JANUARY 1987
There were no Commission decisions for January
ADMINISTRATIVE LAW JUDGE DECISIONS
12-30-86
01- 05-87
01- 06-87
01-06-87
01-08-87
01- 09- 87
01-09-87
01- 12-87
01- 12-87
01-12-87
01-13-87
01-13-87
01-14 - 87
01- 15-87
01- 21-87
01-21-87
01-21-87
01-21-87
01-28-87
01-28-87
01-29-87
01-30-87
01- 30-87

(Order) Secretary of Labor for Yale E.
Hennessee v . Alamo Cement Co .
Colorado Materi als Co . , Inc.
Sec . Labor/Robert Corbin & James Corbin v .
Terco , Inc . , e t c .
Consolidation Coal Company
Sec . Labor for Bar ry Mylan , Lester Poorman v .
Benjami n Coal Co ., and UMWA
Jefferson County Road & Bridge Department
Sec. Labor for Joseph Timko v. Dee Gold Mining Co .
Nelson Trucking
Charles F. Rose v . Consolidation Coal Co .
Sec . Labor for Johnny Vance v. Eastern
Associated Coal Corporation
Amarillo Road Company
Sec. Labor for Ronnie Beavers, et al . and
UMWA v . Kitt Energy Corporation
Dairl Eddington v . Falcon Coal Company
Jim Walter Resources , Inc .
Jim Walter Resources , Inc.
Sec . Labor for Sam Ball v. Westmoreland Coal Co .
West Elk Coal Company, Inc .
Jay Tuft and Company , Inc .
Jim Walter Reso urces, Inc .
Drummond Company, Inc .
Glen Irvan Corporation
Webster County Coal Corporation
U.S. Steel Mining Co . , Inc .

CENT 86-151-DM

Pg .

1

CENT 86-37-M
KENT 86-131-D
KENT 86-132-D
WEVA 86-385
PENN 86-125-D

Pg .
Pg .

18
24

Pg .
Pg .

26
27

WEST 85-125-M
WEST 85 - 132-DM
LAKE 86-6-M
WEVA 86-379-D
WEVA 86-424-D

Pg .
Pg .
Pg .

56
66
70
75
83

CENT 86 - 93-M
WEVA 85-73-D
KENT 86-164-D
SE
87-29-R
SE
86-83
VA
86 - 23-D
WEST 86- 28-R
WEST 86-60-M
SE
86-85-R
SE
86-135
PENN 86-64
KENT 87 - 9-R
WEVA 86 - 436

Pg.

Pg .
Pg .

Pg.
Pg.

84
93

99
Pg . 102
Pg. 109
Pg . 116
Pg . 118
Pg . 176
Pg . 181
Pg. 184
Pg. 186
Pg . 188
Pg. 191

JANUARY 1987
Review was granted in the following case during the month of January:
Secretary of Labor, MSHA v. U.S. Steel Mining Company, Inc., Docket No.
WEVA 86-371. (Judge Melick, December 17, 1986)
Review was denied in the following case during the month of January:
Ivan Moore v. Martin County Coal Corporation, Docket No. KENT 85-183-D.
(Judge Fauver, December 12, 1986)

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

(703) 756-6232
December 30, 1986

..: DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
YALE E. HENNESSEE,
Complainant

v.

·:
:

Docket·No. CENT 86-151-DM
MSHA Case No. MD 86-35

:

1604 Quarry and Plant

..
..

ALAMO CEMENT COMPANY,
Respondent

ORDER DENYING THE RESPONDENT'S MOTION FOR
MODIFICATION OF ORDER OF TEMPORARY REINSTATEMENT
Appearances:

Frederick w. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for. Complainant:
David M. Thomas and Roberts. Bambace, Esqs.,
Fulbright & Jaworski, Houston, Texas, for
Respondent.

Before:

Judge Koutras
Statement of the Proceeding

This proceeding concerns an Application for Temporary
Reinstatement filed by MSHA pursuant to section 105(c)(2) of
the Federal Mine Safety and Health Act of 1977, and Commission
Rule 29, 29 C.F.R. § 2700.44(a), seeking the temporary reinstatement of the complainant Yale E. Hennessee to his job as
an electrician at the respondent's 1604 Quarry and Plant.
Mr. Hennessee was discharged by the respondent on April 22,
1986, for insubordination because of his alleged refusal to
perform a job assignment. Mr. Hennessee claims that his
refusal to perform the work in question was based on his
belief that the work task in question could not be done safely.
MSHA has since filed a discrimination complaint on
Mr. Hennessee's behalf claiming that his work refusal was
protected activity and that his discharge constitutes a violation of the Act.

1

A Temporary Reinstatement hearing was held on October 23,
1986, and on Novemer 6, 1986, I issued a decision finding that
MSHA's complaint was not frivolous, and respondent was ordered
to immediately reinstate Mr. Hennessee pending further adjudication of the merits of the discrimination complaint.
The respondent appealed my reinstatement order to the
Commission, and while that appeal was pending, filed a request
for modification of my order, and MSHA filed an opposition to
the request. Since the matter was on appeal, no dispositive
ruling was made with respect to the request.
On December 8, 1986, the Commission issued its decision
affirming my reinstatement order, and remanded the matter for
further adjudication. The respondent's pending request for
modification of my order is now ripe for disposition.
Discussion
As part of its Application for Temporary Reinstatement,
MSHA included an affidavit from Wilbert B. Forbes, Chief of
Special Investigations, Metal and Non-metal Division,
Arlington, Virginia, which states in pertinent part as
follows:
On December 4, 1984, Applicant was severly
injured during the performance of his duties at
Respondent's mine sustaining multiple broken
bones in his right foot and severe damage to
his left knee;
As a result of the December 4, 1984,
injuries Applicant was unable to work for
49 days and assigned to light duty for an
additional 30 or more days;
Applicant is permanently disabled as a
result of his 1984 injuries and requires
further surgery on his knee.
The question of Mr. Hennessee's prior injuries was first
raised by Mr. Hennessee when he testified that "the company
had always been good to me" and that when he was injured and
in the hospital, company president Hopper visited him in the
hospital {Tr. 53-54). When MSHA's counsel pursued the matter
further,· respondent's counsel interposed an objection on the
ground 9f relevance (Tr. 56).
MSHA's counsel proffered that notwithstanding his prior
injuries and disability, Mr. Hennessee is still capable of

2

performing full-time the duties of electrician, and has in
fact so performed. Counsel also indicated that Mr. Hennessee's
prior injury may have played some part in his refusal to remove
the motor in question, and that this chore would have been more
difficult for him than for someone who had not suffered an
injury (Tr. 57-58).
The respondent's objection was overr~led, and counsel
interposed a continuing objection toany testimony concerning
Mr. Hennessee's prior injuries (Tr. 58).
The coloquy concerning Mr. Hennessee•s prior injuries is
reflected as follows at (Tr. 56-58):

Q.

Did you ever refuse any overtime?

A.

No, sir.

Q. Did you ever refuse to perform a job at
Alamo Cement?
A.

No, sir.

Q. . Had you ever refused to do anything at
Alamo Cement?

A.

No, sir.

Q. When you were injured -- when did that
occur?
MR. THOMAS:

Objection; relevance.

JUDGE KOUTRAS: I noticed that in the affidavit. What is the relevance of his prior
injury and condition? As a matter of fact, I
was intrigued by the statement in the aff idavit in support of the application for reinstatement which alluded to the fact that -(Perusing document.)
It says, "As a result of Mr. Hennessee's
injuries, he is permanently disabled."
MR. MONCRIEF:

Partially disabled, I believe.

JUDGE KOUTRAS: Well, this says permanently
disabled. I was intrigued how a man who was
permanently disabled in 1984 was working in an

3

area of the mine where he is required to take
down motors and all that sort of thing.
MR. MONCRIEF: I was going to follow that,
Your Honor, for the fact that I think it does
have some relevance.
JUDGE KOUTRAS:
relevance?

Make a proffer •. What is the

MR. MONCRIEF: The proffer is simply that in
'84 -- I think it was December of ·'84,
Mr. Hennessee was severely injured and, as a
result, suffers a permanent partial disability, a disability well .know:1. to the company.
Notwithstanding that disability,
Mr. Hennessee still performs and is capable of
performing full-time the duties of electrician, including, as we have just heard, lowering a motor down a steep incline covered with
marble-like material to the dome area, but
that, in addition to that, in his condition,
certainly, there may have been some -- his
injury may have played some part in his
refusal to carry that -- or attempt to drag
that motor back out.
JUDGE KOUTRAS:

But not down.

MR. MONCRIEF: He described, I think, the
manner in which they took the motor down, and
the difficulties. And I simply wanted, as
part of the record, to have it known -JUDGE KOUTRJ\5: All right. So you have
already done that now. You made a -MR. MONCRIEF:

That was my proffer.

JUDGE KOUTRAS: You made an argument that he
was injured in '84; he is partially disabled,
and the company is aware of it and, notwithstanding those injuries, he still can perform
his duties and is able to perform his duties,
et cetera, et cetera.
MR. MONCRIEF: Yes, sir. And I think, too,
Your Honor, there is a point that, because of

4

his condition, this attempting to retrieve
this motor to carry it up -- this heavy motor
up the ramp -- would have been a bit more
difficult for him than for someone who had not
suffered an injury.
JUDGE KOUTRAS:

Did he tell that to --

MR. MONCRIEF: No, I don't believe he did~
however, it was a fact well known to the
company -- his condition.
JUDGE KOUTRAS:

All right.

MR. MONCRIEF: That would be my proffer, if
you want to accept it.
JUDGE KOUTRAS:
Continue.

That is all right.

MR. MONCRIEF:

Okay.

JUDGE KOUTRAS:

Overruled.

Go ahead.

You made an objection as to relevance?
MR. THOMAS: Yes, sir.
that objection.
JUDGE KOUTRAS:

And we would continue

Fine.

Mr. Hennessee testified as follows with respect to his
injuries and the effect of those injuries on his ability to
perform his duties (Tr. 59-61):
BY MR.

MONCRIEF:

Q. Briefly describe the nature of your
injuries.
A.
I had torn ligaments and cartilage in my
left knee, and my right foot was crushed. I
have a pin in my second toe on my right foot.

Q. Are either of these conditions continuing
or causing any difficulty at the present?
A.

Yes, they do.

5

JUDGE KOUTRAS:
THE WITNESS:

You said yes?
Yes, sir.

JUDGE KOUTRAS:

What difficulties?

THE WITNENSS: I have to wear a pad in my
right shoe to k.eep my toes from ·curling up.
After working a lot of long hour_s, my left· leg
will swell up, and my knee is tender-at all
times when it gets twi$ted or anything.
JUDGE KOUTRAS:

All right.

BY MR. MONCRIEF:
Q. Was your knee essentially in the same condition on the 17th of April?

A.

Basically, yes.

Q. When the injury occurred or the injuries
occurred, how long were you off work?
A.

Ten weeks.

Q. When you returned to work, to what assignment did you return?

A.

I returned to light-duty shop work.

Q.

For how long?

A.

I am going to say about two months.

Q. So sometime in '85 did you eventually
return to your normal duties?

A.

Yes, I did.

Q. On the day of the 17th of April did the
condition of your knee in any way enter into
your consideration or deliberations as to
whether to take that motor back up the ramp?

MR. THOMAS.

Objection1 leading.

JUDGE KOUTRAS:
little bit.

Yes.

You are leading him a

6

MR. MONCRIEF:

Yes, sir.

BY MR. MONCRIEF:
Q. What, if any part, did you knee play in
your determination?

MR. THOMAS:

Objection; leading •.

JUDGE KOUTRAS: Overruled.
answer it. Go ahead.

l will let you

THE WITNESS: The condition of my knee and my
foot ever since the accident is something I
think about no matter what I am doing.
JUDGE KOUTRAS:

Well -- okay.

THE WITNESS: Do you understand this, Judge?
If I am walking down the street and I see a
slippery spot on the sidewalk I ~aturally walk
around it.
JUDGE KOUTRAS:

All right.

THE WITNESS: The same thing at the plant;
there are some areas where I am very careful
when I walk there.
And, at <Tr. 63-64):
Mr. Hennessee, at the time on the 17th,
was the company aware of the extent or the
degree of your injury to your knee and foot?

Q.

A.

I am sure they were.

Q.

Why?

A. Most of the guys in the maintenance department used to call me Hopalong.
Q.

Why?

A. I limp at times; sometimes worse than
others.

7

Respondent's counsel pursued the matter further on
cross-examination as follows at (Tr. 68-69):
MR. THOMAS:

Q. Mr. Hennessee, since you talked about it
on direct examination, I want to explore a
little bit with you this injury·matter.
Now, in your statement that you wrote on
April 20, 1986, you made no mention of your
injury, did you?
A.

No.

Q. Okay. And when you· spoke with Mr. Galindo
and Mr. Pratt on the night of April 17, you
made no mention of your injury, did you?
A.

No, I didn't.

Q. In fact, the very first mention that you
made of your injury, to the knowledge of anyone with the company, was today in this courtroom. Isn't that a fact?
A. Well, I think they all knew about my
injury.

Q. I am going to ask you to answer my question, Mr. Hennessee. I will try to give
you -- and be as precise as I can, and if you
need to explain things, you can explain things
later.
What I want to know and what I want you
to answer is, between the date of your altercation at the plant and today, did you mention
to anyone in the company that your injury was
a consideration in what happened?
A.

I don't believe so.

Respondent's Request for Modification
The respondent requests that my reinstatement order be
modified to require Mr. Hennessee to undergo and pass a physical examination of his left knee and right foot as a condition
precedent to his temporarily resuming employment. Respondent

8

requests that Mr. Hennessee be required to submit to such an
examination by the respondent's physician, and that should he
desire that his own physician also examine him, respondent
states that it will pay the cost.
In support of its request, the respondent states that it
had no knowledge of the continuing extent· and severity of
Mr. Hennessee's injuries until the re-instatement hearing.
Respondent asserts that requiring Mr. Hennessee to undergo
and pass a physical examination as a coridition to his temporary reinstatement is necessary in order to assure that he is
physically qualified to perform the duties of his position,
to protect his safety and the safety of individuals who might
be assigned to work with him, and to protect the respondent
from potential liability in future workers' compensation or
other claims.
In a letter dated November 14, 1986, to MSHA's Assistant
Secretary, the respondent states that its request is in no
way related to an effort to avoid compliance with the reinstatement order. Respondent states further that it only
desires to insure that Mr. Hennessee is physically fit to
perform the duties of his position, and believes that its
request is reasonable and consistent with the requirements of
safety which are present in all mining activities.
MSHA's Opposition
In response and opposition to the respondent's request
for modification of the order of reinstatement, MSHA points
out that when Mr. Hennessee's prior injuries were referred to
during the reinstatement hearing, the respondent interposed
an objection on the ground of relevance, and continued its
objection to any further references to those injuries.
MSHA states that following the issuance of the reinstatement order, the respondent reinstated Mr. Hennessee on the
evening shift, and he worked on November 10, 11, and 12, 1986.
MSHA asserts that the issue of his physical capacity was
raised for the first time on the morning of November 10, 1986,
when upon reporting for work the evening of November 10 or 11,
Mr. Hennessee was presented a statement for his signature stating for the first time the respondent's insistence on an examination by the respondent's physician prior to the evening
shift of November 14, 1986.
In support of this assertion,
MSHA has included a statement dated November 11, 1986, by
Plant Manager Ed Pierce which states in pertinent part as
follows:

9

Yale E. Hennessee was temporarily reinstated with Alamo Cement Company on
November 10, 1986, by order of Mine Safety and
Health (MSHA) of the United States Department
of Labor. His first scheduled shift was the
10:00 p.m. to 6:00 a.m. shift on this date.

*

*

*

*

*

*

*

Alamo Cement is a non-union plant.
Employees are to do what any supervisor asks
them and no employee would be asked to do anything unsafe. Even though Mr. Hennessee is an
electrician, because of our non-union status,
he was told at times he would be required to
do other jobs (i.e., motor painting, electric
room sweeping, shoveling, etc.).
Before reporting to work Friday,
November 14, 1986, Mr. Hennessee is to have a
physical by his doctor and the Company's
doctor and give the results of these physicals
to Alamo Cement on or before November 14, 1986.
Mr. Hennessee was told that the Company would
make an appointment with their doctor for him
and let him know the time of the appointment.
MSHA states that thereafter, in the afternoon of
November 13, respdndent told Mr. Hennessee not to report to
work that evening unless he had an examination by its physician. Respondent was advised at that time that Mr. Hennessee
would be examined by his own physician. MSHA has included a
statement by Mr. Hennessee's physician, Orthopaedic Surgeon
Richard F. Cape, dated November 17, 1986, stating that
Mr. Hennessee may return to work as of that date with no physical activity restrictions.
As a result of the respondent's unreasonable insistence
that Mr. Hennessee submit to a physical examination by its
physician as a condition to reinstatement, MSHA states that
its special investigator issued two section 104(a) citations
and a section 104(b) order on November 13, 1986. The following morning the respondent agreed to pay Mr. Hennessee from
the previous evenings shift on November 13, through
November 18, provided he was examined by his physician in the
interim. On the basis of this "retroactive ersatz compliance"
with the reinstatement order, the citations and order were
vacated on November 14, 1986.

10

MSHA states that on the afternoon of November 17, the
respondent informed Mr. Hennessee that he was to report for
an examination by its physician at 2:30 p.m. the following
day and not to report for work otherwise. Upon reporting for
work at 2:00 p.m. o'n November 19, accompanied by MSHA's
special investigator, Mr. Hennessee was again terminated from
his employment. As a result of this termination, MSHA's
special investigator issued two section 104(a) citations and
a section 104 { b) order on November 19_, 19 86.
MSHA argues that no legitimate reason exists for requiring an examination of Mr. Hennessee by .the respondent's physician, and that if the respondent had any basis for concern as
to the safety or well being of Mr. Hennessee prior to
November 10, it should have investigated the matter and presented it for consideration during the reinstatement hearing.
Were there any basis for concern after November 10, MSHA
asserts that it must have been eliminated on November 18,
when the respondent received the certification of
Mr. Hennessee's physician, the same physician upon whose certification the respondent relied in February 1985 when he
returned to work after his injury. MSHA points out that the
respondent does not suggest that its physician is capable or
appropriate to the task of meaningfully examining
Mr. Hennessee's knee or foot.
MSHA states that the respondent has long known of
Mr. Hennessee's injury because he received it on the job and
it is the subject of continuing litigation between them.
MSHA points out that despite his injury, Mr. Hennessee has
fully and capably performed his work duties until his discharge in April, 1986. Moreover, during the 3 days in which
Mr. Hennessee worked after his reinstatement, he fully performed his duties, and prior to returning to work in 1985, he
received his orthopedic surgeon's clearance, and was again
examined and cleared for work by his doctor on November 17,
19 86.
MSHA concludes that there is no basis to require
Mr. Hennessee to undergo a physical examination by the respondent's physician as a condition to his reinstatement. MSHA
maintains that Mr. Hennessee's knee remains in as good or
better condition that it did on the day of his discharge in
April, 1986, and that the respondent previously accepted him
back to work after the 1984 injury.
MSHA concludes further that having lost at the temporary
reinstatement hearing, the respondent now seeks to find refuge
from that order by interposing, solely on Mr. Hennessee,

11

special demands which create hardships for him. MSHA maintains that it would not knowingly seeking reinstatement of a
individual incapable of performing the functions for which his
reinstatement is sought, and that this has not occurred in
this case. MSHA contends that both Mr. Hennessee and MSHA
have been reasonable and accomodating and have addressed the
concerns expressed by the respondent.
Findings and Conclusions
The respondent does not contend that it had no prior
knowledge of Mr. Hennessee's prior injury.
I believe it has
raised the issue, albeit belatedly, because of Mr. Hennessee's
admission that his prior injury continues to cause him difficulty, and his admission that he wears a shoe pad to keep his
toes from curling up, that his leg swells up when he works
long hours, and that his knee is tender at all times, particularly when twisted.
The fact that the respondent was aware of Mr. Hennessee's
prior injury, and that some of his fellow workers refer to him
as "Hopalong" because he limps at times, does not establish
that the respondent was aware of Mr. Hennessee's asserted
present difficulties with his leg and knee. Given the fact
that there is no evidence that the respondent knew that
Mr. Hennessee wears a shoe pad, or that his leg is subject to
swelling and his knee is always tender when twisted, and his
admission that he did not mention his prior injury to company
management when he discussed the incident of April 17 with
them, and did not contend at that time that his injury played
a role in his work refusal, I cannot conclude that the respondent's belated raising of this issue is other than bona fide.
As correctly argued by MSHA, the respondent did not make
an issue of Mr. Hennessee's prior knee and leg condition during the hearing, and in fact interposed a continuing objection
to any testimony in this regard and took the position that it
was irrelevant.
Mr. Hennessee testified that the condition of his knee
at the time of the April 17, 19 86 r .i nc:Ldent which gave use to
his discharge was basically the same as it was when he
returned to work after his injury in 1984. Although he was
off the job for 10 weeks because of his injury, and was
assigned to light duty shop work for 2 months after his
return, he stated that sometime in 1985, he returned to his
normal duties as an electrician, and there is no evidence
that hfs physical condition has interferred with his work.

12

Although Mr. Hennesse admitted that he wears a pad in
his right shoe to keep his toes from curling up, that his leg
swells when he works long hours, and that his knee becomes
tender when it is twisted, there is no evidence or testimony
to establish that his prior injury has in any way interferred
with the performance of his electrician's duties, or that he
is unable to perform those duties safely.- Further, there is
no evidence that Mr. Hennessee has ever c9rnplained about his
knee or foot condition, that he has ever refused any job
assignment because of his condition, or that the respondent
was required to make any special accomodation to him because
of his condition, other than to assign him light duties until
he could fully perform his normal electrician's duties.
Indeed, once he was returned to his normal duties, there is
no evidence that his prior injuries interferred with his ability to do his job. Further, there is no indication that he
was unable to perform his duties during the 3 days that he
was reinstated in compliance with my temporary reinstatement
order.
With regard to Mr. Hennessee's general competency to do
his job, MSHA Special Investigator Paul Belanger testified
that his investigation of Mr. Hennessee's discrimination complaint disclosed no adverse information concerning his work
performance. Mr. Belanger testified that there was no evidence of any prior adverse personnel ac±ions against
Mr. Hennessee, or any unfavorable comments concerning his
workmanship, conduct, or his ability to get along with others.
Mr. Belanger concluded that Mr. Hennessee was a good employee
(Tr. 137-138). Plant manager Ed Pierce confirmed that
Mr. Hennessee was a good employee {Tr. 204).
Mr. Hennessee testified that the respondent went to some
expense to send him to a GE factory training school in
January, 1986, to learn about an automated computer system
for a new section of the plant. He also confirmed that he
of ten responded to calls by the respondent for his services
in the evenings when the job required it, and that he never
refused to work overtime or to do his work CTr. 54-56).
In a prior temporary reinstatement case which I decided
on March 18, 1986, I denied MSHA's request for temporary reinstatement of a miner pending a hearing of the merits of his
complaint, Secretary of Labor, MSHA ex rel Johnnie Lee Jackson
v. Turner Brothers, Inc., Docket No. CENT 86-36-D, 8 FMSHRC
368 (March 1986).
In the Jackson case, the facts disclosed that he was
discharged from his job as a bulldozer operator after he

13

suffered injuries when a high wall fell on his machine while
he was operating it. He was discharged for allegedly causing
the accident, which not only resulted in injuries to his back
and neck, but also damaged the machine. Although the doctor
who treated Mr. Jackson for his injuries submitted a statement that he was able to return to work after the accident
with no restrictions, he also noted that as a result of his
injuries, Mr. Jackson was temporarily and totally disabled
and that his injuries predisposed him to reoccurring exacerbation of symptoms and reinjury related to the accident. In a
second statement, the same doctor was of the opinion that
Mr. Jackson would require periodic care· for the rest of his
life and would probably experience chronic reoccurring symptoms as a result of his injuries.
In addition to the medical information concerning
Mr. Jackson's injuries, the evidence adduced during the reinstatment hearing reflected that he suffered from 11 tennitis or
ringing of the ears, 11 and possible hearing loss as a result
of loud equipment noise, and that this information was not
made available to the doctors who cleared him for return to
work. Further, the evidence established that Mr. Jackson had
in the past voluntarily exposed himself to unsafe work conditions and had been admonished by the mine operator for failure
to us~ his seat belt or to wear a hard hat while operating his
equipment.
My decision denying temporary reinstatement in the
Jackson case was based on the totality of all of the evidence
adduced during the reinstatement hearing which reflected his
then present physical condition, including his doctor's contradictory medical statements, the fact that he was suffering
possible hearing loss, a condition not known prior to the
hearing, and the fact that his prior work record reflected
his own lack of care and disregard for the requirement that
he wear a harj hat and use his seat belt while operating his
equipment.
I also considered the fact that to reinstate
Mr. Jackson to his prior job operating a piece of equipment
which had to be maneuvered back and forth while not always on
level ground presented 11 a clear and present dAnger" or potential for further injuries.
In my view, the facts presented in the instant case are
distinguishable from those presented in the Jackson case.
There is no evidence that Mr. Hennessee has had any past difficulty in doing any job assigned to him. The evid~nce establishes that he has been a good employee and has never been
disciplined or charged with any safety violations. Further,
his prior injuries were not recent, and he was welcomed back

14

after a period of recuperation and assigned light duties
before being permitted to perform his normal job as an electrician.
In all candor, I believe that the question of
Mr. Hennessee's prior injuries were brought out by MSHA in an
attempt to support a possible later claim that they somehow
impacted on his refusal to perform the job task for which he
was fired.
However, this is an issue which is yet to be
determined on the merits of the discrimination complaint.
On the facts of Mr. Hennessee's case in its present
posture, and after careful review and consideration of all of
the testimony and evidence of record, including an unrebutted
statement from his orthopedic surgeon that he is able to perform his normal electrician's duties without physical restrictions, I cannot conclude that his temporary reinstatement
pending the adjudication of the merits of his complaint will
adversely affect his safety or the safety of his fellow
workers, or that his temporary reinstatmeent should be conditioned on his passing a physical by a company doctor.
As indicated earlier, Mr. Hennessee's physical condition
was raised by MSHA as part of its complaint, and by its
counsel during the course of the hearing.
In my view, aside
from the .respondent's liability concern, the only possible
concern with Mr. Hennessee's physical ability to his job as
an electrician may be presented in connection with any
"non-electrician" duties which may be assigned to him.
During
the reinstatement hearing, Plant Manager Ed Pierce confirmed
that the plant is non-union and that everyone, including electricians, are expected to do cleanup work (Tr. 216). Although
Mr. Hennessee stated that he was never expected to do any work
other than "technical work" during the period of his employment with the respondent, he conceded that management had
never specifically told him that, and he further conceded that
he never refused to do any job· assignment, and that company
rules required that anyone working on equipment clean up and
remove any debris CTr. 74-75). Further, although Mr. Hennessee
confirmed that his prior accident is something that he thinks
about when he is at work or away from work, and that he is careful when he walks around, he candidly admitted that he would
"take a risk" in order to get the job done" (Tr. 60-61).
Mr. Pierce's statement of November 1, 1986, reflects that
as a non-union employee, Mr. Hennessee would at times be
expected and required to perform non-electrical work such as
painting, sweeping, shoveling, etc.
Under these circumstances,
I believe it is reasonable to conclude that these additional
duties ~re likely to include physical labor which may or may
not further aggravate Mr. Hennessee's existing knee and foot

15

condition. However, I am not convinced that the respondent's
policy of assigning other work to its employees is something
new. The record here supports a conclusion that Mr. Hennessee
has always been expected to perform duties not specifically
related to those of an electrician and that he has done so
willingly and without incident or complaint. Under the circumstances, I am not convinced that the performance of these
additional duties will expose Mr. Herihessee to further injury,
nor am I convinced that the respondent has established by any
credible evidence that as a condition of reinstatement,
Mr. Hennessee should be forced to undergo a physical by a company doctor. I express no view as to whether or not the
respondent's existing personnel policies or rules require its
employees to be examined by a company doctor in the event the
respondent, as an employer, has reasonable or legitimate
grounds. to believe that an employee cannot physically perform
his job. My jurisdiction is limited to the facts presented
in the context of a temporary reinstatement proceeding under
the Act.
ORDER
In view of the foregoing findings and conclusions, the
respondent's request for modification of my temporary
reinstatement order to require Mr. Hennessee to undergo a
physical by a company doctor as a condition precedent to his
temporary reinstatement pending an adjudication of his discrimination complaint on the merits IS DENIED. My previous
Decision and Order of November 6, 1986, is therefore
REAFFIRMED, and the respondent IS ORDERED to immediately reinstate Mr. Hennessee temJ?Orarily to his electrician's position
in compliance with that Order.

