, if approved, will resolve all issues in this
discrimination case.
Under the terms of the agreement, respondent, National King
Coal, Inc. (National), agrees to pay to Jack Lewis Kiefer the
sum of $7,500 as back wages and compensation for all other alleged
damages resulting from his discharge. National further agrees to
expunge from complainant's employment record any adverse references
to his discharge.
Complainant, in turn, relinquishes any claim for reinstatement
with National.
Having reviewed the file and considered the circumstances, I
conclude that the settlement should be approved. Accordingly, the
agreement of the parties is approved in its entirety.
Pursuant to the payment terms incorporated in the agreement,
National shall tender to Jack Lewis Kiefer through the United States
Department of Labor at 1585 Federal Building, 1961 Stout Street,
Denver, Colorado 80294, the following installment sums on the
following dates:
$2,500.00 on or before January 15, 1984; $2,500.00
on or before February 15, 1984; and $2,500.00 on or before March 15,
1984, for a total sum of $7,500. Additionally, should National fail
to tender any installment due under this order within 30 days after
its due date, it shall pay to Jack Lewis Kiefer, through the United
States Department of Labor, at the address aforesaid, a penalty in
the amount of $1,000.00, which shall be in addition to and not in
lieu of any existing remedies for failure to comply with an order of
this Commission.

109

Further, in accord with its agreement, National shall,
within 30 days of the date of this order, expunge from the
employment record of Jack Lewis Kiefer any adverse references
to his discharge.
In view of this settlement, this discrimination proceeding
is dismissed.
SO ORDERED.

John A. Carlson
Administrative Law Judge
Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building,
1961 Stout Street, Denver, Colorado (Certified Mail)
Neil o. Andrus, Esq., Musick, Peeler & Garrett
718 Seventeenth Street, Suite 1500, Denver, Colorado 80202
(Certified Mail)

/ot

110

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400 .
DENVER. COLORADO

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

JAN 1 71984

80204

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-402-M
A.C. No. 04-00010-05027 A

v •.

Crestmore Mine

ROBERT KLEIN,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Vail

This is a civil penalty proceeding filed by the petitioner
against Robert Klein, (hereinafter "Klein"), as an individual
agent of the Riverside Cement Company, the corporate operator of
the Crestmore Mine located in Riverside, California. Klein in
this case was acting as the operator's safety director at the
Crestmore Mine.
On November 1, 1979, Order No. 375785 was issued by the Mine
Safety and Health Administration to the Riverside Cement Company,
pursuant to section 107(a) of the Federal Mine Safety and Health
A~t, 30 u.s.c. 817fa), citing a violation of safety standard 30
C~F.R. § 57.15-5. _I
Said order reads as follows:
A serious accident occurred at the Crestmore Mine
when an employee entered the feed hopper at the
dynapactor (crusher) to free a bridged material
hangup. The bridged material broke through dropping
the employee onto the pan feeder and loose material
from above came down covering the employee. Safety
belts, lines, and a person in attendance on the line
were not being used in this dangerous location.

1/ 30 C.F.R. § 57.15-5 provides as follows:
Mandatory. Safety belts and lines shall be worn when men work
where there is danger of falling; a second person shall tend the
lifeline when bins, tanks, or other dangerous areas are entered.

111

Riverside Cement Company has paid an uncontested civil penalty
assessment of $5,000 for the foregoing violation under MSHA
Assessment Office Case No. 04-00010-0511-I.
Klein was charged in this case under section llO(c) of the
Act, 30 u.s.c. § 820(c), with knowing, authorizing, ordering, or
carrying out said violation charged above against Riverside Cement
Corporation, as their agent.
The petitioner filed a civil penalty proceeding against
Klein, proposing the assessment of a $300.00 civil penalty. This,
matter was s~t for hearing on November 16, 1982 in Riverside,
California.
On November 15, 1982, the petitioner and Klein filed
a joint motion for approval of a settlement and for dismissal of
this case. Klein tendered a check for $100.00 in settlement of
the proposed civil penalty and indicated he no longer wished to
contest the charges against him.
The parties represent that there was a serious violation in
this case involving an accident wherein a miner sustained back
injuries, multiple abrasions and lacerations. However, as a
mitigating factor, Klein was not directly supervising the injured
miner at the time of the accident. Also, Klein showed good faith
after notification of the violation in helping to implement, at a
mine safety meeting, proper procedures for when and where to use
safety belts and lines to guard against a future occurrence of a
similar accident.
Based on a review of the record in this case and the
representations of the parties, I find the settlement proposed is
in accord with the purpose and policy of the Act.
ORDER
Accordingly, it is ORDERED that the motion by the petitioner
and Klein be, and hereby is, GRANTED.
It is further ORDERED that
upon clearance of Klein's tendered $100.00 check as payment of the
offered sum herein, the captioned ma_t-ter is DISMISSED.

;:::__;:;;~/~/~
Vi~ E. Vail

Administrative Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor
United States Department of Labor, 4015 Wilson Boulevard
Arlington, Virginia 22203 (Certified Mail)
Enos C. Reid, Esq., Reid, Babbage and Coil, 3800 Orange Street
P.O. Box 1300, Riverside California 92502 (Certified Mail}
/blc

112

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO

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

JAN 171984

80204

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-406-M
A.C. No. 04-00010-05025 A

v.

Crestmore Mine

WAYNE KENDALL,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Vail

This is a civil penalty proceeding filed by the petitioner
against Wayne Kendall, (hereinafter "Kendall"), as an individual
agent of the Riverside Cement Company, the corporate operator of
the Crestmore Mine located in Riverside, California. Kendall in
this case was acting as the operator's plant manager at the
Crestmore Mine.
On November 1, 1979, Order No. 375785 was issued by the Mine
Safety and Health Administration to the Riverside Cement Company,
pursuant to section 107(a) of the Federal Mine Safety and Health
Act, 30 u.s.c. 817fa), citing a violation of safety standard 30
C.F.R. ~ 57.15-5. _I Said order reads as follows:
A serious accident occurred at the Crestmore Mine
when an employee entered the feed hopper at the
dynapactor (crusher) to free a bridged material
hangup. The bridged material broke through dropping
the employee onto the pan feeder and loose material
from above came down covering the employee. Safety
belts, lines, and a person in attendance on the line
were not being used in this dangerous location.

1/ 30 C.F.R. § 57.15-5 provides as follows:
Mandatory. Safety belts and lines shall be worn when men work
where there is danger of falling; a second person shall tend the
lifeline when bins, tanks, or other dangerous areas are entered •.

113

Riverside Cement Company has paid an uncontested civil penalty
assessment .of $5,000 for the foregoing violation under MSHA
Assessment Office Case No. 04-00010-05ll~I.
Kendall was charged in this case under section llO(c) of the
Act, 30 u.s.c. § 820(c), with knowing, authorizing, ordering, or
carrying out said violation charged above against Riverside Cement
Corporation, as their agent.
The petitioner filed a civil penalty proceeding against
Kendall, proposing the assessment of a $300.00 civil penalty.
This matter was set for hearing on November 16, 1982 in Riverside,
California. On November 15, 1982, the petitioner and Kendall
filed a joint motion for approval of a settlement and for
dismissal of this case.
Kendall tendered a check for $100.00 in
settlement of the pr6posed civil penalty and indicated he no
longer wished to contest the charges against him.
The parties represent that there was a serious violation in
this case involving an accident wherein a miner sustained back
injuries, multiple abrasions and lacerations. However, as a
mitigating factor, Kendall was not directly supervising the
injured miner at the time of the accident. Also, Kendall showed
good faith after notification of the violation in helping to
implement, at a mine safety meeting, proper procedures for when
and where to use safety belts and lines to guard against a future
occurrence of a similar accident.
Based on a review of the record in this case and the
representations of the parties, I find the settlement proposed is
in accord with the purpose and policy of the Act.
ORDER
Accordingly, it is ORDERED that the motion by the petitioner
and Kendall be, and hereby is, GRANTED.
It is further ORDERED,
that upon clearance of Kendall's tendered $100.00 check as payment
of the offered sum herein, the captioned matter is DISMISSED.

~7/
. / (/.~
c~r:;,1..v G. c:.,.. c..-<:--L ~/
Virgd/i E. Vail
Administrative Law Judge
Distribution:
J. Philip Smith, Esq., Office of the Solicitor
United States Department of Labor, 4015 Wilson Boulevard
Arlington, Virginia 22203 (Certified Mail)
Enos c. Reid, Esq., Reid, Babbage and Coil, 3800 Orange Street
P.O. Box 1300, Riverside California 92502 (Certified Mail)
/blc

114

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

JAN 171984

CIVIL PENALTY PROCEEDING
Docket No. WEST 82-12-M
A.C. No. 04-00010-05026 A

v.

Crestmore Mine

BEN POWELL,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Vail

This is a civil penalty proceeding filed by the petitioner
against Ben Powell, (hereinafter "Powell"), as an individual agent
of the Riverside Cement Company, the corporate operator of the
Crestmore Mine located in Riverside, California.
Powell in this
case was acting as the operator's plant manager at the Crestmore
Mine.
On November 1, 1979, Order No. 375785 was issued by the Mine
Safety and Health Administration to the Riverside Cement Company,
pursuant to section 107(a) of the Federal Mine Safety and Health
Ayt, 30 U.S.C. 817ia), citing a violation of safety standard 30
C.F.R. § 57.15-5. _/ Said order reads as follows:
A serious accident occurred at the Crestmore Mine
when an employee entered the feed hopper at the
dynapactor (crusher) to free a bridged material
hangup.
The bridged material broke through dropping
the employee onto the pan feeder and loose material
from above came down covering the employee.
Safety
belts, lines, and a person in attendance on the line
were not being used in this dangerous location.

1/ 30 C.F.R. § 57.15-5 provides as follows:
Mandatory. Safety belts and lines shall be worn when men work
where there is danger of falling; a second person shall tend the
lifeline when bins, tanks, or other dangerous areas are entered.

115

Riverside Cement Company has paid an uncontested civil penalty
assessment of $5,000 for the foregoing violation under MSHA
Assessment Office Case No. 04-00010-0511-I.
Powell was charged in this case under section llO(c) of the
Act, 30 u.s.c. § 820(c), with knowing, authorizing, ordering, or
carrying out said violation charged above against Riverside Cement
Corporation, as their agent.
The petitioner filed a civil penalty proceeding against
Powell, proposing the assessment of a $300.00 civil penalty. This
matter was set for hearing on November 16, 1982 in Riverside,
California.
On November 15, 1982, the petitioner and Powell filed
a joint motion for approval of a settlement and for dismissal of
this case.
Powell tendered a check for $100.00 in settlement of
the proposed civil p~nalty and indicated he no longer wished to
contest the charges against him.
The parties represent that there was a serious violation in
this case involving an accident wherein a miner sustained back
injuries, multiple abrasions and lacerations. However, as a
mitigating factor, Powell was not directly supervising the injured
miner at the time of the accident. Also, Powell showed good faith
after notification of the violation in helping to implement, at a
mine safety meeting, proper procedures for when and where to use
safety belts and lines to guard against a future occurrence of a
similar accident.
Based on a review of the record in this case and the
representations of the parties, I find the settlement proposed is
in accord with the purpose and policy of the Act.
ORDER
Accordingly, it is ORDERED that the motion by the petitioner
and Powell be, and hereby is, GRANTED.
It is further ORDERED that
upon clearance of Powell's tendered $100.00 check as payment of
the offered sum herein, the captioned matter is DISMISSED.

L---- . ;/ ~· ~~ ,,.----

~

c:,,~ cst-t{: ~· C/?cc-~-P

virgiYE. Vail
Administrative Law Judge
Distribution:
J. Philip Smith, Esq., Office of the Solicitor
United States Department of Labor, 4015 Wilson Boulevard
Arlington, Virginia 22203 (Certified Mail)
Enos c. Reid, Esq., Reid, Babbage and Coil, 3800 Orange Street
P.O. Box 1300, Riverside California 92502 (Certified Mail)
/blc

118

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

.

OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE. SUITE" 400
DENVER, COLORADO 80204

WILLIAM A. HARO,
Complainant
v.

DISCRIMINATION PROCEEDINGS
Docket No. WEST 79-49-DM
MD 79-05
Docket No. WEST 80-116-DM
MD 78-43

MAGMA COPPER COMPANY,
Respondent

San Manuel Mine
DECISION
Appearances:

Paul F. Tosca, Jr., Esq., Tucson, Arizona,
for Complainant;
N. Douglas Grimwood, Esq., Vancott, Bagley,
Cornwall & McCarthy, Phoenix, Arizona,
for Respondent.

Before:

Judge Morris

On November 30, 1982, the Federal Mine Safety and Health
Review Commission remanded Docket No. WEST 80-116-DM and
instructed the judge to analyze whether respondent Magma Copper
Company, "proved that it would have transferred Haro anyway for
legitimate b~siness reasons, regardless of his protected refusal
to cut the B.O. car", 4 FMSHRC 1935, 1941. Subsequently, in a
separate order, the Commission directed the judge to make his
findings as to the merits of the respondent's defenses on the
basis of the record presently before him, 5 FMSHRC 805.
Prior to ruling on respondent's defense the parties were
granted an opportunity to file briefs. After receipt of the
briefs, and a review of the issues, the judge entered an interim
order reaffirming complainant's claim of discrimination. The
interim order, with a few clarifying changes, is restated here.
Inasmuch as the interim order reaffirmed the claim of
discrimination it became necessary, by virtue of the order of
remand, to determine what amount, if any, was due to complainant.
In lieu of a further hearing on damages the parties submitted a
stipulation concerning back pay, interest, attorneys fees and
special damages.
The stipulated facts are discussed, infra,
together with the issues raised in a subsequent brief filed by
respondent.

117

Analysis of respondent's defense
The Commission order of remand directs the entry of findings
of fact and conclusions of law on the evidence relevant to
respondent'~ defense.
The principal thrust of the defense is that
Haro was transferred because he placed a telephone call outside of
the "chain of command" at the mine without trying to work out the
problem with his supervisor; further, that a conflict of personalities necessitated Hare's transfer.
The evidence relevant to respondent's defenses appears in th~
evidence of both parties.
Such evidence is summarized in this
decision in the same order as it was received at the hearing.
It
follows:
·complainant William Haro
The discrimination occurred on June 13, 1978 when dispatcher
Lockhart instructed Haro to remove a bad order (B.O.) car on the
production train.
Lockhart is the dispatcher of supervisory
personnel with the same pay rate as Stonehouse.
Haro refused
because Lockhart would not assign another person to assist him
(Tr. 15, 6 0-61) •
After Haro refused to remove the B.O. car, Stonehouse
recommended that Haro call Frank Torres, (Hare's supervisor) at
his home.
Stonehouse, the shaft boss, reports to Cothern (Tr. 18,
59, 60, 62).
In the ensuing telephone conversation Torres told
Haro to return to his maintenance work (Tr. 66).
Before this incident occurred Haro had received written
instructions, in the form of a company memorandum, to the effect
that two men were to be used when a railroad car was cut from a
train (Tr. 57, Exhibit C2).
Haro did not contact Cothern about his refusal to cut the''
B.O. car; nor did he contact the mine mechanic supervisor (Tr. 18,
64-65).
After the tail light bracket incident (which occurred the
following day) Haro submitted a grievance.
At Torres's request
Haro held the grievance until he [Torres] had an opportunity to
look at it (Tr. 70, 71).
On two prior terminations Haro quit respondent to seek
employment elsewhere (Tr. 53).
Haro did not recall any specific
conflicts with supervisors (Tr. 53).
After the B.O. car incident Navarro told Haro he was moving
him from dump mechanic to another underground position on straight
days.
This was because Navarro wanted to protect Haro from
Cothern.
It was Navarro's responsibility to keep harmony among

118

the crews (Tr. 71, 72).
Durago, the shift boss, told Haro he
thought he and Cothern had a personality conflict.
Cothern denied
that there was a personality conflict (Tr. 73). Bob Zerga told
Haro the same thing about the personality conflict (Tr. 73).
Haro felt threatened by Traynor's statement about his
(Haro's) activities stirring up more conflict in the mine
operating division (Tr. 74).
The purpose of the meeting on June 23rd with Traynor and
Navarro was to try to work out differences with Cothern.
The
meeting didn't go any further than the second step of the
grievance procedure.
Haro received a letter from the general
manager indicating it was not a proper subject for a grievance and
he refused to hear it (Tr. 78-82).
On June 23 (or June 25) Haro received a notice that he was
being removed as dump mechanic and placed on straight days (Tr.
225, 226).
He then called MSHA (Tr. 226, 227).
The "stress" started about June 13th (Tr. 227).
Witness Frank Torres
Frank Torres, a supervisor in the mechanical division, was
familiar with the incident of June 13, 1978. On this date a
dispatcher (Lockhart) asked Haro to remove a B.O. car from a
production train (Tr. 89-92, 111). Because he was to do it alone
Haro refused and called Torres at home.
Torres told Haro they would have someone help him remove the
car (Tr. 91-92).
It would violate company policy not to provide
Haro with an assistant to remove the car (Tr. 92).
In their phone
conversation, Torres asked Haro to request that his shift boss
furnish someone to assist (Tr. 92-93). Stonehouse was the shaft
foreman.
Further, Torres told Stonehouse on the extension to help
Haro himself or to provide someone to assist.
Stonehouse agreed
(Tr. 111). Torres assumed Stonehouse provided the assistant to
cut the ore car (Tr. 92-93).
Torres and Stonehouse are on about
the same management level (Tr. 111-112).
Haro was acting in accordance with instructions from Torres
when he called him at home (Tr. 93). Torres tells this to each of
his dump mechanics.
They may call Torres or his supervisor,
Navarro (Tr. 93).
On June 15 Haro came to Torres with a grievance regarding the
conflict over the tail light matter that had occurred between Haro
and Cothern (Tr. 105-106). Torres told Haro to hold onto his
grievances a couple of days.
Torres wanted to try to smooth it
over without going through the grievance procedure (Tr. 105-106).

