DECEMBER 1983
Commission Decisions
12-07-83
12-08-83
12-12-83

Sewell Coal Company
Rosalie Edwards v. Aaron Mining, Inc.
MSHA/Milton Bailey v. Arkansas Carbona

WEVA 79-31
·WEST 80-441-DH
CENT 81-13-D

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KENT 83-116
KENT 83-216
SE
82-55-D
SE
83-42-M
CENT 83-61-M
CENT 83-9
LAKE 83-32
PENN 83-5
NORT 71-96
PENN 83-234-D
PENN 82-306
PENN 83-221
PENN 83-171-R
WEST 82-113-D
VA
82-62-D
LAKE 80-216
PENN 83-141-D
WEVA 82-363
WEVA 83-237
PENN 83-89
SE
84-7-M
WEST 83-90-DM
KENT 84-15-D
WEST 80-79
PENN 82-218
HOPE 79-323-P

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Administrative Law Judge Decisions
12-07-83
12-07-83
12-07-83
12-07-83
12-12-83
12-12-83
12-12-83
12-12-83
12-12-83
12-13-83
12-14-83
12-14-83
12-15-83·
12-15-83
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12-21-83
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12-23-83
12-27-83
12-28-83
12-28-83

Cynthia Coal Co., Inc.
Webster County Coal Corp.
Ray Ward v. Volunteer Mining Corp.
Brown Brothers Sand Company
Independent Gravel Company
Turner Brothers, Inc.
Earth Coal Company, Inc.
Rushton Mining Company
Glen Munsey v. Smitty Baker Coal Co.
lThiWA v. Bethlehem Mines Corp.
U.S. Steel Mining Co., Inc.
U.S. Steel Mining Co., Inc.
Vesta Mining Company
Albert J. Dicaro v. U.S. Fuel Company
Billy K. Deel v. D.O.W. Coal Co.
Southwestern Illinois Coal Corp.
MSHA/M.Hogan & R.Ventura v .. Emerald Mines
Kitt Energy Corporation
Westmoreland Coal Company
U.S. Steel Mining Co., Inc.
Vulcan Materials Co. SE Division
MSHA/Robt.Roland v. Oil Shale Constructors
J.D. Mosley v. D.F.J. Coal Co., Inc.
Kaiser Steel Corporation
United States Steel Mining Co.
Monterey Coal Company

COMMISSION DECISIONS

DECEMBER 1983
The following cases were Directed for Review during the month of December:
Secretary of Labor, MSHA v. U.S. Steel Mining Company, Docket No. PENN 83-63
(Judge Broderick, October 25, 1983)
Secretary of Labor, MSHA v. Turner Brothers, Inc., Docket No. CENT 83-12
(Judge Moore, Nove~ber 22, 1983)
There were no cases in which review was Denied during the month of December.

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

December 7, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINI~TRATION (MSHA)
Docket No. WEVA 79-31

v.

SEWELL COAL COMPANY
DECISION
This case requires us to examine further the relationship between
modification and enforcement proceedings under the Federal Mine Safety and
Health ·Act of 1977, 30 U.S.C. § 801 et seq. (1976 & Supp. V. 1981). We have
previously addressed the propriety oY-raising the issue of diminution of
safety for the first time as a defense in an enforcement proceeding.
Penn Allegh Coal Co., 3 FMSHRC 1392 (June 1981). In this case, which is
before us a second time, we must examine the effect in an enforcement
proceeding of findings concerning diminution of safety made by the Secretary
of Labor in a modification proceeding. For the reasons that follow, we hold
that under the circumstances of this case the findings in the modification
proceeding are binding in the enforcement proceeding.
On January 15, 1976, Sewell Coal Company was issued a notice of violation under the 1969 Coal Act, 30 U.S.C. § 801 et seq. (1976)(amended 1977),
by a representative of the Secretary of the Interior. The notice of violation charged Sewell with operating a Galis 300 roof bolter without a canopy
in violation of 30 C.F.R. § 75.1710-1. Prosecution of the case was continued
by the Secretary of Labor after the Mine Act was enacted. The parties agreed
that under the terms of the standard a canopy was required. The day before
the notice of violation was issued, however, Sewell had filed a petition for
a modification of the canopy standard with respect to the roof bolter. 1/
Sewell asserted in its petition that installation of a canopy would diminish
the safety of its miners.

1/

Sewell filed its modification petition under section 30l(c) of the 1969
Coal Act. 30 u.s.c. § 86l(c)(l976)(amended 1977). This provision was replaced
by section lOl(c) of the 1977 Mine Act, 30 u.s.c. § 8ll(c) (Supp. V 1981),
which states in part:
Upon petition by the operator or the representative of
miners the Secretary may modify the application of any mandatory
(footnote continued)

83-12-3

2026

Prior to a decision on the merits in the modification case, the
Secretary of Labor instituted this proceeding seeking a civil penalty
for the noticed violation. Subsequently, in the modification proceeding,
the Administrator for Coal Mine Safety and Health at the Department of
Labor's Mine Safety and Health Administration ("MSHA") waived compliance
with the standard at minimum mining heights of 48 inches or less in the
working section. Sewell Coal Co., No. M76-131 (April 27, 1979). Thereafter,
prior to hearing in the enforcement proceeding, the parties agreed to settle
the case and the Secretary of Labor moved the Commission's administrative law
judge to approve the settlement. The judge denied the settlement motion on
the basis that there was no violation because the standard was "null, void and
unenforceable." Sewell Coal Co., 1 FMSHRC 1379 (September 1979)(ALJ).
We granted the Secretary's petition for review, reversed the
judge's finding that the standard was invalid, and remanded the case.
Sewell Coal Co., 3 FMSHRC 1402 (June 1981). We noted that, although a
modification decision had been issued, the judge had provided "no clear
discussion of the interrelationship between the factual matters at issue
in [the] enforcement proceeding and those at issue in the modification
case." 3 FMSHRC at 1414-15. Moreover, the judge's decision had not
discussed the legal effect, if any, of the granted modification on the
pending enforcement proceeding. We therefore remanded the matter to
afford the parties an opportunity to present arguments concerning the
effect of the modification on the civil penalty case. 3 FMSHRC at 1415.

On remand, the parties again agreed to settle the matter and moved
for the judge's approval. The judge issued an extensive order to show
cause why the motion should not be denied and the matter dismissed.
Sewell Coal Co., 3 FMSHRC 2578 (November 198l)(ALJ). The judge stated
that it was more probable than not that when Sewell was issued the
notice of violation it could not have installed a canopy on the roof
bolter without diminishing safety. The judge expressed his tentative
conclusion that an affirmative defense of diminution of safety was
therefore available to Sewell, and ordered the parties to "present
arguments addressing the issue of the availability of the defense of
diminution of safety." 3 FMSHRC at 2590.
footnote 1 cont'd.
safety standard to a coal or other mine if the Secretary
determines that an alternative method of achieving the
results of such standard exists which will at all times
guarantee no less than the same measure of protection
afforded the miners of such mine by such standard, or
that the application of such standard to such mine Will
result in a diminution of safety to the miners in such
a mine. [Emphasis added].
Section lOl(c) preserves the same bases for granting a variance that were
contained in section 30l(c) of the 1969 Coal Act. Under the modification
provisions of the Mine Act, the decision to grant or withhold a variance
is made by the Secretary of Labor. The MSHA regulations implementing
section lOl(c) provide for an initial decision by an Administrator of MSHA,
with a right of appeal ultimately to the Assistant Secretary of Labor for
Mine Safety and Health. 30 C.F.R. §§ 44.13-44.33. Sewell's modification
petition was continued before the MSHA Administrator for Coal Mine Safety
and Health.

2027

The Secretary responded that the judge had improperly raised the
defense of diminution of safety sua sponte and, alternatively, that the
defense could not be established with respect to the roof bolter. The
Secretary asserted that in the modification proceeding the Administrator
had not waived compliance with the safety standard at the mining height
specifically at issue in the enforcement proceeding. That height, the
Secretary asserted (and the parties subsequently agreed), was 50 inches.
The Secretary argued that the judge could not, in effect, overrule the
Administrator's decision. Sewell responded that for the reasons stated
by the judge, the settlement should be denied and the matt~r dismissed.
The judge again rejected the settlement. He held that he had
properly raised the issue of diminution of safety, and concluded that
the defense had been established. In response to the Secretary's assertion that he was attempting to overrule the Administrator's finding
as to whether compliance diminished safety, the judge asserted: "[E]vidence in this record which was not before the Administrator established
that, independent of the Administrator's decision, sufficient practical
technology did not exist on the date of the alleged violation to warrant
imposition of an obligation to install canopies." 3 FMSHRC at 2579
(footnote omitted). Accordingly, the judge dismissed the case.
3 FMSHRC at 2580. We then granted the Secretary's petition for
discretionary review.
We first consider whether an operator may raise a diminution of safety
defense in an enforcement proceeding where it has already received a modification decision with respect to the same condition at issue in the enforcement case. The phrase "diminution of safety" in section lOl(c) of the Mine
Act (n. 1, supra) serves as one of the following two bases for a determination by the Secretary that an operator may depart from otherwise mandated
compliance with a standard: (1) if an alternative method of achieving the
results of the standard exists with no loss in the measure of protection
afforded to the miners by the standard; or (2) if application of the standard to the mine will diminish the safety of the miners.
The reasons for providing for such departures in these circumstances
are obvious. As to the first, modification provides a degree of operating
flexibility while accomplishing the same level of miner protection. As to
the second, Congress found "an urgent need to provide more effective means
and measures for improving the working conditions and practices in the
nation's •.. mines in order to prevent death and serious physical harm."
30 U.S.C. § 80l(c). The key means for accomplishing this legislative goal
was establishing a basic level of safety through statutory interim mandatory
safety standards and requiring the Secretary to raise that level through the
promulgation of improved standards. 30 U.S.C. § 80l(g)(l). vfuere, due to a
mine's particular circumstances, compliance with a mandatory standard would
have an effect opposite to that intended -- that is, where adherence to a
standard would reduce miner safety -- logic dictates and Congress provided
the modification procedures.

2028

As noted above, the decision as to whether compliance with a standard
diminishes safety rests statutorily with the Secretary and his designee, in
this case, ~he Administrator. Penn Allegh, 3 FMSHRC at 1397-98. We adhere
to our previous holding that an operator is foreclosed from bypassing this
statutory modification procedure and unilaterally determining to forego
compliance with a mandatory standard. Id. Cf. General Electric Co. v.
Secretary of Labor, 576 F.2d 558, 561 (3d Cir. 1978). 2/ The present
case, however, concerns an operator that filed a modification petition
prior to being cited and received a final modification decision from the
Secretary prior to the administrative law judge's hearing in the enforcement proceeding. ~· Florence Mining Co., 5 FMSHRC 189 (February 1983),
pet. for review filed, No. 83-3134, 3d Cir., March 15, 1983. We conclude
that where, as here, an operator has applied for and received a modification on the grounds of diminution of safety, recognition of a narrow
diminution of safety defense in a subsequently filed enforcement action
is necessary to effectuate the purposes of the Mine Act and, properly
applied, is compatible with its statutory scheme.
Consequently, we hold that an operator may argue diminution of safety
as a defense to the Secretary's allegation of a violation and request for
imposition of a p~nalty under the following circumstances: (1) the operator
petitioned for the modification of a standard and was subsequently cited for
violating the standard; (2) the Secretary granted the modification but nonetheless continued the enforcement proceedings; and (3) the material
circumstances encompassing the modification and the enforcement proceedings
are identical. Therefore, where the operator's petition for modification
has been granted by the Secretary, introduction of the modification decision
and an unrebutted showing that the underlying conditions at issue in the
enforcement proceeding are identical with those upon which the modification
decision is based will establish a complete defense. If the defense is
established, we will not find a violation or assess a penalty. For us to
do so would be at odds with the Act's goal of assuring an improved level of
safety because, under these circumstances, we would be penalizing the
operator for having avoided a hazard to miners.
2/
We realize that emergency situations may arise where the gravity of
circumstances and presence of danger may require an immediate response by
the operator or its employees, necessitating a departure from the terms of
a mandatory standard without first resorting to the Act's modification
procedures. In such conditions, an exception to the Act's modification and
liability provisions may be necessary in order to further the Act's primary
goal, the protection of miners. Penn Allegh did not present such a situation,
nor does this case. Rather, these cases involve only the operator's ability
to conduct safely routine mining operations on a continuing and regular basis.
Therefore, we reserve for a case appropriately raising such an issue detailed
consideration of any emergency exception to the general rules on modification
and liab Hi ty.

2029

The Act's modification procedures must be accorded respect (Penn
Allegh, 3 FMSHRC at 1397-98), and the diminution of safety defense is
therefore a narrow one. Accordingly, we hold that the findings of the
Administrator in the modification proceeding are conclusive with respect
to the question of diminution of safety in the enforcement proceeding.
If the modification was denied, the operator should exhaust its administrative and judicial remedies concerning the denial. Also, if the
modification was denied but the circumstances have changed and the operator
believes compliance will diminish safety, it should again seek a modification
from the Secretary rather than ask the Commission in an enforcement proceeding
to vacate a citation. Similarly, if the Secretary granted a modification
and subsequently ci.ted the operator, he may refute a proffered diminution
of safety by showing that the cited conditions are different from those
encompassed by the modification decision.
In this case, we will consider Sewell's diminution of safety defense
because Sewell instituted a proceeding to modify the standard prior to
being cited for the violation and received a final decision in that
proceeding granting the petition for heights at or less than 48 inches. 3/
Thus, we turn to the question of whether Sewell's defense should be upheld.
We first reject the Secretary's assertion that the issue of diminution
of safety was waiyed because it was not pleaded initially by Sewell. We
remanded this matter for the express purpose of consideration of "the legal
effect of the grant of a modification petition [upon] a pending enforcement
proceeding." Sewell's modification petition to which we referred was based
upon an assertion of diminution of safety. Sewell Coal Co., 3 FMSHRC at 1415.
The question of whether a failure to plead an affirmative defense constitutes
a waiver must be decided on a case-by-case basis. A crucial consideration
is whether the opposing party has been deprived of notice of the issue and
thus has been hindered in its ability to prepare for and to participate in
trial. We detect no lack of fair notice here. Not only did we put the
Secretary on notice, but the judge also, in his order to show cause, set
forth fully his views on the subject and gave the Secretary sixteen days
to "present arguments addressing •.• the availability of the defense of
diminution of safety in this case." Sewell Coal Co., 3 FMSHRC at 2586-90.
We also reject the Secretary's assertion that the judge improperly
raised the issue of diminution of safety sua sponte. In previous cases we
have found that our judges, when reviewing a settlement, may examine the
fundamental question of whether there is in fact a violation. Co-op Hining
Co., 2 FMSHRC 3475, 3475-76 (December 1980); Olga Coal Co., 2 FMSHRC 2669,
2770 (October 1980). The Mine Act requires us to oversee penalty settlements
as a means of encouraging compliance. 30 U.S.C. § 820(k). Paying a penalty
where there has been no violation does not promote that goal. Co-op Mining
Co., 2 FMSHRC at 3476. Here the judge properly raised the question to
determine whether the violation could stand. The thrust of our inquiry
therefore is whether he correctly found it could not.
3/
This case does not present the situation where an enforcement proceeding has been heard before the petition for modification has been
finally resolved, and we leave for another day the question of the
recognition of a diminution of safety defense under such circumstances.

2030

In his modification decision, the MSHA Administrator found that in the
2 West section of Sewell's mine there would be inadequate clearance to permit
safe use of a canopy on the Galis 300 roof bolter except where the mining
height exceeded 48 inches. Thus, the Administrator waived compliance with th~
standard at or under mining heights of 48 inches. Despite the fact that the
violation was cited at a mining height of 50 inches and the modification of
the standard would appear to be inapplicable, the judge found that compliance
at even 50 inches would diminish safety.
The judge, as we have noted, referred to "evidence in [the] record, which
was not before the Administrator." Sewell Coal Co., 3 FMSHRC at 2579. This
evidence appears to be the Secretary's representation in his first motion to
approve settlement that "in some instances the use of canopies on the Galis
drills had caused injuries to employees" and that when the violation was cited
technology to abate it was in the experimental stage. 3 FMSHRC at 2579 n.l. 4/
The judge also relied on the fact that the original notice of violation, which
referred to a mining height of 55 inches, was subsequently amended to show a
minimum mining height on the section of 50 inches. Id. Finally, the judge
noted his own "accumulated expertise." 3 FMSHRC at 2587-88.
We find no evidence in this record that leads us to conclude that the
Administrator's finding with respect to diminution of safety should not
apply. The Administrator's decision and the contested citation concern
the same mine, the same section in that mine, and the same equipment.
The Secretary and Sewell agree that the mining height was 50 inches. 5/
The facts upon which the Administrator based his findings are set forth
in his decision: the mined height of the section, the condition of the
roof and floor, and the clearance between the frame of the roof bolting
machine and the bottom of the roof supports. Sewell Coal Co., No. M76-131
(April 27, 1979), at 5. As we have indicated, if Sewell believes that
these conditions have changed so that compliance at heights above 48 inches
diminishes safety, Sewell should petition the Secretary for modification.
Finally, to the extent the judge relied on the statement in the first
settlement motion that when the notice was issued "technology was in. the
experimental stage," we note that the Secretary's second motion on behalf
of the parties expands upon this assertion and maintains that canopies were

!!_/
In the second settlement motion, the Secretary stated that "canopies
were available from the manufacturer of the Galis 300 roof bolter at the
time [the violation was cited], but many operators were dissatisfied
with this design and were seeking other alternatives or modifications to
the design to improve its capabilities." Request for Settlement Approval,
August 20, 1981, p. 1.
5/
The original citation stated the height on the section averaged
55 inches. The citation was subsequently modified by the inspector to
state that the minimum mining height on the section was 50 inches.
Sewell does not contest the accuracy of this modification. In its
brief, Sewell states that the inspector modified the original citation
to "show that the actual mining height was actually 50 inches."