/·/,,//./,;1~7
-~~,,.
7L· t',1',//I /3-1-1
c.'?./f.A::j,,

/. ,. ,C-'t,,.

t

· ,ce·orge • Koutras
Administrative Law Judge

16

Distribution:
Robbie J. Gannaway, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75202 (Certified Mail)
Robert S. Bambace, David M. Thomas, Esqs., Fulbright &
Jaworski, 1301 McKinney Street, Houston, TX·77010
(Certified Mail)
·
Frederick Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
/f b

17

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 5 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

:

..

CIVIL PENALTY PROCEEDING
Docket No. CENT 86-37-M
A.C. No: 41-03036-05504

v.

Olmos.Portable Crusher
No. l M

COLORADO MATERIALS CO., INC.,
Respondent
DECISION
Appearances:

Eva Chesbro, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, TX, for
Petitioner~

William M. Knolle, Esq., Hearne, Knolle
Lewallen, Livingston & Holcomb, Austin, TX, for
Respondent.
Before:

Judge Fauver

This proceeding was brought by the Secretary of Labor
for a civil penalty for an alleged violation of a safety
standard under the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801, et~
Based on the hearing evidence and the record as a whole,
I find that a preponderance of the reliable, probative, and
substantial evidence establishes the following:
FINDINGS OF FACT
1. Respondent, Colorado Materials co., Inc., at all
pertinent times operated the Olmos Portable Crusher No. 2,
which is a limestone (crushed and broken) plant, in Austin,
Texas, engaged in interstate commerce.
2. On August 6, 1985, between 7:00 and 7:30 a.m.,
Respondent's crusher operator, Galdino Robledo (Decedent),
was fatally injured while attempting to remove a rock or
rocks from a portable rock crusher.

18

3. When Decedent was killed, the engine of the rock
crusher was running and the machinery was not blocked against
motion.
Decedent apparently put the engine in neutral,
climbed down to the drum and mouth of the crusher in order to
dislodge a rock or rocks from the crusher drum and attempted
to dislodge the obstruction by pushing the drum with his foot.
In this movement, he apparently slipped and fell into the
mouth of the rock crusher. His hard hat and a boot came out
of the crusher and traveled on a conveyor belt a distance of
about 25 feet.
This distance reasonably shows that
Decedent's initial contact with the drum caused the clutch to
engage accidentally and thus to add engine power to drive the
drum that crushed him to death.
4. On August 7, 1985, after a careful investigation of
the accident, MSHA's inspector issued a citation charging
Resondent with a violation of 30 C.F.R. § 56.14029, which
provides:
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.
5. Decedent began working for Respondent in 1984 as a
laborer, and worked his way up to the job of crusher operator
by January, 1985. He was known to be a productive, careful
and dependable worker.
6. Respondent produces about 600,000 tons of crushed
rock a year.
It is as a small to medium sized operator.
7.
In the 24 months before the accident, Respondent
paid penalties for five violations, which were found during
six inspection days.
8.
It was stipulated that payment of the proposed civil
penalty of $6,000 would not impair Respondent's ability to
continue in business.
9. Respondent abated the cited condition in a timely
manner, by conducting a safety meeting at which all employees
were instructed to shut off the power on the crusher engine
and to install a blocking pin. in the crusher axle before any
employee entered the crusher area for removal of
obstructions.
10. Many of Respondent's employees, including Decedent,
were Spanish speaking rather than English speaking.

19

Respondent did not post safety signs or write safety notices
in Spanish for the benefit of such employees. Decedent's
immediate supervisor did not speak Spanish and only assumed
that Decedent, although Spanish speaking, could understand
enough English to follow his instructions to Decedent, but no
proof was offered to show that Decedent actually had a
reasonable grasp or understanding of English. His supervisor
testified that Decedent could understand vocal instructions
in English because Decedent would do what he was instructed.
However, the supervisor did not know how much of Decedent's
understanding was due to gestures and other nonverbal
communications, and there was no evidence that he could read
English or follow it without gestures.
DISCUSSION WITH FURTHER FINDINGS
Respondent contends that it had a policy requiring the
crusher operator to shut off the power of the diesel engine
driving the crusher before attempting to remove obstructions
from the crusher. Additionally, Respondent asserts that
the removal of obstructions fits within the exception of
§ 56.14092, in that the materials could not be removed unless
there was machinery motion.
It therefore contends that it
did not need to block the machinery against motion.
It is at best arguable whether Respondent had a policy
requiring that the engine be shut off. Al though Respondent's
managerial staff testified to such a policy, they have failed
to provide the records which they contend they have kept as
documention of safety meetings and instructions. Moreover,
testimony indicates that even if such a policy existed in
theory, it was not enforced in practice, e.g. during winter
months due to the difficulty of restarting machine
operations.
The failure to enforce such a policy, if Respondent had
one, through
fective communication, training, or
supervision, is tantamount to an absence of such policy.
The standard cited also requires the blocking of
machinery against motion, "except where machinery motion is
necessary to make adjustments." At times, obstructing rocks
were removed by turning the drum shaft from the outside of
the machine. At those times, the blocking safety standard
would not apply. However, there were times when obstructing
rocks were too big to be dislodged this way, and at those
times i~ was necessary to pull or pick the rock or rocks away
from the drum while standing inside the crusher area and over
the drum and mouth of the crusher itself. At those times,
Respondent has acknowledged that the machinery had to be

20

blocked for safety of the employee, but it contends that it
had a policy in such cases:
Cl) that the employee had to get
permission from his supervisor to enter the crusher area, (2)
the power would be shut off, and (3) the drum would be
blocked by employees out side holding a Stilson wrench on the
shaft. Also, Respondent states that when the welder worked
on the drum he would first block it with wooden wedges on
both sides or weld the drum to the frame.
The requirement for blocking the machinery is
specifically directed at the prevention of a safety hazard
that is obvious and severe. The simple step of shutting off
the engine power of a crusher mitigates the chance of motion
which could otherwise occur, due to either the slippage of
the clutch because of vibration of the machine, or due to an
employee's accidental or intentional exertion of force on
part of the machinery. Notwithstanding the required step of
shutting off power, the rotating drum, conveyor, and other
parts of the crusher are still capable of motion, and thus,
hazardous to employees exposed to the crusher. The crusher
drum weighs about 13 tons and is "freewheeling."
This residual motion and hazard is addressed by the
blocking requirement of the standard. Blocking ensures that
these potentially hazardous parts cannot be put into motion
by either a slippage of a clutch or an employee's pressure,
be it the force of a kick to start the drum rotating or the
body weight of an employee who slips or falls. The evidence
shows that the § 56.14029 exception does not apply to the
task of removing rocks by approaching the drum from above
while standing in the crusher area.
Respondent's asserted blocking policy was not shown to
be in writing or otherwise effectively communicated to the
Decedent. Despite repeated requests by MSHA for such
records, Respondent was unable to produce the records it
contended it kept as documentation of safety meetings and
instructions to employees. Respondent has failed to show
effective communication and enforcement of its asserted
blocking policy.
As in the case of Respondent's asserted policy of
shutting off the engine for dislodging procedures,
Respondent's failure to communicate and enforce its asserted
policy of blocking the crusher--through effective
communication, training and supervision of Decendent and
other Spanish-speaking employees--is tantamount to an absence
of such a policy.

21

The duty of enforcement of an employer's safety rules
rests on the employer. Since the safety standards under the
Act are mandatory and are not "fault" standards, a penalty
proceeding is barred by a defense of employee misconduct.
As
the United States Court of Appeals for the Fifth Circuit
noted, since the employer is in a better position to make and
enforce rules than are his workers, the Act "impose[s] a kind
of strict liability on the employer as· an incentive for him
to take all practicable measures to ensure the workers'
safety" Allied Products Co. v. FMSHRC, 666'F.2d 890, 893-894
(1982). See also Atlantic Cement Co., Inc., 2 FMSHRC 1499
{1981) (employee's failure to wear safety belt and line in
direct contravention of the company's regularly enforced
safety rules does not relieve employer from liability for
violation of standard of no-fault statute).
I find that Respondent was negligent in failing to
establish and enforce through effective communication,
training, or supervision a clear safety rule implementing the
standard in 30 C.F.R. § 56.14029.
Decedent's negligence
(entering the crusher area without shutting off the engine
and having the machinery blocked against motion) is imputed
to Respondent.
This was a most serious violation, because
the risk of death or serious injury was very high.
Considering all of the criteria for assessing a civil
penalty under section llOCi) of the Act, I find that a civil
penalty of $6,000 is appropriate.
CONCLUSIONS OF LAW

1.

The Commission has jurisdiction in this proceeding.

2.
Respondent violated 30 C.F.R. § 56.14029 as charged
in Citation No. 2241745.

3. Respondent is ASSESSED a civil penalty of $6,000 for
the above violation.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the
above civil penalty of $6,000 within 30 days of this
Decision.

t_J~ :+-IVeA VeA...._

William Fauver
Administrative Law Judge

22

Distribution:
Eve Chesbro, Esq., U.S. Department of Labor, Office of the
Solicitor, 555 Griffin Square #501, Dallas, TX 75202
(Certified Mail)
William M. Knolle, Esq., Hearne, Knolle, Lewalley, Livingston
& Holcomb, P.O. Drawer 1687, Austin, TX 78767 (Certified
Mail)
kg/slk

23

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

22041

January 6, 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
ROBERT B. CORBIN and
JAMES CORBIN,
Complainants

v.
TERCO, INC. ,
RANDAL LAWSON,
TERRY MCCREARY, and
MATTHEW LOGAN,
Respondents

DISCRIMINATION PROCEEDINGS
!

.

Docket No. KENT 86-131-D

.
.•.
.
..

Docket No. KENT 86-132-D

BARB 86-27

BARB 86-42

ORDER OP DISMISSAL
Appearances:

W.F. Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee
for Complainants;
Carlos Morris, Esq., Barbourville, Kentucky,
for Respondents.

Before:

Judge Melick

The Complainant, Secretary of Labor, with the consent of
the individual Complainants, James Corbin and Robert Corbin,
requests approval to withdraw his complaints in the captioned
cases on the grounds that the parties ha~~ reached a mutually
agreeable settlement. Under the circums ances herein,
permission to withdraw is granted. 29 C • • R. § 2700.11. The
cases are therefore dismissed.

I~
~/:~l

Gary M lick

~/

Judge

24

l

I

Distribution:
Frederick Moncrief, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
W.F. Taylor, Esq., U.S. Department of Labor, Office of the
Solicitor, 280 U.S. Courthouse, 801 Broadway, Nashvil , TN
37203 (Certified Mail)
Carlos Morris, Esq., Morris & Morris, P.Oo Box 1008?
Barbourville, KY 40906 (Certified Mail)
Mr. Terry McCreary, HC 73, Box 1730, Bryants StoreP. KY 40921
CCertif ied Mail)
Terco, Inc., c/o Mr. Randal Lawson, Route 4, Barbourville, KY
40906 (Certified Mail)
Mr. Randal Lawson, Route 4, Barbourville, KY 40906 (Certified
Mail)
Mr. Matthew Logan, HC 66, Box 386, Barbourvil
(Certified Mail)
rbg

, KY 40906

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

JAN 6 1987

22041

CIVIL PENALTY PROCEEeING

SECRE'1;,.RY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

Docket No. WEVA 86-385
A.C. No. 46-01455-03628

v.
Osage No. 3
CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Appearances:

ore:

Terry Salus, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Respondent;
Michael R. Peelish, Esq. , Consolidation Coal
Company, Pittsburgh, Pennsylvania, for
Contestant.
Judge Melick

This case is before me upon a petition for assessment of
vil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). Petitioner has filed a
motion to approve a settlement agreement and to dismiss the
c~se.
A reduction in penalty from $1,055 to $355 is proposed.
I have considered the representations and documentation
submitted in this case, and I conclude that the proffered
2ettlement is appropriate under the criteria set forth in
Section llO(i) of the Act.
WHEREFORE, the motion for approval of (settlement is
GRANTED, and it is ORDERED thatjRespondent 1._pay a penalty of
$355 within 30 days of this ord~r.

' /\
u\
I

I

\t

Gary Melick
Admini~\'. trative
Distribution:

Judge

~

Terry Salus, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
rbg
26

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

JAN 8 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
ON BEHALF OF
BARRY MYLAN,
LESTER POORMAN,
Complainants

v.

DISCRIMINATION PROCEEDING
:

Docket No. PENN 86-125-D
MSHA case No. PITT CD-8

. Benjamin Strip No. 1
:

BENJAMIN COAL COMPANY,
Respondent
and
UNITED MINE WORKERS OF
AMERICA, (UMWA),
Intervenor
SUMMARY DECISION
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of discrimination
filed by MSHA on behalf of the complainants pursuant to section 105Cc)(l) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c)(l). The complainants state that
they are employed by the United Mine Workers of America as
Health and Safety Representatives, and they allege that on or
about October 31, 1985, when acting as miners' representatives, the respondent denied them the right to travel with an
MSHA inspector during a spot inspection of the mine. The
complaint seeks the following reli
1. A finding that the complainants were
unlawfully discriminated against by the respondent for engaging in actions protected under
section 105{c)(l) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815.

27

2. A cease and desist order and an order
directing the respondent to post a notice that
it will not violate section 105(c) of the Act.
3. An order assessing a civil penalty
against the respondent for its violation of
section 105(c) of the Act. Pursuant to
29 C.F.R. § 2700.42, MSHA has submitted a
statement proposing a civil penalty assessment
in the range of $500 to $600 based upon the
criteria for penalty assessments set forth in
section llO(i) of the Act.
The parties agreed to submit this matter to me for summary decision pursuant to Commission Rule 64, 29 C.F.R.
§ 2700.64, and they have filed a joint stipulation of facts,
and briefs in support of their respective positions. The
UMWA has been permitted to intervene pursuant to Commission
Rule 4(b), 29 C.F.R. § 2700.4(b)(l) and (2), and it has filed
briefs in support of its position.
Issues
The principal issue presented in this case is whether or
not the respondent discriminated against the complainants by
its refusal to permit them to accompany an MSHA inspector in
their alleged capacity as miner's representatives. Additional
issues raised by the parties are identified and disposed of in
the course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
30

2.

Sections 103(f}, 105(c), and llO{i) of the Act,

3.

30 C.F.R. § 40.l and 40.2.

4.

Commission Rules, 20 C.F.R. § 2700.l

u.s.c. § 813(f), 815(c), and 820(i).

et~

Stipulations
MSHA and the respondent have stipulated to the following:
1. On November 4, 1985, Barry Mylan and
Lester Poorman filed a section 105(c) complaint

28

with the Mine Safety and Health Administration,
Johnson Field Office, against the Benjamin Coal
Company.
2. Both Messrs. Mylan and Poorman are
employed by the United Mine Workers of America
as Health and Safety Representatives. Neither
is employed at the Benjamin Coal Company in
any capacity.
3. The Benjamin No. 1 Strip Mine, I.D.
No. 36-02667, is one of eight surface mining
operations which are owned and operated by
Benjamin Coal Company and is located in the
vicinity of waukeska, near Westover, Clearfield
County, Pennsylvania.
4. The No. 6 Preparation Plant, associated with the Benjamin No. 1 Strip Mine,
processes coal from various strip mines operated by Benjamin Coal Company. The plant
employs approximately 35 non-union miners on
two production shifts and one maintenance
shift to process a daily average of 2,200 tons
of coal.
5. Employment at the Benjamin Coal
Company is currently 335 employees and the
No. 1 Strip Mine including the No. 6 Preparation Plant employs approximately 262 miners.
6. The president of the Benjamin Coal
Company is David J. Benjamin.
7. On March 14, 1984, a secret ballot
election was held at the Benjamin Coal Company
by the National Labor Relations Board.
8. The employees (miners) of the
Benjamin Coal Company by a vote of 261 to 209
voted against having the United Mine Workers
of America become their representatives.
(See
Exhibit A).
9. On October 21, 1985, four miners who
worked at the No. 6 Preparation Plant designated the United Mine Workers of America to
act as the miners' representatives at the
No. 6 Preparation Plant.
(See Exhibit B).

29

10. The United Mine Workers of America
designated Barry Mylan as its representative
and Lester Poorman as its alternate
representative.
(See Exhibit B).
11. On October 21, 1985, the aforemen~
tioned designation was placed upon an authorization form in accordance with 30 C.F.R. § 40.3
and forwarded to Donald Huntley, Dist~ict
Manager of the Mine Safety and Health Administration's District 2. A copy was also sent to
the Benjamin Coal Company.
(See Exhibit B}.
12. On October 24, 1985, Barry Mylan
forwarded to John DeMichiei, Subdistrict
Manager-MSHA, a written section 103Cg)(l)
request for an inspection of the No. 6 Preparation Plant.
(See Exhibit C).
13. On October 31, 1985, as a result of
the October 24, 1985 request, MSHA Inspector
Nicholas J. Kohart visited the No. 6 Preparation Plant for the purpose of conducting a
section 103(g)(l) spot inspection.
14. Upon Inspector Kohart's arrival he
was met by Messrs. Mylan and Poorman who
informed him that they were the authorized
mine representatives.
15. Inspector Kohart and Messrs. Mylan
and Poorman appeared at the mine office that
morning for the purpose of conducting the section 103(g}(l) spot inspection.
16. Said inspection was commenced, however, during the course of the inspection,
Messrs. Mylan and Poorman were ordered off of
the mine property by David J. Benjamin,
President of Benjamin Coal Company.
17. Mr. Benjamin refused to recognize
the UMWA as a miners' representative because a
majority of the employees of Benjamin Coal
Company had voted against the UMWA as their
representative in the election of March 14,
19 84.

30

18. Employees, i·~·' miners, had in the
past been allowed by Benjamin Coal Company to
accompany federal inspectors on inspections at
the No. 6 Preparation Plant.
19. On April 15, 1986, the Secretary of
Labor filed the complaint before the Federal
Mine Safety and Health Review Commission,
which is the subject of this action.
20. The No. 1 Strip Mine's annual production tonnage is approximately 438, 496 •· The
Benjamin Coal Company's annual production tonnage is between 1,100,000 tons and 1,500,000
tons.
21.
The history of previous violations
during the 24-month period preceding the f iling of this complaint was 103 over 68 inspection days. The respondent has no previous
history of a section 105(c) violation.
An unopposed motion by the UMWA to amend the stipulations
was granted, and paragraph 8 above was amended as follows:
8(a).
In a decision issued on July 31,
1985, an administrative law judge of the
National Labor Relations Board determined that
unfair labor practices committed by Benjamin
Coal Company had precluded the conducting of a
fair
ection and he therefore ordered the
election of March 14, 1984, set aside (decision
attached as Exhibit 0). The judge concluded
further that said unfair labor practices were
so egregious as to preclude the holding of a
fair election ia the future and that a previous
election, conducted on November 17, 1983, in
which the UMWA obtained a majority vote, constituted a more reliable indicia of employee
desires.
The judge therefore concluded, as a
matter of law, that the UMWA was, and had been
since November 1983, the designated representave of a majority of employees at the Benjamin
mine.
8{b). The Administrative Law Judge
Decision, attached as Exhibit "D," has been
appealed to the National Labor Relations
Board, where said appeal is still pending.

31

Discussion
The facts in this case are not in dispute. The respondent's No. 1 Strip Mine employs approximately 262 miners.
The No. 6 Preparation Plant is part of the mine, and approximately 35 miners are employed at the plant.
On October 21, 1985, four miners who worked at the preparation plant designated the UMWA as their representative.
This written designation was filed with MSHA's District 2
Manager and a copy was sent to the respondent in accordance
with 30 C.F.R. §§ 40.2Ca> and 40.3(b). The designation listed
Barry Mylan and Lester Poorman as the UMWA officials serving
as representatives. Mr. Mylan and Mr. Poorman both are
employed by the UMWA as Health and Safety Representatives, and
neither is employed by Benjamin Coal Company.
On October 24, 1985, Mr. Mylan filed a request with MSHA
for a section .103Cg)(l) spot inspection of the preparation
plant. In response to that request, MSHA Inspector Nicholas J.
Kohart visited the preparation plant on October 31, 1985, for
the purpose of conducting the spot inspection. Upon his
arrival, Inspector Kohart was met by Mr. Mylan and Mr. Poorman
who informed him that they were the authorized representatives
of the miners at the plant. Mr. Mylan and Mr. Poorman intended
to accompany Inspector Kohart on his inspection as the miners'
representative pursuant to section 103Cf) of the Act.
Inspector Kohart commenced his inspection, accompanied
Upon learning of the presence
of Mr. Mylan and Mr. Poorman, respondent's President, David
Benjamin, went to the plant and ordered them off the mine
property. Mr. Benjamin's a~tion was prompted by his refusal
to recognize the UMWA as the miners' representative because a
majority of his employees had voted against the UMWA as the
collective bargaining representative of miners in an NLRB
directed election held on March 14, 1984. Respondent's miners
had in the past been permitted to accompany MSHA inspectors on
inspections at the plant.
by Mr. Mylan and Mr. Poorman.

Thereafter, on November 4, 1985, Mr. Mylan and
Mr. Poorman filed a complaint with MSHA alleging that the
respondent's refusal to allow them to accompany Inspector
Kohart as the miners' representatives pursuant to section
103(f) of the Act violated their rights under section 105(c}
of the Act. MSHA conducted an investigation of the complaint,
and upon its completion filed the instant complaint on behalf
of Mr. Mylan and Mr. Poorman on April 15, 1986.