119

On June 22, 1978 Torres discussed with his supervisor,
Navarro, the conflict problems between Cothern and Haro (Tr. 106).
Torres felt they should look into it, or he (Navarro), as Torres'
supervisor, should look into it (Tr. 106).
Navarro would be the
more appropriate one to investigate because he is on a level
closer to Cothern (Tr. 106).
Witness Rudy Navarro
This witness is section foreman of the three shaft area.
Navarro testified that Haro's transfer to the surface job
could be a direct result of the airslusher accident (Tr. 126).
Concerning the ore cars: Mechanics are to go to the mine
operating department and get a helper. They are not to remove the
ore cars by themselves (Tr. 132).
Navarro put Haro on straight days because of the conflict
with Cothern.
The statements were made by Cothern that Haro was
arguing, and a big shot. Cothern didn't want him (Tr. 133-134).
Witness John Zagorsky
It seemed to this witness, who replaced Haro as dump
mechanic, that "they" were pressuring Bill Haro all of the time
(Tr. 174).
By "they", Zagorsky means management consisting of
Frank Torres, John Traynor, Tom Traynor, and Rudy Navarro. The
pressure included undue stress. Also there was a silent period
when they refused to talk to Haro.
They would also needle him and
ask more than the usual questions. There was more silent
treatment than needling (Tr. 186).
The Torres to Haro conversation [about the grease line] was
more of a form of harassment than an explanation (Tr. 187). Haro
is not a troublemaker.
But he is conscious of what is safe around
him and willing to speak up (Tr. 174, 175).
Harry Miller, Thomas Traynor, Tom Howard, Gregory Korn, and
Donald Graham also testified for Haro.
However, those witnesses
did not offer any evidence relevant to the issues now being
considered.
Respondent's Evidence
Witness Robert Zerga
Robert Zerga, Magma's development superintendent, is
responsible for the maintenance division (Tr. 285).
Zerga did not recall the chronological order, but the first
personnel problem involving Haro was when Frank Bunch related to
him that he had a confrontation with Haro off the job.
Further,

120

there was some indication from Baro that
confrontation was going to run over onto
told Bunch, t~e area supervisoL, that if
on the site with Haro, he was to exclude
foreman handle them (Tr. 291).

he felt that the
the job (Tr. 290).
Zerga
there were any problems
himself and let his

The next matter was the problem between Haro and Cothern.
The problem came to the attention of the mine operating group
because Haro had called the maintenance people instead of dealing
with Cothern who was in his chain of command (Tr. 291).
The
immediate result was that Cothern and Haro met to solve the
problem and rectify the situation (Tr. 292).
The meeting went
poorly and it did not resolve the problem but amplified it.
There
were grievances turned in by Haro saying he was being set up and
discriminated against (Tr. 292).
After discussing the matter with Haro's foreman, Zerga felt
the only reasonable position the company could take was to
separate the two individuals because of an irreconcilable
difference or conf 1 ict.
They were separated.
Haro was taken off
as dump mechanic and put in the same area working for the
mechanical foreman (Tr. 292).
Zerga felt Haro required more
supervision than he was receiving as a dump mechanic (Tr. 292).
At the time of Haro's removal from the dump mechanic position
the scenario was this: Cothern said that he didn't like someone
going off the job when he [Cothern] could have resolved the
problem.
And he had never asked Bill Haro to do anything that was
unsafe or out of line.
Haro said he was being harassed and
intimidated, further he claimed Cothern was trying to set him up
to get him fired (Tr. 314).
Lockhart was not Haro's boss and the problem was that Haro
did not go to Cothern (Tr. 315).
Stonehouse, the shaft foreman,
worked for Cothern (Tr. 315).
Subsequent to the Bunch and Cothern incidents, Haro's pattern
of personality conflicts repeated themselves in subsequent
incidents (Tr. 319). Through the grievance procedure it was
claimed that Navarro, Torres, and Traynor were trying to "get"
Haro.
Pursuant to Haro's request he was moved to the surface.
After that he had problems in the new area into which he had been
moved.
He had problems with Leno Gonzales over the use of
telephones and over the use of wrong grease (Tr. 319).
He had
problems where he [Haro] said "they're just harassing me" (Tr.
3 2 0) •

Witness Zerga had problems with finding a solution to Haro's
grievances.
Concerning the grease line: Haro said he tried to
explain the situation to Torres but he (Torres) wouldn't let him
(Tr. 335-336).

121

Witness Rudy Navarro
This witness (recalled) had been Haro's supervisor for one
and a half years.
One of his welders told Navarro that Haro had
smoked a marijuana cigarette.
Navarro contacted Haro.
He said it
wouldn't happen again. _/
The m~r1Juana cigarette incident occurred six months before
Haro was assigned as a dump mechanic (Tr. 339, 340).
It is a
violation of company policy for a worker to have drugs in his
possession while working (Tr. 342-343).
Discussion
The Commission has ruled that an operator may produce
evidence in support of its legitimate business reasons to justify
the challenged adverse action.
In the words of the Commission
"ordinarily an operator can attempt to demonstrate this by
showing, for example, past discipline consistent with that meted
out to the alleged discriminatee, the miner's unsatisfactory past
work record, prior warnings to the miner, or personnel rules or
practices forbidding the conduct in question," Bradley v. Belva, 4
FMSHRC 982, at 993 (June 1982). Belva does not exclude other
avenues of evidence that would establish legitimate business
reasons to justify the operator's defense.
But in this case respondent's evidence does not approach any
of the criteria mentioned in Belva. To the contrary, the evidence
establishes that Haro was transferred as a direct result of having
engaged in a protected activity.
The pivitol evidence arises from the testimony of witness
Robert Zerga.
This individual, as the person responsible for
personnel problems, clearly establishes the reason why Haro was
transferred.
In the words of witness Zerga: "The problem came to
my attention because the mine operating group brought to my
attention that Mr. Haro had, instead of dealing with Mr. Cothern
on a problem, had gone outside and called maintenance people
instead of dealing with the line of command that was at work" (Tr.
291).
Notwithstanding whatever "line of command" existed at the
mine, Haro was justified in calling his superior at his home. His
supervisors, Torres and Navarro, told him he could call "outside"
(Tr. 93, 267).
Such authorization was not only given to Haro but
to "each one" of the dump mechanics (Tr. 93).

ll

Haro denies the use of drugs (Tr. 229).

122

Supervisor Torres states !:he rationale: "We have three or
four of them [dump mechanics) that are on rotating shifts, that if
for some reason they cannot work with the shaft foreman or the
assistant shift boss in regard to cutting off cars, which
ordinarily they furnish somebody to help and assist on this
certain thing, that if there was any question, they could not get
anybody, they'd either call me or Mr. Navarro, which is my
supervisor" (Tr. 93).
Respondent claims Cothern was upset because Haro called
outside to maintenance.
Although Cothern did not testify, as an
assistant superintendent, he should have knowledge of the
instructions given to the dump mechanics by their supervisors.
Haro claims, and it is now the law of the case, that his
refusal to cut the B~O. car was a protected activity.
In this
regard he established a prima facie case.
Commission decision, 4
FMSHRC at 1941.
Was his subsequent telephone call to Torres a further
protected activity? or, as the defense urges, did that call
violate respondent's chain of command.
Under some circumstances a telephone call to an operator's
supervisor off of the worksite might not be a protected activity.
But here the telephone call directly interconnected with Hare's
refusal to remove the railroad car.
It was, in these unique
circumstances, a protected activity.
Additional uncontroverted evidence indicates Haro did not
unilaterally call Torres.
Stonehouse, the shaft boss, recommended
the call be made (Tr. 59-62).
I agree with respondent that it is clear that Haro did not
contact Cothern concerning the B.O. car.
No such contact was
necessary.
Stonehouse, the shaft boss, recommended that Haro call
Torres.
At that point Stonehouse hadn't been aware of the policy
to provide a worker to assist the dump mechanic when an ore car is
removed from the train (Tr. 62, 268).
However, in talking to
Torres, Stonehouse agreed to provide such an assistant (Tr. 111).
That concluded the matter.
No further purpose would be served by
Haro going beyond Stonehouse and contacting Cothern.
Additional evidence in the case requires review.
Witness
Zerga testified concerning a personnel problem involving Frank
Bunch and Haro.
This problem apparently arose out of a
confrontation between Bunch and Haro off of the job.
Zerga
handled this by instructing Bunch, an area supervisor, to exclude
himself from any problems involving Haro.
He [Bunch) was to let
his foreman handle any problem (Tr. 291).

123

For several reasons there is a failure of proof that these
events played any part in causjng respondent to remove Haro as the
dump mechanic.
The initial reason is that Zerga's testimony
presents no time frame relating to the Bunch/Haro confrontation.
It could have been as early as 1972, when the personnel records
show Haro was hired or at any subsequent time (Exhibit R8).
In
addition, witness Zerga is clear that he didn't know the
chronology between the Bunch incident and the Cothern incident.
Without further supportive evidence I give no weight to a
view that the Bunch incident was involved in the decision to
remove Haro as dump mechanic.
An additional issue arising from the evidence concerns
witness Navarro's testimony that Haro's transfer to the surface
could have been a direct result of the [airslusher] accident (Tr.
125-126).
The foregoing evidence is entitled to zero weight. Whether
something "could" have caused Haro to be transferred lies within
the realm of possibilities and conjecture.
A final point raised by the evidence concerns the incident
where it is claimed that Haro smoked a marijuana cigarette. The
use of drugs violates company policy.
No one claims this was
involved in Haro's transfer.
Respondent apparently thought
nothing of the incident because it subsequently assigned Haro to
the position of dump mechanic.
Respondent's contentions after remand
and before interim order
In its brief filed after the order of remand and before the
entry of the interim order respondent urges various arguments in
support of its position.
The initial condition:
Respondent states that Haro could well be obstreperous.
He
had been reassigned on six (6) different occasions due to his
inability to get along with supervisors.
These reassignments,
respondent states, were not alleged to have been motivated by
unlawful motives (Brief, page 5, paragraph 1).
I disagree with respondent's contentions.
No evidence
supports the view that Haro was transferred on six different
occasions.
Respondent's assertions do not cite any part of the
transcript.
Further, I find no evidence supporting respondent's
statement.
The evidence concerning transfers by Haro are stated
in the foregoing summary of the evidence.
There are two such
transfers.
Both occurred after the B.O. car incident. The first
was when Navarro transferred Haro off of the position of dump
.mechanic.
The second was when Haro requested a transfer to the
surface because he was being harassed.

124

Respondent's personnel records (RB) fail to show any such
transfers.
In .fact, the personnel records show nothing after May
25, 1976.,
Respondent's claim that Haro was fired because he couldn't
get along with his supervisors seems contradicted by the records
(RS).
The records show Haro quit in July 1972.
Further, he was
dropped as an employee in February 1973 (AWOL), in April 1973
(excessive absenteeism), as well as August 1973 (AWOL). These are
legitimate business reasons to terminate and to refuse to rehire a
worker.
But the cqntradiction lies in the fact that Haro was
rehired after each of these terminations.
Respondent's brief does not cite any portion of the
transcript in its assertion that Haro couldn't get along with
supervisors.
There is evidence that Haro "had problems" with
Anderson, zunica, and Pena as well as Gonzales (use of telephone
and wrong grease).
Even if I assume these men were Haro's
supervisors I cannot overlook the obvious.
These "problems" all
occurred after Haro refused to remove the B.O. railroad car.
Further, the record does not disclose what the "problems" were
between Haro and the first three individuals.
Respondent's second contention: On June 13, 1978 Haro was
asked by a co-worker to cut a "bad order" car by himself.
He
refused to do so.
Instead of referring the matter to Cothern, his
supervisor on shift, he called a supervisor off shift at the.
supervisor's home (Brief, page 5).
This contention has been discussed.
To restate the holding:
Stonehouse, the level boss, recommended the phone call and he
concurred in Torres' suggestion.
Haro did not have to take the
matter to Cothern.
The third contention: Cothern deeply resented the Haro
telephone call to another supervisor.
Cothern told Haro he would
try to have Haro removed from his shift for that reason. Cothern
gave the same explanation to Zerga, who had made similar decisions
regarding Haro in the past (Brief, page 5).
Cothern did not testify and in fact he wasn't shown to have
been on the shift at the time.
But there is sufficient evidence
to infer Cothern's reaction to Haro.
However, no defense is
established.
Haro was engaged in a protected activity.
Cothern
told Haro he would get him removed.
He did.
Magma's claim that Zerga had made "similar decisions"
concerning Haro can, on this record, relate only to the Bunch/Haro
incident.
As previously discussed the Bunch/Haro incident is
without any reference to a time frame.
Further, it is obvious

125

from Zerga's testimony that it played no part in the decision to
remove Haro as dump mechanic.
The fourth contention: The decision was made to place Haro
directly under a mechanical supervisor, so that any questions
could be resolved on shift (Brief, page 5).
This view really asserts that when a miner engages in a
protected activity he can be demoted under a guise including the
one that more supervision is required.
But Zerga's stated reason
for removing Haro was because of the telephone call to the
maintenance people on the "outside."
If a protected activity in
part causes adverse action against a miner then a violation of the
Act occurs.
As a matter of fact such a transfer as occurred here
would eliminate the necessity of any telephone calls. A
supervisor would theri be "on shift."
The fifth contention: Not one supervisor ever told Mr. Haro
he had been wrong in refusing to cut the R.O. car (Brief, page
5) •

I am unable to perceive how this assertion establishes a
defense.
Haro followed company policy and refused to cut the B.O.
car without assistance; then he called "outside" as he had been
instructed to do.
It is not relevant whether a supervisor tells a
miner whether his actions are wrong.
Haro, Torres, Navarro and
the company memorandum all clearly establish a mechanic was not to
remove a railroad car without an assistant (Haro 15-16; Torres
92-93; Navarro 132; Exhibit C2).
The sixth contention: The San Manuel Mine employs 1,500
persons underground.
Miners, craft persons and laborers are
assigned work by their supervisors pursuant to orders which the
supervisors themselves are given.
The orders are carried out in
an environment of noise, dust and frequent darkness amid heavy
machinery and explosives.
If a supervisor loses control over the
men he supervises, disaster can result.
In the present case,
Cothern did not order Haro to do an unsafe act.
A co-worker made
that request-.~Haro did not discuss it with Cothern or otherwise
follow the chain of command.
He solicited instructions from a
supervisor off the job. This was in derogation of the authority
and responsibility given to Mr. Cothern as a supervisor (Brief,
pages 5-6).
This contention was previously discussed, but to briefly
restate it: Magma's brief (pages 1, 2) shows a chain of command
with Haro as dump mechanic on a level with Lockhart. On the next
echelon it shows the "level boss" to be Stonehouse.
On the next
level Cothern is listed as shift boss.
Zerga is shown as the
final supervisor. When Stonehouse, on a level above Haro, decided
the issue, that concluded it.
Cothern should know Haro had been

128

authorized to call maintenance people on the outside.
Further,
the telephone call was legitimate since Stonehouse didn't know
about the co~pany policy.
Magma's final statement in its brief is that neither
Cothern's request that Haro be reassigned, nor Zerga's granting of
that request, were so weak, so implausible or so out of line with
normal practice, to be considered as mere pretext seized to cloak
discriminatory motive.
Zerga was merely trying to keep two
employees from creating conflicts which were inhibiting the
productivity of both of them (Brief, page 6).
The issues raised by this contention have been previously
reviewed.
In sum, the evidence does not establish that respondent
transferred complainant Haro for legitimate business reasons but
to the contrary he was transferred for engaging in a protected
activity.
Respondent's contentions after
issuance of interim order
After the parties filed their stipulation concerning damages
the parties were granted an additional opportunity to file briefs.
Complainant Haro did not file.
Respondent did.
Respondent's
contentions all address the interim order that was entered
reaffirming the original discrimination concerning the B.O. car
incident.
The issues raised were in addition to those previously
raised and discussed when respondent filed its brief after the
order of remand and before the entry of the interim order.
Magma's contentions entitled "Exceptions to order after remand,"
are basically credibility arguments.
They follow:
Contention No. 1:
The Order draws a negative inference in several places
from the failure of Supervisor Cothern to testify. (e.g.,
p. 6 paragraph 3; p. 8 paragraph 5) Mine Superintendent,
Bob Zerga, testified that Mr. Cothern was then employed
by Freeport Mining Co., in West Irian, on the Island of
Java, in Indonesia, and that he was not available to
testify (Tr. 293).
Further explanation of his failure
to appear would seem superfluous.
It is true that the evidence is uncontroverted that Cothern
was out of the country at the time of the hearing.
It is not
necessary to explore whether an adverse inference was drawn from
his failure to testify or whether it was a recitation of a fact.
In any event the evidence from both complainant and respondent
support Hare's authority to call "outside."