-2031

in fact available from the manufacturer at the time of the violation.
Sewell raised the feasibility issue in the modification proceeding, and
the Administrator disposed of it by waiving compliance at mining heights
at or below 48 inches.
In light of the foregoing, we cannot affirm the judge's conclusion that
the defense of diminution of safety bars this proceeding. We therefore reverse
the judge's dismissal of this matter and his denial of the motion to approve
settl~ment. 6/
Ordinarily, we would remand to the judge for further consideration of the
settlement motion. However, because the contested notice of violation was
issued over seven years ago, and in view of the fact that the case has been
before the judge twice and is now before us for a second time, we deem it time
to end the controversy • .£!_. Eastover Mining Co., 4 FMSHRC 1207, 1214 (July
1982). A penalty has been proposed for the violation. We have reviewed the
record in light of the statutory penalty criteria (30 u.s.c. § 820(i)), and
find the proposed penalty appropriate in light of all the circumstances.
Accordingly, the parties' second motion for approval of the settlement,
agreeing to the proposed $25.00 penalty, is granted.

~~~

6/
This result corresponds with that reached y the judge concerning the
other violation that was originally at issue i this case. The Secretary
also sought a penalty for a violation of 30 C.F.R. § 75.1710-l(a) with
respect to a shuttle car, which was operating without a canopy at a mining
height of 43 inches. As in the case of the roof bolter, the operator had
petitioned for a modification with respect to the shuttle car prior to being
cited for the violation. In the modification decision, the Administrator
concluded that installation of a canopy on the shuttle car in mining heights
of 48 inches or below would diminish safety. Sewell Coal Co., M76-131
(April 27, 1979), at 14. The judge held that, based upon these facts and
the Administrator's conclusion, the defense of diminution of safety was
established. 3 FMSHRC at 2579. The Secretary did not seek review of this
portion of the decision.

2032

Commissioner Lawson concurring:
Although I am in most respects in agreement with my colleagues,
certainly as to the result reached, and substantially as to the.
reasoning underlying that result, I do not subscribe to their suggestion
that undefined "emergency" situations may arise in which an operator is
to be permitted to ignore mandatory standards. (Slip op., p. 4 n.2).
Although--perhaps--dicta, the danger inherent in encouraging claims of
emergency "exception(s)" to the clear mandate of the statute, including
section lOl(c) thereof, neither assures an "improved level of safety"
(slip op., p. 4) nor, without strict adherence to the requirements
necessary to establish the narrow defense of diminution of safety,
" ••• guarantee[s] no less than the same measure of protection afforded
the miners ••• by such standard •••• " 30 U.S.C. § 8ll(c).

A. E. Lawson,~mmissioner

2033'

Distribution
Timothy W. Gresham, Esq.
Fletcher A. Cooke, Es~.
Sewell Coal Company
P.O. Box 4000
Lebanon, Virginia 24266
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Joseph Kennedy
Federal Mine Safety & Health Review CQmmission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

2'(l84

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

December 8, 1983
ROSALIE EDWARDS

v.

Docket No. WEST 80-441-DM

AARON MINING, INC.
DECISION
This discrimination case arises under section 105(c)(3) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. section 801 et
seq. (1976 & Supp. V 1981). At issue is whether the failure to provide
more suitable toilet facilities at the mine site, which failure led to
the miner's resignation, constituted retaliatory action in response to
repeated requests and.complaints by the miner concerning existing
facilities. The administrative law judge concluded that the operator
had constructively discharged the miner in violation of the Mine Act.
Rosalie Edwards v. Aaron Mining, Inc., 3 FMSHRC 2630 (November 1981)
(ALJ). On review, the operator challenges the judge's finding of discrimination. For the reasons that follow, we reverse.
The facts are largely undisputed. The complaining miner, Rosalie
Edwards, worked at Aaron Hining, Inc., as an assayer of gold samples
from January 21, 1980 through about March 15, 1980. At the time that
she accepted employment with Aaron there were no indoor or permanent
toilet facilities on the mine site. Edwards had not inquired about such
facilities when she was hired, but during her tenure she requested
toilet facilities in every daily safety report she submitted, as well as
in conversations with Aaron supervisory personnel.
The only toilet facility on the mine site was an outhouse located
about three-quarters of a mile from the lab in which Edwards worked.
(Aaron had attempted to drill for water for permanent facilities, but
its repeated efforts in this regard had been unsuccessful.) In order to
reach the outhouse an employee of Aaron had to travel a single-lane road
on which visibility was poor. The employee then had to climb under a
barbed-wired fence and walk about a half a block down a hill to reach
the outhouse. Edwards described the sanitary conditions in the outhouse
as appalling and used the facility only once. In response to her complaints, Edwards testified that Aaron stated that it would install a
suitable restroom soon. The lack of water in the area, however,
presented obvious problems.

2035

83-12-4

After working at the mine for four weeks Edwards claimed to have
developed a bladder infection, although no medical substantiation of
this claim was provided. This apparently was linked to her determination not to use the outhouse on the mine site, but instead to wait from
6:30 a.m. to 4:00 p.m. to use a toilet. She was out of work for a week
claiming this was due to the asserted infection. When she ret·urned, she
began to drive to her home and back once during each work day (a 20-mile
and 70-minute round trip) to use the bathroom there. Aaron knew of the
trips, did not object to her going, did not dock her pay for the time lost
and, on two occasions, gave her gasoline for her car. After making this
round trip for several weeks, Edwards told Aaron supervisory personnel that
it was "very inconvenient" to go home daily.
Edwards' last working day was Friday, March 15, 1980. On either
March 16 or 17, 1980, Edwards resigned. She did so by going to the home
of Aaron's general manager, where she complained once more about the
lack of permanent or indoor toilets. She also gave him a letter stating
that she was willing to return when Aaron had a water supply for permanent
toilet facilities, and if Aaron increased her salary. The general manager
offered to meet her salary demand, but Edwards refused to stay. ];./

On April 7, 1980, Edwards wrote to the Department of Labor's Hine
Safety and Health Administration (MSHA) alleging discrimination under
the Hine Act because of Aaron's failure to provide suitable toilet
facilities. The Secretary of Labor investigated her complaint, found
no violation of the Act, and declined to proceed on her behalf. On
August 21, 1980, pursuant to section 105(c)(3) of the Mine Act, Edwards
filed a complaint of discrimination with this independent Commission.
30 U.S.C. § 815(c)(3).
After the hearing, the Commission's administrative law judge concluded
that Edwards' complaints about the lack of required sanitary facilities were
protected activity, and that Edwards was constructively discharged by the
operator while engaging in that activity. He based his conclusion of
constructive discharge on a finding that Edwards' only reasonable alternative
to working under unsafe and unhealthful conditions was to quit. In his
view, her resignation under these facts was equivalent to being discharged.
3 FMSHRC at 2633. We granted the operator's petition for discretionary
review of the judge's decision.
Under the Mine Act, a complaining miner establishes a prima facie
case of prohibited discrimination by proving that he or she engaged in
protected activity and that the adverse action complained of was motivated
in any part by that activity. William A. Haro v. 11agma Copper Co., 4
FMSHRC 1935, 1936-37 (November 1982); Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (October 1980), rev'd
on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1/
Sometime in ~farch 1980, Edwards filed a claim for unemployment
compensation with the State of Nevada. Aaron evidently claimed there
was a toilet facility (the outhouse) in Edwards' work area. Although
the State originally denied Edwards' claim, it awarded her benefits on
appeal. The appeals referee found that Edwards left work voluntarily
but with good cause, because Aaron failed to provide toilet facilities
as required by federal regulation.

2036

1211 (3d Cir. 1981); and Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may
rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no way motivated by protected
activity. Haro, 4 FMSHRC at 1937; Robinette, 3 FMSHRC at 818, n. 20.
We first consider whether Edwards engaged in protected activity.
The undisputed evidence shows that Edwards complained repeatedly, both
orally and in writing, about what she reasonably believed were unhealthful conditions. The operator concedes that "restroom facilities
at Aaron Mining were less than adequate." Therefore, we affirm the
judge's conclusion that Edwards' complaints were protected and conclude
that she established the first element of a prima facie case of discrimination.
We further conclude, however, that Edwards failed to establish the
second element of a prima facie case, i.e., she did not show that there
was adverse action by the operator motivated in any part by her safety
complaints. Aaron did not take any retaliatory action. The operator
did not fire, demote, transfer, or harass her. Even if Aaron's failure
to provide the requested toilet faci1ities is viewed as an adverse
action, we find no evidence that this failure was motivated in any way
by Edwards' protected complaints. As we noted earlier, there were no
permanent toilets when Edwards was hired. According to the substantial
and uncontroverted evidence of record, Aaron unsuccessfully tried to
drill for water for permanent facilities and to obtain portable facilities.
Further, Aaron accommodated Edwards by permitting her to leave the mine
site daily for extended periods to travel to her house and, on two
occasions, replaced gasoline consumed on those trips. There is no
indication that Aaron tried to force Edwards to quit. To the contrary,
the operator tried to persuade her to remain by offering to meet her
demand for a salary increase. In our view, the record does not establish
that Aaron's failure to remedy the condition complained of by Edwards
was motivated in any part by Edwards' protected activity. Thus, under
Mine Act discrimination analysis, the judge's finding of a violation
cannot be upheld. J:./
Application of the principles of "constructive discharge" does not
change the result. For the reasons just stated we find no evidence that
Aaron created or maintained the existing toilet facilities because of
the exercise by Edwards of any rights protected by the Mine Act. No proof
of an impermissible motive having been shown, a constructive discharge in
violation of the Act is not established. Cf. NI,RB v. Haberman Constr. Co.
641 F.2d 351, 358 (5th Cir. 198l)(en bane)-.- Accord, Cartwright Hardware v.
NLRB, 600 F.2d 268, 270-71 (10th Cir. 1979); J.P. Stevens and Co. v. NLRB,
461 F.2d 490, 494 (4th Cir. 1972); Montgomery Ward v. NLRB, 377 F.2d 452,
458-459 (6th Cir. 1967); ~ BNA 2 The Developing Labor-T:aw 210-11 (2d ed.
1983). Thus, we hold that Aaron's failure to provide toilet facilities,
and Edwards' resulting quit, do not constitute discrimination in
violation of section 105(c).
2/
It is important to note that the issue in this case is not whether
Aaron violated any mandatory standard by its failure to provide adequate
toilet facilities. Rather, the question we address is whether that failure
constituted discrimination under section 105(d) of the Mine Act.

2037

We note that Edwards was not without a statutory remedy in the
situation she faced. Section 103(g)(l) of the Mine Act affords a miner
the right to obtain an immediate inspection by the Secretary of Labor's
Mine Safety and Health Administration when the miner has reasonable
grounds to believe that a violation of the Mine Act or of a mandatory
health or safety standard exists. 30 u.s.c. § 813(g)(l)._ The record in
this case suggests reasonable grounds for Edwards to believe that a
violation of 30 C.F.R. § 56.20-8, a mandatory health standard, existed. 3/
Thus, through the procedure available under section 103(g)(l), Edwards
could have obtained an MSHA inspection of Aaron's toilet facilities.
Had the Secretary's representative found those facilities to be in
violation, he could have utilized the full array of available statutory
enforcement powers, including the issuance of citations and withdrawals
orders and the propos.ed assessment of penalties. Here, Edwards did not
set this statutory scheme in motion, but rather took the personal r~course
of resigning her job. !±_/
Accordingly, we reverse the judge's finding of discrimination,
vacate his award of back pay, interest, and incidental ·expenses, and
vacate his assessment of penalty.

Richard V.
-_:.·

A. E. Lawson, Commissioner

1_/

30 C.F.R. § 56.20-8 provides:
Mandatory. Toilet facilities shall be provided at
locations that are compatible with the mine operations
and that are readily accessible to mine personnel. The
facilities shall be kept clean and sanitary. Separate
toilet facilities shall be provided for each sex where
toilet rooms will be occupied by no more than one person
at a time and can be locked from the inside.
4/
Edwards testified that at the time of her 'resignation, she was not
aware of the relevant mandatory standard, 30 C.F.R. § 56.20-8. However,
there is no indication that she was unaware of MSHA's responsibility for
inspecting mines. Indeed, she was sufficiently aware of MSHA's responsibil~ties to contact that agency about the alleged discrimination two weeks
after her resignation.

2038

Commissioner Jestrab, specially concurring:
I concur in the result reached in the decision of my esteemed
colleagues reversing the order of the Administrative Law Judge. In my
opinion, however, the holding here does not change the Commission's rule
on work refusal. Pratt v. River Hurricane Coal Company, 5 FMSHRC 1529,
1533 (September 29, 1983) and cases cit
therein •

.r

_,.'_.

/ -~

,.

,

/Je::.;···<·'

11· .·"-/ .in~
.. / ·'/ ;: '\.:)

.I_//,

2039

I

:fi '

Commissioner Nelson, concurring:
I agree with the majority's analysis of this case and I concur
in its holding that Rosalie Edwards was not discharged, or in any way
discriminated against, in violation of section lOS(c) of the Mine Act.
30 U.S.C. §815(c). Nevertheless, I believe that under the facts of
this case the majority opinion may be read by some as arriving at an
overly harsh result~· In my view, such a reading would be incorrect.
Certainly the factual recitation elicits considerable sympathy for
Rosalie Edwards; in any event, the Commission must decide cases on
the bases of the law and the facts -- not on the basis of sympathy or
empathy. Were it otherwise, the result in this case with good reason
might be different. Thus, despite the absence of adequate toilet
facilities at the mine (prior to and during the tenure of Rosalie Edwards),
a case of unlawful discrimination was not established here and under the
statute the operator must prevail.

~~
L. Clair Nelson

2040

Distribution
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Cheryl A.Skigin, Esq.
Woodburn, Wedge, Blakey and Jeppson
Sixteenth Floor
First Interstate Bank Bldg.
One East First Street
Reno, Nevada 89505
Rosalie Edwards
Starr Route
Beowawe, Nevada

89821

Administrative Law Judge John Morris
Federal Mine Safety & Health Review CoIIllllission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

2041

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

December 12, 1983

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

Docket No. CENT 81-13-D

of MILTON BAILEY

v.
ARKANSAS-CARBONA COMPANY
and
MICHAEL WALKER
DECISION
This discrimination case presents four issues: whether the Commission's
administrative law judge abused his discretion in severing the Secretary of
Labor's request for a civil penalty from the complaint of discrimination;
whether the judge erred in awarding 6% interest on the back pay award;
whether he erred in tolling the back pay award on the date the Secretary
filed a complaint on Bailey's behalf; and whether he erred in refusing to
award Bailey tuition and certain miscellaneous expenses.
For the reasons that follow, we hold that the judge did not abuse his
discretion in this case when he severed the request for a civil penalty from
the discrimination complaint, but we also announce our intention to amend
Commission Procedural Rule 42, 29 C.F.R. § 2700.42, to end the need for such
severance in future cases. We adopt as the Commission's interest rate formula
for back pay awards the interest formula used by the National Labor Relations
Board--that is, interest set at the "adjusted prime rate" announced semiannually by the Internal Revenue Service for the underpayment and overpayment of taxes. We hold that the judge erred in assessing 6% interest on the
back pay award and remand for recalculation of the award pursuant to the
computation rules announced in this decision. We reverse the judge's order
tolling back pay on the date of the Secretary's complaint on behalf of Bailey.
We continue the award until the date Bailey informed the Secretary he did not
wish reinstatement, and additionally remand for determination of the date when
that notification occurred. Finally, we affirm the judge's holding that
Bailey was not entitled to payment of college tuition and related expenses.

2042

83-12-6

I.

Factual and procedural background

We briefly summarize the facts, which are undisputed, as background
for our discussion of this case. Arkansas-Carbona Company, a joint venture,
operated a small surface anthracite coal mine in Dardanelle, Arkansas at
the relevant time. Milton Bailey was employed by Arkansas-Carbona from
May 13, 1980, until his discharge on June 27, 1980. Bailey was the company's
safety director and he earned $1,000 per month. Michael Walker was the
president of one of the firms comprising the Arkansas-Carbona joint venture,
and after June 13, 1980, took over control of mine operations at the mine
site. On June 27, 1980, Bailey complained to Walker that the mine's first
aid kit, which had been moved from the main office to a screened porch,
should remain in the office to prevent its exposure to dust. Walker contended the kit was in a dustproof container. An argument ensued which
resulted in Bailey's discharge.
On October 20, 1980, the Secretary of Labor filed a discrimination complaint before this independent Commission on behalf of Bailey against
Arkansas-Carbona and Michael Walker. 1/ His complaint alleged that Bailey was
unlawfully discharged for exercising rights protected by section lOS(c)(l) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1976 & Supp. V 1981). The relief sought included back pay with-g% interest,
and reinstatement on the same shift with the same or equivalent duties at a
rate of pay "presently proper" for the position. The Secretary's complaint
also requested "an order assessing a civil penalty of not more than $10,000
against [the operator] for [the] violation of section lOS(c) of the Act."
30 U.S.C. § 815(c)(Supp. V 1981). On January 22, 1981, the Secretary filed
a motion to amend his discrimination complaint. The motion stated in part:
"Subsequent to his filing of the complaint the Secretary was informed by
complainant Bailey that he did not wish to be reinstated by respondents and
that in lieu of reinstatement he would accept tuition for one year of
college plus an allowance for expenses."
The Commission's administrative law judge first held that Bailey's
complaint concerning the first aid kit on the day of his discharge was
protected activity and that Bailey's discharge was motivated in part by
that protected activity. Thus, the judge held that a prima facie case of
discrimination, that is, adverse action motivated in part by protected
activity, was proved. 3 FMSHRC 2313, 2318-19 (October 198l)(ALJ). The
judge then examined each non-discriminatory ground the operator presented
as the cause of Bailey's termination and concluded, "Neither singularly
nor in combination do Respondents' contentions establish that Respondents
would have discharged Complainant for the reasons given." 3 FMSHRC at 2319.
Therefore, the judge determined that Arkansas-Carbona's discharge of Bailey
violated section lOS(c)(l) of the Mine Act. 30 U.S.C. § 815(c)(l).
The judge awarded Bailey back pay with 6% interest from the date
of discharge until October 19, 1980, one day before the Secretary's
complaint was filed. 3 FMSHRC at 2323. Because the complaint on behalf
of Bailey was amended January 22, 1981, to request one year's college
tuition and rela.ted expenses in lieu of reinstatement, the judge applied
1/

We refer to the respondents collectively as "the operator."

2043

Rule 15(c), Federal Rules of Civil Procedure, and concluded that the
amendment related back to October 20, 1980, the date of the Secretary's
complaint. l:_/ Therefore, the judge concluded that Bailey did not request
reinstatement from that date and that, accordingly, the obligation for
back pay ceased on that date. 3 FMSHRC at 2321. The judge also declined
to order the payment of one year's college tuition and expenses because
Bailey "failed to establish any entitlement to an award of 1 year of
college tuition." 3 FMSHRC at 2322. The judge also ordered expunging
of all references to "this matter" from Bailey's employment record.
In addition, the judge severed MSHA's proposed assessment of a
civil penalty from this proceeding, and he ordered MSHA to proceed under
Commission Procedural Rule 25, 29 C.F.R. § 2700.25. 3/ At the outset of
the administrative hearing, the judge explained the reason for the severance:
"I will sever the civil penalty proceeding because there has not been the
required administrative processing of the proposal through the notification
to the respondents of the amount of the proposed penalty or the opportunity
to discuss this matter with the District Manager's office." Tr. 4.
II.

Severance of the civil penalty from the proceedings
involving the complaint of discrimination

We first consider the question of how civil.penalties for violations of
section 105(c) should be proposed and assessed in cases where the Secretary
files a complaint on behalf of a miner, and then whether the judge erred in
severing the penalty proceeding.
Civil penalties are assessed under the Mine Act to induce compliance
with the Act and its standards. See, for example, S. Rep. No. 181, 95th
Cong., 1st Sess. 40-41 (1977) (''S. Rep."), reprinted in Subcommittee on
Labor, Senate Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at
628-29 (1978) ("Legis. Hist."). Penalties are mandatory for violations of

l:_/

l/

Rule 15(c), Fed. R. Civ. P., provides in part:
Relation Back of Amendments. Whenever the claim or
defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading.
Commission Procedural Rule 25 provides:
The Secretary, by certified mail, shall notify the operator
or any other person against whom a penalty is proposed of:
(a) the violation alleged; (b) the amount of the penalty proposed; and (c) that such person shall have 30 days to notify
the Secretary that he wishes to contest the proposed penalty.
If within 30 days from the receipt of the Secretary's notification or proposed assessment of penalty, the operator or other
person fails to notify the Secretary that he intends to contest the proposed penalty, the Secretary's proposed penalty
shall be deemed to be a final order of the Commission and
shall not be subject to review by the Commission or a court.

2044

the Act and its standards. The Act separates the procedures for civil
penalty assessment between the Secretary and the Commission. The
Secretary proposes the penalty he wishes assessed for a violation and
the Commission assesses a penalty of an appropriate amount. See
Sellersburg Stone Co., 5 FMSHRC 287, 290-92 (March 1983), pet:-for
review filed, No. 83-1630, 7th Cir., April 8, 1983; Tazco, Inc.,
3 FMSHRC 1895, 1896-98 (August 1981). !±_/
This bifurcation of functions is set forth in sections 105 and 110 of
the Act. 30 U.S.C. §§ 815 & 820 (Supp. V 1981). Section 105(a) requires the
Secretary to take certain steps to notify an operator of the civil penalty
"proposed to be assessed under section llO(a) for the violation cited."
30 u.s.c. § 815(a). Section llO(a) provides, in turn, for penalty assessments
of not more than $10,000 per violation. 30 U.S.C. § 820(a). Section llO(i)
provides, "The Commission shall have authority to assess all civil penalties
provided in this Act." 30 U.S.C. § 820(i). After listing the six statutory
penalty criteria, section llO(i) concludes, "In proposing civil penalties under
this Act, the Secretary may rely upon a summary review of the information
available to him and shall not be required to make findings of fact concerning
the above [six] factors." ]./
Section 105(a) states that the civil penalty propo$al procedures set forth
for the Secretary therein are only invoked "[i]f, after an inspection or
investigation, the Secretary issues a citation or order under section 104
[30 U.S.C. § 814]." 30 U.S.C. § 815(a). 6/ The Secretary must notify an
operator "within a reasonable time" of the penalty he proposes. If the
operator chooses to contest a proposed penalty, the Secretary must
"immediately advise" the Commission so that a hearing can be scheduled.
30 U.S.C. § 815(d). The statutory procedures for prompt notification

!!_/
When penalties proposed by the Secretary are not contested, however,
a proposed civil penalty is not actually assessed but is deemed to be a
final order of the Commission, as if the Commission had assessed it.
30 U.S.C. § 815(a). See also Commission Procedural Rule 25 (n. 3 supra).
5/
The words "shall be assessed a civil penalty by the Secretary" in
section llO(a) must be read in pari materia with sections 105(a) and
llO(i). Although section llO(a) uses the language "shall be assessed a
civil penalty by the Secretary," the express language of sections 105(a)
and llO(i) makes clear that this Secretarial function is one of proposal,
not disposition. The legislative history bears out this reading of
section llO(a). Conf. Rep. No. 461, 95th Cong., 1st Sess. 58 (1977)
reprinted in Legis. Hist. 1336; S. Rep. 43, 45-46, reprinted in Legis.
Hist. 631, 633-34. Thus, the reference to "shall be assessed11in
section llO(a) means "shall be subject to a proposed assessment of a
civil penalty by the Secretary." See Sellersburg Stone Co., supra.
!?_/
Section 104, 30 U.S.C. § 814 (Supp. V 1981), contains the procedures
through which an operator's violations of the Act or its standards are
enforced. Section 104(a) makes clear that citations shall be issued for
violations of "this Act, or any mandatory health or safety standard, rule,
order, or regulation promulgated pursuant to this Act." 30 U.S.C. § 814(a).

2045

and contest of a proposed civil penalty assessment re.fleet Congress' belief
that penalty assessment had lagged under the 1969 Coal Act, 30 U.S.C. § 801
et seq. (1976)(amended 1977), and its consequent desire to speed the process.
ThuS:-the thrust of the penalty procedures under the Mine Act is to reach a
final order of the Commission assessing a civil penalty for violations
without delay.
Cases involving violations of the discrimination provisions, however,
are not initiated with the issuance of a citation or order under section
104 but, rather, with filing of special complaints before the Commission
under sections 105(cj(2) or 105(c)(3). 30 U.S.C. §§ 815(c)(2) & (3).
These two statutory subsections provide for complaint by the Secretary
if he believes discrimination has occurred, or complaint by the miner
if the Secretary declines to prosecute.
It is clear that a penalty is to be assessed for discrimination in
violation of section 105(c)(l). The last sentence of section 105(c)(3)
states, "Violations by any person of paragraph (1) shall be subject to
the provisions of sections 108 [30 U.S.C. § 818] and section llO(a).''
30 U.S.C. § 815(c)(3). 7/ Section llO(a) requires the Secretary to
propose penalties to be-assessed for violations of the Act. Neither
section 105(c) nor section llO(a), however, states how and when the
Secretary is to propose a penalty for a violation of section 105(c)(l).
The Secretary's regulations in 30 C.F.R. Part 100 set forth "criteria
and procedures for the proposed assessment of civil penalties under section
105 and 110 of the [Mine Act]." 30 C.F.R. § 100.1. 8/ Section 100.5 lists
a number of "categories [of violations which] will be individually reviewed
to determine whether a special assessment is appropriate" including
"discrimination violations under section 105(c) of the Act." J_/
In spite of this reference to discrimination cases, none of the Part 100
regulations specifies how the Secretary shall propose a civil penalty when he
files the complaint of discrimination, and it does not appear that the
Secretary contemplated that his administrative review procedures for proposed penalties should apply to a determination that an operator had violated
7/
Section 108 permits injunctive relief 4nd is not relevant to the
Issues presented in this case.
~/
In this analysis, for convenience, we will refer to the current
Part 100 regulations, which became effective May 21, 1982. They are
substantially similar to those in effect when the judge's decision
issued. The changes made do not affect our analysis, and we would
reach the same conclusions under either version.
J_/
A review of the discrimination cases adjudicated by this Commission indicates that the Secretary has used the section 100.5 special
assessment procedure in discrimination cases only when the miner has
proceeded on his own behalf pursuant to section 105(c)(3) of the Act
and prevailed, or when, as here, the judge has severed the penalty
proceedings from the discrimination case. In other discrimination
cases, the Secretary has requested a penalty in his complaint of
discrimination.

2040

section 105(c)(l). Similarly, the Commission's procedural rules do not
specifically address penalty procedures for alleged violations of section
105(c)(l). Our rules more generally require the Secretary to notify the
operator of "the violation alleged" and the penalty proposed and to afford
the operator 30 days in which to notify the Secretary if it wishes to contest
the proposal. Commission Procedural Rule 25 (n. 3 supra). See also
Commission Procedural Rules 26 through 28, 29 C.F.R. §§ 2700.26 through 28. 10/
The Secretary argues that the penalty proposal procedures in section
105(a) of the Hine Act and Commission Procedural Rule 25 apply only to
citations and orders issued under section 104. Violations of the discrimination section, the Secretary urges, are subject only to the provisions expressly mentioned in section 105(c) itself. The Secretary relies
on the last sentence in section 105(c)(3), which states that violations
of section 105(c)(l) "shall be subject to the provisions of sections 108
[injunctions] and llO(a)." 30 U.S.C. § 815(c)(3). He argues that because
section llO(a) contains no reference to section 104 or to section 105(a),
the assessment proposal procedures required therein need not be applied
in penalty proposals under section 105(c)(3).
Thus, from the language of sections 105(c)(3) and llO(a), the Secretary
argues that it is not necessary to have separate penalty proceedings in
discrimination c?ses. Rather, he contends that penalties should be assessed
by Commission judges when liability is determined--that is, when an operator
is found in a discrimination proceeding to have violated section 105. The
Secretary asserts he is "always" prepared to provide the information on the
penalty criteria in section llO(i), and that an administrative law judge will
never be more competent to decide the penalty question than at the close of
a discrimination case in which the judge has determined the existence of a
violation.
10/ Commission Procedural Rules 40 through 44 (29 C.F.R. §§ 2700.40
through 44) deal with discrimination complaints, but do not resolve the
issue of how a penalty is to be proposed. Rule 42 requires that a
discrimination complaint include, among other things, "a statement of
the relief requested." The rule tracks section 105(c)(2) of the Act,
which requires the Secretary in his complaint to "propose an order
granting appropriate relief." 30 U.S.C. § 815(c)(2). The Secretary
contends that a civil penalty is part of the "relief" he may request
in the complaint, and that inclusion of such a request in a complaint
conforms to Rule 42 and section 105(c)(2). We conclude, however, that
"relief" as used in section 105(c) and Rule 42 indicates only those
remedies available to make the discriminatee whole. Section 105(c)(3)
states in part, "The Commission shall ••• issue an order •.. granting •••
relief ••• including ••• rehiring or reinstatement ••• with backpay and
interest or such remedy as may be appropriate." 30 U.S.C. § 815(c)(3).
The legislative history also supports this reading of "relief." See
Secretary on behalf of Dunmire and Estle v. Northern Coal Company-,~
4 FMSHRC 126, 142 (February 1982), citing to S. Rep. 37, reprinted in
Legis. Hist. 625. A civil penalty, on the other hand, is not intended
to compensate the victim but rather to deter the operator's future
violations.

2047

We agree with the Secretary that it is desirable to adjudicate in one
proceeding both the merits of the discrimination claim and the civil penalty.
The Mine Act emphasizes, "Proceedings under [section 105(c)] shall be
expedited by the Secretary and by the Commission." 30 U.S.C. § 815(c)(3).
Because the last sentence of section 105(c)(3) references penalty proposals
under section llO(a), we conclude that penalty proposals for section 105(c)
violations are to be expedited as well. The express statutory intent to
expedite these proceedings is furthered by having the Secretary avoid dual
proceedings and incorporate his penalty proposal in his discrimination
complaint.
We also conclude, however, that it is incumbent upon the Secretary in a
combined proceeding to set forth in the discrimination complaint the precise
amount of the proposed penalty with appropriate allegations concerning the
statutory criteria supporting the proposed amount. Experience makes us
somewhat skeptical about the Secretary's assertion that he has "always" been
prepared to present evidence on penalty criteria. Formal penalty allegations
in the complaint better afford operators adequate notice of penalty issues in
discrimination cases. Because the Secretary may "rely on a summary review of
the information available to him" in proposing penalties (30 U.S.C. § 820(i)),
the penalty allegations in the discrimination complaint may be stated in summary
fashion.
In this ca.se, the Secretary's naked request in his complaint for a penalty
of "up to $10, 000" is scarcely a penalty proposal at all. Henceforth, we shall
require in these cases that the Secretary propose in his complaint a penalty in
a specific dollar amount supported by information on the section llO(i) criteria
for assessing a penalty. This new rule shall apply to cases pending with our
judges as of the date of this decision or filed with the Commission as of, or
after, the date of this decision. Leave to amend complaints to add the penalty
allegations shall be freely granted. Thus, the operator will be informed not
only of the dollar amount proposed, but also the basis therefor. The parties
will then be better prepared to litigate at the hearing any disputes concerning
the penalty sought.
Because the Secretary did not provide in his complaint sufficient notice
to the operator of the amount of the penalty sought and the basis therefor, we
cannot say that the judge erred in severing the penalty proposal in order to
provide such notice to the operator. Nor do we see the utility of a remand
to allow the Secretary to amend his complaint. The judge's approach to the
Secretary's inadequate proposal is consistent with the Act's notice requirements and with the position we now enunciate. Accordingly, we affirm the
judge's severance of the penalty proposal from the underlying discrimination
complaint. QI
11/ We are presently in the process of adopting an interim amended Rule 42,
which will reflect our resolution of the penalty issue. We also note that
this case does not raise, and we do not reach, the question of how penalties
should be proposed when the Secretary does not file a discrimination complaint
on the miner's behalf and the miner files his own complaint under section
105(c) (3).

2048

III. The rate and computation of interest on back pay awards
The next question in this case is whether the judge erred in assessing
6% interest on the back pay award. The remedial goal of section 105(c) is to
"restore the [victim of illegal discrimination] to the situation he would have
occupied but for the discrimination." Secretary on behalf of Dunmire and
Estle v. Northern Coal Co., 4 FMSHRC at 142. As we have previously observed,
"'Unless compelling reasons point to the contrary, the full measure of relief
should be grartted to [an improperly] discharged employee."' Secretary on
behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982),
quoting Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962).
Included in that "full measure of relief" is interest on an award of
back pay. Section 105(c)(3) of the Mine Act expressly includes interest
in the relief that can be awarded to discriminatees, while leaving it up
to the discretion of the Commission to determine the exact contours of
such an award. 12/ The Senate Committee that drafted the section which
became section lOS(c) stated in its report:
It is the Committee's intention that the Secretary
propose, and the Commission require, all relief
that is necessary to make the complaining party
whole and to remove the deleterious effects of the
discriminatory conduct including, but not limited
to reinstatement with full seniority rights, backpay with interest, and recompense for any special
damages sustained as a result of the discrimination.
S. Rep. 37, reprinted in Legis. Hist. 625 (emphasis added).
Our judges have awarded interest at rates varying from 6% per
annum to 12.5% per annum and have used a variety of methods to compute
interest awards. At least two of our judges have adopted the NLRB's rate
of interest on back pay awards. See, e.g., Bradley v. Belva Coal Co.,
3 FMSHRC 921, 925 (April 198l)(ALJ) aff'd in part, remanded in part on
other grounds, 4 F11SHRC 982 (June 1982); Secretary on behalf of Smith et al.
v. Stafford Construction Co., 3 FMSHRC 2177, 2199 (September 198l)(ALJ) aff'd
in part, rev'd in part on other grounds, 5 FMSHRC 618 (April 1983), pet. for
review filed, No. 83-1566, D.C. Cir., May 27, 1983. The experience of our

1l:_/

Section 105(c)(3) provides in part:
The Commission ••• shall issue an order, ••• if the
charges [of discrimination] are sustained, granting
such relief as it deems appropriate, including, but
not limited to, an order requiring the rehiring or
reinstatement of the miner to his former position
with back pay and interest or such remedy as may
be appropriate.

30 U.S.C. § 815(c)(3).

2049

judges in this area has greatly aided our evaluation of different methods
of assessing interest. It has also led us to the conclusion that it is time
to adopt a uniform method of computing interest so that all discriminatees
will be treated uniformly when they are awarded back pay under the Mine Act.
The miner has not only lost money when he or she has not been paid in
violation of section 105(c), but has also lost the use of the money. As the
NLRB has stated with regard to interest on back pay awards under the National
Labor Relations Act, "The purpose of interest is to compensate the discriminatee
for the loss of the use of his or her money." Florida Steel Corp., 231 NLRB
651, 651 (1977). Thus, in selecting an interest rate, we have considered the
potential cost to the miner both as a "creditor" of the operator, and as a
potential borrower from a lending institution under real economic conditions.
We have therefore sought a rate of interest that compensates the discriminatee
fully for the loss of the use of money. In addition, we have attempted to
select a rate of interest flexible enough to reflect economic and market
realities, but not so complex in application as to place an undue burden on
the parties and our judges when attempting to implement it.
For all of these reasons we adopt the interest rate formula used by the
NLRB: interest set at the "adjusted prime rate" announced semi-annually by the
Internal Revenue Service under 26 U.S. C.A.· § 6621 (West Supp. 1983) as the
interest it applies on underpayments or overpayments of tax. The "adjusted
prime rate" of the IRS is the average predominant prime rate quoted by
commercial banks to larger businesses as determined by the Federal Reserve
Board and rounded to the nearest full percent. 26 U.S.C.A. § 6621 (West
Supp. 1983). Under the Tax Equity and Fiscal Responsibility Act of 1982,
Pub. L. 97-248, § 345, 96 Stat. 636 (to be codified at 26 U.S.C. § 6621),
the adjusted prime rate must be established semi-annually: by October 15
based on the prime rates from April 1 to September 30, and by April 15
based on the prime rates from October 1 to March 31. The rate announced
in October becomes effective the following January 1, and the rate
announced in April becomes effective the following July 1.
We agree with the NLRB that the IRS adjusted prime rate comes closest
to compensating the miner fully for loss of the use of money. On the one
hand, if the miner had the money, he or she could invest it or save it and
probably earn less than the prime rate. On the other hand, if the miner has
to borrow money because he or she is deprived of a paycheck, the rate of
interest most likely would be higher than the prime rate. In these
circumstances, we concur with the NLRB that the IRS formula "achieves
a rough balance between that aspect of remedial interest which attempts to
compensate the discriminatee or charging party as a creditor and that which
attempts to compensate for his loss as a borrower." Olympic Hedical Corp.,
250 NLRB 146, 147 (1980). This "rough balance" in our view achieves the goal
of making the miner whole for the loss of the use of money.
The IRS adjusted prime rate is also attractive for pragmatic reasons.
It is a per annum rate adjusted semi-annually, based on the prime rates for
the six months preceding its calculation. In this way, the rate reflects
economic conditions with reasonable accuracy. Its announcement well in
advance of the effective date offers notice to all parties and our judges.
Cf. Olympic Medical Corp., supra.

2050

The relevant adjusted prime rates, which we adopt as the Commission's
remedial interest rates, are:
January 1, 1978 to December 31, 1979 ••• 6% per year (.0001666% per day)
January 1, 1980 to December 31, 1981. •• 12% per year (.0003333% per day)
January 1, 1982 to December 31, 1982 •.• 20% per year (.0005555% per day)
January 1, 1983 to June 30, 1983 •.••••• 16% per year (.0004444% per day)
July 1, 1983 to December 31, 1983 •.•.•• lU per year (.0003055% per day)
January 1, 1984 to June 30, 1984 ••.••.. 11% per year (.0003055% per day)
Because the IRS rates of interest are announced as annual rates, it is
necessary, as explained below, to convert them to daily rates to calculate interest on periods of less than one year. 11.I
There must also be a uniform method of computing the interest on
back pay awards under the Mine Act. We have considered a number of
possible computational approaches. We are mindful of the NLRB's extensive administrative and legal experience in this area. The NLRB's
general back pay methodology is sound and has met with judicial approval.
The labor bar is familiar with this system. We conclude that rather
than expending administrative resources in attempting to devise a new
system, we will best, and most efficiently, effectuate the remedial
goals of section 105(c) of the Hine Act by adopting the major features
of the NLRB computational system. We are satisfied that this system
will do justice to the miner, avoid unnecessary penalization of the
operator, and not prove unduly burdensome for our judges and bar to
apply.
We therefore announce the following general rules for the computation of interest on back pay.
Back pay and interest shall be computed by the "quarterly" method.
See Florida Steel Corp., 231 NLRB at 652; F.W. Woolworth Co., 90 NLRB 289
(1950), approved NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953). 1.!!._/

]]_/ Prior to the passage of the Tax Equity and Fiscal Responsibility
Act of 1982, the IRS announced the adjusted prime rate in the October
of the appropriate year to take effect the following February. For ease
of administration under the Mine Act, however, we have bounded certain
interest periods at December 31 and January 1 rather than at January 31
and February 1. (The NLRB's General Counsel has followed the same
simplifying approach. NLRB Memorandum GC 83-17, August 8, 1983.)
14/ Back pay is the amount equal to the gross pay the miner would have
earned from the operator but for the discrimination, less his actual
interim earnings. Bradley v. Belva Coal Co., 4 FMSHRC 982, 994-95 (June
1982). The first figure, the gross pay the miner would have earned, is
termed "gross back pay." The third figure, the difference resulting ·:ram
subtraction of actual interim earning from gross back pay, is "net back
pay"--the amount actually owing the discriminatee. Interest is awarded
on net back pay only.
In a discrimination case where, as here, there has been an illegal
discharge, the back pay period normally extends from the date of the
discrimination to the date a bona fide offer of reinstatement is made.
(As we conclude below, the period may also be tolled when the discriminatee waives the right to reinstatement.)

2051

Under this method (referred to as the "Woolworth formula," after the
NLRB's decision in the case of the same name, supra), computations are
made on a quarterly basis corresponding to the four quarters of the
calendar year. Separate computations of back pay are made for each of
the calendar quarters involved in the back pay period. Thus, in each
quarter, the gross back pay, the actual interim earnings, if any, and
the net back pay are determined. See n. 14.
Interest on the net back pay of each quarter is assessed at the
adjusted prime in~erest rate or rates in effect, as explained below.
Like the NLRB, we will assess only simple interest in order to avoid
the additional complexity of compounding interest. Interest on the
amount of net back pay due and owing for each quarter involved in the
back pay period accrues beginning with the-last day of that quarter
and continuing until the date of payment. See Florida Steel Corp., 231
NLRB at 652. In calculating the amount of interest on any given quarter's
net back pay, the adjusted prime interest rates may vary between the last
day of the quarter and the date of payment. If so, the respective rates
in effect for any quarter or combination of quarters must be applied for
the period in which they were operative. The interest amounts thus accrued
for each quarter's net back pay are then summed to yield the total interest
award.
For administrative convenience, we will compute interest on the basis
of a 360-day year, 90-day quarter, and 30-day month. Using these simplified
values, the amount of interest to be assessed on each quarter's net back pay
is calculated according to the following formula:
Amount of interest
The quarter's net back pay x
number of accrued days of interest (from the last
day of that quarter to the date of payment) x daily
adjusted prime rate interest factor.
The "daily adjusted:prime rate interest factor" is derived by dividing
the annual adjusted prime rate in effect by 360 days. For example, the
daily interest factor for the present adjusted prime rate of 11% is

20-52

.0003055% (.11/360). The daily interest factors are shown in the list of
adjusted prime rates above. A computational example is provided in the
accompanying note. 12_/
15/ The mechanics of the quarterly computation system may be illustrated
by the following hypothetical example, in which a miner is discriminatorily
discharged on January 1, 1983, and offered reinstatement on September 30,
1983. Payment of back pay and interest is tendered on October 15, 1983.
After subtraction of the relevant interim earnings, the net back pay of
each quarter involved in the back pay period is as follows:
First quarter (beginning January 1, 1983) $1,DOO
Second quarter (beginning April 1, 1983)
§1,000
Third quarter (beginning July 1, 1983)
$1,000
Total net back pay
$3,000
The adjusted prime interest rates in effect in 1983 are:

16% per year (.0004444% per day) from January 1, 1983, to
June 30, 1983;
11% per year (.0003055% per day) from July 1, 1983, to
December 31, 1983.
The interest award on the net back pay of each of these quarters is as follows:
(1) First Quarter:
(a) At 16% interest until end of second quarter of 1983:
$1,000 net back pay x 91 accrued days of interest
(last day of first quarter plus the entire second
quarter) x .0004444 = $40.44
Plus,
(b) At 11% interest for entire third quarter through the
date of payment:
$1,000 net back pay x 105 accrued days of interest (the
third quarter plus 15 days) x .0003055 = $32.07
(c) Total interest award on first quarter:
$40.44 + $32.07 = $72.51
(2) Second Quarter
(a) At 16% interest for the last day of the second quarter
$1,000 x 1 accrued day of interest x .0004444 = $.44
Plus,
(b) At 11% interest for the entire third quarter through dntr
of payment:
$1,000 x 105 accrued days of interest x .000.3055 = $32.07
(c) Total = $.44 + $32.07 = $32.51
(3) Third Quarter:
At 11% interest for the last day of the third quarter
through date of payment:
$1,000 x 16 accrued days of interest x .0003055 = $4.88 total
(4) Total Interest Award:

$72.51 + 32.51 + 4.88 = $109.90
This amount is added to trre total amount of back pay ($3,000), for a total
back pay award of $3,109.90.

2053

The major alternative computational approach would involve awarding
interest on the total lump sum of net back pay from the date of discrimination to the time of payment. We recognize that this method would involve
less complex calculations. We reject the lump sum method, however, because
it would penalize the operator by assuming that the entire amount of the
back pay debt was due and owing on the first day of the back pay period.
We will carefully monitor the experience of our judges and parties in
applying the computational system announced in this decision. We will
modify the system if that experience over time demonstrates the
desirability of adjustnent.
In discrimination cases, our judges should advise the parties of the
methodology for calculating back pay and interest. The parties shall submit
to the judge the req11isite back pay figures and calculations, and are urged
to make as much use of stipulation as possible. The burden of computation
of interest on back pay awards should be placed primarily on the parties to
the case, not the judge, in order to comport with the adversarial system.
We apply the foregoing principles in this proceeding because the issue
of the appropriate rate of interest in discrimination cases arising under
the Hine Act was squFtrely raised on review. As a matter of discretionary
policy in judicial adrn~~nistration, we will otherwise apply these principles
only prospec tivel v. ·,:o discrimination cases pending before our judges as of
the date of this decis:i.on or filed with the Commission as of, or after, the
date of this decision. We do not mean to intimate that any previous awards
of interest by our judges in other cases, based on different computational
methods, are infirm.
Applying our formula to the present case, we conclude that reversal
is necessary. The judge's award of 6% interest is so disparate from the
adjusted prime rates in effect from the date of Bailey's discharge on
June 27, 1980, as to raise questions concerning whether the complainant
would truly be made "whole" if the judge's award stands. Accordingly,
we hold that the judge erred in awarding 6% interest, and will remand
for recalculation of ::~w::~·r·c;-;t pursuant to the interest formula and
comput:a tional method~~ ;,:_·.1 .;:i-cced in i-.>. i.s cCcs2.

T1e judge conc=.i·tl :c ~11at :~ailey was not entitled to back pay after
October 20, 1980, tlw cL:tc; on which Bailey's complaint was filed. That
complaint requested reinstatement, but it was amended January 22, 1981.
The amended complaint sought back pay and requested the Commission to
''order respondents to pay Mr. Bailey $900.00 for one year college tuition
plus $400.00 book and maintenance expense allowance in lieu of reinstatement at respondentsr nine." The accompanying motion to amend stated:
Subsequent to his filing of the complaint the Secretary
was informed by complainant Bailey that he did not wish
to be reins~ated by respondents and that In lieu of reinstatement Le 11"u '
· cept tuitioc: for one year of college
plus an a::_.i.011;;;L: . '.Jr expenses.

The judge granted the motion to amend and, when determining the
back pay award, applied Rule 15(c), Fed. R. Civ.P., and tolled the award
on October 20~ 1980.
Rule 15(c) provides that where a claim or defense
in an amended pleading arises out of the same circumstances set forth
in the original pleading, the amendment relates back to the date of
the original pleading. Relation back has been generally permitted where
the movant seeks to enlarge the basis or extent of a demand for relief.
See, for example, Goodman v. Poland, 395 F. Supp. 660, 682-86 (D. Md.
1975)(change of theory of recovery from equity to law permitted);
Wisbey v. Amer. Community Stores Corp., 288 F. Supp. 728, 730-32 (D.
Neb. 1968)(amendment seeking additional damages in FLSA action permitted).
We do not believe ·that the restrictive application of relation back
by the judge was appropriate in this case.
Rather, in determining when back pay should terminate, we look to the
date when Bailey informed the Secretary he no longer sought reinstatement
at Arkansas-Carbona. We agree with the judge's related conclusion: "It
would be unfair and improper to require a mine operator to pay a former
employee back pay for a period of time when the employee has unequivocally
stated that he does not want to return to his former employment." 3 FMSHRC
at 2321. In a case involving similar issues, this judge compared a miner's
lack of desire to be reinstated to a rejection of an offer of reinstatement
under the National Labor Relations Act. Secretary on behalf of Ball v.
B&B Mining, 3 FMSHRC 2371, 2378 (October 198l)(ALJ). We concur with the
NLRB rule that an employer is released from his back pay obligations when
the employee rejects an appropriate offer of reinstatement, and consider
the analogy to the facts of this case appropriate. See, for example NLRB v.
Huntington Hospital, 550 F.2d 921, 924 (4th Cir. 1977); NLRB v. Winchester
Electronics, Inc., 295 F.2d 288, 292 (2d Cir. 1961); LymailSteel Co., 246
NLRB 712 (1979).
Tolling the back pay award on the date Bailey informed the Secretary
that he no longer desired reinstatement effectuates the preceding principles,
while the judge's relation back to the original complaint needlessly and
unfairly penalizes Bailey. Therefore, we reverse the judge's relation back
to the date of the original pleading. The present record does not reveal
the date Bailey informed the Secretary of his waiver of reinstatement.
Accordingly, we additionally remand for determination of that date in order
that the back pay period may be established and the necessary computations
properly made.
V.

College tuition and related expenses.

Bailey's remaining contention concerning the award is that the judge
erred in not granting him tuition and miscellaneous college expenses. The
judge held, "Complainant failed to establish any entitlement to an award of
1 year of college tuition plus $400 book and miscellaneous expense allowance."
3 FMSHRC at 2322. We affirm the judge on this point.
The Secretary argued in his brief before the judge that Bailey would
not have paid tuition and expenses, but for his accepting the position at
Arkansas-Carbona. 12_/ The judge found that, prior to his employment with
16/ The Secretary did not raise this issue on review and, although
Bailey briefly raised it in his petition for review, he did not file
a brief before us.

2055

Arkansas-Carbona, Bailey worked as a campus security guard at Arkansas Tech,
and as a fringe benefit of that campus job did not pay tuition. 3 FMSHRC
at 2315. (The judge made no finding on whether Bailey's campus job also
entitled him to college expenses.) After Bailey accepted a position at
Arkansas-Carbona, and resigned from his campus job, he paid his own tuition.
The remedial goal of section 105(c) of the Act is to return the miner
to the status quo before the illegal discrimination. Secretary on behalf
of Dunmire and Estle v. Northern Coal, 4 FMSHRC at 142. Had Bailey not been
discharged illegally, he would have been working at Arkansas-Carbona and
would have had to pay tuition for his classes. We do not see how ArkansasCarbona can be held responsible for a fringe benefit Bailey did not receive
from that company. Although at times we may need to seek alternative
remedies to make a miner whole for illegal discrimination (for example,
where reinstatement is impossible or impractical), such considerations are
not present in this case.
Accordingly, we affirm the judge's refusal to award tuition and
college expenses.
VI.

Conclusion

For the foregoing reasons, we affirm the judge's severing of the
request for a civil penalty from the merits of the discrimination case,
and hold that in future cases the Secretary must propose in his discrimination complaints a specific penalty supported by allegations
relevant to the s~atutory penalty criteria. As we have stated above,
we are accordingly in the process of amending our Procedural Rule 42 to
provide for unified proceedings in the future.
We reverse the judge's assessment of 6% interest on back pay, and remand
to the Chief Administrative Law Judge for assignment to a judge for calculation of back pay and interest according to the principles and methodology
announced in this decision. };!_/ We reverse the judge's tolling of the back

};!_/

The judge who decided this case has left the Commission.

2056

pay award on the date the complaint was filed, and additionally remand for
determination of the date 1).e_j_lev -1_nfo-::-rc.,"rl the <:'.'.,,,>., ·-_-, -- : c Ho longer wished
reins tatemen c. Fr·:clL_" . _~ -··- .._
--~ey 's request
for college tuition and related expenses.

J

Distribution
James R. Pate, Esq.
Sanford, Pate & Marschewski
P.O. Box 1004
Russellville, Arkansas 72801
R. David Lewis, Esq.
1109 Kavanaugh
Little Rock, Arkansas

72200

Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

2057

!

1 /,

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

CIVIL PENALTY PROCEEDING

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

Docket No. ~ENT 83-116
A.C. No. 15-12725-03502

v.

No. 8 Mine

CYNTHIA COAL CO., INC.,
Respondent
DECISION
Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,
U:S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Byron w. Terry, Safety Director, Cynthia Coal
Company, Beaver Dam, Kentucky, for Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a),
seeking a civil penalty assessment in the amount of $20
for an alleged violation of mandatory health standard 30
CFR 71.208(a) as noted in a Section 104(a) Citation No. 9949426,
served on the respondent by an MSHA inspector on August 12, 1982.
The respondent contested the citation, and the case was
scheduled for a hearing in Evansville, Indiana, along with
several other cases during the term-November 1-3, 1983.
However, respondent's counsel decided not to pursue the matter
and agreed to pay the full amount of the proposed civil ~enalty
assessment.
In this regard, petitioner's counsel presented
a proposed settlement on the record for my consideration.
Discussion
In support of the proposed settlement disposition of
this case petitioner's counsel agreed that the respondent no

2059

longer wished to pursue the matter and he confirmed that
the respondent's mine has been abandoned and closed and is
no longer mining coal. Counsel also stated that the operator
was a small operator, that the $20 penalty is reasonable in
the circumstances, that the negligence level for the citation
ranged from "little to none", and that the respondent's
history of prior citations consisted of two prior citations.
Counsel was of the opinion that the proposed settlement
constitut~d a reasonable resolution of the case.
After careful consideration and review of the pleadings
and the arguments presented by the petitioner's counsel in
support of the proposed settlement of this case I find
that it is reasonable and in the public interest, and
pursuant to Commission Rule 30, 29 CFR 2700.30 it is APPROVED.
ORDER
Respondent IS ORDERED to pay a civil penalty in the
amount of $20 within thirty (30) days of the date of this
decision, and upon receipt of payment by MSHA this matter is
dismissed.

.0.1

1fb1,A4i

) I . ·J-

4, /~~~

~orge /(.-Koutras

V·

Administrative Law Judge
Distribution:
Darryl A. Stewart, Esq., U.S. Department of Labor, Office
of the Solicitor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Byron W. Terry, Safety Director, Cynthia Coal Co., Inc.,
P.O. Box 431, Beaver Dam, KY 42320 (Certified Mail)

/slk

2060

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

22041

DEC

CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 83-216
A.C. No. 15-00672-03508

v.

Retiki Mine
Docket No. KENT 83-259
A.C. No. 15-02132-03513

WEBSTER COUNTY COAL CORP.,
Respondent

Dotiki Mine
DECISIONS
Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Nick Carter, Esq., MAPCO, Inc., Lexington, Kentucky,
for Respondent.

Before:

Judge Koutras
Statement of the Cases

These proceedings concern proposals for assessment of
civil penalties filed by the petitioner against the respondent
pursuant to Section llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 CFR 820(a), seeking civil penalty assessments
for two alleged violations of mandatory health standard 30 CFR
70.lOO(a).
The respondent contested the citations, and pursuant
to notice the cases were docketed for hearings in Evansville,
Indiana during the term November 1-3, 1983. These cases were
scheduled for trial on November 3, 1983. However, prior to the
commencement of the hearings, respondent's counsel advised
me that the respondent had decided not to litigate the cases
further and counsel sought leave to dispose of the cases by
tendering full payment of MSHA's proposed civil penalties.
Under the circumstances, the parties were afforded an
opportunity to present their proposals on the record, and

2061

petitioner's counsel presented arguments in support of a
proposed settlement disposition of the cases pursuant to
Cornraission Rule 30, 29 CFR 2700.30. The citations, initial
assessments, and the proposed settlement amounts are as
follows:
Docket KENT 83-216
Citation No.

Date

30 CFR Section

Assessment

Settlement

9949525

1/24/83

70.lOO{a)

$227

$227

Docket KENT 83-259
Citation No.

Date

30 CFR Section

Assessment

Settlement

2075782

3/3/83

70.lOO(a)

$213

$213

Discussion
The parties stipulated to the following:
1. At all times pertinent to these proceedings,
Webster County Coal Corporation, was owner and
operator of the Dotiki Mine in Webster County,
Kentucky, and the Retiki Mine in Henderson
County, Kentucky, and the mines are subject to
the Federal Mine Safety and Health Act of 1977.
2. The presiding Administrative Law Judge has
jurisdiction to he.ar and decide these cases.
3. The inspectors who issued the citations which
are the subject of these proceedings are designated
authorized representatives of the Secretary of
Labor.
4. True and correct copies of the citations
were served upon the operator.
5. The copies of the citations (Exhibits G-1
through G-2) are authentic copies and may be
admitted as such, but not for the truth or
relevance of the statements made therein.
6. Payment of the penalties assessed in these
proceedings will have no effect on the operator's
ability to continue in business.
7. The Dotiki Mine produces approximately
1,500,000 tons per year and the Retiki Mine
produces approximately 690,000 tons per year.

2062

8.
The operator demonstrated good faith in
abating the conditions alleged .in the citations
which are the subject of these proceedings,
as is credited in the proposed assessment.
In support of the proposed settlement disposition of
these cases, petitioner's counsel asserted that after consideration
of the statutory criteria found in Section llO(i) of the Act,
as well as his consultation with the inspectors who issued
the citations, he was of the view that the respondent's
payment in full of the proposed penalty settlements is a
reasonable disposition of these dockets and that the oroposed
settlements are in the public interest. Counsel also presented
a ~omputer print-out summarizing the respondent's history of
prior citations.
After careful consideration and review of the pleadings
filed in these cases, including the arguments submitted on
the record in support of the proposed settlement dispositions
by the parties, I find that they are reasonable and in the oublic
interest, and pursuant to Commission Rule 30, 29 CFR 2700.30,
they are APPROVED.
ORDER
Respondent IS ORDERED to pay civil penalties in the
settlement amounts shown above within thirty (30) days of