32

Respondent's Arguments
The respondent contends that the designation of the UMWA
as the representative of the miners by only four (4) miners
is not effective to confer representative status on the UMWA
over many times that number of miners. Consequently, respondent contends that the allegation that it violated section
105(c) of the Act by its actions cannot be sustained. Respondent asserts that its actions were not motivated because of
the exercise of any rights under the Act by Mr. Mylan and
Mr. Poorman, and that it is clear that it has always permitted
miners' representatives to take part in MSHA inspections.
In
this instance, however, the respondent maintains that it
refused to recognize the UMWA as the representative of its
miners because a majority of its miners had declined to have
the UMWA act as their representative.
The respondent also contends that the complaint should
be dismissed because it was not filed until well after the
statutory and regulatory time limits set forth for the filing
of a complaint of discrimination, discharge or interference
with the Commission.
In support of its principal argument, the respondent
points out that the Act contains no definition of a representative of miners.
It recognizes that 30 C.F.R. § 40.l defines
a representative of miners as "any person or organization
which represents two or more miners at a coal or other mine
for the purpose of the Act . • • ," and states that the
Secretary of Labor, in support of this definition has stated
that:
The purposes of the Mine Act are better
served by allowing multiple representatives to
be designated.
This insures that all miners
have the opportunity to exercise their right
to select the representative of their
choice • • • • 43 Fed. Reg. 29508 (July 7,
1978).
Respondent argues that if all miners have the "right to
select the representative of their choice" the claimed violation of section 105(c) cannot, in this case, be sustained.
If miners have the right to select a representative of their
own choice, respondent asserts that the designation of the
UMWA as representative for all of its miners or for all
miners at the preparation plant by only four miners must be
ineffective since neither the 31 other miners employed at the

33

plant nor the 258 other miners employed at the mine can be
forced to accept the UMWA as their representative under the
Act by the action of four individuals.
Because this is not a
proper designation from the persons the UMWA purports to
represent, respondent concludes that it cannot be penalized
for refusing to recognize the UMWA as the representative of
its miners during the inspection of October 31, 1985.
Respondent maintains that MSHA and the UMWA do not claim
that the UMWA is the representative of the four miners that
designated the UMWA as their representative, but interpret
the designation of four miners as being the effective designation of all miners at the mine.
In support of this conclusion, the respondent states that MSHA's consideration of the
designation by the four miners to be of wide application is
evidenced by the fact that the respondent was cited on
June 25, 1986, for refusing to allow the UMWA to take part in
an inspection on June 19, 1986, at the site of an accident
many miles away from the plant and where none of the miners
that signed the designation work.
Respondent argues that if the designation by four miners
is effective for other miners at the mine, then this is contrary to MSHA's expressed interpretation of the Act's intent
"that all miners have the opportunity to exercise their right
to select the representative of their choice • • • • " Therefore, the UMWA cannot, as it purported to be, be the representative of all miners at the Company or of all miners at the
plant since the miners presumably have the right to remain
unrepresented or choose their own representative.
Respondent cites section 103(f) of the Act which states:
Where there is no authorized miner representative, the
Secretary or his authorized representative shall consult with
a reasonable number of miners concerning matters of health
and safety· in such mine."
(Emphasis added.)
11

Citing the legislative history of this provision, the
respondent points out that the Joint House and Senate
Conference Committee stated:
"The Senate required the
Secretary to consult with a reasonable number of miners if
there was no authorized representative of miners.
The House
amendment did not contain this protection for unorganized
miners."
Respondent maintains that MSHA is required to consult
with a "reasonable number of miners" when there is no authorized representative, and that the designation of a representative by four of several hundred miners cannot relieve it of

34

this responsibility and deprive other miners of the right to
be consulted. Respondent concludes that if a reasonable
number of miners must be consulted when there is no authorized
representative, the authorized representative of a group of
miners must be sel~cted by a reasonable number of miners, and
that four miners is hardly a reasonable number in determining
the representative for over 250 miners.
Respondent asserts that it is clear that Congress had in
mind that the term "authorized representative of the miners"
applied to organized mines where MSHA would consult with the
representative that had been selected by a majority of the
employees, and the reason that MSHA is required to consult
with a "reasonable number of miners" where there is no authorized representative, is because in an organized mine by
definition, the authorized representative would have been
selected by a majority, i.~., reasonable number of miners.
Respondent maintains that if four miners may effectively
designate a representative for all other miners, then the
remaining fliners would also lose valuable rights and protections under section 103(g) of the Act which states:
Cl) Whenever a representative of the
miners or a miner in the case of a coal or
other mine where there is no such representative, has reasonable grounds to believe that a
violation of this Act or a mandatory health or
safety standard exists, or an imminent danger
exists, such miner or representative shall
have a right to obtain an immediate inspection
by giving notice to the Secretary or his authorized representative of such violation or
11
danger
Citing the legislative history of this provision, respondent points out that the Joint House and Senate Conference
Committee stated:
"The conference substitute conforms to the
Senate Bill, except that such inspections can be requested
only by a representative of miners, or by a miner where there
is no representative of miners at the time."
Respondent argues that if the UMWA is the representative
of the miners at the mine and plant by virtue of the designation of four miners, then by statutory mandate all other
miners lose their rights under section 103{9) of the Act.
The statute and the legislative history make it entirely
clear that if there is a representative of miners at a mine,
then the miners are to be represented by that representative

35

for purposes of the Act, and they lose the right to act individually because of the presence of a representative of
miners. Similarly, if there is a representative of the miners
at the mine, miners apparently lose the right under the Act to
be consulted at the time of an inspection pursuant to section
103(f).
Respondent concludes that if miners are going to lose
valuable rights under the Act to act individually because
they must deal through a representative, then they must be
involved in the selection of that representative. Respondent
suggests that to allow four miners to designate the representative for all other miners deprives them of their freedom of
choice and requires them to be represented by an entity they
have in this instance previously rejected, and is contrary to
the purpose of the Act as se.t forth by MSHA which is allegedly
best served by allowing all miners "the opportunity to exercise their right to select the representative of their choice."
[43 Fed. Reg. 29508 (July 7, 1978)].
Respondent maintains that by refusing to recognize the
UMWA as the representative for all of its miners, or as the
representative of the miners at the preparation plant, it did
not violate section 105Cc) of the Act. It concludes that the
UMWA cannot, consistent with the regulations nor the spirit
of the Act, be the representative for miners that have not
authorized it to represent them.
Respondent argues further that allowing four miners to
designate a representative for other miners also conflicts
with the miners' rights under the National Labor Relations
Act (NLRA).
In support of this argument, respondent asserts
that section 7 of this statute permits employees (miners are
included in the definition of employees) to engage in concerted activity for purposes of collective bargaining or
other mutual aid or protection. Section 7 also states that
employees may refrain from engaging in such concerted activities. Concerted activities for purposes of other mutual aid
or protection includes matters of safety and health in the
workplace. NLRB v. Washington Aluminum Co., 370 U.S. 9,
8 L.Ed.2d 298 (1962); l.Vheeling-Pittsburgh Steel Corp. v. NLRB,
618 F.2d 1009 (3d Cir. 1980); Wray Electric Contracting, Inc.,
210 NLRB 757, 86 LRRM 1589 (1974).
Respondent points out that under the NLRA a representative of the employees selected by a majority of the employees
becomes the exclusive representative of the employees.
[NLRA
§ 9(a), 29 U.S.C. § 159(a)].
In 1984 an election was held in
which the UMWA sought to become the exclusive representative

36

of the respondent's employees (miners), and that the employees
(miners), by a vote of 261 to 209, voted against having the
UMWA as their representative. Since that time, the employees
(miners) have not indicated any desire to have the UMWA represent them for any purposes other than the purported designation by four individuals of the UMWA as the representative of
miners under the Act.
The respondent suggests that because employees (miners)
have the right to refrain from being represented under the
NLRA, a determination allowing four individuals to select the
representative for many other miners would abrogate their
right to refrain from engaging in collective activity, and
that any recognition by an employer of a union as a representative of employees that have not selected the union as their
representative can be an unfair labor practice under section
8Ca)(2) of the NLRA, 29 u.s.c. § 158(a){2). Pick-Mt. Laurel
Corp. v. NLRB, 625 F.2d 476 C3d. Cir~ 1980). Moreover, if
the UMWA is their representative, the miners lose their rights
to act individually pursuant to sections 103(f) and Cg) of the
Mine Act.
The respondent points to the fact that MSHA has stated
that the purpose of the Mine Act are better served by having
all miners "exercise their rights to select the representative
of their choice • • • • " If this is the case, respondent
further suggests that miners also have the right to refrain
from selecting a representative and are free to pursue their
rights under the Act individually. Further, if miners are
free under the Act to refrain from having the UMWA represent
them, respondent concludes that the designation of the UMWA as
their representative by others must be invalid. Respondent
further concludes that allowing the UMWA to gain representative status over other miners based on the actions of four
miners would directly conflict with the comprehensive scheme
for the selection of a union established under the NLRA as
well as the apparent intent of the Mine Act.
The respondent maintains that if the UMWA had won the
election and had been certified as the exclusive representative of the employees at the company, it would, as contemplated by Congress, be the authorized representative of the
miners under the Mine Act. Since the UMWA, a labor organization, did not win the election and has not been certified as
the representative of respondent's employees, it cannot now
achieve the status of a representative for hundreds of miners
based on the actions of four miners, and that as a labor
organization, it must follow the procedures of the NLRA to
gain the status of representative for hundreds of miners.

37

Respondent concludes that to interpret the Mine A~t to
allow a union to gain a status as representative for employees
without their consent, would fly in the face of the long established scheme of the NLRA, and that Congress could not have
intended a result whereby an employer could refuse to recognize a union that has been rejected by a majority of his
employees but the same employer would have to recognize the
same union as the representative of the same employees because
a few of those employees had designated the union as represen. tative for the employees.
Summarizing its position on the merits, the respondent
concludes that the designation of the UMWA as the representative of miners at its mine by four miners is inconsistent
with both the Mine Act and the National Labor Relations Act,
because there is no authority allowing two or more miners to
select a representative for many times that number of miners.
This is particularly true if the Acts' purposes are better
served by allowing miners to select representatives of their
choice.
Respondent concludes that the designation that purported
to designate the UMWA as the representative of miners that
did not indicate a willingness to waive their individual
rights under the Act in favor of having the UMWA act as their
representative is clearly defective, and consequently, its
refusal to recognize the UMWA under these circumstances is
not violative of section 105(c)(l} of the Mine Act. Moreover,
the respondent maintains that its actions were clearly not
motivated because of the exercise of rights protected under
the Act by the UMWA, but instead, were based on the act of its
employees that had previously rejected the UMWA as their
representative.
In addition to its arguments on the merits of its
asserted defense in this case, the respondent asserts that
MSHA's complaint should be dismissed as untimely.
Citing the
time requirements of section 105Cc)(3) of the Act, and
Commission Rules 40 and 41, 29 C.F.R. § 2700.40 and 2700.41,
respondent states that MSHA is required to make a written
determination of a violation within 90 days of receipt of a
complaint and to immediately file its complaint with the
Commission if it believes that a violation of section
105(c)(l) has occurred. Respondent points out that 29 C.F.R.
§ 2700.4l(a) further delineates that MSHA shall file its complaint with the Commission within 30 days of any determination that a violation has occurred.

38

Since the complaint by Mr. Mylan and Mr. Poorman was
filed with MSHA on November 4, 1985, the respondent maintains
that MSHA should have filed its complaint by March 5, 1986.
Respondent calculates that 90 days from November 4, 1985 is
February 3, 1986; and 30 days from February 3, 1986, falls on
March 5, 1986. Instead, respondent points out that MSHA
failed to file its complaint with the Commission until
April 15, 1986.
The respondent asserts that MSHA had ample opportunity
to file a complaint within the mandated time limits. Moreover, respondent asserts that the instant case is not one
where an unsophisticated party not knowing their rights under
the Act failed out of ignorance to take advantage of his
right to file a complaint, and that the alleged discriminatees
are representatives of the UMWA, a large, sophisticated labor
organization that is fully capable of filing a complaint
within the required time limits and has historically been
involved in such litigation under the Act.
MSHA's Arguments
In support of its position in this case, MSHA initially
points out that under the analytical guidelines established
by the Commission in Secretary on behalf of Pasula v.
Consolidation Coal Corp., 2 FMSHRC 2786 {October 1980), rev'd
on other grounds sub nom. Consolidation Coal Corp. v. Marshall,
663 F.2d 1211 C3d. Cir. 1981), and Secretary on behalf of
Robinette v. United Castle Coal Company, 3 FMSHRC 803 (April
1981), a prima facie case of discrimination is established if a
miner proves by a preponderance of the evidence that (1) he
engaged in protected activity, and (2) the adverse action taken
against him was motivated in any part by that protected activity.
Pasula, 2 FMSHRC at 2799-2800; Robinette, 3 FMSHRC at
817-818. In order to rebut a prima facie case, an operator
must show either that no protected activity occurred or that
the adverse action was in no part motivated by protected
activity.
MSHA submits that a prima facie case of a violation of
section 105(c) of the ~ct has been proven in this case, and
that section 103(f) of the Act provides the statutory right
which gives rise to the protected activity at issue. MSHA
points out that section 103(f) provides rights to miners and
their representatives in connection with their participation
in MSHA inspections, and that in fulfilling his statutory
rulemaking mandate, the Secretary of Labor issued an Interpretative Bulletin at 43 Fed. Reg. 17546 (April 25, 1978) setting
forth the scope of section 103Cf). MSHA maintains that this

39

interpretative bulletin is entitled to deference unless it can
be said not to be a reasoned and supportable interpretation of
the Act, and that the courts have often held that considerable
respect is due the interpretation given a statute by the
officers or agency charged with its administration. Whirlpool
Corporation v. Marshall, 445 U.S. 1 (1980); Ford Motor Credit
Company v. Milhollin, 444 U.S. 555 (1980); Mourning v. Family
Publication Service, Inc., 411 U.S. 356 (1973); Skidmore v.
Swift & Company, 323 U.S. 134 (1944).
MSHA asserts that as set forth within the preamble of
the interpretative bulletin, the Department of Labor is
responsible for interpreting and applying the statutes which
it administers, and that publication of all interpretative
positions by the Department. is useful in informing the general
public and interested segments of the public of positions on
particular provisions of certain statutes. The deference to
be afforded interpretative bulletins has been specifically
addressed in matters arising under the Fair Labor Standards
Act of 1938 (29 U.S.C. § 201 et seq.). The regulatory provisions of the Fair Labor Standards Act specifically sets forth
that "such interpretations of the Act provide a practical
guide to employers and employees as to how the off ice representing the public interest in its enforcement will seek to
apply it" and "constitute a body of experience and informed
judgment to which courts and litigants may properly resort for
guidance." 29 C.F.R. § 779.9.
MSHA cites the introductory statement contained in the
interpretative bulletin, at 43 Fed. Reg. 17546, and maintains
that the bulletin explicity provides that a representative
authorized by the miners shall be given an opportunity to
accompany the inspector, ,and that an operator's refusal to
allow participation by a representative of miners is a violation of the Act which subjects the operator to a citation and
penalty under sections 104 and 105. MSHA points out that the
bulletin also cites the Congressional mandate that the scope
of the protected activities be broadly interpreted by the
Secretary to include participation in mine inspections, and
specifically states that "[a] refusal by an operator to comply with the requirements of section 103{f} is an act which
'interferes' with the exercise of statutory rights." Accordingly, MSHA concludes that the provisions of section 105{c}
apply to discrimination or interference with the inspection
participation right.
43 Fed. Reg. 17547.
MSHA argues that on the facts of this case, the respondent interferred with Mr. Mylan's and Mr. Poorman's statutory
rights to act as representatives of the miners at its No. 6

40

Preparation Plant, and that this interference constitutes an
adverse action against them because of their attempt to participate in protected activity.
MSHA maintains that the respondent's contention that
Mr. Mylan and Mr. Poorman engaged in no protected activity
because they were UMWA representatives and the UMWA had lost
a representation election is without merit. MSHA states that
the fact that the UMWA did or did not represent the respondent's miners pursuant to NLRB law does not foreclose representation pursuant to the Mine Act.
In support of its
argument, MSHA maintains that in 1978 the Secretary promulgated regulations at Part 40 which inter alia defined a representative of miners, and that the language of Part 40.l(b)
clearly sets forth that "any person or organization representing two or more miners at a coal mine is a representative of
miners for purposes of the Federal Mine Safety and Health Act
of 197'7." Moreover, MSHA points out that the preamble to
Part 40 specifically addresses the term "representative" as
it is applicable to NLRB law and the Mine Act, and states
that the Secretary, in addressing the comments filed during
MSHA's rulemaking, stated that a broad definition would be
preferable to a narrow one and that "any attempt to limit the
manner in which representatives are selected would be intrusive into labor-management relations at the mine and not in
keeping with the spirit if miner participation," 43 Fed.
Reg. 29508.
MSHA maintains that the selection of the UMWA as representative of miners in the instant proceeding meets the
Secretarial guarantees outlined above, and that the selection
of the UMWA as "miner representatives" on October 21, 1984,
by four miners who worked at the respondent's No. 6 Preparation Plant was in accordance with the Act and its implementing
regulations at Part 40.
MSHA also maintains that the argument that the UMWA representatives were not employees of the respondent, and thus not
able to represent the miners at the preparation plant is without merit. In support of this conclusion, MSHA cites Judge
Broderick's decision in Consolidation Coal Company v. United
Mine Workers of America, 2 FMSHRC 1403 (June 12, 1980),
affirmed by the Commission at 3 FMSHRC 617 (March 21, 1981),
holding that non-employees may be representatives of miners
within the meaning of the Act even though they failed to formally file as representatives pursuant to the Part 40
regulations.

4l

MSHA also relies on Judge Morris' decision in Emery
Mining Corporation v. MSHA and the UMWA, Intervenor, 8 FMSHRC
1182 (August 7, 1986), upholding a citation for a violation
of section 103Cf} of the Act because of Emery's refusal to
permit an international representative of the UMWA to accompany an MSHA inspector on an inspection of its mine without
first executing a waiver of liability. In that case, Judge
Morris specifically held that Congress contemplated that
non-employees may be representatives of miners, and that the
UMWA representative was within the "person or organization"
concept defined at Part 40.l(b). Further, Judge Morris
rejected Emery's argument that a distinction existed betweeen
employee and non-employee miners' representative, citing
footnote 18 of Council of Southern Mountains, Inc. v. Federal
Mine Safety and Health Review Commission, 751 F.2d 1418, 1419
CD.C. Cir. 1985), where the Court stated that the Mine Act
"merely refers to 'representatives' and does not articulate
any distinction between the rights of employees and
non-employee representatives." Judge Morris concluded that
both the individual international representative and the UMWA
met the definition of "miners' representative."
MSHA concludes that it is without question that the UMWA
and its representatives are proper representatives of miners
at the respondent's No. 6 Preparation Plant within the meaning of the Mine Act, and that the respondent's failure to
recognize this representative status because of an asserted
lost NLRB representation election is violative of the UMWA's
and its individual representatives' statutory rights under
section 103(f) of the Act. MSHA maintains that the Congressional purposes in enacting the Mine Act and the NLRB Act are
clearly distinct and separate.
It points out that the former
is a remedial statute designed to promote the safety and
health of the miner, and that Congress promulgated specific
individual statutory rights to miners as individual workers
not as members of any union, while the latter was designed to
minimize industrial strife and improve working conditions by
encouraging employees to promote their interests collectively.
Accordingly, MSHA further concludes that NLRB law and the
results of any NLRB election are not controlling in this
proceeding.
MSHA's Proposed Civil Penalty Assessment
In support of its proposal for a civil penalty assessment
for the respondent's violation of section 105(c) of the Act,
MSHA has submitted information with respect to the civil penalty criteria found in section llO(i) of the Act. MSHA

42

asserts that the respondent was negligent in refusing to recognize the statutorily guaranteed rights of miner representatives, and that its conduct in this regard displays a lack of
due diligence for the rights of miners and presents a "chilling effect" on thos~ rights. MSHA considers the violation to
be serious, and concludes that the respondent displayed no
good faith in attempting to abate the violation in that it
has remained adamant in its refusal to recognize the UMWA as
the miners' representative in this case.
MSHA's brief does not address the issue of the timeliness
of its complaint, and the respondent's request for a dismissal
on the ground that the complaint was not timely filed.
The UMWA's Arguments
The UMWA states that the respondent has admitted that it
received the designation of the UMWA pursuant to 30 C.F.R.
§ 40.3, as a representative of miners at the No. 6 Preparation Plant, which listed the complainants Mylan and Poorman
as the UMWA officials serving as representatives, and that it
also admits that it refused to permit Mr. Mylan and
Mr. Poorman to accompany an MSHA inspector on a spot inspection on October 31, 1985. The UMWA rejects the respondent's
argument that the UMWA cannot be a representative of miners
at the plant because it did not receive a majority of the
votes in a March 14, .1984, election conducted under the
National Labor Relations Act (NLRA) for selection of an exclusive collective bargaining agent, and because non-employees
may not serve as miners' representatives under the Mine Act
as totally groundless.
The UMWA asserts that its status as exclusive collective
bargaining agent under the NLRA is completely irrelevant to
its status as a representative of miners under the Mine Act.
In support· of its position, the UMWA points out that the Act
makes numerous references to miners' representatives for a
variety of purposes, and that one of the major functions of a
miners' representative is the walkaround right found in section 103(f). Although the Act does not define the term
"representative of miners" and the similar terms used throughout the sections of the Act footnoted at page 5 of its initial
brief, the UMWA points out that by rulemaking culminating on
July 7, 1978, the Secretary of Labor issued regulations which
at 30 C.F.R. § 40.l(b), defines the term as follows:

43

"Representative of miners" means:
ClJ Any person or organization which
represents two or more miners at a coal or
other mine for purposes of the Act, and
(2) ~Representatives authorized by the
miners1" "miners or their representative,"
"authorized miner representative," and other
similar terms as they appear in the Act.
The UMWA maintains that since it has been designated by
four miners as their representative at the preparation plant,
it is clearly an "organization which represents two or more
miners" at the plant and meets the facial definition of
"representative of miners" under 30 C.F.R. Part 40, and
nothing in that definition indicates that a "representative
of miners" must either have been selected by a majority of
all miners or have been certified as the exclusive collective
bargaining agent under the NLRA. In addition to the clear
language of section 40.l(b), the UMWA cites the preamble to
Part 40, 43 Fed. Reg. 29508 (July 7, 1978), which states in
pertinent part as follows:
[Some] commenters suggested that the National
Labor Relations Board CNLRB) definition of
representatives be applied while others suggested that the representatives should be
elected by a majority o • • •
[T]he NLRB
definition is inappropriate because the NLRB
definition of "Representative" concerns itself
with a representative in the context of collective bargaining. The meaning of the word
representative under.this Act is completely
different. Additionally the rights of
nonunion miners would be severely limited by a
definition of "Representative of Miners" based
on the collective bargaining concept. Furthermore, the "majority rule" concept is a fundamental component of the NLRB definition of
representative, which contemplates only one
union miner representative at each mine. The
purposes of the Mine. Act are better served by
allowing multiple representatives to be designated. This insures that all miners have the
opportunity to exercise their right to select
the representative of their choice for the
purpose of performing the various functions of

44

a representative of miners under the Act and
within the framework of each provision.
The UMWA argues that nothing in the Mine Act or its
legislative history indicates_ any Congressional intent to
limit a representative of miners under the Act to an organization or individual selected by a majority of the miners or to
an organization certified as the exclusive bargaining agent
under the NLRA. The UMWA points out that the Secretary of
Labor, who is charged with enforcing the Mine Act and promulgating regulations thereunder, has determined precisely the
opposite through careful rulemaking proceedings, in which the
respondent's precise argument was rafsed, considered fully,
and rejected.
Citing United Mine workers v. FMSHRC, 671 F.2d 615, 626
(D.C. Cir. 1982) and Magma Copper co. v. Secretary of Labor,
645 F •. 2d 694, 696 (9th Cir. 1981), the UMWA further points
out that the Courts have held that safety legislation is to
be liberally construed to effectuate the congressional purpose and that deference is to be given to the Secretary's
reasoned and reasonable statutory construction as enunciated
in his promulgated regulations. The UMWA concludes that the
Secretary's regulatory definition of ••representative of
miners" is "a reasoned and supportable interpretation of the
Act," and that the UMWA, designated by four miners at the
No. 6 Preparation Plant, is not precluded from being a "representative of miners" within the meaning of 30 C.F.R. § 40.l(b)
and the Mine Act merely because it lacks certification as the
exclusive collective bargaining agent under the NLRA.
The UMWA finds no merit in the respondent's contention
that the UMWA and its safety and health representative cannot
be representatives of miners under the Mine Act because they
are not employed by the respondent. In support of its argument, the UMWA maintains that one of the most important functions of a miners' representative under the Act is the
inspection walkaround right under section 103(£). Quoting
the pertinent provision of that section which provides that
"such representative if miners who is also an employee of the
operator shall suffer no loss of pay during the period of his
participation in the inspection made under this subsection,"
the UMWA suggests that if all miners' representatives were
required to be employees of the operator, the emphasized
language would be meaningless surplusage. The UMWA concludes
that Congress obviously contemplated and intended that
non-employees, as well as employees, could be designated as
representatives of miners, and that Commission Judges
Broderick and Morris reached precisely this conclusion in

45

Consolidation Coal Co. v. UMWA, 2 FMSHRC 1403, 1408 (1980),
and Emery Mining Corp. v. secretary of Labor, 8 FMSHRC 1182,
1202 (1986) (review pending).
In addition, the UMWA pants out that its safety and
health representatives receive much the same training as MSHA
gives to its inspectors, and that permitting non-employees to
serve as miners' representatives furthers the purposes of the
Act by allowing participation by representatives specially
trained in safety and health matters.
In further response to the respondent's arguments, the
UMWA asserts that the purpose of a walkaround representative
under section 103(f) is not to represent all of the miners
for purposes of collective bargaining, but rather, to assist
MSHA and the miners who have selected him in enforcing the
statutory and regulatory safety and health standards. The
UMWA concludes that nothing in the Act or 30 C.F.R. Part 40
requires that a miners' representative be the exclusive representative for purposes under the Act, or represent all miners,
or be selected by a majority of miners. Quite the contrary,
as stated by the Secretary in the preamble to Part 40, "the
rights of nonunion miners would be severely limited by a
definition of 'Representative of Miners' based on the collective bargaining concept. Furthermore, • • • [t]he purposes of
the Mine Act are better served by allowing multiple representatives to be designated." 43 Fed. Reg. 29508 (July 7, 1978).
The UMWA further concludes that its designation as a
representative of miners under the Act does not mean that the
other miners employed at the respondent's No:-I Strip Mine
have been forced to accept the UMWA as their representative
under the Act by the action of four individuals because no
exclusive representative "for the purposes of collective~bar
gaining" under section 9Ca> of the NLRA has been selected by
the Part 40 designation involved in this case, nor have the
rights of any or all other respondent's miners to select one
or more other representatives under the Act been interferred
with in any manner. Those miners are free to designate any
representative(s) they choose, or to continue not to designate other representatives under Part 40.
Finally, the UMWA concludes that the respondent's refusal
to permit the complainants to accompany an MSHA inspector during the inspection on October 31, 1985, interferred with the
exercise of their statutory rights under section 103(f) of the
Act, and therefore was a violation of section 105(c)(l) of the
Act. Under the circumstances, the UMWA asserts that the

46

respondent was properly cited for a violation and that a civil
penalty for that violation must be assessed.
Findings and Conclusions
In order to estaolish a prima facie case of discrimination under section 105(c) of the Mine Act, the complainants
bear the burden of production and proof to establish (1) they
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub. nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); and Secretary on behalf of Robinette v. United Castle
Coal Company, 3 FMSHRC 803 (1981). Secretary on behalf of
Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984).
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.
If an operator
cannot rebut the prima facie case in this manner it may nevertheless affirmatively defend by proving that Cl) it was also
motivated by the complainants• unprotected activities alone.
The operator bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC
1935 (1982)~ The ultimate burden of persuasion does not shift
from the complainant. Robinette, supra. See also Boich v.
FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford
Construction Company, No. 83-1566, D.C. Cir. {April 20, 1984)
(specifically approving the Commission's Pasula-Robinette
test). See~ NLRB v. Transportation Management Corporation,
U.S.
, 76 L.Ed.2d 667 (1983).
The respondent in this case is charged with a violation
of section 105(c)(l) of the Act for allegedly interferring
with the asserted statutory right of the complainants to
accompany an MSHA inspector during his inspection rounds in
their capacity as the designated miners' walkaround representatives pursuant to section 103(f) of the Act. The undisputed
facts establish that on October 21, 1985, four miners working
at the respondent's No 6 Preparation Plant designated the UMWA
as their representative in the exercise of their rights under
the Act, and that the UMWA in turn designated complainant
Barry Mylan as its representative, and complainant Lester
Poorman as its alternate representative. Mr. Mylan and
Mr. Poorman are employed by the UMWA as health and safety
representatives and are not employed by the respondent.
The
designation of Mr. Mylan and Mr. Poorman as the representative
of the miners was filed with MSHA's District Office pursuant
to 30 C.F.R. § 40.3, and a copy was served on the respondent.