12'7

Contention No. 2:
The Order states that Mr. Haro call Mr. Torres at Torres'
home at the suggestion of Mr. Stonehouse (Tr. 62; p. 2
of Order). This account differs substantially from the
account given by Mr. Haro in his written account at the
time of the event (p. 1 Complaint of Haro to MSHA in Review
Commission Record), his deposition given on July 18, 1980
(see Tr. 63-64), and his direct examination (Tr. 19).
In his complaint to MSHA, Haro goes into exquisite detail
concerning the personnel involved, their level assignments
and the conversations he had with each one. At no time does
he mention that Stonehouse told him to call Torres.
In an attempt tci destroy Haro's credibility on this point
respondent initially cites Haro's complaint to MSHA "in the Review
Commission record."
Haro's statement to MSHA was not offered as an exhibit nor
did any party request the judge take official notice of such
statement. Accordingly, the statement is not part of the
evidenciary record and not before me.
Respondent further cites Haro's direct examination, citing
the transcript at pages 19, 63-64.
In order to analyze these points I deem it necessary to set
forth the pertinent portions of the transcript.
The direct examination at pages 16-19 of the transcript shows
the following:
A. Yes, sir. Mr. Tosca: Your Honor, this is a memorandum of Magma Copper Company which directly related
to the questions I just asked.
I offer it into evidence.
(Whereupon the above mentioned
Exhibit was marked for
identification at this time.)
Judge Morris: C-2 has been offered in evidence.
It's a
memo from a J. Herndon.
Any objection to C-2, Mr.
Grimwood?
Mr. Grimwood: Your Honor, no, there's no objection and

128

the company will stipulate that Mr. J. Herndon did
prepare this memorandum and post it 6n the date
indicated.
Judge Morris: May 8, 1976.
Mr. Grimwood: May 8, 1976, yes.
Judge Morris: Exhibit C-2 will be received together with
the stipulation.
(Whereupon the above mentioned
Exhibit was received into
evidence at this time.)
By Mr. Tosca:
Q. Will you please read that short memorandum to the
Court, please?

A. "May 8, 1976, Subject, Production Training Message.
In the last 30 days there has been two instances
of mud trains losing cars on the main line.
From
this day forward there will be no cutting of cars
from the production train to service development or
any other reason except to cut out a B.O. car.
When a B.O. car is cut, a supervisor will be present.
The safety hooks and couplings are to inspected as
often as necessary and cleaned if necessary."
Q. Well, according to your testimony, Mr. Haro, Mr.
Lockhart apparently asked you to break company policy;
is that right?

A. That's correct.
Q. Did you ask your supervisor?

A. I asked him that the policy be followed.
Judge Morris: You asked for what?
The Witness: I asked that the policy be followed.
By Mr. Tosca:
Q. You were aware of this memo at the time?

A. Yes, I was, sir.
Q. What was Mr. Lockhart's response to your request?

A. Mr. Lockhart asked me if I was refusing to do the
job as assigned.

129

~·

And your response?

A. No, sir, that I wasn't refusing to do the job, that
I was just asking that the policy be enforced as
stated.
Q. Did you cut the ore car from the train?

A. No, sir.
Q. What was the result of that?

A. At that point in time, I called my immediate
supervisor, Mr. Frank Torres at his home as I had been
told to do by Mr. Torres if I had run into this
situation and at that point in time Mr. Torres explained over the telephone ·to myself and the shaft
foreman, Mr. Stonehouse, the procedure as stated in
the memorandum. (Emphasis added).
Then Mr. Torres called Mr. Lockhart and explained
the procedure to Mr. Lockhart and I was never asked
after that point in time to go out and cut the car.
Q. And that was the end of that issue?

A. At that point in time, sir.
Q. On June 14, 1978, were you working under a Mr.

Cothern, a foreman for Magma Copper Company?
A. Yes, sir, Mr. Cothern was an assistant chief foreman.
Q. On that date did you have a conversation with Mr.
Cothern regarding the tail light on the rear of one
of these ore cars?

A. I did, sir, on two different occasions on the same
date.
Q. Can you give me, in substance, a brief synopsis of
that conversation?

A. Yes, sir, Mr. Cothern instructed me to tie with
bailing wire, a light to the end of the production
train and when I brought Mr. Cothern's attention
to the policy stating that we did not tie lights
on the end of trains, that we installed them on
light brackets, the tail car of the trains, and I
showed Mr. Cothern that one of these tail cars that

130

was equipped with a light bracket and a light, that
was_ in working order, was in the middle of the train,
that that's all he needed to do was to remove the car
from the middle of the train and put it on the back
of the train as the procedure calls for it.
Mr. Cothern asked me if I was refusing to do a job order
as instructed.
Q. What was your response?

A.

I t6ld him, "No, sir, I wasn't."

Further relevant verbatim testimony appears in Hare's
cross-examination:
Transcript at 61-64:

Q. And Mr. Lockhart was a dispatcher?
A. That's correct, sir.

Q. Was Mr. Lockhart in, well, he wasn't in that chain
of command I just described was he?
A. Oh yes.

Q. Where does he fit in?
A. He is a dispatcher of supervisory personnel.
I
imagine he's probably the same pay rate as Mr.
Stonehouse.
Q. Right, but at least as far as Mr. Stonehouse being
your card signing boss, Mr. Stonehouse reporting to
Mr. Cothern, he's not in there any place, but he did
ask you to do something.

A. Yes, sir.
Q. Okay, so isn't it true that when Mr. Lockhart asked
you to do that and you told him that you didn't want
to do it, it was against policy and you pointed out
that thing, isn't it true that you simply, at that
time, went over to the telephone and called Mr.
Torres?
I believe that's what your testimony was.
You immediately went and placed a call to Mr. Torres;
is that correct?

A. This is at the conclusion of three conversations that
I had with Mr. Lockhart in reference to cutting the
B.O. car out.

131

Q.

Well, you testified as to those, I'm sure, didn't
you testify in full as to whatever conversations
you had with Mr. Lockhart: right?

A. Yes, sir.
Q. And then so you just went ahead and just got on the
phone and called up Mr. Torres at his home.
He was
off shift at that time, right?

A. Sir, I believe my first complaint will show that I
went to the 2075 and I reported to Mr. Stonehouse.
I told Mr. Stonehouse what the policy was.
I told
Mr. Stonehouse what the situation was at that point
in time and I asked him for his suggestion.
Mr. Stonehouse indicated to me that he did not have
any knowledge of such policy and that he himself recommended that I call Mr. Torres as Mr. Torres told
me to do if I ran into this situation. (Emphasis added).
Q. Okay, what I'm saying though, Mr. Haro, is that's not
the way you testified on direct examination and I
believe--

Mr. Tosca: I don't believe the question was asked whether
he had called Mr. Torres on direct or not.
It wasn't
asked.
Judge Morris: Well, we don't have a full question here.
I believe, that's where it trailed off so you can hold
your objection for a minute.
Mr. Grimwood: Well, the record will reflect whether the
question was there or not.
Judge Morris: Well, you haven't asked him a question,
Mr. Grimwood.
How can he answer it? Do you want to ask
him a question and if Mr. Tosca has an objection he can
make it, but right now there's no question.
By Mr. Grimwood:
Q. Okay, Mr. Haro, do you recall when I took your deposition on July 18, 1980, about three weeks ago on
this matter, on these discrimination charges, do you
recall that?

A. Do I remember the deposition?
Q. Yes.

132

A. Yes, sir.
Q. Okay, I refer to page 14 of the deposition, which
is in the record and I ask, I ~irect your attention
to the events of June 13, 1978, "What happened on
that date?" Answer: "On June 13, 1978, I informed
Mr. Lockhart that car 222 had a B.O. safety latch.
Mr. Lockhart told me to remove the car from the
train and to replace it with a good car.
I asked
Mr. Lockhart for assistance in this and he refused
to comply with my request so I referred him to the
memorandum and Mr. Lockhart asked me if I was refusing
to do a job as was given to me.
I informed Mr.
Lockhart that I was not refusing to do a job, that I
was merely trying to comply with the memorandum policy
as stated.

I, at that time, called Mr. Torres at home and informed
Mr. Torres of the situation."
Now is that pretty much
how it happened?
A. First of all, sir, during the deposition I tried to
explain my answers as throughly as I possibly could.
If I deleted the conversation that I had with Mr.
Stonehouse prior to that, I didn't do it purposely.
It is on the record on my first complaint with MSHA
and I did put that in.
If you'd care to check those
records, it's in writing.
Q. Well, there's been quite a bit of writing here.
Well,
okay, so at least you talked to Mr. Lockhart.
Mr.
Lockhart didn't give you satisfaction.
Now you say
you also talked to Mr. Stonehouse.
Did you talk to
Mr. Cothern about this situation?

A. Mr. Stonehouse indicated to me that Mr. Cothern and
Mr. Corwin were not available.
Q. Well, were they on that shift?
A. They were, sir, but they were not in an area where
they could be reached at.
Contrary to respondent's contentions I find Hare's testimony
that Stonehouse suggested he call Torres to be very credible.
In his direct examination, Haro is explaining his telephone
call to Torres (Tr. 18, lines 8-14). At this point, without any
leading question or suggestion, Torres, on the telephone, is explaining the procedure to Haro "and the shaft foreman, Mr. Stonehouse." (Tr. 18, lines 12, 13).

133

Hare's cross examination, as set forth above, further
amplifies the testimony.
Haro's evidence on this point is uncontroverted.
Stonehouse
did not testify.
I find Haro's evidence credible and no contrary
evidence causes me to reject it.
Concerning Hare's deposition: the broadly worded question
(Tr. 63, 64), of "what happened on that date?" [June 13, 1978)
does not require a party to state every detail of the events of
that day.
The concluding paragraph of respondent's argument again
refers to Hare's written complaint to MSHA.
As previously stated
that evidence is not before me.
For the foregoing reasons I conclude that Stonehouse in fact
suggested that Haro call Torres.
Contention No. 3:
Mr. Torres specifically instructed Mr. Haro and other
mechanics involved not cut B.O. cars by themselves.
Torres'
specific instructions were to contact him at home only after
having contacted the shift foreman and the shaft boss on duty
and not having gotten satisfactory response from them (Tr.
102-103).
In support of its position respondent cites the transcript at
pages 102, 103.
This portion of the testimony is as follows:

Q. Okay, Mr. Torres, Mr. Haro has testified here today
about some problems he had with Mr. Cothern in the mine
operating division and that sort of thing.
Do you give
your mechanics, you said you had three or four of them
who work on B and C shift, any special instructions
about handling these kinds of problems that they might
run into with operating people?
A. Yes, sir, let me explain this.
On B and C shift
there is no mechanical supervisor in this area where
we work and they work, the dump mechanic works for the
shaft foreman which the shaft foreman answers, in this
particular case, to Mr. Cothern who was assistant shift
foreman or shift foreman of this crew, and I have given
them instructions as to, if they asked, say for instance,
to cut a B.O. car off the train to if they ask them to
go cut it off to ask for assistance.
To try, if they
cannot get anywhere with the shaft boss, his immediate
supervisor at that time, to ask to talk to the assistant
shift foreman or the shift foreman whichever the case
may be, to get some help to do the job of cutting off
cars or whatever.

134

Does it sometirnes h21ppen that mine operating people
who have essentially mjne responsibilities and mine
mechanical people who have what you call support responsibilities, take a different attitude or a different
approach to certain problems?
Q.

A.

I don't believe I understand that.

Q. Well okay, I'll withdraw the question.
You've
testified that the mechanic who works on B and C shift
does not have an immediate mechanical supervisor that
moreorless is responsible to, that the mine operating
division--in your opinion is it important to have someone
with some degree of diplomacy or at least some common
sense to work in this position, to work with the mine
operating people?
A. Yes, sir,

it's very important to cooperate, yes, sir.

Additional evidence on this point, not cited by respondent,
appears in the direct testimony of Torres at page 93 of the
transcript.
It fol lows:
Q. Do you know if--who was it you gave those instructions
to?
A. Mr. Stonehouse at the time was the shaft foreman in
that area on B shift or whatever shift that it is that
we are talking about.
Q. To your knowledge, do you know if Mr. Stonehouse
provided assistance to Mr. Haro to cut an ore car from
the train?
A. I would assume he did, yes.
Q, But you have no personal knowledge whether he did
or not?

A. No.
Q. When Mr. Haro called you at home on June 13, 1978, was
he acting in accordance with your instructions?
A. Yes, he was.
I tell this to each one of my dump
mechanics.
We have three or four of them that are on
rotating shifts, that if for some reason they cannot
work with the shaft foreman or the assistant shift boss
in regard to cutting off cars, which ordinarily they

135

furnish somebody to help and assist on this certain
thing, that if there was any question, they could not
get anybody, they'd either call me or Mr. Navarro, which
is my supervisor.
A fair reading of the foregoing portions of the transcript
does not establish the strict construction urged by respondent.
But in any event Torres indicated Haro could call "if there was
any question" (Tr. 93).
There were in fact serious questions.
One of these was that Lockhart would not assign another worker to
assist Haro (Tr. 15).
In reply, Haro was asking that the written
company policy be enforced (Tr. 15, 16). Another question arises
from the fact that Stonehouse himself "wasn't aware of any such
policy" (Tr. 268). This may be the reason why Stonehouse was on
the extension when Haro talked to Torres.
Contention No. 4:
Contrary to the language of the Order, the law does not hold
that "[i]f a protected activity in part causes adverse
action against a miner then a violation of the Act occurs."
The petitioner's proof in a "mixed motive" case merely shifts
burden to the respondent to articulate a ligitimate
business necessity for his action.
The law of the case has been clearly articulated by the
Commission in its order of remand, 4 FMSHRC 1935. The Commission
has directed the judge to analyze respondent's legitimate business
reasons.
The analysis is made here, and for the reasons stated
herein, I reject that defense.
Contention No. 5:
Mr. Haro was never "transferred", but he was reassigned (e.g., Tr. 298).
Transfers are shown on the
personnel card, assignments to crews or working places are
not.
The parties have agreed on the damages incurred by Haro.
Whether the adverse action against Haro is called a "transfer"
or a "reassignment" is of little consequence.
Contention No. 6:
The fact that Mr. Haro was never told that he was wrong
in requesting assistance in cutting a B.O. car shows
absence of respondent's animus toward a protected activity.
The irritation of Mr. Cothern arose out of Haro 1 s choosing
to telephone off the property without having consulted
Mr. Cothern as Mr. Torres told him to do.
Hare's testimony that Stonehouse told him to make the call is in-

138

consistent with all his previous accounts of the event,
as stated above.
The issues raiserl in this contention have already been
thoroughly explored and found contrary to respondent's views.
Respondent's animus is apparent.
Complainant engaged in a
protected activity.
He was transferred for that activity.
Contention No. 7:
Mr. Cothern was an operations supervisor.
Mr. Torres was a
maintenance supervisor.
Mr. Cothern can hardly be charged
with knowledge of instructions given by supervisors in other
departments.
Furthermore, Cothern's instructions were
consistent with those given by Torres: contact the highest
responsible perion on the job before calling off the
property.
I disagree with respondent's initial statement.
A management
supervisor should have knowledge of a written company safety
memorandum.
Further, particularly in matters relating to safety,
he should know how unsupervised workers handle safety complaints.
The second statement in contention No. 7 has already been
discussed.
Contention No. 8:
The Order confuses Haro's reassignment from dump mechanic to
maintenance mechanic (underground) to maintenance m~chanic
(surface).
Mr. Zerga granted Mr. Hare's request for the
latter reassignment because of the Helmer accident.
The parties have stipulated on Haro's damages.
can be served by exploring this issue.