the date of these decisions, and upon receipt of payment by
MSHA, these proceedings are dismissed.

~At:~

Administrative Law Judge

Distribution:
Darryl A. Stewart, Esq., U.S. Department of Labor, Office of
the Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Nick Carter, Esq., .MAPCO, Inc., 181 N. Mill St., #9, Lexington,
KY 40507 (Certified Mail)

/slk

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

22041

DEG., 1983

DISCRIMINATION PROCEEDING

RAY WARD,
Complainant

Docket No. SE 82-55-D

v.
BARB CD 81-38
VOLUNTEER MINING CORPORATION,
Respondent
FINAL ORDER
Before:

Judge Fauver

My decision on liability was entered on July 29, 1983,
holding that Respondent discriminated against Complainant
in violation of section 105(c) (1) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801, et~, and
granting leave to the parties to propose an order of relief.
On December 1, 1983, the parties filed a settlement
agreement on relief. This agreement is APPROVED as a just
and appropriate settlement consistent with the decision on
liability and the purposes of the Act.
WHEREFORE IT IS ORDERED that this proceeding is CONCLUDED.

w~?-~v~
William Fauver
Administrative Law Judge
Distribution:
Dorothy B. Stulberg, Esq., Mostoller and Stulberg, 100 Tulsa
Road at Illinois Avenue, Oak Ridge, Tennessee 37830 (Certified
Mail)
Joseph H. Van Hook, Esq., Drawer M., Oliver Springs, Tennessee
37840 .(Certified Mail)

kg

2064

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

DEC 't 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. SE 83-42-M
A.C. No. 09-00265-05501
Junction City Mine

BROWN BROTHERS SAND COMPANY,
Respondent
DECISION
Appearances:

Ken S. Welsch, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for
Petitioner;
Carl W. Brown and Steve Brown, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
This case involves a single citation charging Respondent
with a violation of 30 C.F.R. § 50.30(a) for failing to file
quarterly man-hour reports for the third and fourth quarters of
1982. Pursuant to notice, the case was heard in Talbotton,
Georgia, on November 15, 1983.
Ronald Grabner, a federal mine
safety and health inspector testified for Petitioner. No
witnesses were called by Respondent.
The parties made oral
arguments on the record but each waived its right to file written
posthearing briefs. Based on the entire record, and considering
the contentions of the parties, I make the following decision.
FINDINGS OF FACT
l.· At all times pertinent to this proceeding, Respondent
was the owner and operator of a sand dredging operation in
Talbot County, Georgia, known as the Junction City Mine. ·
2.
Respondent is a small family owned business.
It employed
approximately nine employees at the time of the violation alleged
herein.

20S5

3. The operation of Respondent's business affects interstate
commerce.
4.
During the 2 years immediately preceding the violation
alleged herein, Respondent had no paid violations of the Act or
regulations promulgated thereunder.
5.
Respondent did not file the quarterly man-hour reports
for the third and fourth quarters of 1982, prior to March 15,
1983, when the citation involved herein was issued.
6.
The citation was terminated on the day it was issued
when the reports in question were filled out and submitted.
7.
Respondent has not filed the quarterly man-hour reports
for any of the first three quarters of 1983.
CONCLUSIONS OF LAW
1. Respondent is subject to the provisions of the Federal
Mine Safety and. Health Act of 1977 and the regulations promulgated
thereunder in the operation of the Junction City Mine.
2.
Respondent's failure to submit quarterly employment
reports for the third and fourth quarters of 1982 is a violation
of 30 C.F.R. § 50.30.
DISCUSSION
Respondent does not deny that he failed to submit the reports
in question.
He apparently challenges the necessity and value of
the reports.
Clearly, however, the reports are legitimate requirements of the Secretary who is charged with the responsibility of
promoting health and safety in the nation's mines. Preparing
statistical analyses of injury rates and injury causes is an
integral part of that responsibility.
The fact that Respondent
thinks the reports are onerous or unnecessary is no defense to a
petition for a penalty for a violation.
3.
The violation was in itself not serious, since the
failure or refusal to file the required reports is not likely to
result in injury or occupational disease.
4.

The violation was deliberate.

DISCUSSION
A citation was issued on June 26, 1980, to the Respondent
charging it .with failure to file the quarterly man-hour report

2066

for the first quarter of 1980.
Respondent contested the violation
and a hearing was held before Judge Koutras on April 13, 1981.
Judge Koutras issued a decision affirming the citation and assessing a civil penalty on May 1, 1981.
3 FMSHRC 1203.
In his
decision he said:
Therefore, I believe that respondent had prior
notice of the requirements of the regulation in
question, and while his subsequent failure to file
borders on.gross negligence, I have considered the
fact that respondent may have been confused as to
what was required and find that the citation in
question here resulted from respondent's failure to
exercise a reasonable care amounting to ordinary
negligence.
In the case before me, there is no question that Respondent was
aware of the filing requirements and its failure to observe them.
As I stated above, Respondent apparently believes the requirement
to be onerous and unnecessary.
In fact the reporting requirement
is simple to observe, and i t has a legitimate public purpose.
Carl Brown's statements on the record exhibited a contemptuous
attitude toward the requirement.
No mine operator, whether Brown
Brothers Sand Company or United States Steel Company, may decide
for itself whether it will observe the duly promulgated standards.
The penalty assessed in this case will reflect my conclusion that
the violation was deliberate.
5.
Respondent did not exhibit good faith in abating the
violation after the citation was issued.
Although the citation
was abated, it w2s done so grudgingly, and the violation has
apparently bee~ repeated since then.
The penalty assessed in
this case will reflect my conclusion that Respondent did not
exhibit good faith in complying with the regulation after the
citation was issued.
6.
Considering the criteria in section llO(i) of the Act,
I conclude that an appropriate penalty for the violation found
is $100.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED that Respondent shall within 30 days of the date
of this decision pay the sum of $100 for the violation found
herein to have occurred.

//(luu:-s
/
.../'

2067

k-d-v cltrz. el:__

James A. Broderick
Administrative Law Judge

Distribution:
Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department
of Labor, 1371 Peachtree Street, N.E., Room 339, Atlanta, GA
30309 (Certified Mail)
Mr. Carl w. Brown, Brown Brothers Sand Company, P.O. Box 32,
Howard, GA 31039 (Certified Mail)

/fb

2068

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

December 12, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 83-61-M
A.C. No. 23-00113-05501

v.
Webb City Chat Plant
INDEPENDENT GRAVEL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The parties have filed a motion to approve settlement
in the above-captioned proceeding. The original assessment
for the one violation was $54. The proposed settlement is
$27.
Citation No. 2095336 was issued for a violation of 30
C.F.R. § 56.5-1/5 because the South Mill operator was
exposed to an excessive level of respirable silica-bearing
dust. The parties advise that the gravity of the violation
is not as severe as originally was rated. The parties advise
that overexposure to silica-bearing dust for short periods
will not result in permanent disability. This may be so,
but exposure over long periods is a serious matter, and
each individual exposure adds to the total. I view this
as a violation with gravity.
I approve the recommended
settlement because the operator is small in size and has a
small history of prior violations.
In the future, the
operator should exercise care over the dust levels.
ORDER
The
the date

$27 within 30 days from

Chief Administrative Law Judge
Distribution:
Robert S. Bass, Esq., Office of the Solicitor, u. s. Department
of Labor, 911 Walnut Street, Room 2106, Kansas City, MO
64106
(Certified Mail)
Mr. Gene Hatfield, Independent Gravel Company, 223 West 3rd
Street, P. O. Box 1423, Joplin, MO 64801
(Certified Mail)
/ln

2069

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

DEC 14 1983

CIVIL PENALTY PROCEEDING
Docket No. CENT 83-9
A.C. No. 34-01317-03502

v.
TURNER BROTHERS, INC.,
Respondent

.

Docket No. CENT 83-13
A.C. No. 34-01317-03503
Heavener No. 1 Mine

DECISION
Appearances:

Allen Reid Tilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Petitioner;
Robert J. Petrick, Esq., Turner Brothers, Inc.,
Muskogee, Oklahoma, for Respondent.

Before:

Judge Melick

Hearings were held in these cases on October 27, 1983, in
Fort Smith, Arkansas. A bench decision was thereafter rendered
and essentially only the amount of penalties have been changed.
That decision, as modified herein, is now affirmed.
Waiver of Right to Presence at Hearing
As a preliminary matter, I find that Turner
Brothers, Inc., has waived its right to be present
at this hearing today and to cross examine witnesses and present evidence on its own behalf.
It is
clear that the operator received adequate notice
well in advance of hearing.
It is also clear from
the last minute telephone calls made late yesterday by the operator's representative and received
by the Solicitor and by my office after I had already departed for this hearing, that the operator
did not request and did not want a continuance of
this hearing.
Lndeed, the telephone calls to the Solicitor's Office and to my office were to the effect

2070

that the operator's representatives had more important business to attend to elsewhere and that it
would go ahead and pay whatever penalties were
imposed. This determination by the operator was
made, I find, after having been fully informed by
the Solicitor's Office that the penalties that had
been proposed initially by the Secretary could be
modified by the Administrative Law Judge and indeed could be increased as well as decreased after
hearing the evidence in the case. Accordingly, I
find that the operator has waived its right to be
present and to participate at this hearing.
The Merits
These cases are, of course, before me pursuant to Section 105Cd) of the Federal Mine Safety
and Health Act of 1977, which I will refer to hereafter as the "Act". The Secretary, in the petitions filed, is seeking civil penalties for seven
violations of regulatory standards.
The general issues before me are whether the
operator, that is, Turner Brothers, Inc., which I
will refer to hereafter as "Turner", has committed
the violations charged and, if so, the amount of
civil penalty to be assessed.
In determining the
amount of civil penalty to be assessed I must, of
course, independently consider the criteria under
Section llOCi) of the Act. This is a de novo determination and I am not bound in any way~the
proposed assessment or findings previously made by
the Secretary pursuant to his own regulations.
Section llOCi> requires consideration of the operator's history of previous violations, the appropriateness of any penalty assessed to the size of the
business of the operator charged, whether the operator was negligent, the effect of the penalty on
the operator's ability to continue in business,
the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to
achieve rapid compliance after notification of the
violation.
According to MSHA Inspector Donalee Boatright, the mine in this case had an annual coal
production of about 350,000 tons and had 51 employees. Total annual production at all of Turner's
mines-was about one million tons. The mine and
the operator are accordingly of medium size.

2071

Now, the Secretary of Labor has also submitted, and it has been admitted in evidence, a printout of prior violations. This print-out shows a
minimal history of violations and does not show
any violations of standards cited in the particular cases before me. There is no evidence that
the operator would be unable to pay the penalties
that I impose in this case or that they would affect its ability to stay in business.
It appears,
moreover, that the violations in this case were
abated in a timely fashion and in good faith.
Now, proceeding to the individual citations, I
consider first of all Docket No. CENT 83-13, Citation No. 2007396. The citation reads as follows:
"An unplanned ignition of explosives occurred at
this mine sometime in late August of 1982, and the
mine operator did not notify MSHA of the accident.
The operator did not have a report of his investigation of the accident at the mine off ice, so the exact date in August could not be determined. The
accident occurred when an unexpected electrical
storm came up and ignited 16 charged holes while the
employees were being removed from the blasting area.
No injuries occurred."
The citation charges a violation of the standard at 30 CFR Section 50.10. That standard
states as follows:
"If an accident occurs, an
operator shall immediately contact the MSHA District or Subdistrict Off ice having jurisdiction
over its mine.
If an operator cannot contact the
appropriate MSHA District or Subdistrict Off ice it
shall immediately contact the MSHA Headquarters
Office in Washington, D.C., by telephone, toll
free at (202) 783-5582."
The evidence before me is that Inspector Boatright received information from his supervisor on
December 6, 1981, concerning an explosion at the
Heavener No. 1 Mine, operated and owned by Turner.
Inspector Boatright thereupon went to the mine and
t·alked to the mine superintendent, Jim Payne. Mr.
Payne at first denied that there had been any ignition of explosives or any other accident but upon
further inquiry admitted that some time the previous August, they did have a pre-ignition of explosives caused by an electrical storm.

2072

Although Mr. Payne allegedly had made an investigation of the incident, he admittedly did not
report it to the Mine Safety and Health Administration, as required. His excuse was that he did not
think he had to report it to MSHA because there
had been no injuries.
The incident in question involved a premature
detonation by an electrical storm of a number of
charged holes.
It appears that a number of the
drilled holes, each approximately 50 feet deep and
five inches in diameter, had been fully charged,
i.e., explosives had been placed to within approximately eight feet of the surface. Each of the
charged holes had also been provided with a detonator and wires were protruding from the holes in
preparation for final wiring for detonation. At
this time an electrical storm passed through the
area setting off a number of the holes depicted in
Petitioner's Exhibit No. 2, causing explosions to
within approximately 88 feet of an individual who
was operating the high wall drill.
Indeed, there
were charged holes to within 22 feet of the driller operator, and if these holes had also detonated, he could very well have been killed.
The evidence shows that the miners in the
vicinity of the charged holes had previously withdrawn from the site upon the approach of an electrical storm, but had prematurely returned after
some 35 minutes on the belief that the storm had
passed. Apparently no citation was issued for the
incident itself, but only for the failure to report it. Now the operator would no doubt contend,
as it appears from the Answer filed in the case,
that he looks upon this violation as non-serious
-- a mere failure to file some paperwork.
I look
upon the violation somewhat more seriously. Here
there was an accident of a particularly serious
nature. Without a sufficient deterrent penalty,
it would be too easy for the operator to avoid a
Mine Safety and Health Administration inspection
and investigation of such incidents and it would
j"ust be too simple for the operator to cover up
his misdeeds. Moreover, without the impetus of
MSHA, it would be too easy for an operator to fail
to take corrective action to avoid future accidents of a similar nature. This could very well
lead to future fatalities and serious injuries.
I
therefore find that there must be a stronger disincentive than'a mere $10 or $20 penalty for the

2073

intentional or negligent failure of mine operators
to notify MSHA in this regard. Under the circumstances, I believe a penalty of $175.00 is appropriate.
The second violation relating to this incident appears in Citation No. 2007397. That citatio~ charges and the evidence shows that the mine
operator did not have a report of his investigation of the unplanned explosion available for MSHA
examination. The cited standard, 30 CFR Section
50.ll(b), requires that such investigation must be
completed by the operator after each accident at
the mine and a copy must be submitted upon request
to MSHA. The standard also sets forth the specifics that must be included in any such report.
While the Mine Superintendent alleged that he had
sent such a report to the mine off ice, apparently
no such report was produced. Under the circumstances there is some question as to whether the proper report had indeed been completed. Accordingly,
I find that a penalty of $175.00 is appropriate
for the violation.
Moving now to the citations in Docket No.
CENT 83-9, Citation No. 2007386 alleges a violation of the standard at 30 CFR Section 77.208(d).
It reads as follows:
"[f]ive compressed gas cylinders Cl acetylene, and 4 oxygen) were not secured
in a safe manner in that they were laying on the
ground near the cylinder storage rack near the
mine office."
The standard cited reads as follows:
"[c]ompressed and liquid gas cylinders shall be secured
in a safe manner."
According to the undisputed testimony of Inspector Boatright, upon the initiation of his regular inspection of the Heavener Mine No. 1, on November 1, 1982, and in fact as he was leaving the
mine off ice after making his initial contact with
the superintendent, he observed five compressed
gas cylinders lying on the ground in front of the
mine off ice. The cylinders were within view of
anyone entering or leaving the off ice or parking
adjacent to the off ice. The cylinders were exposed to vehicles parking in an area where pick-up
trucks, mechanics trucks, and a lube truck regularly parked.

2074

It was not unlikely therefore for a truck to
strike one of those cylinders and to rupture the
cylinder or its valve.
Inspector Boatright pointed out that if such an event should occur, the
cylinder could act like an uncontrolled rocket.
The cylinders weighed approximately 70 to 80
pounds and could kill a person under those circumstances. Superintendent Payne explained that the
cylinders had apparently been left by the delivery
man earlier that morning, or the mechanic.
I find
that the superintendent should have seen the cylinders lying exposed on the ground right outside of
his off ice, and that he was therefore negligent in
failing to have them secured in a timely fashion.
Under the circumstances, I find that the violation
warrants a penalty of $175.00.
Citation No. 2227387 charges a violation of
the standard at 30 CFR Section 77.1605(b), and
alleges in particular that the Caterpillar rock
haulage truck No. 915, operating at Pit 001-0 was
not equipped with a parking brake in operating
condition.
The cited standard requires that mobile equipment shall be equipped with adequate brakes and
all trucks and front end loaders shall also be
equipped with parking brakes.
It is implicit in
that standard that when the equipment is equipped
with parking brakes, that the brakes must also be
in operating condition.
It is undisputed in this case from the testimony of Inspector Boatright that the cited haulage
truck did not have an operating parking brake. As
pointed out by the inspector, ordinarily these
trucks are not parked in areas where there would
be an incline but are parked on level ground.
However, there could very well be occasions where
the truck might break down and have to be stopped
and parked.
Indeed, without an adequate parking
brake, the truck could roll out of control and
strike another vehicle or pedestrians in the area,
and of course cause fatalities or serious injuries.
The superintendent stated that the brakes
were checked as a matter of routine each morning
and the equipment operator stated that he, as a
matter of practice on that morning before working

2075

at 7:00 a.m., had checked the brake and found it
to be operating.
It is noted that this violation was discovered some several hours after the start of the
shift at 7:00 a.m. that morning. While it is possible that the parking brake did become defective
during that short period of time, I do not find
the explanation to be credible. Accordingly, I
find that a penalty of $175.00 is appropriate for
this violation.
Citation No. 2007388 charges a violation of
the standard at 30 CFR Section 77.1605(d).
It
appears from that citation that the same rock haulage truck that had a non-operating parking brake
also did not have an operating audible warning
device, i.e., a front horn.
The standard cited requires that mobile equipment shall be provided with audible warning devices.
It is undisputed that this vehicle did not
have a front horn, that is, an audible warning device, just as charged in the citation. The inspector pointed out that without such an audible warning device, the haulage truck could not warn other
vehicles or pedestrians of its approach, and this
indeed could foreseeably result in fatalities or
serious injuries.
Again the equipment operator stated that when
he had checked the equipment that morning before
his shift at 7:00 a.m., all systems, presumably
including the front horn, were in functioning condition. While again it is certainly possible that
the horn as well as the parking brake could have
become defective in the few hours between the beginning of the shift and the discovery of this
defect by the inspector, I find the explanation to
be lacking in credibility. Under the circumstances, I find that a penalty of $175.00 is appropriate for this violation.
Citation No. 2007389, charges another violation of the standard at 30 CFR Section 77.1605(b).
It appears that the front end loader did not have
an operating parking brake. As pointed out by
the inspector, the hazard in this situation was
similar to that involving the haulage truck. The
machine operator in this case also~said that he
had checked the brake before the beginning of the

2076

shift at 7:00 a.m., and that it was functioning at
that time. The citation was issued at 10:20 that
morning. The explanation is not credible. Under
the circumstances, I find that a penalty of
$175.00 is appropriate for the violation.
Citation No. 2007390, charges a violation of
the standard at 30 CFR Section 48.29(a).
In particular, the citation reads that "[t]raining certificates (MSHA Form 5000-23) for 14 employees
were not available at the mine site for inspection.
The mine superintendent (Jim Payne) stated that
the 14 employees had been trained within the last
year by Frank R. Pasteur."
The standard at Section 48.29(a) requires not
only the individual miner's completion of MSHA
approved training but also requires that training
certificates for the miners who have completed the
training must be available at the mine site for
examination by MSHA, the miners, the miners' representatives, and State inspection agencies.
It turns out in this case that indeed the 14
miners for whom the certificates were not available at the mine off ice did, in fact, have the
training but that apparently the contractor, Mr.
Pasteur, had not forwarded the proper forms back
to the mine off ice.
Under the circumstances, I find that only a
nominal penalty of $20.00 is appropriate for that
particular violation.
ORDER
In accordance with the Decision in this case, Turner
Brothers, Inc., is hereby
o pay civil penalties in
the amount of ~ within
the date f this
decision.
#11 01 O
t,(~a..,-1\-me_ •.

J: "j

•

1)~;7:0,.\

3/:J..'J./~~
Gary M lick
Assistant Chi

2077

Distribution:
Allen Reid Tilson, Esq., Office of the Solicitor, U.S. Department of Labor, 555 Griffin Square Building, Suite 501,
Dallas, TX 75202 (Certified mail)
Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box
447, Muskogee, OK 74401 (Certified mail)

nw

2078

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

December 12, 1983
SECRETARY OF LABOR~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 83-32
A.C. No. 12-01890-03502
Lengacher Mine No. 1

EARTH COAL COMPANY, INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

On April 26, 1983, the operator was ordered to send an
Answer to this Commission within 30 days or show good reason
for the failure to do so. The order advised that failure to
respond would result in default. No response was received
despite receipt of the order. On June 28, 1983, an order of
default was issued ordering the operator to pay $763.
On July 27, 1983, the operator filed a request for
review of the order of default. By an order dated August 4,
1982, the Commission granted review and remanded the case to
me to ascertain and evaluate the operator's reasons for
failing to respond to the show cause order dated April 26,
1983. On August 9, 1983, the operator was ordered to
furnish information within 45 days sufficient for me to
evaluate the reason for its failure to respond to my show
cause order. No response to the August 9, 1983 order was
received despite receipt of the order. On October 13, 1983,
the operator was ordered to furnish the necessary information
within 45 days or show good reason for the failure to do so.
The operator has now responded to the order of October 13,
1983. The operator states that the cited mine is no longer
operational and the operator does not wish to pursue this
matter any further.

2079

Accordingly, the order of default is reinstated, the
operator is ORDERED to pay $763 within 30 days from the date
of this order and this case is hereby DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago,
IL 60604
(Certified Mail)
Mr. Byron W. Terry, Safety Director, Earth Coal Company,
Inc., P. o. Box 431, Beaver Dam, KY 42320
(Certified Mail)

/ln

2080

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

22041 .

DEC 121983

CIVIL PENALTY PROCEEDINGS
Docket No. PENN 83-5
A.C. No. 36-00856-03503

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

Agnes Johnson-Wilson, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner;
Joseph T. Kosek, Jr., Esq., Ebensburg, 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 seq., the "Act," for one violation of the regulatory standard at 30 CFR § 75.202. The general issue before me is
whether the Rushton Mining Company (Rushton) has violated the
cited regulatory standard and, if so, whether that violation was
"significant and substantial" as defined in the Act and as interpreted by the Commission in Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981).
If it is determined that
a violation has occurred, it will also .be necessary to determine
the appropriate penalty to be assessed. Evidentiary hearings on
these issues were held in Philipsburg, Pennsylvania.
On April 15, 1982, MSHA Inspector Donald Klemick issued a
combined withdrawal order and citation under sections 107(a) and
104(a) of the Act, respectively. The validity of the order is
not in itself at issue in this civil penalty proceeding. See
Secretary v. Wolf Creek Collieries Company, PIKE 78-70-P (March
26, 1979); Pontiki Coal Corporation v. Secretary, 1 FMSHRC 1476
(October 1979). The Order/Citation alleged as follows:

2081

Loose, unsupported and drurnmy ribs, and in
several areas, loose overhanging ribs, were present throughout the number thirteen, fourteen, fifteen, and sixteen left side rooms, and adjacent
number seventeen room being mined off the first
left north mains 013 section under the supervision
of Torn Smith, section foreman.
The ribs had
sloughed in several areas and was [sic] on the
mine floor, a heavy slate binder varying in width
was present near the roof which would fall or had
fallen when the ribs bump or roll-out, a violation
of section 75.202.
The cited standard provides in relevant part that "[l]oose
roof and overhanging or loose faces and ribs shall be taken down
or supported."
The expertise of MSHA Inspector Donald Klernick in mine safety is not disputed.
He has twelve years experience as a coal
mine inspector for MSHA, he conducts frequent underground coal
mine inspections of roof and rib conditions and he has had perio.dic training in roof and rib control.
Inspector Klernick also has
had six years experience as a coal mine owner and in that capacity performed his own roof and rib examinations on a daily basis.
According to Klernick, the determination of the soundness of roof
and ribs in a coal mine is more of an art than a science.
In
this regard, an important technique recognized in the mining industry for determining the safety of roof and ribs is known as
"sounding". A "drurnrny" sound emitted from roof or ribs upon tapping by a wooden handled or other similar implement signals a
hollowness, separation, or fracturing that may not be visible.
These are indications of potentially dangerous roof or rib conditions.
During the course of his regular inspection of the Rushton
Mine on April 15, 1982, Inspector Klernick observed that the ribs
were slabbing throughout the Number 13, 14, 15, 16, and 17 rooms
in the first left north mains, 013 section of the mine. The upper ten to eighteen inches of the rib consisted of a fractured
rock "binder" and "bony" coal which was overhanging up to twenty
inches in some places. There were about two hundred feet of ribs
with such overhangs and some were visibly cracked and loose.
Many of the ribs also sounded "drurnmy", indicating a separation,
fracture, and lack of adhesion in the ribs. More than half of
the ribs had also sloughed in the area cited. According to Klernick, some of this overhanging material can be seen in the photographic evidence (Operator's exhibits 0-1, 0-11, and 0-16).
In

2082

particular, because of the fracturing in the overhanging "binder", he thought it was highly likely that such material could
fall on the miners working in the area, resulting in serious and
possibly fatal injuries. He observed that mining equipment was
operating in the cited area continuously over three shifts. Under the circumstances, the inspector concluded that an imminent
danger of death or great bodily harm existed.
There is no dispute that ribs in the cited area were protruding from the vertical and that some were visibly fractured and
drummy sounding. Mine Superintendent Raymond Roeder accompanied
Inspector Klemick during this inspection and agreed with Klemick
that the ribs sounded drummy and that protrusions did exist in
some locations. Roeder does not, however, consider such "protrusions" to be "overhanging ribs" within the meaning of the cited
standard unless they protrude from the vertical more than six or
eight inches. Rushton's safety inspector, Robert Crain, also
agreed that some of the ribs were fractured and produced a drummy
sound. He also saw one protrusion of more than eight inches.
Within this framework of essentially undisputed evidence, it
is clear that the violation is proven as charged. Ribs in the
cited area were clearly protruding from the vertical or "overhanging" and were admittedly loose and drummy in many locations.
There was also a reasonable likelihood that the hazard of a rib
or roof fall would occur under the circumstances, resulting in
death or injuries of a serious nature. The violation was, accordingly, "significant and substantial" and of high gravity. National Gypsum, supra.
Klemick also concluded that the operator was negligent for
allowing the condition to exist. He observed that the operator
was required to perform three onshif t and three preshif t examinations each day and that Mine Superintendent Roeder and the mine
foreman, Mike Rapaski, concurred that the ribs were in fact loose
in the cited area. The cited conditions were abated after the
operator provided additional roof and rib support by adding timbers in some areas and by abandoning other areas.
The operator maintains that in spite of the described conditions, the cited area was nevertheless a safe place to work.
In
particular, it points to the evidence that Inspector Klemick was
in the- cited mine section only two days before the withdrawal
order under essentially the same conditions and Klemick not only
failed to cite the conditions but did not see fit to even mention
them.
It is not disputed that Klemick was indeed present in the
same mine section two days before, as alleged, but he claims not

2083

to have noticed the rib conditions because he was concentrating
on another violation.
I find it difficult to believe, however,
that an experienced miner and mine safety inspector would be so
oblivious to conditions he characterized as "an imminent danger"
if they were as obvious and dangerous as he alleges. Thus while
there is no doubt that overhanging rib conditions did exist with
detectable fra~tures, I do not find that the conditions were as
obvious as now alleged by MSHA. Accordingly, while I find the
operator to have been negligent in allowing the cited conditions
to exist, I do not find it to have been grossly negligent.
In determining the appropriate penalty to be assessed in
this case, I have also taken into consideration the evidence herein that the operator is medium in size and has a modest history
of prior violations. Under the circumstances, I find that a penalty of $500 is appropriate.
ORDER
r·

The Rushton Mining Company~~ hereby ordered to pay a civil
penalty of $500 within 30 days of \he date of this decision .

. .~ti

t Chie\_ Administrative Law Judge
Distribution:

LJ

Agnes Johnson-Wilson, Esq., Office of the Solicitor, U.S.
Department of Labor, 14480 Gateway Building, 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)
nsw

2084

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

GLEN MUNSEY,

DEC 121983

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. NORT 71-96
IBMA 72-21

SMITTY BAKER COAL CO, INC.,
P&P COAL COMPANY, and
RALPH BAKER,
Respondents

DECISION
Appearances:

Steven B. Jacobson, Esq., Decastro, West &
Chodorow, Inc., Los Angeles, California,
for Complainant;
J. Edward Ingram, Esq., Robertson, Williams, Ingram, Faulkner & Overbey, Knoxville, Tennessee, for Respondents Smitty
Baker Coal Company, Inc. and Ralph Baker.

Before:

Judge Melick

This proceeding is before me on remand from the United
States Court of Appeals, District of Columbia Circuit, Munsey v.
Federal Mine Safety and Health Review Commission, 701 F.2d 976
(1983), cert. denied, 52 U.S.L.W. 3235 (October 3, 1983> (No.
83-182); for a determination in accordance with the standard set
forth in National Treasury Employees' Union v. U.S. Department of
the Treasury, 656 F.2d 848 (D.C. Cir. 1981), of the amount of
costs and attorneys' fees to be awarded counsel for Complainant
Munsey for the period during which Mr. Munsey received free representation by staff counsel of his union, the United Mine Workers
of America CUMWA).
There is no need to restate here the lengthy history of this
case. In sum, the individual complainant, Glen Munsey, has been
awarded damages of $2,858.26 plus interest for lost wages as a
result of unlawful discrimination under section 110(b)(2) of the
Federal Coal Mine Health and Safety Act of 1969. In addition,
for services rendered by counsel for Mr. Munsey, Steven B. Jacobson, Esq., attorneys' fees of $26,462.50 and expenses of $335.16
have been awarded. Counsel is petitioning herein for additional
fees of $42,040.00. No hearing has been requested on this matter
and none has been held.

2085

In the amended petition filed by Mr. Jacobson, a request is
made for attorneys' fees for work done (a) by Mr. Jacobson himself, from the inception of the case until September 1976, while
Mr. Jacobson was staff counsel for the UMWA, (b) by two other
UMWA staff attorneys, Charles P. Widman and Willard P. Owens,
from the inception of the case until September 1976, and Cc) by
Mr. Jacobson Cand a paralegal in Mr. Jacobson's law firm) for
work done since the award of attorneys' fees by former Commission
Administrative Law Judge Forrest Stewart in his decision dated
September 4, 1981.
a. Attorney's fees for work performed by Mr. Jacobson while employed by UMWA. Mr. Jacobson seeks fees totalling $3,793.75 for
this representation. The recognized method of computing reasonable attorneys' fees begins by multiplying a reasonable hourly
rate by the number of hours reasonably expended. Hensley v. Eckerhart,
U.S.
, 76 L.Ed.2d 40, (1983); Copeland v.Marshall, 641 F.2d 880 (D.C. Cir. 1980). The resulting figure has
been termed the "lodestar." The lodestar fee may then be adjusted to reflect a variety of other facto~s. Copeland, supra.
Counsel for the Complainant submitted the following information with respect to the hours spent representing Mr. Munsey during the period of time he was employed as staff attorney for the
UMWA. The information was attached as Exhibit A to the affidavit
of Mr. Jacobson accompanying his current petition for attorney's
fees.
Preparation for and attendance at first 1973 D.C.
Circuit oral argument
Preparation for and attendance at second 1973 D.C.
Circuit oral argument
1973 - 36.75 hours at $50.00/hr.

= $1,837.50

Preparation of Motion to Add P&P as a Respondent
Preparation of Motion to Add Ralph & Smitty Baker
as Respondents
Preparation of Report on Remand Procedures

20.25
16.50
36. 75

2.75
2.00
3.75
8.50

1975 - 8.50 hours at $60.00/hour = $510.00
Preparation of exceptions and reply to opposing
exceptions to ALJ's decision
1976

~

22.25 hours at $65.00/hr.

2086

= $1,446.25

22.25

Total

$3, 793. 75

In his affidavit, counsel explained in connection with the
noted activities that he maintained a contemporaneous record of
time spent on the instant case while he was a UMWA staff attorney.
The hours of work performed were noted on sheets of legal size
paper kept in his. desk or in the case file.
"The task performed,
and the hours spent on them on the day they were begun, were noted on the sheets the day they were begun. Hours spent on the
same task on subsequent days were noted as such.
*** The hours
were totaled when each task was completed, and then were transferred to handwritten summary sheets. The summary sheets showed all
tasks completed, and the total hours spent on each of them."
While it must be recognized that motivation for maintaining
detailed and complete time records by a salaried staff attorney
who apparently was not required to do so by his employer may be
somewhat lacking, I nevertheless find the submissions herein to
be sufficient to permit a determination of reasonableness. Accordingly, I find that said counsel reasonably expended 36.75
hours in 1973, 8.50 hours in 1975, and 22.25 hours in 1976. Mr.
Jacobson stated in his affidavit that based on conversations with
attorneys at six law firms and court.decisions awarding fees for
work performed during that period, the fair market value of his
services in the Washington, D. C. area was $50 per hour in 1973,
$60 per hour in 1975, and $65 per hour in 1976. While Respondents, Smitty Baker Coal Company, Inc. and Ralph Baker, object to
the method of calculating fair market value of services based on
comparable hourly rates as hearsay, they offer no contradictory
evidence. Under the circumstances, I find that the rates represented by Mr. Jacobson are reasonable in the community for similar work and that those rates accurately reflect the value of the
time spent given the uncontested statement of counsel's background and expertise.
The number of hours reasonably expended by Mr. Jacobson multiplied by reasonable hourly rates result in a lodestar figure
for the period at issue of $3,793.75.
No increase in that amount
is warranted.
b. Claim for attorney's fees for work by UMWA staff attorneys
Widman and Owens. Mr. Jacobson asserts a claim on his own behalf
for market-value attorneys' fees for UMWA staff attorneys Charles
P. Widman ($15,600.00) and Willard P. Owens ($8,625.00) on the
grounds that when he left employment with the UMWA he reached an
agreement with that union to continue legal representation in
certain cases including this case in return for the assignment by
the union to Jacobson of "any and all rights it had to fees recoverable in said actions, both as to work [Jacobson] had performed,
and as to work performed by Messrs. Widman and Owens."

2087

In accordance with the National Treasury Employees' Union
decision, however, the UMWA is not itself entitled to any abovecost fee allowance in cases of this nature for work performed by
its salaried staff attorneys. The UMWA is limited to recovery of
the expense to which it was put in supplying the legal services
in question. National Treasury Employees' Union, supra, at 855.
Accordingly the UMWA has no right to assign to Mr. Jacobson an
above-cost allowance of fees that might be awarded as a result of
work performed by other staff attorneys. At most the UMWA could
assign only the recovery to which it would be legally entitled,
i.e., recovery of the expense to which it was put in supplying
the legal services in question. No evidence has been presented
in this case however concerning such expenses. Under the circumstances it is impossible to determine the UMWA interest that
might be assignable to Mr. Jacobson.
Clearly, however, those staff attorneys could assign their
interest to Mr. Jacobson. Such an assignment of an above-cost
fee allowance in combination with the UMWA agreement with Jacobson would justify the payment of the fees to Mr. Jacobson. Since
there is no evidence before me, however, of any assignment by
either of those former UMWA staff attorneys, payment of their
fees to Mr. Jacobson must be contingent upon sufficient evidence
of such an assignment. The final order in this case reflects
that contingency requirement.
The amount of fees requested on behalf of Widman and Owens
is challenged by Respondents because of the absence of contemporaneous time records and a delineation of non-productive/unsuccessful time. Messrs. Widman's and Owens' reconstructed time was
formulated by reference to the pleadings they prepared and the
length of transcripts of the hearings they attended "recognizing
that it takes a certain amount of time to prepare a complaint, to
locate and prepare witnesses, to otherwise prepare for trial,
etc.".
In addition, apparently because his whereabouts were unknown, Mr. Owens' time was reconstructed without any input from
him.
I find that the lack of specificity and the absence of contemporaneous documentation and verification in the fee application warrants a downward adjustment in the estimate of hours reasonably expended. Copeland, supra. Accordingly, I find that Mr.
Widman's time should be reduced to 150 hours and that Mr. Owens'
time should be reduced to 50 hours. Based upon the proffered
reasonable hourly rates of $75/hour and 100/hour respectively,
the lodestar for Mr. Widman is therefore $11,250.00 and the lodestar for Mr. Owens is $5000.00. No further adjustment in the
lodestars is warranted.

2088

c. Attorneys' fees for the period September 1981 through October
1982. Fees of $14,021.25 are also requested for work performed
subsequent to the decision of Judge Forrest Stewart on September
3, 1981. This work was performed by Mr. Jacobson while in private practice located in Los Angeles, California. Fee application is also made for work performed during this period by a paralegal in Mr. Jacobson's law firm, Merna Figoten. The fee petition (Exhibit A) discloses the following information:
a.
1.

Steven B. Jacobson

September 1981 - September 1982

Review and Analysis of ALJ's Decision
Preparation of Petition for Commission review
Prepare petition for D.C. Circuit review
Prepare Motion to Transfer Baker Appeal from Fourth
Circuit to D.C. Circuit
Prepare Opposition 'to Motion to Transfer Munsey Appeal
to Fourth Circuit
Preparation of Reply to Baker Opposition to Munsey
Motion to Transfer
Prepare Motion for Leave to Intervene in Baker Appeal
Prepare Motion to Set D.C. Circuit Briefing Schedule
Prepare D.C. Circuit Brief and Appendix
Analyze Baker Brief and Prepare D.C. Circuit Reply Brief
Prepare Extension Motions
Court, Commission and Labor Department Correspondence
Client Correspondence
Total September 1981 - September 1982

.75
9.25

.so

16.00
2.00
2.25

.75
3.25
25.00
20.25
1.00
1.50

.so

83.00

83.00 hours at $115.00/hour = $9.545.00
2.

October 1982 to Present

Prepare Opposition To Baker Motion To Strike
Preparation For and Attendance At D.C. Circuit
Oral Argument
Review of D.C. Circuit Decision
Prepare D.C. Circuit Bill of Costs and Review of
Opposition Thereto
Client Correspondence
Preparation of Petition for Attorney's Fees
Total October 1982 - Present Time

3.75
18.25
.25
1.50
2.50
5.00
31.25

31.25 hours at 125.00/hour = $3.906.25
Total September 1981 - October 1982 Attorney Time

2089

$13.451.25

b.

Merna B. Figoten

Preparation of D.C. Circuit Briefs

9.50

9.50 hours at $60.00/hour = $570.00
Total Septemper 1981 - September 1982 Paralegal Time

$570.00

Exhibit B attached to the fee petition was represented to be
a copy of computerized time records maintained by Mr. Jacobson's
current law firm for work performed in this case subsequent to
the September 3, 1981, decision.
It is explained in the accompanying affidavit that it is the practice of attorneys and paralegals in this law firm to prepare handwritten time sheets of the
work performed each day. The time sheets are then typed up and
turned in to the computerized central billing facility on a daily
basis. That facility prepares and keeps a running statement of
all work performed· on each matter in the law firm from its inception, and prepares periodic bills which are sent to clients. Exhibit B is represented to be the portion of the running statement
for this case covering the period for which fees are sought.
Both Mr. Jacobson's and Ms. Figoten's credentials are set forth
in the affidavit accompanying the fee petition and are not disputed
Respondents object to the requested fees primarily on the
grounds that the fees should be reasonable in relation to the
results obtained.
In particular, Respondents object to alleged
non-productive/unsuccessful time for the period after September
1981. They note that the Petition for Commission Review raised
five issues and that two of those issues involved reinstatement
and two involved interest and increasing the "lodestar" fee determined by Judge Stewart. The Commission denied review of all four
of these issues and the Circuit Court affirmed that decision.
Respondents further note that the fifth issue (allowance of fees
during counsel's tenure with UMWA) represented only a small segment of the Petition. They also point out that the appeal was
successful on only that one issue in proceedings before the Circuit Court and was unsuccessful in any matter of benefit to Mr.
Munsey-. Further objections are based upon alleged unnecessary
procedural matters and excessive time spent upon preparation of
the second petition for attorneys' fees which duplicated in large
part the earlier fee petition filed with Judge Stewart.
Certainly to the extent that there has been but limited success in the review process there is indeed merit to the Respondent's allegations.
It is apparent moreover that the limited

2090

claim which was successful did indeed relate to an issue of no
direct benefit to the victim of discrimination in this case. Under all the circumstances, I find that Mr. Jacobson is entitled
to compensable time for the period September 1981 - September
1982 of 40 hours and for the period since October 1982 of 15
hours.
I further find that compensable time of 4 hours for paralegal Figoten is appropriate. Hensley, supra.; Copeland, supra.
at pp. 891-892.
Mr. Jacobson stated that his billing rate was $115 per hour
for work performed during the period September 1981 through September 1982 and $125 per hour for work performed since October
1982. According to the affidavit, these rates were based upon
"exhaustive surveys of rates charged by law firms in the Los Angeles area and are, if anything, somewhat low, given my experience
and expertise." It is further represented that Ms. Figoten's
billing rate was $60 per hour during the time she worked on this
case. Ms. Figoten's billing rate "was likewise set after an exhaustive survey of rates charged by Los Angeles law firms, and is
likewise no greater than the average rate charged here." While
these rates are again challenged by Respondents as based upon
hearsay, they submit no contradictory evidence. Accordingly, I
find the rates quoted to be reasonable in the community for similar work.
I also find that the quoted rates accurately reflect
the value of Mr. Jacobson's and Ms. Figoten's time, given their
backgrounds.
The number of hours reasonably expended by Mr. Jacobson during the period at issue multiplied by the corresponding hourly
rates results in a lodestar figure of $5225.00. The number of
hours reasonably expended by Ms. Figoten multiplied by the reasonable hourly rate result in a lodestar figure for the paralegal of
$240.00.
While the overall attorney fee award in this case is more
than seventeen times the damages awarded the actual victim of
discrimination, it is well recognized that market value fee
awards in cases such as this take into account the need to assure
that miners with bona fide claims of discrimination are able to
find capable lawyers to represent them.
In addition, the success
in this case represents a vindication of societal interests incorporated in the mine safety legislation above and beyond the particulir individual rights vindicated in the case. Accordingly I
do not find the substantial fee award in this case to be excessive or in the nature of a "windfall".
Order
Under· prior decisions rendered in this matter, the Respondents, namely Ralph Baker, Smitty Baker Coal Company, and P&P

2091

Coal Company, were ordered jointly and severally to pay the total
amount of $2,858.26 plus interest "computed on the total amount
at a rate of 8% until the date of payment".
It has also been
previously ordered that Respondents jointly and severally pay
attorney's fees in the amount of $26,462.50 and expenses in the
amount of $335.16 to Steven Jacobson, Esq.
In addition to payment ·of the above amounts, it is further ordered that the Respondents, jointly and severally, pay {a) the additional amount of
attorneys' fees in the amount of $9,018.75 to Steven Jacobson,
Esq., and fees to the law firm of De Castro, West & Chodorow,
Inc. for the services of paralegal Merna Figoten in the amount of
$240.00; and, Cb> attorney's fees in the amount of $16,250.00 to
Steven Jacobson, Esq., upon presentation to Respondents and the
undersigned of an assignment to Mr. Jacobson of the respective
interests of Charles P. Widman, Esq., and Willard P. Owens, Esq.,
in such attorneys' fees.
Payment of
ounts due must be made
within 30 days of the date of his de~·

Distribution:
Steven B. Jacobson, Esq., De Cas ro, West & Chodorow, Inc., Eighteenth Floor, 10960 Wilshire Boulevard, Los Angeles, CA
90024
{Certified mail)
J. Edward Ingram, Esq., Robertson, Williams, Ingram, Faulkner &
Overbey, Tenth Floor Andrew Johnson Plaza, Knoxville, TN 37902
{Certified mail)
P&P Coal Company, P.O. Box 219, Pennington Gap, VA
fied mail>
nsw

2092

24277

{Certi-

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

UNITED MINE WORKERS OF AMERICA,
LOCAL UNION NO.. 1197,
Complainant

DEC 131983

DISCRIMINATION PROCEEDING
Docket No. PENN 83-234-D

v.
PITT CD 83-8
BETHLEHEM MINES CORPORATION,
No. 60 Mine
and
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondents
ORDER OF DISMISSAL
Before:

Judge Broderick

On September 23, 1983, a complaint was filed under section
105(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815(c) (the "Act"), alleging that Respondent
Bethlehem has discriminated against Complainant and the miners
represented by Complainant by utilizing a longwall mining
machine in the subject mine which produces more than the level
of dust permitted under 30 u.s.c. § 842, and that Respondent
MSHA has discriminated against Complainant and the miners represented by Complainant bY failing to enforce the dust standards
in the statute and regulations against Bethlehem. The complaint
further alleges that the use by Bethlehem of the machinery complained of, when it knew of MSHA's failure or refusal to enforce
the Act concerning the machinery "prevents [Complainant] from
exercising its statutory rights . . . in that if [Complainant] or
its individual members were to refuse to work because of a
hazardous condition created by the offending machinery, the
employee asserting that right would be subject to discharge
. . . . " As relief, Complainant seeks an order to withdraw the
machine from the mine or an order limiting the time miners are
exposed to the resulting respirable dust.
On October 20, 1983, Respondent Bethlehem filed a motion to
Dismiss on the grounds that the complaint does not allege that
Complainant (or its members) were engaged in activity protected
by the Act and that adverse action was taken against them on
account of such activity.

2093

On October 27, 1983, Respondent MSHA filed a motion to
dismiss on the grounds that the complaint failed to state a
cause of action under section 105(c) of the Act and that the
Commission does not have authority to grant the relief sought.
On December 6, 1983, Complainant filed a Memorandum in
Opposition to the Motions to Dismiss and affidavits from two
members of Complainant Local Union who work at the subject mine
and are members of the Safety Committee.
ISSUES
1. Does the complaint state a cause of action under section
lOS(c) of the Act?
2.
Is MSHA a "person" under section lOS(c) and subject to
its prohibition against discrimination?
3.
Does the Commission have jurisdiction to grant the relief
sought in the complaint?
THE STATUTE
Section lOS(c) (1) of the Act provides as follows:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such
miner, representative of miners or applicant for
employment has filed or made a complaint under or
related to this Act, including a complaint notifying
the operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal
or other mine, or because such miner, representative of
miners or applicant for employment is the subject of
medical evaluations and potential transfer under a
standard published pursuant to section 101 or because
such miner, representative of miners or applicant for
employment has instituted or caused to be instituted
any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding,
or because of the exercise by such miner, representative
of miners or applicant for employment on behalf of himself or others of any statutory right afforded by this
Act.

2094

The provision prohibits adverse action ("discharge or in
any manner discriminate against") against a miner or representative of miners because of activity protected under the Act. Such
protected activity includes filing or making a complaint under
the Act, instituting or testifying in a proceeding under the Act,
requesting an inspection, accompanying an inspector as a miner's
representative, receiving adequate training, and ref~sing to perform work in conditions reasonably believed to be unsafe or
unhealthful.
The complaint herein alleges that Bethlehem utilizes a longwall mining machine which causes excessive concentrations of
respirable dust and that MSHA has failed to enforce the dust
standards in the Act and Regulations.
Does this allege protected
activity on the part of Complainant? The activity described in
the complaint as protected is not the complaints made to
Bethlehem or MSHA, but rather seems to be that Bethlehem continues
to violate the dust standards and that MSHA refuses to enforce the
standards against Bethlehem. However, illegal and reprehensible
this alleged situation may be, by itself it can hardly be converted
to the exercise by Complainant of rights protected by the Act.
Complainant, as a representative of the miners, is given special
responsibility under the Act. Certainly, it has the right and
duty to report unsafe or unhealthy mine conditions to MSHA, and
is protected under lOS(c) in making such reports.
See UMWA
Local 9800 v. Secretary and Dupree, 3 FMSHRC 958 (1981) (ALJ).
However, that is not the activity alleged in this case. I conclude
that the complaint does not allege that Complainant was engaged in
activity protected under the Act.
Further, the adverse action alleged is merely the speculation that the members of Complainant would be discharged if they
refused to work because of hazardous conditions.
This is not
adverse action, but only the possibility of future adverse action.
The complaint also seems to allege that being required to work in
an unhealthy environment is adverse action. But Complainant and
its members are not required to work in an environment reasonably
believed to be unhealthy, and they would be protected if they
refused to work under such conditions.
I conclude that no past or
present adverse action has been alleged here.
Therefore, I conclude that the complaint does not state a
cause of action under section 105(c) of the Act.
IS MSHA SUBJECT TO lOS(c)
Section 105(c) is directed to "any person." I have previously held that MSHA is a person under section lOS(c) prohibited
from discriminating against a miner or representative of miners
and affirm that conclusion here. See Local 9800 UMW v. Secretary
and Dupree, 2 FMSHRC 2600 (1980) (ALJ).

2095

COMMISSION JURISDICTION TO GRANT RELIEF
Section 103(g) of the Act gives the miners' representative
the right to call for an immediate inspection by giving MSHA
notice of an alleged safety or health violation or an imminent
danger in a mine.
If MSHA determines that a violation or danger
does not exist it must so notify the representative in writing.
Under 30 C.F.R. § 43.7, the representative of the miners
may obtain an informal review by the MSHA District Manager or
his agent who is required to furnish a written statement of the
reasons for the final disposition of the matter.
The Act does not provide for Commission review of such
disposition and MSHA argues that the Commission has no jurisdiction in such cases.
In view of my holding that the complaint
herein does not state a cause of action, it is unnecessary to
rule on this issue, and I do not do so at this time.
ORDER
Therefore, IT IS ORDERED that this proceeding is DISMISSED
for failure to state a cause of action under section 105(c) of
the Act.

J

1

~~d~~d_
James A. Broderick
Administrative Law Judge

Distribution:
Robert S. Whitehill, Esq., Rothman, Gordon, Foreman and Groudine,
300 Grant Building, Pittsburgh, PA 15219 (Certified Mail)
R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver
Building, Pittsburgh, PA 15222 (Certified Mail)
Frederick W. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified .Mail)

/fb

2096

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

December 14, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-306
A.C. No. 36-05018-03502
Cumberland Mine

U. S. STEEL MINING CO., INC.,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

Thomas A. Brown, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Merlin

This case is before me upon a Petition for Assessment
of Civil Penalty under Section llO(a) of the Federal Mine
Safety and Health Act of 1977 (the Act).
The Petitioner has
made a motion to approve a settlement agreement. Payment of
the original penalties of $217 was proposed. At the hearing
I determined that the prof ferred settlement was appropriate
under the criteria set forth in Section llO(i) of the Act.
I now affirm that determination.
WHEREFORE, the motion for approval of settlement is
GRANTED and it is ORDERED that Respondent pay $217 within 30
days from the date of this decision.

Law Judge
Distribution:
Thomas A. Bbown, Esq., Office of the Solicitor, U. S. Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
Louise Q. Symons, Esq., U. S. Steel Mining Co., Inc., 600
Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified
Mail)
/ln

2097

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

December 14, 1983
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 83-221
A.C. No. 36-00970-03527

v.
Maple Creek No. 1 Mine
U. S. STEEL MINING CO., INC.,
Respondent
DECISION
Appearances:

Thomas A. Brown, Esq., Office of the Solicitor,

u. S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Merlin
Statement of the Case

This case is a petition for the assessment of civil
penalties filed under section llO(a) of the Act by the
Secretary of Labor-against U. S. Steel Mining Company, Inc.
for three alleged violations of the mandatory safety standards.
30 C.F.R. §§ 75.1704, 75.200 and 75.1725(c).
The hearing was held as scheduled and documentary
exhibits and oral testimony were received from both parties.
At the conclusion of the hearing, I directed the filing of
written briefs simultaneously by both parties within 21 days
of receipt of the transcript (Tr. 137). The briefs have
been received and reviewed.
Stipulations
At the hearing, the parties agreed to the following
stipulations which were accepted (Tr. 6-8):
1.

U. s. Steel Mining Company, Inc. is the owner and
operator of the Maple Creek No. 1 Mine.

2098

2.

The Maple Creek No. 1 Mine is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977.

3.

The presiding administrative law judge has jurisdiction
over this proceeding.

4.

The subject citations, modifications and determinations
were properly served on the operator by a duly authorized
representative of the Secretary. The citations,
modifications and determinations may be admitted
into evidence for the purpose of establishing their
issuance and not for the truthfulness or relevancy
of the statements asserted therein.

5.

The authenticity of all exhibits.is admitted, but
not the relevancy or the truth of the matters asserted
therein.

6.

The alleged violations were abated in a timely fashion.

7.

The operator has annual production of 10,943,308 tons.

8.

The subject mine has annual production of 482,015 tons.

9.

All witnesses are accepted generally as experts in
coal mine health and safety.

10.

There were 3 assessed violations of 30 C.F.R. § 75.1704
in the 24-month period prior to the subject § 75.1704
alleged violation but some of the prior violations may
have been contested.

11.

There were 28 assessed violations of 30 C.F.R. § 75.200
in the 24-month period prior to the subject § 75.200
alleged violation but some of the prior violations may
have been contested.

12.

There were 2 assessed violations of 30 C.F.R. § 1725(c)
in the 24-month period prior to the subject § 75.1725(c)
alleged violation but some of the prior violations may
have been contested.

13.

The payment of the penalties will not affect the
operator's ability to continue in business.

2099

Citation No. 2011053
The Mandatory Standard
Section 75.1704 of the mandatory standards, 30 C.F.R.
§ 75.1704, provides as follows:
§

75.1704

Escapeways.

[Statutory Provisions]
Except as provided in §§ 75.1705 and 75.1706,
at least two separate and distinct travelable
passageways which are maintained to insure passage
at all times of any person, including disabled
persons, and which are to be designated as escapeways, at least one of which is ventilated with
intake air, shall be provided from each working
section continuous to the surface escape drift
opening, or continuous to the escape shaft or
slope facilities to the surface, as appropriate,
and shall be maintained in safe condition and
properly marked. Mine openings shall be adequately protected to prevent the entrance into the
underground area of the mine of surface fires,
fumes, smoke, and floodwater.
Escape facilities
approved by the Secretary or his authorized
representative, properly maintained and frequently
tested, shall be present at or in each escape
shaft or slope to allow all persons, including
disabled persons, to escape quickly to the surface
in the event of an emergency.
The Cited Condition or Practice
§

Citation No. 2011053 cites a violation of 30 C.F.R.
75.1704 for the following condition:
There was no directional sign provided where the
designated intake escapeway from 53 room enters
the main intake escapeway to Park [Shaft].
Persons could make a mistake and go inby to 56
room.

2100

Discussion and Analysis
The inspector who issued the subject citation testified
that there was no directional signal for the designated
escapeway from the 53 room at the main intake escapeway to
Park Shaft.
The inspector expressed the opinion that miners
could make a mistake and go inby (Tr. 11). The inspector
testified that the operator marks its escapeways with
reflectors and that reflectors were present in the escapeway
on the day the citation was issued (Tr. 15). According to
the inspector, the reflector nearest the cited intersection
was 50 feet outby the intersection (Tr. 26-27).
The inspector admitted that miners coming to the intersection
would see a green reflector when looking to the left (outby)
and would not see any reflector if they looked to the right
(inby) (Tr. 16). The inspector stated that the reflector
was readily visible when the miners got into the escapeway
(Tr. 27). The inspector further agreed that there was a
considerable volume of air coming up the intake escapeway at
the cited intersection and that if a miner were knowledgeable
of the air in the mine he would know which direction was
outby based on the direction of airflow (Tr. 19).
It was
the inspector's position that an intersection should have a
directional arrow marking the exit route even when a reflector is used.
He acknowledged the operator was never put
on notice an arrow was required in addition to the reflector
(Tr. 23-24).
The assistant mine foreman who accompanied the inspector
during the inspection testified that the intake escapeways
are marked with green reflectors, the return escapeways are
marked with red reflectors and the alternate return escapeway