47

It is also undisputed that on October 31, 1985, an MSHA
inspector visited the mine for the purpose of conducting a
section 103(g)(l) spot inspection, and when Mr. Mylan and
Mr. Poorman attempted to accompany the inspector on his
inspection rounds in their capacity as the miners' designated
walkaround representative, the respondent ordered them off
the property and would not permit them to accompany the
inspector.
Section 105(c)(l) of the Act provides in pertinent part
as follows:
No person shall discharge or in any manner
discriminate against or otherwise interfere
with the exercise of the· statutory rights of
any miner, representative of miners * * * in
any coal or other mine subject to this Act
* * * because of the exercise by such miner,
representative of miners * * * on behalf of
himself or others of any statutory right
afforded by this Act.
(Emphasis added).
Section 103(f) of the Act, commonly referred to as "the
walkaround right," provides as follows:
Subject to regulations issued by the
Secretary, a representative of the operator
and a representative authorized by his miners
shall be given an opportunity to accompany the
Secretary or his authorized representative
during the physical inspection of any coal or
other mine made pursuant to the provisions of
subsection (a), for the purpose of aiding such
inspection and to· participate in pre- or
post-inspection conferences held at the mine.
Where there is no authorized miner representative, the Secretary or his authorized representative shall consult with a reasonable number
of miners concerning matters of health and
safety in such mine. Such representative of
miners who is also an employee of the operator
shall suffer no loss of pay during the period
of nis participation in the inspection made
under this subsection. To the extent that the
Secretary or authorized representative from
each party would further aid the inspection,
he can permit each party to have an equal number of such additional representative of miners

48

who is an employee of the operator shall be
entitled to suffer no loss of pay during the
period of such participation under the provisions of this subsection. Compliance with this
subsection shall not be a jurisdictional prerequisite to the enforcement of any provision of
this Act.
(Emphasis added).
The critical issue in this case is the interpretation to
be placed on the term "miner representative" or "authorized
representative" of miners. The respondent's principal contention is the assertion that the UMWA could not be the "miner
representative" or "authorized representative" of miners at
its preparation plant because the UMWA lost a representation
election conducted by the NLRB, and that the designation by
four miners of the UMWA as their representative is inconsistent with both the Mine Act and the National Labor Relations
Act because there is no authority allowing two or more miners
to select a representative for many times that number of
miners at the mine. Respondent suggests that the purpose of
the Mine Act is better served by allowing a majority of the
miners to select their own representative, and that to permit
four miners to designate the UMWA as their representative
impedes the "freedom of choice" available to the other miners,
and flies in the face of the statutory scheme of the National
Labor Relations Act and the Mine Act.
As correctly stated by the parties, the Mine Act does
not specifically define the term "representative of miners, 11
nor does it set out all of the parameters of the statutory
right of a miner's representative to serve as a walkaround in
a representative capacity. However, in the exercise of his
rulemaking authority pursuant to the Act, the Secretary of
Labor on April 25, 1978, issued an Interpretative Bulletin at
43 Fed. Reg. 17546, setting forth the scope of the walkaround
provisions· of section 103(f}. The bulletin in pertinent part
provides as follows:
The Federal Mine Safety and Health Act of
1977 (Pub. L. 91-173, as amended by
Pub. L. 95-164, November 9, 1977) (hereinafter
referred to as the Act) is a Federal statute
designed to achieve safer and more healthful
conditions in the nation's mines. Effective
implementation of the Act and achievement of
its goals depend in large part upon the active
but orderly participation of miners at every

49

level of safety and health activity. Therefore, under the Act, miners and representatives of miners are afforded a wide range of
substantive and procedural rights.
Section 103(f) provides an opportunity
for the miners, through their representatives,
to accompany inspectors during the physical
inspection of a mine, for the purpose of aiding
such inspection, and to participate in pre- or
post-inspection conferences held at the mine.
As the Senate Committee on Human Resources
stated, 'If our national mine safety and health
program is to be truly effective, miners will
have to play an active part in the enforcement
of the Act.' S.Rep. No. 95-181, 95th Cong.,
1st Sess., at 35 (1977).
In recognition of the fact that the Act does not contain
a definition of the term "representatives of miners," the
Secretary of Labor, on July 7, 1978, acting under his authority found in section 101 of the Act to promulgate and revise
mandatory standards, promulgated 30 C.F.R. Part 40, governing
the identification of representatives of miners and setting
forth the filing requirements for such representatives,
43 Fed. Reg. 29508, July 7, 1978.
30 C.F.R. § 40.l - Definitions, in pertinent part
provides:
Cb)

"Representative of miners" means:

Cl) Any person or organization which
represents two or more miners at a coal or
other mine for the purposes of the Act, and
(2)
"Representatives authorized by the
miners," "miners or their representatives,"
"authorized miner representative," and other
similar terms as they appear in the Act.
30 C.F.R. § 40.2 - Requirements, in pertinent part
provides:
(a) A representative of miners shall
file with the Mine Safety and Health Administration District Manager for the district in
which the mine is located the information
required by § 40.3 of this part. Concurrently,

50

a copy of this information shall be provided to
the operator of the mine by the representative
of miners.
In my view, the term "representatives of miners" for purposes of the Mine Act was clearly defined by the Secretary
when the aforementioned regulations were promulgated. During
the rulemaking process, several commenters expressed concern
that the regulatory definition found in section 40.1 was overly
broad and would cause confusion among miners selecting a representative. Some commenters suggested that the NLRB definition
of representative be applied while others suggested that miner
representatives should be elected by a majority of the miners.
In addressing these comments, the Secretary stated that a broad
definition would be preferable to a narrow one and that "any
attempt to limit the manner in which representatives are
selected would be intrusive into labor-management relations at
the mine and not in keeping with the spirit of miner participation," 43 Fed. Reg. 29508, July 7, 1978. Additionally, the
Secretary stated that:
[M]ore specifically, the NLRB definition is
inappropriate because the NLRB definition of
"Representative" concerns itself with a representation in the context of collective bargaining, the meaning of the word representative
under this Act is completely different. Additionally, the rights of nonunion miners would
be severly limited by a definition of "Representative of Miners" based on the collective
bargaining concept. Furthermore, the "majority
rule" concept is a fundamental component of the
NLRB definition of representative, which contemplates only one union miner representative at
each mine. The purposes of the Mine Act are
better served by allowing multiple representatives to be designated. This insures that all
miners have the opportunity to exercise their
right to select the representative of their
choice for the purpose of performing the various functions of a representative of miners
under the Act and within the framework of each
provision.
(Emphasis added).
In view of the foregoing, it seems clear to me that in
addressing the very concerns raised by the respondent with
respect to the application of the collective bargaining provisions of the National Labor Relations Act with respect to the
definition of the term "representative," the Secretary, in

51

promulgating Part 40 clearly distinguished the NLRB law and
the Mine Act purposes and rejected any notion that a representative of miners can only be based on any "majority rule."
Under the circumstances, I conclude and find that the respondent's arguments with respect to the application of NLRB law
in this case are without merit, and they are rejected. I
agree with the arguments advanced by MSHA and the UMWA on
this issue, and conclude that the fact that the UMWA may not
represent the respondent's miners for purposes of NLRB or
NLRA collective bargaining purposes does not foreclose its
representation of the miners who designated it to act as their
representative in the exercise of their rights under the Mine
Act.
The regulatory definition of the term "representative of
miners" as found in 30 C.F.R. § 40.l includes any person or
organization which represents two or more miners. Section
40.2(b) provides that miners or their representatives ~
appoint or designate different persons to represent them under
various sections of the Act relating to representatives of
miners. On the facts of this case, there is no question that
the four miners working at the preparation plant designated
the UMWA as their representatives, and that the UMWA designated Mr. Mylan and Poorman to serve in their representative
capacity on behalf of the four miners.
The respondent's suggestion that the designation of the
UMWA by the four miners in question is binding on all miners
at the mine and has resulted in the loss of individual rights
for all remaining miners is not well taken. The issue is not
whether the UMWA represents all miners for all purposes under
the Mine Act. The issue is whether or not the respondent
interferred with Mr. Mylan's and Mr. Poorman•s right to accompany the inspector as the·walkaround representative of the
four miners who designated the UMWA as their representative.
As far as the other miners are concerned, under the regulations found in Part 40, they are free to designate any individual or organization to act as their representative for
purposes of MSHA inspection walkarounds.
If they choose not
to select the UMWA, that is their business.
The respondent's contention that Mr. Mylan and
Mr. Poorman may not serve as miners' representatives because
they are employed by the respondent is rejected. As pointed
out by MSHA and the UMWA in their briefs, this issue has previously been raised in Commission cases decided by Judge
Morris and Judge Broderick, in Consolidation Coal Company v.
United Mine Workers of America, 2 FMSHRC 1403 <1980), and
Emery Mining Corp. v. Secretary of Labor, 8 FMSHRC 1182

52

(1986).
I agree with those decisions, and find nothing in
the Act or MSHA's Part 40 regulations which makes distinctions between the rights of employees and non-employee miners'
representatives.
I conclude and find that the complainants in this case
were the duly designated walkaround representatives of the four
miners who so designated them, and they had a statutory right
pursuant to section 103(f) accompany the inspector during his
inspection on October 31, 1985. In a recently decided walkaround discrimination case, Secretary ex rel. Richard Truex v.
Consolidation Coal Company, 8 FMSHRC 1293, September 25, 1986,
the Commission stated that "[t]he language of section 103(f),
providing that 'a representative authorized by his miners shall
be given an opportunity to accompany the Secretary,' unambiguously provides that miners possess the right to choose their
representative for section 103(f} inspections * * *,"
8 FMSHRC 1298. Further, the legislative history of section
103(f} clearly shows that Congress recognized the important
function served by such a right. The Senate Report stated, "It
is the Committee's view that [participation in inspections and
pre- and post-inspection conferences] will enable miners to
understand the safety and health requirements of the Act and
will enhance mine safety and health awareness." S. Rep.
No. 181, 95th Cong., 1st Sess. 28-29 Cl977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong. 2nd Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 616-17 (1978) ("Legis.
Hist ")o See also Magma Copper Co., 1 FMSHRC 1948, 1951-52
December 1979), aff'd, Magma Copper Co. v. FMSHRC, 645 F2d 694
(9th Cir. 1981), cert. denied, 454 U.S. 940 (1981).
I further conclude and find that the respondent's refusal
to allow Mr. Mylan and Mr. Poorman to accompany the inspector
during his inspection on October 31, 1985, violated their protected statutory rights under section 103{f) to serve as the
representative of the miners who so designated them, and constituted an unlawful interference with their protected rights
under section 105(c)(l) of the Act. Accordingly, the complaint
filed in this case IS AFFIRMED.
Respondent's Request for Dismissal of the Complaint as
Untimely
After due consideration of the respondent's arguments
concerning the late-filing of the complaint, they are
rejected, and the respondent's request for a dismissal of the
complaint on this ground IS DENIED.
It has been held that
the filing deadlines found in section 105(c) of the Act are

53

not jurisdictional in nature, Christian v. South Hopkins Coal
Company, 1 FMSHRC 126, 134-136 (1979); Bennett v. Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539 (1981). Further,
as remedial legislation, the Act should be liberally construed
so as not to unduly prejudice miners for MSHA's delay in filing its complaint. In this case, I find no protracted delay
on MSHA's part, nor can I conclude that the delay has prejudiced the respondent in its ability to present its defense.
Civil Penalty Assessment
On the facts of this case, I do not consider the violation to be egregious. MSHA's suggestion that the respondent
displayed a lack of good faith by adamantly refusing to recognize the UMWA as the miner representative in this case is not
well taken. Given the protracted and somewhat nasty legal
dispute surrounding the contested NLRB collective bargaining
election, I find no basis for unduly penalizing the respondent
for its legal position taken in this case. Under the circumstances, and after consideration of the civil penalty criteria
found in section llO(i) of the Act, I conclude that a civil
penalty assessment of $100 is reasonable and appropriate in
this· case.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED THAT:
1. The respondent cease and desist from
prohibiting the UMWA or its designated health
and safety representatives who have been designated by the four miners at the respondent's
No. 6 Preparation Plant as their representatives from accompanying MSHA inspectors as
walkaround representatives during their mine
inspections.
2. The respondent post a copy of this
decision on the mine and preparation plant
bulletin boards or at other locations readily
available or accessible to miners.
3. The respondent remit to MSHA a civil
penalty assessment in the amount of $100 for
its violation of section 105(c)(l) of the Act.

54

Full compliance with this Order is to be made by the
respondent within thirty (30) days of the date of this
decision.

&ff!d" /i:fz;t;M

(f
'/I~{!fg~
Koutras
~dministrative Law Judge
Distribution:

Covette Rooney, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 {Certified Mail)
Vasilis

c. Katsafanas, Esq., Berkman, Ruslander, Pohl, Lieber

& Engel, 40th Floor, One Oxford Centre, Pittsburgh, PA
15219-6498 (Certified Mail>
Mary Lu Jordan, Esq., United Mine Workers of America,
900 15th Street, N.W., Washington, DC 20005 (Certified Mail)
Dennis D. Clarke, Esq., 1615 L Street, N.W., Suite 1360,
Washington, DC 20036 (Certified Mail)

/fb

55

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 CMSHA),
Petitioner

JAN 9 1987

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 85-125-M
A.C. No. 05-04014-05501
Docket No. WEST 85-126-M
A.C. No. 05-04014-05502

v.
JEFFERSON COUNTY ROAD &
BRIDGE DEPARTMENT,
Respondent

.

Docket No. WEST 85-127-M
A.C. No. 05-04014-05503
Harris Pit

DECISION
Appearances:

Robert Lesnick, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Cile Pace, Esq., Jefferson County Road & Bridge
Department, Golden, Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating safety
regulations promulgated under the Federal Mine Safety and Health
Act, 30 u.s.c. § 801 et seg., {the Act).
A hearing on this matter took place on December 11, 1985 in
Denver, Colorado.
The parties filed extensive briefs in support of their
positions.
Issues
The issues are whether the Secretary has enforcement
authority over respondent and, if so, may the Secretary assess
civil penalties.
Stipulation
At the hearing the parties stipulated that if respondent is
held to be subject to the Act and not entitled to a CAV inspection then respondent does not challenge the individual
citations and penalties in the cases (Tr. 5, 6).

56

The parties further stipulated that the respondent, in its
mining operations, uses equipment manufactured outside of the
State of Colorado (Tr. 21).
Summary of the Evidence
The threshold issues require a review of the evidence. Bud
Smead, Sam Nankervis and Louis Gabos testified for respondent.
Jake DeHerrera and Arnold Kerber testified ·for the Secretary.
Bud Smead has been the Director of Public Works for
Jefferson County, Colorado since 1978. The county operates five
gravel pits called Harris, Dog Pound, Green Valley, Golden Gate
and Pine Junction (Tr. 8-10). Smead is in charge of the County's
Road and Bridge Department which is within the Public Works
Division (Tr. 9).
Jefferson County does not sell any of its gravel. It is
used exclusively for the surfacing of Jefferson County roads.
Some of those roads connect to state and federal highways ·(Tr. 9,
14}.

The operation of a Jefferson County gravel mine is approved
by the County Commissioners of Jefferson County and by the State
of Colorado Board of Mine, Land and Reclamation (Tr. 9, 10).
Mr. Smead indicated the county requested a CAV inspection.
Mr. Gabos made an oral request for such an inspection (Tr. 13).
Sam Nankervis, director of the Jefferson County Road and
Bridge Department, is responsible for maintenance and crushing
for Jefferson County. The county has sustained one loss time
accident (Tr. 15, 16).
The witness was first aware of the events after Lou Gabos
called MSHA representative Carmoc Gardner for what the county
thought would be a courtesy inspection (Tr. 18). The request for
the CAV was after they had moved the crusher to a different pit.
MSHA said they would inspect but it would not be a "courtesy"
inspection (Tr. 19, 20).
Louis Gabos, a professional engineer and assistant director
of the Jefferson County Road and Bridge Department, handles reports for the federal government and for land reclamation (Tr.
22, 26). Witness Gabos filled out the MSHA form and indicated
the official business name as "Jefferson County Road and Bridge
Department 11 (Tr. 26) •
On March 18 Gabos called Gardner at MSHA. · He said they wer:e
ready and running but he didn't mean they were crushing anythi
CTr. 23). Gardner said there could be no courtesy inspection
the pit was in operation (Tr. 23).

57

The current practice of the respondent is to call MSHA when
they move from one mine to another.
Every time they now move
they receive a courtesy inspection (Tr. 24).
Gabos filled out the MSHA legal identity form at the
direction of his supervisor, Sam Nankervis (Tr. 26; Ex. 1). The
form was dated July 12, 1985 <Tr. 27). All of the county gravel
pits are titled in the same fashion (Tr. 28).
Gabos indicated the county complies with safe m1n1ng
practices but they are not required to do _so (Tr. 28, 29).
Jake DeHerrera, an MSHA inspector experienced in mining,
inspected the Jefferson County pits (Tr. 30, 31).
At one point in time there was a lack of funds to inspect
such pits. But he visited the site when he was advised they had
been funded to inspect such property (Tr. 32, 33).
A CAV inspection is to assist the operator in complying with
the Act prior to a mine reopening after it has been shut down for
a time. For such a CAV inspection MSHA requires two weeks notice
in writing.
Further, MSHA requires that pit not be in operation
(Tr. 33). Penalties are not issued under a CAV inspection <Tr.
34) •

In January 1985 the Dog Pound pit was in operation and in
the process of stock piling material. The inspector observed
four to six workers in the area (Tr. 34).
Arnold Kerber; an MSHA inspector since 1974, visited the Dog
Pound pit in January 1985.
He also visited the Harris Pit on
March 21, 1985 and issued 20 or 21 citations (Tr. 38-41).
The parties stipulated that the pit was in operation at the
time of the inspection CTr. 42).
Discussion
The County argues that the Secretary lacks authority to
enforce the federal Mine Act against respondent for a number of
reasons.
Initially, it is asserted that Congress in passing the Act
did not intend to regulate states or political subdivisions
thereof. This is so because neither the statutory definition of
"operator" or "person" speak to the regulation of state or local
governments. Cognizant of federalism concerns, Congress explicitly brings state and local governments within the purview
of the statutory scheme if it intends to regulate their activity.
For example, Congress so acted in amending the Fair Labor
Standards Act, 29 u.s.c. § 203(d), (x),
See also Garcia v. San
Antonio Mass Transit Authority
U.S.
, 105 s. Ct. 1005
(1985).
58

This issue is a matter of statutory construction and
legislative intent.
The federal Mine Act defines an operator as "any owner,
lessee, or other person who operates, controls, or supervises a
coal or other mine ••• 11 (emphasis added) 30 U.S.C. § 802. In the
preamble of the Act Congress explicitly stated that it recognized
"the existence of rinsafe and unhealthful conditions and practices
in the Nation's ••. mines {emphasis added). Accordingly, the Act
was promulgated to meet the "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 bodily harm •.• " (emphasis added).
It is apparent here
that a mine operated by a county is one of the Nation's mines.
The Act was designed and Congress declared that 11 the first
priority of all in the coal or other mining industry must be the
health and safety of its most precious resource - the miner", 30
u.s.c. § 801.
A casual reading of the legislative history establishes the
clear intent of Congress. Senate Report No. 95-181 shows the
congressional views:
The Committee believes that it is essential that there be
a common regulatory program for all operators and equal
protection under the law for all miners. Thus, a
principal feature of the bill is the establishment of a
single mine safety and health law applicable to the entire
mining industry.
Further, the Committee notes that there may be a need to
resolve jurisdictional conflicts, but it is the Committee's intention that what is considered to be a mine
and to be regulated under this Act be given the broadest
possibly interpretation, and it is the intent of this Committee that doubts be resolved in favor of inclusion of a
facility within the coverage of the Act. (Emphasis added).
Sen. Report, 95th Congress, 1st Session (1977> reprinted in
the Legislative History of the Federal Mine Safety and Health Act
of 1977, 95th Congress, 2nd Session, 601, 602.
Sand, gravel and crushed stone operations, whether privately
operated or operated by a local government unit have been covered
by the federal mine safety law since 1966 when the Federal Metal
and Nonmetallic Mine Safety Act (Metal Act) was enacted.
Historically there has never been any serious question that sand
and gravel are minerals and that their extraction is mining,
Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d 589 (3rd
Cir., 1979); Marshall v. Nolichucky Sand Co. Inc., 606 F.2d 693
(6th Cir., 1979). Sand and gravel operations are classical

59

mining operations. The methods and equipment used in sand and
gravel mining are similar, if not identical to, the methods and
equipment used in the mining of many other minerals. The hazards
faced by workers engaged in extracting sand, gravel, and crushed
stone are similar and in many cases they are identical to the
hazards faced in other mining operations.
The Metal Act was repealed in 1977 and all mining operations
were placed under the present statute. However, the safety and
health standards applicable to sand, gravel, and crushed stone
operations issued under the Metal Act continue in effect under
the 1977 Act.
Because sand, gravel, and crushed stone operations are
"mines" as defined in section 3Ch)(l) of the Act, they are
subject to the provisions of the Act and the regulations issued
thereunder. The fact that a pit is operated by a governmental
unit rather than a private party is immaterial. When a state or
local government engages in an activity subject to Congressional
regulation, such as in operating a railway or a mine, the state
or local government is subject to regulation in the same manner
as a private citizen or corporation. Parden v. Terminal Ry. of
Ala. State Docks Dept, 377 U.S. 184, 84 s. Ct. 1207 (1964).
Respondent further argues that Congress explicitly brings
state and local governments within the purview of the statutory
scheme if it intends to regulate their activity citing such
legislative action in amending the Fair Labor Standards Act, 29
u.s.c. § 203{d)(l) and relying on Garcia v. San Antonio Mass
Transit Authority, supra.
I agree that Congress certainly may legislate by
particularly naming those entities that are subject to the
legislation. In fact, Congress did so in extending minimum wage
coverage over a period of time and gradually expanding the coverage.
When FLSA was enacted in 1938, its wage and overtime
provisions did not apply to local mass-transit employees, the
subject of the Garcia case, §§ 3{d), 13(a)(9), 52 Stat, 1060,
1067. In 1961 Congress extended minimum wage coverage to
employees of any mass-transit carrier whose annual gross revenue
was not less than one-million. Fair Labor Standards Amendments
of 1961, §§ 2(c)9, 75 Stat. 65. 71. In 1966 Congress extended
FLSA coverage to state and local government employees for the
first time. Fair Labor Standards Amendments of 1966, §§ 102Ca)
and (b), 80 Stat. 831. In 1974 Congress provided for the progressive repeal of the surviving overtime exemption for mass
transit employees. Fair Labor Standards Amendments of 1974,
§ 2l(b), 88 Stat. 68.
At the same time Congress simultaneously
brought the states and their subdivisions further within the
ambit of the FLSA by extending FLSA coverage to virtually all
state and local government employees, §§ 6(a)(l) and (6), 88 Stat
58.60, 29 U.S.C. § 203(d) and (1).