No purpose

After considering the record and for the reasons stated
herein I conclude that complainant's claim of discrimination
arising from the B.O. car incident should be affirmed.
Stipulation Concerning Damages
The parties, by their respective counsel, in a written
stipulation agreed that if a final order finding unlawful
discrimination is to be issued an accurate computation of the
amounts to which complainant would be entitled are as follows:
Back pay
Interest
Attorney fees
Compromise of
Special Damages

137

$3,219.71
2,099.36
5,644.52
361.20

The figure entitled "compromise of special damages" arises
from a dispute of whether an additional $722.40 is due
complainant.
The parties compromised their dispute on this point.
The stipulation concerning damages is in order and it is
approved.
Based on the facts recited in this decision and on the
conclusions of law herein I enter the following:
ORDER
1.
Complainant's claim of discrimination concerning the B.O.
railroad car is affirmed.
2.
The employment record of William A. Haro is to be
completely expunged of all comments and references involved in his
refusal to remove and replace the B.O. railroad car.
3.
Respondent is ordered to pay the following sum to
complainant for the amounts indicated:
Back pay
Interest
Attorney fees
Compromise of
Special Damages
Total

$ 3,219.71
2,099.36
5,644.52
361.20
$11,324.79

Distribution:
Paul F. Tosca, Jr., Esq., 807 Pioneer Plaza
100 North Stone, Tucson, Arizona 85701 (Certified Mail)
N. Douglas Grimwood, Esq., Twitty, Sievwright & Mills
1700 TowneHouse Tower, 100 West Clarendon
Phoenix, Arizona 85013 (Certified Mail)
/blc

13B

FEDERAL Ml~'\: SAFETY AND HEALTH REVIEW \.\lMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

JAN 2 3 1984

CIVIL PENALTY PROCEEDING
Docket No. YORK 79-99-M
A.C. No.Jo~ 0·0013-05003

v.

South Bethlehem Quarry
and Mill

CALLANAN INDUSTRIES, INC.,
Respondent

DECISION APPROVING SETTLEMENT
Appearances:

Before:

William G. Staton, Esq., Office of the Solicitor, U.S. Department of Labor, New York,
New York, for Petitioner;
Harry R. Hayes, Esq., Hayes & Lapitina,
Albany, New York, for Respondent.

Judge Melick

This case is before me on remand for reconsideration of
a petition for assessment of civil penalty under Section
llO(a) of the Federal Mine Safety and Health Act of 1977
(the Act) .
Petitioner has filed a motion to approve a
settlement agreement as to the one remaining citation and to
dismiss the case.
Respondent has agreed to pay the proposed
penalty of $78 in full.
I have considered the representations and documentation in the case, and I conclude that the
proffered settlement is appropriate under the criteria set
forth in Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that Respondent pay a penalty of
$78 within 30 days of this order
'\ '

n

Gary"~1e~\~,~~ \J\JtV~~

Assistantl Chief Admi\istrative Law Judge
Distribution:

\
\

William G. Staton, Esq., Offic of the Solicitor, u. s.
Department of Labor, 1515 Broa~way, New York, NY 10036
(Certified Mail)
Harry R. Hayes, Esq., Hayes & Lapitina, 111 Washington
Avenue, Room 602, Albany, NY 12210
(Certified Mail)

/nw

139

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

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

JAN 2 6 \984

CIVIL PENALTY PROCEEDING
Docket No. KENT 83-117
A. C. No. 15-06365-03504

v.

No. 1 Surface Mine

WEST VIRGINIA REBEL COAL
COMPANY, INC. ,
Respondent
ORDER OF DISMISSAL
Before:

Judge Steffey

Counsel for the Secretary of Labor filed on January 9, 1984,
in the above-entitled proceeding a motion to withdraw the proposal for assessment of civil penalty and dismiss the proceeding
or, in the alternative, a motion for approval of settlement. The
alternative motions are accompanied by data showing that respondent paid in full the civil penalties totaling $120 proposed by
MSHA for six alleged violations of the mandatory health and safety standards.
Respondent paid the proposed penalties by a check
dated March 31, 1983, which was just 17 days after the proposal
for assessment of civil penalty was filed on March 14, 1983.
There was apparently a lack of communication between the
personnel who paid the proposed penalties and the personnel who
are responsible for the filing of answers to proposals for assessment of civil penalty because respondent failed to file an answer
to the proposal for assessment of civil penalty until after the
Chief Administrative Law Judge had issued a show-cause order on
June 20, 1983, requiring respondent to file an answer or be held
in default and be ordered to pay the penalties proposed by MSHA.
Respondent filed on July 1, 1983, an answer in reply to the showcause order. The answer denies that any violations occurred and
requests that a hearing be held "on all said matters".
The Secretary's motion cites the Commission's decision in
Mettiki Coal Corp., 3 FMSHRC 2277 (1981), in support of his request for permission to withdraw the proposal for assessment of
civil penalty.
In that interlocutory review case, the Commission
held that granting a motion to withdraw a proposal for assessment
of civil penalty was a satisfactory resolution of the controversy
in circumstances showing that respondent had agreed to pay in full
civil penalties totaling $10,000 for seven alleged violations and
had withdrawn its notice of contest. The Commission also stated

140

in the Mettiki case that its ruling did not preclude a judge from
denying a request to withdraw if "* * * the record discloses that
resolution of the matter pending would best be served by the Commission's settlement procedures or by an evidentiary hearing.
This situation is not presented in this case" (3 FMSHRC at 2277).
It does not appear that the Commission's settlement procedures
would best serve the resolution of the issues in this proceeding
either when it is considered that respondent paid in full the total
penalties proposed by MSHA just 17 days after the proposal for
assessment of civ.il penalty was filed.
The Secretary's counsel
commendably filed his motion in the alternative and provided ample
reasons in support of his alternative motion for approval of settlement if I had found that approval of the parties' settlement agreement would provide the best method for resolution of the issues in
this proceeding. Another reason for granting the motion to withdraw, instead of granting the alternative motion for approval of
settlement, is that MSHA has already received the check for full
payment of the proposed penalties so that there is no need for me
to issue an order requiring respondent to pay the penalties proposed by MSHA.
In the circumstances described above, I find that the Secretary's motion for permission to withdraw the proposal for assessment of civil penalty should be granted.
WHEREFORE, it is ordered:
The motion for withdrawal of the proposal for assessment of
civil penalty is granted, the proposal for assessment of civil penalty is deemed to h~ve been withdrawn, and all further proceedings in Docket No. KENT 83-117 are dismissed.

~a. ol7:81f

Richard C. Steffe~ ~
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Carl A. Tibbetts, Esq., Gardner, Moss, Brown & Rocovich, Suite
Nine Hundred, First National Exchange Bank Building, 213 E.
Jefferson Street, P. 0. Box 13606, Roanoke, VA 24035 (Certified
Mail)

yh

141

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE. SUITE 400
DENVER, COLORADO

ALBERT B. ZEISEL,
Complainant

.t~N 2 6 1984

80204

DISCRIMINATION PROCEEDING
Docket No. WEST 83-9-DM

v.
MD 82-80
ASARCO, INC. ,
Respondent
DECISION
Appearances:

Ronald E. Gregson, Esq., Denver, Colorado,
for Complainant;
Earl K. Madsen, Esq., Bradley, Campbell & Carney,
Golden, Colorado,
for Respondent.

Before:

Judge Carlson

This case arose upon a complaint of discriminatory discharge
filed by the complainant with the Secretary of Labor under section
105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801, et~., (the Act). The Secretary, after investigation, declined to prosecute the complaint.
The complainant,
Albert B. Zeisel, then brought this proceeding directly before
this Commission as permitted under section 105(c){3) of the Act.
Mr. Zeisel alleges that he was discharged in violation of
section 105(c)(l) of the Act. l/ The essence of his complaint

l/

Section 105(c)(l) provides:

No person shall discharge or in any manner discriminate against
or cause to be discharged or cause discrimination against or other
wise interfere with the exercise of the statutory rights of any
miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such miner, representative of miners or applicant for employment has filed or made
a complaint under or related to this Act, including a complaint
notifying the operator or the operator's agent, or the representative of miners at the coal or other mine of an alleged danger or
safety or health ~iolation in a coal or other mine, or because
such miner, representative of miners or applicant for employment
is the subject of medical evaluations and potential transfer under
a standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment has
instituted or caused to be instituted any proceeding under or
related to this Act or has testified or is about to testify in any
proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of himself or
others of any statutory right afforded by this Act.

142

is that he was discharged from his job as a motorman's helper by
ASARCO, Inc •. (ASARCO) after he protested that a jack he was using
was unsafe.
He seeks reinstatement, back pay and bonuses, and
restoration of seniority.
Mr. Zeisel's original complaint, filed prose, indicated that
he had been compelled to use a jack which was not working
properly, but the pleading contained no direct allegation that he
had made a safety complaint to the operator.
Thereafter, Mr.
Zeisel secured counsel who at a formal pretrial hearing was
permitted to amend the complaint by adding the following
allegation:
[D]uring the incident that led to the second warning
notice the Complainant made a complaint directly to
Mike Mosher, ·his shift boss, concerning the safety of
the jack
which he was using.
(Prehearing transcript
at4and5).
A full hearing on the merits was held in Denver, Colorado,
following which both parties submitted extensive briefs.
REVIEW OF THE EVIDENCE
There was little agreement between the parties as to most of
the facts concerning complainant's firing.
The undisputed
evidence does show that Mr. Zeisel had worked in the operator's
underground metal mine at Leadville, Colorado from September 1981
to his discharge on or about May 25, 1982. At the times material
here, he was a motorman's helper.
In that capacity he worked,
successively, under three shift bosses: Dennis Vetrano, Glen
Anderson, and Mike Mosher.
On October 5, 1981, he received a
warning notice from Vetrano (complainant's exhibit A).
The notice
specifies that he failed to follow orders and performed
unsatisfactory work.
Although the "explanation" portion of the
notice simply notes "employee not doing job correctly," there was
general agreement that Vetrano was dissatisfied with the speed
with which Zeisel and fellow crewman were mucking a ditch.
The witnesses also agreed that a second warning was issued,
this time by Mosher, on April 29, 1982, (respondent's exhibit 8),
but there was disagreement about the particulars of the incident.
The parties did agree as to the nature of the event which led
Mosher to issue a third and final notice on May 25, 1982. This
event involved Zeisel's use of his finger to hold a latch on a
hand-operated track jack which he and his motorman were using to

143

replace a derailed muck car on the track.
Mosher observed the
incident and issued a warning notice for "safety rule violation"
and "unsafe work habits."
This notice triggered a decision by
higher management to discharge Zeisel.
Complainant insists that ASARCO ended his employment because
he made a complaint to Mike Mosher that the jack he was using to
put a derailed car back on the track was defective.
He did this,
according to his testimony, at the very time that Mosher was
reprimanding him for using his finger to hold the malfunctioning
latch.
Beyond that, Zeisel testified that he had a reputation as
a safe and effective worker, and that Mike Mosher had evidenced a
dislike for him from the first day he reported for work on
Masher's crew.
Finally, Zeisel maintained that Robert Russell,
the mine superintendent, resented him because he had purchased a
house from ASARCO which had been the house of Russell's boss, the
unit manager.
Witnesses for ASARCO testified that the complainant was
discharged because he had repeatedly engaged in unsafe practices
and was not an effective worker.
They also maintained that the
firing occurred after a series of incidents for which formal
warnings were given in accordance with established disciplinary
procedures.
In resolving the evidentiary disagreements some review of the
testimony relating to each incident is necessary.
Mr. Zeisel
acknowledged that his first shift boss, Vetrano, for whom he
worked about three months, had once criticized him for failing to
muck a ditch far enough or deep enough.
Zeisel indicated that he
never saw a written notice, nor signed one.
The evidence does
indicate, however, that Vetrano filed one with management on
October 5, 1981 on which he checked boxes marked "failure to
follow orders" and "unsatisfactory work", and upon which he also
wrote "Employee not doing job correctly." (Complainant's exhibit
A.)
Zeisel testified that he received another warning notice for
allegedly mishandling a section of rail which he and motorman Mike
Dunn were lifting.
According to Zeisel, Dunn's hand slipped and
he dropped the rail.
Zeisel asserted that he got a warning slip
from his then shift boss, Mike Mosher, although Dunn himself did

144

not consider the incident significant and "couldn't believe"
Mosher had issued a warning slip.
Leroy Allan Eversole, safety
director for the ASARCO Leadville unit, was called by complainant
as a witness.
He testified that Dunn had indicated that the
dropped rail was not a "big deal." The warning slip in question
(complainant's exhibit B), issued on April 4, 1982, by Mosher,
shows a checkmark before the phrase "unsatisfactory work," and
contains this written explanation: "not doing job properly and
being unsafe."
Eversole testified that he was asked by Mosher at
about this time how to spell Zeisel's name because he was
"thinking about" giving Zeisel a warning slip because Zeisel had
been "kind of unsafe."
Mosher mentioned the dropped rail incident
in this connection. According to Eversole, Mosher also mentioned
that Zeisel "was not totally responsive as a helper." Mike Dunn,
when called as witness for ASARCO, testified that he had
complained to Mosher that Zeisel had let go of the rail, which led
to Dunn's finger being "smashed," and that he may have told Mosher
that Zeisel had jumped between moving cars on the track.
Dunn
testified that he asked Mosher that zeisel be taken off the crew.
Mosher himself, in testifying for ASARCO, indicated that Dunn
had asked him to transfer Zeisel because he was "too unsafe."
Mosher said Dunn had told him of Zeisel's standing on the track
while signaling Dunn to back up the motor. According to Mosher,
the April 4, 1982 reprimand was for Zeisel's unsafe signaling
practice as reported by Dunn, not the dropped rail incident, which
he did not believe "serious." Mosher testified that he moved Dunn
to a different crew because of his safety complaints about Zeisel
(Transcript 207).
The crucial incident is that involving Zeisel's use of the
jack. That episode triggered Zeisel's discharge and furnishes the
basis for his complaint in this proceeding. The undisputed
evidence shows that the track jacks used to replace derailed cars
on the track sometimes malfunction because particles of muck or
debris jam the latch mechanism which has to be pushed to allow the
jack to be raised. When this occurred it was common for one miner
to use a wrench (a buzzy) to depress the latch while another
operated the handle which raised or lowered the jack. On or about
May 25, 1982 Zeisel was working as helper for motorman Robush when
a derailment took place. The two men used a jack to get the
derailed cars back on the track.
No one disputes that Zeisel used
his finger, rather than a buzzy, to hold the jammed latch on the
jack, and that Mosher saw him do it.