is marked ·with white reflectors (Tr. 31, 34).
The reflectors
are usually hung from the roof in the middle of the entry
(Tr. 32). Contrary to the inspector's testimony, the
assistant mine foreman stated that in this instance there
was one reflector about 20 feet outby the cited intersection
and another one approximately 85 feet outby (Tr. 32).
He
said that miners would see green reflectors if they looked
to the left at the intersection and the miners were trained
to follow the reflectors (Tr. 35-36). While admitting that
miners must come into the intersection to see the reflector
20 feet away, the assistant mine foreman noted that the
miners have to enter the intersection in order to escape
(Tr. 37).
He also stated that reflectors are a better
indicator than arrows when smoke is present because the

2101

arrows are on porcelainized metal signs that are not reflective (Tr. 33, 38). Additionally, the assistant mine
foreman testified that in traveling to the shaft bottom in
the intake escapeway miners simply keep the air current to
their faces.
He stated that the air velocity at the cited
intersection is 24,000 cubic feet per minute, which is
sufficient to enable miners to feel the air current on their
faces (Tr. 33, 36).
The subject standard mandates only that escapeways be
"properly marked." The term "properly marked" is not
defined. Specific types of markings and their placement are
not delineated. The evidence is clear that the operator
used green reflectors in the cited escapeway.
I accept as
more persuasive the operator's evidence regarding the distance of the reflector from the intersection. Based upon
the record I find that the reflector was clearly visible
when looking l~ft from the intersection and that miners were
properly trained as to what the reflectors meant.
I am
unpersuaded by the Solicitor's argument that reflectors are
inadequate because miners must enter the intersection before
observing the reflector since miners must enter the intersection to make use of the escapeway. Also, there is no
merit to the argument that the reflectors are inadequate
because smoke would obscure miners' vision of the reflectors.
The testimony shows that where there is smoke reflectors are
more visible than arrows.
In light of the foregoing, I conclude the escapeway was
properly marked within the meaning of the mandatory standard.
If the Secretary believes something more or different than
reflectors should be required, he must undertake to change
the standard.
He cannot accomplish such a result merely by
issuing a citation on an ad hoc basis in an individual
situation. Accordingly, Y-conclude there was no violation
and the citation is vacated.
I have reviewed the briefs. To the extent they are
inconsistent with the findings and conclusions set forth
above they are rejected.

2102

Citation No. 2012693
The Mandatory Standard
§

Section 75.200 of the mandatory standards, 30 C.F.R.
75.200 provides as follows:
§

75.200

Roof control programs and plans.

[Statutory Provisions]
Each operator shall undertake to carry out on
a continuing basis a program to improve the roof
control system of each coal mine and the means and
measures to accomplish such system. The roof and
ribs of all active underground roadways, travelways,
and working places shall be supported or otherwise
controlled adequately to protect persons from
falls of the roof or ribs. A roof control plan
and revisions thereof suitable to the roof conditions and mining system of each coal mine and
approved by the Secretary shall be adopted and set
out in printed form on or before May 29, 1970.
The plan shall show the type of support and spacing
approved by the Secretary. Such plan shall be
reviewed periodically, at least every 6 months by
the Secretary, taking into consideration any falls
of roof or ribs or inadequacy of support of roof
or ribs. No person shall proceed beyond the last
permanent support unless adequate temporary
support is provided or unless such temporary
support is not required under the approved roof
control plan and the absence of such support will
not pose a hazard to the miners. A copy of the
plan shall be furnished to the Secretary or his
authorized representative and shall be available
to the miners and their representatives.

2103

The Cited Condition or Practice
§

Citation No. 2012693 cites a violation of 30 C.F.R.
75.200 for the following condition:
No. 33 room intersection in "A" heading was 35
feet from corner to corner both diagonals. Total
distance 70 feet.
One part of 33 room intersected
at a 52° angle.
The roof control plan stipulates
if either diagonal or a total of both diagonals
exceed 32 feet or 62 feet, respectively, additional
support posts and/or crib will be installed.
Section was supervised by R. Franks.

Discussion and Analysis
The inspector who issued the subject citation testified
that the cited intersection was wider than allowed by the
roof control plan (Tr. 44-45). Drawing No. 4 of the plan
contains the statement that if the diagonal distances in an
intersection exceed 32 feet each or if the sum of the
diagonals exceeds 62 feet, additional support shall be
provided (MSHA Exh. 3). According to the inspector's
measurements, each diagonal distance in the cited intersection was 35 feet (Tr. 45). These measurements are not
disputed. Drawing No. 4 itself is a four-way intersection
with the entries meeting at right angles. The cited intersection was not created by four entries joining at right
angles.
One of the ·entries joined the intersection at a 52°
angle ("B" on Op. Exh. 1, Tr. 60).
The existence of a violation depends upon whether the
statement on Drawing No. 4 applies to this case. The
operator contends it does not because the statement only
applies when entries meet at right angles as they do in the
drawing.
I must reject this argument.
I find the drawing
illustrative rather than exclusive and conclude that the
statement applies to all four-way intersections where the
entries come together at the same place regardless of the
precise angles at which they meet. The title of Drawing No.
4 is "Minimum Permanent Roof Support for Intersections."
Moreover, the plan contains no other provision concerning
minimum diagonal lengths for intersecting entries. To limit
the general statement requiring additional supports to the
precise configuration depicted by the drawing would render

2104

the plan wholly inadequate by leaving untreated a large and
crucial portion of roof control. Accordingly, I find that
in this case additional bolting should have been provided as
required by the plan. Because there was no such additional
bolting I conclude a violation existed.
I further conclude the violation was significant and
substantial. The inspector testified that there was a slip
running down the center of the roof of the 33 room which
went across the intersection and into the rib where entry
"B" entered the intersection (Tr. 46). The inspector
sounded the top of the roof with a metal-capped walking
stick and noted that the top was heavy. The heavy top
indicated to the inspector that the roof could change at any
time, especially where, as here, the intersection was larger
and the diagonals greater than allowed by the plan.
I
conclude that based on the foregoing factors the violation
was "significant and substantial" within the meaning of that
term as defined by the Commission in Cement Division,
National Gypsum Company, 3 FMSHRC 822 (1981).
I further find the operator was negligent. The operator
drove entry ''B" at a 52° angle because track was going to be
put down. Although driving the entry at such an angle is
permissible, additional roof support should have been provided as required by the plan because more coal had been cut
away than in normal situations. The slip added to the
hazard.
There is no dispute that the operator knew of all
these things.
The remaining statutory criteria are set forth in the
stipulations. After consideration of all the criteria a
penalty of $250 is assessed for this violation.
I have reviewed the briefs.
To the extent they are
inconsistent with the findings and conclusions set forth
above they are rejected.

2105

Citation No. 2012695
The Mandatory Standard
Section 75.1725(c) of the mandatory standards, 30
C.F.R. § 75.1725(c) provides as follows:
§

75.1725

Machinery and equipment; operation
and maintenance.

(c) Repairs or maintenance shall not be
performed on machinery until the power is off and
the machinery is blocked against motion, except
where machinery motion is necessary to make
adjustments.
The Cited Condition or Practice
§

Citation No. 2012695 cites a violation of 30 C.F.R.
75.1725(c) for the following practice:
Men were observed in the boom at the continuous
miner, working on the conveyor chain and the power
source for CM-12 S/N JM 3226 was not disconnected
at the power source. Section supervised by
R. Franks.

Discussion and Analysis
The inspector who issued the subject citation testified
that he saw men in the boom of a continuous miner and beside
the boom beating with a sledge hammer on what appeared to be
a flight chain. The power was cut off at the machine rather
than disconnected at the source (Tr. 102-103). The inspector
took the position that the miners might be seriously injured
or killed if the machine became energized and that power had
to be cut off not only at the machine but at the power
source (Tr. 103-104). However, he was not certain what the
miners were doing at the machine (Tr. 107-108). He did not
appear to be familiar with how the cited continuous miner
actually worked (Tr. 106-107, 110-113, 115-116, 136).
The operator's maintenance foreman who testified demonstrated familiarity and knowledge about the operation of the
continuous miner. He explained that in order for power to
reach the tail section of the conveyor where the miners were
located, someone would have to set the main power breaker

2106

and the control breaker on the left side of the machine,
walk around to the right side of the machine and turn on a
control switch in the cab, turn on the pump motor and then
start the conveyor (Tr. 118, 121-123). The maintenance
foreman admitted that equipment can malfunction, but stated
that in this instance five different pieces of equipment
would have to malfunction at the same time for power to
extend to the area in question (Tr. 120).
The maintenance foreman stated that the miners were
repairing a broken conveyor chain when the citation was
issued and that the machine's power must be used to repair
the chain (Tr. 123-124). He further explained that the
conveyor has to be raised, lowered, and swung to one side;
that the conveyor is swung to one side and brought back to
the normal position to slacken the chain; that the chain is
then recoupled and put back on the drive sprocket; and that
the chain comes off the drive sprocket every time it breaks
(Tr. 125). According to the foreman machine power is
necessary to make all these various adjustments because the
pump motor must be running to raise the conveyor, swing it
and drop it (Tr. 126-127).
I accept the foregoing testimony from the foreman.
Indeed, as already noted the inspector did not know how the
machine operated or even what repair work was being done.
I am constrained to decide this case on this record where
the evidence submitted by the operator is manifestly
superior to that offered by the Solicitor who barely
cross-examined the operator's witness and whose inspector
did not know much at all about the machine he cited.
Accordingly, I conclude that machinery motion was
necessary to make adjustments and that under the circumstances the operator should not have been required to cut
the power at the source and necessitate frequent trips
back and forth from it to the continuous miner in order
to effectuate the necessary repairs to the broken chain.
I conclude there was no violation.
This citation is
Vacated.
I have reviewed the briefs. To the extent they are
inconsistent with the findings and conclusions set forth
above they are rejected.

2107

ORDER
In light of the foregoing, it is hereby ORDERED that
Citation Nos. 2011053 and 2012695 are VACATED.
It is further ORDERED that with respect to Citation No.
2012693, the operator shall pay $250 within 30 days from the
date of this decision.

~~
Paul Merlin
Chief Administrative Law Judge
Distribution:

·

Thomas A. Brown, Esq., Office of the Solicitor, U. S.
Department of Labor, Rm. 14480-Gateway Building, 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
Louise Q. Symons, Esq., U. s. Steel Mining Co., Inc., 600
Grant Street, Pittsburgh, PA 15230
(Certified Mail)

/ln

2108

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

VESTA MINING COMPANY,
Contestant

22041 .

DEC 15 \983

CONTEST PROCEEDINGS

..
v.

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

Docket Nos:

Citations

PENN 83-171-R
PENN 83-172-R
PENN 83-173-R
PENN 83-174-R
PENN 83-175-R
PENN 83-176-R
PENN 83-177-R
PENN 83-178-R
PENN 83-179-R
PENN 83-180-R
PENN 83-181-R
PENN 83-182-R
PENN 83-183-R
PENN 83-184-R
PENN 83-185-R
PENN 83-186-R
PENN 83-187-R
PENN 83-188-R
PENN 83-189-R
PENN 83-190-R
PENN 83-191-R
PENN 83-192-R
PENN 83-193-R
PENN 83-194-R
PENN 83-195-R
PENN 83-196-R
PENN 83-215-R

2104356
2104357
2104358
2104359
2104360
2104632
2104633
2104634
2104635
2104636
2104637
2104638
2104639
2104640
2104648
2104649
2104650
2104651
2104652
2104653
2104654
2105121
2105122
2105123
2105124
2105125
2105330

Vesta Mine
DECISION
Appearance:

·Michael T. Heenan, Esq., Smith, Heena, Althen
and Zanolli, Washington, DC, for Contestant;
Mary Lu Jordan, Esq., United Mine Workers of
America, Washington, DC, Intervenor;
Robert A. Cohen, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Viginia,
for Respondent.

Before:

Judge Moore

2109

These cases were heard in the Commission's Falls Church
hearing room on September 20, 1983. Representatives of the
government, the company, and the United Mine Workers of
America all presented evidence and the government an9 company
filed briefs. There was a prehearing conference at which
the United Mine Workers of America was not represented. At
that conference certain drawings were presented, and while
there ar~ minor differences the photographic and sketch
material attached to Vesta's answer to the government's
motion to dismiss and the exhibit presented at the pre-trial
conference and· government Exhibit R-4 all describe the
electrical connections used in Vesta's transformers.
In the
testimony, these transformers are sometimes referred to as
power centers or load centers, or in one case, as rectifiers.
This last term was a misnomer as a rectifier is a device
which converts alternating current into direct current.
The knife switch referred to hereinafter is sometimes
referred to in the testimony as a "load brake switch" or as
a" visible disconnect switch".
Because of the electrical configuration of the transformers,
which will be described later, MSHA first issued a citation
as to one of those transformers.
It later decided that
there was no violation and vacated that first citation.
MSHA then issued 26 citations, being one for each transformer.
Notices of contest were filed with a request for an expedited
hearing.
Shortly after the conference mentioned earlier, and
because MSHA believed there had been procedural errors in
the way the 26 citatio~s were issued, it vacated those
citations and moved to dismiss the notices of contest.
Vesta objected to the dismissals because it contended it had
a right to a decision on the merits but stated that if I did
dismiss the cases it should be with prejudice against MSHA
issuing citations concerning the particular transformers
involved. The United Mine Workers of America then intervened
and objected to the vacation of the citations and pointed
out that I did not have to approve that action.
Shortly thereafter MSHA decided that Vesta was not
being cooperative and issued another citation covering all
26 transformers. Vesta then filed another notice of contest
with a request for an expedited hearing and a request that
all of the cases be consolidated. ·
·
Vesta's response to the Secretary's motion to dismiss
the first 26 notices of contest contains an affidavit of
Julian Guthrie which has attached diagrams and pictures of
one of the 26 transformers. A drawing of that transformer
was presented at the afore-mentioned prehearing conference

2110

and there is no dispute as to the essential facts regarding
that transformer. The transformers in question convert high
voltage alternating current into low voltage alternating
current. At the high voltage or outby end of the transformers
there is a visible disconnect knife-type switch that.clearly
shows whether the transformer is energized or not. At the
low voltage end of the transformers there are two circuit
breakers, (not counting 110-V circuits) one of which is used
in connection with the solid power line to the belt motors
and the other is in connection with an auxiliary plug which
can sometimes be used for other equipment such as a belt.
vulcanizing device. Any equipment hooked up to the auxiliary
plug is either plugged in or not, so there is no question
that the disconnect device assures a visual check. In a
circuit breaker, on the other hand, the disconnect is inside
of the housing and there is no way to visually check and be
sure that a circuit is disconnected. The solid connection
going to the belt drive motors on the low voltage side
contains only the circuit breaker as a means of disconnecting
the transformer from the motors.
The question is whether the standard allows the type of
arrangement described.
30 C.F.R. 75.903, a statutory provision, provides
"disconnecting devices shall be installed in conj unction with the circuit breaker to provide visual

evidence that the power is disconnected."
Vesta's transformers clearly contain the knife-switch on the
high voltage end which provides visual evidence that the
transformer itself, is disconnected. At the low voltage end
however, only the auxiliary plug provides visual evidence of
a disconnection.
While I have stated that there is no substantial disagreement
as to the electrical connections in and around the transformers
some of the witnesses did not interpret government exhibit
R-4 in the same way. Mr. Lester, MSHA's top electrical
expert, thought there was a circuit breaker controlling the
belt drive motor that is not shown on the drawing. Other
witnesses said that the box marked "breaker main low side"
controlled the belt drive motor.
One witness said that the
"breaker main low side," when disconnected, would also
disconnect the vulcanizing plug which has its own circuit
breaker as shown on government exhibit R-4. Mr. Paine, the
vice president of Vesta, testified that all of the transformers
had been modified so that the vulcanizing plug and its
circuit breaker were hooked into the outby side of the
"breaker main low side" box. He said that this had been
done before the hearing.
His testimony, taken together with
the testimony of Mr. Carnathan, an electrician at the Vesta

2111

mine, shows that at the time the citations were issued at
least some of the transformers were connected internally in
such a way that the vulcanizing plug could not be used if
the main lowside breaker was disengaged. The vulcanizing
plug was being used on occasions at the time the cit.ations
were issued, to vulcanize the belt. Vulcanization of a belt
is not electrical work and there is no requirement that a
visual disconnect be provided. There is a requirement,
however, that the power be taken off of the belt drive motor
when non-electrical work is being done and as I understand
government exhibit R-4 as amplified by Mr. Carnathan and Mr.
Paine, that could not be done with respect to at least some
of the transformers. If the vulcanizing (auxiliary) plug
circuit is hooked to the inby side of the motor circuit
breaker you could not have power in the vulcanizer and no
power on the drive motor circuit. It could be done now,
according to Mr. Paine.
But whether there was a violation
of some other standard is not the question before me. A
step-down transformer, such as the one involved in these
cases, contains 2 physically separate windings or coils.
High voltage electricity passing through the primary winding,
by the process known as electro-magnetic induction, causes
low voltage current in the secondary or low voltage coil.
It is the government's position, as expressed by its leading
electrical inspector, that the low voltage side is a separate
circuit, and thus requires its own visual disconnect blade.
When Mr. Lester was on the stand, he mentioned the two breaker
boxes, one designated a belt starter and the other merely
designated breaker box on the lower of the two rectangles
depicted on government exhibit R-4.
The lower rectangle is
designated Westinghouse, and there is no explanation as to
what that means.
Since Mr. Lester did not indicate that a
visual disconnect was necessary with respect to the "breaker
box" and the "belt starter box" it is obvious that the
government is not contending that there need be a visual
disconnect with respect to each circuit breaker. The government's
contention insofar as Mr. Lester is concerned, is that since
the high voltage circuit in the transformer and the low
voltage circuit are separate circuits, that each needs its
own visual disconnect switch. Counsel, by questions and
arguments indicated that it was also a matter of the physical
distance between the visual disconnect switch on the high
voltage side of the transformer and the breaker box on the
low voltage side. The distance in fact, was about twenty
feet but there were questions concerning whether one hundred
feet would be close enough or several hundred feet.
Mr. Blackburn, the president of Tee Engineering Company
is an electrical engineer and formerly worked under Mr.
Lester as the district electrician for MSHA's Pikeville
district. He has designed power centers that are similar to
the one depicted in government exhibit R-4.
It is his
opinion, directly contrary to that of his former boss, Mr.

211~

Lester, that the power center depicted in government exhibit
R-4 is in full compliance with 30 C.F.R. 75.903. !_I. Vice
president Paine, also an engineer, but not electrical, is of
the same opinion.
,.

.

When qualified experts disagree to the extent they have
in this case, a ·close question is presented. Before getting
to the basis of my decision I will announce that I have
consolidated all these cases for hearing, I reaffirm my
refusal to grant MSHA's motion to dismiss the first 26 cases
and I admit in evidence the documents attached to Vesta's
opposition to MSHA's motion to dismiss those 26 cases.
While admitting the drawings and photographs referred to
above, I am basing this decision primarily on government's
exhibit R-4.
In this respect the two wires leading from the
"breaker main low side"-one designated fire suppression and
the other designated pilot check cable-are 110-V circuits
single-phase power and have nothing to do with the requirements
of 30 C.F.R. 75.903.
In questioning Mr. Lester, I asked
him, MSHA's leading electrician, whether the system would be
in compliance if the two 110-volt lines were eliminated and
if the vulcanizer plug and its breaker box were eliminated.
His answer was No.
He said the high voltage side of the
transformer was a separate circuit from the low voltage side
and that the visual disconnect switch on the high voltage
side did not satisfy the regulation. 2/ In the simplified
hypothetical that I was asking about there would be 7200
volts going into the high voltage side of the transformer
and there would be a visual disconnect switch at that
point. There would be a breaker box on the low voltage side
of the transformer and through that box, 480 volts would go
to the belt drive motor.
In my view, even though it is 20
feet away, the visual disconnect switch is "in connection
with" the breaker, even though there is no physical connection
between the high voltage side of the transformer and the low
voltage side.
I do not think the safety arguments made by the parties
affect this result.
On the one hand, the argument is that
with a visible disconnect plug such as the vulcanizer plug
on government exhibit R-4, you could easily verify that the
circuit is broken. The other argument is that in a dark and
wet mine mistakes in tracing lines are made and it is much
easier to simply go to the transformer and use the visual
disconnect switch knowing that everything downstream of that

.!/

I am not giving consideration to the affidavit attached
to the government's brief.
If the government thinks it has
evidence of perjury it should consult the United States
Attorney's Office.
'?:_/ ·Without objection Mr. Heenan altered government exhibit R-4
to show that the "breaker main low side" controlled the
power to belt drive motor.

2113

switch would be safe to work on.
I can not say which safety
argument has the most weight, but I can say that if MSHA
wants the visual disconnect switch on the low voltage side
of the transformer or if it wants a visual disconnect switch
for every circuit breaker box, it can so state in its standard.
It is obvious from this record that the MSHA electrical
inspectors have not all agreed with Mr. Lester.
I hereby VACATE all 27 citations.
DISMISSED.

These cases are

Proposed findings not included herein are REJECTED.

~f.lll~~·
Charles C. Moore, Jr.,
Administrative Law Judge
Distribution:
Michael T. Heenan, Esq., Smith, Heenan, Althen and Zanolli,
1110 Vermont Avenue, NW., Washington, D.C. 20005 (Certified
Mail}
Mary Lu Jordan, Esq., United Mine Workers of America,
900
15th Street, NW., Washington, D.C.
20005 (Certified Mail}
Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail}

/db

2114

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

ALBERT J. DICARO,
Complainant

22041

DEC i 51983

COMPLAINT OF DISCRIMINATION
Docket No. WEST 82-113-D

v.
MSHA Case No. DENV CD 82-3
UNITED STATES FUEL_ COMPANY,
Respondent
DECISION ON DAMAGES AND OTHER RELlEF
Before:

Judge Fauver

Complainant filed his complaint on February 15, 1982,
alleging he was discharged on October 23, 1981, for engaging
in protected activities in violation of section 105(c) (1) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §
801, et seq.
The matter was heard on the issue of liability in July,
1982. My decision on liability was entered on May 26, 1983,
holding that Complainant was unlawfully discharged on
October 23, 1981. The hearing on damages and other relief
was held on August 9, 1983.
Counsel for the parties have stipulated:
1. Had Complainant not been discharged, the maximum
amount of his wages and overtime in Respondent's employment
from October 23, 1981, through August 9, 1983, would have
been $44,613.00.
2.
Interest is to be calculated on back pay on a
calendar quarter accrual basis.
3. The rate of interest to be applied shall be twelve
percent (12%).
4. The instant case is the Complainant's attorney's
first case involving the Federal Mine Safety and Health Act.
5. Complainant's attorney's law firm has never represented
clients in a matter involving the Federal Mine Safety and
Health Act prior to the instant case.
6. Complainant's attorney's law firm has a fee schedule
range of $75.00 per hour to $125.00 per hour.
Having considered the contentions of the parties and the
record as a whole, I find that the preponderance of the reliable,
probative, and substantial evidence establishes the following:

2115

FINDINGS OF FACT
1. Complainant attempted to mitigate the damages suffered
by him as a result of his wrongful discharge by the Respondent
by applyi.ng for other employment. The Complainant applied for
employment at the following- companies:
(a)

as a coal miner at Tower Resources on
November 9, 1981;

(b)

as a coal miner at Price River Coal Company
on November 12, 1981;

(c)

at Plateau Mining Company on December 2,
15, and 17, 1981;

(d)

at Coastal States Mining on December 21,
29, 1981 and January 19, 1982;

(e)

as a coal miner at Emery Mining Corporation
in March of 1982 and was told he did not
get the job because. of a recommendation of
the Respondent, United States Fuel Company;

(f)

as a coal miner with Valley Camp on
March 22, 24, 29, April 23, 26, May 3, 7,
12, 1982;

(g)

at Dinos~ur Tire in Price, Utah on several
occasions;

(h)

at State Department of Employment Services
in Price, Utah;

(i)

at Carbon County Sheriff's Department for
the position of Deputy Sheriff;

(j)

at H & J Supply Company in Price, Utah;

(k)

at Gemco Corporation, Price, Utah.

2. Complainant was employed by Terry Fry, a contractor
of Plateau Mining during the period at issue. Complainant
earne~ $1,000 at such employment.
He was also employed by
One Stop Video Shop on a piecework basis during that period.

2116

Complainant's duties included cleaning video machines on a
piecework basis and he earned a maximum of $200 from said
employment.
3. Complainant also worked for Western States Hydraulics
during the same period. The Complainant's earnings were a
maximum of $200 from Western States Hydraulics. The total
received by Complainant from employment during the interim period
in question was $1,400.
4. As of the date he was discharged by Respondent, Complainant
had a 5% permanent partial disability because of an accident in
Respondent's mine.
Later Complainant filed a petition with the
Industrial Commission of Utah seeking additional permanent partial
disability and temporary total disability for a period beginning
November 5, 1982. Complainant filed the petition on his own
behalf and without the aid of counsel. At the hearing, Complainant
testified in response to a question from counsel for Respondent,
United States Fuel Company, "I think I can perform as a roof bolter."
Complainant's allegation of temporary disability was based
upon his doctor's opinion, and in his (Complainant's) opinion,
he could have worked.
5. The Industrial Commission of Utah referred Complainant
to its medical panel which consisted of Dr. Thomas D. Rosenburg in
Salt Lake City, Utah.
Dr. Rosenburg examined Complainant and
concluded that there was no temporary total disability. He also
concluded that the permanent partial disability in Complainant's
knee had increased from 5 percent to 15 percent. The Industrial
Commission adopted the findings of the medical panel and found:
[T]he applicant (referring to Complainant) was
not temporarily totally disabled after November
5, 1982 and the percentage of permanent physical
impairment attributable to the applicant's
industrial injury is 15 percent of the right
lower extremity. This percentage has changed
from 5 percent (torn medial meniscus meniscectomy)
to 15 percent in view of the significant
associated disease of articular cartilage in the
medial compartment of the patient's right knee.

2117

6. In this proceeding, Counsel for Complainant has
spent 195 hours representing Complainant.
DISCUSSION WITH FURTHER FINDINGS
The general issue is the amount of the recoverable damages
sustained by Complainant as a result of his unlawful discharge
on October 23, 1981.
In particular, the issues are:
(1) Was Complainant physically able to work for Respondent
on and after November 5, 1982? If not, should his back pay
award be reduced for any period in which he was unable to
work for Respondent?
(2)
Should Complainant's back pay award be reduced by
an amount representing Complainant's rate of absenteeism
while employed by Respondent?
(3)
Should the decision on liabilitiy be reconsidered
and resolved against Complainant because of new evidence on
Complainant's credibility introduced at the August 9, 1983,
hearing on damages?
(4) What hourly rate should be applied in awarding an
attorney's fee for Complainant's legal representation in
this proceeding?
Section 105(c) (2) of the Act states, among other things:
The Commission shall have authority ..• to
require a person committing a violation
of this subsection to take such affirmative
action to abate the violation as the Commission
deems appropriate, including, but not
limited to, the rehiring or reinstatement of the
miner to his former position with back pay and
interest. ***
The legislative history shows a Congressional intent to
have section 105(c) interpreted and applied liberally to
achieve its broad, remedial purposes. See, e.g., Sen. Rep.
No. 95181, reprinted in Leg. Hist. 625, in which the Senate
Committee reporting the bill stated as to relief:

2118

It is the Committee's intention that the
Secretary propose, and that the Commission
require, all relief that is necessary to make
the complaining party whole and to remove the
deleterious effects of the discriminatory
conduct including, but not limited to
reinstatement with full seniority rights,
back-pay with interest, and recompense for
·any special damages sustained as a result
of the discrimination.
The specified relief
is only illustrative. Thus, for example, where
appropriate, the Commission should issue broad
cease and desist orders and include requirements for the posting of notices by the operator.
In Secretary on behalf of Dunmire and Estle v. Northern
Coal Company, 4 FMSHRC 126 at 142 (1982), the Commission
stated that· the "broad remedial charge [of section 105{c)
(2)) was designed not only to deter illegal retaliation but
also to restore the employee, as nearly as possible, to the
situation he would have occupied but for the discrimination"
and that "back pay [is] a term of art encompassing not only
wages, but also any accompanying fringe benefits, payments,
or contributions constituting integral parts of an employer's
overall wage-benefit package."
Back pay is "ordinarily the sum equal to the gross pay
the employee would have earned but for the discrimination
less his actual net interim earnings." Dunmire, above, at
144.
Ability To Work
Since-. November 5, 1982
Respondent contends that Complainant's claim before the
Utah Industrial Commission establishes that he was not physically
able to work for Respondent on and after November 5, 1982.
However, the Utah Industrial Commission ruled, after having
Complainant medically examined, that Complainant was not entitled
to temporary disabi·li ty and was capable of working on and
after. November 5, 1982. Before his discharge on October 23,
1981, Complainant had a 5% lower extremity impairment because
of a knee injury in Respondent's employment. The Ut~h Industrial
Commission found,
based on its medical panel report, that after
November 5, 1982, this impairment increased from 5% to 15%.
However, there was no finding that he was unable to perform
work as a miner in Respondent's employment.
I find that the
preponderance of the evidence in the instant case does not establish

2119

that Complainant.has been.physically unable to work as a
miner in Respondent's employment since November 5, 1982.
Absenteeism
Respondent proposes that the back pay award be reduced by
Complainant's rate of absenteeism while employed by Respondent.
I find no precedent for this contention. Use of this extreme
and speculative approach to back pay relief would not be
consistent with the broad, remedial charge of the statute.
Attorney's Fee
I agree with Respondent's contention that Complainant's
attorney's fee should be set at $75 an hour, i.e., the lower
rate in the law firm's schedule of fees.
In reaching this
decision I .have considered the following factors, among others:
1. This proceeding is the first case involving the Mine
Act that Complainant's attorney has handled as an attorney.
2. Complainant's attorney's law firm has never represented
clients in matters involving the Mine Act before th~s proceeding.
3. Complainant's attorney's law firm has a fee schedule
range of $75 to $125 an hour.
The Motion. to· Re:cons·ider·
Respondent has moved to reconsider my decision on liability
(May 26, 1983) based on "serious questions concerning the
credibility of the Complainant" which Respondent contends were
raised by "new evidence" at the hearing on damages (August 9,
1983).
I have fully considered the August 9, 1983, transcript
and exhibits and conclude that credibility issues on damages do
not warrant reconsideration of the decision on liability.
ORDER
WHEREFORE IT IS ORDERED that, within 15 days of the date of
this decision:

2120

1. Respondent shall offer Complainant, in writing,
reinstatement in its employment upon Complainant's providing
written medical evidence of his physical ability to work as
a miner in Respondent's employment, in such position as
Complainant would have been employed, with the pay rate and all
seniority, shift.and overtime rights, employer contributions,
and other fringe benefits that Complainant would have obtained
had Respondent not discharged Complainant on October 23, 1981.
Evidence of his physical ability to work may be satisfied by
a written release to work in a coal mine by Thomas D. Rosenburg,
M.D.
2.
Respondent shall pay Complainant back pay of $43,213.00
for the period from October 23, 1981, through August 9, 1983
(i.e., $44,613.00 less $1,400.00 for interim outside earnings)
and-an additional amount of back pay based upon the maximum
amount of wages and overtime he would have received in Respondent's
employment from August 9, 1983, until either (a) his reinstatement
under paragraph 1, above, or (b) 15 days from the date of this
decision if Complainant does not accept reinstatement or does
not medically qualify for reinstatement.
The back pay in the period since August 9, 1983, is subject
to reduction by any interim earnings since August 9, 1983.
If
back pay since August 9, 1983, cannot be stipulated by counsel
for the parties, counsel shall submit their respective proposed
amounts to the judge not later than 20 days from the date of
this decision and for that purpose jurisdiction is retained by
the judge for 20 days from this date and until a ruling on any
counter-proposals filed in such period.
Interest on the total
award of back pay shall be at 12%, calculated on a calendar
quarter accrual basis.

3. Respondent shall pay Complainant's attorney a fee of
$14,625.0d, !·~·' 195 hours X $75 per hour.
4.
Respondent shall pay Complainant litigation expenses
of $350.00.
·5. Respondent shall post a copy of the decision of
May 26, 1983 and a copy of this decision and order at the
subject mine, at a place where notices to its miners are normally
posted, and keep them so posted, unobstructed and protected
from the weather, for a consecutive period of 60 days.

tJ_;et.~ ~~v~

William Fauver
Administrative Law Judge

Distribution:

2121

David o. Black, Esq., Biele, Haslam and Hatch, 50 West Broadway,
Salt Lake City, Utah 84101 (Certified Mail)
Barry D. Lindgren, Esq., P.O. Box 539, Denver, Colorado 80201
(Certified Mail)

kg

2122

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

DEC 161983

DISCRIMINATION PROCEEDING

BILLY K. DEEL,
Complainant

Docket No. VA 82-62-D

v.
MSHA Case No. NORT CD-82-17
D. O. & W. COAL COMPANY,
Respondent

No. 5 Mine
DECISION

Appearances:

Michael A. Genz, Esq., and Barbara A. Samuels,
Esq., Client Centered Legal Services of Southwest Virginia, Inc., Castlewood, Virginia, for
Complainant;
Louis Dene, Esq., Abingdon, Virginia, for
Respondent.

Before:

Judge Steffey

A hearing was held in the above-entitled proceeding on
February 15, 16, 17, and 18, and April 26, 1983, in Abingdon,
Virginia, pursuant to section 105(c) (3), 30 u.s.c. § 815(c) (3),
of the Federal Mine Safety and Health Act of 1977. The complaint was filed on September 23, 1982, and supplemented on
October 12, 1982, and October 27, 1982. The complaint was filed
under section 105(c) (3) of the Act after complainant had received a letter from the Mine Safety and Health Administration
advising him that MSHA's investigation of his complaint had resulted in a finding that no violation of section 105(c) (1) of
the Act had occurred.
Counsel for complainant and respondent filed simultaneous
initial posthearing briefs on July 15, 1983, and July 18, 1983,
respectively. Counsel for respondent and complainant filed on
August 31, 1983, and September 2, 1983, respectively, letters
stating that they were waiving the filing of reply briefs.
Issues
Complainant's brief contends that complainant was engaged
in activities protected from acts of discrimination by section
105(c) (1) of the Act, that his discharge by respondent was motivated by that protected activity, and that respondent would not
have terminated complainant had it not been fbr his protected
activity.
·

2123

Respondent's brief renews its motion for dismissal of the
complaint made at the hearing on the ground that complainant
has failed to establish a prima facie case.
Findings of Fact
Based on my observations of the witnesses' demeanor and
the preponderance of the credible evidence, the following findings of fact are made:
1. D. o. & W. Coal Company (hereinafter referred to as
"DOW") operates a one-unit mine in Southwest Virginia. Coal is
produced from a single working section having seven entries.
The mining process, prior to July 1982, consisted of shooting
coal from the solid, that is, without using a cutting machine
to undercut the coal seam prior to setting off explosives. The
coal was transported from the working face to the belt conveyor
by means of battery-powered scoops. DOW employs about 34 miners
on two production shifts.
In July 1982 the mining system was
changed to use of a continuous-mining machine and shuttle cars
equipped with trailing cables were substituted for the scoops
which had previously been utilized to transport coal to the
belt conveyor.
2. A fire occurred in the mine in February 1982 and, as a
result of the fire, the Mine Safety and Health Administration
placed the mine on a 10-day spot inspection which was still in
effect at the time the hearing was held in this proceeding in
February and April of 1983. The inspector regularly assigned
to examine the mine was William H. Strength who testified in
this proceeding that he made spot inspections of both the belt
lines and working faces on April 5, 6, 15 through 22, and May 5,
and 6, 1982. He also conducted a complete regular inspection on
May 24 through June 3, 1982.
3. Complainant Billy K. Deel was first employed by DOW on
or about January 17, 1980. The mine encountered some uneconomic
producing conditions which resulted in DOW's laying off of all
miners on the 3-to-11 p.m. shift about July 17, 1981, including
Deel. At the time of Deel's lay-off, he held the position of a
mine committeeman. Prior to the second shift's lay-off, Deel
brought to DOW's attention the fact that the miners were upset
because DOW had changed the date of issuance of their pay checks
from Thursday to Friday.
DOW claimed that the change in date
for issuance of checks had resulted from a time lag in a computer used by a bank in Pikeville, Kentucky, and DOW refused to
reverse its decision to issue the checks on Friday. When the
miners heard that DOW had refused to revert to a Thursday pay
day, they declined to go into the mine to work, claiming illness,
although they had been well enough to report~to work and well
enough to await the outcome of their ·complaint about the change
in date of delivery of their pay checks.

2124

4. DOW was mining about 1 mile from the surface when it
encountered the uneconomic conditions which caused it to lay
off all miners on the second shift.
DOW subsequently withdrew
its equipment from the mile-deep location and moved the working
section close to the surf ace by commencement of production in a
new area off to the left of the mine's main entries. When Deel
heard that DOW was recalling miners, he made some telephone
calls and visited the mine. He was so anxious to obtain work
to support his wife and child, that he volunteered to sign a
statement to the effect that he would not cause DOW's management further trouble if they would rehire him (Exh. A).
DOW's
mine foreman did riot believe that Deel had waived any of his
rights under the Act or the UMWA wage agreement by having signed
the statement.
5. Deel was recalled to work on the day shift on or about
March 5, 1982, and was told that he would be paid top contractual wage rates, but that there was no specific job available
and he would be required to operate the scoop, the roof-bolting
machine, or to shovel coal along the belt line, although at the
time of his lay-off on July 17, 1981, he claims to have successfully filed a bid for the job of an operator of a roofbol ting machine.
6.
On April 3, 1982, about a month after being recalled
to work, Deel was elected by the union to the position of safety
committeeman to replace Chann Fields, a shotfirer, who had previously held that position for about 4 years.
DOW was notified
of Deel's election as safety committeeman on April 5, 1982, and
Deel continued to hold that position for 32 days, or until he
was discharged on May 7, 1982.
7. The drilling of coal in DOW's mine was performed by
use of a hand-held drill which received its hydraulic power from
the roof-bolting machine or a scoop. When the section foreman
had a full crew of miners, he would assign two men to operate
the roof-bolting machine.
One of them would install roof bolts
and the other one would drill holes in the face so that the shot
firer could prepare the heading for another explosive charge.
DOW used two roof-bolting machines.
Deel and Randy O'Quinn
normally operated one roof-bolting machine and associated drill
and Kyle Turner and Lee Grizzle normally operated the other
roof-bolting machine and drill.
Randy O'Quinn hurt his shoulder
in February 1982 and was not able to work at the time Deel was
recalled to work on March 5, 1982. At times, the section foreman was unable to assign another miner to work with Deel on the
roof-bolting machine.
Deel's section foreman, Tivis Stiltner,
on at least one occasion was unable to obtain a miner to assist
Deel in running the roof-bolting machine and asked Deel to operate the machine by himself with the result~that Deel was required to install both roof bolts and drill holes for explosives.

2125

8.
The miners normally left the surface to go underground
at 7 a.m. and it took about 25 minutes to get to the working
section. When Stiltner examined the face area about 8:30 a.m.
on the day when he had ordered Deel to roof bolt and drill, he
found that Deel had drilled holes in only one place and had not
installed any roof bolts.
Stiltner believed that Deel should
have been able to accomplish more than the drilling of one
place by 8:30 a.m. and asked Deel why he was not working.
Deel
replied that Stiltner could make Deel perform two jobs, but
couldn't make him "run at it". Stiltner claims that Deel refused to perform both jobs and that he told Deel he was suspending him with intent to discharge for refusing to operate the
roof bolter and drill.
Deel, however, asked to talk to the mine
committeeman, Kyle Turner, and Turner was able to persuade
Stiltner to put Deel back to work after Deel had agreed to perform both jobs. After Deel had returned to work, Stiltner again
went to the place where Deel was supposed to be working and he
still had not installed any roof bolts. Therefore, Stiltner
told Deel that he would help him on the roof-bolting machine for
the rest of the day.
Stiltner then proceeded to install roof
bolts for the remainder of the shift and Deel operated the coal
drill.
9.
On.May 5, 1982, one of the spot inspections referred
to in Finding No. 2, supra, was conducted by Inspector Strength
who issued three withdrawal orders at that time citing DOW for
failure to install temporary supports as required by its roofcontrol plan, for firing 24 charges from a detonating device
which was rated for firing no more than 20 charges, and for
failing to have the line curtains installed to within 10 feet
of the working faces (Exh. 1). The miners spent the remainder
of the day performing the work necessary to abate the violations,
but they had not completed the abatement work by the end of the
shift and Stiltner asked Deel and Randy O'Quinn to come in 1
hour early on May 6 to finish abating the violations. Strength
returned to the mine on May 6 and terminated the orders so that
DOW could resume mining operations.
10. On May 7, 1982, the day after the withdrawal orders
had been terminated, Floyd O'Quinn, the regular scoop operator,
was absent. Stiltner asked Deel to get·the large scoop that
Deel had been operating from time to time and hook it to the
mantrip so that Deel could transport the men into the mine.
Stiltner also told Deel that he himself was going to drive the
little scoop into the mine because he had an internal bleeding
illness and that operating the little scoop aggravated his condition less than operating the large scoop.
Deel objected because he also preferred to operate the little scoop, but Stiltner insisted that Deel get the large scoop and take the mantrip
in. Deel hooked the mantrip to the large sc~op, but went over
to Stiltner who was cleaning water out of the little scoop and

2126

reminded Stiltner to make sure he had the safety chain hooked
on the scoop's dipper since Stiltner had indicated that Chann
Fields was going to ride into the mine with Stiltner in the
little scoop.
11.
It is customary for all of the miners to gather near
the door of the parts trailer and mine office before going into
the mine. While they were gathered in the vicinity of the parts
trailer on May 7 (Exh. M), Randy O'Quinn and Kyle Turner heard
Stiltner assign Deel the job of pulling the mantrip with the
scoop, but they did not hear any of the argument between Stiltner and Deel as to which one would be operating the little
scoop as opposed to the large scoop. The mine foreman, Joe
Taylor, also heard Stiltner assign Deel the job of pulling the
mantrip.
12. When Stiltner reached the working section, he parked
the little scoop near the tailpiece where he had some work to
do on the controls to the conveyor belt. Deel dropped miners
from the mantrip at their various working places and drove the
large scoop to the vicinity of the roof-bolting machine which
he, Randy O'Quinn, and Clayton Justice had been taking turns in
operating. Justice had been hired as a prospective foreman on
the assumption that DOW's plan to open a new section would
materialize.
In the meantime, because of absenteeism by union
workers, Justice had been performing jobs which are normally
done by union employees.
Specifically, Justice had been drilling holes from the hydraulic power provided by the roof-bolting
machine to which Deel and Randy O'Quinn were normally assigned.
Justice had sharpened about 16 bits near the parts trailer just
before they came into the mine on the morning of May 7 and the
noise of the grinder prevented Justice from hearing Stiltner
assign any work to anyone. Nevertheless, both Randy O'Quinn
and Justice were already preparing the roof-bolting machine and
drill for operation before Deel parked the large scoop near the
roof-bolting machine.
13. When Deel came to the roof-bolting machine, Justice
immediately realized that three men were more than could be
justified to operate one roof-bolting machine.
Therefore,
Justice asked Deel what job he was planning to do that day and
Deel said he was planning to run the roof-bolting machine.
Justice replied that he guessed that meant he would have to
operate the large scoop which Deel had driven into the mine and
Deel agreed that Justice had made a correct conclusion. Justice,'
who had not operated a scoop in DOW's mine for transporting coal
to the belt conveyor, was not comfortable with the unorthodox
manner in which he had become assigned to be the scoop operator.
Consequently, Justice got on the large scoop and drove it about
120 feet to the place where Stiltner was working on the tailpiece. When Justice advised Stiltner that Deel had decided to

run the roof-bolting machine, Stiltner told Justice to go back
to the roof bolter and tell Deel that he wanted Deel to operate
the scoop and for Justice to work on the roof bolter with Randy
O'Quinn. When Justice conveyed Stiltner's message to Deel,
Deel refused to follow Stiltner's instructions and told Justice
to go back and tell Stiltner to come and tell Deel in person if
operating the scoop was what Stiltner wanted him to do that day.
Justice again returned on the scoop to Stiltner's location at
the ta~lpiece and stated that Deel had refused to run the scoop
and wanted Stiltner to come up there and tell Deel in person if
Stiltner wanted Deel to operate the scoop.
Stiltner then told
Justice to park the large scoop and return to the roof-bolting
machine and wait until he could finish the repairs on the belt
conveyor and come up to talk to Deel. Justice dutifully parked
the large scoop and returned to the site of the roof-bolting
machine.
This time Justice just sat down and waited for Stiltner to show up after he had advised Deel that Stiltner would be
there in a little while.
14. After Stiltner had repaired the tailpiece, he got on
the little scoop and drove it to the roof-bolting machine where
Deel, Justice, and Randy O'Quinn were gathered.
Stiltner asked
Deel what was wrong and Deel replied that nothing was wrong.
Stiltner then asked Deel why he was not operating the scoop and
Deel wanted to know why he should run the scoop and let someone
else run "his" roof-bolting machine. Stiltner explained that
they had not been producing very much coal lately and that
Stiltner believed that Deel could do a better job on the scoop
than Justice and that he, therefore, preferred that Deel run
the scoop for the day. When Deel made no immediate reply, Stiltner then said that if Deel was not going to run the scoop, he
should get in the dipper of the scoop Stiltner was operating
and Stiltner would take him outside the mine.
Deel got his
lunch bucket and got into the scoop's dipper.
15. After Stiltner had finished talking to Deel, he looked
at Randy O'Quinn who was doing nothing and asked him why he was
not working.
Randy replied that the auger barrel was bent and
he needed a new one before he could begin drilling coal. Stiltner told Randy to go get a new auger barrel.
Randy, who is 6
feet 2 inches tall and was working in a mine which ranges from
4-1/2 to 5 feet in height, did not want to walk a few breaks to
get a·n auger barrel which Chann Fields had already gone on a
tractor to get.
Therefore, Randy said that he was sick and believed he would just go home, so Randy got into the dipper with
Deel and Stiltner started to the surface with both men in the
scoop's dipper.
16. -After Stiltner had started to the surface, Deel asked
Stiltner to stop the scoop so that Deel could talk to the mine
committeeman, Kyle Turner, who was operating the other roofbolting machine.
Stiltner reluctantly stopped the scoop and

2128

Deel got out of the dipper and went to talk to Turner. After
Turner had obtained Deel's version of the incident, he asked
Stiltner to allow Deel to go back to work.
Stiltner remained
adamant and Turner was unable to persuade Stiltner to put Deel
back to work.
In the meantime, Chann Fields had returned with
the new auger barrel and Randy O'Quinn decided to go back to
work and got out of the scoop's dipper and returned to the roofbolting machine. Chann Fields, who had heard Turner's intercession on Deel's behalf and who believed the conversation was
at an impasse, spoke up and asked Stiltner to bring him a new
shot-firing battery from outside the mine. Fields also suggested that Stiltner go ahead and take Deel out of the mine as
there was no use in engaging in further arguments.
Stiltner
told Turner that he could go outside with Deel and they could
discuss the matter with the mine foreman, Joe Taylor.
17. When Deel, Turner, and Stiltner reached the surface,
Stiltner went to the mine office while Deel and Turner went to
the house where they kept their miner's cap lights.
Stiltner
told Taylor that he was suspending Deel for ref using to run the
scoop. Taylor asked Stiltner to have Deel and Turner come to
the office to discuss the matter, but they entered the mine
office about the time Stiltner was going after them. Taylor expressed surprise that Deel had refused to operate the scoop
that day, especially since Taylor had already heard about Deel's
near discharge by Stiltner for refusing to operate the roof
bolter and the drill by himself, as described in Finding No. 8,
supra.
Deel told Taylor that he had not refused to run the scoop,
but Taylor felt that he had to support his section foreman and
advised Deel that he was suspended with intent to discharge pending the holding of a 24/48-hour meeting at which they could
further discuss the matter.
18. The above-described suspension occurred on Friday,
May 7, 1982, and Deel and Turner came to a 24/48-hour meeting
on Monday, May 10, 1982, at which time the suspension was converted to a discharge.
Deel filed a grievance under the National
Bituminous Coal Wage Agreement of 1981 and the matter went to
arbitration which resulted in a decision by an arbitrator sustaining the discharge.
The decision was issued on June 8, 1982,
in Arbitration Case No. 81-28-82-96 in a proceeding entitled
The United Mine Workers of America, Local Union #7170 v. D. O.
& W. Coal Company by Arbitrator Peter Judah.
19. On July 14, 1982, Deel was denied unemployment compensation on the ground that he had been discharged for misconduct.
Deel appealed that unfavorable ruling to the Virginia
Employment Commission and the Appeals Examiner held a hearing
and issued a decision on October 22, 1982, upholding the refusal
to award Deel unemployment compensation. The examiner's decision was, in turn, appealed to the Commission which issued a

2129

decision on January 14, 1983, reversing the examiner's decision
and holding that Deel was entitled to receive unemployment compensation. The Commission's decision recognized that its examiner and an arbitrator had already issued decisions adverse to
Deel, but held that DOW had failed to sustain its burden of
proof in showing that Deel had refused to carry out reasonable
instructions given by his employer.
The Commission emphasized
that the hearing before its examiner had not been as extensive
as the hearing before the arbitrator and the Commission stressed
the fact that Clayton Justice, the person who had relayed Stiltner' s instructions to Deel about operating the scoop, had not
testified at the hearing before the Commission's examiner (Virginia Employment Commission's Decision in Billy K. Deel v.
D. O. & W. Coal Co., Decision No. 19888-C, January 14, 1983,
pages 3 and 4).
Consideration of the Parties' Arguments
Contentions in Deel's Brief
The first six pages of Deel's brief are devoted to a statement of facts which shows that everything alleged by Deel in
this proceeding has been convincingly contradicted by DOW's witnesses, or is the subject of several different versions by Deel
during cross-examination. My findings of fact above are based
on credibility determinations which will hereinafter be explained.
The first six pages of Deel's brief are rejected as being nothing
more than a summary of disputed facts.
Deel's Protected Activity
Pages 6 through 42 of Deel's brief are properly placed under the heading, "Contentions of Law" because Deel can only argue the law in this proceeding since none of the credible evidence supports his factual allegations.
Deel's brief (p. 6) properly begins with a reference to the
Commission's decision in Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2799 (1980), rev'd on other grounds sub nom. Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3d Cir. 1981), 1/
in which the Commission stated that a complainant in a discrimi-nation case, in order to make a prima facie case, must show that
he engaged in protected activity and that the protected activity
1/ Some of the Commission's language about the parties' burden
of proof in discrimination cases was rejected in Wayne Boich
d/b/a W. B. Coal Co. v. F.M.S.H.R.C., 704 F.2d 275 (6th Cir. 1983),
but on October 14, 1983, in Case No. 81-3186, the Sixth Circuit
vacated its decision reported at 704 F.2d 275, except as to backpay issues, and held that the Commis~ion's Pasula decision properly specifies the parties' burden-of-proof requirements in discrimination cases.

2130

was a motiv~ting factor in his termination.
Inasmuch as Deel
was elected by the union as a safety committeeman on April 3,
1982, he necessarily, in that capacity, had to bring safety
complaints to management's attention.
Therefore, Deel successfully proved the first part of the requirement for establishing
a prima f acie case when he correctly alleged that he acted as
safety committeeman for about a month before his discharge.
Deel, however, completely failed to show that his discharge was
in any way motivated by the fact that Deel was a safety committeeman who had brought safety complaints to DOW's attention.
Contentions in DOW's Brief
DOW's brief correctly argues throughout 87 pages that the
facts do not support Deel's allegation that his discharge was
motivated by the fact that he had engaged in the protected activity of acting as safety committeeman.
DOW's brief (p. 6) quotes
a portion of section 105(c) (1) of the Act, but fails to quote
the last part of section 105(c) (1) on which Deel relies, viz.,
the portion which provides that a miner may not be discriminated
against for having exercised "* * * on behalf of himself or
others of any statutory right afforded by this Act." Since Deel
accompanied MSHA's inspector when he was making inspections of
DOW's mine, Deel is alleging that he was exercising his rights
under section 103(f) of the Act when he accompanied an MSHA inspector.
It is true that Deel accompanied an inspector, but
the evidence does not show that Deel's discharge was motivated
in any way by the fact that he was for a very short time the
miners' representative to accompany inspectors at DOW's mine.
DOW's brief (p. 6) renews its motion to dismiss which was
denied at the hearing (Tr. 364) . DOW correctly argues that the
preponderance of the evidence in this proceeding fails to show
that Deel was discharged for having engaged in any activities
which are.protected under the Act.
Therefore, DOW's motion to
dismiss will hereinafter be granted.
DOW's brief (pp. 6-85) considers Deel's alleged grounds
for arguing that his discharge involved a violation of section
105(c) (1) of the Act and shows that all of them are unfounded.
It is quite obvious that if I were to paraphrase all of DOW's
factual arguments from pages 6 through 85 of its brief and then
were to explain why I agree with most of them, and that if I
were to paraphrase in detail all of Deel's legal arguments from
pages 6 through 42 of his brief and then explain why I disagree
with all of them, my decision would be about 200 pages long.
In order to reduce the length of this decision to a reasonable length, I shall hereinafter consider all of the parties'
arguments without giving specific page references and detailed
summaries of the parties' arguments before a given subject is

2131

discussed. My discussion of the evidence and the parties' arguments, however, will be made under numerous headings which will
clearly show that I have considered all of the contentions of
both parties. Additionally, my decision gives immediately below a Table of Contents to show exactly where my discussion of
the factual and legal arguments may be found so that the parties, or the Commission, if it should grant a petition for discretionary review, may easily find the page or pages on which
the various subj~cts are considered.
TABLE OF CONTENTS

No Dates and Length of Deel's Tenure as Safety
Cornrni tteeman . . • . . . . . • . . • . • . . . . . . • . . . . . . . . • . • . . . . • . •

10

Hauling Explosives on Tractor .•.......••......•...•.•
Belt-Bridging Incident . . • • . • • . . . . . • . . . . • . . • • . . • . . • • . .
Cleaning of Mainline Conveyor Belt .•.•.•...•.........
Pay for Accompanying Inspector ....•............•....•
Inspection of Face Areas on May 5, 1982 .......•..•...
The Firing of Two Shots at Once .•.•.••...••.•.....•..
Stiltner's Alleged Threat .....•.•...•.......•..•••...
Failure To Install Curtains and Failure To

11
13
15
16
18
20
25

Apply Rock Dust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26

Deel's Allegations of Disparate Treatment .......•..••

30

The Aborted Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33

The Actual Discharge ••...•......•.........•..•.....•.
References to "his" Roof-Bolting Machine ..•....••....
Supervisor Doing Classified Work ••.....•.•••.•.......
Requirement To Perform Order and Then File
Grievance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Deel's Refusal To Ask Stiltner About His
Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Final Consideration of Arguments in Deel's Brief ••••.

35
43
44
45
45
46

No Dates and Length of Deel's Tenure as Safety Committeeman
Deel took pride in not being able to give the date on which
any event occurred (Tr. 86; 115; 122; 168; 189). He did not
know for certain when he was laid off during a reduction in
force in 1981 (Tr. 7). He did not know the date on which he was
recalled to work in 1982 (Tr. 7). He did not know when he was
elected as safety committeeman (Tr. 52). He objected during
cross-examination when DOW's counsel repeatedly tried to establish when certain alleged discriminatory acts were supposed to
have occurred (Tr. 168). It was necessary for DOW's counsel to
make a concerted effort to establish that Deel was elected safety
committeeman on April 3, 1982 (Tr. 391) and that is one of the
few dates which was ever established for certain in this proceeding.

2132

Deel's brief (p. 1) purports to state with certainty that
Deel was laid off on July 16, 1981, and was recalled to work on
March 4, 1982, but the transcript references (Tr. 123 and 50,
respectively) given in support of those alleged dates show that
the dates were included in lawyers' questions and in the first
instance Deel's own counsel used the dates of both July 15 and
July 16 in asking the question, so there is no reason whatsoever
to select July 16 over July 15.
In the other transcript reference (Tr. 50), DOW's counsel used the date of March 4, 1982, in
asking the question, but Deel's direct testimony (Tr. 7) shows
that he was uncertain as to the date of March 4, 1982. Joe
Taylor, the mine foreman, did not know for certain when Deel was
laid off and guessed that he was recalled about March 3, 1982
(Tr. 389).
DOW's brief (pp. 2-3) states that Deel was laid off