60

As noted above Congress gradually expanded FLSA coverage and
finally specifically included states and local governments.
Congress could have specifically named the states and counties in
the Mine Act but it is not obliged to legislate in that fashion.
In addition, the gradual extension of the FLSA coverage indicates
a piece-meal approach to coverage under that Act. A similar
legislative approach did not occur in the enactment of the
federal Mine Act. The broad statutory definition supported by
the legislative history establish that Congress intended to include all mines and miners within the ambit of the federal Mine
Act.
Respondent further contends that its gravel pits are not
subject to the Act's coverage because its products neither enter
commerce nor affect it.
The evidence is uncontroverted that the gravel from the respondent's mines is not sold. It is, in fact, used exclusively
to surface the county roads.
In addition, Jefferson County's
roads do not extend beyond the boundaries of the State of
Colorado. The Act encompasses within its coverage the following:
Each coal or other mine, the products of which enter
commerce, or the operations or products of which affect
commerce, and each operator of such mine, and every miner
shall be subject to the provisions of this chapter.
30
u.s.c.A. § 803.
Further, commerce is defined as follows:
Cb) "commerce" means trade, traffic, commerce, transportation, or communication among the several States, or
between a place in a State and any place outside thereof,
or within the District of Columbia or a possession of the
United States, or between points in the same State but
through a point outside thereof. 30 U.S.C.A. § 802 (b}.
The issue to be addressed is whether the county's gravel
operations "affect commerce." As a threshold matter the term
"affecting commerce" has been given a broad judicial interpretation. Garcia v. San Antonio Mass Transit Authority, supra;
Marshall v. Kraynack, 604 F.2d 231 (3rd Cir. 1979); Godwin v.
OSHRC, 540 F.2d 1013 (1976) (9th Cir): United States v. Dye
Construction Co., 510 F.2d 78 (1978) (10th Cir.); Brennan v.
OSHRC, 492 F.2d 1027 (2d Cir. 1974); Wickard v. Filburn, 317 U.S.
111, 63 S. Ct. 82.
In the instant cases the parties stipulated that the county
uses equipment in its mines manufactured outside of the state.
Such activity clearly "affects commerce" as stated in the above
cited case law •
. Morton v. Bloom, 373 F. Supp. 797 CD.C. Pa. 1973), relied on
by respondent, presents a unique factual situation of a mine
operated by one man.
In that circumstance, the Court ruled that
61

the local nature of the mine did not affect commerce. The case
has not been followed as precedent for later decisions. In
short, it appears to have a very narrow application not
applicable here.
The Commission has yet to consider the jurisdictional issues
raised here but decisions by judges of the Commission have held
that a governmental gravel operation is subject to the federal
Act. New York State Dept of Transportation, 2 FMSHRC 1749
(1980), Laurenson, J.: Island County Highway Department, 2 FMSHRC
3227 (1980), Morris, J; Salt Lake County Road Dept, 2 FMSHRC 3409
(1980), Vail, J.
Respondent further contends that the Jefferson County Road
and Bridge Department is not a legal entity. It is, therefore,
not subject to suit under Colorado law. Further, it is not
subject to service within the federal system, citing Rule
4(d)(6), F.R. Civ.P.
The respondent here is "Jefferson County Road and Bridge
Department". The evidence at the hearing shows that Louis Gabos,
assistant director of the department, filled out the MSHA legal
identity form at the direction of his supervisor. Only one legal
identity form appears in the record but witness Gabos indicated
they were all titled in the same fashion. The form contains the
federal identification number as well as the mine name and its
address. In Government Exhibit 1 the mine name is identified as
"Public Works Quarry #5 (formerly called Harris Pit)" and under
address there appears 11 Jef ferson County Road and Bridge Dept/Divis ion of Public Works."
The Secretary's regulations as set for at 20 C.F.R. § 41.10
et seq. require the operator of a mine to file with the Secretary
of Labor the legal identity of the operator of a mine and the
regulation further requires the reporting of all changes in the
legal identity as they occur. The regulations further state that
"[t]he submission of a properly completed Legal Identity Report
Form No. 2000-7 ••• will constitute adequate notification of
legal identity to the Mine Safety and Health Administration".
Since respondent identified itself as the "Jefferson County
Road and Bridge Department" it is hardly in a position to disavow
its own representations. In any event this is not a proceeding
under the Colorado statutes but it is an adjudicatory proceedings
provided for in 30 U.S.C. § 113(a) and its Rules of Procedure, 29
C.F.R. § 2700 et seg.
Respondent's reliance on Rule 4{d){6), F.R Civ. P. meets the
same infirmity. To like effect on the issue of incorrectly
naming a respondent in notices of violation and petition for
assessment see the case decided by the Interior Board of Mine
Operations in Harlan No. 4 Coal Company, 4 IBMA 241 (1975).

62

The final issue concerns the assessment of civil penalties.
Respondent argues that the Act is replete with provisions demonstrating congressional intent to cooperate with states.
Secondly, the federal government is cognizant of the need for
fiscal independence of states and their political subdivisions.
Thirdly, the imposition of fines will not foster mine safety and
respondent immediately abated the violative conditions.
I agree with respondent that the federal Act is replete with
legislative assertions of cooperation. Further, the federal
government is cognizant of the financial status of the states.
However, I believe the imposition of penalties will foster mine
safety. Such penalties, as well as further sanctions carefully
structured under the Act, as in Section 104(d), can provide a
strong incentive for a gravel operator to comply with safety
regulations. Further, the text and legislative history of
Section 110 of the Act require the Secretary to propose a penalty
assessment for each violation and the Commission and its judges
to assess some penalty for each violation found. Tazco Inc., 3
FMSHRC 1895 (1981). Nominal penalties have been assessed in
extenuing circumstances as in Potochar and Potochar Coal Company,
4 IBMA 252, 1 MSHC 1300 (1975}. However, the primary reasons for
assessing civil penalties is to deter future violations. Eddie
Higgs, d/b/a Higgs Trucking Co., 6 FMSHRC 1215 (1984).
Respondent here continues to operate its quarries and civil
penalties are therefore appropriate.
Respondent further asserts that no penalties should be
aesessed because respondent was entitled to a CAV inspection. If
respondent was entitled to such an inspection then no penalties
should have been proposed.
The parties presented evidence concerning the nature of the
alleged CAV inspection but neither parties offered any evidence
concerning any regulation or other authority for such an
inspection. Accordingly, the judge issued a post-trial order
directing each party to submit any relevant regulation or other
authority for such an inspection.
Respondent did not reply. The Secretary, although denying
its applicability, filed a copy of an internal MSHA memorandum
from Robert B. LeGather, assistant Secretary for Mine Safety and
Health.
The broad thrust of the memorandum focuses on the
proposition that under Section 502 of the Mine Act the MSHA
inspectors are authorized to visit mine sites to point out
potential violations where such calls involve (1) new mines not
yet producing, (2) seasonal, closed or abandoned mines prior to
opening and (3) new installations in mines prior to their
becoming operational. Generally, the directive provides that if
the inspector observes a violative condition he will issue a
notice but no penalty will be assessed or proposed.

63

The evidence here shows that respondent was not entitled to
a CAV inspection since its pits were in operation at the time of
the inspection. The evidence shows that Lou Gabos, according to
witnesses Smead and Nankervis, called MSHA's Gardner and requested a courtesy inspection (Tr. 18).
The testimony of witnesses Smead and Nankervis is not
persuasive particularly when it was contradicted by witness Gabos
himself who stated that the mine was in operation when MSHA first
appeared to inspect it (Tr. 22).
I accordingly reject respondent's evidence and credit MSHA's
evidence that in January 1985, at the Dog Pound pit the inspector
observed four to six workers in the area. The pit was then in
operation and they were stock piling material.
Concerning the Harris pit, the parties stipulated that it
was in operation when inspector Kerber conducted his inspection
(Tr. 40-42).
Respondent currently relies on the CAV inspection process
when moving to new sites CTr. 23-24). However, respondent was
not entitled to a CAV inspection on the date the citations were
issued in the cases at bar.
For the foregoing reasons the threshold contentions raised
by respondent are rejected.
Briefs
The parties have filed detailed briefs which have been most
helpful in analyzing the record and defining the issues. I have
reviewed and considered these excellent briefs. However, to the
extent they are inconsistent with this decision, they are rejected.
Conclusions of Law
Based on the stipulation of the parties, the entire record
and the factual findings made in the narrative portion of this
decision, the following conclusions of law are entered:

1.

The Commission has jurisdiction to decide this case.

2. An order should be entered affirming the citations and
the proposed penalties.
ORDER
Based on the foregoing findings of fact and conclusions of
law I enter the following order:
1. In WEST 85-125-M the following citations and proposed
penalties are affirmed:

64

Citation No.
2355924
2355925
2355926
2355928
2355929
2355930
2355931
2355932
2355933
2355936
2355937
2355938
2355939
2355940
2357724
2358543

30 C.F.R. §
Violated
56.14-1
56.14-1
56.14-1
56.14-1
56.14-1
56.14-1
56 .14-3
56.14-1
56.11-2
56.9-87
56 .12-28
56.12-25
56.4-2
56.12-25
56.11-27
56. 9-54

Penalty
$54.00
54.00
54.00
36.00
20.00
54.00
36.00
54.00
54.00
20.00
20.00
20.00
20.00
20.00
36.00
63.00

2. In WEST 85-126-M the following citation and penalty
the ref or are affirmed:
Citation No.
2355927

30 C.F.R. §
Violated
56 .14-1

Penalty
$54.00

In WEST 85-127-M the following citations and proposed
3.
penalties are affirmed:
Citation No.
2355922
2355923
2355934
2355935
2358542

30 C.F.R. §
Violated
56.14-1
56.14-1
56.11-12
56. 9-87
56. 9-87

Penalty
$54.00
54.00
79.00
20.00
20.00

Law Judge
Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
George D. Theophilos, Esq., Assistant County Attorney, Jefferson
County Attorney's Office, 1700 Arapahoe Street, Golden, CO 80419
(Certified Mail)

/bls

65

FEDERAL MINE SAFETY AND HEAL TH 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),
ON BEHALF OF
JOSEPH E. TIMKO,
Complainant

JAN 9 1987

DISCRIMINATION PROCEEDING
Docket No. WEST 85-132-DM
MD 85-12
Dee Gold Mine

v.
DEE GOLD MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
AND DISMISSING PROCEEDING
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,

U.S. Department of Labor, San Francisco,
California,
for Complainant;
Jay W. Luther, Esq., Chickering & Gregory, San
Francisco, California,
for Respondent.
Before:

Judge Lasher

The parties reached an amicable resolution of this matter on
the first day of a hearing in two matters involving the Dee Gold
Mining Company. The terms of the agreement reached between the
Secretary on behalf of Joseph P. Timko and the Respondent are
that, in return for the payment of $925.00, less customary and
appropriate withholding deductions to be determined by Respondent, Complainant agrees to accept such amount in full
satisfaction of all claims made in connection with his proceeding
and remedies claimed by him under the Federal Mine Safety and
Health Act of 1977, including back pay, reinstatement, and all
other remedies contemplated by the Act and legal precedent. The
figure, $925.00, is an approximation of damages sustained by
Complainant as a result of the alleged violation.
Complainant has executed a written release of the Respondent
Dee Gold Mining Company which is attached to this decision and
order approving settlement and made a part hereof.
Respondent's actions executing the settlement and its agreements in connection therewith shall not be construed as an
admission of violation of the Federal Mine Safety and Health Act
of 1977.

66

It was the intent and understanding of both parties hereto
that Respondent would, within seven days or as soon thereafter as
possible, tender payment of the $925.00 less appropriate
deductions, to counsel for the Secretary, Mr. Marshall Salzman,
at this office address. Counsel for the Secretary has now·
notified me in writing of such payment and acknowledges that I
may consider the complaint in this matter to be withdrawn with
prejudice to the Complainant to thereafter file any action under
Section 105(c), individually, or otherwise.
It is understood that the attached release signed by Joseph
P. Timko, relating more generally to the employment relationship
between Mr. Timko and Respondent, is broader in scope than the
specific jurisdiction afforded under the .A.ct and should not be
construed to be limited by any of the specific terms of this
order approving settlement. Such release speaks for itself.
The parties are now in compliance with the settlement
reached and approved at hearing. Accordingly, this proceeding is
dismissed.

1Jtu~~ t1f µ-<---Ji

Michael A. Lasher, Jr.
Administrative Law Judge

Attachment: Release

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 11071 Federal Bldg., Box 36017, 450 Golden Gate
Avenue, San Francisco, CA 94102
Jay W. Luther, Esq., Chickering & Gregory, Three Embarcadero
Center, 23rd Floor, San Francisco, CA 94111

/blc

67

l

2

3
4

5
6

7

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

8
SECRETARY OF LABOR, MINE

9 SAFETY AND HEALTH
ADMINISTRATION (MSHA),
10 ON BEHALF OF
11 JOSEPH E. TIMKO,

Complainant,

12
13

vs.

14 DEE GOLD MINING COMPANY,
15

Docket No. WEST 85-132-DM,
MD 85-12
RELEASE OF
DEE GOLD MINING COMPANY

Respondent.

16
17

18

Joseph E. Timko, complaining party in that certain matter

19 known as Joseph E. Timko, Complainant, v. Dee Gold Mining Company,
20 Respondent, Docket. No •. WEST 85-132-DM, MD 85-12, does hereby

21 release, remise, and forever discharge Dee Gold Mining Company, a

22

evada general partnership, from any and all claims, demands,

23 liability, indebtedness, causes of action, and claims for relief
24 arising from or in any way related to (a) any and all matters
25 alleged in the above-entitled proceeding; (b) any and all matters
26 involving or related to said Joseph E. Timko's employment by the

27 said Dee Gold Mining Company or the termination of said employment.
28
68

1
This release is given fully and voluntarily, after

2

3

4
5
6

7
8
9

consultation with counsel, and Joseph E. Timko warrants that he has
full authority to execute this release and accomplish the objects
intended thereby, to wit the complete extinguishment of any of the
enumerated obligations of Dee Gold Mining Company to Joseph E.
Timko.

Neither this release, nor the settlement of which it is a

part, shall be regarded as an admission of liability on the part of
Dee Gold Mining Company, which expressly denies liability to Joseph
E. Timko.

10
11

12

Joseph E. Timko waives any and all statutes or case law
designed to prevent the enforcement of this release in accordance
with its expressed terms.

13
14
15

J~TIMKO

16
17
18
19
20
21

22
23
24
25

26

27

28
69

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

JAN 121987

333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 86-6-M
A.C. No. 47-02575-05502

.

v.

Pit #6

NELSON TRUCKING,
Respondent
DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for Petitioner;
Mr. Kenneth M. Nelson, Nelson Trucking Company,
Green Bay, Wisconsin,
pro ~

Before:

Judge Lasher

The Petitioner initiated this proceeding on October 30,
1985, by the filing of a Proposal for Penalty requesting that a
penalty be assessed for Respondent's alleged violation of 30
C.F.R. § 56.5-50 which provides:
(a) No employee shall be permitted an exposure to noise in
excess of that specified in the table below. Noise level
measurements shall be made using a sound level meter meeting specifications for type 2 meters contained in American
National Standards Institute (ANSI) Standard Sl.4-1971,
"General Purpose Sound Level Meters," approved April 27,
1971, which is hereby incorporated by reference and made a
part hereof, or by a dosimeter with similar accuracy. This
publication may be obtained from the American National
Standards Institute, Inc., 1430 Broadway, New York, N.Y.
10018, or may be examined in any Metal and Nonmetal Mine
Safety and Health District or Subdistrict Off ice of the
Mine Safety and Health Administration.
PERMISSIBLE NOISE EXPOSURES
Sound
level dBA,
slow response

Duration per day, hours of exposure
8
6

.. .. . . .. .. .. .. .. .. ....... . . ... . .. . . . . .
•

•

•

•

•

•

0

•

•

•

•

•

•

•

•

•

•

•

•

70

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

90
92

4

... . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .
. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . .

95
97

3
2
1 1/ 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~- .
l
1/ 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1/4 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
~

100
102
105
110
115

No exposure shall exceed 115 dBA.
Impact or impulsive noises
shall not exceed 140 dB, peak sound pressure level.

x

x

x

x

x

x

x

x

(b} When employees' exposure exceeds that listed in the above
table, feasible administrative or engineering controls shall
be utilized.
If such controls fail to reduce exposure to
within permissible levels, personal protection equipment shall
be provided and used to reduce sound levels to within the
levels of the table.
Pursuant to notice, this matter came on for hearing in Green
Bay, Wisconsin, on August 13, 1986, at which MSHA Inspector Arnie
Mattson testified for Petitioner and Kenneth Nelson, a co-owner,
testified for Respondent.
In the citation involved, No. 2374054, Inspector Mattson
described the violative condition as follows:
"The eight hour exposure to mixed noise levels of the 120
Hough International front-end loader operator in the pit
exceeded unity (100%), by 2.68 times (268%) as measured
with a dosimeter. This is equivalent to an 8-hour exposure
to 97 dBA.
Personel [sic] hearing protection was being
worn."
Based on stipulations, documents, and testimony, I find or
infer from the preponderant reliable and probative evidence as
follows:
The Respondent is a very small (four employees> sand and
gravel operator doing business in the vicinity of Green Bay,
Wisconsin; it has no history of violations prior to that involved
in the subject citation which Respondent, in good faith, promptly
abated after it received notification thereof. Payment of a
penalty in this matter will not adversely affect Respondent's
ability to continue in business.
While on a regular inspection of Respondents No. 6 Pit on
July 10, 1985, Inspector Mattson observed the crusher and
determined that a noise survey should be conducted. On July 11,
1985, Inspector Mattson performed such survey (Ex. S-3) for a
period of eight hours, during which time a dosimeter was attached
to the short collar of CHRIS NICKLAS, the operator of the 120
Hough International front-end loader.

71

As a result of the sound level examination and testing of
the environment of the crusher operator, it was determined that
the operator of the front-end loader was exposed to Ca> 97 dBA
for a period of eight hours (480 minutes}, and to (b) noise 2.68
times the permissible level CT. 16-20). 1/ The loader operator
had been wearing ear protection and the Respondent's management
erroneously believed that this alone constituted compliance with
the requirements of the standard, according to the Inspector (T.
28, 29).
To abate the violation, the Respondent was required to
install engineering controls, i.e., a muffler, on the loader
which reduced the sound level to approximately 93-94 dBA for the
relevant period.
Since the mine operator had only four
.
employees, administrative controls, in this case, reducing the
number of hours the operator of the loader actually operated the
machine each day, were not feasible CT. 25). Since the installation of the muffler did not bring the sound level down to
permissible sound limits, the loader operator was also required
to also wear personal ear protection to insure compliance with
the standard. The Citation was terminated on August 29, 1985,
upon Respondent's compliance with the above requirements. The
Inspector indicated that the occurrence of the hazard posed by
the infraction, injury to the loader operator's hearing, was "not
likely" (Ex. S-1), but that had such occurred, such an injury
would be "permanently disabling".
Issues
1. Whether the evidence established that Respondent failed
to employ feasible engineering controls where its employee's
exposure to noise exceeded permissible limits.
2. If so, the amount of an appropriate penalty for the
violation.
Ultimate Findings, Conclusions and Discussion
The Respondent made no substantial or persuasive challenge
to the existence of the conditions which constitute the violation
and raised no legal defense thereto. ~/ By stipulation at the
1/

Exposure of the loader operator to a sound level in excess of

90 dBA for an 8-hour workday constitut'es an infraction of the

standard.
Respondent's concerns about not being advised about this
infraction during a prior MSHA courtesy assistance visit were,
inasmuch as such might be construed as an equitable estoppel
defense, addressed in my decision in a related matter, Docket No.
LAKE 85-102-M, issued September 11, 1986. My decision on this
question is incorporated herein by reference.

ll

72

commencement of the hearing, Respondent conceded that the Commission and this administrative law judge has jurisdiction over
it and the subject matter of this proceeding.
In July 11, 1985, Respondent's loader operator was exposed
to noise 2.68 times the permissible level; the exposure was
equivalent to 97 dBA for eight hours per day.
There were feasible engineering controls available to reduce
the exposure, i.e., the installation of a muffler on the subject
front-end loader. Respondent thus was in violation of 30 C.F.R.
§ 56.5-50 because of its failure to utilize such engineering
controls (administrative controls not being feasible) to reduce
the exposure of its loader operator to excessive noise CT. 28).
Because MSHA had examined the Respondent's operation
previously during a courtesy inspection and had not required
engineering controls to reduce the noise levels, Respondent's
negligence is found to be minimal. Based on the Inspector's
characterization of the probability of the hazard ever being
realized as "not likely", the violation is not found to be
serious. There is no contention-or evidence-that the imposition
of a penalty will adversely affect this very small Respondent's
ability to continue in business. Considering the above mandatory
penalty assessment factors, and the fact that Respondent
proceeded in good faith, upon notification of the violation, to
promptly abate such, the penalty urged by the Secretary, $20.00
is found appropriate.
In view of the very modest amount ($20.00)
of the penalty sought by the Secretary to begin with, I find no
reason for a reduction thereof based on MSHA's failure to advise
the Respondent about it during the prior "courtesy" visit.
See
Secretary of Labor v. King Knob Coal Company, Inc., 3 FMSHRC 1417
(1981)0
ORDER

(1)

Citation No. 2374054 is affirmed.

(2) Respondent shall pay the Secretary of Labor within 30
days from the date hereof the sum of $20.00 as and for a civil
penalty.

~;t.1,tt-/.: d< ffe*L /t.--

Mfchael A. Lasher, Jr.
Administrative Law Judge

73

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
Nelson Trucking Company, Mr. Kenneth M. Nelson, 2898 Flintville,
Green Bay, WI 54303 (Certified Mail)

/bls

74

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

.
.

CHARLES F. ROSE,
Complainant

.

v.
CONSOLIDATION COAL COMPANY,
Respondent

JAN 12 1987

DISCRIMINATION PROCEEDING
Docket No. WEVA 86-379-D
MORG CD 86-11
Pursglove No. 15 Mine

DECISION
Appearances:

William R. Nalitz, Esq., Waynesburg, Pennsylvania,
for Complainant;
Michael R. Peelish, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Before:

Judge Weisberger
Statement of the Case

This case is before me on the complaint of Charles F. Rose
against Consolidation Coal Company filed on April 9, 1986 alleging
discrimination under Section l05(c) of the Federal Mine Safety
and Health Act of 1977 (30 u.s.c. § 801 et~., hereinafter
referred to as "Act"). On June 13, 1986, the Secretary advised
Complainant that it had determined that a violation of Section
105(c) did not occur. Rose filed his complaint with the Commission on July 14, 1986. Pursuant to notice, the case was scheduled
for October 23, 1986, in Washington, Pennsylvania. At the
hearing, the Complainant, who was unrepresented, requested that
the case to be adjourned so that he might obtain legal represenation. This motion was granted and pursuant to notice the case
was heard on November 3, 1986, in Washington, Pennsylvania.
Paskel Lee Eddy and Charles F. Rose testified on behalf of Complainant, and James A. Simpson testified on behalf of Respondent.
Complainant and Respondent filed posthearing briefs on
December 8 and December 5, respectively. Reply briefs were to
have been exchanged ten days later but none were filed.
Findings of Fact
1. The Complainant, Charles F. Rose, is an employee of
Respondent, Consolidation Coal Company, at the Respondent's
Pursglove No. 15 Mine.

75

2. Complainant's regular job classification is general
inside labor.
3. Under the terms of the National Bituminous Coal Wage
Agreement of 1984 Complainant is to work an 8 hour day including
30 minutes for lunch.