145

Zeisel insisted throughout his testimony that use of a finger
to hold the latch was not uncommon. When pressed on the matter,
he stated that he had seen Dunn use a finger on a latch once and
Robush do so once.
Zeisel also insisted that he had never been
specifically instructed in the use of the jacks, but he learned
through observing the motorman.
Both motormen, in their own
testimony declared the practice unsafe, and denied having ev~r
used it.
Robush and zeisel agreed that they alternated holding the
latch and operating the iron bar used on the jack handle.
Zeisel
insisted that he used his finger because neither man had a buzzy
to use instead.
Robush contradicted this, claiming that he had a
buzzy which he used, and which he offered to Zeisel. According to
Robush, zeisel used it for a while, but then used his finger,
which he was doing when Mosher happened on the scene for a second
time.
The first time when Mosher came by, Robush asserted, he
himself was holding the latch with his buzzy. Robush claimed that
he had warned Zeisel not use his finger and was ignored.
zeisel
denied that Robush said anything.
They agreed, however, that Mosher reprimanded Zeisel on the
spot.
Robush testified that Mosher warned that if the jack
slipped it could cut off a finger.
He also testified that he told
Mosher the jack was not working properly, to which Mosher replied
that the jack should be "bad ordered" and sent to the surface for
repair.
Zeisel agreed that Mosher warned him about using his
finger, but denied that Robush told Mosher anything or that Mosher
"bad ordered" the jack.
The testimony differs as to what, if anything, Zeisel said to
Mosher that could be considered a safety complaint.
Zeisel's own
testimony on this matter was not wholly clear.
Early in his
direct testimony, this colloquy occurred:
Q.

Was it dangerous to use your finger?

A.

Not at all.
I mean, you either use a buzzy or
you use your finger in order to get that jack to
work properly if its not working at all. (Tr. 20.)

Then following this testimony:
Q.

What did you say to Mike Mosher when he said it
was unsafe?

A.

I said it wasn't unsafe, that the whole jack or
the jack itself was not working properly and that
it just wouldn't -- thats all we had to work with.

xxx
Q.

Did he say he'd do anything about the jack being
unsafe?

A.

I'm sorry?

146

Q.

Did he say he'd do anything about the jack being
·unsafe?

A.

He didn't say another word.
(Tr. 2 2) •

He just walked off.

On cross examination of Zeisel, this testimony took place:
Q.

You told him [Mosher] the jack was not working
properly and what you were doing was really not
unsafe?

A.

Pushing it in, no. To my knowledge it isn't because its common practice. So I told him the jack
was not working properly and this was how we had to
to make it work. [Emphasis added]

Q.

Did you say anything else to him?

A.

Basically that was it. Just talking about the jack,
just saying it wasn't working. And he just walked
off. (Tr. 44).

Still later in the cross examination Zeisel insisted he told
Mosher, specifically, the jack "was unsafe, it wasn't working
right" (Tr. 46).
Under further cross examination, after being asked to review
his affidavit given to an MSHA investigator, he appeared to
retreat from that position:
A.

Yeah, I told him the jack wasn't working properly.

Q.

But there is no reference to your using the term
safe or unsafe or safety?

A.

Well, they go together if its not working properly.

Q.

Thats in your opinion.

A.

Its a fact,

Q.

But you didn't say that.

A.

No, but if its not working properly •••• (Tr. 49.)

it seems like.

Upon examination by the judge, complainant became more
explicit:

147

Q.

Now when you were describing the incident that
apparently led to your discharge, you indicated,
if I followed your testimony, that you and the
motorman used your finger on the latch of the jack
because you didn't have a buzzy.
Now that implies
to me that had you had a wrench you would have
preferred to use that to your finger; is that right?

A.

Well, its easier to use, yes sir.

Q.

Is that the only reason you use it, 'cause its
to use than your finger?

ea~ier

A.

It would be, yeah.

Q.

Not because its safer to use than your finger?

A.

No.
Using your finger could not get you hurt.
(Emphasis added.) (Tr. 71-72).

Robush, who was called as a witness by complainant, agreed
that Zeisel did complain about the jack to Mosher after being
warned by Mosher about using his finger.
Robush testified as
follows:

Q.

What, if anything, did Mr. Zeisel say to Mr. Mosher
that you heard?

A.

He told him that we had trouble with the jack from
the very beginning.

Q.

Anything else?

A.

No.

(Tr. 111).

Robush reiterated this recollection under questioning by the
judge:

Q.

I want you to think before you answer this question.
Did Mr. Zeisel say anything to you or Mr. Mosher
about the safety or lack of safety or anything
concerning danger relative to the use of the jack?
Did that subject come up in his conversation?

A.

No, I don't believe so. (Tr. 122-123).

148

ASARCO officials who participated in the actual decision to
terminate the complainant's employment testified at length for the
company.
Curtis A. Johnson, the unit manager for the Leadville
unit, testified that he had the ultimate responsbility for
firings.
Johnson maintained that he made the decision to dismiss
Zeisel after a consultation with Dave Russell, the mine
superintendent. Beyond the circumstances which resulted in
warning slips, Russell, he said, informed him that Zeisel wa~ a
"slow worker," and that other workers were "carrying some of his
weight."
The essence of Johnson's testimony was that complainant
was discharged out of belief that the miner displayed unsafe work
habits (although he had never had an accident), and for a general
failure to perform his job properly. Johnson claimed to have no
knowledge of any alleged safety complaint before the firing (Tr.
150) •

Russell's testimony was in essential agreement with that of
Johnson.
He, too, denied any knowledge that Zeise! had made any
sort of safety complaint about the jack (Tr. 228).
In this
regard, Russell indicated that he had discussed the two most
recent warning slips with Ray Bond, the mine foreman, who in turn
had talked to Mosher.
Bond made no mention of any safety
complaint from Zeisel.
Management's witnesses also suggested that the complainant's
discharge was the natural consequence of his having received three
formal warnings for work violations. Personnel records of other
discharged miners were produced in an attempt to show that
Zeisel's termination was consistent with an established company
policy of discharge for cumulative warnings for on-the-job
misconduct.
Management officials did not contend that the company had a
specific rule forbidding using fingers on a sticking latch.
Basically, they contended that common sense barred such a
practice.
Further, unit manager Johnson believed that the
practice was covered by a general provision in the company's
safety rule book distributed to all eMployees. Rule 3 on page 1
of the book provides:
No set of rules can more than outline a few safety
procedures.
Plan your work and do your work in
conformity with these rules, but use good judgment.
This book must be supplemented by common sense.
(Respondent's exhibit 7 at 1).
All witnesses except Zeisel appeared to share a belief that
use of a finger to depress a sticking latch was dangerous.

149

DISCUSSION
The burden of proof of an alleged discriminatee under the Act
is set forth in Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
(1980) rev'd on other grounds sub nom. Consolidation Coal Co., v.
Marshall, 663 F. 2d 1211 (3rd Cir. 1981).
In Pasula the
Commission held that complainant must carry the initial burden of
showing that he engaged in a protected activity and that the
protected activity was a motivating factor in his discharge or
some other discriminatory act.
Having carefully considered all the evidence and the
arguments of the parties, I must conclude that the complainant in
this proceeding failed to establish the initial element. No case
for protected activity can be made out unless the complaining
miner makes known his complaint to the mine operator.
Put another
way, an operator can scarcely be said to have discharged a miner
for making a safety complaint it knew nothing about.
In Dunmire
v. Northern Coal Co., 4 FMSHRC 126 (1982), the Commission
considered the minimum requirements of a health or safety
complaint in connection with a work refusal. The resulting
holding made clear that a communication is "ordinarily" essential.
Exception may be found where no representative of the operator is
present, where "exigent circumstance require swift reaction," or
where an attempt to communicate would be futile.
The Commission
amplified this concept as follows:
We stress that our purpose is promoting safety, and we
will evaluate communication issues in a common sense,
not legalistic manner.
Simple brief communication will
suffice, and the "communication" can involve speech,
action, gesture, or tying in with others' comments. We
are confident that the vast majority of miners are
responsible and will communicate such concerns in any
event. (Id. at 134.)
Complainant, of course, was not involved in a refusal to
work.
On the contrary, assuming that he did in fact feel the jack
unsafe, he nevertheless proceeded to join Robush in its use.
His
complaint, if he made one, came only after he had been verbally
reprimanded for using his finger on the latch. This does not
mean, however, that he could not have voiced a perfectly valid
complaint at the time of the reprimand. The most favorable part
of his testimony is that in which he maintained that he told the
shift boss that the jack was "unsafe." One can conceive of a
situation where a miner, fearful for his livelihood and having
already received two warning slips, might indulge in an unsafe act
where he believed he was expected to do so in conformity with a
common practice in the mine.
Zeisel, it will be remembered,
maintained the use of the finger on the track jack was common, and
no one disputed his contention that the jacks were frequently
jammed with muck particles.

150

My difficulty with his testimony begins at this point,
however.
Robush, whom Zeisel called as his own witness,
emphatically denied that he ever used his own finger on the jack,
as did Dunn, the other motorman, who testified at the behest of
the operator.
These two were the only miners whom Zeisel
supposedly saw using their fingers.
More important, the
complainant, when closely examined on the matter, ultimately
acknowledged that he recognized no safety problem in using his
finger on the latch, and that his only statement to Mosher was
that the jack "was not working properly."
Ignoring Mosher's own
testimony that Zeisel said nothing about the condition of the
jack, and indeed did not speak at all, I must agree with the
operator that a statement that the jack "was not working
properly," if made, did not rise to the level of a cognizable
safety complaint.
I specifically reject complainant's argument
that such words carried with them a reasonable connotation that
the speaker was concerned about the safety of the jack.
It is far
more likely that Mosher, or any reasonable person, upon hearing
such words, would have assumed that they were offered as a spurof-the-moment excuse or justification for the miner's own breach
of safety principles, not as a complaint of an unsafe condition
inherent in a jack with a stuck latch.
In reaching this conclusion, I have not ignored the attempts
of complainant's counsel, in his excellent brief, to place his
client within the exceptions to the necessity for an explicit
complaint as outlined in Dunmire.
The facts simply do not fit
those exceptions. A management representative was present and
complainant had a clear opportunity to register a complaint.
I
find no credible evidence that Zeisel believed that the making of
a complaint would have been futile or useless.
On the contrary,
at the hearing he maintained that he did make a complaint by
declaring that the jack was not working properly.
Although I am convinced that Mr. Zeisel made no safetyrelated complaint, I should add that the credible evidence also
demonstrates that no such complaints ever reached the unit manager
(Johnson) or the mine superintendent (Russell), who together made
the decision to terminate the complainant's employment. Thus, if
Zeisel did declare to Mosher that the jack was not working and
Mosher managed to construe this to mean that Zeisel had a concern
over the safety of the device, there is no indication that Mosher
ever communicated any of this to any higher management official,
let alone to those who made the decision to fire.
Complainant seeks to show a management awareness of a
complaint through the following testimony by mine superintendent
Russell concerning his conversation with foreman Bond:
We Discussed why someone would stick their finger in
a jack when they're jacking the car up when they've

151

got a buzzy and if there's muck in the jack why don't
they get it out and make things safe. Well, not safe,
but make the jack work, you know, .if its jammed or
whatever. (Tr. 228.)
This statement does not lead to a reasonable inference that
Russell somehow knew that Zeisel had lodged a complaint about the
safety of the jack. Taken in the context of Russell's full
testimony, it stands for nothing more than a reflection of
management's dismay over a miner's use of his finger on the latch
mechanism.
I should note that I find that the company's concern
over the use of a finger on the jack was genuine.
I also find
that the practice was ln fact hazardous.
Some mention should also be made of the significance of shift
boss Masher's "bad oidering" of the jack when he was told that it
wasn't working properly. Complainant suggests that this action
should be construed as an admission that using a jack with a
jammed latch was unsafe per se.
(Curiously, Zeisel himself denied
that Mosher issued a "bad order" (Tr. 22)). The question thus
raised is whether ASARCO recognized that a jack with a jammed
latch was dangerous even when used with a buzzy.
Mosher maintained that it was ordinarily safe to use a ·buzzy.
He pointed out that the car was already raised when he got there,
and that he had no recourse but to allow the miners to finish.
He
acknowledged, however, that because of the location of the car in
the incident in question, some possibility existed that a miner
could be hurt even if using a buzzy, had the jack slipped.
(Tr.
212-213). Superintendent Russell, on the other hand, testified
to the general effect that use of the buzzy was an acceptable
technique.
Demonstrating with a jack, he endeavored to show that
cars needed to be raised but a small distance to replace them on
the track, and that if the jack slipped the car always fell to one
side or the other, not toward the end where the jacking was done.
He ultimately acknowledged, however, that it was safer to use a
jack in good working order, than to use anything to hold the
latch. (Tr. 217-219, 244-245.) On the whole, however, it is
apparent that miners and management alike tended to believe use of
a buzzy was acceptable and generally safe; otherwise the
transcript would not be filled with unquestioning references to
the use of buzzy on sticking latches. Use of a buzzy, that is to
say, was not perceived as cheating on safety.
In a mine where
that state of mind prevailed it is doubtful that a suggestion that
the jack was "not working properly" would be seen as a safety
complaint.
This is especially true where the suggestion came from
a miner who - seemingly alone among mine personnel - believed it
was safe to use his finger directly on the latch.

152

Complainant contends that ASARCO's stated reason's for the
discharge must be discounted because the surrounding circumstances
suggest that those reasons were a mere pretext for a retaliatory
dismissal based on his making of a safety complaint.
In support
of this contention, complainant relies on Chacon v. Phelps Dodge
Corporation, 3 FMSHRC 2508 (1981), rev'd on other grounds, 709 F.
2d 86 (D.C. Cir. 1983). That case recognized that operators who
are motivated to retaliate against miners for engaging in
protected activity seldom leave a trail of direct evidence. Thus,
the real motive for an adverse action may be proved bi reasonable
inferences drawn £rom such circumstances such as these: the
operator's knowledge of protected activity; its hostility to the
protected activity; a coincidence in time between the protected
activity and the adverse action; and disparate treatment of the
complaining miner and others whose alleged non-protected conduct
was similar.
Complainant insists that the evidence here mandates
an inquiry into the areas outlined in Chacon. His brief then
offers an extended analysis of evidence claimed favorable to the
desired inferences.
The difficulty with complainant's position is manifest. The
Chacon approach is of value only when some evidence, direct or
circumstantial, establishes that protected activity took place.
If such evidence is lacking, any Chacon analysis ends there.
For
the reasons previously discussed, I found that no credible
evidence demonstrates that the miner conveyed to ASARCO any
information, by word or conduct, which was or should have been
understood as a safety complaint.
Some passing mention must also be made of complainant's
assertion that he was the victim of an inexplicable animosity on
the part of Mosher, who allegedly disliked him from the first day
he reported to work under Masher's supervision. Mosher denied any
such attitude, and denied that he greeted complainant with
obscenities on his first day on the crew.
If Zeise! is believed,
however, it adds no strength to his case. The complainant has a
remedy under the Act only to the extent that his discharge was
motivated by a complaint about safety.
If Mosher indeed harbored
an unjustified dislike of Ziesel, that fact may have furnished a
discharge motive quite remote from any alleged safety complaint.
Similarily, if we are to accept complainant's view that mine
superintendent Russell was somehow biased against him because he
purchased a house from a unit manager for ASARCO, that fact, too,
would at best furnish a separate motive for discharge.

153

To summarize, I find that the evidence shows that the
complaining m.iner registered no safety-related complaint with the
mine operator.
I further find that his discharge was based solely
upon a management perception that he tended to be an unsafe and
otherwise unsatisfactory worker.
I consequently conclude that the
miner did not engage in protected activity under the Mine Safety
and Health Act of 1977 and is therefore without a remedy under the
Act.
ORDER
In accordance with the foregoing, this discrimination
proceeding is ORDERED dismissed with prejudice.

~~

?:O~n. ~.

Ca:lson
Administrative Law Judge

Distribution:
Ronald E. Gregson, Esq.
910 16th Street, Suite 1125
Denver, Colorado 80202
(Certified Mail)
Earl K. Madsen, Esq., Bradley, Campbell & Carney
1717 Washington Avenue
Golden, Colorado 80401
/blc

15tj

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

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

.