on July 17, 1981, and was recalled on March 5, 1982, but DOW's
brief does not provide any transcript references for either date.
Therefore, I have used the word "about" in Finding Nos. 3 and 5,
supra, in connection with Deel's dates of employment because the
record does not support a finding as to any precise dates for
Deel's dates of lay off and reemployment.
During his direct testimony (Tr. 8), Deel stated that he
was made safety committeeman a "few days" after he was recalled,
but he was called back to work no later than March 5, 1982, and
did not begin acting as safety committeeman until April 5, 1982,
which was only 32 calendar days before his discharge on May 7,
1982. After he became safety committeeman, he did not work for
from 7 to 13 calendar days because of some bruised ribs (Tr. 189;
873).
Consequently, Deel actually acted as safety committeeman
for only 25 or 19 calendar days.
Hauling Explosives on Tractor
Fields, the shot fireman, was hauling explosives on top of
a battery-powered tractor at the time Deel was called back to
work about March 5, 1982.
Deel contends that an accident in a
coal mine in Kentucky occurred because explosives were being
handled in a similar fashion.
The .accident in the Kentucky coal
mine caused DOW's employees to ask that Fields be required to
stop hauling explosives on the tractor.
Deel claims that he
brought the hazardous powder-hauling practice to DOW's attention
and that the mine foreman, Taylor, told him that DOW had always
done it that way (Tr. 10). Deel contends that he gave Taylor 2
weeks within which to get the powder off the tractor and that,
when that was not done, he complained again. After Deel's
second complaint, he alleges that Taylor ordered Randy O'Quinn
and Kyle Turner to carry or drag the powder into the face area
by use of permissible powder bags.
The powder was carried in
bags for only 1 day and then Fields resumed the practice of hauling explosives on the tractor (Tr. 11). Fielgs claims that he
did not revert to hauling explosives on the tractor until the

2133

miners had discussed the matter and had agreed that he could
haul the powder on the tractor, provided he would cut a piece
of conveyor belt and place the belt on top of the tractor so
as to provide insulation between the metal frame of the tractor
and the powder, and provided Fields would not haul more than
four cases of powder at any one time (Tr. 713-714; 737).
Fields also claims that the Kentucky mine explosion occurred in· December 1981 or January 1982 and that the miners
complained to him about hauling explosives on the tractor while
he was safety committeeman and that the mine foreman had a permissible explosives car constructed so that the powder could be
hauled with explosives and detonators placed in separate compartments as required by the mandatory safety standards (Tr.
731; 739; 741).
Clayton Justice was hired as a trainee section
foreman on April 19, 1982, and he stated that the explosives
were still being hauled on the tractor for about a week after
he was hired (Tr. 705; 770; 1027-1028). Fields also testified
that he had asked an MSHA inspector whether there was any way
a permissible box for carrying explosiv~s could be installed on
the tractor and that, while the inspector doubted that such a
box could be constructed in compliance with the safety standards,
he would make a special inquiry about the matter. After Fields
subsequently learned from the inspector that it would not be
possible to obtain permission to continue hauling the explosives
on the tractor (Tr. 715-716), Taylor had an old pump cart removed from the mine and the wheels and frame from the pump were
used to accommodate the construction of a permissible powder car
(Tr. 675-676; 762).
Taylor testified that neither Deel nor Randy O'Quinn
brought the matter of hauling explosives on the tractor to his
attention and that the·powder car was constructed and placed
in the mine solely on the basis of Fields' having reported the
matter to him before Deel ever became safety committeeman (Tr.
407-411; 670-671). Since Deel did not challenge Fields' statement that the Kentucky mine explosion occurred in December 1981
or January 1982, there is no obvious reason why the miners
would wait until Deel became safety committeeman in April 1982
to bring up a hazardous practice which had been brought to the
miners' attention in December 1981 or January 1982 before Deel
was recalled about March 5, 1982.
Randy O'Quinn claimed that Deel brought the matter of hauling powder on the tractor to Stiltner's attention and claimed
that Stiltner agreed to bring the matter to Taylor's attention
and that management had a box made for hauling the powder.
O'Quinn said the box was apparently satisfactory because Inspector Strength did not say anything adverse about their use
of the box (Tr. 215-216). O'Quinn also admitted that the matter
of hauling explosives on the tractor-was brought up while Fields
was safety committeeman (Tr. 921).

2134

Deel and Randy O'Quinn claim that when O'Quinn and Kyle
Turner were asked to drag the explosives into the mine in permissible bags, they were ordered to do so because Taylor wanted
to retaliate against them for having been among the persons who
wanted Fields to stop hauling the powder on the tractor (Tr. 11;
40; 955).
Deel claims that Taylor should have ordered Fields
himself to drag the explosives in bags because it was a part of
his job as shot fireman to bring in the powder (Tr. 11; 40; 5455). On the other hand, DOW claims that Randy O'Quinn and Kyle
Turner were asked to drag the powder because there are two roofbol ting crews in the mine and that there are two people on each
crew, whereas Fields, the shot firer, works by himself and is
responsible for shooting from 16 to 20 places per shift (Tr.
760; 830).
Deel himself stated that the roof-bolting crews remained caught up all the time and were ready to start bolting
in each place as soon as the scoops had finished cleaning up a
cut of coal (Tr. 33-34).
Deel's claim that Taylor objected to changing the method
of hauling the explosives on the tractor on the ground that they
had always done it that way was refuted by Fields and Randy
O'Quinn.
Fields said he began hauling powder on the tractor
after their permissible powder car was demolished when it was
run over by a scoop (Tr. 731).
Randy O'Quinn testified that he
and Deel had worked on the second shift in 1981 before the reduction in force occurred and that, during that time, Deel and
he worked on the same roof-bolting machine and did their own shot
firing and that they hauled the explosives at that time on top of
the roof-bolting machine (Tr. 963-964). Hauling explosives on a
roof-bolting machine would cause the explosives to be very close
to the face prior to the installation of permanent roof supports,
whereas Fields' tractor did not need to be close to the working
face until after permanent supports had been installed.
In view of the circumstances described above, I find that
DOW's claim that the hauling of powder was brought to the mine
foreman's attention by Fields is more credible than Deel's claim
that he was the person who first brought up the matter of hauling powder on the tractor. Moreover, I find that the roofbolting crews were chosen for sound reasons as the persons who
should drag the powder in permissible bags because they remained
caught up with their work and would have had more time to drag
powder· than Fields would have had because he had to prepare all
the explosives in each heading, whereas the roof-bolting crews
were able to divide the work of installing bolts among four
persons.
Belt-Bridging Incident
Deel alleges that one day the roof-bolting machine became
inoperative and that Stiltner, the section foreman, ordered him

2135

and Randy O'Quinn to go down to the belt and shovel up any loose
coal which might have accumulated along the belt (Tr. 13).
It
was necessary for them to get on the opposite side of the belt
from the side on which they were traveling, but when they asked
the person assigned to work at the belt head to cut off the
power, he told the~ the switch had been bypassed or bridged out
and that he could not turn the belt off at the belt head (Tr. 14).
Deel contends that he returned to the section foreman and told him
they couldn't work along the belt because it had been bridged out
(Tr. 15). The matter was then reported to the mine foreman who
came underground and tried to replace the fuse, but was unable to
do so.
Deel claims that he was advised that the belt had been
repaired, but when he and Randy returned to the belt head, they
found that the switch was still bridged out.
Deel claims that he
reported back to Stiltner that the switch was still bridged out
and that Stiltner told him to call Taylor again (Tr. 16). During
Deel's second conversation with Taylor, the safety of the miners
was raised and Taylor told Deel to have the miners come out of
the mine if they were afraid to work in the mine while the switch
was bridged out.
Stiltner talked to Taylor and ordered all the
miners to leave (Tr. 16). Deel contends that they were told when
they left that they would not be paid for the remainder of the
shift, but Taylor contends that the belt-bridging incident occurred on April 16, 1982, and DOW presented as Exhibit I an attendance sheet showing that the miners were all paid for 8 hours
of work on that day (Tr. 57; 412-415).
Deel also claims that when he and Randy O'Quinn came out of
the mine on the day of the bridge-out that Taylor told him DOW
had a right to run the belt with the switch bridged out provided
someone was stationed at the power center to turn off the power
in case of an emergency (Tr. 16). Deel claimed that no one was
stationed at the power center, as alleged by Taylor, but Deel
gave conflicting statements about how far the power center was
from the belt head (Tr. 14; 60) and it is doubtful that either
Deel or O'Quinn really looked to see if anyone had been stationed
at the power center (Tr. 931).
Another claim by Deel in connection with the belt-bridging
incident is that he personally called Inspector Strength and reported the bridge-out to him and that the inspector came to the
mine on the next working day in response to the complaint (Tr.
17). When Inspector Strength testified, however, he stated that
he had come to the mine in response to a complaint forwarded to
him by his supervisor, but he said that Deel had not called him
personally to complain about the bridge-out (Tr. 1056). The
control switch for the belt head had been repaired by the time
Inspector Strength came in response to Deel's alleged complaint
and since both Deel and Taylor advised the inspector of that
fact, the inspector was not even asked to go .,underground to check
the switch (Tr. 382-383; 415).

2136

Deel, as usual, did not know when the belt-bridging incident
occurred, but Deel's attorneys tried to prove that it occurred
on April 5, 1982, because Kyle Turner had a calendar on which
Turner had written that he had been paid for only 7 hours on
April 5, 1982, and he claimed that the reason he was not paid
was that April 5 was the day they were withdrawn when the belt
head was bridged out (Tr. 308; 1005-1006). Turner's calendar,
however, contained no actual notation that the belt-bridging had
anything to do with his being paid only 7 hours on April 5, 1982.
Moreover, Inspector Strength testified that he performed spot inspections at the mine on April 5 and April 6, 1982, and on each
day he checked both the belt lines and the faces (Tr. 1260).
Therefore, it would not have been necessary for Deel to have
called the inspector on April 5 to report a bridged-out belt because Strength would have been present at the time the bridging
out occurred. The inspector also testified that he was at the
mine on April 15 through April 22 (Tr. 1060). Therefore, Deel
should not have had to call the inspector about a bridged-out
belt on April 16 either, except that the inspector was not certain that he was present at the mine on each day from April 15
through April 22 (Tr. 1079).
Regardless of whether the mine foreman was correct in contending that he had a right to bridge out the belt so long as he
stationed someone at the control center, the fact remains that
no one ordered either Deel or Randy O'Quinn to work along the
belt after the bridged-out switch was called to DOW's attention.
The miners were withdrawn and there is no convincing evidence
to show that DOW failed to pay them for 8 hours of work.
The
belt-head switch was repaired before the miners reported for
work on the next shift and DOW was cited for no violations by
MSHA in connection with the belt-bridging incident.
Therefore,
the preponderance of the evidence fails to support a finding
that DOW's management would have been motivated to discharge
Deel because he reported to management that the belt-control
switch had been bridged out.
Cleaning of Mainline Conveyor Belt
Deel claims that he had been telling Inspector Strength
about trying to get DOW to clean up along the mainline belt
conveyor, but DOW would not do so.
Deel alleged that when Inspector Strength came to the mine the day after the belt-bridging
incident, Strength asked him if the belt had been cleaned up yet
and Deel replied that it had not.
Deel claims that the inspector
and he then went into the mine and found the belt in such bad
condition that Strength issued a withdrawal order as soon as
they came out of the mine after inspecting the belt (Tr. 1_7) .
Strength testified that the walk-around miners at DOW's
mine did not point out violations to him (Tr. ~1091). Additionally,

2137

Deel introduced as Exhibit 1 copies of the citations and orders
which were issued while Deel was employed at the mine. Exhibit
1 shows that the only violation of section 75.400 for failure
of DOW to prevent accumulations of loose coal and coal dust alonq the main beltline was alleged in Citation No. 930855 issued
on April 15, 1982. That citation gave DOW until April 19, 1982,
to clean up the loose coal and coal dust.
The inspector then
extended the compliance time to April 21, 1982, and issued Order
No. 922763 on April 21, 1982, when DOW failed to clean up along
the belt by April 21, 1982.
Deel, therefore, was shown to be mistaken about all the
details alleged in connection with DOW's being cited for loosecoal accumulations.
First, Deel had nothing to do with Strength's
checking of the mainline belt conveyor as Strength had received
no complaint from Deel requesting that a special examination of
the beltline be conducted (Tr. 1093). Second, the inspector did
not issue any order immediately after finding loose-coal accumulations along the beltline, as alleged by Deel.
The order of
withdrawal was written 6 days after the citation was issued and
the order was issued for DOW's failure to clean up the loose
coal within the time given by the inspector and not because
Strength considered the violation to be unwarrantable or an imminent danger which would have required immediate action under
either section 104(d} or 107(a) of the Act, respectively.
When Deel, for a second time, discussed his role in the
citing of DOW for loose-coal accumulations along the mainline
belt conveyor, he claimed that he had specifically called
Strength and asked him to make a special inspection of the mainline belt conveyor (Tr. 37).
The inspector testified that no
one had made a complaint to MSHA with respect to loose-coal
accumulations along the main conveyor belt (Tr. 1056; 1081).
If a complaint as to the main conveyor belt had been made, the
inspector would have had to have advised DOW of that fact when
he reported to the mine because section 103(g) (1) of the Act
requires MSHA to report to the operator that an inspection is
being conducted in response to a complaint. Since Strength
only went to the mine in connection with a complaint about the
bridging out of the belt-head switch, there is no reason to believe that Deel ever made a complaint to MSHA about loose-coal
accumulations along the main conveyor belt.
Pay for Accompanying Inspector
Deel claimed that DOW discriminated against him because he
was advised by Taylor, the mine foreman, that DOW would pay him
when he accompanied the inspector in the face areas underground,
but would not pay him for coming outside the mine to meet the
inspector and take him underground and would~not pay him for
going back outside after the underground inspection was over

2138

and for staying outside until the inspector had completed the
writing of any citations which the inspector might believe were
appropriate (Tr. 24; 78).
As a matter of fact, the section
foreman, Stiltner, had continued to give Deel full credit for
any time he accompanied the inspector, regardless of whether it
was for underground inspections or for being with the inspector
on the surface of the mine (Tr. 419; 842).
Deel, however, contends that he was given disparate treatment because DOW had always paid Fields, the other safety committeeman, when he accompanied the inspector. Therefore, Deel
contends that just the threat by Taylor that DOW would not pay
him for accompanying the inspector· on the surf ace showed disparate treatment of him as compared with Fields. The preponderance of the evidence fails to support Deel's allegations.
Fields testified that he was safety committeeman for about 4
years as compared with Deel's 24 days as an active safety committeeman (Tr. 716).
Fields said that he did not go out to
greet the inspector and bring him underground and that he did
not accompany the inspector on his trip out of the mine after
he had completed his inspection. Fields additionally testified
that if he were behind in his work as shot fireman, he would
just tell the inspector to let him know what he had found when
he was leaving and that he did not even accompany the inspector
underground on such occasions (Tr. 724-725).
Inasmuch as Taylor advised Deel that DOW would pay him
when he accompanied the inspector in the face areas, but not
on the surface (Tr. 78), Taylor was treating Deel exactly as
DOW had treated Fields in that Fields had been paid for accompanying the inspector only when the inspector was making an
underground inspection at the faces and DOW was planning to pay
Deel for the same portion of the time he spent accompanying the
inspector. While Deel was entitled to be paid for the entire
time he spent with the inspector, Taylor was unaware of that
fact until Inspector Strength advised him that DOW was required
to pay Deel for the entire time he spent accompanying the inspector. Since Taylor immediately paid Deel upon being advised
that Deel had to be paid for all time spent with the inspector
(Tr. 419), and since Stiltner had never deducted a single minute
of time from Deel's attendance sheet for time spent accompanying
the inspector (Tr. 842), there is nothing in the record to support a finding that DOW engaged in disparate treatment in advising Deel that he would be paid only for the time he spent
accompanying the inspector in the face areas of the mine because
that is exactly what DOW had done with respect to the previous
miners' representative who had accompanied inspectors at DOW's
mine.
Neither DOW's brief nor Deel's brief ma~es any reference
to the fact that Deel accompanied inspectors only when they were
enaaged in making spot inspections because that is the only type
of inspection which was made by Inspector Strength while Deel

2139

held the position of the miners' representative who was entitled
to accompany inspectors under section 103(f) of the Act (Tr.
1060). The Commission majority held in The Helen Mining Co., 1
FMSHRC 1796 (1979), that operators have to pay miners for accompanying inspectors only when the inspectors are engaged in making one of the regular quarterly inspections required under section 103(a) of the Act.
The Commission's decision was reversed
by the District of Columbia Circuit in UMWA v. FMSHRC, 671 F.2d
615, in a· decision issued February 23, 1982. Since Deel testified in this proceeding during the week ending February 19, 1983,
he was technically incorrect in stating that he was required to
be paid by DOW for accompanying an inspector who was engaged
only in making spot inspections.
A final day of hearing was held in this proceeding on
April 26, 1983, but the Supreme Court did not deny petitions
for certiorari with respect to the D. C. Circuit's reversal of
the Commission's Helen Mining decision until October 10, 1983.
The matter of paying miners for spot inspections is still being
contested in current cases before the Commission.
See, e.g., a
notice issued by the Commission on Septeinber 2, 198~indicating
that the Commission had declined to vote for the grant of a
petition for discretionary review of my decision issued July 28,
1983, in Consolidation Coal Co. v. Secretary of Labor, Docket
No. PENN 82-221-R, in which I had held that Consolidation, under
the D. c. Circuit's decision in the UMWA case, supra, had to pay
a miner who accompanied an inspector who was engaged in making a
spot inspection.
Inspection of Face Areas on May 5, 1982
It is a fact that Inspector Strength made a spot inspection
of the face areas and the beltline in DOW's mine on May 5, 1982,
and that inspection occurred just 2 days before Deel was discharged on May 7, 1982 (Tr. 1040; 1060). The inspector recalls
no unusual delay before beginning his inspection (Tr. 1047).
The inspector arrived at the mine about 8:30 a.m., called for
the miners' representative (Deel) to meet him on the surface,
spent about 30 minutes examining DOW's record books before going
underground, took about 25 minutes in traveling to the working
section, and began his inspection in the No. 1 entry about 10
a.m. (Tr. 1069). On May 5 the inspector wrote three withdrawal
orders (Nos. 922773, 922774, and 922775) under section 104(d) (2)
of the Act citing DOW for violations of section 75.316, 75.200,
and 75.1303, respectively (Exh. 1). Deel did not point out any
violations to the inspector in his capacity as the miners' representative (Tr. 1091).
Deel, however, claims that Strength was coming on May 5 to
make an inspection only of the beltline and that DOW knew that
he was coming that day to inspect only the beltline.
Deel claims

2140

that he told Strength that the face area was in a terrible condition and that he was specifically requesting Strength to inspect the face area in addition to the beltline because Deel
wanted to prove to Strength that conditions in the mine were as
bad as he had been telling Strength they were (Tr. 24).
Deel thereafter claims to have advised both the mine forernan, Taylor, and the section foreman, Stiltner, that Strength
was going to make an ·inspection of the face areas and that they
asked him to sta1·1 the inspector until they could improve conditions in the face area prior to the inspection (Tr. 25; 195).
Deel claims that when he advised Strength that they wanted him
to stall the insp~ction for a while, Strength stated, "If there's
that much wrong in there, there ain't no way they're going to
get it done; * * * let's give them their time'' {Tr. 195-196).
For the foregoing reason, Deel said that "* * * we were about a
half hour to an hour late going in" (Tr. 196) .
As indicated above, the inspector stated that he inspected
both the beltline and the face every time that he made a spot
inspection and he specifically stated that it was not possible
that he failed to check the face areas when he made any of the
spot inspections (Tr. 1040; 1060). Additionally, section llO(e)
of the Act provides for a fine of up to $1,000 and up to 6 months
imprisonment as punishment for anyone "* * * who gives advance
notice of any inspection".
There is no likelihood, therefore,
that the inspector would have stated, as Deel alleges, that
"* * * we'll give them advance warning" (Tr. 195) of the fact
that he was going to inspect the face areas.
When Deel was being cross-examined about his claim that he
persuaded the inspector to make an inspection of the face areas
which he would not otherwise have made, Deel stated that he was
so positive of the allegation, that he would lay his hand on the
Bible and swear on his mother's grave that the inspector had
come on May 5, 1982, only to check the beltline (Tr. 170). Deel
at first stated that he knew the inspector was corning on May 5
to make a follow-up examination to see if DOW had corrected some
beltline violations previously cited and that he and everyone
else knew the inspector was corning only to check the beltline
(Tr. 128). The citations and orders in Exhibit 1, however, show
that the inspector had written no citations requiring that violations be abated by May 5, 1982. Deel later realized that he
could not specify an exact abatement date given by the inspector
and changed his testimony to say that the inspector had given
DOW an oral warning to get the belt cleaned up by a certain date
and had advised DOW's management that he would issue a citation
or order if DOW had failed to clean up the belts by that time
(Tr. 16 6) •

2141

Another reason for doubting Deel's claim that Strength
would not have inspected the face areas on May 5 if Deel had
not made a special request that such inspection be made, is
that the violations which Strength found on May 5 included DOW's
failure to set any temporary supports in the Nos. 1 and 2 headings and failure to set one temporary support in the No. 3 heading.
The inspector also cited violations for DOW's failure to
hang reflectors or warning devices outside the Nos. 1, 2, and 3
headings (Order No. 922774, Exh. 1). No section foreman with
as much exper1ence as Stiltner had would ask for an inspection
to be delayed until he could improve conditions at the face and
then overlook the setting of temporary supports which can be installed in a very short period of time.
On the basis of the above discussion, I find that the preponderance of the evidence fails to support Deel's claim that he
requested Inspector Strength to make a special inspection of the
face areas on May 5.
Since Deel failed to prove that he had requested such an inspection, the evidence also does not support
Deel's claim that his discharge was motivated because of his
having allegedly requested the inspection on May 5 which resulted
in the inspector's issuance of three unwarrantable failure orders.
The Firing of Two Shots at Once
As has been shown in the preceding discussion, Deel accompanied the inspector during the spot inspection conducted on
May 5, 1982.
Deel has arrogated to himself great credit for the
inspector's having cited DOW for a violation of section 75.1303
in Order No. 922775 which alleges that permissible explosives
were not being used in a permissible manner in the No. 7 heading
and the crosscut right off the No. 7 heading because 24 charges
(12 in each place) were shot or detonated at the same time (Exh.
1). The inspector explained that DOW's shot-firing battery is
designed to detonate only up to 20 shots at one time and that
the violation consisted of DOW's shot fireman (Chann Fields)
having detonated 24 charges simultaneously when, in fact, he
should not have detonated more than the 12 charges by means of
a single discharge of electrical energy from the shot-firing
battery (Tr. 1084).
Deel claims that when Strength found the wires running from
the two headings tied in such a manner that they could have been
fired simultaneously, Strength accused DOW of having shot both
places at the same time.
Deel contends that Stiltner stated
that they wouldn't do such a thing and asked Deel to agree with
him that the shots were fired separately, but Deel claims that
he replied "Tivis [Stiltner], I ain't going to lie for you or
nobody else" (Tr. 26).
Deel also alleges that Strength told him
that he might have to have Deel to testify ip court in support
of that alleged violation.
Finally, .Deel claims that Stiltner

2142

repeated that the two places were shot separately and again
asked Deel to agree with him, but Deel states that he reiterated that he would not lie for anyone (Tr. 27).
Strength recalled that Deel had said "The conditions are
there and the evidence shows it; there's no need to lie about
this" (Tr. 1051), but Strength did not recall whether Deel's
statement was made in reply to any statement or question by anyone else. Additionally, Strength recalled that Stiltner said
that he was unaware that the condition existed (Tr. 1051).
Deel additionally alleged that he was "right over from
Fields" when he fired the two shots at once and that he knows of
his own knowledge that Fields shot both places at once (Tr. 27).
Deel, however, did not tell the inspector that he had seen Fields
shoot both places at once (Tr. 1091). The inspector did not recall hearing Stiltner try to persuade Deel to agree with him that
the places had been shot separately. Stiltner testified that
Strength rolled up the wires and took them with him as evidence
in the event DOW contested the citing of a violation of section
75.1303 (Tr. 885). The inspector kept the wires until after DOW
had paid the proposed penalty for the violation and then discarded the wires (Tr. 1053-1054). When the inspector asked
Fields if he had fired both places at once, Fields stated that
they had been fired with separate cables, but the inspector told
Fields that he could not agree with Fields because of the way
the wires were tied together (Tr. 1052).
Deel called Kyle Turner as a witness to corroborate Deel's
contention that he had upset Stiltner by refusing to agree with
Stiltner that the two places had been shot separately. Kyle
claims to have walked by an intersection on May 5 and to have
seen the inspector, Stiltner, and Deel standing in a heading and
heard Stiltner asking Deel to try to go along with Stiltner in
claiming that the two shots were fired separately, but Turner
said that Deel refused, saying that the inspector could see from
the physical evidence that both places had been fired at once
(Tr. 286). Turner, however, could not recall where he was when
he heard the alleged conversation and could not recall what he
was doing (Tr. 287).
Deel's counsel tried to establish on crossexamination that Stiltner was wrong in saying that Turner was
engaged in setting temporary supports or safety jacks in the No.
4 heading during the time they were inspecting the No. 7 heading
where the double shots were fired.
Stiltner agreed that supplies are stored in the vicinity of the No. 7 heading but continued to insist that Turner had no reason to be near the place
where the double shots were alleged to have been fired (T~. 1011).
There·· are at least two reasons for doubting Turner's claim
that he heard Stiltner trying to persuade Deel to agree with
Stiltner that the shots had been fired separately. First, it is

2143

a fact that Turner was working near the headings in which the
inspector had cited DOW for failure to install sufficient temporary supports in three different headings.
It could have taken
him a considerable period of time to set temporary supports in
all three headings and if he had to go to the No. 7 heading to
obtain temporary supports or timbers, he should have recalled
his need to do so. Second, Strength testified that Stiltner
merely stated that he was unaware that the conditions found by
the inspector existed.
If Stiltner had engaged in an all-out
effort to persuade Deel to agree with him that the shots had
been fired separately, the inspector would surely have recalled
Stiltner's efforts to persuade Deel to agree with him, yet the
inspector does not recall that Deel's remark about the existence
of the wires was made in response to any question by anyone (Tr.
1051) • It is also highly unlikely that the inspector ever stated
to Deel that the inspector might have to call Deel as a witness
because the inspector was relying on the wires themselves as
being all the evidence he needed to support his citing of the
violation. Moreover, since Deel did not tell the inspector that
he had seen Fields fire the two shots at once, the inspector had
no reason to believe that Deel had any independent knowledge of
the manner in which the shots were fired other than the physical
evidence on which both Deel and the inspector were relying in
concluding that both shots had been fired simultaneously.
Deel's credibility with respect to the firing of two shots
at once is greatly eroded by other inconsistent statements which
he made when he testified before the Virginia Employment Commission and at the arbitration hearing. At the Virginia Employment
Commission hearing, Deel gave the following account of the shotfiring incident (Tr. 44):
A

* * * and we went to Number 7 heading, and we found
it had been double-shot, which is a federal violation, and the jumper wires was wired on through
there, and Bill said, look here, we have found one
that has been double-shot. Tivis [Stiltner] said,
no; he said, that was shot the same turbine (sic).
And he looked at him and said, now Tivis, you know
it's been double-shot. He said, here's your lead
wires and everything, and Bill [Strength] looks at
me, and he said, now I want the truth; he said,
what do you think about it? I said, well it's
plain to see that places have been double-shot.
He said, well I may have to call you for a witness
when we have a trial, and he rolled the wires up
and put them in his pocket as--you know, to show
that the jumper cables were there. He took the
cables and put them in his pocket for evidence.
* * *

2144

It is obvious that Deel had forgotten, by the time he testified
in this proceeding in February 1983, that he.had previously
stated in the Virginia Commission hearing, held on September 22,
1982, that his remark about the double-shot firing had been made
in response to a question asked by the inspector, whereas in
this proceeding, he claimed that his remark was made in response
to at least two questions asked by Stiltner in an effort to get
Deel to agree with Stiltner that the shots had been fired separately.
As to Deel's claim that he saw Fields shoot both places at
once and knew of his own knowledge that Fields had shot the two
places at once, Deel was read in this proceeding (Tr. 190) the
following testimony from the arbitration hearing held on May 28,
19 8 2 (Tr . 7 2 - 7 3 ) :
A.

I said, I just said anybody can see the evidence
is there; they are wired together.
I said I wasn't
there when they was shot.
I said it's plain to see
the evidence is there they was both shot together;
but I wasn't going to lie and say they was shot one
at a time because I wasn't there.
* * * [Emphasis
supplied.]

Deel's explanation in this proceeding concerning the above inconsistent statements is as follows (Tr. 192):
A Well, let me explain to you what I was meaning
by that.
I wasn't actually up there when he tied
the inspector asked me if I was actually up there when
he tied the cable from that cable to this cable.
I
wasn't actually up there, but I was over from Chann
Fields when he mashed the trigger on it.
I could -half a break.
I could see him and I could hear it.
I wasn't right beside him. But what I was saying was
I couldn't be an actual witness to him wiring them together because I wasn't there to see him wire them together; and what I mean by I was there, I was over from
him, you know, I could hear him hollering fire, fire,
fire, and I heard the shot go off when he pulled the
trigger.
I never did see him go back up in there and wire
another one.
I never did hear him yell fire, fire,
fire and shoot nothing else over in there.

Q Well, if you were that close by, wouldn't it
have been obvious that he was shooting two places at
once?
A. Well, I had it figured for that;~but like I
said, I couldn't swear, I never seen him tying the
cables up there.

2145

I stated at the hearing that I was glad I had asked him about
the two inconsi:;>tent statements because it appeared that Deel
was telling two different stories (Tr. 192). Further examination of the statements shows that he did tell two different
stories because he first stated that he knew of his own personal
knowledge that Fields had fired two places at once, but then he
changed his testimony when confronted with his prior statements
in the arbitration hearing to state that he "couldn't swear"
that· Fields had fired two places at once. Yet, that is exactly
what he had done during his direct testimony in this proceeding-sworn under oath that he knew of his own personal knowledge that
Fields had fired two places at once.
In the application which Deel filed on May 21, 1982, with
MSHA, he alleged that "I told Tivis not to shoot two places at
the same time in No. 7, but he did anyhow." When Deel was asked
about that claim during cross-examination, he stated that he
might have made that request on May 5 and that may be the reason
that he recalls that two places were shot at once (Tr. 122). It
is highly unlikely that Deel even knew it was a violation prior
to May 5 that the mandatory safety standards prohibit the shooting of two places at once because he had previously worked with
Randy O'Quinn on the evening shift and O'Quinn testified that
they sometimes fired three places at once (Tr. 261).
Other reasons for doubting that Deel ever brought the firing of two shots to Stiltner's attention are:
(1) Deel was
called out of the mine at 8:30 a.m. to accompany Strength during his inspection of the mine on May 5.
If Deel had asked
Stiltner not to shoot two places at once before he came out of
the mine, that would have been foremost in his mind when he returned underground with the inspector and Deel would have called
the shooting of two places at once to the inspector's attention,
but the evidence shows that it was the inspector who found the
wires and concluded that two places had been shot at once.
(2)
No shots were fired after Strength began his inspection of the
face area.
Therefore, if Deel had asked Stiltner on May 5 not
to fire two places at once, his tendency to brag about his
safety-related activities would have compelled him to tell the
inspector that he had asked Stiltner not to fire two places at
once before he left the face area to come outside for the purpose of accompanying Strength during his inspection.
On the basis of the discussion above, I find that the preponderance of the evidence shows that Inspector Strength was
the sole person who discovered evidence leading to a conclusion
that Fields had fired two places at once. Since Deel played no
- part in calling the alleged violation to the inspector's attention, DOWJs management would have had no reason to retaliate
against Deel merely because he had repeated ..the inspector's own
words and had stated at the time the· inspector found the wires

2146

that the physical evidence supported the inspector's belief that
two shots had been fired simultaneously.
In such circumstances,
the inspector's citing DOW for firing two shots at once, based
on physical evidence leading to a conclusion concurred with by
Deel, would not have been a protected activity which would have
motivated DOW to discharge Deel on May 7, 1982, or 2 days after
the inspector had cited DOW for the violation of section 75.1303.
Stiltner's Alleged Threat
Deel claims that on May 6, 1982, the day after the order
had been written citing DOW for shooting two places at once,
that when the miners were getting into the mantrip to go outside,
the miners were kidding Stiltner about the fact that Deel had refused to lie for him so that the inspector would not cite a violation, Stiltner is alleged to have looked at Deel and said,
"I'll make you pay for this one" (Tr. 27; 120). Deel said that
he figured Stiltner just meant that he would work Deel hard, like
having him drill and roof bolt by himself, but instead Stiltner
fired him the next day, May 7.
Stiltner denies having made such a statement (Tr. 836) and
Fields testified that he did not hear Stiltner make such a statement (Tr. 723). On the other hand, both Randy O'Quinn and Kyle
Turner claim to have heard Stiltner's alleged threat (Tr. 220;
28 8) .
I believe that Stiltner's denial of having made the threat
is more credible than Deel's claim because the inspector stated
that all Stiltner said in response to the inspector's allegation
that two places had been shot at once was a statement that he
was unaware that the condition found by the inspector existed.
It was just as obvious to Stiltner that the wires spoke for
themselves as it was to the inspector and about the only denial
Stiltner could have made was that he was unaware of the fact
that the wires had been connected so as to support a conclusion
that two places had been shot simultaneously. Deel gave inconsistent accounts, as indicated on pages 23-24, supra, about his
personal knowledge of what had happened.
Stiltner would have
had no reason to threaten Deel about his part in bringing about
the issuance of Order No. 922775 (Exh. 1) because Stiltner knew
that the inspector had found the alleged violation by himself
and had taken the wires as evidence that the violation had occurred. Nothing Deel could have said would have changed the
inspector's belief that a violation occurred and there was no
reason for Stiltner to have been carrying any special ill will
toward Deel for the fact that the inspector had cited DOW for a
violation of section 75.1303.

2147

Failure To Install Curtains and Failure To Apply Rock Dust
Deel claims to have irritated management by constantly complaining about the fact that DOW failed to maintain curtains as
close to the face areas as he thought was required and for failure to apply rock dust as close to the face as Deel thought was
required (Tr. 9; 12). The evidence shows that Deel operated a
scoop at times and Deel conceded that he personally knocked down
curtains at times and sometimes he would just tell the "curtain
man" he had knocked the curtain down so that the curtain man
could rehang the curtain (Tr. 63; 67). Deel also conceded that
the "curtain man", Darrel O'Quinn, had threatened to hit him in
the head with a hammer if he drove through a curtain which was
not intended as a travelway for the scoop (Tr. 64-65). While
Deel contended that the confrontation with Darrel over Deel's
running through the curtain occurred shortly after Deel had been
recalled and that Deel was not familiar with the layout of the
mine at that time since they were developing a different area of
the mine from the one in which he had been working when he was
laid off in 1981 (Tr. 65), the fact remains that DOW was using
the same seven-entry mining system when Deel was recalled in 1982
that was being used in 1981 when Deel was laid off. Deel claims
to have been an experienced miner and should have familiarized
himself with the travelways being used for scoops before he got
on a scoop to operate it.
Deel also agreed during cross-examination that DOW's position as to the hanging of curtains was reasonable and that DOW had had so much trouble with the miners
knocking down curtains that DOW had had to assign one miner,
Darrel O'Quinn, to the job of hanging and maintaining the curtains (Tr. 200). Neither Deel nor O'Quinn was able to explain
why DOW would have gone to the expense of assigning a miner to
the sole job of hanging curtains and would then have refused to
supply curtains, as alleged by Deel (Tr. 12, 68; 937).
While Randy O'Quinn supported Deel's claim that DOW did not
maintain the curtains as required by the mandatory safety and
health standards, O'Quinn admitted that he personally failed to
maintain the curtain at the required distance from the face when
cold weather prevailed because the cold air made him uncomfortable (Tr. 938). O'Quinn also conceded that when he was failing
to maintain the curtain at the required distance from the face,
he was necessarily relying entirely on the methane monitor to
safeguard him from encountering a hazardous concentration of
methane (Tr. 939).
Deel also contended that he complained to DOW's management
about their failure to keep the mine properly rock dusted (Tr.
9; 36). Exhibit 1 contains one citation alleging a violation of
section 75~403 for failure of DOW to apply an adequate amount of
rock dust and three citations alleging that DQW had failed to
clean up accumulations of loose coal and coal dust. There is no

2148

doubt, therefore, that DOW failed to apply adequate amounts of
rock dust, but the issue in this case is whether Deel's complaints
about DOW's failure to apply rock dust contributed in any way to
his discharge.
There are several aspects about Deel 1 s understanding of the mandatory safety standards which cause me to conclude
that Deel did not really complain to DOW about the failure to
rock dust in a way which would have motivated DOW to discharge
him for that reason.
I believe that if Deel had comolained to the mine foreman
and the section ·foreman about their~failure to hang curtains and
their failure to rock dust, they would have explained to Deel
that he was in error about his contentions as to how close to the
face rock dust has to be applied. Yet, the evidence clearly shows
that Deel did not understand the regulations and argued with me
on the record as to the meaning of section 75.402, contending
that DOW was required to apply rock dust to within 35 feet of the
working face and that section 75.402, which requires rock dusting
only to within 40 feet of the working face, is inapplicable to
DOW'S mine (Tr. 201).
Deel, unfortunately, cannot read well enough to understand
the citations, orders, and regulations to which he was exposed as
a safety committeeman and the miners' representative to accompany
inspectors pursuant to section 103(f) of the Act (Tr. 75).
Deel
testified that the inspector mailed copies of the citations and
orders he issued to Deel at his home address and that he had his
wife read the contents of the citations and orders to him (Tr. 76).
If Deel did have his wife read the language on the citations and
orders to him, he did not understand what was being read to him
because Citation No. 922767 makes it clear that section 75.400
is enforced only to within 40 feet of the face.
Deel also was
uncertain as to how close to the face the line curtain must be
maintained (Tr. 69). The inspector stated on the termination
sheet accompanying Order No. 922764 that DOW's ventilation,
methane, and dust control plan requires DOW to maintain the line
curtain to within 10 feet of the working face (Exh. 1).
On the basis of the discussion above, I find that Deel failed
to become acquainted with the mandatory health and safety standards sufficiently to be effective in his role as safety committeeman and that his complaining about curtains and rock dust applications were not likely to have been of sufficient concern to
DOW's management to cause them to want to discharge him because
he may have mentioned the lack of curtains and failure to rock
dust on a few occasions.
There are other aspects about Deel's alleged complaints
about failure to erect curtains, apply rock dust, and clean up
loose coal which are less than convincing. For example, Deel
contends that temporary supports or safety jacks were not being
set, but he conceded on cross-examination that it is the duty of

2149

the operator of the roof-bolting machine to install the safety
jacks.
Since Deel generally operated a roof-bolting machine,
he necessarily recognized that he had to be a primary of fender
if the safety jacks were not being set, so he claimed that the
section foreman, Stiltner, had ordered him not to set safety
jacks, or temporary supports, because it took toQ much time to
set them (Tr. 126).
Taylor, the mine foreman, claims that he ordered Stiltner
to have Deel set temporary supports on at least one occasion
when he saw Deel installing roof bolts without using them (Tr.
423; 844). Taylor also stated that the miners were not using
safety jacks when he became mine foreman and that that was one
of the areas in which he tried to improve safe mining practices
at the mine (Tr. 421-423). Stiltner testified that the miners
objected to erecting safety jacks when he ordered them to do so.
He said that when they asked him if they would be fired for not
setting them, he told them he would not fire them for failing
to set them, but he would have to give them time to do so and
would have to see that they worked safely (Tr. 844).
It is not
likely that miners would ask if they could be fired for failing
to install safety jacks unless they had a propensity for preferring to ignore the requirement for setting safety jacks.
Consequently, it is just as likely that safety jacks were not
being set because that was the miners' preference as much as it
was that Stiltner had told them he would prefer that safety
jacks not be set, as claimed by Deel (Tr. 126).
If Deel had been the aggressive safety committeeman that
he contends he was, he would have had an ideal situation for
calling an MSHA inspector to get it established that the setting
of safety jacks is required by DOW's roof-control plan.
Deel
contends, without record support as indicated above on page 14,
supra, that he called Inspector Strength to ask for a special
inspection when the belt-control switch was bridged out, and he
contended that he called Inspector Strength to ask for a special
inspection as to loose coal accumulations along the belt line
(Tr. 36).
There is hardly any explanation for Deel's failure
to insist on setting safety posts, if he had really been instructed not to do so, other than the simple fact that he was
too lazy to bother with setting them himself and brought up the
matter of DOW's failure to require the setting of safety posts
as just one more contention about his alleged safety-related
complaints.
In his complaint filed with MSHA on May 21, 1982, Deel
stated "* * * I asked Tivis [Stiltner] to have Chann to pull
the curtain 30 feet out the face before he shot the coal.
Tivis said that Chann didn't have to.
That you could do it
yourself" (Exh. 2; Tr. 70-71).
If DOW had cqmplied with the
aforesaid request, it would have been in violation of the mandatory health and safety standards and its own ventilation,

2150

methane, and dust control plan. One of DOW's owners, Walker W.
Hay, testified that they were shooting from the solid and that
the explosives would knock holes in the curtains and throw them
back down the track about 20 feet outby the face.
Therefore,
he said that in 1981 DOW asked MSHA for a variance in its ventilation plan which would permit them to set the curtains back
out of the way prior to detonating the shots so that the curtains would not get torn or knocked down by the explosives.
MSHA denied the request (Tr. 366-367).
Deel's allegation that he asked Stiltner to have the curtain moved back 30 feet before blasting shows that he did not
understand the reason for having the curtain close to the face.
Noxious fumes, methane, and dust are very likely to accumulate
at the working face immediately after explosives are detonated.
It is safer for the miners to have a damaged curtain hanging as
close as possible to the face after a shot is detonated, than
to have the curtain removed 30 feet from the face before the shot
is detonated. A damaged curtain will remove some dust, noxious
fumes, and methane, but a curtain which is 30 feet outby the
face will have no ability whatsoever to sweep dangerous accumulations from the working face.
The above discussion shows that Deel was simply uninformed
as to what the safety and health regulations were. Management
necessarily had to deny some of his complaints about safety, if
they were made, because he was asking management, at least part
of the time, to violate the safety and health standards and to
perform acts which were not required by its ventilation plan.
In such circumstances, it cannot be successfully argued that DOW
would have discharged Deel because he was making safety complaints.
Additionally, Deel's condemnation of DOW's management is
inconsistent like all his other allegations in this proceeding.
For example, Deel testified that when he was first elected as
safety committeeman, DOW's management cooperated with him and
provided him with all the supplies he wanted to make the mine
safe.
Deel states that, as a result of DOW's cooperation, the
mine received no citations of violations during the first inspection which occurred after he became safety committeeman (Tr.
199' 431).
It is correct that Inspector Strength did not write any
citations during the first inspection he made after Deel became
safety committeeman, but Deel was elected safety committeeman
on Saturday, April 3, 1982, and Deel's first day at the mine as
safety committeeman occurred on Monday, April 5, 1982. The
"clean" inspection made by the inspector on April 5 and April 6,
1982, during which no citations of violations occurred, would
necessarily have been made on the basis of the way the mine had
been left by Chann Fields, who was superseded" by Deel as safety
committeeman.
DOW's management did not even know that Deel had

2151

been elected to replace Chann Fields as safety committeeman until
April 5, 1982 (Tr. 711).
In such circumstances, Deel cannot take
credit for the fact that no violations were cited by the inspector when he examined the mine on April 5 and April 6, 1982.
The effect of Deel's having claimed that DOW's management,
when he was first elected committeeman, cooperated with him and
provided him with all the supplies he needed to make the mine
safe, leaves Deel in the position of having indicated that DOW's
management was interested in operating a safe mine on or about
April 5, 1982. Deel was the safety committeeman for 32 calendar
days prior to his discharge and only actively performed the duties of a safety committeeman for a period of about 20 days, as
indicated on page 11, supra.
Deel has not established that he
actually did anything after April 5 which would have changed
DOW's position regarding safety within a period of 32 days so
drastically that DOW would have wanted to discharge its safety
committeeman just because he had tried to make the mine safe.
As will hereinafter be shown, it was Deel's failure to do his
job properly which caused him to be discharged--not his alleged
protected activity under section 105(c) (1) of the Act.
Deel's Allegations of Disparate Treatment
Deel testified during his direct testimony and crossexamination (Tr. 42; 48) that he had not refused to perform a
work order and that he did not know of anyone else who had ever
refused to perform a work order.
Randy O'Quinn testified, however, that he had refused to perform work orders and that Deel
"thought it up" and had his attorneys ask O'Quinn about it (Tr.
273). The nearest O'Quinn ever came to refusing a direct order
was one time when he was working for Jim Deel (who is not related
to complainant (Tr. 353) and who was a section foreman).
On that
occasion, O'Quinn refused to watch the belt drive and said he was
going home if that was all they had for him to do. He alleges
that when he went outside at that time to hang up his light,
Taylor, the mine foreman, asked him where he was going and persuaded him to go back into the mine to work on an extension of
the water line (Tr. 912). O'Quinn also claims to have refused to
perform work orders given by Stiltner, such as refusing to run
the drill, and that Stiltner would undertake to drill a few holes
and would feign that the drilling was hurting his back and
O'Quinn would then take over and go ahead with the drilling (Tr.
910-911).
The only time O'Quinn ever claimed to have refused to
perform a work order, without changing his mind and doing the
work after having said he would not do it, was in connection with
the aforesaid incident of watching the belt drive, and even in
that case, he relented and returned underground to perform alternate work other than watching the belt drive. Moreover, that alleged refusal to work involved a different section foreman from
the one who discharged Deel.

2152

In this proceeding, it is a fact that O'Quinn first told
Stiltner that he was sick and could not go after an auger barrel
which Stiltner had requested him to obtain. Yet, a few minutes
later, he either went back to work voluntarily, as contended by
Stiltner (Tr. 823), or he obeyed Stiltner's request that he go
back to work, as he claimed (Tr. 226). Therefore, the record
does not support Deel's claim that Stiltner allowed other miners
to refuse to perform work orders without disciplining them,
whereas Stiltner discharged Deel for refusing to perform a work
order.
Kyle Turner stated at the arbitration hearing that he believed Stiltner treated all the miners on his crew alike (Arb.
Tr. 122). Although Turner had some difficulty in answering a
question about Stiltner's equal treatment of the miners when he
testified in this proceeding, he ultimately conceded on crossexamination that his statement made at the arbitration hearing
was correct (Tr. 297-300). When Turner testified on redirect
examination of his rebuttal testimony, however, he was finally
persuaded to state that he thought Deel was treated "a little
different from the rest of the men" (Tr. 1000), but that change
of opinion was elicited from him after several admissions to the
contrary.
The different treatment Turner appears to have been referring to would apparently have been Turner's allegation that
Stiltner had at times assigned Deel to run the coal drill which
involves considerable manual labor (Tr. 342). Turner stated
that Stiltner always told them on such occasions to bolt the
places as fast as they could just to make Deel work hard (Tr.
326; 973), but Turner subsequently said that he still switched
jobs sufficiently to avoid making it "that hard" on Deel (Tr.
343). Turner also conceded that he rarely had to work on the
same roof-bolting machine that Deel was assigned to operate (Tr.
987-988).
O'Quinn also testified that when Deel was working on the
night shift prior to the time Deel was laid off in 1981 for
econimic reasons, that Stiltner once granted Deel's request
that he be permitted to work at the face, instead of at the tailpiece where he was normally assigned to work. On that occasion,
Stiltner told O'Quinn to make Deel do all the drilling, but
O'Quirin also admitted that he had a miner named Mack Lester helping him and that Lester liked to drill and did all the drilling,
so that the way they made it "hard" on Deel was that they just
worked faster than usual so that they were able to bolt and drill
10 places that night instead of eight (Tr. 964-966).
O'Quinn additionally stated that Stiltner, in those days,
would assign Deel to performing work at the tailpiece just to
get Deel out of the face area because Deel "got under his skin"

2153

and he did not want Deel where he had to.see him very often (Tr.
960). There was certainly nothing about Deel's activities in
the mine that indicated he was a safety-conscious leader in those
days because he requested permission to help a crew of men operate in the face area at a time when they were carrying explosives
on the top of the roof-bolting machine--a procedure which was
certainly as hazardous as it was for Chann Fields to haul explosives on his tractor. Yet Deel does not claim that he or anyone
else ever pointed out to DOW's management that hauling powder on
the roof-bolting machine was an unsafe practice.
In order for Deel to prove that DOW discriminated against
him, he must show that he was treated differently from the other
miners because of some activity protected under the Act, but Deel
has been unable to show that his different treatment, if any, had
anything whatsoever to do with safety-related activities. Stiltner testified that he discharged Deel on May 7 because he "had
had it" with him (Tr. 810).
The record shows that Deel engaged in activities which were
in no way protected under the Act and in conduct which would
necessarily cause a supervisor to want to assign him to tasks
that would make it unnecessary for the supervisor to come in contact with him. For example, Stiltner testified that one night
when Deel was working on the night shift, also before he was
ever laid off in 1981 for economic reasons, that the electrical
power kept going off at the main power source and Stiltner could
not determine what was causing the power interruptions. Finally,
one of the miners told Stiltner that Deel was sitting behind the
rectifier kicking the power off.
Stiltner said that he went to
the power source and found Deel sitting behind the rectifier.
Stiltner stayed at the rectifier for an hour or longer and the
power never did go off any more after that. Stiltner stated
that after Deel was called back to work in 1982, Deel admitted
under questioning by Stiltner that he had been knocking the power
off, but he said that Stiltner could not prove it and could not
do anything about it (Tr. 845-846). Deel made no attempt to rebut Stiltner's allegations about his power-interrupting activities.
In my opinion, if any other miner had been as obstinate about doing the work assigned to him by his foreman as Deel was
on May 7, Stiltner would have taken the same action against that
miner that he did in connection with Deel's failure to operate
the scoop.
I find that the preponderance of the evidence fails
to support Deel's contentions that he was treated differently
from other miners because of his safety-related work as safety
committeeman or because of any other activity protected under
the Act.

2154

The Aborted Discharge
About 1 (Tr. 115) or 3 (Tr. 819) weeks before Deel was
actually discharged, Stiltner did not have a full crew of miners
and requested Deel to install roof bolts as well as drill holes
in the face for the placement of explosives. About 8:30 a.m.
Stiltner checked the face area and found that Deel was not doing
anything and had only drilled holes in one heading.
Stiltner
asked Deel what. was wrong and Deel told Stiltner that installing
roof bolts and running the drill were too hard for one man to do
and that he was not going to do both jobs. Stiltner advised Deel
that his response left Stiltner with no alternative but to take
him outside for purposes of discharging him. As Stiltner and
Deel were passing the loading point in a scoop, Deel asked to
talk to his committeeman, Kyle Turner, who was at the loading
point. After a discussion between Turner and Deel, Turner asked
Stiltner to put Deel back to work as Turner did not think Deel
had refused to perform both jobs. Stiltner asked Deel if he
would do his job if he put him back to work and Deel said he
would. Therefore, Stiltner allowed Deel to return to the roofbolting machine~
Stiltner said that he went to check on Deel about 10 minutes later and Deel had still not started installing
roof bolts. Therefore, Stiltner ran the roof-bolting machine for
the remainder of the day so that Deel would only have to operate
the drill (Tr. 820-821).
·
Deel's story in this proceeding about his having to drill
holes and install roof bolts on the same day differs from Stiltner' sonly in that Deel contends that he had already drilled
three or four places before Stiltner found him resting long
enough to get his breath before going into a new place (Tr. 117).
Deel also claims that Stiltner "hollered" at him to get moving
and he meant right then.
Deel says that when he told Stiltner
that Stiltner could make him do the work, but could not make him
"run" at it, Stiltner told him he was fired and started taking
him out of ·the mine in the scoop, but Stiltner stopped so that
Deel could talk to Turner who persuaded Stiltner to put Deel
back to work (Tr. 117-118). Deel also agrees that Stiltner ran
the roof-bolting machine for the remainder of the day so that
Deel only had to operate the drill for the rest of the shift
(Tr. 120).
Once again Stiltner's version of the incident is more credible than Deel's because Deel endeavored to justify his position
by claiming that he had already drilled three or four places before Stiltner asked him to get to work (Tr. 117). It is necessary to bolt the top before drilling is done at the faQe (Tr.
182). Several witnesses, including Deel, have testified that
it takes 15 minutes to install roof bolts without using temporary supports and that it takes at least 10 m;inutes to drill 10
holes in one place (Tr. 127; 162; 776; 942). Therefore, it
would have taken Deel three times 25 minutes to install roof

2155

bolts and drill in three places and 100 ~inutes to bolt and drill
four places.
Deel did not deny that his riear discharge occurred
about 8:30 a.m. as claimed by Stiltner. The miners go underground at 7:00 a.m. and it takes about 25 minutes to arrive at
the working place (Tr. 720; 1069). They generally spend some
time emptying the dust-collecting box and checking over the roofbol ting machine and drill (Tr. 133; 187; 793). Therefore, it is
quite unlikely that Deel had been working for as much as an hour
before Stiltner. asked him why he was not working.
In an hour's
time, he would not have been able to install roof bolts and drill
in three or four places before Stiltner asked him why he was not
working. Stiltner was upset because Deel had drilled only one
place before Stiltner found him doing nothing. There is no reason to believe that Stiltner would have been upset if he had
actually drilled three or four places before Stiltner found him
"resting".
At the Virginia Employment Commission hearing, Deel testified that he had been running both the roof-bolting machine and
doing the drilling by himself for almost 3 days before Stiltner
started to discharge him (Emp. Com. Tr. 41), but in this proceeding, he claimed that he had been assigned to do both types
of work only "that morning'' (Tr. 115). Stiltner testified that
other miners, such as Turner, had been assigned the dual jobs of
installing roof bolts and operating the drill (Arbitration Hearing, Tr. 8) .
Regardless of whether Stiltner was unduly critical of Deel's
work efforts on the day he almost discharged Deel, the fact remains that Deel was involved in a confrontation with his foreman
which caused the mine committeeman to think it was necessary to
explain to Deel that he could not refuse to perform a work order
(Arb. Hearing Tr. 70). Moreover, Deel testified at the arbitration hearing that he was aware of the fact that he was required
under union rules to carry out a foreman's instructions and subsequently file a grievance if he felt that the work order was
unreasonable (Arb. Hearing Tr. 96).
Deel's statement that he
replied to Stiltner's order for him to get to work by saying that