4. It has been the custom for many years at Respondent's
mine that the lunch break has been taken between third and fifth
hour of employment Cll a.m to 1 p.m).
5. It has been customary practice for at least 2 years,
prior to March 1986, that the union representative (hereinafter
called "walk-around") accompanying a Federal Mine Inspector on a
inspection of Respondent's subsurface mine, have his half hour
lunch at the conclusion of the inspection after the inspector
leaves (Tr. 33, 38, 45-46, 65-66).
6. In March 1986, Respondent made a management decision, as
a result of a reduction in work force, that the "walk-around"
should eat his dinner between the 3rd and 5th hour, and that upon
completion of the inspection the "walk-around" was to return to
work.
7. On March 19, 1986, Complainant served as a "walk-around"
accompanying a Federal Mine Inspector on his regular inspection
of Respondent's Pursglove No. 15 Mine. He received pay for 8
hours.
8. At approximately 3:15 p.m. on March 19, 1986, after the
Complainant completed his "walk-around" duties and the inspector
left, Clyde Owens, Respondent's Safety Director, informed the
Complainant that James A. Simpson, Superintendent, told him to
tell the Complainant to go right to work without a break for lunch.
9. Simpson testified, in essence, that during an inspection
underground there are delays waiting for certain activities to
occur or waiting for transportation (Tr. 75, 79). This was confirmed by Complainant CTr. 87). Simpson also said in essence
that company personnel accompaying a federal mine inspection eat
during a break in the inspection when they can sit down, or they
grab a sandwich "on the run". However, Simpson also said that
the delays are not predictable, and do not occur at regular
intervals.
Both Complainant and Eddy testified as to the difficulties a "walk-around" would encounter if one would start to
eat during a transportation delay (Tr. 47, 87). Also Eddy testified that normally during an inspection one would not have a half
hour to eat (Tr. 47). Complainant testified that normally, in
essence, a delay due to switching or "whatever" was 5 to 10
minutes at the most and not a half hour (Tr. 87). Accordingly,
inasmuch as Eddy and Complainant were actually involved as

76

"walk-arounds" and thus had personal knowledge of the conditions
during such inspection, I credit more weight to their testimony.
Therefore, I find that it is not possible for a "walk-around" to
have a continuous half hour lunch while engaged as a "walk-around"
underground.
10. Simpson testified that after the inspector and the
"walk-around" finish the inspection and return to the surface
they may have a sandwich. However, he said that from the time
they exit the mine until the time they start discussing the
inspection from 15 minutes to a half hour elaspes. During this
time they also have to remove the clothes and equipment they wore
in the mine. Accordingly, I find that there is not a continuous
half hour period after the inspection for a "walk-around" to eat
lunch prior to discussing the inspection.
Issues
The general issue in this case is whether Consolidation Coal
Company discriminated against Rose in violation of Section 105(c)
of the Act and, if so, what is the appropriate relief to be
awarded Rose and what are the appropriate civil penalties to be
assessed against Consolidation for such discrimination.
The specific issue is whether Respondent, by denying Complainant half hour for lunch upon completion of his "walk-around"
activity beyond the usual time period for lunch, caused the Complainant to suffer a "loss of pay" during the period of his
"walk-around".
Laws
Section 105(c)(l) of the Act provides, in essence, in part,
that no person shall in any manner discriminate against, or cause
discrimination against, or otherwise interfere with the exercise
of the statuatory rights of any miner or representative of miners
because of the exercise by such miner of any statutory right
afforded by the Act.
In essence, Section 103(f) of the Act,
provides that an authorized representative of miners, such as
Rose, is entitled to accompany a MSHA inspector in the course of
his inspection and that "such representative of miners who is
also an employee of the operator shall suffer no loss of pay
during the period of his participation in the inspection made
under this subsection." (Emphasis added.).
Discussion
Respondent in essence argues that the Complainant was not
under the control of the mine management during the "walk-around",
and thus the latter did not cause the Complainant to suffer a
loss of lunch during the "walk-around". Respondent in this

77

connection presented testimony that it did not tell Complainant
he could not eat lunch during a "walk-around". Also, Respondent
argues that Complainant was paid his full wages for the day of
the "walk-around", an~ thus suffered no "loss of pay 11 •
Complainant argues that in essence deprivation by Respondent
of a "walk-around's" right to eat lunch for a continuous period
of half hour after a "walk-around" is violative of Section 103(b)
of the Act. For reasons that follow I agree.
There is not any legislative history of the Act containing
any discussion of the specific issue presented here. However, it
appears that in general Congress intended a broad construction to
be placed on the phrase "shall suffer no loss of pay" (Section
103Cft supra.) In this connection, it is noted that the Senate
Report accompanying S. 717, (S. Rept No. 181, supra, at 28-29,
Leg. Hist. at 616-617), provides with regard to the intent behind
Section 103 that "to encourge such miner participation it is the
Committees intention that the miner who participates in such
inspection and conferences be fully compensated by the operator
for the time thus spent. To provide for other than full
compensation would be inconsistent with purpose of the Act and
would unfairly penalize the miner for assisting the inspector
performing his duties".
(Emphasis added).
Furthermore, similarly, the courts, based upon the legislative history, have placed a broad interpretation on the rights
granted by Section 103(f), supra. Thus, in United Mine Workers
of America, etc. v. Federal Mine Safety and Health Commission,
671 F.2d 615 CD.C. Cir. 1982), the Court was faced with the issue
as to whether under Section 103(f), supra, a miner has the right
to pay when accompanying an inspector on a "spot" inspection.
The court held that, pursuant to Section 103(f), supra, a miner
shall not suffer any loss of pay while accompanying an inspector
on a "spot" inspection as well as a regular inspection.
In its
decision, the Court reviewed the legislative history of Section
103(£), supra, and noted that it was the express intention of the
Senate Committee on Human Resources, as contained in the Report
on S.717 (8. Rept No. 181, 95th Cong. 1st Sess 28-29 (1977), as
reprinted in Legislative History of the Federal Mine Safety and
Health Act at 616-617) "that a Miner participating in a "walkaround" inspection receive "full compensation."
(671 F.2d, supra
at 625). The Court further opined that both miner participation
and full compensation were considered by the committee to constitute important tools in the effort to increase miners'
awareness of the hazards they face and the measures they can take
to achieve a safe and healthy working environment.
(671 F.2d,
supra, at 625).
Further, the court in United Mine workers, supra, at 625
related that Senator Helms had introduced an amendment to S.717,

78

the Senate version of the Act, that would have stricken any
reference to a miner being paid while accompanying an inspector
on an inspection. (See Leg. Hist., supra). The Court, (671 F.2d,
supra at 625), noted however that Sentor Javits successfully
opposed the amendment, giving, among others, the following
reasons:
First, greater miner participation in health and safety
matters, we believe is essential in order to increase miner
awareness of the safety and health problems in the mine, and
secondly, it is hardly to be expected that a miner who is
not in business for himself, should do this if his activities
remain uncompensated.

*

*

*

*

*

*

*

But we cannot expect miners to engage in the safetyrela ted activities if they are going to do without any
compensation on their own time.
If miners are going to
accompany inspectors, they are going to learn a lot about
mine safety, and that will be helpful to other employees and
to the mine operator.
In addition, if the worker is along he knows a lot
about the premises upon which he works and, therefore, the
inspection can be much more thorough. We want to encourage
that because we want to avoid, not incur, accidents. So
paying the wor.ker his compensation while he makes the rounds
is entirely proper.
Essentially, the same legislative history was cited
with approval in Monterery Coal Company v. Federal Mine Safety
and Health Review Commission 743 F.2d 589 (7th Cir. 1984), in
which the court also held that Section 103(f) of the Act requires
that a miner should be paid by an operator where the former
participates· in a "spot" inspection.
(See also Consolidated Coal
Company v. Federal Mine Safety and Health Review Commission, 740
F.2d 271 <3rd Cir 1984).
Similarly, in Magma Copper Company v. Secretary of Labor
(645 F.2d 694 (9th Cir 1981, cert. denied 454 U.S. 94), the Court
held that where several inspectors are present, it is within
purview of Section 103(f), supra that one respresentative of the
miners may accompany each inspector without loss of pay.
In
reaching this conclusion, the Court, at 698, cited with approval
the legislative history of the Act, as set forth, in the Senate ·
Report 95-81, (reprinted in Legislative History at 623,} to the
effect that if the Mine Safety and Health Program is to be truely
effective miners will have to play an active part in the enforcement of the Act.

79

Also, the Commission's Judges, have, on occassion, provided
a broad interpretation to Section 103(f), supra, so as not to
discourage participation in "walk-around" inspections which would
be contrary to the clear intent of Congress. Thus, in Secretary
of Labor, Mine Safety and Health Administration, on behalf of
Timithy P. Scott v. Consolidation Coal Company, 2 FMSHRC 1056,
the miner was paid on the basis of a grade three rate scraper
operator for the time spent in "walk-around" activities. On the
day of the inspection, the miner was told that he was to perform
removal work, at higher level of pay, (grade five). However the
miner began his "walk-around" prior to the actual commencement of
such work. Judge Melick found that the miner must be compensated
in a amount equivalent to grade five rate pay so as not to be
unfairly penalized in performing his "walk-around" duties as a
representative of miners. In Secretary of Labor, Mine Safety and
Health Administration v. Virginia Pocahontas, 3 FMSHRC 1493
(1981), .former Commission Judge Steffey, held, in essence that
the language of Section 103(f) supra requires that a miner, who
accompanies an inspector on a shift other than his own regular
shift, must be provided with work on that shift after the inspection is completed.
Thus from all the above it can be seen that Congress, in
enacting Section 103(f), supra, clearly intended it to encourage
"walk-arounds" and prohibit acts that would tend to discourage
miners from participating in "walk-arounds". It is thus manifest
that the broad intent behind Section 103(f), supra, would be
thwarted by allowing any act which might have a tendency to
discourage miners' participation in "walk-arounds". As such, it
is concluded that Respondent's action herein violates Section
103(f), supra.
At the hearing and in a posthearing brief Complainant has
requested that relief be extended to all occasions subject to
March 19, 1986, when Complainant served as a "walk-around" and
was denied by Respondent the opportunity to have lunch upon conclusion of the inspection. This relief has been opposed by
Respondent.
Inasmuch as Complainant has established that
Respondent violated Section 103(f), supra on March 19, 1986, in
the interest of justice, Complainant shall be allowed to establish if additional similar actions by Respondent have subsequently occurred. This ,.,ill achieve the purpose of granting
Complainant's full relief, (see Section 105(c)(3) of the Act).
This should not unduly burden Respondent, as at the hearing on
Novgmber 3, 1986, Respondent had the opportunity and did present
its case, i.e., that its actions in not providing Complainant a
lunch aftera"walk-around" did not violate Section 103(f),
supra.
It would appear that the facts adduced by Respondent at
the hearing would apply equally to all subsequent similar
actions.

80

Conclusions of Law
Complainant and Respondent are subject to Section 105 of the
Act, the latter as miner and the former as mine operator.
I have
jurisdiction to hear and decide this case. Respondent has
violated Section 103Cf) of the Act by not providing the Complainant with a continuous half hour for lunch upon the completion of his duties as a "walk-around. 11
Relief
It is ORDERED that:

(1) Respondent pay Complainant $10.32 within 10 days of
this decision.
(2)
Respondent shall desist from not providing Complainant
a continuous half hour for lunch upon completion of his "walkaround11 duties.

(3) Respondent shall pay costs and expenses including
attorneys fees reasonably incurred by Complainant in connection
with the institution and prosecution of this proceeding.

(4) For each instance subject to March 19, 1986 until the
date of this decision, Respondent shall pay Complainant, his
usual rate of pay for each half hour of lunch time Respondent
failed to provide Complainant upon completion of his duties as
"walk-around".
(5)
Counsel are directed to confer and attempt to agree on
the amounts due under paragraphs 3 and 4 above, and if they can
agree to submit a statement to me within 20 days of this decision.
If they can not agree, Complainant shall within 30 days of this
decision file a detailed statement of the amount claimed, and
Respondent shall submit a reply thereto within 30 days thereafter.
If there are significant and substantial issues of fact raised in
these statements, a supplemental hearing might be held.

This decision shall not be final until I have issued a supplemental decision on the amounts due under paragraphs 3 and 4.
(6)
Respondent shall post a copy of this decision on a
bulletin board at the surface mine which is available to all
employees and it shall remain there for a period of at least 60
days.

L

~

""-"

/, '

l "\-l__,•..._./Lv----

Weisberger
Administrative Law Judge

81

Distribution:
William R. Nalitz, Esq., Sayers, King, Keener & Nalitz, 77 South
Washington Street, W~ynesburg, PA 15370 (Certified Mail)
Michael R. Peelish, Esq., Consolidation coal Company, 1800
Washington Road, Pittsburgb, PA 15241 (Certified Mail}
dcp/rbg

82

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

JAN 12 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JOHNNY S. VANCE,
Complainant

DISCRIMINATION PROCEEDING

:
..

.

Docket No. WEVA 86-424-D
HOPE CD 86-11

.

v.

Lightfoot No. 2 Mine

..

EASTERN ASSOCIATED COAL
CORPORATION,
Respondent

:

ORDER OF DISMISSAL
Appearances:

Page H. Jackson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia
for ComplainantJ
Steven p. McGowan, Esq., Steptoe & Johnson,
Charleston, West Virginia, for Respondent.

Before:

Judge Melick

The Secretary with the consent of the individual Complainant requests in effect to withdraw his complaint of discrimination in the captioned case. Under the ci~.· cumstances herein,
permission to withdraw is granted. 29 C. .R. § 2700.11. The
case is therefore dismissed.

\
..

·

Gary

1

/
/

\

·~

.\

,

·• \

·~eli k

/\~.

Admilpistrati~e .La';;' 1/. .
( 703'~ 756-6261
I

\

:

::::r~~u:::::on, Esq., Office o\ the Soli~itor, U.S. Depart-

ment of Labor, 4015 Wilson Slvd1, Room 12l7A, Arlington, VA
22203 (Certified Mail)
Steven P. McGowan, Esq., Steptoe & Johnson, P.O. Box 1588,
Charleston, WV 25326 (Certified Mail)
rbg

83

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

JAN 131987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
:

.

v.
AMARILLO ROAD COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No. CENT 86-93-M
A.C. No. 41-03327-05501
Crusher No. 2 Mine

.
DECISION

Appearances:

Rebecca A. Siegel, Esq., Office of the
Solicitor, U.S. Department of Labor, Dallas,
Texas, for the Petitioner;
E. E. Clark, Secretary-Treasurer, Amarillo
Road Company, Amarillo, Texas, pro se, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of
civil penalty filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 o.s.c. § 820(a), seeking a civil penalty assessment of $30 for an alleged violation of mandatory
safety standard 30 C.F.R. § 56.16009. The respondent filed
an answer denying the violation, and a hearing was held in
Amarillo, Texas, on December 11, 1986. The parties waived
the filing of posthearing briefs, but I have considered their
oral arguments made on the record in the course of my adjudication of this matter.
Issues
The issues presented in this proceeding are as follows:
1. Whether the respondent violated the
cited mandatory safety standard, and if so,
the appropriate civil penalty to be assessed

84

for the violation based on the criteria found
in section llO(i) of the Act.
2. Additional issues raised by the parties are identified and discussed in the
course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Healtti Act of 1977,
Pub. L. 95 64, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

Commission Rules, 20 C.F.R. § 2700.1 et ~·

Stipulations
The parties stipulated to the following (Tr. 5-12):
1. The respondent's mining activities involve products
which affect interstate commerce, and the respondent is
sub]ect to the jurisdiction of the Act.
2. The respondent's annual mining production of limestqne is 31,615 tons. The respondent is a highway contractor, and its limestone mining and crushing operations employ
from 16 to 18 miners.
3. The cited condition or practice which resulted in
the issuance of the violation was not the result of any negligence by the respondent.
4. For purposes of this case, the respondent has no
prior history of violations.
5. The inspector's gravity findings, as reflected on
the face of the citation, are accurate and correct.
6. The respondent exhibited good faith compliance in
abating the cited condition or practice.
Discussion
Section 104(a) "S&S" Citation No. 2660902, issued on
January 9, 1986, cites a violation of 30 C.F.R. § 56.16009,
and the cited condition or practice is described as follows:
A serious non-fatal accident occurred on
January 2, 1986, resulting in two broken legs

85

and a broken back when an employee for some
unknown reason walked under an unsecured
47 foot section of belt conveyor framework
which had just been raised into place but not
secured. Moments prior to the accident, all
employees involved in setting the structure
were advised by the foreman to stand clear
until more jacks and supports could be
installed to secure the section of conveyor
and related load out bin.
The citation was terminated on Februray 5, 1986, and the
termination notice states as follows: "When suspended loads
are required at the crusher plant the employees has (sic)
again been informed of the hazards involved at a safety meeting held on 1-13-86. Employees that violate the foreman's
dissuade safety orders will face dismissal of employment."
MSHA's Testimony and Evidence
MSHA Inspector Michael C. Sanders, testified as to his
training and experience, and he confirmed that he issued the
citation in question on January 9, 1986, after conducting an
investigation of the accident which occurred on January 2,
19 86.
Mr. Sanders identified photographic exhibits P-1 through
P-4 as the conveyor and portable load out bin, and confirmed
that he took the pictures on January 9, 1986. Photograph P-1
shows the conveyor which fell on the accident victim resting
against the lip of the load out bin; P-2 is a rear view of
the bin with wooden support blocks under the axle; P-3 is
similar to P-1; and P-4 shows a part of the load out bin
supported by jacks and wooden blocks.
Mr. Sanders sketched a diagram showing the final flow of
the limestone material along the bin feed out conveyor
through to the load out bin, and to the truck load out conveyor (exhibit P-5), and he explained the processing sequence.
He confirmed that the crusher "plant" consists of portable
conveyors and bins which are moved from location to location
as required.
Mr. Sanders stated that his investigation of the accident disclosed that at the time of the accident the plant was
in the process of being moved and was in the final stages of
assembly. One end of the conveyor which fell on the employee
was elevated and resting against the lip of the bin as shown

86

in photographs P-1, P-3, and R-1, but the safety chain normally used to secure the conveyor to the bin to prevent movement once the assembly is completed was not attached to the
bin. The other end of the conveyor was resting on the ground.
Mr. Sanders stated that the end of the conveyor which
was resting on the bin was lifted in place to that position
by a front-end loader. Once in place, the loader pulled away
and left the area. The supervisor on the scene, Vicente Loe,
noticed that the three employees who were assembling the
plant had not secured the conveyor chain to the bin as they
had been instructed. He also observed that the weight of the
conveyor, as it rested against the bin, resulted in some movement of the support blocks under the bin axle. Recognizing
these hazards, Mr. Loe left the scene to bring back the
front-end loader to stablize the conveyor and to secure it to
the bin. However, before leaving, Mr. Loe informed the work
crew of the hazard of the unsecured conveyor and specifically
instructed them to stay clear of the conveyor until he
returned with the loader. For some unexplained reason, the
accident victim disregarded Mr. Loe's directives and went
under the conveyor. When he did, movement of the bin blocks
caused the end of the conveyor resting on the bin to fall on
the victim breaking his legs, and his back.
on cross-examination, Mr. Sanders stated that during his
accident investigation he did not speak with the injured
employee or the other two employees. He confirmed that he
had no reason to question Mr. Loe's version of the accident,
and he concluded that the respondent was not negligent, and
that it resulted solely from the negligence of the injured
employee who disregarded Mr. Loe's instructions to stay clear
of the conveyor until it could be supported by the loader and
secured by the chain •.
Mr. Sanders confirmed that the conveyor which fell and
struck the employee was not "suspended in the air," and that
one end was on the ground, and the other end which fell was
elevated at an angle resting against the bin and the chain
was not secured to the bin. He stated that in the assembly
and disassembly of the conveyor and bin, the conveyor is normally lifted off the ground by means of an end-loader and
placed against the bin until it can be secured to the bin by
a safety chain. According to his interpretation of section
56.16009, if the safety chain is not secured to the bin, he
considers the conveyor to be "suspended" within the meaning
of that standard, and that is why he cited this standard. If
the conveyor were secured to the bin by the safety chain, he

87

would not consider the conveyor to be "suspended" and he
would not have issued the citation.
Respondent's Arguments
The respondent agreed that there is no dispute as to the
facts of this case, and that the inspector's testimony regarding the circumstances of the accident in question is accurate.
Although Mr. Loe was present in the courtroom, respondent's
representative E. E. Clark stated that he saw no need to call
him as a witness, and that the respondent's position is as
stated in its answer and exhibits filed in this proceeding.
Mr. Clark took the position that the respondent has not
violated section 56.16009, because the conveyor in question
was not in fact a "suspended load," in that it had been
placed at rest on the bin similar to an inclined plane, or a
ladder 'resting against a wall. Mr. Clark pointed out that
the conveyor was not free on all sides, or "suspended" or
hoisted in the air as the phrase "suspended load" normally
implies. He also argued that since section 56.16009, is
included as part of MSHA's "Materials Storage and Handling"
standards under Subpart O, Part 56, Code of Federal Regulations, it does not apply in this case because the conveyor
cannot be considered "materials" as that term is used in the
standards appearing in Subpart o.
Mr. Clark asserted that the respondent's safety rules
(exhibit R-2) require each employee to follow instructions
and not to take chances, and that the hoisting or lifting of
objects over workmen is prohibited.
Mr. Clark maintained that the accident was not caused by
the respondent's or Mr. Loe's failure to recognize a hazard
and react accordingly in a safe and prudent manner, but was
caused by the negligence of the injured employee who disregarded Mr. Loe's cautionary instruction to stand clear of the
conveyor. Since MSHA agrees that the respondent was not
negligent, Mr. Clark believes that the respondent should not
be held accountable for any violation. Mr. Clark concludes
that since the injured employee violated his supervisor's
order to stand clear, and since the load was not suspended in
the first place, no violation of section 56.16009 has been
established.
I take note of the fact that as part of its answer to
MSHA's proposal for assessment of civil penalty, the respondent included a copy of a company accident report filled out
and signed by Mr. Loe on the day of the accident. Mr. Loe

88

stated that when he asked the two employees who were at the
scene for an explanation as to why they did not attach the
conveyor chain or wait until he returned, they responded that
"they didn't know" and "just thought that they could block
the bin and took a chance."
Petitioner's Arguments
Petitioner asserts that section 56.16009 is a broad standard which should be liberally construed, and that the inspector's interpretation and application of the phrase "suspended
loads" was correctly applied and should be affirmed. In
response to the respondent's assertion that since the cited
standard appears under Subpart o, Part 56, dealing with storage and handling of materials, it is not intended to apply to
equipment such as a conveyor, petitioner cites my prior decision of October 8, 1979, in Pennsylvania Glass Sand Corporation, 1 FMSHRC 1191 (August 1979). In that case, I concluded
that the cited standard applied in the case of a motor suspended above a work area.
In response to the respondent's argument that it should
not be liable for any violation when it is clear that it was
not negligent, and that the accident was caused by the
employee's negligence in failing to follow the safety instructions of his supervisor, petitioner states that the law is
otherwise, and that the courts and the Commission have consistently ruled that a mine operator is liable for a violation
without regard to fault.
Findings and Conclusions
The respondent in this case is charged with a violation
of mandatory safety standard 30 C.F.R. § 56.16009, which
states that "Persons shall stay clear of suspended loads."
MSHA concedes that the respondent was not negligent and that
the foreman who was supervising the construction work at the
scene of the accident warned his crew and the injured miner
to stand clear of the conveyor in question until it could be
further secured from any movement.
Two issues are presented in this case. The first question is whether or not the respondent can be held liable and
accountable for a violation which resulted from the negligence of one of its employees who for some unknown reason
clearly disregarded his foreman's instructions to stay cleQr
·of the conveyor which fell and struck him. The second issue
is whether or not the cited mandatory standard section is

89

applicable to the alleged violative condition which prompted
the issuance of the citation.
The respondent's contention that it cannot be held liable
for a violation of ariy mandatory safety standard because it
was not negligent is rejected. As correctly stated by the
petitioner, the law is otherwise, and the Commission has consistently held that under the Mine Act, an operator is liable,
without regard to fault, for violations committed by its
employees. Asarco, Incorporated-Northwestern Mining Department, 8 FMSHRC 1632 (November 1986), and the cases cited
therein.
The term "load" is defined in A Dictionary of Mining,
Mineral, and Related Terms, U.S. Department of the Interior,
1968 Edition, in pertinent part as follows at page 650:
f. The weight borne by a structure
caused by gravity alone (dead load) or by
gravity increased by the stress of moving
weight (live load), as in the case of hoisting
a string of drill rods.
The term "suspend" is defined in Webster's New Collegiate
Dictionary, in pertinent part as follows:
"[T]o hang so as to
be free on all sides except at the point of support."
In the Pennsylvania Sand Glass case, supra, the inspector issued a citation based on his belief that someone had
performed work under a scrubber motor which had been lifted
up in the air by a chain hoist and tied off with a safety
ch.ain. The inspector believed that maintenance work was
required to be performed in the area under the motor while it
was in that suspended position. In addressing the question
as to whether the standard applied to the motor, even though
it appeared under a "materials storage and handling" general
regulatory section, I concluded that "it may be applied to a
situation where it is established that men are working under
any suspended loads, whether it be 'materials', as that term
is commonly understood, or motors or other equipment,"
1 FMSHRC 1208. Although I concluded that the cited section
was applicable, I vacated the citation on the ground that the
inspector failed to describe the alleged violative condition
with any particularity, and that he personally did not
observe anyone working under any suspended load.
The facts presented in the Pennsylvania Sand Glass case
are clearly distinguishable from the facts presented in the
instant case. In Pennsylvania Sand Glass, the inspector's

90

rationale for issuing the citation was based on his belief
that someone was working under a motor while it was suspended
in the air and held in that position by a chain lifting apparatus. In the case at hand, there is no evidence that the
conveyor belt structure which fell was tied to any crane or
other lifting apparatus, or was otherwise suspended at the
time of the accident. The evidence established that one end
of the conveyor piece in question had been lifted up by means
of a front-end loader and placed against the side of the bin,
while the other end remained on the ground at an angle.
Further, once placed in that position by the end loader, the
loader 1 t the area and was not holding the end which had
been laid to rest against the bin. Under these circumstances,
I cannot conclude that the conveyor section which fell was a
suspended load within the meaning or intent of section
56.16009, nor can I conclude that the cited section is applicable on the facts here presented.
I take note of the fact that the "condition or practice"
cited by the inspector on the face of his citation makes no
reference to any "suspended loads." However, the abatement
and termination notice indicated that abatement was achieved
by informing all employees of the hazards concerning "suspended loads." The testimony established that the end of the
conveyor which fell was not secured to the end of the bin by
a safety chain which is normally used for this purpose. While
it may be true that the accident could have been prevented by
securing the safety chain, the respondent here is not charged
with any safety infraction for failure to secure the end of
the conveyor to the bin. The respondent is charged with a
violation that requires men to stay clear of a suspended load,
and MSHA's theory is that the conveyor piece which fell was
suspended. On the facts of this case, I cannot conclude that
the petitioner has established a violation of section 56.16009.
ORDER
In view of the foregoing findings and conclusions, section 104(a) Citation No. 2660902, January 9, 1986, 30 C.F.R.
§ 56.16009, IS VACATED, and the petitioner's civil penalty
proposal IS DISMISSED.