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-305
A.C. No. 36-05018-03501
Cumberland Mine

U.S. STEEL MINING CO., INC.,
Respondent
UNITED MINE WORKERS OF
AMERICA ( UMWA) ,
Intervenor
DECISION
Appearances:

Howard K. Agran, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., United States Steel Corporation, Pittsburgh, Pennsylvania, for Respondent.

B~fore:

Judge Melick

This case is before me upon the Petition for Civil Penalty
filed by the Secretary pursuant to Section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801, et. seq.,
the "Act," for four violations of regulatory standards. The general issues before me are whether U.S. Steel Mining Company, Inc.
(U.S. Steel), has violated the regulations as alleged and if so
whether those violations are "significant and substantial" within
the meaning of the Act and as interpreted by the Commission in
Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC
822 (1981).
If violations are found, it will also be necessary
to determine the appropriate penalty to be assessed.
Citation No. 1146090 charges a violation of the standard at
30 C.F.R. § 75.503 and specifically alleges as follows:
"[T]he
S/S scoop battery tractor serial No. 486-1128 approval 2G operating in the 121 main west section was not maintained in permissible condition in that the battery covers were not secured."

155

The standard at 30 C.F.R. § 75.03 reads as follows:
"[T]he
operator -of each coal mine shall maintain in permissible condition all electric face equipment required by§§ 75.500, 75.501,
75.504 to be permissible which is takeri into or used inby the
last open crosscut of any such mine."
The Secretary argues that in order for the scoop tractor,
which is admittedly electric face equipment, to be "permissible"
within the meaning of the cited standard, it must comport with
the construction and design requirements set forth in the standard at 30 C.F.R. § 18.44(c). Even assuming, arguendo, that
those construction and design requirements are a prerequisite to
permissibility, I do not find a violation herein.
§ 18.44(c)
requires only that "battery-box covers shall be provided with a
means for securing them in an enclosed position." Admittedly the
battery box covers in this case were equipped with tabs and holes
which clearly provided a means for securing those covers in a
closed position.
In addition to the tabs and holes, the covers
were interlocking and were provided with lips that fit over the
edge of the battery box.
Since the battery box covers in this case fully comported
with the requirements of§ 18.44(c), I cannot find that a violation has occurred. Citation No. 1146090 is accordingly vacated.
If the Secretary indeed deems that battery box covers should be
locked and secured at certain times for certain specified safety
reasons, rulemaking procedures should be employed to provide an
appropriate regulatory standard. The Administrative Law Judge
cannot be used as a substitute for such rulemaking.
Citation 1146093 charges a violation of the standard at 30
C.F.R. § 75.606 and specifically alleges as follows:
"The continuous miner trailing cable was under the left front tire of a
parked Torkar shuttle car serial No. 4275 in the east main section [and] therefore was not adequately protected from damage by
mobile equipment." The cited standard requires that "trailing
cables be adequately protected to prevent damage by mobile equipment."
It is not disputed that the conditions cited by MSHA Inspector Clarence Moats in fact existed. The trailing cable for the
continuous miner was in fact found under the left front tire of
the cited shuttle car.
Moreover there is no dispute that trailing cables can be damaged if run over by heavy mining equipment.
The cable in this case had not been blocked or moved out of the
roadway to protect it from being run over.
In fact the cable had
been lying in the roadway three feet from the left rib. Under

158

the circumstances, it is clear that the violation has been proven
as charged. The evidence also shows however that the ground beneath the cable was soft, that the cable was not in fact damaged,
and that there was no power in the cable at the time it was cited.
Moreover it is undisputed that even if there had been internal
damage to the cable, the circuit breaker would most likely have
cut off power before injuries would occur.
A violation is "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 an illness of a reasonably serious nature." National Gypsum, supra. The evidence shows herein that the hazard
contributed to by damaging trailing cables is electrical shock
and electrocution.
It is not disputed that these may lead to
injuries which are reasonably serious. The evidence further
shows that such electrical shock could occur if the cable is
damaged in such a way that exposed wire_ would protrude outside
the insulation and a miner picked it up with his hands.
It is
common for the cables to be moved by hand. Although the wire in
this case was not found in such a condition, I find a reasonable
likelihood that if the cited condition remained uncorrected, the
wire would become exposed in the described manner and would result in an injury of a reasonably serious nature. Under the circumstances I conclude that the violation was "significant and
substantial" and constituted a serious hazard. Secretary v. Mathies Coal Co., 6 FMSHRC
(January 6, 1984). I observe
that the operator had three previous similar violations and another similar violation the same day. This pattern shows a careless
disregard on the part of management in preventing violations of
this nature. Accordingly, I also find the operator to have been
negligent. The violation was abated in a timely manner.
Citation No. 1146094 was issued five minutes after the above
citation for another violation of the same standard, i.e. 30
C.F.R. § 75.606.
In this case, the shuttle car located in the
belt entry of the east main section was parked on top of its own
trailing cable. The unchallenged evidence shows that the trailing cable was lying beneath the left rear tire of the shuttle car
approximately five feet from the rib. The cable had not been
anchored to keep it out of the roadway and protect it from being
run over. The remaining facts are the same as existed in connection with the previous citation, noted above. Under the circumstances, I find that the violation has been proven as charged.
I
further find that the violation was "significant and substantial"
and serious for the reasons already set forth in regard to the
prior citation. Because of the pattern of previous violations of

a similar nature, I find that the violation herein was the result
of a careless disregard for compliance with this standard. The
violation was abated in a timely manner.
Citation No. 990131 issued May 4, 1982, charges a violation
of the standard at 30 C.F.R. § 70.lOO(a) alleging more particularly that the "average concentration of respirable dust based on
results of five samples submitted by the operator in the working
environment of designated occupation 044 for MMU012-0 was 2.4
milligrams per cubic meter exceeding the dust standard of 2.0
milligrams per cubic meter for this work unit."
The cited standard reads as follows:
"Each operator shall
continuously maintain the average concentration of respirable
dust in the mine atmosphere during each shift to which each miner
in the active workings of each mine is exposed at or below 2.0
milligrams of respirable dust per cubic meter of air as measured
with an approved sampling device and in terms of an equivalent
concentration determined in accordance with § 70.206 (Approved
sampling devices; equivalent concentrations)." Respondent does
not dispute the existence of the violation as charged but claims
that the violation was not "significant and substantial" within
the meaning of the National Gypsum decision.
The evidence shows that the respirable dust samples were
taken from the longwall tailgate operators as required by MSHA.
The sampling device is placed upon the miners in this occupation
because it is expected that they will be the ones exposed to the
highest concentrations of respirable dust. The Secretary argues
that based upon the British studies in evidence (Ex. P-1), and.,
the testimony of Thomas K. Hodous, M.D., a Board-certified expert
in internal and pulmonary medicine (Ex.P-2), nearly 1% of the
miners exposed over a 35 year working period to an average concentration of 2.4 milligrams per cubic meter of respirable dust will
develop Category 2/1 simple pneumoconiosis or greater if they had
begun working with normal Category 0/0 X-rays.l
It is not disputed that pneumoconiosis is a disease of a
reasonably serious nature. The issue as presented is whether,
based upon the particular facts surrounding this violation there
lThe International Labor Organization classifies X-ray evidence
of simple pneumoconiosis based on the profusion of dots appearing
on the lung films.
There are four major categories from 0 to 3,
each further subdivided into three categores, 0 to 2. Category 0
would be a normal f ilrn and Category 3 would indicate a high profusion of dots suggestive of a severe disease process.

158

exists a reasonable likelihood that the hazard contributed to
will result .in pneumoconiosis or massive fibrosis.
National Gypsum, supra.
In Secretary v. United States Steel Mining Company,
Inc., 5 FMSHRC
, Docket No. WEVA 83-31 (January 30, 1984), I
found on the particular facts of that case that such a reasonable
likelihood existed.
In that case, five respirable dust samples
taken on three consecutive days in the cited bimonthly sampling
cycle from the longwall tailgate operators showed an average exposure of 3.6 milligrams of respirable dust per cubic meter.
Based
on the same British studies cited in this case, Dr. Hodous projected that up to 2.4 per cent of miners starting with normal
Category 0/0 X-rays exposed over a 35 year working period to that
concentration of respirable dust would develop Category 2/1 or
greater pneumoconiosis. The evidence in that case also showed
that from the 197 samples taken from that occupation over a period of three and one half years, there was an average concentration of respirable dust of 3.12 milligrams per cubic meter.
In
addition, in that case the cited longwall unit had been consistently unable to meet the 2.0 milligram per cubic meter standard
during its entire history of operation.
It was considered to be
technologically infeasible to operate that unit consistently within compliance of the standard. There was moreover insufficient
evidence in that case to show whether the high risk tailgate operators were regularly wearing personal protective equipment which
would have reduced their actual exposure to respirable dust.
The evidence in this case shows that the Cumberland Mine
began its longwall operations in February 1980. During 1980, of
the 118 valid samples taken from the cited occupation, the longwall tailgate operator, the average concentration of respirable
dust was 1.828 milligrams per cubic meter. The mine operator was
in violation of the cited standard only once during the year.
Twenty-nine valid samples taken in 1981 showed an average respirable dust concentration of 1.605 milligrams per cubic meter.
In
1982, there were forty valid samples taken with an average concentration of 2.02 milligrams per cubic meter. The mine operator
was apparently out of compliance with the standard once that
year. To the date of hearing in 1983, ten samples had been taken
showing an average concentration of respirable dust of only 1.30
milligrams per cubic meter.
According to longwall miner Gregory King, called as the Secretary's witness, the high risk occupations at the longwall
(those exposed to the highest concentrations of respirable dust,
namely the headgate and tailgate operators) customarily wore personal respiratory protection (either Airstream helmets or Dustfoe
8.8 respirators) about 20% of the time and usually during periods

159

of heaviest dust concentration.
In accordance with the stipulation of the. parties, if properly worn, the respirators would
correspondingly reduce the amount of dust inhaled by 20%, representing the time the miners were wearing such protection.
It may
reasonably be inf erred from this evidence that the actual respirable dust inhaled by the tailgate operators, the cited occupation, was about 20% less than the reported concentrations.
The evidence in this case thus shows that the longwall tailgate operators at the Cumberland Mine have in the past only rarely been exposed to respirable dust concentrations above the 2.0
milligram per cubic meter standard. There is also a clear record
at the mine of progressively decreasing concentrations of respirable dust as new dust suppression measures have been taken. No
violations of the dust standard have been found since 1982 and
the average concentration of respirable dust since then has been
below the proscribed level.
It may therefore reasonably be inferred that the longwall tailgate operators will continue to be exposed to dust concentrations below the proscribed level and that
they will continue to use respirators at least part time. Within
this framework, I find that the assumptions necessary to the risk
determination made by Dr. Hodous and based upon the cited British
studies cannot reasonably be inferred in this case.
Accordingly, on the facts of this particular case, I do not
find that the cited violation is "significant and substantial"
nor of high gravity.
Inasmuch as the Respondent had been, prior
to the issuance of the citation ·at bar, operating its longwall
unit generally in compliance with the 2.0 milligrams per cubic
meter standard and followed no independent testing procedures, I
do not find it was negligent in exceeding the prescribed dust
levels in this instance.
In determining the appropriate penalties to be assessed in
this case, I am also considering the evidence that the operator
has continued to cooperate with the Bureau of Mines in developing
new dust control techniques at its Cumberland Mine, that it has
furnished personal protective equipment to each of its mining
crews, and has since the date of this violation, maintained relatively low respirable dust levels.
I also note that the operator
is large in size and has a moderate history of violations.
ORDER
The U.S. Steel Mining Company, Inc., is hereby ordered to
pay the following civil penalties within 30 days of the date of
this decision:

160

Citation No.
Citation No.
Citation No.
Citation No.

1146090 <vacated)
1146093
1146094
9901311

$125
125
75

(0,
Gary Melic
Assistant C

Judge

Distribution:
Howard K. Agran, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
Louise Q. Symons, Esq., United States Steel Corporation 600 Grant
Street, Pittsburgh, PA 15230 (Certified Mail)
Arthur E. Guty, Sr., Chairman, Safety Committee, Local 2300, United Mine Workers of America, 341 Derrick Avenue, Uniontown, PA
15401 (Certified Mail)
/nw

161

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO

JAM 3 o \984

80204

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 82-13-M
A.C. No. 04-00010-05028 A

v.

Crestmore Mine

ROBERT A. RIEDMAN,
Respondent
DECISION
Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Enos C. Reid, Esq., Reid, Babbage & Coil,
Riverside, California,
for Respondent.

Before:

Judge Vail

STATEMENT OF THE CASE
In this proceeding, the Secretary seeks a civil penalty
against respondent, Robert A. Riedman, (Riedman), for violation of
section llO(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et ~· ll
Riedman, as mine production supervisor of the Crestmore Mine
.,
for the Riverside Cement Company, Riverside, California, is
alleged to have "knowingly authorized, ordered, or carried out"
the alleged violation of 30 C.F.R. § 57.15-5 cited in MSHA
withdrawal order No. 375785 issued November 1, 1979 pursuant to
section 107(a) of the Act.
The cited regulation requires that
safety belts and lines shall be worn when men work where there is
danger of falling; and a second person shall tend the lifeline
when bins, tanks, or other dangerous areas are entered. The

1/ 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 ••• shall be subject to the same civil penalties,
fines, ••• that may be imposed upon a person under subsections
(a) and ( d) •

162

withdrawal order alleged as follows:
A serious accident occurred at the Crestmore Mine
when an employee entered the feed hopper at the
dynapactor (crusher) to free a bridged material
hangup.
The bridged material broke through dropping
the employee onto the pan feeder and loose material
from above came down covering the employee. Safety
belts, lines and a person in attendance on the line
were not being used in this dangerous location.
Riedman denied the allegation. After notice to the parties,
a hearing on the merits was held in Riverside, California.
FINDINGS OF FACT
1. On November 1, 1979, Riverside Cement Company was the
corporate operator of the Crestmore Mine near Riverside,
California.
Robert A. Riedman was the mine production foreman.
2.
Both Riverside Cement Company and Riedman are subject to
the Federal Mine Safety and Health Act of 1977 (Transcript at 5
and 6).
3. The Crestmore Mine is an underground mine whose principal
product is limestone for cement.
4.
Riverside Cement Company paid a penalty assessment of
$5,000 for the violation of C.F.R. § 57.15-5 alleged in withdrawal
order No. 375785, issued November 1, 1979 (Exhs. P-3 and P-7).
5.
The violation alleged in order No. 375785 was abated
promptly and in good faith by the corporate operator (Exhs. P-6A
and 6B).
6.
On October 30, 1979, Richard Trombi, crusher operator,
was injured while trying to free bridged material in the feed
hopper at the dynapactor crusher.
The crusher is a part of the
underground mining process.
Ore is hauled by trucks to where the
crusher is located and dumped into a hopper. A pan feeder in the
bottom of the hopper feeds the material into the dynapactor
crusher (Tr. at 26-27 and Exh. P-5).
7.
The hopper is a cone shaped bin, approximately 5 by 15
feet wide at the top, 20 feet deep, and narrowing to 5 by 11 feet
at the bottom.
Material unloaded in the hopper sometimes becomes
lodged in the hopper and will not drop onto the pan feeder at the
bottom (Exhs.
P-5 and R-1).
8.
On the day of the accident, Trombi and Cliff Palmer
climbed into the hopper with two sticks of dynamite intending to
set it off to dislodge some material that had become bridged in

163

the bin.
The two miners wete standing on the material to place
the dynamite when the material broke away and caused Trombi to
fall approximately three to five feet onto the pan feeder at the
bottom.
Also, material above Trombi fell on top of him.
9.
Palmer had been holding onto a rope tied to the top of
the hopper and used for entering and climbing out of the hopper.
He was able to avoid dropping to the bottom of the hopper or being
struck by the material (Tr. at 34 and Exhs. P-5 and R-1).
10. Trombi suffered back injuries, cuts to his nose and
mouth, and abrasions over other parts of his body (Tr. at 35).
11. At the time the accident occurred, Riedman, the corporate
operator's agent and mine production foreman, was standing on a
catwalk along the side of the hopper.
Riedman was supervising the
work of Trombi and Palmer in the hopper (Tr. at 56-57 and Exh.
R-1).
12.