Stiltner could make him work but couldn't make him "run" at it
was argumentative and was equivalent to saying that he would
work as slowly and do as little as he found it convenient to do.
Stiltner's willingness to abort his trip out of the mine
after the mine committeeman's appeal that Deel be given another
chance to do his job shows that Stiltner was not unreasonable in
his demands of his employees and, in fact, Deel admitted during
cross-examination that he thought Stiltner was "fair" in performing his supervisory duties (Tr. 120). There is nothing about
Deel's near discharge for failing to perform the jobs of roof
bolting and drilling which indicates that DOW. would have discharged
him that day or on May 7 because of his having made alleged safety
complaints to DOW's management or to MSHA.

2156

The Actual Discharge
At the time Deel worked for DOW, coal was produced by a
conventional mining process involving the use of two roofbolting machines, two coal drills, three or four batteryoperated scoops, and conveyor belts (Tr. 267; 806-807). The
coal drills operated from hydraulic power supplied by the roofbol ting machines (Tr. 181). Two miners were assigned to each
roof-bolting crew. Normally, one of the miners would operate
the roof-bolting machine and the other would operate the coal
drill, but often the miners would swap jobs so that each one
would engage in an equal amount of coal drilling which involved
more actual manual labor than operating the roof-bolting machine
(Tr. 117; 184; 342; 708-710). When the normal crew of men was
available, Billy Deel and Kyle Turner were considered the operators of the roof-bolting machines (Tr. 275). Lee Grizzle was
assigned to operate the coal drill attached to Turner's roofbolting machine and Randy O'Quinn was assigned to operate the
coal drill attached to Deel's roof-bolting machine (Tr. 162;
987).
Chann Fields was the shot fireman, Floyd O'Quinn was one
of the operators of a scoop, and Darrel O'Quinn was assigned as
curtain man to install ventilation curtains at the face and outby the face (Tr. 806-807).
Darrel O'Quinn was off in May of
1982 and Stiltner, the section foreman, was short a scoop operator because of absenteeism (Tr. 680). A miner by the name of
Clayton Justice had been hired as a prospective section foreman
on April 19, 1982, on the assumption that DOW would be able to
open another section in the mine (Tr. 679; 705).
Justice had
not operated scoops as they were used in DOW's mine and had not
operated a roof-bolting machine like the ones used in DOW's mine,
but he was competent as an operator of a coal drill (Tr. 771;
775; 782). Justice was assigned to operate the coal drill attached to the roof-bolting machine which was normally operated
by Deel and Randy O'Quinn (Tr. 788).
Deel and Randy O'Quinn
were also experienced operators of a scoop and, for that reason,
they had been asked to alternate between the jobs of operating
the scoop and operating the roof-bolting machine (Tr. 124; 186;
773; 792; 801). The above-described arrangement required that
on the days when O'Quinn was assigned to the roof-bolting
machine, Justice did the drilling.
Likewise, when Deel was
assigned to the roof-bolting machine, Justice did the drilling
Tr. 7 8 5 ; 7 8 8 ) .
Deel's discharge on Friday, May 7, 1982, occurred because
he insisted on operating the roof-bolting machine despite the
fact that his supervisor, Stiltner, wanted him to operate a
scoop and haul coal from the working faces to the conveyor belt
(Tr. 773; 809-810). About half of the testimony in this proceeding was devoted to listening to Deel's, O'Quinn's, Justice's,
Stiltner's, ~aylor's, Fields', and Turner's yersions of the incidents which led up to Stiltner's decision to discharge Deel

2157

for insubordination.
It is significant that Deel did not voluntarily give an account of the events which led up to his discharge
in the complaint he filed with MSHA, or in the complaint filed
with the Commission, or in his direct testimony in this proceeding. Deel's failure to give in his direct testimony a complete
running account of his version of the incidents of May 7, 1982,
requires one to collect his version of those events from various
places throughout his cross-examination.
If all the statements made by Deel during cross-examination,
redirect examination, recross-examination, and my examination are
pieced together, Deel's version of the events is as follows: On
May 7, 1982, Deel was asked by Stiltner to get a scoop and use
it to pull the mantrip into the mine (Tr. 100). After Deel arrived at the working section, he delivered the miners to their
working places, unhooked the mantrip, and proceeded on the scoop
to "his" roof-bolting machine (Tr. 102-103; 125; 173). Although
Randy O'Quinn and Clayton Justice were already at "his" roofbolting machine when Deel arrived, the fact that two miners were
there did not have any significance to Deel because Justice was
getting something to eat out of his lunch bucket which was carried on Deel's roof-bolting machine (Tr. 183). Additionally,
Justice had been assigned to drill from Deel's roof-bolting machine before May 7 and Justice, Deel, and O'Quinn would just
swap jobs and work together (Tr. 184). There was no significance
to Deel that Justice asked Deel what job he was planning to do
that day because, when Deel told Justice that he was planning to
operate the roof-bolting machine, Justice said only that he
guessed he would operate the scoop (Tr. 185).
Justice, after saying he guessed he would have to operate
the scoop, got on the scoop which Deel had parked near the roof
bolter and left.
In a little while, Justice returned and stated
that Stiltner, the mine foreman, wanted Deel to run the scoop
that day and wanted Justice to run the coal drill hooked to the
roof-bolting machine. Deel's reply to Justice's message from
Stiltner was that if Stiltner wanted Deel to run the scoop that
Justice should go back to Stiltner and tell him to come to the
roof-bolting machine in person and tell Deel what he wanted Deel
to do. Justice left again on the scoop and returned on foot a
little while later (Tr. 172-173). Deel, upon Justice's second
appearance, asked Justice what the story was now and Justice
told him that Stiltner said he would be up there to talk to Deel
"in a minute" (Tr. 187).
Stiltner soon thereafter rode to Deel's roof bolter on a
scoop and Deel claims that the first thing he said to Deel when
he arrived was "to get my goddamned ass in the buggy." Deel
said "What?" and Stiltner then asked, "Are you refusing to run
a scoop?" to which Deel replied, "No, sir, I ain't refusing to
do nothing." Stiltner then said, "We1:1, you're fired.
Get your
damn ass in the buggy, you're going to the outside." (Tr. 103).

2158

About that time, Deel claims that Stiltner turned to O'Quinn
and started talking to him about an auger barrel needed for the
coal drill and Stiltner tried to send O'Quinn to get one, but
O'Quinn did not want to go after one on foot, so O'Quinn told
Stiltner he was sick and was going home. Stiltner told O'Quinn
to get his ass in the scoop's bucket and then Stiltner looked
at Deel and told him to get in the scoop bucket also (Tr. 103104) •
Deel said that after Stiltner started out of the mine with
both him and O'Quinn in the scoop's bucket, Deel asked Stiltner
three or four times to stop so that Deel could talk to his safety
committeeman, Kyle Turner.
Deel says that Stiltner finally
stopped and a discussion ensued during which Turner asked Stiltner to give Deel another chance since, as Turner understood the
matter, Deel had not refused to operate the scoop. Deel claims
that Stiltner calmed down a lot and asked Deel if he were to put
him back over there, would Deel run coal and Deel said he would.
Deel thinks that Stiltner would have allowed him to go back to
work if, about that time, Chann Fields had not spoken up and
said, "There ain't no damn use arguing with him any more.
Take
him the hell on out (Tr. 114) ." Whereupon, Deel says that Stiltner told Deel and Turner both to get in the scoop's bucket and
he would take both of them outside. Deel additionally claims
that Stiltner did not want O'Quinn to be a witness to the conversation he was having with Turner and Deel and ordered O'Quinn to
go back to work and O'Quinn got out of the scoop's bucket and
went back to the roof-bolting machine (Tr. 114-115).
Stiltner's version of what happened on May 7, 1982, is as
follows:
Stiltner says that he explained to Deel before they
went into the mine that he was short a scoop operator that day
and that he would take the little scoop in and try to operate it
himself along with doing his supervisory duties and that he
wanted Deel to get the big scoop and pull the mantrip in with
it. The reason Stiltner had the discussion with Deel about the
"little" and "big" scoops was that Stiltner had had some stomach
problems associated with internal bleeding and he had found that
he could be more comfortable in the little scoop than he could
in the big one. Stiltner stated that Deel also wanted to take
the little scoop and it was necessary for Stiltner to insist
that Deel use the big scoop (Tr. 807; 857).
Chann Fields rode into the mine with Stiltner in the little
scoop and all the other miners went underground in the mantrip
pulled by Deel. Stiltner let Fields off at his tractor used to
pull the explosives wagon and Stiltner then drove the little
scoop to the belt tailpiece where Stiltner needed to make some
repairs. While Stiltner was working on the belt, Clayton Justice
came to see him riding on the big scoop which Deel had used to
pull the mantrip into the mine. Justice told~Stiltner that Deel
had decided he wanted to operate the roof-bolting machine and

2159

that Justice assumed that Stiltner wanted.him to run the scoop,
but Stiltner told Justice to go back to the roof-bolting machine
and tell Deel that he wanted Deel to run the scoop and for Justice to drill coal.
Subsequently, Justice returned and stated
that Deel had told him he was not going to run the scoop and for
Stiltner to come up there and talk to him.
Stiltner says he
told Justice to park the big scoop and go back and tell Deel
that he would be up there in a few minutes (Tr. 808).
Stiltner says that he got in the little scoop a short time
later and drove over to the roof-bolting machine where he asked
Deel what his problem was and Deel stated that he did not have
any problem.
Stiltner then asked him why he wouldn't run the
scoop and Deel said that he wouldn't run the scoop and let somebody else do his job. Stiltner then told Deel "to either get
on his scoop or get in the bucket" (Tr. 809). Deel then came
toward the scoop's bucket.
At that time, Stiltner looked at
O'Quinn and asked him why he was not working and O'Quinn said
he needed an auger barrel for the drill.
Stiltner told O'Quinn
to go get one, but O'Quinn said that he was sick--had an earache
or something like that--and was going to the house.
O'Quinn
then got into the scoop's bucket with Deel and Stiltner started
outside with both of them (Tr. 809).
After they had gone about two breaks, Deel wanted to stop
and talk to the committeeman, Kyle Turner.
Stiltner stopped the
scoop and Deel got out and went to talk to Turner. O'Quinn,
according to Stiltner, decided he felt like working and went
back to the roof-bolting machine. After Turner and Deel had
talked for a few minutes, both of them came over to Stiltner who
was still sitting on the scoop.
Turner asked Stiltner what the
problem was and Stiltner says he explained to Turner that Deel
had told him that he was not going to run a scoop and let someone else operate his roof bolter.
Stiltner claims that Turner
asked him twice to put Deel back to work and Stiltner refused
both requests, saying that "he had had it with" Deel and was
taking him out (Tr. 810).
Stiltner alleges that he then told
Turner that he would do even better than taking Deel out and
would take Turner and Deel both out so they could all talk to
the mine foreman, Taylor.
Chann Fields, who had already returned with the auger barrel which O'Quinn had asked him to obtain, was listening to the
discussion in which Stiltner, Turner, and Deel were engaged.
Fields needed to obtain an explosives-shooting battery from outside the mine and, feeling that the discussion was at an impasse
at this point, spoke up and said that if Stiltner was going out,
he would like for Stiltner to bring him a shot-firing battery
when he returned.
Turner, Deel, and Stiltner all say, however,
that Fields began his statement by saying, "There ain't no use

2160

arguing about it no more.
Take him on out." Turner and Deel
claim that Stiltner would have relented and would have put Deel
back to work if Fields had not made that statement (Tr.· 114;
285), but Stiltner claims that it was none of Fields' business
in the first place and that Fields' statement did not influence
his determination to discharge Deel for insubordination (Tr. 824825) • Fields denies that he stated anything about there not being any use to argue and that Stiltner should go ahead and take
Deel outside, but.he agrees that he did ask for Stiltner to bring
him a shooting battery (Tr. 749; 758).
Regardless of whether Fields influenced Stiltner's decision,
all witnesses agree that Turner and Deel got into the scoop's
bucket and were taken outside by Stiltner.
There is no need in
giving a detailed discussion here of what occurred on the surface
of the mine as those facts are not contested by the parties, except in very minor details, and are summarized in Finding Nos.
17 and 18, supra.
As indicated.above, Clayton Justice was the miner who carried Deel's statements to Stiltner and Stiltner's replies back
to Deel. Justice was also present when Stiltner returned from
working on repairing the conveyor-belt tailpiece to find out why
Deel would not run the scoop.
Justice's version of the actions
and statements leading up to Deel's discharge is as follows:
Justice began working for DOW on April 19, 1982, and O'Quinn was
on sick leave at that time.
Justice had run a coal drill prior
to being hired by DOW (Tr. 771). Therefore, Justice was asked
to run the coal drill which received its hydraulic power from
the roof-bolting machine normally operated by Deel. Consequently, on his first day at the mine, Justice worked with Deel.
DOW
did not have enough scoop operators when Justice first began
working there. As a result, when O'Quinn and Deel were both
present at the mine, O'Quinn and Deel alternated jobs so that
every other day Deel ran a scoop while O'Quinn operated the roof
bolter and when O'Quinn ran the scoop, Deel operated the roof
bolter.
Justice was the drill man regardless of whether Deel
or O'Quinn was the operator of the roof-bolting machine (Tr. 785).
Justice knew how to run a scoop, but had never used one to haul
coal in DOW's mine (Tr. 785).
Deel was hurt about April 22 when he was thrown to the
front of a scoop while he was riding in a scoop operated by Webb
Bailey (Tr. 189; 873).
Deel returned to the mine to work on
May 3, 1982 (Exh. L). The mine was closed by Inspector Strength
on May 5, 1982, and was not released from the withdrawal 9rders
until May 6, 1982 (Tr. 825; 831). Since Justice had been operating the drill on a rather continual basis, he assumed he would
be running-the drill on May 7, the day of Deel's discharge.
Consequently, Justice spent the time just prior ~o going underground
sharpening bits for use in the coal drill.
Therefore, Justice

2161

did not hear Stiltner give any instructions to Deel as to whether
he was expected to operate a scoop that day, but Justice assumed
Deel would operate the scoop that day because O'Quinn and he rode
the mantrip while Deel operated the scoop which pulled the mantrip into the mine (Tr. 792).
Justice took his bits and went to the roof-bolting machine
from which he normally drilled. Shortly thereafter Deel pulled
up to the roof bolter in the scoop and came over to the roof bolter.
Justice asked Deel what he intended to do and Deel said that he
was going to run "his" roof bolter.
Clayton replied that he assumed that meant that he would have to run the scoop to which Deel
said "I guess so" (Tr. 772). Clayton felt that since Deel had
been working for DOW longer than he had, that he had no reason to
argue with him, but Justice was also uneasy about starting to run
the scoop without making certain that Stiltner wanted him to change
jobs (Tr. 794), so Justice got on the scoop which had been parked
by Deel near the roof bolter and drove it about 120 feet, or two
breaks, to the tailpiece where Stiltner was working (Tr. 795-796).
When Justice explained to Stiltner that Deel said he was
going to operate ·the roof bolter and asked Stiltner if he wanted
Justice to run the scoop, Stiltner replied by requesting Justice
to go back to the roof bolter and tell Deel that Stiltner wanted
Deel to run the scoop and wanted Justice to drill coal. After
Justice had returned to the roof bolter and had relayed Stiltner's
message to Deel and had received Deel's retort that Deel was going to run "his" roof bolter and for Stiltner to come in person
and tell Deel what he wanted him to do, Justice went back to the
tailpiece and told Stiltner that Deel was insisting on running
the roof bolter. Stiltner then told Justice to park the scoop
and go back to the roof bolter and that he would come and talk to
Deel after he had finished his repairs at the tailpiece (Tr. 773).
Justice went on foot back to the roof bolter and told Deel
that Stiltner would be up there and talk to him in a few minutes.
Justice then sat down and waited for Stiltner to appear. According to Justice, Stiltner came to the roof bolter in a few minutes
and asked Deel why he wouldn't run the scoop.
Deel wanted to
know what Stiltner meant by that question and Stiltner explained
that he was asking Deel to run the scoop because he believed that
Deel was more familiar with the scoop than Justice and that more
coal could be produced with Deel as the scoop's operator than
would be produced with Justice as the scoop's operator. Stiltner
then told Deel that if he was not going to run the scoop, to get
in the scoop's bucket and Deel got into the bucket (Tr. 773; 799).
As Justice recalls the events, Stiltner's conversation with
Deel had been completed before Stiltner turned to O'Quinn to find
out why O'Quinn was doing nothing.
Stiltner ~hen ordered O'Quinn
to go after an auger barrel on foot. .0' Quinn did not want to
walk a few breaks to get one, so O'Quinn said he was sick and got

216f!.

in the scoop's bucket with Deel and Stiltner started to the outside with both of them. Justice does not know anything more
about what happened after that (Tr. 773). While Justice said on
direct examination that he did not hear O'Quinn tell Stiltner
that Fields had gone for an auger barrel, Justice was recalled
as a rebuttal witness and stated at that time that O'Quinn did
ask Stiltner why Fields could not go after an auger barrel on
the tractor (Tr. 1017). Assuming that Justice's rebuttal testimony is correct, he was still unable to explain how Stiltner
would have known O'Quinn needed an auger barrel if O'Quinn had
not told him that he was not drilling because of a lack of an
auger barrel (Tr. 1Dl9).
Randy O'Quinn was the other miner present during Justice's
and Stiltner's conversations with Deel on May 7, 1982. O'Quinn
testified at the arbitration hearing held on May 28, 1982.
O'Quinn's testimony at the arbitration hearing supports in nearly every detail Stiltner's and Justice's versions of the events
leading up to Deel's discharge, but in this proceeding O'Quinn's
testimony shows that he was trying very hard to support only
Deel's version of the events of May 7 (Tr. 222-229).
During
cross-examination by DOW's counsel, O'Quinn stated that what he
said at the arbitration hearing was closer to the time the events
occurred than his testimony in this proceeding was and would be
likely to be more correct than his testimony in this proceeding
which was given on February 15 and 16, 1983 (Tr. 253).
Subsequently, the following colloquy occurred (Tr. 271):

Q Do you think that anything you said at the
arbitration hearing was wrong?
A No, because that was closer to the time.
I'd
say it would be more right than what I could tell you
today, because that long ago I can't remember every
word.
I just remember patches.

In view of the above statement by O'Quinn, I am relying upon his
testimony in the arbitration hearing for the purpose of determining his version of the events leading up to Deel's discharge.
According to O'Quinn, Stiltner ordered Deel to get the
scoop and pull the mantrip into the mine.
Deel pulled the mantrip into the mine as ordered and parked the mantrip at its
accustomed place.
Then Deel drove the scoop to the site where
Justice and O'Quinn were beginning to prepare the roof-bolting
machine and drill for work. When Deel came close to the roof
bolter, Justice asked Deel what job he was planning to do and
Deel replied that he was going to bolt the roof, so Justice got
on the scoop which Deel had driven to the roof bolter and left.
After a while, Justice returned and told DeeL that Stiltner
wanted Deel to run the scoop.
Deel told Justice that if Stiltner

2163

wanted him to run the scoop, for Stiltner to come up and tell
Deel that in person.
Subsequently, Stiltner came to the roof
bolter on a scoop and wanted to know what was going on and Deel
said nothing unusual was going on. Stiltner then asked Deel what
job he was going to do and Deel said he was going to bolt the
roof, but Stiltner said "No" to that and stated that he wanted
Deel to run the scoop.
Deel then asked Stiltner if he was going
to park· the roof bolter and Stiltner replied "No" (Arb. Tr. 100101).
O'Quinn recalls that Stiltner then turned to O'Quinn and
ordered him to get an auger barrel, but O'Quinn said he was sick
and would just go to the house. O'Quinn claims that he then got
his dinner bucket and got into the scoop's bucket after which
Stiltner asked Deel if he was refusing to run the scoop and Deel
replied, "No", but Stiltner looked at Deel, according to O'Quinn,
and told him that he might as well get into the scoop's bucket
with O'Quinn.
Deel got into the scoop's bucket and Stiltner
started out with both of them, but finally stopped, at Deel's request, so that Deel could talk to the mine committeeman, Kyle
Turner.
Stiltner then told O'Quinn to go back to the roof bolter.
O'Quinn got out of the scoop and went back to the roof bolter, as
requested, and did not hear any of the discussion which took
place after Stiltner stopped the scoop so that Deel could talk
to Turner (Arb. Tr. 101).
I have already provided in Finding Nos. 11 through 17, supra,
the version of the events of May 7, 1982, which is supported by
the preponderance of the evidence in this proceeding. Even if
one were to adopt, however, the version of the events of May 7,
1982, which was elicited from Deel during cross-examination and
my questioning, DOW was justified in discharging Deel for insubordination.
Deel conceded that he had gone to "his" roof bolter
on May 7, 1982. He found a two-man crew already preparing the
roof bolter for operation.
Prior to his being off for a week,
he had been running the scoop on alternate days and he claimed
that he did not mind running the scoop because he knew "how to
do everything they had there" (Tr. 186).
Although Deel said he did not mind running the scoop, he
also stated that Justice did not like to operate the scoop because it "bounced" him around (Tr. 183).
If the scoop "bounced"
Justice around, it would also have bounced Deel around. When it
came to the desirability of running a scoop as compared with
operating a roof-bolting machine, Randy O'Quinn stated that operating the roof bolter was the easiest job in the mine and that
if-running a scoop was as easy as roof bolting, he would have a
scoop operator's job (Arb. Tr. 109).
Deel's claim that he had no reason to believe that Stiltner
wanted him to operate a scoop when he went into the mine on May 7,
1982, is unconvincing because Deel had previously been alternating

2164

between running the roof bolter and the scoop and he knew that
Justice had sharpened drill bits just before coming underground
and knew that Justice was planning to operate the drill.
Deel
also knew that O'Quinn and Justice were both at the roof bolter
before he arrived there.
He knew when Justice asked him what he
was planning to do that day that Justice was planning to run
the drill and he knew from O'Quinn's presence at the roof bolter
that O'Quinn was planning to operate the roof bolter because
O'Quinn had been running the roof bolter when Deel operated the
scoop and that O'Quinn drove the scoop when Deel o~erated the
roof bolter (Tr. 792; 872). Deel tried to explain Justice's
being at the roof bolter by claiming that Justice's dinner bucket
was carried on the roof bolter and that he thought Justice had
come there to get something to eat, but they had just arrived on
the section and no one had done any work yet.
Deel also claimed that Stiltner was sitting on the only
scoop in the mine on the morning of May 7 and that there was not
room on the operator's seat for both him and Stiltner. Deel
said that when Stiltner told him to run the scoop or get in the
scoop's bucket, he had no choice but to get into the scoop's
bucket because Stiltner did not offer to get off the operator's
seat so that Deel could get on the operator's seat (Tr. 132).
Deel's actual knowledge of the location of scoops was much greater than he claimed it was because Deel subsequently testified
that there was another scoop operating in the mine on the morning of May 7 and that they sometimes used three or four scoops
simultaneously (Tr. 185-186). Additionally, Deel knew that
Stiltner and Fields had ridden into the mine on the little scoop
and he certainly knew the difference between the big scoop which
he had used for pulling the mantrip and the little scoop which
Stiltner had driven into the mine.
Therefore, all he would have
had to do in response to Stiltner's ultimatum for him to run the
scoop or get into the bucket of the scoop on which Stiltner was
sitting would have been to have said that he had decided to run
the scoop and ask Justice, who was listening to the conversation
between him and Stiltner, where Justice had left the big scoop.
Moreover, there was nothing whatsoever to keep Deel from stating
that he would rather run a scoop than to get into the scoop's
bucket. He knew that getting into the bucket would be the equivalent of consenting to being discharged.
Therefore, he could
not possibly have increased his risk df being discharged by refusing to get into the scoop's bucket and simultaneously stating
that he would rather run a scoop than be discharged.
Instead of
assuring Stiltner that he did not mind running a scoop, as he
claimed at the hearing, he said nothing and got into the scoop's
bucket to be taken out for discharge.
References to "his" Roof-Bolting Machine
There was a discussion at the hearing as to whether Stiltner
had inconsistently testified about telling Deel to obtain "his"

2165

scoop and pull the mantrip or had simply asked Deel to get "the"
scoop and pull the mantrip (Tr. 863-864), but Deel himself referred to the roof bolter as "his" and "my" roof bolter on at
least three occasions (Tr. 125; 173; 175). Consequently, there
is no reason to doubt Stiltner's testimony to the effect that
Deel had refused to operate the scoop because he did not want
someone else running "my" roof bolter (Tr. 875).
On the contrary, there are ample grounds for believing that
Deel had made up his mind on the morning of May 7 that he was not
going to do any more alternating between the jobs of scoop operator and roof-bolter operator. He had been successful in getting
Stiltner to provide him relief on the previous occasion when he
had refused to perform both the job of running the drill and operating the roof bolter and he was confident that he would be
able to appeal to Turner, the mine committeeman, again on the way
out of the mine to be discharged, and Turner would be able, as he
had on the prior occasion, to persuade Stiltner to put him back
to work as the operator of the roof bolter which, according to
O'Quinn, is the easiest job in the mine.
Supervisor Doing Classified Work
Another of Deel's motives for insisting on operating "his"
roof bolter was that Justice had been hired as a section foreman.
Justice, as a salaried or managerial employee, was apparently
violating union rules by operating the coal drill which is normally work performed by union employees or hourly workers. That
issue was a part of Deel's union grievance filed after his discharge on May 7, 1982, but that issue was dropped from the case
before the arbitrator who upheld Deel's discharge under the Wage
Agreement (Arb. Tr. 132-133). Since Deel agreed to waive that
issue at the arbitration hearing, it is certainly inappropriate
for him to raise that as an issue in this proceeding.
In any event, it is a fact that there were not enough hourly
or union employees at the mine on May 7 to operate all the equipment and Stiltner had no choice but to utilize Justice for the
purpose of operating equipment which is normally operated by
union employees. Although Deel claimed that he would have been
allowed to operate the roof bolter if Justice had not been present on May 7, the evidence does not support that contention becausei after Deel was discharged on May 7, Randy O'Quinn was
assigned to run a scoop and Justice operated a coal drill by using the hydraulic power from another scoop. There were two roofbolting machines in the mine and the other crew operated a roofbolting machine that day, but Deel's roof bolter was not used at
all (Tr. 801). Obviously, running the scoop was more important
for producing coal than having O'Quinn operate a second roof
bolter.
Therefore, Deel was incorrect in contending that the only
reason he was asked to run a scoop was that Justice took a job

2166

which would otherwise have been assigned to an hourly employee.
There is additionally no merit to Deel's claim that DOW was improperly using a managerial employee to do an hourly miner's
work at a time when an hourly miner was available to do the work.
DOW's contention that it only used managerial employees to do
union employees' work when absenteeism forced it to do so was
shown to be true on May 7, 1982 (Tr. 680).
Requirement To Perform Work Order and Then File' Grievance
Deel admitted at the arbitration hearing that he is required
to perform a work order and then to file a grievance if he believes that the order is unreasonable, assuming, of course, that
the order does not involve a requirement that he work in unsafe
conditions (Arb. Tr. 96).
It would appear that Deel violated
union rules when he refused to run a scoop on May 7, 1982, because no safety issue was raised in connection with Stiltner's
request that Deel operate the scoop.
Deel's Refusal To Ask Stiltner About His Assignment
Deel conceded that Justice brought him a message to the
effect that Stiltner wanted Deel to run the scoop on May 7 rather
than operate the roof bolter (Tr. 172-173; Arb. Tr. 75).
Deel
claimed that he could not rely upon a section foreman's order
brought to him by another miner because they kid around in the
mines and that if he were to obey such an order, the other miners
would have him running all over the place doing things which the
boss had not actually requested him to do (Tr. 188). Also Deel
said that if he had gone to the scoop and had started running it
on the basis of a message from Stiltner brought to him by Justice,
that he could have been fired for leaving "his" roof bolter at
the face and going off to do another job (Tr. 174).
On the other hand, the mine committeeman, Kyle Turner,
stated that if another miner had brought him a message to the
effect that his supervisor wanted him to run a scoop instead of
a roof bolter, that he would have finished installing the bolt
he was then working on and "* * * would go hunt the foreman"
(Arb. Tr. 126). Turner is an experienced miner and his answer
shows that Deel was being unduly obstinate in failing at least
to check with Stiltner so as to find out for sure what his assignment was for that day. After all, Deel had not started doing any
work and Stiltner was only 120 feet from the place where Deel's
roof bolter was situated (Tr. 796).
As indicated above, there has been no mention by anyone in
this proceeding that operating the scoop, as requested by Stiltner, would have exposed Deel to any hazardous conditions. Therefore, I cannot find any justification whatsoever for Deel's refusal to operate the scoop when Just~ce brou~ht Stiltner's work
order to him. At the ve~y least, Deel should have been willing

2167

to go 120 feet and ask Stiltner what he wanted him to do.that
day. As Stiltner appropriately remarked, ''I ain't got all day
to sit there and beg a man to do his job'' (Tr. 877).
Final Consideration of Arguments in Deel's Brief
The attorneys who represented Deel in this proceeding were
very conscientious and prepared a brief which presents Deel's
contentions in as favorable a manner as they can possibly be
argued.
Deel's counsel followed the Commission's burden-of-proof
guidelines as set forth in the Pasula case, supra, in an admirable fashion.
Nevertheless, Deel's contentions lose all of their
validity when one begins to examine in detail the true facts
which underlie Deel's legal arguments.
Deel's brief contains a Table of Contents which facilitates
review of his arguments.
It is claimed under Part I that Deel's
discharge was motivated by his protected activities.
Part Aunder the aforesaid heading lists the protected activities in which
Deel is alleged to have engaged. As I have previously indicated,
it is a fact that Deel was a safety committeeman for about 32
calendar days and he also accompanied an MSHA inspector on some
inspections while he was safety committeeman. Therefore, Deel
did engage in some protected activities prior to his discharge.
While Deel's brief does establish that he was engaged in
some activities which are protected under the Act, Deel's brief
utterly fails to show that his protected activities had anything
whatsoever to do with his discharge.
It is correct, as Deel argues under Part I(B) of his brief, that DOW was aware of Deel's
activity as safety committeeman and it is a fact that he only
held that position for 32 days prior to his discharge. Therefore, Deel is necessarily correct in arguing that his protected
activity preceded his discharge by only a short period of time.
The preponderance of the evidence, however, fails to support the
remaining allegations made under Part I(B) of Deel's brief. As
I have shown under the headings discussed above, Deel incorrectly
argues that DOW displayed animus in the face of Deel's protected
activity.
Deel himself, for example, stated that when he was
first appointed as a safety committeeman, the mine foreman was
very cooperative and provided Deel with all the supplies and
equipment he needed to make the mine safe (Tr. 199). As to the
remaining contentions in Part I(B) of Deel's brief pertaining
to DOW's alleged animus toward Deel for his protected activities,
my discussion, supra, of the hauling of powder on the tractor,
the belt-bridging incident, Deel's alleged refusal to support
DOW in the simultaneous firing of two shots, and Deel's allegations of disparate treatment have been thoroughly considered
above under those respective headings and the preponderance of
the evidence clearly shows that DOW discharged Deel solely for
his recalcitrance and insubordination and not because he had
brought a few safety-related problems to DOW's attention.

2168

Under Part II of his brief, Deel argues that DOW would not
have discharged Deel if he had not engaged in protected activity.
Under Part II(A) of Deel's brief, he argues that he was not
assigned to operate the scoop before he went into the mine on
May 7, 1982, the day of his discharge. Even if one agrees with
Deel's argument that he was not given a direct order to operate
the scoop for the entire shift before he went into the mine on
May 7, 1982, the preponderance of the evidence supports the section foreman's contention that Deel knew before going into the
mine that his section foreman wanted him to operate the scoop on
that day.
I have addressed that contention in great detail in
my discussion of the "The Actual Discharge" above, and the preponderance of the evidence clearly supports the section foreman's
contention that Deel knew that his section foreman wanted him to
operate the scoop before he went into the mine on May 7. Assuming, arguendo, that Deel did not know his section foreman wanted
him to operate the scoop on May 7 before Deel went into the mine,
Deel's argument in Part II(A) (1) of his brief cannot be sustained
because Deel was given a message from his section foreman by
another miner as to exactly what the section foreman wanted Deel
to do, but Deel was so determined to ignore his section foreman's
orders that he refused to go a distance of only 120 feet to ask
what his section foreman actually wanted him to do that day.
Moreover, it cannot be successfully argued that Deel did other
than argue with his section foreman about the assignment even
after the section foreman personally came to Deel and gave him
specific orders that he wanted Deel to operate the scoop, instead
of the roof-bolting machine, on May 7, 1982. These matters are
all discussed in great detail above under the headings of "The
Actual Discharge" and the other headings following my discussion
of the actual discharge.
The most astounding and utterly unfounded argument in Deel's
brief is contained under Part II(B) in which he claims that even
if he had refused to operate the scoop on the day of his discharge,
DOW still would not have been justified in terminating him. Since
my prior discussions above of the factual allegations in this proceeding have not specifically dealt with the arguments in Part
II(B) of Deel's brief, beginning on page 39 of the brief, I shall
give those contentions some detailed consideration at this time.
Deel attempts to find support for the aforesaid contention by
stating that DOW's management has no established policy for determining when a miner will be discharged for refusing to obey a
work order.
Deel also claims that the mine foreman inconsistently
stated first that an employee was given a warning for the initial
refusal to obey a work order and was discharged for the second
offense and later stated that the employee was discharged for the
first offense.
An employee's refusal to obey a work order may be done in
an outright defiant and quarrelsome way or it may be done in such

2169

a way that the section foreman looks upon the refusal as an
aberration in a person's normal willingness to work.
For example,
under the heading of "Deel's Allegations of Disparate Treatment",
supra, I discussed the fact that O'Quinn would say he was not going to do a particular job and would then almost immediately
thereafter change his mind and do the very work he had just said
he was not going to do.
Deel's refusal to run the scoop on May 7
was no~ accompanied by any ameliorating circumstances .. He ignored the previous conditions under which the work force had been
used which required him to alternate with O'Quinn on running a
scoop one day and a roof-bolting machine the next. He ignored
the clear indications that the section foreman expected him to
run the scoop because Justice and O'Quinn had gone to the roofbolting machine before Deel ever reached that machine after delivering the other men to their assigned working places. Deel
then ignored a specific message brought by Justice from the section foreman telling Deel that the section foreman wanted him to
run the scoop.
Deel then argued with the section foreman in person about the assignment to operate the scoop. Finally, when
given the ultimatum that he would have to run the scoop or get
into the scoop's bucket to be taken out for discharge, Deel said
nothing and got into the scoop's bucket to be taken outside.
The aforesaid defiant refusal to perform a work order cannot
be tolerated by a section foreman if he wants to control the work
force on which he has to rely for production of coal. Therefore,
regardless of whether DOW's management has written guidelines or
a consistent policy of determining when it will discharge employees, Deel's refusal to carry out his section foreman's orders
on May 7 were accompanied by such blatant defiance of his section
foreman's instructions that the section foreman was clearly within the bounds of reason in deciding that Deel should be given
the ultimate punishment of discharge.
Assuming, arguendo, that there is some merit in Deel's claim
that he should only have received a warning for his first refusal
to obey a work order and should not have been discharged until he
had refused a second time to perform a job assigned to him by his
foreman, it is a fact that Deel did refuse to perform work on a
prior occasion as I have noted in the discussion above under the
heading of "The Aborted Discharge".
Deel, of course, argues in
his brief (pp. 40-41) that DOW cannot take refuge in a claim that
Deel's refusal to perform the two jobs of bolting and drilling on
a prior occasion should be counted as a true refusal to perform
work because, it is argued, that assignment was unfair and the
fact that the section foreman ultimately did the roof bolting for
D~el for the remainder of that day shows that Deel was unfairly
asked to do two different jobs. As I have already pointed out in
my discussion of the aborted discharge above, Deel was nearly discharged that day for failing to do anything more than drill 10
holes, requiring 10 minutes of time, within a period of an hour

2170

after the miners had been delivered to the working section.
Moreover, Deel's refusal to do both jobs in anything like areasonable speed exposed the other miners to excessive danger because t~e section foreman, in order to get any work at all out of
Deel on that day, had to operate a roof-bolting machine for the
remainder of the shift and therefore had to slight his supervisory
work.
If he had failed to make methane checks or otherwise had
failed to assure that the miners were using proper safety procedures, an accident could have occurred solely because of Deel's
obstinate refusal to do two types of work on a day when a full
crew of miners was not available.
The aforesaid discussion shows that if Deel was supposed to
have been given a warning for the first refusal to perform work,
he had already had that warning when the section foreman almost
discharged him on the previous occasion.
Consequently, his discharge on May 7 occurred after a first warning if that is a prerequisite which should be given any consideration.
The final argument Deel makes in Part II(B) of his brief
(p. 41) is that Deel would not have been discharged on May 7 except for his protected activity because other miners had engaged
in unprotected activity of refusing a work order and had not been
disciplined by discharge for such unprotected activity. As I
have clearly shown above under the heading of "Deel's Allegations
of Disparate Treatment", other miners have not engaged in refusals
to obey work orders in the defiant and belligerant manner which
was associated with Deel's refusals to work.
If the other miners
had acted as Deel did, I am confident they would have been discharged just as Deel was.
The Commission pointed out in the Pasula case, supra, at
page 2795, that a judge should give some weight to an arbitrator's
decision if there was congruence between his decision and the
issues raised in a discrimination case.
I have noted in Finding
No. 18, supra, that the question of Deel's discharge on May 7 was
the subject of an arbitrator's decision issued on June 8, 1982.
That decision is pertinent in ruling upon Deel's arguments in
Part II(B) of his brief because the arbitrator, upon an adequate
record, discussed Deel's refusal to operate the scoop on May 7
and found that his discharge was justified. The arbitrator
pointed out on page 6 of his decision that refusal of an employee
to comply with an order of his foreman is one of the most serious
offenses which can be leveled at a subordinate.
The arbitrator
found that Deel had willfully refused an order given by his foreman and that DOW's management was clearly justified in discharging him for that refusal.
I agree with the arbitrator's ruling
and believe that his decision is a further reason for holding
that Deel would have been discharged solely for his unprotected
activities even if he had not also engaged in the protected activities of calling some safety probl~ms to DbW's attention.

2171

For all of the reasons hereinbefore given, I find that the
preponderance of the evidence fails to support Deel's contentions
that he was discharged because of any activities protected under
section lOS(c) (1) of the Act.
For that reason, DOW's motion to
dismiss is hereinafter granted.
WHEREFORE, it is ordered:
The motion to dismiss made by respondent's counsel is
granted and the complaint filed on September 23, 1982, in Docket
No. VA 82-62-D is dismissed for failure of complainant to prove
that a violation of section lOS(c) (1) of the Federal Mine Safety
and Health Act of 1977 occurred.

~

e. o!.-Gff!

Richard c. SteffeyJI~
Administrative Law Judge

Distribution:
Michael A. Genz, Esq., and Barbara A. Samuels, Esq., Client
Centered Legal Services of Southwest Virginia, Inc., P. O. Box
147, Castlewood, VA 24224 (Certified Mail)
Louis Dene, Esq., 102 Court Street, Abingdon, VA
(Certified Mail)

yh

2172

24210

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

22041

CIVIL PENALTY PROCEEDING
Docket No. LAKE 80-216
A.C. No. 11-00609-03016

v.

Captain Strip Mine

SOUTHWESTERN ILLINOIS COAL
CORPORATION,
Respondent
ORDER
Before:

Judge Koutras

On October 31, 1983, the Commission issued its decision
on the appeal filed in this matter and remanded the case to
me for the determination of an appropriate civil penalty
for Citation No. 777767, issued on November 30 CFR 77.1710(g).
The Commission reversed my decision vacating this citation,
reinstated and affirmed the violation, and remanded the case
for an assessment of civil penalty.
By agreement of the parties, and after consideration
of the record in this case, including the statutory criteria
found in Section llO(i) of the Act, a civil penalty assessment
of $78 is.imposed for the violation in question, and the
respondent IS ORDERED to pay this amount within thirty (30)
days of the date of this Order. Upon receipt of payment by
the petitioner, this case is dismissed.

~~li:att.~
Administrative Law Judge

Distribution:
Brent L. Motchan, Esq., Southwestern Illinois Coal Corp.,
500 N. Broadway, St. Louis, MO 63102 (Certified ~ail)

..

Miguel Carmona, Esq., U.S. Department of Labor, Office of
the Solicitor, 230 S .. Dearborn St., Chicago; IL 60604
(Certified Mail)
/slk

217 ~.{

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) ,
ex. rel. MICHAEL HOGAN
and ROBERT VENTURA,
Complainants

22041

;! ~-·":

,._;

...

DISCRIMINATION PROCEEDING
Docket No. PENN 83-141-D
Emerald No. 1 Mine

v.
EMERALD MINES CORPORATION,
Respondent
DECISION
Appearances:

Catherine O. Murphy, Esq., Office of the
Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Complainants;
R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern a complaint of discrimination
filed by the Secretary of Labor on behalf of the named
complainants pursuant to Section 105(c) of the Federal Mine
Safety and Health Act of 1977. The complaint alleges that
Mr. Hogan and Mr. Ventura were suspended without pay for five
days by the respondent on or about December 28, 1982, for
exercising certain protected safety rights under Section 105(c) (1)
of the Act.
Specifically, the complainants assert that they
were suspended by mine management for refusing to ride an
elevator which they believed to be unsafe.
The elevator
is used to transport the working shifts to the underground
working section.
A hearing was convened in this matter on August 23-24, 1983,.
in Washington, Pennsylvania, and the parties appeared and
participated fully therein.
Posthearing proposed findings
and conclusions, with supporting arguments, were filed
by the parties and they have been fully considered by me in
the course of this decision.

2174

Issues
The critical issue presented in this case is whether
the suspensions meted out by mine management were prompted
by protected activity under the law. Specifically, the
crux of the case is whether the refusal by Mr. Hogan and
Mr. Ventura to ride the elevator in question to their assigned
work stations on the asserted grounds that it was not safe
was reasonable and made in good faith. Additional issues
raised by the parties are identified and disposed of in the
course of this decision.
Applicable Statutory and Regulatory Provisions
1.

30

u.s.c.

The Federal Mine Safety and Health Act of 1977,
§ 301 et seq.

2. Sections lOS(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.

Complainants' Testimony and Evidence
Michael Hogan testified that he first heard about a
problem with the elevator during his work shift of December 27,
1982. Sometime after 5:00 p.m., he heard the shift foreman
call underground superintendent Morris to advise him that
the elevator was inoperative. However, shortly thereafter,
the problem was taken care of and the elevator was operating,
and he left the underground section by means of the elevator
without any problem, and heard nothing further about any problems.
He next returned to the mine at approximately 3:30 p.m.,
on December 28, and he went to the bathhouse to change into
his work clothes. At this time he learned from general bathhouse conversation that the crew on the evening shift of
December 27 had encountered some problems with the elevator,
and that the day shift on December 28th had delayed entering
the mine until approximately 10:00 a.m., because the elevator
had some problems and some maintenance people were working
on it. He also spoke with someone on the day shift who advised
him that the elevator doors would not open (Tr. 29-34).
Mr. Hogan testified that after he dressed and left the
lamp room on December 28th, he encountered several miners
from the day shift who had just alighted from the elevator
at the end of their shift, and he identified them as Pat Buttermore,

2175

Charlie Cooper, Jerry Kessler, and Don Dowling. They informed
him that the elevator had malfunctioned; that it slowed down
as it came up the shaft, and that they then felt it drop and
their knees buckled. He described the miners as being "shaken
up" and "highly agitated", and described two of them as being
"actually white" (Tr. 34-35). Mr. Hogan stated that he then
returned to the lamproom for a cigarette, and he spoke with
Terry Limely, another miner who had just alighted from the
elevator. Mr. Limely told him "you are crazy if you get on
that thing, it is really messed up, it's really bad". When
he questioned Mr. Limely further, Mr. Limely informed him
that the elevator had dropped, started to fall, stopped
suddenly, and that his knees buckled (Tr. 36).
After assessing the situation further, and since it
appeared that there would be no "collective refusal" to ride
the elevator, Mr. Hogan decided to speak with shift foreman
Denny Smith. He advised Mr. Smith that he did not believe
the elevator was safe to ride and that he was invoking his
individual safety rights in refusing to ~ide the elevatdr,
but that he was available for other work (Tr. 39). Mr. Smith
asked him to stand aside while the other employees were loaded
on the elevator, and by this time Mr. Ventura had also invoked
his safety rights and refused to ride the elevator. At that
point in time, mine foreman Allen Hager arrived on the scene
and Mr. Hogan advised him that he would not ride the elevator,
and Mr. Hager responded "there's nothing wrong with it" (Tr. 41).
When asked to explain why he believed the elevator was
not safe at the time of his refusal to ride it, Mr. Hogan
replied as follows (Tr. 42-43):
Q. Why did you believe that the elevator
was not safe at that time, Mr. Hogan?

A. Well, I felt very sure, for myself,
that all the incidents that had happened
in the previous twenty-four hours or so,
and then the most recent incident, at
approximately ten to four, so I felt that
if this had been a problem for all this
time, that there should have been something
done about it, it shouldn't still be malfunctioning like that.
Q.
In your opinion, was it still defective
at that time?
A.

Absolutely.

2176

Q. What did you figure could happen, if you
got on the elevator, based on what information
you had?
A.
Well, I thought it could, if it would fall,
I thought perhaps it could get stuck, somewhere
along the way you could be stuck in it, and the
one thing that Terry Limely had said about
it, buckling his knees, I thought perhaps about
being injured in it.
Q.
What kind of injuries did you feel that you
could sustain?
A. Well, I felt that I could get killed, you
know,
anything from being highly shook up
to being killed, or anything in between, you
know what I mean.
Q. Mr. Hogan, what reason did you give to
Mr. Hager, as to why you were afraid to ride
the elevator on that day?
A.
Well, I told him that I didn't think it
was safe, you know.
Mr. Hogan stated that at the time he informed ~r. Hager
that he would not ride the elevator, he had no knowledge as to what
steps had been taken to ascertain the reason for the elevator
"dropping". He did know, however, that the elevator had
been "test run" up and down several times after the complaints
by the day shift crew, but he had no knowledge as to whether
or not any repairs or maintenance had been performed. He
was also aware of the fact that several groups of miners from
his shift went underground on the elevator after the complaints
were made (Tr. 44). Mr. Hogan also stated that he asked
maintenance foreman Jackie Smith "what was wrong with the
elevator", and that Mr. Smith replied that he did not know
and could not state whether it was safe (Tr. 45).
Mr. Hogan testified that after the initial conversation
with Mr. Hager, Mr. Hager instructed Mr. Denny Smith to
"find something for us to do" (Tr. 45). He later spoke
with.Mr. Hager by phone while he (Hogan) was still in the
elevator area, and he again informed Mr. Hager that he
would not ride the elevator because he didn't feel it was
safe, and that "I was using my safety rights" (Tr. 46).
Mr. Hogan confirmed that Mr. Hager offered to operate the
elevator manually, but he still refused to ride it, and he
explained the refusal as follows (Tr. 47):

Q. Did you understand what he meant by
the manual motor?
A. Yes, I understood what he meant, yes,
he asked us if we would ride on the elevator,
if it was being run manually, and I told
him that I didn't feel that in my opinion,
it didn't make a difference whether it was run
on m_anual ·or automatic, they seemed to have
an obvious problem, and unless they knew the
source of the problem, I don't think that
they.could say it would be safer one way or the
other.
Mr. Hogan confirmed that he and Mr. Ventura were then
summoned to Mr. Hager's office, and Mr. Hager asked if they
were willing to ride into the mine on the slope car. Mr. Hogan
stated that he asked Mr. Hager how this would "leave us in
regard to having two fresh air escapeways from the mine",
and Mr. Hager did not reply and instructed Denny Smith to
find something for Mr. Hogan and Mr. Ventura to do. Mr. Hogan
and Mr. Ventura left the office, but were immediately called
in again and Mr. Hager informed them that he was withdrawing
his offer to have them transported into the mine by means
of the slope car. Mr. Hager also informed them that depending
on the outcome of an investigation by federal and state agencies,
they could be subject to disciplinary action, up to and
including discharge, and Mr. Hogan inforned Mr. Hager that
"I understood the situation" (Tr. 50).
Mr. Hogan stated that after leaving Mr. Hager's office,
he and Mr. Ventura spent the rest of the shift working around
the bathhouse (Tr. 50). At approximately 6:00 p.m., the elevator
manufacturer's representative arrived, and shortly thereafter,
state inspector Monohan and federal inspector Conrad arrived.
At approximately 8:15 p.m., Mr. Hogan, Mr. Ventura, and management
and union representatives were summoned to a meeting in Mr. Hager's
office. Mr. Hager asked the elevator representative whether
it was safe and he indicated that "in his opinion, the elevator
was safe, and none of the safety features had been jumpered
out". Mr. Hogan stated that he "nodded in the affirmative"
to this statement, and that Mr. Conrad indicated that he was
no expert on elevators, but was simply present "to see that
there were no violations of law", and that after speaking
with the elevator representative, he simply wanted to assure
Mr. Hogan and Mr. Ventura that it "was safe to run" (Tr. 52).
Although Mr. Hogan stated that Mr. Monohan concurred with
Mr. Conrad, Mr. Hogan said that Conrad made the statement that
"he wouldn't rode [sic] the God damn thing either" (Tr. 54).

2178

Mr. Hogan testified that at the conclusion of the meeting
in Mr. Hager's office, Mr. Hager informed him that he and
Mr. Ventura were suspended, and that he stated as follows
(Tr. 55):

* * * * he said that it was the company's
opinion that Bob and I had interfered
with their right to direct the work force
at four o'clock, by not boarding the elevator,
and we had acted arbitrarily and capriciously,
and not in good faith, in not boarding the
elevator, and that we were thereby suspended
for five days, beginning at about eight fortyfive, which the time was, and not to return
to work, until Wednesday, January the 5th.
Mr. Hogan confirmed that he became angry after being informed
that he was suspended, and that at this time he was available
to work underground and would have ridden the elevator
(Tr. 56). Mr. Hogan also confirmed that he stated to Mr. Hager
that "they ~ad a pretty good guy here up until this point,
now I wasn't sure, but watch out now, or something to that
effect". Mr. Hogan explained that he was upset because
he did not believe he would be suspended, and he confirmed
that since the episode he has had no suspensions or other
actions taken against him (Tr. 57).
Mr. Hogan stated that after the oral suspension, he met
further with Mr. Hager during the initial grievance stage
of his case, and he identified exhibit G-1, as a copy of the
written notice of suspension which he received on January 4,
and he confirmed a notation on the notice which states
"revised as agreed in the meeting of December 31, 1982"
(Tr. 58). Mr. Hogan explained the notation, and he also
confirmed that he had been involved in a prior exercise of
his safety rights in the summer of 1981, and was assigned
other work but was not suspended (Tr. 60-62). Mr. Hogan
also,_confirmed _that __ he has made safety _complaints in the past,
and that they are generally taken care of (Tr. 62).
On cross-examination, Mr. Hogan confirmed that he did
not know what the elevator problem was on December 27, but
by the end of the shift the elevator was repaired, and that
any repairs were made within ten or fifteen minutes after
he heard that the elevator was inoperative. Mr. Hogan also
confirmed that when he spoke with Jackie Smith, Allen Hager,
and Denny Smith on December 28, he did not ask them about
the condition of the elevator on December 27 (Tr. 65).
Mr. Hogan stated that he spoke with no one on the midnight
shift, and that other than the fact that the elevator was
not working, he had no knowledge of the specific problem.

2179

With regard to any "elevator drop", Mr. Hogan conceded
that he did not mention this to Dennis Smith or Jackie Smith,
but he believed he mentioned it to Mr. Hager, but was not
certain (Tr. 67-68).
Mr. Hogan confirmed that on the afternoon of December 28,
after the "elevator dropping incident", there were some tests
made on the el~vator and it was his understanding that local
union president Tom Rebottini rode the elevator during the tests_
(Tr. 68). Mr. Hogan also confirmed that one or two elevator
loads of men on the evening shift went underground before he
approached Dennis Smith to tell him he would refuse to ride it,
and at these times Mr. Hogan saw no evidence of any elevator
malfunctioning (Tr. 69).
Mr. Hogan confirmed that during the taking of his deposition
he did indicate that to a small degree, he has a fear of being
enclosed in small spaces, and in response to a question as
to whether he had a certain fear or riding elevators, he
replied "I would call it more of a healthy respect for them"
(Tr. 7 3) .
Mr. Hogan stated that prior to the time he refused to
ride the elevator, he was aware that the elevator "had been
run up and down", and that after the "elevator stopping
incident", he did not ask Dennis or Jackie Smith or Mr. Hager
whether they had checked the elevator to determine what was
wrong with it (Tr. 77).
In response to bench questions, Mr. Hogan confirmed that
he was not on the elevator during the alleged "dropping
incident", and his knowledge of this event is from what others
told him (Tr. 79-80). He recounted what he had heard as
follows (Tr. 81-83}:
JUDGE KOUTRAS: While you were back there,
to come to your shift, you had
conversations with people, that were coming off
of the day shift?

wai~ing

THE WITNESS:

Yes.

JUDGE KOUTRAS:
During these conversations,
you learned about the problems with the elevator?
THE WITNESS:

Yes.

JUDGE KOUTRAS: Now, you indicated that you talked
about all these things that had happened, on
the elevator, did you actually sit down and talk
with Mr. Butterr,1ore, and Mr. Dowlrng, and have

2.180

any detailed discussions with them about
the events that transpired on the elevator,
while they were coming out, the knees
buckling, the fears and all that, before you
went to work, or did you find this all out,
after all this happened?
THE WITNESS: I spoke with them, within a
minute of the time they come out from the
elevator that dropped.
JUDGE KOUTRAS:

And they said what?

THE WITNESS: They said that it had come up,
started to drop, and then fell, and the one in
particular, said his knees buckled, and they
were saying they were scared.
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:

Okay.
And the one individual screamed.
Who was that?

THE WITNESS:
I don't know, they said somebody
on the elevator screamed.
JUDGE KOUTRAS:
Did they tell you how far the
elevator dropped?
THE WITNESS: Each had their own opinion of that,
it's very difficult to tell, but you can't say.
JUDGE KOUTRAS: Any length of time, how did
they describe the dropping to you?
THE WITNESS: Well, one individual said, he
thought it fell about ten feet, and another one,
some of their estimates ran much higher than that,
to the possibility that it could have been a
hundred feet, or something like that.
JUDGE KOUTRAS: Once the drop had stopped, how
did they come out, how did the elevator proceed,
how did they take care of the problem, when I say
they, whoever was there in charge, did they have
somebody there on the elevator that was in charge
of the crew?
THE WITNESS: Well, at the time of the incident
Jackie Smith was in the penthouse, which is above

2181

ground, above the elevator, and he took over
manual control of the elevator at that point,
and brought it up.
JUDGE KOUTRAS:

How did he know to bring it up?

THE WITNESS~
I suppose he knew some way that
something had malfunctioned.
JUDGE KOUTRAS: How did he know that, was this
elevator coming up and down automatically, do
you know?
THE WITNESS: As far as I know, it was running
on automatic at that point, yes, but see, because
they were having the problems, there were someone
where the elevator comes up here, there's an area
above the elevator, right above the shaft, to
other controls and circuits and stuff, where I
guess Jackie Smith was in that penthouse, what
they call the penthouse, at the time it malfunctioned,
and he just in some manner, knew that it was
malfunctioning, and he brought it up manually.
Mr. Hogan indicated that Jackie Smith told him that he did
not know what was wrong with the elevator, and Mr. Hogan believed
that the only time the elevator would be operated on a manual
mode would be in the event of a motor malfunction (Tr. 87, 89).
Regardless of which mode it operated on, he did not believe
that management had sufficient time to check the malfunction
and conduct proper tests (Tr. 89). He conceded that the prior
elevator problems had been taken care of the day before his
work refusal, but he insisted that "some problem apparently
kept repeating itself" (Tr. 90). He also believed that it
"was possible" that the prior malfunction still prevailed,
and when asked whether he would have still refused to ride
the elevator if no one had mentioned that it had dropped, he
answered "I don't know, that's hypothetical" (Tr. 91).
Mr. Hogan confirmed that safety committeeman Willis
and Union President Rebottini were both present when he refused
to ride the elevator, and he indicated that they worked the
same .shift. He stated further that Mr. Rebottini· worked
underground and rode the elevator, but that Mr. Willis was
assigned to surface work (Tr. 93). Mr. Hogan also confirmed
that approximately a year or so earlier he had refused to
ride the same elevator, but that this prior incident did not
influence his decision in this case (Tr. 98).

Mr. Hogan stated that prior to the instant case he had
no knowledge that the elevator had ever "dropped" in the past.
He confirmed that the elevator shaft is approximately 600
feet high, and that on prior occasions when miners refused
to ride the elevator they were taken into the mine by means
of the slope shaft (Tr. 101). He also indicated that he
was unaware of any other miners being suspended or fired for
refusing to ride the elevator (Tr. 102). He stated that the
elevator was installed sometime in 1976 or 1977, and that it
has been the topic of past discussions and meetings between
the union and mine management (Tr. 104).
Robert Ventura testified that he is employed by the
respondent as a mechanic, and that at the time of his suspension
he worked as a utility man. He stated that on December 27, 1982,