91

Distribution:
Rebecca A. Siegel, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75202 (Certified Mail)
E. E. Clark, Secretary-Treasurer, Amarillo Road Company, P.O.
Box 32075, Amarillo, TX 79120 (Certified Mail)

/fb

92

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

22041

JAN 13 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
RONNIE D. BEAVERS,
DONALD L. BROWNING,
ROBERT L. CARPENTER,
EVERETT D. CURTIS,
LARRY L. EFAW,
ROGER LEON ERWIN,
CHARLES W. FOX,
LESTER D. FREEMAN,
LARRY F. HUFFMAN,
HARRY EDWIN HURST,
ROBERT HURST,
GARY.C. KNIGHT,
LARRY LANTZ,
MICHAEL L. MARRA,
WILFORD MARSH, JR.,
DAVID R. MARTIN,
DANNIE M. MAYLE,
CHARLES W. McGEE,
CHARLES F. MURRAY,
WALTER F. MURRAY,
LARRY NORRIS,
CLARA Y. PHILLIPS,
KENNETH D. SHOCKEY,
RICHARD D. SNIDER,
JESSE L. WARD,
BEDFORD WibFONG, JR.,
Complainants

DISCRIMINATION PROCEEDING
Docket No. WEVA 85-73-D
MORG CD 84-1
Kitt No. 1 Mine

and
UNITED MINE WORKERS OF AMERICA,:
Intervenor
v.
KITT ENERGY CORPORATION,
Respondent

93

SUPPLEMENTAL DECISION
Appearances:

Frederick W. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor, Arling~
ton, Virginia, for Complainants;
Mary.Lu Jordan, Esq., United Mine Workers of
America, Washington, D.C., for Intervenor;
B. K. Taoras, Esq., Kitt Energy Corporation,
Cleveland, Ohio, for Respondent.

Before:

Judge Maurer

I issued a decision on the merits in this case on September 10, 1986.
In that decision, I found that the complainants
had established that they had been discriminated against by
respondent in violation of section 105(c) of the Federal Mine
Safety and Health Act of 1977 (the Act). At that time, I.
ordered the parties, by counsel, to communicate for the purpose of stipulating to the extent possible the amounts of
monetary rel f due each of the named complainants, as well
as the amount of attorney fees that may be awarded to counsel
for the intervenor, United Mine Workers of America, who had
intervened on the side of the complainants.
The parties were able to stipulate the amounts due the
individual complainants if I did not allow any award based
on the overtime claim pressed by the UMWA, and for the reasons that follow I will not.
The basis for the UMWA's claim that the complainants are
due some overtime pay is that the operator employed part of
his workforce on the two weekends which were included within
the back pay period in issue. Therefore, UMWA's position is
that the operator should reimburse complainants in an amount
which reflects the fact that arguably some unspecified portion of the 26 of them would have worked the two weekends in
question, or some part thereof. They propose that each complainant be awarded a percentage of his or her Saturday and
Sunday pay that exactly matches the percentage of the operator's workforce that worked on that day.
The Secretary of Labor parts company with the UMWA on
this issue. While agreeing that reimbursement for lost overtime is generally recoverable, he states that this is an
atypical case.
The more typical case being one which involves long periods of unemployment where the loss of overtime earnings is clearly demonstrable. Here, he asserts,
and I concur, that it is speculative at best whether any
overtime opportunities were lost to these complainants.
The operator correctly points out that the burden of
proof on damages in this case is on the complainants. They
must establish by a preponderance of the evidence that they

94

in fact lost wages for overtime during the time they were laid
o
• There is no evidence in this record of which complainants, if any of--:them, would have worked overtime on any particular Saturday or Sunday during the layo
, and therefore
I find the UMWA's claim that all are entitled to some portion
of overtime pay during the two weekends herein involved too
speculative.
The Secretary of Labor, appearing on behalf of
the complainants, does not support this claim for overtime.
The UMWA, appearing as an intervenor and a representative of
the miners, has failed to carry the burden of proof on this
issue.
I therefore will award no back pay for overtime.
A second issue the parties were unable to resolve
amongst themselves was appropriate attorney fees, if any be
appropriate, to be awarded the UMWA, or it's staff attorney,
for its appearance and participation in this case as an
intervenor.
Section 105(c) (3) of the Act provides that "[w]henever
an order is issued sustaining the complainant's charges under this subsection, a sum equal to the aggregate amount of
all costs and expenses (including attorney's fees) as determined by the Commission to have been reasonably incurred by
the miner, applicant for employment or representative of
miners for, or in connection with, the institution and prosecution of such proceedings shall be assessed against the
person committing such violation."
Contrary to the operator's position, attorney fees may
be assessed in proceedings under any part of subsection (c)
of section 105 of the Act. See, e.g., Secretary on behalf
of Ribel v. Eastern Associatecr-coal Corp., 7 FMSHRC 2015,
2023 (1985), where the Commission held that "private attorneys' fees may be awarded to a prevailing miner in a
Secretary-initiated section 105(c) (2) discrimination proceeding, provided that private counsel's efforts are nonduplicative of the Secretary's efforts and further, that
private counsel contributes substantially to the success of
the litigation."
In Munsey v. FMSHRC, 701 F.2d 976 (D.C. Cir. 1983),
which in turn relied on Nat'l Treasury Employees Union v.
Dept. of the Treasury, 656 F.2d 848 (D.C. Cir. 1981), the
Court of Appeals for the District of Columbia held that
unions and union attorneys are entitled to costs and attorney fees for representation of union members.
The Court
also held that if the fees are awarded to the attorney
personally (not the union), the attorney is entitled to
receive
market value of her services. The fact that
the attorney is a salaried employee of the union does not
ct the size of the
to which she is otherwise entitled.

95

In this case, the UMWA as intervenor was a representative of miners and Mary Lu Jordan, Esq., was the UMWA staff
attorney representing the complainants along with counsel
for the Secretary, who instituted these proceedings.
Ms. Jordan has submitted a petition for attorney fees detailing 36.81 hours of time spent on the case at a requested
hourly fee of $110.00, for a total requested attorney fee of
$4,049.10. The operator, while objecting to the fee in toto
and in general has failed to cite with sufficient specificity
any portion of it that relates to duplicative or insubstantial efforts on the part of Ms. Jordan. My review of her
fee petition and her work product in this case leads me to
the conclusion that she did indeed significantly participate
in the case and contributed in a substantial way to the success of the litigation.
I also find that the hours and
market rate claimed by her are reasonable. Accordingly, I
am going to award the requested attorney fee of $4,049.10.
ASSESSMENT OF CIVIL PENALTIES
The Secretary of Labor, by counsel, filed his complaint
of discrimination in this case seeking inter alia, "an order
assessing appropriate civil, penalties against Respondent for
its violations of section lOS(c) ." Since this case was submitted on stipulated facts, I have evaluated evidence concerning the statutory criteria set forth in section llO(i}
of the Act only insofar as.evidence was available in the
record to do so. Where no evidence of certain criteria was
included in the stipulated record, such as the operator's
history of previous violations, the size of the operator's
business and the effect on the operator's ability to continue in business, I have considered these criteria in the
light most favorable to the operator. Having done so, I
consider a civil penalty of $1,000 for a violation of section 105(c} of the Act involving 26 individuals a de
minimus assessment under the totality of circumstances
contained in the stipulated record.
ORDER
1.
It is ORDERED that within 30 days of the date of
this Supplemental Decision the operator pay:
a.

Complainant R. Beavers the amount of $974.11.

b.

Complainant D. Browning the amount of $924.53.

c.

Complainant R. Carpenter the amount of $856.59.

d.

Complainant E. Curtis the amount of $924.53.

e.

Complainant L. Efaw the amount of $851.64.

96

f.

Complainant R. Erwin the amount of $851. 64.

g.

Complainant c. Fox the amount of $851.64.

h.

Complainant L. Freeman the amount of $1,136.09.

i.

Complainant L. Huffman the amount of $856.59.

j.

Complainant H. Hurst the amount of $918.21.

k.

Complainant R. Hurst the amuunt of $918.21.

1.

Complainant G. Knight the amount of $924.53.

m.

Complainant L. Lantz the amount of $828.97.

n.

Complainant M. Marra the amount of $924.53.

o.

Complainant W. Marsh the amount of $871.78.

p.

Complainant D. Martin the amount of $871.78.

q.

Complainant D. Mayle the amount of $851.64.

r.

Complainant C. McGee the amount of $1,698.84.

s.

Complainant C. Murray the amount of $851.64.

t.

Complainant W. Murray the amount of $851.64.

u.

Comp1ainant L. Norris the amount of $850.10.

v.

Complainant C. Phillips the amount of $851.64.

w.

Complainant K. Shockey the amount of $851.64.

x.

Complainant R. Snider the amount of $871.78.

y.

Complainant J. Ward the amount of $1,698.84.

z.

Compl

nant B. Wilfong the amount of $924.53.

2.
It is FURTHER ORDERED that the operator pay attorney
fees of $4,049.10 to Mary Lu Jordan, Esq., within 30 days of
the date of this Supplemental Decision.
3.
It is FURTHER ORDERED that the operator pay a civil
penalty of $1,000 to the Secretary within 30 days of the date
of this Supplemental Decision.

14M~

R
Maurer
Admi 1strative Law Judge
97

Distribution:
Frederick w. Moncrief, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
St., N.W., Washington, DC 20005 (Certified Mail)
B. K. Taoras, Esq., Kitt Energy Corporation, Standard Oil Bldg.,
7th Floor, 200 Public Square, Cleveland, OH 44114 (Certified
Mail)

yh

98

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

22041

JAN 14 1987
DISCRIMINATION PROCEEDING

DAIRL EDDINGTON,
Complainant

Docket No. ,KENT 86-164-D

v.
BARB CD 86-24
FALCON COAL COMPANY,
Respondent
DECISION
Before:

Judge Maurer

On January 30, 1986, the complainant, Dairl Eddington,
filed a complaint of discrimination under section 105(c) (2)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq., "the Act," with the Secretary of Labor, Mine
Safety-and Health Administration (MSHA) against the Falcon
Coal Company. That complaint was denied by MSHA and
Mr. Eddington thereafter filed a complaint of discrimination
with this Commission on his own behalf under section 105(c) (3)
of the Act. Mr. Eddington alleges that he was discriminated
against in violation of section 105(c) of the Act because he
was disqualified for a position in the mine that was subsequently filled by a relative of the superintendent. More
specifically he alleges as follows:
Robert Spencer, inside boss, told Henry Coots and
I on the outside to do on that day the same as we
had done on Friday 13th.
Inside, Robert then told me to build brattish.
The material sent in was not enough.
The materials sent were plaster or sealer was froze,
and I could only use half of it. Then I had to
take the scoop outside to get mandor, asking
Robert where it was he didn't know, so I had to
go find Kash Mullins, Supertindent, he then told
me where the mandor was. Then when I found the
mandor I had to move other materials to find it.
Then running out of material again we had to send
Ronnie Whitaker and another worker outside to get
the rest of the material.
They brought sack
cloth and cap boards. They also didn't brino any
4 inch block or 2 inch header block because they
were out.

99

At 2:30 Robert Spencer told me, I was wanted on the
outside by Kash Mullins. Before leaving the job I
asked was the brattish he was working on alright.
Roberts' reply to the question was "Yes, Dairl it's
Ok• II

On arriving outside it was about 2:45, Kash Mullins
started to talk, then he said wait a minute, he then
came back with Robert Spencer. They then told me
why they were disqualifing me. Kash said because of
being out of the mines as long as I had been I was
no longer an experienced miner.
They evaluated me
on the scoop for the length of time, I had operated
the scoop in their presence, and in their opinion I
should have been faster.
Robert Spencer, said I was
a good worker, and so did Kash. But that I wasn't
putting out enough production and that they would be
glad to have me work as an inexperienced miner. They
also said you had to be able to operate something
other than a scoop.
I operated a front end loader and built brattish.
Brattish person and scoop operator are different
classification.
The Falcon Coal Company thereafter responded, inter
alia, that the complaint· fails to state a claim upon which
relief can be granted under section 105(c). That contention
may be taken as a motion to dismiss under Rule 12(b) (6) of
the Federal Rules of Civil Procedure. For the purposes of
such a motion, the well pleaded material allegations of the
complaint are taken as admitted.
2A Moore's Federal Practice, ,[ 12. 08. A complaint should not be dismissed for insufficiency unless it appears to a certainty that the complainant is entitled to no relief under anv state of facts
which could be proved in support of a claim. Pleadings are,
moreover, to be liberally construed and mere vagueness or
lack of detail is not grounds for a motion to dismiss.
Id.
Section 105(c) (1) of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant
for employment in any coal or other mine subject
to this Act because such miner, representative of
miners or applicant for employment has filed or
made a complaint under or related to this Act,

Ioo

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 representative of miners or applicant for
employment has instituted or caused to be instituted
any proceedings 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.
In order to establish a prima facie violation of section
lOS(c} (1) the complainant must prove that he engaged in an
activity protected by that section and that the alleged discrimination was motivated in any part by that protected actiyi ty. Secretary ex. rel. David Fasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980), rev'd on other grounds,
sub nom, Consolidation Coal Company v. Secretary, 663 F.2d
1211 (3rd Cir., 1981}.
In this case Mr. Eddington asserts
that he was discriminated against because he was wrongfully
disqualified for a position in the mine which subsequently
was filled by a relative of the superintendent. Assuming
that this allegation is true, it is clearly not sufficient
to create a claim under section lOS(c) (1) of the Act. That
section does not provide redress for a wrongful disqualification for a particular job that may have been unfair if
that disqualification was not caused in any part by an activity protected by the Act. Accordingly, the complaint
herein must be denied and the case dismissed.

Distribution:
Dairl Eddington, P. 0. Box 15, Viper, KY
Mail)

41774

(Certified

George S. Brooks II, Esq., 1200 First Securitv Plaza,
Lexington, KY 40507 (Certified Mail}

yh

101

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

22041

JAN 15 1987
JIM WALTER RESOURCES, INC.,
Contestant

.:

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

CONTEST PROCEEDING
Docket No. SE 87-29-R
Citation No. 2810754; 12/9/86
Bessie Mine

DECISION
Appearances:

R. Stanley Morrow, Esq. and Harold D. Rice, Esq.,
Birmingham, Alabama, for Contestant;
William Lawson, Esq., Office of the Solicitor,
u. s. Department of Labor, Birmingham, Alabama
for Respondent.

Before:

Judge Weisberger
Statement of the Case

Docket Number SE 87-29-R is a notice of contest filed by Jim
Walter Resources, Incorporated on December 12, 1986 to review a
Citation, issued December 9, 1986, and a underlying safeguard
notice issued December 5, 1986 by an inspector of the Mine Safety
and Health Administration under Section 104(a) of the Act.
In this citation December 19, 1986 was provided as the date
that termination was due. Subsequently, this date was extended
until January 19, 1987.
On December 12, 1986 Contestant filed a Motion For Expedited
Proceedings. On December 12, 1986, this case was assigned to me
by Chief Judge Paul Merlin. On December 12, 1986 in a conference
call between Contestant, Respondent, and the undersigned it was
agreed that trial for this matter be scheduled for January 5,
1987. By Notice of Hearing dated December 19, 1986 Contestant's
Motion For Expedited Proceedings was granted and the matter was
set for hearing in Birmingham, Alabama on January 5, 1987. The
hearing was held as scheduled. Bill Pitts, Gerald Tuggle, James
A. Jones, Stephen w. Vaughn, and Edward Scott testified for
Respondent.
Bobby Taylor testified for Contestant.

102

Applicable Statute and Regulations
Section 314Cb) of the Act which also appears in 30 C.F.R.
§ 75.1403 provides as follows:

Other safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and
materials shall be provided.
Notice to Provide Safeguards and Citation
The subject notice to provide safeguards dated December 5,
1986 provides as follows:

Present means of controlling the underground rail
traffic is inadequate in that a person designated by
the operator to give clearance was not provided nor
blocked signals being used.
This is a notice to provide safeguard requiring all
underground rail traffic to require clearance from a
person so designated by the operator or block signals
to be installed and maintained in an operative condition to provide clearance.
The subject citation, dated December 9, 1986, provides as
follows:
The mine operator failed to comply with a notice to
provide safeguard number 2810752 issued December 5,
1986 that required all underground rail traffic to
require clearance from.a person so designated by the
operator or block·signals to be installed and maintained in an operative condition to provide clearance.
No plan nor work was presented to comply with the safeguard on the termination date due December 9, 1986 at
8 o'clock a.m.
Stipulations with Reguard to Jurisdiction
The parties stipulated as follows:
1.

The operator is the owner and operator of the subject

mine.
2. The operator and the mine are subject to jurisdiction of
the Federal Mine Safety and Health Act of 1977.
3.

The Administrative Law Judge has jurisdiction over this

case.
4. The MSHA Inspector who issued the subject citation was a
duly authorized representative of the Secretary.
103

5. A true and correct copy of the subject citation was
properly served upon the operator.
Findings of Fact and Discussion
In Contestant's Bessie Mine, aside from walking, the only
way of transporting men and material from the entry to the
various work area is by way of tranportation vehicles such as
jeeps, locomotives, or trip motors, all of which must travel
along a single track. This track is used for transportation of
vehicles going into and out of the mine. These transporation
vehicles use the track during every shift. In order to prevent
head-on collisions Contestant has furnished each transportation
vehicle with a two-way telephone-radio which gets its power from
a trolley line which is also used to power the vehicle.
In
general, according to the uncontradicted testimony of Inspector
Gerald Tuggle, and Contestant's motorman James A. Jones who testified for Respondent, an operator when leaving a certain area,
such as Header Number 3, would call to say that he is leaving
Header Number 3 and going to Header Number 4. These calls are
done in transit and the operator does not wait for any response.
According to the uncontradicted testimony of Inspector
Tuggle and motorman Jones, the track in the Bessie Mine contains
steep upgrades followed by steep downgrades especially throughout
the Palos Shaft between Header Number 3 and Header Number 7.
Indeed, the uncontradicted testimony of Tuggle and Jones
establishes that the slope of the upgrades and downgrades are so
steep, as to create numerous blind spots where vision is so
limited that an operator of a vehicle at that point is unable to
see a vehicle coming at him from the opposite direction and that
in essence these conditions are "unique" to Bessie Mine (Tr. 106).
Blind spots are also present in areas where the track leaves the
belt and enters a s curve. Mr. Tuggle's uncontradicted testimony
established that other mines may have upgrades and downgrades,
but they are not as bad as in the Bessie Mine. Also, there are
areas of the track that have rock dust, debris or sand which
prevent a vehicle's wheels from fully touching the rail, thus
eliminating a ground for the telephone-radio and causing static
or interference. According to the uncontradicted testimony of
Tuggle, sand is used "a lot" due to the hills and hollows of the
track at Bessie Mine.
Contestant's only witness, Safety Inspector Bobby Taylor,
stated that in his opinion the present telephone-radio system of
preventing h~ad-on collisions or collisions in blind spots is
"not inadequate." In essence he said that in general in
approaching blind spots one should slow down and operate at a
speed which is consistent with track conditions. Although
excessive speed might be a contributing factor to collisions, the

104

issue here is whether Contestant's telephone-radio system, when
used while traveling at proper speed, resulted in any increased
risk of collision.
Taylor testified that when approaching a blind spot it is
possible to be warned by the lights of an oncoming vehicle. He
testified that when the vehicle lights are not functioning one
can see cap lights of the miners riding in the vehicle. On
cross-examination Jones admitted that it is pQssible to see the
light of a oncoming jeep before a collision. However 1 it can not
be found that the risk inherent in approaching a blind spot,
i.e., not knowing for certainty that there is not any vehicle
beyond the blind spot, is minimized to any great degree by being
able to see the light on the oncoming vehicle. There is no clear
convincing evidence as to the distance which one can see and be
warned by a light of the oncoming vehicle especialy approaching
the end of a blind area or going around an S curve at normal
speed.
The balance of the evidence indicates that the present
system of controlling traffic creates a risk of injury due to the
specific conditions of the contour of the track of the Bessie
Mine. Indeed, even Taylor indicated that the present system
could work "with certain improvements" CTr. 229). Considerable
weight was accorded the testimony of Jones and Scott due to the
extensive nature of their experience operating and riding
vehicles along the track of Bessie Mine. In this connection it
is noted that Jones has been a motorman for 6 years, and Scott
worked as a motorman for 20 years and as a fire boss for 12 years.
In essence, their testimony corroborates the opinion of Tuggle
that under the present system whenever transportation enters a
blind spot there is uncertainty in not knowing whether another
vehicle is coming in the opposite direction or is stuck beyond
the blind spot. Due to the fact that the responsibility of the
operator of a vehicle along the track is only to indicate on the
telephone-radio that he is leaving a point to go to another
point, he can only be warned of a oncoming vehicle or a vehicle
disabled in a blind spot if the second vehicle has communicated
it is leaving a certain area and the first vehicle heard the
transmission. The oncoming vehicle, similarly, will avoid risk
of collision only if its telephone-radio received communication
from the first vehicle as to its destination. However, the
uncontradicted testimony of Tuggle was that material on the
track, a condition peculiar to Bessie Mine, prevents a good
ground for the telephone-radio and thus prevents adequate
~eception and transmission.
Further, due to the numerous blind
spots, caused by steep upgrades and downgrades of the track, and
the fact that there is only a single track that carries traffic
every shift, the risk of collision is quite high. Indeed,
Contestant's witness .Taylor testified that about once a week
while traveling in a vehicle underground he has unexpectantly met
a vehicle coming in the opposite direction and that the vehicle
operator did not hear communications from Taylor's vehicle.
Tuggle, Scott and Jones also testified to similar occurrences.

105

It is thus found that the present system, which allows a
vehicle operator to proceed into a blind area without receiving
positive clearance, increased the risk of collision. Section
304(b) of the Act which also appears at 30 C.F.R. § 75.1403, in
essence authorizes a Federal Mine Inspector to issue safeguards
which in his judgment will "minimize hazards" with respect to
transportation of men and materials. It is clear that the safeguard issued by Tuggle on December 5, 1986 falls within the
purview of the above section. This safeguard requires underground rail traffic to require clearance from a person designated
by the operator or in the alternative block signals are required.
According to the uncontradicted testimony of Tuggle, under a
dispatch system a vehicle operator must call the dispatcher
before proceeding into a certain area. The operator can proceed
into the area only after the dispatcher tells him the area is
clear. In a Block System, according to the uncontradicted testimony of Scott and Tuggle, an operator of a vehicle upon entering
an area turns on a traffic light. This light remains on until
the operator clears the area and turns the light off.
Taylor testified that the present system is better than a
dispatcher and as good or better than a Block System. He testified that in the 9 months that he worked at Bessie Mine, which
has neither a Block System nor a dispatcher, there were no wrecks.
In contrast, he said that at the Number 3 Mine which has a Block
System and a dispatcher, in any 9 month period since 1973 there
have been more wrecks. However, there were no records produced
to provide evidence that the accidents at Number 3 Mine were
caused solely by a malfunction of a dispatcher or Block System.
They could have resulted from negligence or other causes. What
is clear is that the present system creates a risk of injury and
that the safeguard in the judgment of Tuggle will minimize the
risk. This opinion in essence was corroborated by the testimony
of Scott and Taylor. Considerable weight was placed on their
testimony due to their extensive experience operating and riding
on underground transportation vehicles especially at the Bessie
Mine.
The traffic control systems required in the safeguard are
clearly not fool proof. On cross-exmination Tuggle indicated
that there could be people who would not call a dispatcher as
required, and Taylor indicated that a dispatcher might erroneously give clearance to two vehicles to enter the same area at
the same time. It is clear that any system will not decrease the
risk of injury if there is human -error. There is no way to
insure 100 per cent against human error. However, a dispatcher
system used properly, will insure that a vehicle will not enter a
blind spot unless it has positive clearance from a dispatcher.
This will minimize the hazard of collision inherent in the
present system.