Riedman earns an annual salary of $34,000 (Tr. at 60).

ISSUES
1. On October 30, 1979, did
provide and require its employees
when entering the hopper; or have
line in violation of§ 57.15-5 as
order?

the corporate operator fail to
to wear safety belts and lines
a second person tend the safety
alleged in the withdrawal

2.
If so, did Riedman knowingly autho~ize, order, or carry
out such violation within the meaning of section llO(c) of the
Act?
DISCUSSION
The facts in this case are not in dispute.
Richard Trombi
and Cliff Palmer, employees of the corporate operator, under the
direct supervision of respondent Robert A. Riedman, climbed into a
hopper bin to blast loose rock that had become bridged across the
bottom of the bin and prevented the remaining rock from being fed
into the crusher.
In this case, rock had become bridged across the bottom of
the bin and piled up along the side.
Trombi and Palmer climbed
into the bin and stood upon some of the rock located approximately
half way down the side of the bin.
They intended to use dynamite
to blast loose the bridged rock.
Trombi had just bent over to
place the dynamite in the rock when the rock broke loose causing
Trombi to fall to the bottom of the bin and other rock above to
fall down on top of him.
Palmer was holding on-to a rope that was
tied to the top of the bin which was used to climb in and out of

1611

the bin and was able to pull himself free from the falling rock.
Neither miner was wearing a safety belt or was attached to a life
line tended by a second person (Exhs. P-1 and R-1).
Respondent
Riedman was standing on a catwalk along side the bin at the time
the accident occurred, supervising the work being done there by
Trombi and Palmer (Tr. at 57).
I find that the above facts show a violation of mandatory
safety standard 30 C.F.R. § 57.15-5 which provides as follows:
Mandatory.
Safety belts and lines shall be worn when
men work where there is danger of falling; a second
person shall tend the lifeline when bins, tanks, or
.other dangerous areas are entered.
There can be no dispute that the hopper bin in this case
should be considered a dangerous area.
The actual occurrence of
Trornbi's fall and the resulting injuries best depict what the
standard is designed to prevent.
The only defense presented by respondent Riedman for allowing
these miners to enter the bin without safety belts or lines is
that he thought it was safer.
Riedman testified that the rock was
located on the side of the hopper where the catwalk is located and
the only place where the safety belt could be tied or tended.
If
the miners were wearing safety belts, when the rock fell, the
miners would have been pulled into it and buried alive (Tr. at
56).
I reject this argument as being unrealistic.
First, Palmer
was able to escape by holding onto the rope that was tied to the
top and used for climbing in and out of the bin.
If the location
of the catwalk was a problem, then other means to handle the task
were required.
No explanation can justify the action of
management in this case.
The Commission in secretary of Labor v. Kenny Richardson, 3
FMSHRC (1981), Richardson v. Secretary of Labor, 609 F. 2d 632
(1982), review denied, held section llO(c) of the Act to be
constitutional and enunciated the critical elements which
constitute a violation of this section. The corporate operator
must first be found to have violated the Act.
Further, if a
person, such as supervisor, is in a position to protect an
employee's safety and health and fails to act on the basis of
information or knowledge or the reason to know of the existence of
a violative act, he has acted knowingly and in a manner contrary
to the remedial nature of the statute.
As to the first element in the Richardson case, supra, the
facts show in this case that the Secretary proposed the assessment
of a $5,000.00 penalty against the corporate operator Riverside

165

Cement Company, for violation of § 57.15-5 as stated in order No.
375785.
The·corporate operato1 paid the penalty in full (Ex.
P-7).
Payment of a penalty, whether the full amount of the
proposed assessment or a compromised amount, constitutes an
admission by the corporate operator that the conditions alleged in
the citations existed and were violations of the respective health
and safety standards listed therein as a matter of law.
Ranger
Fuel Corporation, Docket Nos. WEVA 80-56-R, 80-57-R and 80-58-R,
(February 10, 198l)(ALJ). Eastern Associated Coal Corp. v.
Secretary, Docket No. WEVA 80-120-R, (May 20, 1980)~ The Valley
Camp Coal Company, 1 IBMA 196, 204 (1972).
As to the second element described above, respondent
Riedman's liability under section llO(c) of the Act for the action
of Trombi and Palmer turns on whether he knowingly authorized,
ordered, or carried out such violation. There can be no question
that he did all three of the above for as the direct and immediate
supervisor of these two employees, he was present on the catwalk
along side the bin when Trombi and Palmer entered it without
safety belts or ,lines. There can be no valid argument in defense
of Riedman's actions in this case.
It must be obvious from the
precarious position of the two miners in the bin that an accident
was possible endangering their health and safety.
PENALTY
The Secretary originally proposed a penalty of $500.00 in
this case.
At the hearing, he proposed that the penalty be raised
to $700.00.
I find that the facts in this case show beyond a
doubt that Riedman was negligent in allowing Trombi and Palmer to
enter the bin without safety belts or lines. The only evidence
presented to explain the basis for such actions was Riedman's
opinion that such equipment posed a greater danger than not using
them.
The argument is not accepted as reasonable.
If the acts
posed this kind of danger, other means were required to accomplish
the task.
The gravity of the action on the part of Riedman is serious
as the resultant injuries to Trombi were severe and the
possibility of death was present.
Riedman was asked at the hearing by his counsel if the
payment of a $700.00 penalty would cause a financial hardship?
Riedman replied: "It won't help any".
Riedman earned $34,000.00
annually at the time of his testimony in this case (Tr. at 58,
60) •
I find that the original penalty of $500.00 is appropriate in
this case.

166

CONCLUSIONS
1.
The corporate operatot, Riverside Cement Company, and
Robert A. Riadrnan, mine production foreman~ are subject to the Act
and jurisdiction of the Administrative Law Judge in this case.
2.
Riverside Cement Company is a corporation and on October
1, 1979, violated 30 C.F.R. § 57.15-5 as alleged in withdrawal
order No. 375785 in failing to require safety belts and lines
tended by a second person for miners entering bins, tanks, or
other dangerous areas.
3.
Respondent Robert A. Riedman violated section llO(c) of
the Act in knowingly authorizing, ordering and carrying out the
violation alleged in withdrawal order No. 375785.
ORDER
The respondent Robert A. Riedman is found to have violated
section llO(c) of the Act and is ORDERED to pay a penalty
of $500.00 within 40 days of the date of this decision.

~(d(~~?;;~)Vir~ ~· Vail

Administrative Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor
U.S. Department of Labor, 4015 Wilson Boulevard,
Arlington, Virginia
22203
Enos C. Reid, Esq., Reid, Babbage & Coil
P.n. Box 1300, Riverside, California 92502
/blc

167

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

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

22041

JAN 3 0 1984

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-31
A.C. No. 46-01816-03504
Gary No. 50 Mine

UNITED STATES STEEL
MINING CO., INC.,
Respondent
DECISION
Appearances:

Howard K. Agran, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Melick

This case is before me upon the petition for assessment of 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 seg., the "Act,"
for two violations of regulatory standards. At hearing,
Petitioner requested to modify the pleadings by withdrawing Citation No. 2029554 from the case on the grounds that
the citation had been vacated before the request for hearing had been filed.
Under the circumstances, the Petitioner's request to withdraw the citation is granted.
Commission Rule 11, 29 C.F.R. § 2700.11.
The remaining citation at issue, Citation No.
9914230, charges a violation of the mandatory standard at
30 C.F.R § 70.lOOCa).
Since the Respondent concedes the
existence of the violation as charged, the only issues
before me are whether the violation was "significant and
substantial" as defined in the Act and as interpreted by
the Commission in Secretary v. Cement Division, National
Gypsum Co., 3 FMSHRC 822 Cl981), and the appropriate penalty to be assessed. The citation alleges that "[b]ased
on the results of five valid dust samples collected by the
operator, the average concentration of respirable dust in
the working environment of the designated occupation in
mechanized mining unit 028-0 was 3.6 milligrams [per cubic
meter] which exceeded the applicable limit [set forth in
30 C.F.R. § 70.lOOCa)] of 2.0 milligrams [per cubic
meter]."

168

Under the National Gypsum test, "a violation is of
such a nature as could significantly and substantially
contribute to the cause and effect of a.mine safety or
health hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." The Secretary
contends that there is a reasonable likelihood that exposure to high concentrations of respirable coal dust will
result in pneumoconiosis, massive fibrosis, emphysema,
stomach cancer, and chronic bronchitis.
It is not disputed
that these are illnesses of a reasonably serious nature.
Respirable dust samples taken on three consecutive
days in the July/August 1981 bi-monthly sampling cycle
from the longwall tailgate operator at the Gary No. 50
Mine show an average exposure of 3.6 milligrams of respirable dust per cubic meter. In addition the 197 samples
taken from that same designated occupation over a period
of 3-1/2 years (August 14, 1979 to March 7, 1983), show an
average exposure of 3.12 milligrams of respirable dust per
cubic meter.
It is conceded that the cited longwall unit
has been unable to consistently meet the 2 milligram per
cubic meter standard set forth in the regulations and it
is considered by both parties to be technologically infeasible to operate that unit consistently within compliance
of the standard.l
According to Thomas K. Hodous, M.D., a board certified expert in internal and pulmonary medicine, evidence
exists that demonstrates that continued exposure of coal
miners to respirable coal dust increases the risk for at
least five disease processes; namely stomach cancer, emphysema, chronic bronchitis, pneumoconiosis and massive fibrosis. While mortality studies have shown an increased
incidence of stomach cancer in coal miners, Dr. Hodous
1 In light of this evidence one must wonder why this longwall unit had not long ago been closed down by MSHA under
available statutory procedures. See e.g. §§ 104(b), 104(d)
and 104(e) of the Act. When asked at hearing why closure
orders had not been effectuated (even after two years of
noncompliance) the MSHA witness could only respond "That
was what I didn't want you to ask." While MSHA urges in
this case a finding that the dust violations are "signif icant and substantial" the oniy real significance of such a
finding is its effect on triggering withdrawal order
sequences under sections 104(d) and 104(e) of the Act. The
finding is accordingly of little value unless MSHA is willing to enforce closure procedures--a willingness it has not
so far shown.

169

acknowledged that the relationship between exposure to
respirable dust and stomach cancer is yet unproven.
In
addition, while pathological evidence of "rather marked
emphysema" among coal miners also exists, the relationship
between dust exposure and this disease has similarly not
been conclusively established. Dr. Hodous opined, however, that there is sufficient evidence to support the
view that miners with individual susceptibilities have a
higher risk of suffering stomach cancer and emphysema as a
result of exposure to coal dust.
According to Dr. Hodous, chronic bronchitis can also
result from dust exposure including exposure to nonrespirable dust i.e. dust particles larger than 5 microns
in size. According to the studies cited by Dr. Hodous,
coal miners may suffer chronic bronchitis in a matter of
24 months. The disease leads to coughing and phlegm production and in ·some cases increased pulmonary infection.
In severe cases, cough syncopy may develop wherein the
cough is so severe that the individual may faint.
The fourth illness described by Dr. Hodous as resulting from exposure to respirable coal dust is coal workers
pneumoconiosis. More specifically, pneumoconiosis is a
lung disease caused by the deposition of respirable coal
dust on the lung and the body's reaction to it. Exposure
to respirable dust over a period of years results in the
accumulation of coal particles into what are called macules
surrounding the spots of coal in the terminal airways and
the air sacs of the lung. Continuous exposure to coal dust
may cause the condition to spread and involve most parts of
the lung. The condition may worsen to progressive massive
fibrosis involving the destruction of alveoli and distortion of the remaining lung tissues.
While simple coal
workers pneumoconiosis is usually asymptomatic, progessive
massive fibrosis or complicated coal workers pneumoconiosis
ordinarly causes shortness of breath and cough.
It can
also cause severe pulmonary impairment and early death.
There is no known treatment which can reverse the disease
process of these impairments. However, in the case of
simple pneumoconiosis, removing the afflicted person from
the offending exposure will prevent further progression.
In the case of massive fibrosis, however, lung deterioration may continue without continued exposure to coal dust.
According to Dr. Hodous, several studies from British
pneumoconiosis field research correlate the degree of exposure experienced by coal miners with the probability of
contracting pneumoconiosis. The first is a study entitled
"The Relation Between Pneumoconiosis and Dust Exposure in
British Coal Mines" authored by Jacobsen, Rae, Walton and
Rogan, (Exhibit G-6). The second is a follow-up study

170

entitled "Coal Worker's Simple Pneumoconiosis and Exposure
to Coal Dust at Ten British Coal Mines" published in 1982,
by the British Journal of Industrial Medicine (Exhibit G-8).
From these studies a graph was developed depicting the probabilities of developing Category 2/1 or higher pneumoconiosis after exposure to various mean dust concentrations over
an average working lifetime of 35 years. 2 The studies
have shown that 15 percent of the miners who have contracted
2/1 pneumoconiosis can also be expected to develop progressive massive fibrosis over the subsequent 10 years. Based
on these studies, Dr. Hodous calculated that among healthy
miners exposed over a working lifetime to the dust levels
evidenced in this case 1.7 percent to 2.4 percent will
develop Category 2/1 or greater pneumoconiosis. As previously noted, a miner with 2/1 pneumoconios~s with continuing dust exposure has a greatly increased risk of
developing progressive massive fibrosis, a disease that can
result in severe pulmonary impairment and early death.
Respondent challenges the probability assessment in
this case on the grounds that it is based upon unreliable
data in the cited British studies. There is no evidentiary
basis, however, for the challenged reliability.
It is no
more than a bald unsupported allegation. Moreover the
expert testimony of Dr. Hodous affirmatively corroborates
the reliability of the studies. Respondent also argues
that Dr. Hodous' conclusions are based on invalid assumptions regarding future work experience of miners in the
Gary No. 50 Mine. While the specific longwall mining unit
cited in this case may not be in continuous operation and
may not continuously expose the same miners to the same
excessive levels of respirable dust evidenced in this case,
I find that the evidence is sufficient from which probability estimates may reasonably be inferred for the limited
purpose of determining whether or not the cited over-exposure
is "significant and substantial."
Finally, Respondent argues that Dr. Hodous' projections do not take into consideration that 50 percent of the
miners at the cited mine were wearing personal protective
equipment. Even assuming, however, that this representation was correct and that the alleged protective equipment
brought actual exposure levels to the prescribed limits, it
is apparent that the remaining 50 percent of the miners
2 The International Labor Organization classifies x-ray
evidence of simple pneumoconiosis based on the profusion
of dots appearing on the lung films. There are four major
categories from 0 to 3 each further subdivided into three
categories 0 to 2. Category O would be a normal film and
Category 3 would show a high profusion of dots indicating
a severe disease process.

171

were nevertheless unprotected. More particularly there is
no evidence that the miners in the cited high risk occupation wore such protective equipment.
Accordingly I am satisfied that under the particular
facts surrounding the violation cited in this case, including a long history of over-exposure to respirable dust and
the expectation of future over-exposures in conjunction
with the studies demonstrating a correlation between long
term exposure to respirable dust and pneumoconiosis, I
find that there does indeed exist a reasonable likelihood
that the cited exposures in this case significantly and
substantially contribute to the reasonably serious illness
coal worker's pneumoconiosis. The uncontested testimony
of Dr. Hodous that continuing coal dust exposure increases
the risk of chronic bronchitis and, for susceptible individuals, of emphysema and stomach cancer also supports the
inference that it is reasonably likely that the cited exposure significantly and substantially contributes to these
reasonably serious illnesses. The violation herein is
accordingly "significant and substantial." within the meaning of the National Gypsum decision. See also Secretary
v. Consolidation Coal Co., 5 FMSHRC 378 (1983), (Judge
Broderick) pet. for review granted April, 1983; and
Secretary v. U.S. Steel Mining Co., 5 FMSHRC 46 (1983)
(Judge Kennedy).
In determining the amount of penalty to be assessed
in this case, I consider that the violation was serious as
demonstrated by the above discussion.
Based on the long
history of excessive dust levels in this section of the
Gary No. 50 Mine, and the inability of the Respondent to
operate the cited longwall unit in continuous compliance
with the respirable dust standard, I must find that the
Respondent fully expected to operate in violation of that
standard. At the same time, I recognize that the Respondent has been working with MSHA technical support staff
and has been making extraordinary efforts at some expense
to bring this and other longwall units into compliance
with the regulation. The Respondent has also, in recognition of its inability to bring the longwall unit into compliance, furnished personal protective equipment for the
mining crew. Under all the circumstances, I find that a
penalty of $250 is appropriate.