he reached his working place by means of the elevator which
took his crew underground on the second shift, 4:00 p.m. to
12:00 p.m. Mr. Ventura stated further that at approximately
5:30 p.m. that day he was informed by his foreman that the
elevator was inoperative and that if it were not repaired
within a half hour the crew had the option of leaving the mine.
Since the elevator was the main escapeway, Mr. Ventura indicated
that he would leave and requested that he be allowed to do so.
However, since the elevator was repaired, he did not do so.
He subsequently took the elevator out at the end of his shift
at approximately 11:45 p.m. One of his fellow shift workers
told him that as he was boarding the elevator to leave, it
raised up 8 to 12 inches and he tripped while getting on
(Tr. 109-111). However, Mr. Ventura did not report this and
went home.
Mr. Ventura testified that he reported for work on
December 28, 1982, and while in the bathhouse he had some
discussions with other miners concerning the elevator, but
he did not know any of the specific details. While in the
lamphouse he said one of the miners from the day shift,
Jerry Kessler, advised him that the elevator had stopped and
then dropped about fifty feet while he was riding it up the
shaft at the end of his work shift. Mr. Ventura then proceeded
to the elevator and asked his safety committeeman Willis if the
elevator was safe, but he could not state whether Mr. Willis
responded. Mr. Ventura then spoke with section foreman
Russ Clark, and Mr. Clark referred him to foreman Denny Smith.
Mr. Smith advised him that the elevator was safe and referred
him to Mr. Hager, but Mr. Ventura did not discuss his safety
rights with Mr. Smith (Tr. 111-117).
Mr. Ventura confirmed that Mr. Hager offered to operate
the elevator on the manual mode, but he (Ventura) stated that

2183

he was afraid to ride it for fear that it might drop again.
He said Mr. Smith advised him that the elevator representative
had been summoned to the mine, but that Mr. Smith could not
tell him what was wrong with the elevator. During this time,
all of the other crew members had gone underground on the elevator,
and Mr. Ventura confirmed that this made no difference to him
as he was exercising his own personal safety rights in refusing
to ride the elevator (Tr. 117-120).
Mr. Ventura confirmed the meeting in Mr. Hager's office
and he also confirmed that Mr. Hager offered to take him
into the mine by means of the slope car. However, after Mr. Hogan
raised the escape route question, Mr. Hager said nothing further
and he and Mr. Hogan were assigned other work (Tr. 121). Mr. Hager
subsequently retracted his of fer to take them in by means of the
slope car (Tr. 122). Mr. Ventura corroborated the fact that
another meeting was held with Mr. Hager and that he was subsequently
suspended (Tr. 123-128).
On cross-examination ~r. Ventura confirmed that at the time
of his refusal to ride the elevator he believed that "there was something wrong with the elevator", and he confirmed that he knew
nothing about its features (Tr. 133). He also confirmed that
Mr. Kessler told him it dropped fifty feet and that this
scared him, but that no one was injured. He conceded that
since no one was hurt after the asserted fifty foot drop,
Mr. Kessler may have exaggerated the extent of the drop (Tr. 134).
Mr. Ventura also confirmed that he asked no one else on the
elevator about the drop, and he stated that he did tell Mr. Smith
and Mr. Hager what he heard about the elevator dropping fifty
feet (Tr. 135).
Mr. Ventura confirmed that he knew that the reported
elevator malfunction of December 27th had been repaired, but
that he did not know all of the specifics of the problem
(Tr. 135). He also stated that it was possible that he would
not have refused to ride the elevator had Mr. Kessler not
mentioned the drop (Tr. 136). Mr. Ventura indicated that he
was not aware that test runs had been made on the elevator
on December 28th prior to his work shift, and he was unaware
that Mr. Rebottini had ridden it (Tr. 139). Mr. Ventura
stated that he mentioned the elevator dropping to Dennis Smith,
Jackie Smith and Alan Hager, but that none of them could
assure him that the elevator was safe (Tr. 141).
In response to further questions concerning what he
told mine management about the elevator dropping, Mr. Ventura
stated as follows (Tr. 149-151):

2184

.JUDGE KOUTRAS: Well, then after you spoke
to Willis, when was the first time that you had
any contact with any management representative?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Right after I talked to Mr. Willis.
Who did you talk to then?
My shift foreman.
Which is?
My section foreman, Mr. Clark.

JUDGE KOUTRAS: You told Mr. Clark, that you were
reluctant to get on the elevator, and Clark did
what?
THE WITNESS:
Mr. Smith.

He referred me to the shift foreman,

JUDGE KOUTRAS: Who was Mr. Smith, and you told
him the .same thing?
THE WITNESS:

Yeah.

JUDGE KOUTRAS: Now, in both those conversations
did you specifically tell either Mr. Clark, or
Mr. Smith, that someone had told you that the elevator
had dropped fifty feet?
THE WITNESS:
JUDGE KOUTRAS:

Yes.
You did?

THE WITNESS: Yeah, well, I didn't say fifty feet,
but that it had dropped.
JUDGE KOUTRAS:
that?
THE WITNESS:

Did you tell them who had told you
No.

JUDGE KOUTRAS: Then what happened, when did
Mr. Hager get in on the act?
THE WITNESS:

Mr. Smith referred me to Mr. Hager.

JUDGE KOUTRAS:

Was Mr. Hager there physically?

2185

THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Yes.
And you told him the same thing?
Yes.

JUDGE KOUTRAS:
Did you specifically tell Mr. Hager,
that you had heard from someone from the previous
shift, that the elevator had dropped some distance?
THE WITNESS:
JUDGE KOUTRAS:

Yes.
What was his reaction to that?

THE WITNESS: He couldn't answer why, I asked him
if he was aware of the elevator dropping, and he
says, no.
JUDGE KOUTRAS:
Do you have any idea how many
people were on the elevator, when riding it up with
Mr. Kessler?
THE WIT~ESS:
I would say maybe eight people, I
don't know, for sure.
JUDGE KOUTRAS: About eight, and you heard no one
else say anything about the elevator dropping,
how far it dropped or anything?
THE WITNESS: Not at the time, you know it was a
situation, where I was coming out to get my lamp,
and Jerry was there, and other people were starting
to leave, I was running late.
Martin Willis, stated that he is employed by the respondent
as a motorman, and that he is vice-president of local union
2258 and also serves a safety committeeman. He confirmed that
he went to the mine on December 28, 1982, at 9:00 a.m.,
to attend a safety meeting with mine management and that he
was scheduled to work that day on the 4:00 p.m. to 12:00 midnight
shift. While at the bathhouse someone advised hi~ that there was
a problem with the elevator, and he spoke with the general mine
foreman Allen Hager about the matter and Mr. Hager advised him
that."they were working on it". Mr. Willis then proceeded
to the elevator area and someone from the work crew which had
just finished a shift told him that "the elevator came up, stopped,
felt like it dropped, and then it came up on inspection speed"
(Tr. 165-169, 171). When asked who told him this, he identified
the crew members as Jerry Kessler and Wayne Bara, and he
indicated that Mr. Kessler appeared scared and frightened
(Tr. 17 2) .

2186

Mr. Willis confirmed that while speaking with several
miners waiting to go underground on the four to midnight
shift, Jackie Smith informed him that he did not know what
was wrong with the elevator and that he could not state whether
it was safe. Mr. Willis did not speak with Mr. Hogan or
Mr. Ventura at this time, but he did learn that they informed
foreman Denny Smith that they were invoking their individual
safety rights and would not ride the elevator underground.
Mr. Willis then accompanied Mr. Hogan and Mr. Ventura to
Mr. Hager's office for a meeting, and Mr. Ventura and Mr. Hogan
were subsequently assigned other work. Later, a federal and
state inspector arrived on the scene but did not examine
the elevator. The elevator company mechanic changed some
electrical contactor points and determined that the elevator
safety features had not been "jumpered out" (Tr. 178). Later,
Mr. Hager informed him that Mr. Hogan and Mr. Ventura would
be sus~ended for five days (Tr. 179). Mr. Willis confirmed
that federal inspector Conrad stated that he found no
violations of federal law and that as far as he was concerned
the elevator was safe. However, state inspector Monahan
indicated that he would not ride the elevator (Tr. 180).
On cross-examination, Mr. Willis stated that when he spoke
with Mr. Kessler he did not tell him how far the elevator
had dropped, and that Mr. Bara characterized the elevator
as being "f ..... up'' (Tr. 183). He also confirTied that while
Mr. Bara did not specifically state that the elevator had
dropped, he did indicate that it "felt like it'' (Tr. 184).
Mr. Willis also confirmed that Jackie Smith told him he could
not find the elevator problem (Tr. 184).
In response to further questions, Hr. Willis confirmed
that after the inspectors and the elevator representative
were called, they all "gave the elevator a clean bill of health",
and while no one knew what the specific problem was, the changing
of the contactor points took care of it and he learned that
if dirt gets into the contactor tips they have a tendency to
stick (Tr. 190).
Mr. Willis stated that he did not believe that mine
management acted unreasonably by calling in the elevator
mechanic and the state and federal inspectors, but he believed
that .Mr. Hogan and Mr. Ventura should not have been suspended,
and he expected management to just let them go back to work
after they determined that the elevator was safe (Tr. 193).
Mr. Willis confirmed that he had ridden the elevator many
times and he explained how it operates on the "manual" mode,
and he also indicated that "anytime that elevator malfunctions
it is a headache for both management and union, it causes a lot
of concern" (Tr. 192, 194-195).

218'(

Jerry Kessler, mechanic, testified that on December 28, 1982,
he reported to work on the day shift, 8:00 a.m. to 4:00 p.m.,
and the usual procedure is to ride the elevator underground.
However, on this particular morning the elevator was not
working and his crew had to wait until 10:00 a.m. to go to
work. He was told that there was a problem with the elevator
and that it had been repaired, but he was not aware of the
specific problem. His crew used the elevator and he was
not aware of any other problems with it during his shift.
However, after his work shift ended and while coming up on
the elevator a problem developed, and he described it as
follows(Tr. 205~207):
A. Well, when we got on the elevator, we
started up, the elevator got approximately
one hundred feet from the top, the cage
stopped, it fell, how far, I don't know,
it stopped, it started back up, and it stopped
a third time, then that's when Wally Petros
called out to see what was the matter, and he
said, that they said it would be going in just
a second.
·

Q.

Who is Wally Petros, can you tell the Judge?

A.

He's one of my mechanic bosses.

Q.

Did you hear him make the phone call?

A. He made the phone call, I didn't hear the
conversation.

Q. What did he say to you after he made that
call?
A. He said that it would be fixed in just a ~inute,
that it would be coming up, and then it started
up on inspection speed, slow speed.

Q. Can you describe for the Judge, in as much
detail as you can, as much as you can recall,
how long the drop, and how long the drop lasted,
when you were in the elevator, can you give us an
idea of the distance?
A.
It was difficult to tell, because you were
enclosed in the cage, but when it stopped, it fell,
the second stop buckled my knees, because we
were on a downfall, I had time enough to make up
my mind, I was prepared to hit the bottom, and I
thought that if I could possibly time it and jump,
that I wouldn't get my legs broke, whatever time
that was, I don't know.

2188

Q~
How did the other people on the elevator
react, what did you see?

A.
Everybody was shook up, everybody was
scared, Hap Buttermore screamed, Bob Richie
pinched a gentleman's arm, or grabbed his arm,
to get something to hold on to, everybody was
shook up.
Q.
How about when you got off the elevator,
what happened when you finally got to the top?
A. Well, as soon as it got to the top, the
door opened, and everybody rushed for the landing.
Mr. Kessler testified that after getting off the elevator
he mentioned the elevator episode to Denny Smith, but he assumed
that Mr. Smith did not hear him (Tr. 208). Mr. Kessler
spoke to no other management people, but did speak with
Mr. Willis and Mr. Ventura. Mr. Kessler stated that "I
told Bob Ventura that something was wrong with the cage, and
told him to go out and find out what was wrong" (Tr. 209).
Mr. Kessler confirmed that he returned to work the next day
and the elevator had been fixed and the midnight and second
shift had taken it underground (Tr. 210). After observing
several elevator trips, he too rode it underground (Tr. 211).
On cross-examination, in response to a question as to
whether he told Mr. Hogan or Mr. Ventura a specific distance
that the elevator fell, Mr. Kessler replied as follows (Tr. 212):
Q.

Did you tell him how far it fell?

A.
I would imagine six to eight feet if I made
a guess, I don't know.
Q.
So you didn't tell him that it had fallen
either Mr. Ventura, or Mr. Hogan, that it had
fallen fifty feet?
A.
No, sir, I didn't tell it had fallen fifty
feet .
.Mr. Kessler explained further that he did not tell Denny Smith
how far the elevator had dropped, and that no one else from
mine management was present when he got off the elevator
(Tr. 214). When shown a copy of his prior statement to the
MSHA investigator indicating that the elevator dropped 10
to 15 feet, Mr. Ventura was asked to reconcile that statement
with his testimony that it only dropped six to eight feet.
He replied "you are enclosed in the cage, I can't tell you
how far the cage dropped" (Tr. 223)

2189

Do~ Dowling, mechanic trainee, testified that he was
scheduled to work the 8:00 a.m. to 4:00 p.m. shift on
December 28, 1982, and that upon reporting to work that day
he did proceed immediately underground by means of the elevator
as was his usual practice because "there was trouble with
the elevator" (Tr. 226).
He went underground on the elevator
at 10:10 a.m. that day after being advised by his foreman
that the elevator had been fixed (Tr. 227). When asked
whether anything unusual happened when he came out of the
mine on the elevator at the end of his shift, he replied as
follows (Tr. 227-229):

A.
Well, when we got on the elevator, the
doors weren't exactly operating correctly.
Q.

What were they doing?

A.
The doors were slow to close, and then finally
someone pushed it shut. And we started up, and
I don't know how far up, it seemed like it was
fairly close towards the top, than it was the bottom,
and it hung up, stayed there for a couple of seconds,
and then fell, and then locked, felt like it was
pretty solid down, and then while we were falling,
one guy screamed and Bob Richie grabbed a hold of
my arm, pretty tight, it was hurting me, and then
it locked up pretty solid, it felt just like it
hit something.
It wasn't the ground or anything, it was llke
something caught a hold, it felt solid after that,
a couple of jerks, and then, while we were waiting
there, Wally Petros called outside, and I don't
know who he called, but a few minutes after he
hung up the phone, it jerked a couple of times,
and then started up.
Q.

Did you hear what Wally Petros said that day?

A.
He was asking about the elevator itself, and
I didn't hear no response, and he j·1st kept saying,
yeah, yeah, after that.

Q. What did he say, to the rest of you in the
elevator?
A.
He said, it would be fixed in a little bit,
we would be going up, and the next thing you know,
we were going up on inspection speed, ~eal slow.

Q. Can you describe for us, how you felt when
that happened, Mr. Dowling?

2190

A~

I was scared, very scared.

Q.

What were you scared of, afraid of?

A.
Hitting the bottom, actually, when it fell,
then after we locked up solid, and while we were
standing there, one guy popped the top off of it,
and looked up, and we could see the top of the
shaft, it was still a fairly good distance, and
I was scared, being locked there, myself.
Mr. Dowling testified that after he got off the elevator
he made no comments to any of the other miners, and since
he did not know Mr. Hogan or Mr. Ventura he did not speak
with them (Tr. 230). He returned to work the next day and
rode the elevator and "it worked fine" (Tr. 231).
On cross-examination, Mr. Dowling confirmed that after
he got off the elevator he did not approach mine management,
but he was sure that someone else had informed them as to
what happened (Tr. 233).
Charles w. Cooper, continuous miner operator, testified
that he worked the 8:00 a.m. to 4:00 p.m. shift at the mine
on December 28, ~982, and he did not enter the mine until
approximately 9:45 a.m. because the elevator was not working
properly (Tr. 238). When asked whether anything unusual
happened at the end of his shift, he replied as follows
(Tr. 239-241) :
A. Well, we started up in the elevator,
it came up, oh, a little over half way, and
then the elevator stopped, and when i.t stopped,
and then it seemed to drop right back down,
it dropped oh, around eight to ten feet, roughly,
and we couldn't judge the distance it fell,
and then the elevator stopped again, and like
locked up, and when it locked up, everybody
jumped down you know, like, you were on a gum
band, just being bounced, and you could feel
the elevator, like shaking up and down.

Q. Could you see the other people move up and
down, like you just described?
A.

Yes, all of them, the majority of them did.

Q. Okay. What else happened, what did the other
employees do now?
A.
Everybody was standing dazed like, you know,
looking at each other, and saying what happened,
and stuff like this.

2191

Q.

What did you think had happened?

A.

I thought we were going down.

Q. By going down, you mean you thought you were
going to hit the bottom?

A.

I thought we were going to the bottom.

Q.

Were you afraid?

A.

Yeah.

Q.

What happened next?

A. Well, then, Wally Petros, the foreman, got
on the phone, and called out to somebody outside
or something.
Q.

Could you hear what he said?

A.

No~

Q.

What happened, after he called outside?

offhand, I couldn't hear what he said.

A.
The elevator, it was a few minutes, and then
the elevator started, and it started coming up,
when it got to the top, it went up past where
it usually stops at the door, about eight, ten
inches above, and then somebody or something,
it. recycled or something, and it came back down
a couple of inches above the normal position,
the door opened.
Mr. Cooper stated that after he got off the elevator
he spoke with Mr. Willis and advised him that "there's something
wrong with that elevator". However, he did not see or speak
with Mr. Hogan or Mr. Ventura (Tr. 243). ~r. Cooper confirmed
that he returned to work the next day, December 29, and was
told that the elevator had been repaired, that some relays
were replaced, and he rode it underground without incident
and there has been no reoccurrence of any elevator "dropping"
(Tr. _244) .
On cross-examination, Mr. Cooper stated that he could
not recall seeing the wall of the elevator shaft from the
inside of the elevator when it dropped, and he confirmed that
he estimated that it fell eight to ten feet "by the way I
felt" (Tr. 245). He estimated that 18 to 19 miners were
on the elevator during the incident in question (Tr. 246).

2192

Mark A. Sunyak, shuttle car operator, testified that
he worked the 4:00 p.m. to 12:00 midnight shift on December 28,
1982. After dressing, he proceeded to the hallway by the
elevator to take the first trip underground. When the elevator
doors opened, no one from the crew seemed to be boarding
and someone commented that there was a problem with the elevator.
He could recall no specifics, he did not ask the shift foreman
if there was a problem, and he could recall no conversations
as to whether the elevator had problems (Tr. 252). As the
crew began getting on, he hesitated but then got on after
the shift foreman began telling everyone to get on. He rode
the elevator down without incident, and no one said anything
further about it (Tr. 254).
On cross-examination, Mr. Sunyak stated that his initial
reluctance to board the elevator was prompted by his doubts
as to whether anything was wrong with it. However, since he
knew none of the facts he rode it. He confirmed that prior
to December 28, 1982, he had exercised his safety rights in
the past with regard to certain imminent danger situations
but was never disciplined since management recognized the
dangers and took corrective action (Tr. 258).
Mr. Sunyak stated that before he got on the elevator
on December 28, he was not aware that employees from the
preceding shift had reported a "drop" while they were coming
out. He confirmed that he worked on the same shift with
Mr. Hogan and Mr. Ventura, but did not know at that time
that they had refused to ride the elevator (Tr. 259-260).
He also indicated as follows (Tr. 267):
JUDGE KOUTRAS: Did you hear anything from the
previous shift coming up?
THE WITNESS:
thing.

No, I had no knowledge of any-

JUDGE KOUTRAS: The only knowledge that you
had, was the night before, there was a problem?
THE WITNESS: Yeah, but that was more or less
unusual, if that would be the right word, but
just little things like that happen every now
and then, but I was probably more concerned
about getting home, than anything else.
JUDGE KOUTRAS: But while you were waiting
to ride the elevator down, you knew that
something was up, because things weren't moving
along, you surmised that there were some problems?

2193

THE WITNESS:

Yeah, right.

JUDGE KOUTRAS: Yet, you didn't exercise your
safety rights, and refuse to go?
THE WITNESS: Not knowing full well, what all
was involved, I didn't really feel that I
could, not knowing any specifics on it.
Thomas Barrett, respondent's employee relations representative,
confirmed that he was at the mine on December 28, 1982, and was
aware of the elevator problem. He identified exhibit G-3 as
a memorandum he prepared from his own personal notes relating
to the events of December 28, and he confirmed that he was
present when Mr. Hager informed Mr. Willis that he had
changed his mind about offering to transport Mr. Hogan and
Mr. Ventura into the mine through the slope (Tr. 273-276).
Respondent's Testimony and Evidence
John F. Lusky, testified that he is employed by the
Schindler Haughton Elevator Company as an elevator mechanic,
and he described his duties and experience. He confirmed
that he received a service call on the afternoon of December 28,
1982, and he went to the mine in response to information that
there was a "problem with the elevator not automatically
returning to the top, and that it had made a stop.
It was
traveling up, and it made a stop" (Tr. 288). Mr. Lusky
identified exhibit R-1 as a copy of a service record indicating
the work which he performed on the elevator in question, and
he estimated that he arrived at the mine at 6:00 p.m. He
confirmed that he found no malfunction with the elevator while
he was there, but did.indicate that he visually inspected
the elevator, adjusted some switch contacts, and he changed
a relay contact since he believed it had something to do with
returning the car to the top. While he indicated that it was
possible that the contactor was related to the elevator
stopping, he did not believe this was likely because there
is very little current passing through the contactor (Tr. 292).
He also explained the adjustments he made to certain switches,
and confirmed that the work he performed on the elevator did
not relate to or affect the safety features of the elevator.
He also confirmed that the safety features were not by-passed
or "jumpered out", and he could not determine what caused
the elevator to stop (Tr. 293).
Mr. Lusky stated that during the time he was at the
mine the elevator was safe. Based on the work he performed
on the elevator, he was of the opinion that it was safe
earlier in the day. He confirmed that the elevator will
not run if the doors do not close properly, and in his
opinion the fact that there is a problem wi£h doors would

2194

not affect the other safety features because they are on
separate circuits (Tr. 295). He described the safety features of the elevator, and he stated that no one told him
that the elevator had dropped.
He also indicated that had
the elevator dropped "the safeties would have set," and he
saw no evidence that this happened (Tr. 298).
On cross-examination and in response to further questions,
Mr. Lusky explained the functions of the elevator relays
and contactors, and he confirmed that he had not previously
done any work on the elevator in question.
He confirmed
that he spoke with no one who had ridden the elevator and
that he considered his service call to be "routine." He
also indicated that any prior service calls would be a matter
of record, but he could not recall exactly when the elevator
was first installed. He confirmed that an elevator could
stop fer a number of reasons, and conceded that such a stop
would be an "unusual event" (Tr. 311).
Willard D. Smith, shift foreman, testified that on
December 27, 1982, when he rode the elevator down at 5:30 the
doors would not shut and the elevator would not go up.
He
reported this to the maintenance foreman, and the elevator
was operated manually until the problem could be taken care
of.
The elevator was repaired, but he did not know what work
was done on it.
He reported to work for the second shift
on December 28, and prepared to load the elevator to send
the crews underground.
He was not present when the elevator
stopped while coming up and he spoke to no one who was on
that elevator.
He stated that "I had heard through the maintenance that they had trouble with the elevator," and he was
present when Mr. Rebottini came up on the elevator and he
heard him state "it worked fine." Mr. Smith did not speak
with Mr. Rebottini, and after he got off the elevator the
evening shift began loading on the elevator (Tr. 324).
Mr. Smith stated that no one told him that the elevator
had stopped and he heard no one waiting to load on his shift
state that they thought the elevator was unsafe.
Three
elevator loads went underground while he was there and the
elevator did not malfunction. Mr. Smith described his
conversations with Mr. Hogan and Mr. Ventura as follows
(Tr. 325-327):
Q.
Now, there came a point when Ventura
and Hogan approached you?
A.

Yes, they did.

Q.

What did they say to you.

2195

A.
The only thing I remember Bob saying, Ventura
saying, was, "Do you guarantee me
, can you
guarantee me that elevator is safe?"

Q.

And what was your response to that?

A.
I said, "The elevator is running fine, but I
can't guarantee anything."
Q. Did you, at that point, feel that it was
safe to ride?
A.

Yes, sir.

Q. Did Mr. Ventura and Mr. Hogan raise the fact
that they had heard that the elevator had dropped?
A.

I

don't recall it.

No.

Q. Had you heard from anybody else, at that point,
that the elevator had dropped?
A.

No. I didn't.

Q. Did either Ventura or Hogan raise to you the
issue of the previous malfunctions on the elevator
as making it unsafe?
A.

*

No, they didn't.

*

*

Q. Yes, assuming that Ventura and Hogan came up
to you and said, "We heard that it dropped fifty
to a hundred feet" would you have behaved differently?
A.

No.

Q. And that's because you had heard that it was
running properly at that point?
A.

Fine, Right.

Q. Did you have any further conversation with Ventura
and Hogan?
A.

Not after that, no sir.

2196

Q.

What did you tell them to do?

A.
If I recall right, I said, "Well
"
Allen Hager, our mine foreman was there. We
all went into the office, and meanwhile, as
soon as they arrived in the office, I stepped
inside, and I had a phone call, and I had to
leave. And that's all that I --. What happened
in the office, I don't recall.
I wasn't in there.
Q.

Were you involved in assigning them other work?

A.

Yes, sir.

Q.

Did you ride that elevator that day?

A.

Yes, sir.

On cross-examination, Mr. Smith stated that he surmised
something had been wrong with the elevator when he saw
Mr. Rebottini "test ride" it, but he was sure it was fine
when Mr. Rebottini got off. Mr. Smith confirmed that approximately
80 miners rode the elevator into the mine after 4:00 p.m.
on December 28, and he also confirmed that he was present by
~.the elevator doors when the 8:00 a.m. to 4:00 p.m. shift came
·out (Tr. 332).
He denied speaking with Charles Cooper,
Donald Dowling, or Patrick Buttermore, and deni~d hearing
any comments that there was anything wrong with the elevator
(Tr. 334).
He also denied hearing any comments that the
elevator had dropped or that men were screaming when it did
(Tr. 335-336) .
In response to further questions, Mr. Smith indicated
that Mr. Hogan .and Mr. Ventura had served on his crew for
two years and that during this period they had never asked
him to "guarantee" their safety, and he conceded that this
was an "unusual occurrence".
He conceded that Mr. Ventura
and Mr. Hogan were concerned when they refused to ride the
elevator, and when asked about this concern on their part,
he replied "I guess they were reluctant because of the situation
that happened on the day shift.
That's the only reason I
can say" (Tr. 339). When asked what he would have done had
he been told that the elevator stopped or dropped, Mr. Smith
replied "if the maintenance people that was checking the
elevator told me it was safe and okay to operate, then I
would have expected them to go to work" (Tr. 340). He explained
further at Tr. 341:
JUDGE KOUTRAS:
But, as far as guaranteeing anyone's safety, you took the position that you
couldn't do that~

2197

T~E

WITNESS:

I could not.

JUDGE KOUTRAS: So, for all you know, even though
they said it was fine, it could very well have
been, once they got on, something could happen,
some unforseen thing, or something.
THE WITNESS:

It could have malfunctioned.

JUDGE KOUTRAS:
Is that the context in which you
made the statement that you can't guarantee their
safety?
THE WITNESS: Right.
I could have put them on it,
and the doors may have malfunctioned, anytime.
JUDGE KOUTRAS:
But, in any event, once you got
on and went down, you went down without any problem?
THE WITNESS:

Fine.

JUDGE KOU~RAS: And, how about coming back at the
end of the shift?
THE WITNESS: Yes.
It worked fine.
no one had reported anything.

To my knowledge,

Mr. Smith confirmed that he had no similar problems with
Mr. Hogan or Mr. Ventura in the past and that he considered
them to be good conscientious employees. When asked whether
he would have ridden the elevator given the same circumstances,
Mr. Smith replied as follows (Tr. 342):
JUDGE KOUTRAS: Let me ask you this hypothetical.
It might be tough to answer, but put yourself in
their position, what would you have done?
THE WITNESS:
JUDGE KOUTRAS:

I would have rode the elevator.
For what reason?

THE WITNESS: Because everyone else rode ·it, and I
would have felt that
I would have rode it too.
I would've felt that it was safe once it was checked
out, to ride.
Wayne S. Bair, maintenance foreman, testified that he
worked the day shift on December 28, 1982, and was on the
elevator when it stopped while coming up the shaft. He indicated
that the elevator stopped near the top and it did not drop. He
described the sensation when it stopped as ~you got light on

2198

your feet".
He heard no one scream and saw no one grab
anyone's arm, and he stated that "everyone kind of got quiet"
(Tr. 347). He confirmed that foreman Walter Petros called
out on the elevator phone and that after the call the elevator
came up. After he got off the elevator he encountered Mr. Willis
and they went to Mr. Hager's office and Mr. Bair told Mr. Hager
that "the elevator did mess up".
Since he did not believe that
it dropped, he said nothing to Mr. Hager about any reported
drop.
Mr. Bair stated that at no time did he hear anyone
state that the elevator had dropped. He confirmed that a
week prior to the hearing Mr. Kessler reQarked that he thought
the elevator had dropped and while Mr. Bair disagreed with
him he told Mr. Kessler "to tell them the way he really feels"
(Tr. 349). Mr. Bair also confirmed that he did not speak
with Mr. Hogan or Mr. Ventura on the day in question.
In response to further questions, Mr. Bair stated that
when the elevator stopped he felt "a little light'', but that
his knees did not buckle and his feet never left the floor
(Tr. 350). He indicated that "I think some people had some
pretty big eyes, . . . but outside of that everything was
pretty quiet right after that, until they made the
telephone call" (Tr. 353). He said that he would have ridden
the elevator again "once it was checked".
Adren A. Whitehair, maintenance clerk, testified that
while he was not directly involved in the repair of the elevator
on December 28, 1983, he was aware of the problems that day.
He confirmed that a Haughton elevator representative and surface
electrician Scott Kramer had performed some work on the elevator
on the morning of December 28, and that no other problems
developed until late in the afternoon. He received a call
from the bottom of the elevator which indicated that the
doors would open and close but that the elevator would not
work properly. He contacted Jackie Smith in the shop, and
Mr. Smith and shop mechanic Jin Howard checked the elevator,
and they "recycled" it by turning the power on and off. They
then tested it by "two dry runs" and it worked properly.
However, ten to fifteen minutes later the doors malfunctioned
and Mr. Smith recycled it a second time, and after testing
it he indicated that it was working (Tr. 358).
Mr. Whitehair testified that after the first elevator
malfunctions were taken care of he received a call that the
elevator had stopped. Mr. Petros advised him that it stopped
approximately 100 feet from the top of the shaft and he said
nothing about any drop. Mr. Whitehair then went to the penthouse,
and Jackie Smith was checking the contactors. The elevator

219D

was tested, and after several test runs, Jackie Smith advised
him that the elevator was operating properly. Mr. Whitehair
later heard some conversations regarding the elevator drop,
but he was not present when Mr. Hogan and Mr. Ventura initially
spoke with Mr. Hager.
However, he was present at a subsequent
meeting when Mr. Willis informed Mr. Hager that they should
not be expected to be on an elevator which was not safe and
which purportedly dropped (Tr. 362).
In response to further questions, Mr. Whitehair stated
that if he had been told that the elevator had dropped he
would not permit anyone to ride it. He characterized a "drop"
as the "free-falling of an elevator", and the distance would
not make any difference.
When asked how he would account for
such differences of opinions as to the purported drop of
the elevator, he replied "That's hard to say, but I will say
that when an elevator stops when its traveling at speed,
that you will get light-footed, of course" (Tr. 366).
Jackie T. Smith, maintenance foreman, testified that
his work experience includes some five years of inspections
of the elevator in question.
He identified exhibit R-2
as a copy of an inspection form dated December 28, 1982,
for the elevator in question, and he confirmed that it was
executed by mechanic Scott Kramer. Mr. Smith explained all
of the required inspection steps listed on the form, and he
explained the safety features of the elevator, and he confirmed
that operating it on a manual speed does not result in any
loss of safety (Tr. 371-379).
Mr. Smith confirmed that he was present on the morning of
December 28, 1982, when work was done on the elevator during
the day shift. He stated that he received a call at 3:05 p.m.
advising him that the elevator was stuck on the bottom. He
checked the switches, ascertained that the safety features
were operative, and after recycling the power and makinq
some test runs the elevator operated properly.
Shortly
thereafter he was again informed that the elevator doors would
not function properly, and since they couldn't close the
elevator would not run.
He recycled the power again and
the elevator worked properly.
Shortly after this, the elevator
stopped and he could see it from his vantage point in the
penthouse. As soon as the elevator stopped, the brakes set
and he observed no slippage. He then turned it on the manual
mode and Mr. Petros called him. Mr. Smith said that he informed
Mr. -Petros that "We're going to bring you up Manual mode"
(Tr. 3 8 3) .
Mr. Smith stated that he immediately brought the elevator
up on manual mode to avoid "waiting time" while he recycled
the power.
Had there been any malfunction ~f the safety

2200

features he would not have been able to move the elevator
at all. After bringing the elevator to the top, he checked
out the contactors and "test ran" the elevator at least four
times, but he could not find out why it had malfunctioned.
However, it was his opinion that the elevator was safe to
operate. He later encountered Mr. Hogan and Mr. Ventura and
they asked if he had found the problem. Mr. Smith responded
that he had found nothing wrong with the elevator, and in
response to a question as to whether it was safe to ride,
Mr. Smith stated that he responded "it was the safest piece
of equipment in the mine" (Tr. 386). Mr. Smith could not
state whether Mr. Hogan or Mr. Ventura said anything to him
about the elevator dropping.
Mr. Smith stated that he was present when the Haughton
elevator representative arrived to check out the elevator,
and he confirmed that some contactors were changed but that
the mechanic could not specifically identify the malfunction
that caused the elevator to stop (Tr. 388).
On cross-examination, Mr. Smith stated that he did not
speak to any of the miners who were on the elevator when it
stopped. He identified a copy of his previous statement given
to an MSHA special investigator, exhibit G-4, and confirmed
that his statement indicated that he told Mr. Hogan and
Mr. Ventura that he ''didn't know what the problem was". When
asked whether there was a difference in telling them that
"there's no problem'', as opposed to telling them that he
"didn't know what the problem was", he replied "I'd say that's
pretty close to the same thing" (Tr. 395).
In response to further questions, Mr. Smith stated that
from his position in the penthouse at the time the elevator
stopped he would have been able to observe any drop. While
he could not see the actual cage, he could observe the cables
and would have seen any slippage of the elevator motor or
head frame.
He confirmed that he was standing at the penthouse
by the elevator braking device when the motor stopped and
he heard the brakes set, and had the elevator dropped he
would clearly have seen the cable drop (Tr. 404). When asked
to explain why some of the miners described the stop as a
drop, he replied "I've been on it when it stopped before, and
it g~ves you a sensation of rising and then falling down,
gravity" (Tr. 404). He also confirmed that from his position
he could hear no shouts or screams from inside the elevator
cage.
James S. Conrad, Jr., MSHA Federal Mine Inspector,
testified that he was familiar with the safety features required

2201

for elevators in underground mines. He confirmed that he
was called to the mine at approximately 5:00 p.m. on
December 28, 1982, by Mr. Hager, the general mine foreman,
and that he was asked to come to the mine "to help settle
a dispute in relation to the elevator, whether or not it was
safe to operate" (Tr. 408). After arriving at the mine,
Mr. Conrad indicated that he met with elevator mechanic
John Lusky who advised him that none of the safety devices
were "jumpered out". Mr. Lusky also advised him that the
elevator was safe to operate, and Inspector Conrad confirmed
that he issued no citations or violations (Tr. 411).
Allen E. Hager, General Mine Foreman, testified that he
was aware of the fact that on December 27 and 28, 1982, the
elevator in question was experiencing problems. There was
a problem with the doors on December 27, and it was taken care
of. The problems early in the day on December 28,were also
with the doors, and the midnight shift came out of the mine
by means of the slope, and this was because the elevator
representative was trying to find out what was wrong with
the elevator (Tr. 425).
The decision to call in the mechanic
had nothing to with the safety of the elevator because the
elevator could have been used and any malfunctions had nothing
to do with its safe operation (Tr. 426).
Mr. Hager confirmed that on the morning of December 28,
the malfunctioning elevator doors had been repaired, but
another malfunction occurred at approximately 3:00 p.m. that
day, and this was again connected with the doors. He later
learned that the elevator stopped as it was coming up with
a load of miners. When he was informed of this incident, he
proceeded to the elevator landing, and learned that Mr. Smith
had run some tests and he asked Mr. Smith if anything was
malfunctioning and he responded "no" (Tr. 427). Mr. Hager
then remained while the evening shift rode the elevator down,
and prior to 4:00 p.m. no one complained to him concerning
the safety of the elevator (Tr. 428).
Mr. Hager stated that he first learned that Mr. Hogan
and Mr. Ventura refused to ride the elevator after the day
shift had "caged out" and the majority of the afternoon
shift had "caged in". Mr. Hogan, Mr. Ventura, and Mr. Denny Smith
"confronted him" on the elevator landing and informed him
of the fact that Mr. Hogan and Mr. Ventura were exercising
their individual safety rights because they believed the
elevator was unsafe to ride (Tr. 429). Mr. Hager stated
that he offered to "cage them down on in the manual mode"
and explained to them that he believed the elevator was safe
to ride. His precise words were "there's nothing wfong with
the elevator.
It's safe to ride" (Tr. 430). He stated that
they still persisted in invoking their individual safety rights
and that they said nothing about the elevator dro~ping
(Tr. 430).

2202

Mr. Hager confirmed that he met with Mr. Hogan and
Mr. Ventura in his office after their refusal to ride the
elevator and that he repeated his offer to cage them in
manually, and also repeated his view that the elevator was
safe to ride (Tr. 431). Prior to this meeting he (Hager)
had spoken with Jackie Smith and was informed that the elevator
was operating properly and that he had found nothing wrong
with it. Mr. Hager also confirmed that he had initially
offered to transport Mr. Hogan and Mr. Ventura into the
mine by means of the slope, but subsequently retracted
that offer. He retracted the offer after he gave thought to
the fact that by making the offer in the first place he would
be placed in a position of saying there was something wrong
with the elevator, and as far as he was concerned this was
not the case (Tr. 432).
Mr. Hager stated that he sum..~oned the federal and state inspectors
to the mine to determine the safety of the elevator because this
is the procedure dictated by the labor-management contract,
exhibit R-3 (Tr. 433-435). He also called in the elevator
representative, and Mr. Hager stated that there was no doubt
in his mind as to the safety of the elevator (Tr. 436-437).
He confirmed that during his meetings with Mr. Hogan and
Mr. Ventura concerning their refusal to ride the elevator
no information was forthcoming concerning the purported
elevator dropping or the fact that people on the elevator had
screamed, grabbed other people's arms, or that legs had
buckled (Tr. 437).
Mr. Hager confirmed that he met with Mr. Willis,
Mr. Hogan, and Mr. Ventura and informed them collectively
that he was suspending Mr. Hogan and Mr. Ventura for their
refusal to ride the elevator. He further confirmed that the
suspensions were made in accordance with the contract which
authorizes such suspensions if it is determined that the
proper state and federal inspection officials confirm that
the work conditions on which the refusals are based did not
constitute violations. Further, it was his view that Mr. Hogan
and Mr. Ventura did not act in good faith because the elevator
was operating properly at the time of their refusal to ride
it and that approximately 160 miners caged in and out of the
mine on the very same elevator at the same time as the
work. refusal (Tr. 441-442). When asked what he would
do if he had been told that the elevator dropped 50 to 100
feet, Hr. Hager responded as follows (Tr. 445):
A. Well, I'd investigate the incident with
the people that allegedly made the statement~, and
if they were sincere in saying they fell that distance,
I'd have no alternative but to shut the elevator
down until it was inspected thorobghly.

2203

On cross-examination, Mr. Hager reiterated that he may
have heard about the elevator dropping, but the first time
he heard this would have been after 4:00 p.m. on December 28,
1982. He also confirmed that he had no knowledge as to the
specific causes of elevator malfunctions at the time he made
the offer to take Mr. Hogan and Mr. Ventura down on the
elevator by manual mode (Tr. 447). He was aware of the test
runs and had no knowledge of any additional malfunctions at
the time this offer was made, and he was present when
Mr. Rebottini got off the elevator. Mr. Hager confirmed that
while he did not draft the suspension notices given to Mr. Hogan
and Mr. Ventura, exhibits G-1 and G-2, he signed them (Tr. 450).
He confirmed that Mr. Hogan had on one previous occasion
exercised his individual safety rights in connection with
the elevator, but he was not disciplined and was given alternative
work (Tr. 454).
In response to further questions, Mr. Hager denied that
Mr. Hogan or Mr. Ventura ever apprised him of any statements
made by miners on the elevator that the elevator had dropped
any distance, that their knees buckled, that someone grabbed
another, or that anyone screamed (Tr. 460-461).
If these
assertions had been communicated to him he would have shut the
elevator down and conducted a thorough investigation (Tr. 461).
Walter A. Petros was called as the Court's witness,
and he confirmed that he is employed by the respondent as a
maintenance foreman.
He confirmed that he was on the elevator
in question when it stopped on December 28, 1982, and that
he spoke with Jackie Smith over the telephone from the elevator.
Mr. Petros stated that after the elevator stopped he heard
no one screaming, and he described the demeanor of the miners
on the elevator as follows (Tr. 474-475):
Well, I would say, just like everybody else,
it was a shock at first, you know, because
just like going in any other elevator that comes
up to the floor, it sort of, you know, your
stomach sort of feels uneasy to start with,
and then it just settles back down when you come
to a pretty fast stop. But, I know myself, it's
happened two or three times that when you're
going down somebody'll accidentally hit the
stop button. And it does the same thing.
It
gives you a jolt. And as soon as it did that,
you know, like I said, everybody was probably
scared at first, but as soon as it did that, and
it did it, you realized what happened, or I did.
And then I went over to find out what, you know,
had caused it.

2204

Mr. Petros stated that in his opinion the elevator
did not drop, and he indicated that when i t came up the shaft
and stopped there was spring tension on the cables and that
''this will give you a little up and down movement" (Tr. 475) ·
When asked whether he detected any panic on the elevator,
he replied as follows (?r~ 476):
Not right
. You know.
I don't know.
Like I said, I was trying to get to the phone
and, I.mean, I didn't actually pay any attention
to what everybody was saying. But, some people
are more susceptible to panic than others. So,
you know, I mean --.
I think, what happened is
when it did stop and then I got on the phone and
talked to Jackie and it started back up, I don't
really think there was time for --, you know,
if it would have set there for maybe 10 or 15
minutes, then you might have got the people into
a little panic situation.
Mr. Petros confirmed that after he got off the elevator
he went to the bathhouse but did not speak with Mr. Hogan
or Mr. Ventura, and he remembered speaking to no one else,
nor did he remember observing anyone talk to any management
people (Tr. 477).
Findings and Conclusions
The critical issue in this case is whether the refusal
by Mr. Hogan and Mr. Ventura to ride the elevator underground
to their work stations because they believed it was not safe
is protected by Section 105(c) of the Act. Although Mr. Hogan
and Mr. Ventura were assigned other work after the refusal,
since the elevator was the normal means for transporting
them underground to their assigned duty stations, their
refusal to ride the elevator constituted a work refusal.
Refusal to perform work is protected under Section 105(c) (1)
if it results from a good faith belief that to go ahead with
the assigned work would expose the miner to a safety hazard,
and if the belief is a reasonable one. Secretary of Labor,
ex rel. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2 BNA MSHC 1001 (October 1980), rev'd on other grounds, sub
nom Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd
Cir. 1981); Secretary of Labor ex rel. Robinette v. United
Castle Coal Co., 3 FMSHRC 802, 2 BNA MSHC 1213 (April 1981);
Bradley v. Belva Coal Co., 4 FMSHRC 982 (June 1982). Further,
the reason for the work refusal must be communicated to the
mine operator. Secretary.of Labor ex rel. Dunmire and Estle
v. Northern Coal Co., 4 FMSHRC 126 (February 1982).

2205

In Secretary of Labor ex rel. Bruce Edward Pratt v.
River Hurricane Coal Company, Inc., 5 FMSHRC 1529 (September
1983), the Commission relied on its prior decisions in
Robinette, supra,and Haro v. Magma Copper Co., 4 FMSHRC
1935, 1944 (November 1982), and rejected River Hurricane's
argument that any standard used to assess the legitimacy
of a miner's work refusal must be an objective one supported
by ascertainable evidence . . The Commission followed its
previously adopted standard that the miner's honest perception
of a hazard be "a reasonable one under the circumstances."
The Commission also rejected a suggestion that it articulate
a standard as to how severe a hazard must be in order to trigger
a miner's right to refuse to work, and opted to rely on the
"gradual development of the law in the cases contested before
us."
In the Pratt case, the Commission considered the miner's
perception of the hazards involved when he refused to fight
a battery fire and refused to agree to attempt to extinguish
future fires under similar circumstances.
The Commission
found that Pratt feared an explosion of the batteries in
question would throw shrapnel and acid over him and might
kill him, and they affirmed the Judge's finding that Pratt
reasonably believed in a serious risk of injury from an
exploding battery. Citing Bush v. Union Carbide Corp., 5
FMSHRC 993, 998 (June 1983), the Commission held that once
a reasonable good faith fear in a hazard is expressed by a
miner, the operator has an obligation to address the perceived
danger, 5 FMSHRC at 1534.
After review of the circumstances surrounding Pratt's
work refusal, the Commission found that the mine operator's
explanation or attempt to address his fears did not include
specific information or support as to why fighting the battery
fires may not have been as dangerous as Pratt believed.
The
Commission affirmed the Judge's finding that the operator
violated Section 105(c) of the Act by discharging Pratt for
his refusal to perform a task still reasonably believed
by him to be dangerous.
The facts and circumstances surrounding the work refusal
in the Pratt case are different from those presented in the
instant case.
In addition, it seems clear to me that contrary
to the position taken by the mine operator in Pratt, the
operator in the case at hand took positive and affirmative
steps to address the concerns articulated by Mr. Hogan and
Mr. Ventura, and my reasons for this conclusion follow below.
Mr. Ventura and Mr. Hogan were not on the elevator at
the time of the "dropping" incident.
They learned of the
incident through passing conversations with,others. The

2206

testimony concerning the purported dropping of the elevator
is conflicting. Mr. Hogan testified that the miners he
spoke with had different opinions, and that the purported
dropping distance ranged from ten to 100 feet. Mr. Ventura
claimed that Mr. Kessler informed him that the elevator
stopped and then dropped about 50 feet.
However, Mr. Ventura
conceded that since no one was injured, Mr. Kessler may have
exaggerated the extent of the purported drop. Mr. Ventura
also testified that he believed eight miners may have been
on the elevator .with Mr. Kessler, but heard no comments.
from anyone else indicating that the elevator dropped.
Mr. Kessler denied that he told Mr. Ventura that the
elevator dropped 50 feet.
He then testified that he may
have said it fell six to eight feet, and when asked to
reconcile his prior signed statement to the ~SHA investigator
that it dropped 10 to 15 feet, Mr. Kessler stated that since
he was enclosed in the cage "I can't tell you how far the
cage dropped."
Mechanic trainee Don Dowling and continuous miner
operator Charles Cooper, who were also on the elevator,
believed that the elevator rose, stopped, fell, and then
stopped again. Mr. Dowling did not state how far it fell,
and while Mr. Cooper said it may have fallen eight to 10
feet, he also said "we couldn't judge the distance it fell."
Mr. Dowling stated that after he got off the elevator,
he did not speak with Mr. Hogan or Mr. Ventura because he
did not know them. He also stated that he said nothing
about the incident to mine management. He returned to work
the next day, rode the elevator, and he indicated that "it
worked fine."
Mr. Cooper stated that after he got off the elevator,
he spoke with safety committeeman Willis, but simply told
him "there's something wrong with the elevator." However,
Mr. Cooper said that he did not see or speak with Mr. Hogan
or Mr. Ventura at that time. Mr. Cooper returned to work
the next day and rode the elevator without incident.
Shuttle car operator Mark Sunyak, who worked the same
shift as Mr. Hogan and Mr. Ventura on December 28, testified
that he rode the elevator down on the first trip and that he
heard no one from the preceding shift mention anything about
the elevator dropping.
Shift foreman Dennis Smith loaded three trips on the
elevator during Mr. Hogan's and Mr. Ventura's shift, and the

220t(

elevator did not malfunction. He heard no statements from
the prior shift indicating that the elevator had dropped.
Maintenance Foreman Wayne Bair was on the elevator
when it stopped, and he stated that it did not drop.
Maintenance Foreman Walter Petros was on the elevator when
it stopped, and he stated that it did not drop. Maintenance
Foreman Jackie T. Smith was at the elevator controls when
it stopped. He observed nothing in the cable mechanism
which would lead him to conclude that the elevator dropped.
Mr. Hogan admitted that before telling Dennis Smith
that he refused to ride the elevator, he was aware that
several elevator trips were made underground with other crew
members and that he observed no evidence of any elevator
malfunction. Mr. Hogan also conceded that after the asserted
elevator dropping incident, he did not ask Dennis Smith,
Jackie Smith, or Alan Hager whether they had checked the
elevator to determine what was wrong with it.
At no time during his direct testimony did Mr. Hogan
ever indicate that he specifically informed anyone in mine
management about the purported elevator dropping prior to, or
at the time of, his work refusal. On cross-examination,
Mr. Hogan conceded that he did not mention the purported
elevator dropping to Dennis Smith or Jackie Smith. As for
Mr. Hager, Mr. Hogan testified that he "believed" he mentioned
it to Mr. Hager, but was not certain.
Mr. Ventura testified that he mentioned the elevator
dropping to Dennis Smith, Jackie Smith, Alan Hager, and his
section foreman Clark. When asked whether he specifically
mentioned to Mr. Smith and Mr. Clark that someone had told
him that the elevator dropped fifty feet, Mr. Ventura replied
"yes." He then testified"* *well, I didn't say fifty feet,
but that it had dropped." He also indicated that he did
not identify the person who had told him about the drop to
Mr. Hager, and that Mr. Hager advised him that he was not
aware that the elevator had dropped.
Respondent's testimony and evidence establishes that
after the complainants informed Dennis Smith and Alan Hager
that they were exercising their individual safety rights
in refusing to ride the elevator, both Mr. Hager and Mr. Smith
assured them that the elevator was safe. Mr. Hager testified
that had he been informed that the elevator had dropped 50
or 100 feet, he would have shut it down as an im..~inent danger
and prohibited anyone from riding it. While it is true
that miners are not necessarily required to accept mine management's
evaluation of a perceived hazard, on the facts of the instant

2208

case, I conclude and find that mine management here made
a positive and reasonable response to the complainants
safety concerns and my reasons in this regard follow~
While it may be true that Mr. Hogan and Mr. Ventura
communicated "their fears" about the elevator to several
management members, MSHA's inference at page 8-9 of its
brief that they articulated any specific concerns about the
purported elevator dropping to either Mr. Hager, Mr. Dennis Smith,
or any other management representative is rejected as
unsupported by any credible testimony.
While it may be true that Mr. Hager and Mr. Dennis Smith
had reason to know that the elevator had malfunctioned prior
to the work refusal, I cannot conclude that Mr. Hager's
reactions to the complaints by Mr. Hogan and Mr. Ventura
were unreasonable in the circumstances. He summoned an
elevator serviceman from the manufacturer, dispatched a
maintenance foreman to the elevator penthouse to try to find
the problem, and also summoned a Federal and state mine
inspector to the scene. He also offered to operate the
elevator in a manual mode so as to transport Mr. Hogan and
Mr. Ventura underground without resort to the automatic
elevator controls.
In the meantime, several elevator trips
were made underground with the rest of the shift, and the
union president himself made two "test runs" on the elevator
and found nothing wrong with it. All of these events were
known to Mr. Hogan and Mr. Ventura prior to the work refusal.
Mr. J.T. Smith, an experienced maintenance foreman who had
gone to the elevator penthouse to check it, assured the
complainants that he found nothing with it and that it was
safe. This was communicated to Mr. Hogan and Mr. Ventura
prior to the work refusal.
No cause for the stopping of the elevator was ever
found.
While there was speculation that a faulty contactor
relay may have caused the elevator to stop, at no time were
any of its safety features inoperative, and the relay was
replaced. Further, the inspection by the Federal and state
mine inspector revealed no safety infractions, and did not
result in the issuance of any citations .
. Safety committeeman Willis believed that mine management
acted reasonably in summoning an elevator mechanic and the
Federal and state inspectors.
He commented that he had ridden
the elevator many times and that "anytime that elevator
malfunctions it is a headache for both management and union,
it causes a lot of concern."
Committeeman Willis, who also held the elected position of vicepresident of the local UMWA union, worked the same shift with
the complainants, and was at the mine on December 28. He

2209

testified that Mr. Hogan and Mr. Ventura did not speak with
him prior to their work refusal. Although he spoke with
Mr. Kessler, Mr. Willis testified that he simply told him
that the elevator stopped and ''felt like it dropped,"
but that Mr. Kessler said nothing about how far the elevator
may have dropped.
The complainants failure to bring the purported hazardous
elevator condition to the attention of a mine safety committeeman
who was present for work on the same shift remains unexplained.
A possible answer may lie in the fact that the complainants
may have expected a "collective" work refusal by the entire
shift not to ride the elevator. When this failed to
materialize, the complainants invoked their own individual
safety rights.
I find it rather surprising that the complainants would
not bring the purported elevator "dropping" condition to
the immediate attention of the safety committeeman who was
present at the scene.
Rather than doing this, the complainants
waited until they were summoned to the mine foreman's office
before involving safety committeeman Willis. The failure
by Mr. Hogan a~d Mr. Ventura to immediately bring the purported
50 to 100 foot elevator drop to the attention of their safety
representative is not only irresponsible, but casts serious
doubts on their credibility and motivation in refusing to ride
the elevator.
While it is true that there were elevator problems
on December 27, and earlier during the day shift on
December 28, the fact is that those problems involved malfunctions
of the doors which had been corrected prior to the work
refusal in question. Further, both Mr. Hogan and Mr. Ventura
rode the elevator out of the mine at the end of their shift
on December 27, and they encountered no problems.
Mr. Hogan confirmed that by the end of his shift on
December 27, the elevator problem had been repaired, and
that such repairs were made within ten or fifteen minutes
after he heard about it. He also testified that when he
later spoke to mine management (Jackie Smith, Allen Hager,
and Denny Smith) on December 28, he did not ask them about
the .December 27 problem.
Mr. Ventura confirmed that he knew that the reported
elevator malfunction of December 27 had been repaired. As
a matter of fact, he testified that since the elevator was
the main escapeway, his foreman granted his request to leave
the mine early if the elevator were not repaired within a

2210

half hour.
Since it was repaired, Mr. Ventura did not leave
early, and he rode the elevator out of the mine at the end
of the shift. At that time, even though Mr. Ventura claimed
that one of his fellow workers told him that he tripped
while boarding the elevator when it raised up 8 to 12 inches,
Mr. Ventura did not report this incident to anyone and went
home.
In view of the foregoing, I conclude and find that the
earlier problems with the elevator on December 27, cannot
serve as a basis for any reasonable good faith belief that
the elevator was hazardous at the time of the work refusal
immediately prior· to the work shift on December 28.
With regard to the elevator door problems of December 28,
which delayed the day shift from entering the mine until
approximately 10:00 a.m., testimony from several men on that
shift (Kessler and Dowling), maintenance personnel (Whitehair
and Jackie T. Smith), and mine foreman Hager, reflects that
repairs were made.
The day shift then used the elevator to
enter the mine, and that they did so without experiencing
any problems. Under these circumstances, although Mr. Hogan
and Mr. Ventura may have learned about these problems though
general bathhouse conversations after the day shift came
out of the mine on December 28, at the end of the shift, I
cannot conclude or find that these earlier problems contributed
to, or formed a basis for, any reasonable good faith
belief that the elevator was hazardous at the time of their
refusal to use it.
Based on a careful reivew and scrutiny of all of the
testimony and evidence in this case, I conclude that the
only possible basis for the complainants' belief that an
elevator hazard existed is the information given them by
certain day shift miners who were on the elevator when it
reportedly "dropped." The essence of the work refusal lies
in the contention by Mr. Ventura and Mr. Hogan that, not
knowing what caused the reported "drop," they were not willing
to chance a possible repeat incident.
Mr. Ventura testified that it was possible that he
would not have refused to ride the elevator had Mr. Kessler
not mentioned the purported "drop." When asked whether he
would have still refused to ride the elevator if no one had
mentioned the "drop," Mr. Hogan responded "I don't know, that's
hypothetical."
There is no evidence in this case that the respondent
has ever retaliated against any miners because they exercised
their individual safety rights. As a matter of fact, Mr. Hogan

2211

and Mr. Ventura were assigned other work when they refused
to ride the elevator. On prior occasion$, Mr. Hogan had
made safety complaints and invoked his right to refuse
to work for safety considerations, and nothing happened to
him. He was given other work, and the matters complained
of were taken care of by mine management.
Shuttle car operator Mark Sunyak testified that he
had previously exercised his safety rights in regard to
certain imminent danger situations, but that mine management
took corrective action and did not discipline him.
In Dunmire and Estle, supra, the Commission held that
a combination of trustworthy first-hand reports from other
miners, coupled with the complainant's immediate preceding
first-hand experience as to certain hazardous roof conditions,
supplied a supportable and acceptable basis for concluding
that there was a reasonable belief in the existence of the
hazardous conditions.
In affirming the Judge's finding
that the complainant's work refusal was protected activity,
the Commission relied on the record of credible, first-hand,
corroborative evidence presented, including the complainant's
prior personal exposure to the hazardous roof conditions,
and their previous complaints spanning several months.