172

ORDER
The U.S. Steel Mining Company, Inc., is hereby
ordered to pay a civil penalty of $250 within 30 days of
the date of this decision.

Gar

-'
J

t;
i.

.fl~ ()

i\~·Jv ; v
Meltk
~.\. ~/<.A..{/~.

Assist~~t

Distribution:

.

Chief ~ministrative Law Judge

u·

Howard K. Agran, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535
Market Street, Philadelphia, PA 19104 (Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Pittsburgh, PA
15230 (Certified Mail)

/fb

173

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 80-111-M
A.C. No. 05-03431-05001

v.
Alcott Pit
Docket No. WEST 81-295-M
A.C. No. 05-03586-05001 BY2

SOUTHWAY CONSTRUCTION COMPANY,
INC.,
Respondent

Sargents Pit

DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor,
u. s. Department of Labor, Denver, Colorado,
for Petitioner;
J. o. Lewis, Esq., Alamosa, Colorado,
for Respondent.

Before:

Judge Carlson

These two cases, consolidated for hearing, arose out of
inspection of respondent's gravel pits and crushing operations.
The cases were heard at Pueblo, Colorado, under provisions of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~·
(the "Act").
The Secretary seeks civil penalties for seven alleged
violations of safety standards promulgated under the Act.
The parties waived the filing of post-hearing briefs.
ISSUES
The questions to be decided are:
(1) Whether respondent's operation constituted
"mining" within the contemplation of the Act.
(2) Whether respondent's operation affected
commerce within the contemplation of the Act.
(3) If respondent was covered by the Act, whether
it committed the violations alleged, and if so
what civil penalties are appropriate.

THE MINING ISSUE
All testimony in this case was provided by two federal
inspectors •.!/ Counsel for Southway Construction Company, Inc.
(Southway) called no witnesses, and was content to cross examine
the inspectors. The undisputed evidence showed that respondent,
at the times of inspections, was extracting river rock and gravel
from natural deposits forming a bench along a stream bed. The river
rock, in formation, was sufficiently loose to be removed directly
by the buckets or scoops of front-end loaders. The product was
screened on the site to separate small, gravel-size rock, which
needed no further processing, from larger stones which required
crushing to make aggregate.
Section 3(h)(l) defines a "coal or other mine" as "an area
of land from which minerals are extracted in non-liquid form .••• "
This definition must be given a broad reading.
Cyprus Industrial
Minerals Corporation, 3 FMSHRC 1 (1981).
Sand and gravel pit
operations clearly fall within the definition.
Marshall v. Wallock
Concrete Products, Inc., (U.S. District Court for the District
of New Mexico), 1 MSHC 2237 (1980); B & N Construction, Inc.,
3 FMSHRC 427 (1981) (ALJ).
I therefore hold that the Southway operation was a "mine"
within the meaning of the Act.
THE COMMERCE ISSUE
Southway denied that it was engaged in an enterprise affecting
commerce, and put the government to its proofs upon that issue.
The government undertook to supply those proofs by showing that
Southway provided crushed rock or aggregate to the Colorado State
Highway Commission for use in highway construction; that Southway
used equipment manufactured outside the State of Colorado; and that
Southway used the telephone, an instrument of interstate commerce,
in the conduct of its business.
The Act covers all mines "the products of which enter commerce or the operations or products of which affect commerce."
80 U.S.C. § 803. This language gives the widest jurisdiction
obtainable under the commerce clause of the Constitution.
Brennan v. OSHRC, 492 F.2d 1027 (2d Cir. 1974).

1/ The transcript of the evidentiary hearing was of lamentable
quality.
Despite the frequent errors, the substance of the testimony
was preserved and neither party sought corrections. Therefore no
correcting orders are entered.

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Inspector Leo Garcia inspected the Southway's Alcott pit on
June 28, 1979.•
The aggregate produced at the site, he testified,
was being trucked to the City of Delta, Colorado, for use in a
street resurfacing project.
The evidence shows that Southway closed down its Alcott
operation shortly after Garcia's inspection and moved to a location
known as the Sargents pit.
Inspector Porfy Tafoya inspected that
location with another MSHA inspector on September 4, 1979. This
site was also adjacent to a waterway. Tafoya testified that the
foreman acknowledged that Southway was crushing aggregate for the
Colorado Highway Department. He further testified that the Highway
Department had representatives at the site and that he observed the
aggregate being hauled away in Highway Department trucks. None of
this evidence was challenged.
It has long been clear that even businesses which sell their
product within a single state fall within the broadest application
of the commerce power. This is so because of the cumulative impact
of small producers upon interstate transactions. Wickard v. Filburn,
317 U.S. 111 (1942); Fry v. United States, 421 U.S. 542 (1974}.
Respondent's affect on commerce is doubly clear in this case
because its aggregate product was used in the construction of public
roads and highways which play an inevitable part in interstate
transportation, B.L. Anderson, Inc., 3 FMSHRC 1019 (1981} (ALJ),
aff'd.
sub nom B.L. Anderson,
v. FMSHRC, 668 F.2d 442 (1982);
John Petersen, d/b/a Tide Creek Rock Products, 4 FMSHRC 2241, 2247
( 19 8 2) ( ALJ) •

me.

Moreover, Inspector Tafoya testified that he ascertained
that several of the pieces of heavy mobile equipment used in the
pit were manufactured outside of Colorado.
His knowledge was based
upon up-to-date listings maintained by MSHA in connection with its
licensing and approval of mining equipment. Familiarity with
such information, he indicated, was essential to the performance
of his duties. Under such circumstances the information is
inherently credible, and not subject to exclusion under the
hearsay rule as respondent contends. Use of equipment which
has moved in interstate commerce affects commerce within the
meaning of the Act. Avalotis Painting Company, 9 OSHA 1226 (1981};
United States v. Dye Construction Company, 510 F.2d 78 (10th Cir.
1975}.
The Secretary also attempted to show that Southway used a
telephone in the conduct of its business, a further indication
of commerce. That issue is not further examined here since other
evidence plainly shows that the Southway enterprise "affected
commerce."

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THE VIOLATIONS
Docket No. WEST 80-111-M (The Alcott Pit)
Citation 327198
At the Alcott Pit, Inspector Garcia saw several oxygen cylinders
on the floor of the pit.
The cylinders, he testified, were upright
and unsecured by ~traps or wires. Gauges showed the cylinders to be
full.
He cited this condition as a violation of the safety standard
cited at 30 C.F.R. § 56.16-5 which provides:
Compressed and liquid gas cylinders
shall be secured in a safe manner.
The inspector indicated that the nearest employee, approximately
15 feet away, was operating a crusher.
Immediately upon citation,
Southway moved the cylinders up against a trailer, and secured them.
The danger presented by unsecured cylinders, the inspector stated,
was that if they were accidently tipped or turned over, the gauges
could break, creating a possibility of ignition, or the cylinders
themselves could "shoot out," propelled by the liberated gasses.
These facts, all undisputed, clearly establish a violation of
the cited standard.
The inspector, in his citation, classified the violation as
"significant and substantial." That statutory term was defined in
Cement Division, National Gypsum Co., 3 FMSHRC 822 (1981), where
the Commission held that it applied to those violations in which
there exists "a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious
nature." Respecting this citation, the inspector testified that
he did not now consider th.at the violation qualified as significant
and substantial under the National Gypsum test. Counsel for the
Secretary joined in that view and moved to amend the charge to
eliminate the significant and substantial designation.
Although this judge has in the past had occasion to scrutinize
such motions closely, the Secretary's reappraisals will be accepted
in this case since the original penalty assessment amounts were quite
small - an indication that the violations were relatively minor.

177

The civil penalty sought by the Secretary is $24.00.
The
parties stipulated to several of the factual elements which go
toward determination of penalty for all violations in this
proceeding.
Southway's operation was small, and at the time of
Garcia's inspection it had no history of violations. The evidence
showed that all violative conditions were abated immediately.
Respondent's good faith was not challenged.
As to this particular violation, workers exposure to the
hazard of the unsecured oxygen bottles was minimal.
Under
all the circumstances only a light penalty is justified. The
originally proposed penalty of $24.00 is light, however, and I
deem that amount appropriate. A penalty of $24.00 is therefore
assessed.
Docket No. WEST 81-295-M (The Sargents Pit)
Citation No. 326265
Inspector Tafoya testified that he observed that insulation
on a splice on a 480 volt electrical cable furnishing power to
a conveyor motor was inadequate, exposing the interior wires of
the cable.
The area of which he complained was very near the
point at which the cable entered the motor case.
~lso, the
bushing designed to protect the cable from wear and the effects
of vibration where it entered the motor casing was not in the
proper place.
It therefore offered no protection to the cable.
These conditions caused the inspector to charge a violation of
30 C.F.R. § 56.12-8, which, as pertinent here, provides:
Power wires and cables shall be insulated
adequately where they pass into and out of
electrical compartments. Cables shall enter
metal frames of motors, splice boxes, and
electrical compartments only through proper
fittings.
The inspector maintained that the cable presented a hazard
of electrical shock or electrocution to any of the four employees
who might for any reason touch the cable or the motor housing.
I
hold that this uncontradicted testimony establishes the violation
alleged.
The cable was neither adequately insulated, nor was the
fitting at the engine cover "proper".

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The inspector maintained that this violation was significant
and substantial as the original citation alleged.
He feared that
the combination of the defective splice and the misplaced bushing
could lead to electrocution or severe shock.
Four employees were
potentially exposed to this hazard, and he singled out a worker
doing clean-up in the immediate area of the belt.
I agree with
the inspector's assessment, and conclude that the violation carried
with it the reasonable likelihood of injury of a reasonably serious
nature.
It was therefore properly classified as significant and
substantial.
The Secretary seeks a penalty of but $40.00. Giving due
consideration to the penalty criteria discussed earlier, together
with the gravity of the violation, a $40.00 penalty is surely not
excessive.
The proposed amount will therefore be assessed.
Citations 326266 and 573521
These two citations represent virtually identical conditions
on two separate conveyor systems at the pit.
On each conveyor
Inspector Tafoya observed take-up pulleys with exposed or unguarded
pinch points.
The exposed pinch points on both machines were
situated ·about four or five feet above ground level.
Neither
danger point was protected by any natural obstruction which would
tend to isolate employees from contact. The inspector acknowledged
that no employees were working in proximity to the pulleys at the
time of his visit, but observed that clean-up of conveyor spillage
would necessarily be done in the immediate area from time-to-time.
Unwary workers, he indicated, could have clothing caught up in the
pinch point, with resulting personal injury.
He cited these
conditions as violations of 30 C.F.R. § 56.14-1, which provides:
Gears; sprockets; chains; drive head, tail
and take-up pulleys; flywheels; couplings;
shafts; sawblades; fan inlets; and similar
exposed moving machine parts which may be
contacted by persons, and which may cause
injury to persons, shall be guarded.
The facts establish violations.
Here again the violations were
originally charged as significant and substantial, but the
Secretary moved at trial to delete that designation owing to the
inspector's belief that the circumstances did not meet the National
Gypsum test.
The inspector's view was apparently based on the
fairly remote poss~bility that workers would be near the danger
area presented by the pulleys. While the validity of that view may
be arguable, I am not disposed to quibble with it in a case of this
magnitude.
The violations will not be deemed significant and
substantial.

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The Secretary seeks a civil penalty of $40.00 for each
violation.
Since I see no useful distinction between the
penalty-related facts affecting these violations and those
affecting the oxygen bottle citation discussed earlier, consistency suggests the same result here.
Consequently, a civil
penalty of $24.00 will be assessed for each.
Citations 573520 and 573522
While at the site, Inspector Tafoya determined that two
pieces of heavy mobile equipment were operating without audible
reverse signal alarms.
Both machines, a front-end loader and a
Caterpillar bulldozer, were equipped with such automatic devices.
On both machines, however, the alarms were out-of-order.
The
inspector also testified that operators of the machines had
obstructed views to the rear, and that while he watched backing
maneuvers, neither operator was provided with an observer to
signal when the way was clear. Tafoya cited these conditions
as violations of 30 C.F.R. § 56.9-87, which provides:
Heavy duty mobile equipment shall be
provided with audible warning devices.
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.
The inspector indicated that there was no employee foot traffic
in the area of the cited equipment while he watched. There were,
however, no impediments to the presence of workers, and there was
thus a "potential" for endangerment.
The evidence shows that the
alleged violations occurred.
The Secretary seeks a penalty of $36.00 for each reverse
alarm violation.
Even if not significant and substantial, I consider these violations of greater gravity than those for which
lesser penalties have been assessed herein.
Large pieces of mobile
equipment need functioning back-up alarms whenever there is any
possibility of foot traffic on the pit floor.
The $36.00 penalty
amounts will be affirmed.

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Citation 573523
The inspector described four electrical boxes located in
Southway's generator trailer which controll~d electrical current
to a variety of equipment in the pit, including the conveyors and
crushers.
None of these boxes, he testified, was labeled to show
which piece of equipment it controlled. This condition caused him
to cite the respondent for violation of 30 C.F.R. § 56.12-18, which
provides:
Principal power switches shall be labeled
to show which units they control, unless
identification can be made readily by
location.
The inspector acknowledged that the foreman of the operation
and the other three employees probably knew the purpose of each box.
He nevertheless pointed out that in the event of an emergency persons
other than employees might need to deenergize a particular circuit
without delay or any need for study or experimentation.
The requirement of the standard is unconditional; the violation
was proved.
The Secretary does not retreat from his original position that
the violation was significant and substantial. Curiously, however,
the proposed penalty at $22.00 was smaller than that for any other
violation in this proceeding. While the condition of the control
boxes was clearly violative of the standard, I find the likelihood of
an accident, and hence any injury, quite remote under the facts of
record.
I must therefore hold that the Secretary failed to establish
the significant and substantial element of the charge.
The $22.00 penalty proposed is appropriate and will be assessed.
CONCLUSIONS OF LAW
Consistent with the facts found true in the narrative portions of
this decision, the following conclusions of law are made:
(1)

Southway was engaged in "mining" under the Act and its
mining operations and production affected commerce.
It was thus subject to the Secretary's enforcement
jurisdiction.

(2)

Southway violated the safety standard published at
30 C.F.R. § 56-16.5 as alleged in citation 327198 in
Docket No. WEST 80-111-M. The violation was not
significant and substantial within the meaning of
the Act. A civil penalty of $24.00 is appropriate.

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(3)

Southway violated the safety standard published at
30 C.F.R. § 56.12-8 as alleged in citation 326265
in Docket No. WEST 81-295-M.
The violation was
"significant and substantial" within the meaning
of the Act. A civil penalty of $40.00 is appropriate for the violation.

(4)

Southway violated the safety standard published at
30 C.F.R. ~ 56.14-1 as alleged in citations 326266 and
573521 in Docket No. WEST 81-295-M.
The violations
were ·not "significant and substantial" within the
meantng of the Act. A civil penalty of $24.00 is
appropriate for each violation.

(5)

Southway violated the safety standard published at
30 C.F.R. § 56.9-87 as alleged in citations 573520 and
573522 in Docket No. WEST 81-295-M.
The violations
were not "significant and substantial" within the
meaning of the Act.
A civil penalty of $36.00 is
appropriate for each violation.

(6)

Southway violated the safety standard published at
30 C.F.R. § 56.12-18 as alleged in citation 573523 in
Docket No. WEST 81-295-M. The violation was not
"significant and substantial" within the meaning of
the Act. A civil penalty of $22.00 is appropriate
for the violation.
ORDER

Accordingly, all citations, as modified herein, are ORDERED
affirmed, and the respondent Southway shall pay to the Secretary
of Labor civil penalties totalling $206.00 within 30 days of the
date of this order.

John A. Carlson
Administrative Law Judge
Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building,
1961 Stout Street, Denver, Colorado 80294 (Certified Mail)

J. o. Lewis, Esq., 703 3rd Street, P.O. Box 1033
Alamosa, Colorado 81101 (Certified Mail)

/ot

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