In the case at hand, I cannot conclude that the circumstances
faced by Mr. Hogan and Mr. Ventura, were similar to those
faced by Dunmire and Estle. Based on a preponderance of all
of the credible testimony, I am convinced that Mr. Ventura
and Mr. Hogan were not presented with credible first-hand
information indicating that the elevator in question would
more than likely fall to the bottom of the shaft if they
were to ride it. Taken as a whole, the record in this case
establishes to my satisfaction that notwithstanding
the fact that mine management took reasonable steps to insure
their safety, Mr. Hogan and Mr. Ventura took it upon themselves
to decide that they were not going to ride the elevator.
The fact that their own union representatives rode it, that
other members of the crew rode it, and that mine management
assured them that it was safe, simply had no impression on
them. Given these circumstances, I cannot conclude that
the respondent violated their protected rights under the
Act.
In the final analysis, I believe that Mr. Hogan and
Mr. Ventura, faced with a decision that they would have to
make as individuals, opted to make a decision that they believed
would ultimately vindicate their own individual opinions.
However, after close examination of all of the objective
testimony and evidence of record, I believe that they were wrong.
Accordingly, I cannot make findings and conclusions that would
support their position.

2212

After both sides had completed their questioning of the
complainants, I recalled them for additional questions. When
asked why their prior signed statements gi~en to MSHA's
special investigator during his investigation of their
complaints fail to mention that they informed anyone in mine
management at the time of the work refusal about the purported
elevator dropping, Mr. Hogan indicated that the special
investigator somehow failed to record his entire statement
and somehow edited his statement. Mr. Ventura stated that
he "was not sure ... why he did not tell MSHA's investigator
the full story of the purported elevator "dropping."
After viewing Mr. Ventura and Hogan on the stand during
their testimony at the hearing, I conclude that they were less
than .candid in what they told the MSHA special investigator
during his investigation of their complaint, as well as what
they testified to at the hearing.
In short, I simply do not
believe that they in fact told the special investigator that
they were informed that the elevator had in fact dropped or
fallen, and that this asserted event really influenced their
decision not to ride it. To the contrary, I conclude and
find that Mr. Hogan and Mr. Ventura did not communicate the
asserted elevator "dropping'' to anyone at anytime prior to
their work refusal. Absent this communication, I cannot
conclude that their work refusal was reasonable.
Contrary to the situation which existed in the Pratt case,
supra, I conclude and find that the respondent in the instant
case specifically and directly addressed the purported hazardous
condition articulated by Mr. Hogan and Mr. Ventura, and it
did so in a manner which should have pacified and assured
a reasonable person that he was not faced with a choice
of riding an elevator that could have been expected to resulted
in injury or exposure to possible harm.
In short, I conclude
and find that the complainants in this case acted unreasonably
in refusing to ride the elevator in question, and that the
suspensions meted out for the work refusal were reasonable
in the circumstances, and did not violate any protected rights
under the Act.
Conclusion and Order
In view of the foregoing findings and conclusions, and
after careful consideration of a preponderance of all of the
testimony and evidence adduced in this case, I conclude and
find that the respondent did not discriminate against Mr. Hogan
or Mr. Ventura, and their rights under the Act have not been
violated. Accordingly, their complaints ARE DISMISSED.

2213

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEVA 82-363
A.C. No. 46-04168-03503

v.
Docket No. WEVA 83-64
A.C. No. 46-04168-03528

KITT ENERGY CORPORATION,
Respondent

Kitt No. 1 Mine
DECISION
Before:

Judge Kennedy

The parties move for approval of a motion withdrawing
the captioned penalty petitions on the ground that a review
of the videotapes of the condition cited shows the violation
charged did not, in fact, occur.
In what came to be known as the case of the "slippery
slopes," MSHA charged two violations 75.1704 on the ground
that the hand rails on a slope that served as an escapeway
were not maintained so as to insure safe passage of the
miners at all times. Because the violations were considered
"nit-picks," MSHA proposed its usual "wrist-slap" penalty of
$20. When the matters, together with others, came on for a
prehearing conference, the trial judge suggested that before
the parties put the taxpayers and stockholders to further
inordinate expense over what both parties conceded were
trivial violations they attempt to resolve the matter by
making videotapes of miner~ using the slopes in question to
determine the difficulty, if any, involved in climbing
through the areas.
The parties agreed to this and after accomplishing the
"view" agreed the citations were improvidently issued and should
be vacated.
This having been accomplished the instant motion
followed.
I conclude the violations charged did not, in fact,
occur and that the citations were, therefore, properly vacated.

2214

Accordingly, it is ORDERED that the motions to withdraw
be, and hereby are, GRANTED and
e captioned matters DISMISSED.

Joseph B. Ke nedy
Administrative Law
Distribution:
David Street, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market St., Philadelphia, PA 19104
(Certified
Mail)
B. K. Taoras, Esq., Kitt Energy Corporation, 455 Race Track
Road, P.O. Box 500, Meadow Lands, PA 15347
(Certified Mail)

/ejp

2215

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

22041

t.: ;.

f.. ;L ....

"-:'-·

CIVIL PENALTY PROCEEDING
Docket No. WEVA 83-237
A.C. No. 46-01283-03518

v.
Hampton No. 3 Mine
WESTMORELAND COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Kennedy

The parties move for approval ~f a settlement of the
respirable dust violation (2.5 mg/m ) charged in the captioned
proposal at a 27% reduction in the amount initially assessed
($225 v. $311).
Based on an independent evaluation and de nova review
of the circumstances, I find the settlement proposed is in
accord with the purposes and policy of the Act.
Accordingly, it is ORDERED that the operator pay the
amount of the penalty agreed upo , $225, on or before Friday,
January 4, 1984, and that subje t
o payment the captioned
matter be DISMISSED.

Joseph B. Kennedy
Administrative Law
Distribution:
Agnes M. Johnson-Wilson, Esq., Office of the Solicitor,
U.S. Department of Labor, 3535 Market St., Philadelphia, PA
19104
(Certified Mail)
F. Thomas Rubenstein, Esq., Westmoreland Coal Company, P.O.
Drawers A & B, Big Stone Gap, VA 24219
(Certified Mail)

/ejp

221(~

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-89
A.C. No. 36-00970-03512

v.
Maple Creek No. 1 Mine
U.S. STEEL MINING COMPANY, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

David A. Pennington, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Broderick

When the above case was called for hearing in Washington,
Pennsylvania, on November 30, 1983, the parties submitted on the
record a motion to approve a settlement.
The MSHA inspector who
issued the two citations contained in this docket number was
unable to be present at the hearing.
One citation was originally assessed at $136, and the parties
propose to settle for $50.
The violation charged was insufficient
velocity of air (4,500 cfm when the methane and dust control plan
called for 5,000 cfm).
It appears that the low reading was taken
during the mining cycle and that one of the shuttle cars hit a
line curtain.
There was sufficient air at the face before mining
started.
The significant and substantial designation is to remain.
The other citation was originally assessed at $168, and the
parties propose to settle for $100. The violation charged was
the failure to have a trolley wire properly guarded. The parties
state that the missing guard was on the narrow or rib side and
thus miners were unlikely to contact it.
I accept the representations in the motion and conclude that
the settlement agreement should be approved.

221'7

Therefore, IT IS ORDERED that the settlement agreement is
APPROVED and Respondent is ORDERED TO PAY the sum of $150 within
30 days of the date of this decision.

~
AfJn~d~~ fyf
James A. Broderick

j

Administrative Law Judge

Distribution:
David A. Pennington, 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, Room 1580,
Pittsburgh, PA 15230 (Certified Mail)
·

/fb

2218

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

December 22, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. SE 84-7-M
A.C. No. 09-00067-05503

v.
Kennesaw Quarry and Plant
VULCAN MATERIALS COMPANY SOUTHEAST DIVISION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The parties have filed a motion to approve settlement
in the above-captioned proceeding. The parties propose to
settle the two citations at issue in this case for the
original assessments total of $4,000.
Citation No. 2243958 was issued for a violation of 30
C.F.R. § 56.12-25 because the emergency stop switch for a
conveyor belt was not frame-grounded. A miner was electrocuted when he grasped the actuating lever of the emergency
stop switch. The accident was caused by an electrical fault
at the stop switch which occurred due to strain and flexing
of the conductors entering the switch housing.
The single
bolt securing the switch to the wall was not sufficient to
prevent movement of the switch when the cord was pulled.
Consequently, the cable pulled out of the strain clamp and
the bare or damaged conductors contacted the switch frame.
The parties advise that negligence was low because the
status of the grounding was not visually apparent and had
not been detected despite previous diligent inspections by
the operator. The violation was abated in good faith.
The
mine is medium in size and the operator is large. There is
no history of prior violations of the cited standard.
Payment of the penalty will have no significant effect on
the operator's ability to remain in business.
The parties
propose to settle this citation for the original assessment
of $3,000.

2219

Citation No. 2243959 was issued for a violation of 30
C.F.R. § 56.12-2 because the emergency stop switch for a
conveyor belt was not properly mounted.
The violation contributed to the fatality described above.
The parties
advise that negligence was low.
The remainder of the
statutory criteria set forth in section llO(i) of the Act
are as described above.
The parties propose to settle this
citation for the original assessment of $1,000.
I have very carefully reviewed the settlement motion
and supporting materials. Although the violations are
exceptionally grave, I note the low degree of negligence and
absence of prior violations of the cited standards.
Inasmuch
as both assessments are substantial amounts, I conclude the
recommended settlements are appropriate in this case.
The
recommended settlements are therefore, approved.
ORDER
The operator is ORDERED to pay $4,000 within 30 days
from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Ken S. Welsch, Esq., Office of the Solicitor, U. S. Department
of Labor, 1371 Peachtree Street, N.E., Atlanta, GA 30367
(Certified Mail)
Oscar N. Persons, Esq., Alston & Bird, 100 Galeria Parkway,
Suite 1200, Atlanta, GA 30339
(Certified Mail)

/ln

2220

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 ROBERT K. ROLAND,
Complainant
v.

80204

DEC 2 2 --~

DISCRIMINATION PROCEEDING
Docket No. WEST 83-90-DM
MSHA Case No. MD 83-01
Parachute Creek Mine

OIL SHALE CONSTRUCTORS,
Respondent
ORDER OF DISMISSAL
Before:

Judge Carlson

The Secretary of Labor has filed a motion styled "Motion
to Withdraw Proposal for Penalty" in which he seeks to withdraw
as representative of the complaining miner in this discrimination
case, and to withdraw the complaint.
(Penalty is mentioned in
the title of the motion because the discrimination complaint
includes a plea for a civil penalty of $5,000 in addition to
remedies for the miner.)
Before I rule upon the motion, certain prefatory matters
must be set forth.
On December 14, 1983, Robert K. Roland, the
complaining miner, came to the offices of the Commission in
Denver and spoke to the undersigned judge. He expressed concernthat
the Office of the Solicitor had orally advised him on November 21,
1983 that the Secretary would no longer furnish counsel in his
case. He was unsure of the posture of his case since the
Solicitor's office had not yet made any filing evidencing an
intent to withdraw. As Mr. Roland spoke, he made declarations
which touched directly upon the merits of the case.
I must
regard these declarations as an ex parte communication forbidden
by Commission rules. While Mr. Roland was in my belief innocent
of any improper intent, I concluded at that time that I should
disqualify myself from any further proceedings in the case.
On the following day the Secretary's motion for withdrawal
was filed.
On December 16, 1983, I initiated a telephone conference call with the counsel for Oil Shale Constructors, counsel
for the Secretary, and Mr. Roland on the line. At the outset
I made known that an ex parte communication respecting the merits
had been made, and that I had decided that disqualification was
the only proper action on my part.
I did not disclose the content
of the ex parte declaration in view of the decision to disqualify.

2221

I did, however, indicate a willingness to rule upon the pending
motion should all of the parties agree that. I should do so, since
that act would not relate to the merits, and would move the matter
one step closer to possible resolution. All participants were agreeable.
I further advised Mr. Roland that I would give him fifteen
days, if he wished them, in which to file formal objections to the
Secretary's motion to withdraw. Mr. Roland indicated an understanding
of what was involved and affirmatively waived his right to object.
I also made clear to the parties my intent to grant the motion.
indicated that a question exists as to whether the Secretary
possesses an absolute right to decide whether or not to continue
representation, once begun, but that for reasons of practicality and
fundamental fairness I was not inclined to require the Secretary to
particularize his reasons for withdrawal for fear such reasons, if
spread upon the record, might substantially prejudice the complaining
miner's cause should he elect to refile the case on his own behalf.
I

No party contested this reasoning.
Consequently, the motion
is granted, and docket number WEST 83-90-DM is dismissed.
The complaining miner is advised, as he was during the telephone
conference, that under my interpretation of the relevant statutory
provisions and Commission rules, he has 30 days from the issuance of
this order to refile the complaint with the Commission on his own
behalf.

w

v

/

,~~~,,,;

A. Carlson
nistrative Law Judge
Distribution:
Robert K. Roland
c/o Kay Duran
8520 Rainbow Avenue
Denver, Colorado 80229

(Certified Mail)

Jon G. Sarff, Esq., Jasper Construction Company
10,000 Highway 55 West
Plymouth, Minnesota 55441 (Certified Mail)
Robert J. Lesnick, Esq., Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294 (Certified Mail)
/ot

2222

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
~-

• .

)-,.•l •

' ...

. ·•.

~· t. ...

r. •
•

-.

:~.._ " '

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

J. D. MOSLEY,

22041

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. KENT 84-15-D

D. F. J. COAL COMPANY, INC.,
and JOHN LINDER,
Respondent

BARB CD 83-39
No. 4 Mine

ORDER OF DISMISSAL
Appearances:

Tony Oppegard, Esq., Appalachian Research and
Defense Fund of Kentucky, Hazard, Kentucky,
for Complainant;
S.H.Johnson, Esq., Johnson & Johnson, Paintsville, Kentucky, for Respondents.

Before:

Judge Melick

At expedited hearings, the Complainant requested
approval to withdraw his complaint in the captioned case
based on a satisfactory settlement agreement between the
parties.
Under the agreement, the Complainant receives
certain promises from the operator as well as payment of
$10,000 for lost wages.
Under tfte circumstances herein,
permission to withdraw is granted.
29 CFR § 2700.11. The
case is therefore dism. is,ed.
\
'\
" '
\

r\

(.

~I\~\ \\}\,'cl ,<\,u ~
~elick

Gary
\
Assistant Chief Administrative Law Judge
Distribution:

\

.

Tony Oppegard, Esq., and Martha P. Owen, Esq., Appalachian
Research and Defense Fund of Kentucky, Inc., P.O. Box 360,
Hazard, KY 41701 (Certified Mail)
Darrell Johnson, D.F.J. Coal Company, Highway 80, P.O. Box
454, Hindman, KY 41822
(Certified Mail)
S. H. Johnson, Esq., Johnson & Johnson, P.O. Box 470,
Paintsville, KY 41240
(Certified Mail)
nsw

2223

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

v.
KAISER STEEL CORPORATION,
Respondent

.DEC Z'l 1983

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 80-79
A.C. No. 42-00094-03008 I
Docket No. WEST 80-128
A.C. No. 42-00093-03018
Docket No. WEST 80-152
A.C. No. 42-00092-03013
Sunnyside Nos. 2, 1, 3 Mines

DECISION
Appearances:

Phyllis K. Caldwell, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
David B. Reeves, Esq., Kaiser Steel Corporation,
Fontana, California,
for Respondent.

Before:

Judge Vail
STATEMENT OF THE CASE

The above three consolidated cases, involve petitions proposing
assessment of civil penalties pursuant to provisions of the Federal
Mine and Safety Act oE 1977 (hereinafter the "Act"), 30 u.s.c. § 801
et~·
A hearing on the merits was held in Price, Utah, following
which the parties filed post-hearing briefs. Based upon the entire
record and considering all of the arguments of the parties, I make
the following decision.
To the extent that the contentions of the
parties are not incorporated in this decision, they are rejected.
STIPULATION
The parties stipulated as follows:
1. Kaiser Steel Corporation (hereinafter "Kaiser") and its
Sunnyside Mines Nos. 1, 2, and 3 are subject to the jurisdiction and
coverage of the Act.
2. Kaiser is a medium sized operator employing 230 miners and
producing approximately 3,000 tons of ore daily.

2224

3.
It is further agreed by the parties that the history of
prior violations under the Act is low and that the assessment of
reasonable penalties in these cases, would not impair Kaiser's
ability to continue in busines~.
4.
It was also stipulated that good faith was shown on the
part of Kaiser in the abatement of citation No. 789800 in Docket No.
WEST 80-152 and citation Nos. 789765 and 789767 in Docket No. WEST
80-128.
Docket No. WEST 80-79
At the commencement of the hearing, the Secretary moved to
withdraw his petition for the assessment of penalties for two
citations in Docket No. WEST 80-79. Counsel for the Secretary
stated that the basis for this motion was an inability on the
Secretary's part to prove the alleged violations. (Transcript at
5) •

There £eing no objection by Kaiser and pursuant to 29 C.F.R.
2700.11, /, the Secretary's motion was granted and citation
Nos. 789229-and 789230 are vacated and Docket No. WEST 80-79 is
dismissed.
Docket No. WEST 80-152

§

Citation No. 789800
On August 14, 1979, MSHA inspector Gerald Mechtly conducted an
inspection of Kaiser's underground coal mine identified as the
Sunnyside Mine No. 3. Ralph A. Sanich, Kaiser's safety specialist,
accompanied Mechtly.

l/

2700.11 Withdrawal of

Pleadin~:

A party may withdraw a pleading at any stage of a
proceeding with the approval of the Commission or the
Judge.

2225

As a result of this inspection, Mechtly issued a
104(d)(l) 2 / citation No. 789800 alleging a violation of safety
standard 3o C.F.R. § 75.305.
The condition or practice alleged to
have occurred is described in the citation as follows: "There was no
date, time, and initial, in the 16R return belt entry to indicate a
Mine Examiner had performed the weekly examination since 7-30-79.
On the surface the pre-shift mine examiner's book has records dated
8-6-79 and 8-13-79 stating "16R belt return O.K."
The standard alleged to have been violated reads in pertinent
part as follows:
75.305 Weekly examinations for hazardous conditions.
[Statutory Provisions]
In addition to the preshift and
daily examinations required by this Subpart D, examinations
for hazardous conditions, including tests for methane, and
for compliance with the mandatory health or safety
standards, shall be made at least once each week by a
certified person designated by the operator in the return
of each split of air where it enters the main return, on
pillar falls, at seals, in the main return, at least one entry
of each intake and return air course in its entirety,
idle workings, and, insofar as safety considerations permit,
abandoned areas.
Such weekly examinations need not be made
during any week in which the mine is idle for the entire
week, except that such examination shall be made before any
other miner returns to the mine. The person making such
examinations and tests shall place his initials and the date
and time at the places examined •••• A record of these examinations, tests, and actions taken shall be recorded
in ink or indelible pencil in a book approved by the
Secretary kept for such purpose in an area on the surf ace
of the mine chosen by the mine operator to minimize the
danger of destruction by fire or other hazard, and the
record shall be open for inspection by interested persons.
§

2/ section 104(d)(l) of the Act provides in pertinent part as
follows:
(1) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to be caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act ••.•

2226

Kaiser contends that weekly examinations of the cited area of
the mine had been made as evidenced by the notations on the surface
in the pre-shift mine examiner's book.
Also, Tom Dickerson,
Kaiser's mine examiner, testified that he had made the required
examinations and entries in the surface book as well as underground
at certain locations in the entry. Kaiser further contends that
exhibit R-2 support the testimony of Dickerson (Tr. 93, 94 and Exh.
R-2).
The Secretary argues that there were at least four inspection
cards in the left half of the 16 right entry of Kaiser's mine which
bore no dates or initials that would coincide with the pre-shift
mine examiner's book on the surface.
He further contends that
section 75.305 requires an inspection be made once a week of one
entry of each intake and return air course in its entirety.
Further, that the violation cited here is for a failure to inspect
rather than a record keeping violation, thus the 104(d)(l)
designation (Tr. 92, 93).
The facts surrounding the inspection which gave rise to the
issuance of citation No. 789800 are not in dispute.
The 16 right
belt entry is described as a two entry system approximately 6800
feet long.
The lower level is designated a travel and intake entry
and the upper level ·as a belt and return entry. The two entries are
separated by pillar blocks with stoppings constructed between the
pillars.
Doors are located in the stoppings at approximately every
500 feet with six or seven doors between cross-cuts 29 and 62, the
area cited here.
Mechtly testified that on August 14, 1979, he and Sanich
traveled the intake entry to an isolation area located between
cross-cut 61 and 62. After inspecting that area, they started back
in the return belt entry.
It was at this point he observed cards
indicating when the area had last been inspected on a weekly basis.
The first card without the proper date and initials was observed
near the isolation door between cross-cuts 61 and 62.
It showed
July 30, 1979 as the last date a weekly inspection was conducted.
Three other cards with the same date and initials were observed in
the return belt entry at cross-cuts 53, 58, and 46. Based on this,
Mechtly informed Sanich of his concern that there was a violation of
section 75.305 and that he wanted to go to the surface to look at
the mine examiner's book. They then proceeded to cross-cut 29 and
out the lower intake entry (Tr. 45-49, Exhibits Pl and P2).
The mine examiner's book on the surface indicated that
inspections were made in the 16 right entry on August 6 and 13, 1979
(Tr. 5 0) •

Sanich testified that he observed some cards shown him by
Mechtly in the return belt entry on August 14, 1979, with dates and
initials to indicate a weekly inspection was not made within the
prior two weeks.
He also stated that when Kaiser was given citation
No. 789800, he did not realize it was a (104(d)(l) order. on
December 4, 1979, approximately three months later, Kaiser was sent
a notice by the MSHA assessment off ice indicating that the citation
was a 104(d)(l) order.
Upon receipt of that information, Sanich
went underground to the 16 right entry and retrieved some miner's
inspection cards from cross-cuts 2, 19, 29, and raise belt cross-cut
1 and 7 indicating that the area had been inspected on August 13,
1979 (Tr. 33, 34 and Exhibits Rl and R2, A,B,C,D).
Based upon this
evidence, Kaiser argues that it has proven that a miner's examination was conducted of the 16 right entry. Also, that standard
75.305 does not require that every card in the return must be
signed.
I reject Kaiser's argument in this case. The standard requires
a weekly examination by a certified person in at least one entry
of each intake and return air course in its entirety.
In this case,
the operator had placed cards for the miner examiner to sign in
various locations in the entry. The four cards observed by Mechtly
in the return entry, without the proper dates and initials to show
that a weekly examination had been made, covered a distance of
approximately 3000 feet or half of that particular entry. Prior
dates and initials had been placed on these cards a~ late as July
30, 1979.
I must assume that the operator placed these cards at
those particular places expecting them to be used by the person
certified to do the weekly mine examination.
Kaiser's four cards showing dates and initials for August 6 and
13, 1979, submitted as exhibit R-2 (A,B,C and D), were not
persuasive in showing that the proper weekly inspections were made
of the entire area.
Kaiser admitted that these cards were retrieved
approximately three months after the citation was issued.
Card R-2B
and R-2D were located at the far ends of the entry. When asked
about this, Mechtly testified that the fact that these cards showed
dates that conformed with weekly inspections "indicated that the
mine examiner had access to both ends of that entry to mark those
cards" (Tr. 64). As to the card rnarked R-2C, this was supposedly
found by Sanich near cross-cut 53 when he went back in December
1979. However, on cross-examination, Sanich testified that in
August 14, 1979, the cards seen between cross-cuts 63 and 29 in the
return entry did not have correct dates on them (Tr. 35).
In light of the foregoing, I do not find Kaiser's arguments to
be credible.
It must be assumed that the portion of the return
entry between cross-cut 29 and 63 was not examined by the mine
examiner.
Even assuming that the standard 75.305 does not require a
card every few feet, as Kaiser argues, both Mechtly and Kaiser's own
safety specialist testified that they did not see a card with proper

2228

dates and initials entered thereon for a distance of over 3000 feet
in the return entry of this part of the mine on the day of the
inspection.
Therefore, it must he assumed that such a card was not
there.
Exhibit R-2C found at cross-cut 54. three months later shows
the date of August 6, 1979 and then August 15, 1979, which was a day
after the inspection so this does not support Kaiser's contention
that a card existed in the cited area showing that the required
weekly inspection had occurred.
I have considered the testimony of Torn Dickerson, Kaiser's
certified mine examiner, wherein he testified that there were
approximately ten cards in the 16 right belt entry and that he does
not mark each card as he does his inspection.
Also, that he made a
weekly inspection of 16 right belt entry on August 6 and 13, 1979
(Tr. 80-81).
However, the credible evicJence does not support this.
Out of ten cards, in this entry, only one, Exhibit R-2C was
presented as evidence to show the examination was made and this
showed a date of August 6, 1979 which was more than a week before
the inspection and a date of August 15, 1979, which was a day after.
Also, Dickerson testified that he was advised by a Mr. Oviatt,
Kaiser's mine foreman on August 14, 1979 (the day citation No.
789800 was issued) to stay out of the area (Tr. 78).
However,
Exhibit R-2C shows that Dickerson was back in the area and dated the
card and initialed it with his initials "TD" on August 15, 1979.
Dickerson also testified that he didn't go into the area on August
14 or 15, 1979 (Tr. 79).
No explanation was given ~t the hearing
for this discrepancy but it goes towards the credibility of the
witness.
I find that a violation of the standard occurred and that such
a violation constitutes an unwarrantable failure on the part of
Kaiser.
Kaiser knew or should have known that the cards were not
being marked in an area of its mine which would alert it to the
probability that weekly inspections were not being properly
conducted.
Other members of mine management would have occasion to
be in this area and should have observed this.
Zeigler Coal
Company, 7 IBMA 280 (1977).
I further find that such a violation is of a significant and
substantial nature as those terms are defined in Cement Division,
National Gypsum Company, 3 FMSHRC 822 (April 1981). That is, a
finding of whether a violation is "significant and substantial"
depends on whether there existed a reasonable likelihood that the
hazard contributed to or would have resulted in an injury of a
reasonable serious nature.
The purpose of the weekly inspection
provided for in standard 75.305 is to detect hazardous conditions
such as deteriorating roof conditions, air currents being blocked
off and reversed, and methane accumulations.
Any of these
conditions could cause serious injury or death to miners in the
area, if undetected.

2223

I find that Kaiser did show good faith in quickly abating this
violation.
I find that a penalty of $21-0.00 is appropriate in this
case.
Docket No. WEST 80-128
The facts in this case are not in dispute.
on August 1, 1979,
MSHA inspector Theodore L. Caughman issued six citations involving
three pieces of mine equipment alleging violations of the Federal
Coal Mine and Safety Act of 1977, 30 u.s.c. § 801 et seq. Caughman
wrote the citations when he observed two shuttle cars and a loader
cleaning up coal in the 15 right belt entry of Kaiser's Sunnyside
No. 1 Mine.
Each piece of equipment was cited under 30 C.F.R.
§ 75.523-1 (failure to have a panic bar) and 30 C.F.R. § 75.1710-1
(failure to have a cab or canopy). Kaiser was given until the
following day (August 2, 1979) to abate these violations.
On August 2, 1979, Caughman returned to the same area and found
that the three pieces of equipment had been moved to a location near
the railroad track leading out of the mine. The trailing cables
were disconnected and stored in the cars. Caughman issued a
modification for each citation indicating that the equipment had
been removed from service and that additional time was needed to
remove it from the mine.
The abatement period was extended to
August 7, 1979 (Exh. R-1).
On August 7, 1979, the inspector returned to the mine and found
the loader parked outside the mine on a rail car and so terminated
the two citations issued on that unit. On entering the mine, he
discovered that the two shuttle cars were still underground at the
locati~n where he had earlier seen them.
Caughman issued a
104(b) / order against each of the four citations issued on the
two shuttle cars and pinned a red tag on the equipment for failure
to abate the citations within the time designated.

lf

Section 104(b) of the Act reads in pertinent part:
If, upon any follow-up inspection of a coal or other mine,
an authorized representative of the Secretary finds (1) that a
violation described in a citation issued pursuant to subsection (a) has not been totally abated within the period of
time as originally fixed therein or as subsequently extended,
and (2) that the period of time for the abatement should not
be further extended, he shall determine the extent of the
area affected by the violation and shall promptly issue an
order requiring the operator of such mine or his agent to immediately cause all persons, except those persons referred to
in subsection (c), to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative
of the Secretary determines that such violation has been
abated.

2230

Issues:
The issues in this case are:
1. Whether the three pieces of mine equipment cited here are
electric face equipment within the meaning of 30 C.F.R. § 75.523.1
and 30 C.F.R. § 1710-1.
2. Whether the 104(a) citations on the two shuttle cars were
abated by removing the cables and storing them in the machines
although they remained underground in the mine.
3.
If violations are found, what is the appropriate penalty to
be assessed.
Discussion:
Kaiser concedes the fact that neither the loader or two shuttle
cars were equipped with panic bars, cabs or canopies.
However, it
contends that the citations should be set aside'because these
machines were not "electric face equipment" within the meaning of
the two cited safety standards and, therefore said standards are not
applicable (Kaiser's Brief at 2).
The facts show that on the day the three pieces of equipment
were cited by inspector Caughman, they were being used to clean up
coal and rock from the floor of an arched entry. The debris had
fallen from between the arches and the area was being prepared for a
belt entry. This was located several thousand feet from the nearest
working face.
Rex w. Jewkes, Kaiser's safety engineer, testified that they no
longer used loaders, like the one cited here, directly behind the
continuous miner in extracting coal.
Instead, the continuous miner
loads coal directly into the shuttle cars at the working face.
Also, that all of the shuttle cars used at the working face are
equipped with either cabs, canopies, or panic bars (Transcript 15,
16 and 17).
The specific issue to be decided here, then, is whether the
loader and_two shuttle cars being used in this location are required
to comply with either standards§ 75.523-1 or § 75.1701-1 by being
equipped with either panic bars, cabs or canopies.
I am persuaded
that they are.
Safety standard § 75.523-l(a) requires that all self-propelled
electric face equipment which is used in the active workings of each
underground coal mine shall be provided with a device that will
quickly deenergize the tramming motors of the equipment in the event
of an emergency.
Section 75.523-l(b) provides that self-propelled
electric face equipment that is equipped with a substantially
constructed cab which meets the requirements of this part shall not
be required to be proveded with a device that will quickly de-

2231

energize the tramming motors of the equipment in the event of .an
emergency.
Section 75.523-l(b) provides that self-propelled
electric fac~ equipment that is equipped ~ith a substantially
constructed cab which meets the requirements of this part shall not
be required to be provided with a device that will quickly
deenergize the tramming motors of the equipment in the event of an
emergency.
Standard § 75.1710-1 requires installation of protective cabs
or canopies on all self propelled electric face equipment on a
staggered time schedule coordinated with descending mining heights.
It states in pertinent part:
(a) [A]ll self-propelled electric face equipment, including shuttle cars, which is employed in the actTV"e
workings of each underground coal mine on and after
January 1, 1973, shall, in accordance with the schedule
of time specified in subparagraphs (1), (2), (3), (4),
(5), and (6) of this paragraph (a), be equipped with
substantially constructed canopies or cabs, located and
installed in such a manner that when the operator is at
the operating controls of such equipment he shall be
protected from falls of roof, face, or rib, or from rib
and face rolls. (emphasis added).
Kaiser argues that the equipment cited here ·is not electric
face equipment as specified in the above standard for the reasons
that the loader and two shuttle cars were not taken or used inby
the last open crosscut of an entry or a room of the mine.
In
support of this argument, Kaiser suggests that "electric face
equipment" is defined in 30 C.F.R. § 75.2(i) as: "'Permissible' as
applied to electric face equipment means all electrically operated
equipment taken into or used inby the last open crosscut of an
entry or a room of any coal mine •••• " Further, it argues that
applicable legislative history dispels any doubt that the term
"electric face equipment" was only descriptive of equipment used
in the specified geographic area (Kaiser's Br. 4, 5).
I am not persuaded by Kaiser's argument.
Both regulations do
refer to self propelled electric face equipment and, -also, to
shuttle cars specifically.
However, the area of use is not stated
to be or restricted only to the face of the mine.
Instead, the
area of use is described as the "active workings" of the mine.
In
30 C.F.R. § 75.2, the drafters of the regulations saw fit to
define what they meant by the terms used.
75.2(g)(4) states as
follows:
"active workings means anyplace in a coal mine where
miners are normally required to work or travel."
It should be
noted that under§ 75.2(g)(i) it defines what a working face means
and states as follows:
"[M]eans any place in a coal mine in which
work of extracting coal from its natural deposit in the earth is
performed during the mining cycle."
I feel certain that if the

2232

intent of the Secretary was to restrict the requirements of panic
bars or cabs or canopies to the face area of the mine, he would
have stated "working face" rather than "active workings."
It must also be kept in mind that the purpose of the Act and
regulations promulgated thereunder is to protect the safety and
health of the miners. A similar argument as presented by Kaiser
and involving definitions of this Act, but a different regulation,
was considered by the Sixth Circuit Court of Appeals in the case
of Shamrock Coal Company v. Secretary of Labor, (Reference 6th
Cir. Number 79-3199)(February 9, 1981). The case involved the
issue of where 30 C.F.R. § 75.202 regarding roof support required
roof support in tunnels leading to the face, or just the face,
under the phrase "working places." The Court stated in pertinent
part as follows:
The mine operator argues that the emphasized portion of
this section is only applicable in "working places"
within the mine.
The term "working place" is defined
to be the area of the mine inby the last open crosscut,
30 C.F.R. 75.2(g)(2). Common sense, and the congressionally expressed purposes of the Act. 30 u.s.c. § 80l(a),
however, compel us to reject an interpretation of the
regulation which would protect workers at the face of
the mine, but expose miners to the danger of unsupported
roof in the tunnels they traverse on the way to and from
the working face.
I believe this logic is applicable in the present case.
Kaiser further argues that by description, the two shuttle
cars and the loader are "electric face equipment" and must only
comply with the requirements of the cited regulations if they were
being used or intended to be used at the face.
This problem was
addressed by the Commission in Secretary of Labor v. Solar Fuel
Company, 3 FMSHRC 1384 (1981), wherein they held that "equipment
which is taken or used inby the last open crosscut" means
equipment habitually used or intended for use regardless of
whether it.is located inby or outby when inspected. The
Commission emphasized in Solar Fuel Company that it is not where
the equipment is located at the time of the inspection that is
important, but whether it is equipment which can be taken or used
"inby." Accordingly, each of these three pieces of equipment
involved in the present case could have been utilized at the face
if the operator so desired.
Kaiser maintains it no longer used loaders at the face or was
it intending to use the two shuttle cars there.
However, nothing
would prevent them from so utilizing the equipment at the face
should the requirement of its use arise.
I therefore feel that it

2233

is not sufficient that the operator maintains it was not their
intention to use the equipment as "electric face equipment."
Kaiser further contends that according to the legislative
history of the Act, the Secretary exceeded the scope of his
authority in promulgating regulations providing for panic bars or
cabs or canopies on electric face equipment used in "active
workings" of the mine. A review of the Act shows that section
318(g)(4) defines "active workings" the same as under the
regulations recited earlier herein.
I do not find that the
applicable legislative history restricts the authority of the
Secretary to provide regulations governing the use of self powered
electric face equipment outside the area of the face.
It is
obvious that by adopting certain provisions of the Act, strict
compliance was intended for any electric powered equipment taken
inby the last open crosscut of the mine.
However, I do not find
that the standards § 75.523-1 and 75.1710-1 are in conflict here.
In light of the foregoing, I find that Kaiser was in
violation of the six citations issued against the three pieces of
equipment cited here.
The other issue presented in this case is whether the four
citations against the two shuttle cars were abated, even though
they remained underground, by removing the power ~able from the
power source and storing the cable in the boxes on the machines.
The Secretary argues that the shuttle cars were still
available for use and that it would only take minutes to plug the
trailing cables into the power source located approximately 150
feet away and the machines would be back in service (Secretary's
Brief at 4) •
Kaiser argues that the two machines had not been used since
the withdrawal from service and that there is no requirement that
defective equipment he removed and taken to the surface to
constitute abatement.
Kaiser also contends that the Secretary's
reliance on the Commission's decision in Ideal Basic Industries, 2
FMSHRC 1242 (April 1981), is misplaced (Kaiser's Br. at 14).
I disagree with this argument as I find the Commission's
ruling in Ideal Basic Industries plainly supports the Secretary's
argument here.
In Ideal Basic, the equipment cited was a track
mobile with one of two hydraulic couplers defective. The operator
argued that the track mobile was not used in its defective
condition after it was cited.
The Secretary argued that the
machine had been used, using the non-defective coupler, and that
could affect safety.
The Commission agreed and stated further as
follows:

2234

Even if, however, the evidence were insufficient to
establish that the track mobile was operated while the
coupler was broken, we find that the mobile was nonetheless "used" within the meaning of the standard.
If
equipment with defects affecting safety is located in a
normal work area, fully capable of being operated, that
constitutes "use". Here, at the time of the inspection,
the mobile was parked in a usual location, right next
to the area where railroad cars--which the mobile is
used to move--are loaded.
It was neither rendered inoperable nor in the repair shop. To preclude citation
because of "non-use" when equipment in such condition
is parked in a primary working area could allow operators
easily to use unsafe equipment yet escape citation merely
by shutting it down when an inspector arrives.
This same conclusion can be applied in the case of the two
shuttle cars. They were in the area and available for use by
taking out the power cables and plugging them into the transfer.
It could take only an estimated five minutes of a miners time to
put them back in service.
The Commission in Ideal Basic stated that its decision was
consistent with that in Eastern Associated Coal, 1 FMSHRC 1473
(October 1979), which involved placing a danger tag on a defective
jitney that remained operable in the working area. The Commission
stated in that case:
We hold that tagging the jitney was not sufficient
to withdraw the jitney from service because the danger
tag did not prevent the use of the defective piece of
equipment. The jitney was still operable and the
danger tag could have been ignored.
1 FMSHRC at 1474.
The reasoning of Eastern Associated is applicable here
as well, where there was not even a danger tag placed
on the defective coupler.
In light of the foregoing, I find that the same reasoning
must be applied in the present case. There was no danger tag on
either of the shuttle cars and either one could have been returned
to service, either unintentionally by a miner unaware of the
citations, or intentionally if such were the need or desire of the
operator. Therefore, I find that the citation was not abated as
required under 104(b).
Penalty
The six criteria for assessing a penalty are set out in 30
The parties have previously stipulated as stated
before regarding the jurisdiction, size of the operator, and that
assessment of reasonable penalties in this case would not affect
their ability to continue in business.

u.s.c. § 820(i).

2235

From the evidence I conclude that Kaiser was negligent in
allowing the two shuttle cars and the loader to be operated in the
active workings Of the mine without either panic bars or cabs or
canopies installed on them.
I find the gravity to be serious for
the operator of either of these machines could have been seriously
injured or killed by being squeezed between the rib of the entry
and the operator would be unable to quickly deenergize the
tramming motors if an emergency arose. Also, there was an exposure of injury or death from the lack of either a cab or canopy
on any of the equipment.
I flnd that by removing the loading machine to the surface,
Kaiser evidenced good faith in abatement of the two citations
against it.
However, in failing to remove the two shuttle cars
from the mine within the time specified initially and subsequently
extended for termination of the four citations issued against
them, I find that Kaiser did not evidence good faith and increased
penalties to be assessed herein is warranted.

As to the six citations involved herein, I
penalties to be appropriate:

Citation No.
789765

30 C.F.R.
Standard
75.523-1

789767

find the following

Description
(loading machine,
no panic bars)

Penalty
$ 50.00

75.1710-1

(loading machine,
no cab or canopy)

50.00

789768

75.1710-1

100.00

789778

104(b)

(shuttle car ET 7314
no cab or canopy)
(failure to abate)

789769

75.523-1

100.00

789777

104(b)

(shuttle car ET 7314
no panic bars)
(failure to abate)

789770

75.523-1

100.00

789775

104(b)

(shuttle car ET 7065
no panic bars)
(failure to abate)

789771

75.1710-1

789776

104(b)

(shuttle car ET 7065 100.00
no cab or canopy)
(failure to abate)
Total
$500.00

I have elected to reduce the amount of the Secretary's
proposed penalties in the above six citations for the reason that
I do not find that Kaiser's negligence in this case was gross.

223()

Also, there were two citations against each piece of equipment for
separate violations although compliance with either standard would
have satisfied the Act's requirements.
As to the abatement of the four citations on the two shuttle
cars, I find that the machines were removed to the area where they
would be taken to the surf ace and no evidence that this was not
Kaiser's intention.
Also, there is no evidence that the shuttle
cars were used or there was an intention to use them after the
citations were issued. Therefore, I do not find any indication of
violations of the initial citations.
ORDER
Accordingly, in Docket No. WEST 80-79, citation Nos. 789229
and 789230 are VACATED and the case is DISMISSED.
In Docket No.
WEST 80-152, citation No. 789800 is AFFIRMED, and Kaiser is
ORDERED to pay a civil penalty of $210.00.
In Docket No. WEST
80-128, the six 104(a) citations and the four 104(b) orders are
AFFIRMED and Kaiser is ORDERED to pay civil penalties totaling
$500.00 therefore.
Kaiser is ORDERED to pay the above civil
penalties totaling $710.00 within 40 days of this decision.

'/~

(!?-~~

. c~A;-{C,--~6 _· Ca-G'C

Virg'
if~ cVail
Ad 'nistrative Law Judge

Distribution:
Phyllis K. Caldwell, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294 (Certified Mail)
David R. Reeves, Esq., Kaiser Steel Corporation,
P.O. Box 217, A-414, Fontana, California 92335 (Certified Mail)

/blc

22~f/

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

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

DEC 2 81983

CIVIL PENALTY PROCEEDINGS
:

Docket Nos. PENN 82-218
PENN 82-219
A.C. Nos. 36-00970-03122
36-00970-03125

v.
UNITED STATES STEEL MINING
COMPANY,
Respondent

.

Maple Creek il Mine

DECISION
Before:

Judge Fauver

These proceedings were brought by the Secretary of Labor
under Section llO{a) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801, et seq., for assessment of
civil penalties for alleged violations of mandatory safety
standards. The cases were consolidated and heard in
Pittsburgh, Pennsylvania.
Having considered the contentions of the parties and
the record as a whole, I find that the preponderance of the
reliable, probative, and substantial evidence establishes
the following:
FINDINGS OF FACT
1. At all pertinent times, Respondent operated an
underground coal mine, known as Maple Creek No. 1, in
Pennsylvania, which produced coal for sales in or substantially
affecting interstate commerce.
Citation No. 1145282
Docket No. PENN 82-218
2. On February 25, 1982, Federal Mine Inspector Francis
Wehr issued to Respondent Citation No. 1145282, under Section
104(a) of the Act, charging a violation of 30-CFR 75.1405.
That section provides, in pertinent part:

2238

All haulage equipment ...
shall be equipped with
automatic couplers which
couple by impact and
uncouple without the
necessity of persons going
between the ends of such
equipment.
3. Inspector Wehr issued the citation because two
locomotives were coupled to a personnel car with safety chains
in addition to automatic couplers. Personnel were required to
reach between the ends of the cars to connect or disconnect
the chains. The couplers and chains are indicated in the
drawings (Joint Exhibits 1 and 1-A) reproduced at page 3.
4. The automatic couplers coupled on impact. They were
uncoupled by a hand-lever near the top of the wall of the
locomotive (which was pulling or pushing the personnel car) .
MSHA approved use of the hand-lever for uncoupling.
5. The chain had to be worked to uncouple. Depending
on the tightness of the links or the strength of the miner,
one or two hands were required to uncouple. Also, depending
on the size, skill, and strength of the miner, the percentage
of body exposure between the cars would vary. A window in the
personnel carrier wall, as shown in the drawings at page 3,
could be used for access to the chain, in connecting or
disconnecting it, but personnel might also connect or disconnect
the chain from outside the cars.
6. MSHA did not approve use of the safety chains, which
were manually connected and disconnected by reaching in between
the cars.

2239

J v.-U c.,,. {
1'

--....

~

------- - -

-----·-------·

2240

-

7. When reaching through the window to connect or disconnect
the chain, personnel had a risk of hand and arm injuries in the
event the cars were moved.
If miners reached in from the sides
of the cars to connect or disconnect the chain, more of the
body was exposed to risk of injury.
8. In the mining industry, serious injuries and deaths
have occurred because miners were reaching in between cars .to
couple or uncouple them when the .train was inadverently moved.
9~
Respondent did not use safety chains on non-personnel
haulage cars. It used them on the personnel train because of
the risk of injury to passengers in the event of accidental
uncoupling of the personnel car. The grade in the mine was an
average of about 2%, and ranged up to about 10%. The personnel
car had its own braking system, which could slow down the car
but not bring it to a full stop in the event of an accidental
uncoupling.

10. Since the first use of the ch~ins at this mine, in
1959, there have been no reported injuries of miners who were
connecting or disconnecting the safety chains.
Citation No. 1145239
Docket No. PENN 82-219
11. On March 31, 1982, Federal Inspector Alvin Shade issued
to Respondent Citation No. 1145239, charging a violation of 30
CFR 75.1725(a), which provides:
{a) Mobile and stationary
equipment shall be maintained
in safe operating condition
and machinery or equipment
in unsafe condition shall be
removed from service
immediately.
12. Inspector Shade issued the cit~tion because continuous
miner No. 7761 would not turn to the right. When the operator
tried· to operate the right tram, the circuit breaker would trip,
de-energizing the whole machine. This condit~on had been called
to Inspector Shade's attention by the continuous miner operator,
who said the tram had not been working right for about two weeks.

224-1

13.
Inspector Shade inspected the continuous miner about
2 coal blocks from the face.
The machine had been parked there
around the beginning of the shift. They were tramming it to the
face, but when it would not tram right, they backed it up about
50 feet and parked it.
It was energized when Inspector Shade
inspected it. Under his observation, they tried to tram it to
the right and the circuit breaker tripped, de-energizing the
machine.
14. Respondent had frequent problems with the tramming
system on this machine from the time of its purchase, in 1980.
The problem was the micro-switches in the tramming circuit.
At times the circuit breaker would trip several times a shift.
There are about 12 micro-switches in the circuitry of the
machine, and any one might fail at any time.
Respondent made
repeated efforts to have the manufacturer test the switches
and supply reliable ones, but as of March 31, 1982, and even
at the time of this hearing (December, 1982), no fully
reliable equipment or maintenance program had been developed to
avoid this problem.
On the day of the inspection and citation
a new micro-switch had been installed on the previous shift.
DISCUSSION WITH FURTHER FINDINGS
The Safety Chains
Respondent combines automatic couplers with safety chains
on its personnel train.
The couplers couple on impact; they
are uncoupled by a hand-lever that MSHA has approved; the
safety chains, to be connected or disconnected, require that
an employee reach in between the ends of cars. MSHA has not
approved the chains and charges a safety violation.
I conclude that Respondent's use of the safety chains
violates the safety standard, 30 CFR 75.1405, which requires
"automatice couplers which couple by impact and uncouple
without the necessity of persons going between the ends [of
the cars]." By adding safety chains, Respondent has modified
its coupling system so that it cannot meet the requirements
of the mandatory safety standard. Several cases have held
a violation in similar circumstances. See, e.g., Pittsburgh
Coal Company v. Secretary of Labor, 1 FMSHRC 1468 (1979);
and Mathies Coal Company v. Secretary of Labor, 2 FMSHRC
1661 (Judge Melick, 1981) .

2242

Respondent contends that this application of the standard
will disminish safety by requiring abandonment of the safety
chains. But this argument does not address other feasible means
of supplementing automatic couplers on personnel cars, e.g.,
chains or wire -ropes on the sides of cars, which would not
violate § 75.1405. Moreover, it is addressed to the wrong
forum.
Petitions for modification of the appl·ication of
a safety standard should be filed with the Labor Department,
under section lOl(c) of the Act.
I find that Respondent was negligent, in that the violation
condition was known by Respondent and could have been prevented
by the exercise of reasonable care.
I also find that this is
a serious violation. There is a risk of serious injury or
death in the event a person is handling the chain or reaching
in between the cars when the train is inadvertently moved.
Considering these factors, and Respondent's size, history of
compliance and prompt, good-faith abatement of the violation,
I find that a civil penalty of $195 for this violation is
appropriate.
The Continuous Miner
Inspector Shade testified that one of the dangers of
operating the continuous miner with a defective tram was that
the operator could not move out of the way of roof-falls in
retreat mining. With a defective micro-switch, when the
operator tried to tram to the right the circuit breaker
would trip, and the whole machine would be de-energized.
This defective condition could endanger the operator. He
could retain the protection of the canopy if he could tram the
machine away from falling roof, but would p~obably be tempted
to run if the machine would not move, thus exposing himself to
greater danger from the roof.
Moving equipment that cannot be steered properly is not
in safe operating condition.
Respondent argues that MSHA cited a violation simply
because Respondent could not guarantee that a new switch would
not fail, and the safety standard does not require that the mine .
operator guarantee that a repair will last for any specific period.
Respondent misconstrues the purpose and application
of the safety standard.
The standard requires that
equipment be "maintained in safe operating condition"
and if it is "in unsafe condition it shall be removed from service
immediately." When the circuit breaker tripped, soon after

2243

the beginning of the shift, Respondent knew that the continuous
miner could not tram to the right. That is why the ;nachine was
backed up and left 2 blocks from the face.
I find that the
defective condition (inability to tram to the right and causing
de-energizing of the whole machine by attempting to tram to the
right) was an "unsafe" operating condition. Respondent was
required to remove the machine from service until the switch
could be replaced or adjusted. This could have been done by
de-energizing the machine and tagging it out of service pending
repairs. However, Respondent left it parked and energized, so
that another machine operator might operate the machine in a
defective condition.
I find that Respondent was negligent, in that the unsafe
condition was known by Respondent and the violation could have
been prevented by removing the machine from service pending
repairs.
This was a serious violation, because of the risk of
serious injury if the machine were operated with a defective
tramming system. Considering these factors and Respondent's
size, compliance history, and prompt, good-faith abatement of
the violation, I find that a civil penalty of $100 for this
violation is appropriate.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the parties and
the subject matter of the above proceedings.
2.
Respondent violated 30 CFR 75.1405 as charged and is
ASSESSED a civil penalty of $195 for this violation.
3. Respondent violated 30 CFR 75.1725(a) as charged and
is ASSESSED a civil penalty of $100 for this violation.
Proposed findings of fact or conclusions of law inconsistent
with the above are rejected.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the
above assessed civil penalties, in the amount of $295.00, within
30 days from the date of this decision.

tJ~
1-tVUi/b'LWilliam Fauver
Administrative Law Judge
Distribution:

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

22041

December 28, 1983

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

CIVIL PENALTY PROCEEDING
Docket No. HOPE 79-323-P
A.C. No. 46-05121-03008F

v.

Wayne Mine

MONTEREY COAL COMPANY,
Respondent
DECISION GRANTING
SECRETARY'S MOTI.ON TO AMEND
AND
DENYING RESPONDENT'S
MOTION TO DISMISS
Before:

Judge Fauver

The Secretary has moved (1) to amend his petit,i,on for
assessment to include as a party respondent Frontier-Kemper
Constructors, Inc., an independent contractor, and (2) to
amend Exhibit A of his petition for assessment to cite a
violation of 30 CFR 77.1900-7 instead of 30 CFR 77-1900-1.
Part (2) of the motion is intended to correct a clerical
error, and it conforms to the original § 107{a) imminent
danger order an which the petition is based. No prejudice
will result from allowing this technical amendment.
Accordingly, part (2) of the Secretary's motion will be granted.
~espondent moves to dismiss this proceeding on the ground
that Respondent is not a proper party respondent.
It also
opposes the Secretary's motion to amend to include FrontierKemper as a respondent.

Frontier-Kemper opposes the Secret&ry's motion to amend
to include it as a respondent, on the ground that the Commission
has no jurisdiction to include Frontier-Kemper because it was
never issued a citation or order as the basis ·for this civil
penalty proceeding.

2245

DISCUSSION
The 1977 Federal Mine Safety and Health Act, 30 U.S.C. § 801,
et seq., became effective on March 9, 1978. The Act expands the
definition of "operator" beyond the 1969 Mine Act to include "any
independent contractor performing services or construction [at a
mine]." 30 U.S.C. § 802(d). The charges in this case were
issued to Monterey in a § 107 imminent danger order on May 8, 1978.
At that time it was the policy of MSHA to cite owner-operators
such as Monterey for violations caused by the acts of independent
contractors. This policy was-upheld in a number of court and
Commission decisions. See, e.g., Bituminous Coal Operators
Association v. Secretary of Interior, 547 F. 2d 240 (4th Cir.
1977) ;_Cyprus.Industrial Minerals Company v. FMSHRC, 664 F. 2d 1116
(9th Cir. 1981); Old Ben Coal Co., 1 FMSHRC 1480 (1979) 1 aff'd,
No. 79-2367, D.C. Cir., January 6, 1981; and U.S. Steel Corporation,
4 FMSHRC 163 (1982).
In explaining the basis for its decision in the Old Ben
case, the Commission stated in Phillips Uranium Corporation,
4 FMSHRC 549 (1982) :
In our decision in Old-Ben Coal Co., we emphasized
that, although an owner-operator can be held responsible
without fault for a violation of the Act committed by
its contractor, the Secretary's decision to proceed
against an owner for such a violation is not insulated
from Commission review.
1 FMSHRC at 1483-1484. For
the reasons stated in Old Ben we hold that the
Commission may review the Secretary's decision in these
cases to proceed against Phillips.
The test applied by the Commission in reviewing
the Secretary's choice is "whether the Secretary's
decision to proceed against an owner for a contractor's
violation was made for reasons consistent with the
purposes and policies of the 1977 Act."
1 FMSHRC
at 1485. Our upholding of the Secretary's choice in
Old-Ben, albeit with considerable doubts expressed as
to the wisdom thereof, was largely based on the
particular chronology of events in that case. The
citation in Old Ben was issued only thirty-four days
after the 1977 Mine Act had taken effect.
1 FMSHRC 1486
1486 n.7.
Recognizing that responsibility for
enforcement of the nation.' s mine safety program had
only recently been transferred to the Department of
Labor from the Department of Interior, we found that
the Secretary's decision to cite Old Ben under an
"interim" agency-wide policy to proceed oniy against
owner-operators was, at least at that early stage, a
decision not inconsistent with the purposes and
policies of the 1977 Act.

2246

On July 1, 1980, the Secretary published a rule changing
his enforcement policy. Under the new policy, independent
contractors may be cited for their own violations and in
certain cases the "production-operator" may be cited instead
of or in addition to the independent contractor. 45 Fed. Reg.
44494-44498.
The facts in the present case place them fundamentally in
the same light as the Old Ben case. The order was ·issued to
Monterey less than 2 months after the effective date of the
1977 Mine Act.
In line with the Commission's holding in
Old-Ben, I find that the Secretary's decision to cite
Monterey under an "interim" agency-wide policy to proceed
only against owner-operators was, at least at that early date,
"a decision not inconsistent with the purposes and policies of
the 1977 Act." Accordingly, Monterey's motion to dismiss
should be denied.
Considering the long stay of this proceeding pending
Monterey's appeals on the issue whether Monterey is a proper
party, I find that the Secretary's motion to join the independent
contractor as a respondent is not barred by estoppel and is not
prejudicial to either Monterey or Frontier-Kemper. Both
companies are presumed to have been aware of the specific charges
and factal contentions in the § 107 order since its issuance in
May 1978. First, the order was issued to Monterey, and in its
answer to the petition for assessment of civil penalties,
Monterey alleged that if there was a violation it was committed
by Frontier-Kempler as an independent contractor. Second, the
close contractual relationship between Monterey and FrontierKemper warrants the presumption that Frontier_.Kempler has been on
notice, since May 1978, that is contract performance in May 1978
is the subject of the MSHA charges against Monterey.
ORDER
WHEREFORE IT IS ORDERED that:
1. The Secretary's motion to amend is GRANTED and he shall
have 15 days from this decision to file the amendments to his
petition.
2.

Monterey's motion to dismiss is DENIED.

16)·11 _·_

·-:r-~v~

~auver

Administrative Law Judge
Distribution:

Robert Cohen, Esq., U.S. Department of Labor, Office of the
Solicitor, · 4015 Wilson Boul·evard, Arlington, Virginia 22203
(Certified Mail)
Kenneth c. Minter, Esq., P.O. Box 2180, 1305 Dresser Tower,
Houston, Texas 77001 (Certified Mail)
Timothy Biddle, Esq., Croswell & Moring, 1110 Connecticut
Avenue, N.W., Washington, D.C. 20036 (Certified Mail)
William H. Howe, Esq., Loomis, Owens, :Fellman·& Howe, 2020
K Street, N.W., Washington, D.C. 20006 (Certified Mail)

2248