106

Taylor indicated that with the Block System there is a
continuous problem of lights going out. More weight was placed
on the testimony of Scott due to his 20 years experience
operating and traveling underground vehicles in mines with a
Block System in his job as fire boss. It was his testimony that
although block lights could go out, these are one of the first
items a fire boss inspects. It is concluded that a Block System,
which is maintained, will thus minimize risk of collision in
blind spots, as under that system a vehicle would not enter an
area containing a blind spot if the light is lit. Accordingly,
the hazards of the present system will be minimized.
At the hearing no evidence was presented to rebut statements
in the December 9, 1986 Citation and testimony of Tuggle that
safeguard 2810752 has not been complied with.
Based on all of the above, it is concluded that the safeguard of December 5, 1986 was properly issued. The Contestant
has failed to comply with the safeguard issued on December 5,
1986. As such, the citation (2810054) of December 9, 1986 was
properly issued.
At the hearing counsel for both parties presented opening
arguments. At the conclusion of the hearing counsel for both
parties presented proposed findings of facts and posthearing
arguments.
In reaching my decision I have considered all these.
At the hearing the parties additional stipulations were
offered as follows:
1. The history of the company with reguard to violations is
average.
2.
Imposition of a penalty will have no effect on the
ability of the operator.to continue in business.
3.

The size of the operator is medium.

4. The negligence of the operator, in the violation
referred to in citation 2810054 is low.
5. The gravity of the violation contain in citation 2810054
with reguard to the likelihood of an accident or injury was as
testified to by T~ggle.
6. The violation referred to in citation 2810054 was not
abated on the respresentation of counsel. This is not considered
to be a lack of good faith.

107

ORDER
It is ORDERED t.hat the Contest, filed on December 12, 1986,
contesting citation 2810054, be DISMISSED.

~~

Weisberger
Administrative Law Judge

~vram

Distribution:
Harold o. Rice, Esq., and R. Stanley Morrow, Esq., Jim Walter
Resources, Inc., P. O. Box C-79, Birmingham, AL 35283 (Certified
Mail)
H. Gerald Reynolds, 13sq., Jim Walter Corporation, 1500 North Dale
Mabry Highway, Tampa, FL 33607 (Certified Mail)

William Lawson, Esq., Office of the Solicitor, u. s. Department
of Labor, 2015 2nd Avenue, Suite 201, Birmingham, AL 35205
(Certified Mail)
dcp

108

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

JAN 211987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

Docket No. SE 86-83
A.C. No. 01-01401-03628

v.

No. 7 Mine

JIM WALTER RESOURCES, INC.,
Respondent

.
DECISION

Appearances:

Before:

William Lawson, Esq., Office of the Solicitor,
u.s. Department of Labor, Birmingham, Alabama,
for Petitioner; Harold Rice, Esq., and R. Stanley
Morrow, Esq., Birmingham, Alabama, for Respondent.

Judge Broderick

STATEMENT OF THE CASE
In this proceeding, the Secretary seeks civil penalties for
two alleged violations of the mandatory standard contained in 30
C.F.R. § 75.316. In one, Respondent is charged with violating
its approved ventilation, methane and dust control plan by
failing to maintain line curtain to within ten feet of all faces
in all working places inby the last open crosscut at all times
except while roof bolting. With respect to this violation, the
parties submitted the case for decision on stipulated facts and
an agreed-upon issue. The other citation involves an alleged
failure to comply with the approved ventilation plan in that
methane in excess of 2.0 percent (modified by agreement at the
hearing to 1.0 percent) was detected in the Southeast and South
bleeder entries of the subject mine. Evidence was taken on this
violation at the hearing in Birmingham, Alabama, on October 22,
1986. Ronald James Soneff, II, William Jerry Vann, and Kenneth
Ealey testified on behalf of the Secretary. Ted Sartain
testified on behalf of Respondent.
Both parties have submitted
post hearing briefs. Based on the entire record and considering
the contentions of the parties, I make the following decision.

109

PRELIMINARY FINDINGS OF FACT
Respondent at all times pertinent hereto was the owner and
operator of an underground coal mine in Tuscaloosa County,
Alabama, known as the No. 7 Mine. Respondent is medium sized and
its history of prior violations is average. The imposition of
penalties herein will not affect Respondent's ability to continue
in business. The violations charged were abated in good faith.
ORDER NO. 2605979
On March 13, 1986, Federal Mine Inspector Gerald N. Tuggle
issued a withdrawal order under section 104(d)(2) of the Act
alleging a violation of 30 C.F.R. § 75.200.
It was modified on
March 24, 1986, to charge a violation of 30 C.F.R. § 75.316
rather than § 75.200. The parties have stipulated that the
following condition was present in the No. 8 section of the
subject mine: the continuous mining machine had mined the
crosscut to the left on the curtain Cbrattice line) side and the
end of the curtain terminated in excess of 10 feet from the
deepest point of penetration of the face to the straight of the
entry. The parties have agreed that the approved ventilation,
methane and dust control plan in effect at the subject mine when
the order.was issued required that the line brattice be
maintained to within 10 feet of the area of deepest penetration
of all faces in all working places inby the last open crosscut at
all times except while roof bolting.
The parties have agreed that the issue before me is whether
Respondent was required to maintain line curtain to within
10 feet of all faces, or only the working faces from which coal
is being extracted or was most recently extracted. The same
issue was decided by me in a case between the same parties in
September 1985. Secretary v. Jim Walter Resources, Inc., 7
FMSHRC 1471 (1985).
I decided that Respondent was required to
maintain the line curtain to within 10 feet of all faces.
Respondent did not seek Commission review, and the decision
became a final decision of the Commission. 30 u.s.c. § 823(d)(l).
Ordinarily, the doctrine of ~ judicata or collateral estoppel
would preclude the relitigation of an issue between the same
parties which was previously litigated.
46 Am. Jur. Judgments
§ 397 (1969); lB Moore's Federal Practice§ 0.405 (1982);
RESTATEMENT (SECOND) OF JUDGMENTS, §§ 27, 83 (1982); KENNETH
DAVIS, ADMINISTRATIVE LAW TREATISE, § 21:1-21:9 (2d Ed. 1983);
Commissioner v. Sunnen, 333 U.S. 591 (1948); United States v.
Utah construction & Mining Co., 384 U.S. 394 (1966); Montana v.
United States, 440 U.S. 147 (1979). However, the same issue
between the same parties was relitigated in the case of Jim
Walter v. Secretary, 8 FMSHRC 568 (1986), review pending-:---ln
that case Judge Koutras held that the plan requirement that line
brattice be maintained to within 10 feet of all faces means all
working faces. The question of issue preclusion was apparently

110

not raised by the Secretary in that case. Because the issue has
been decided in conflicting ALJ decisions, and is presently
before the Review Commission, I will address the merits of the
case.
30 C.F.R. § 75.316 provides in part as follows:
A ventilation system and methane and dust control plan

• • • suitable to the conditions and the mining system
of the coal mine and approved by the Secretary shall be
adopted by the opera tor • • • The plan shall show the
type and location of mechanical ventilation equipment
installed and operated in the mine, such additional or
improved equipment as the Secretary may require, the
quantity and velocity of air reaching each working
face, and such other information as the Secretary may
require* * * [Emphasis added].
The ventilation plan in this case, as in the other cases,
was changed in 1972 to include the following language:
Line brattice shall be maintained to within 10 feet of
the area of deepest penetration of all faces in all
working places inby the last open crosscut at all times
except while roof bolting and servicing as s~ated in
the plan.
This provision was imposed upon Respondent in 1972 because
of the high methane liberation in its mines. For this reason,
the Secretary required "additional or improved equipment," beyond
that required by 30 C.F.R. § 75.302-l(a), which mandated that
line brattice be maintained to within 10 feet of active working
faces.
I conclude that the requirement imposed by the Secretary
is within his authority, and that the term "all faces" includes
idle faces. The citation was properly issued. The parties have
stipulated that the proposed penalty of $750 is appropriate for
the violation.
CITATION NO. 2605452
FINDINGS OF FACT
On February 20, 1986, MSHA ventilation specialist
William Vann inspected the subject mine, after being informed by
MSHA safety inspector Jerry Tuggle that the mine was having
problems with high methane concentrations in the area of the No.·
1 longwall section.
Inspector Vann was accompanied by Ted
Sartain, ventilation engineer for Jim Walter, and by a union
representative. He took methane readings with three separate
mechanical instruments, three in the Southeast bleeder entries,

111

and four in the South bleeder entries. The former varied from
2.1 percent methane to 2.5 percent. Two bottle samples were
taken and were later analyzed at the MSHA laboratory. The
samples showed 2.13 percent and 2.21 percent methane. The
readings in the South bleeder entries varied from 1.4 percent to
3.06 percent and included readings of 2.4 percent, 2.6 percent,
2.7 percent and 3.0 percent methane. Three bottle samples were
taken and analyzed at 2.32 percent, 2.33 percent and 3.05 percent
methane. Mr. Sartain also took methane readings which esentially
agreed with those of Inspector Vann. The area covered by the
Inspector totalled approximately 6600 feet.
Because of these
findings, the Inspector issued an imminent danger withdrawal
order under section 107Ca) of the Act requiring Respondent to
withdraw from the No. 1 longwall section and the Southeast main
and South entries behind the longwall. He also issued a 104{a)
citation charging a violation of the ventilation, methane and
dust .control plan. At the time the order and citation were
issued, the longwall was energized and in operation.
Ronald Soneff, a fireboss at Jim Walter, made an inspection
of the No. 1 longwall section in the latter part of 1984. He
found and recorded the finding of 4 percent methane in the South
bleeder entries. The following day he was told not to inspect
the area thereafter. After a management change, he returned to
firebossing the area in mid-1986.
The subject mine is a gassy mine. It liberates in excess of
19 million cubic feet of methane in a 24 hour period. For this
reason it is subject to spot inspections under section 103(i} of
the Act every 5 working days. The subject mine has experienced
52 methane ignitions from 1977 to 1985, six of them between
October 22, 1985 and September 24, 1986. The last one
(September 24, 1986) occurred on the headgate side of the No. 1
longwall section.
The roof in the South bleeder entries is very poor and has
been deteriorating since at least 1984. Rock falls have affected
the ventilation in the South and Southeast bleeder entries.
In
December 1985, Inspector Vann told Ted Sartain that the roof was
beginning to deteriorate in the bleeder entries. Sartain replied
that Respondent was beginning to install cribs in the area.
The ventilation System and Methane and Dust Control plan in
effect for the subject mine on February 20, 1986 contained the
following provision:
All provisions of published regulations and
criteria pertaining to ventilation and methane and .dust
control must be followed except as noted below:

112

75.316-2(d)--When methane content in a ma1n
return exceeds 1.0 volume percentum, mine
management shall submit a plan detailing
additional evaluation procedures and
safeguards which will be utilized to insure
safety.
On August 1, 1985, Respondent requested a change in the
ventilation plan as follows:
Jim Walter Resources, No. 7 Mine requests that the
methane content in the main return air courses be in
excess of 1.0 volume percentum, but shall not exceed
2.0 volume percentum. The following provisions will be
complied with in this area:
1. Fireboss examinations • • • at intervals not to
exceed twenty four hours.
2. Electrical equipment will not be operated in an
area where the methane content • . • is 1.0 percentum or
more.
3. The main return air splits shall be examined
immediately prior to entering a return shaft or fan.
The
methane content of the air passing through the fan shall be
less than 1.0 volume percentum.
The request was appr0ved February 21, 1986 by the MSHA District
Manager in a letter reading:
The request that the methane content in the bleeder
entry and the Number One South East Main return air
courses after the bleeder splits from the longwall
panels enter these air courses be in excess of 1
percent but not to exceed 2 percent methane has been
reviewed and is approved for the area serving the
Number One Longwall.
After the order and citation were issued on February 20,
1986, and the No. 1 Longwall was shut down, Respondent closed
No. 11 section (a continuous miner section) and took the air from
that section and put it on the longwall to increase the
ventilation and reduce the methane. On February 23, 1986,
Inspector Vann found that the volume of air was increased in the
South and Southeast bleeder entries, and the methane content had
been reduced to less than 1.5 percent. The order was terminated.
The citation was terminated on February 26, 1986, when it was
learned that the District Manager had approved the supplement to
the ventilation plan.

113

ISSUE
Whether Respondent's failure to maintain the methane content
in the South and Southeast bleeder entries of the No. 1 longwall
section at or below 1.0 percent was a violation of the approved
ventilation plan.
CONCLUSIONS OF LAW
Respondent is subject to the provisions of the Federal Mine
Safety and Health Act of 1977 in its operation of the No. 7 Mine,
and I have jurisdiction over the parties and subject matter of
this proceeding. 30 C.F.R. § 75.316 requires Respondent to adopt
a ventilation system and methane and dust control plan. When
such a plan is adopted and approved by the Secretary, Respondent
is required to comply with its provisions.
Zeigler Coal Company
v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976). The provisions in the
plan in effect at the subject mine relating to maximum
permissible methane content are not, as counsel for the Secretary
admits, a model of clarity. However, I believe that a fair
reading of the letter of July 17, 1985 approving the plan shows
that it requires adherence to the criteria in 30 C.F.R.
§ 75.316-2 (§ 75.316-2Cd) provides that methane in a return air
course should not exceed 2.0 percent, and that air in any active
workings shall contain less than 1.0 percent methane) except that
where methane in a main return exceeds 1.0 percent, a plan shall
be submitted with detailed evaluation procedures and safeguards
to insure safety. The "exception" thus imposes a more stringent
requirement than the criteria in§ 75.316-2(d).
I read the plan
to require Respondent when circumstances indicate that methane
may exceed 1.0 percent to take the steps necessary to reduce it
below 1.0 percent. The evidence here shows a history of
excessive methane in the area in question. It also shows that
Respondent was aware of this fact.
It further shows a seriously
deteriorating roof condition which could be expected to disrupt
ventilation.
It shows on the date of the inspection methane
readings far in excess of the maximum percentages, and
approaching dangerous levels. These facts in combination show a
violation of the ventilation plan. The request of August 1, 1985
to increase the maximum permissible level to 2.0 percent does not
constitute "a plan detailing additional evaluation procedures and
safeguards which shall be utilized to insure safety."
The steps taken after the order and citation were issued
should have been taken earlier and would have prevented the
excessive methane buildup. Cf. Secretary v. Youghiogheny & Ohio
coal Company, 5 FMSHRC 1581 (1983), vacated on motion, 7 FMSHRC
200 (1985).

114

The excessive methane content in the area of the mine in
question posed a serious hazard to miners--f rom an ignition or
mine fire, or even an explosion if the methane concentration
increased. The conditions causing the excessive methane were
known to Respondent, which should have taken steps to reduce it.
The violation was very serious, and resulted from Respondent's
negligence. Based on the criteria in section llOCi) of the Act,
I conclude that an appropriate penalty for the violation is
$1000.

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED that Respondent shall, within 30 days from the date
of this decision, pay the following civil penalties for
violations found herein:
Order 2605979
Citation 2605452

$ 750

1000
Total

j

$1750

j,r;vz 5 ),lf:,,,,cft Vl d
James A. Broderick
Administrative Law Judge

Distribution:
William Lawson, Esq., U.S. Department of Labor, Office of the
Sollicitor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail}
Stanley Morrow, Esq., Ha_rold ·o. Rice, Esq., Jim Walter Resources,
Inc., P.O. Box C-79, Birmingham, AL 35283 <Certified Mail}
slk

115

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 211987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF SAM BALL,
Complainant

.:

v.

.
.

WESTMORELAND COAL COMPANY,
Respondent

.
..

DISCRIMINATION PROCEEDING
Docket No. VA 86-23-D
NORT CD 85-9

.

ORDER OF DISMISSAL
Before:

Judge Broderick

On November 4, 1986, the Secretary filed a motion to
withdraw the complaint, based on a settlement agreement between
the parties. Respondent supported the motion. By the settlement
agreement, Respondent agreed not to discriminate against any
miner or representative of miners in violation of the Act, and,
in particular agreed not to discriminate against Sam Ball or any
other miner in making job assignments because of their status as
miners' walkaround representatives •. Respondent agreed to post a
copy of the settlement agreement for a period of 60 days.
On January 8, 1987, counsel for Respondent certified that
the settlement agreement had been posted by Respondent for a
period of 60 days.
Accordingly, the motion to withdraw the complaint pursuant
to the settlement agreement is GRANTED, and this proceeding is
DISMISSED.

j~~=~

Administrative Law Judge

116

Distribution:
Mark R. Malecki, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 Certified Mail>
Thomas c. Means, Esq., Crowell & Moring, 1100 Connecticut Ave.,
N.W., Washington, D.C. 20036 (Certified Mail)
Sam Ball, Rt. 1, Box 197, St. Charles, VA 24282 (Certified Mail)
slk

117

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

JAN 211987
WEST ELK COAL COMPANY, INC.,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. WEST 86-28-R
Citation No. 2336427; 10/23/85

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

Docket No. WEST 86-29-R
Citation No. 2336428; 10/23/85

..

Docket No. WEST 86-30-R
Citation No. 2336430; 10/24/85
Docket No. WEST 86-31-R
Citation No. 2833301; 10/30/85
Docket No. WEST 86-32-R
Citation No. 2833302; 10/30/85
Mt. Gunnison No. 1 Mine

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-73
A.C. No. 05-03672-03542

v.
:

Mt. Gunnison No. 1 Mine

WEST ELK COAL COMPANY, INC.,
Respondent
DECISIONS
Appearances:

Thomas F. Linn, Esq., Legal Department,
Anaconda Minerals Company, Denver, Colorado,
for Contestant/Respondent;
James H. Barkley, Esq., Office of the
Solicitor, U.S. Department of Labor, Denver,
Colorado, for Respondent/Petitioner.

Before:

Judge Koutras

118

Statement of the Proceedings
These consolidated proceedings concern five Notices of
Contest filed by the West Elk Coal Company, Inc., challenging
the validity of five section 104Ca) "non-S&S" citations
issued pursuant to the Federal Mine Safety and Health Act of
1977, and civil penalty proposals filed by MSHA seeking civil
penalty assessments for the citations.
The cases were heard by Commission Judge John A. Carlson,
and the parties filed posthearing briefs. However, due to the
untimely death of Judge Carlson, the cases were reassigned to
me, and the parties agreed to my adjudication of the cases on
the basis of the record made before Judge Carlson without any
additional hearings. I have considered all of the arguments
made by the parties in their respective briefs in the adjudication of these proceedings.
Issues
The issues presented in these proceedings are as follows:
1. Whether the respondent violated the
cited mandatory safety standard, and if so,
the appropriate civil penalties to be assessed
for those violations based on the criteria
found in section llOCi) of the Act.
2. Whether the inspector who issued the
citations followed the appropriate test procedures in support of the alleged violations,
and whether or not those procedures were proper
and valid.
3. Additional issues raised by the parties are identified and disposed of in the
course of these decisions.

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et ~·

§

2.

Section llOCi) of the 1977 Act, 30 U.S.C. § 820(i).

3.

Mandatory safety and health standard 30 C.F.R.

75.316.

119

4.

Commission Rules, 20 C.F.R. § 2700.l et seq.
Discussion

These cases arise out of five citations issued by MSHA
Inspector Matthew Biondich in connection with his permissibility inspection of the low water shutdown systems on five
diesel operated shuttle cars used underground in West Elk's
Mt. Gunnison No. 1 Mine. The citations were issued between
October 23 and 30, 1985, and each allege a violation of the
approved mine ventilation system and methane and dust-control
plan requirements found in 30 C.F.R. § 75.316. Each citation
alleges that a violation of the ventilation plan occurred in
that the cited equipment was not in compliance with the "manufacturer's operating specifications and maintenance manual in
the care of use of diesel equipment * * * in that the low
water shutdown * * * would not shut the engine off when the
water ·was completely drained from the scrubber."
During the course of a regular inspection of the mine,
Inspector Biondich tested 12 diesel shuttle cars to determine
their compliance with the applicable permissibility standards.
The ram cars are used to carry coal from the mine face area to
a dump point. Since the cars work in the face area and passed
the last open crosscut, they are required to be in compliance
with the permissibility standards. These standards require
that the hot exhaust from the car diesel engines be routed
through a device known as a scrubber. The purpose of the
scrubber is to cool the exhaust with water so that exhaust and
any expelled carbon particles will not act as a source of dust
or methane ignition. The water used in the system is contained in the scrubber tank, and the scrubber operates by routing the exhaust through a perforated pipe which is under water.
As water is depleted from the scrubber tank, a float valve
assembly attached to the side of the scrubber tank senses any
depletion of water and allows water to enter the scrubber tank
from another 90 gallon tank called variously the makeup,
reserve, or supply tank. The scrubber is equipped with a
device known as the low-level water shutoff device, and the
purpose of that device is to shut off the car engine in the
event the scrubber tank no long.er has water in it to cool the
exhaust. On 5 out of the 12 cars inspected by the inspector,
the low-level water shutoff device, when tested, did not act
to shut down the car engines, and they were cited. The citations in issue are as follows:
Citation No. 2336427 was issued at 9:40 a.m., on
October 23, 1985, and it cites a violation of mandatory

120

safety standard 30 C.F.R. § 75.316.
practice is as follows:

The cited condition or

The approved ventilation plan was not
being complied with according to manufacturer's
operating specifications and main.tenance manual
in the care and use of diesel equipment in
1 south panel working section (005-C} in that
the low water shut down on the R6 Jeffrey Ramcar serial No. 38272 would not shut the engine
off when the water was completely drained from
the scrubber.
The violation was abated at 12:40 p.m., the same day by
installing a new float valve assembly.
The condition or practice cited in the four remaining
citations are identical to Citation No. 2336427, and simply
cite four additional ram cars. They are as follows:
Citation No. 2336428 was issued on October 23, 1985, at
10:50 a.m. for a violation on Jeffrey Ram Car No. R-11. The
citation was abated at 11:30 on that same day by repairing
the needle valve on the float valve assembly.
Citation No. 2336430 was issued on October 24, 1985, at
9:30 a.m. for a violation on ram car No. R-12. The violation
was abated at 10:40 on that same day by installing a new air
float valve on the .float compartment.
Citation No. 2833301 was issued on October 30, 1985, at
9:00 a.m. for a violation on ram car No. R-4. The violation
was abated at 10:25 on that same day by clearing rust flakes
out of the float tank compartment.
Citation No. 2833302 was issued on October 30, 1985, at
11:00 a.m. on ram car No. R-5. The violation was abated at
1:30 on that same day. The abatement noted that the low
water shut-down device on the ram car was restored to operating condition in that the engine would shut off before the
water was drained from the scrubber.
MSHA's Testimony and Evidence
MSHA Inspector Matthew Biondich testified as to his mining experience and training, including training with respect
to diesel equipment permissibility inspections. He confirmed
that he conducted the inspections in question beginning on
October 23, 1985, and that he inspected the diesel operated

121

ram cars for permissibility compliance. He identified
exhibit S-1 as a copy of the pertinent portion of the mine
ventilation plan as it pertains to diesels. He confirmed ·
that paragraph #2, pg. 28, of that plan applies to the cited
ram cars, and that the cars were not being operated and maintained in accordance with the referenced manufacturer's
manual specifications (Tr. 6-11).
Inspector Biondich stated that he inspected ram car #R-6
on October 23, 1985, for permissibility, and confirmed that
it operated from the face areas to the dumping point past the
last open crosscut. He stated that he has conducted over 100
permissibility inspections since 1977, and he described the
procedures he follows in conducting these inspections. With
respect to any required permissibility tests, such as diesel
fuel, air, and water shut down systems, he confirmed that
these tests are conducted by company personnel and that he
simply acts as an observer. Equipment subject to the permissibility standards must be inspected weekly by the operator
(Tr. 13-17).
With regard to the low water shut down systems test on
the ram cars, Mr. Biondich stated that he requested the personnel conducting the test to shut the main water supply off
to save time, and he believed the operator's personnel were
familiar with the required test (Tr. 18).
Mr. Biondich explained that the purpose of the car scrubber is to cool the exhaust of the diesel car engine so as to
prevent fire and explosion hazards caused by the heat generated by the exhaust system. The scrubber serves to cool the
exhaust heat and flames generated by the car engine, and it
does this by using water from the machine water supply.
If
there is no water in the scrubber, the machine will "kick out
hot carbon and heat" into the mine atmosphere, and this would
create a fire and explosion hazard. The tests were conducted
to ascertain whether or not the low water shutoff device on
the cars were working properly so as to shut down the engine
in the event the available water from the scrubber water
supply reached a certain level (Tr. 18-21).
Mr. Biondich identified exhibit S-2 as a schematic drawing of a scrubber and makeup tank and float valve illustrative
of the kind used on ram car No. 6, and he explained how the
low water shutoff device operates and how it is tested (Tr.
21-23). He explained that in the event the water in the scrubber falls below a certain level, the engine cutoff float valve
operates to add water to the scrubber from a water makeup tank.
In the event there is insufficient water in the makeup tank,

122

or if the water falls below 5 or 6 inches in the scrubber and
is not replaced, the valve is supposed to shut the car engine
down (Tr. 24).
Mr. aiondich confirmed that company personnel tested the
engine cutoff valve on the No. 6 car and that he observed the
test. The main water supply from the reservoir was shut down
so that the water level in the scrubber could be checked without using all of the water in the makeup tank.
In addition
to a needle valve used to shut off the makeup tank water
supply, some of the cars were equipped with a regular water
shutoff valve between the scrubber and makeup tank. Once the
scrubber tank water supply was cut off, a plug on top of the
scrubber was opened, and the individuals conducting the tests
explained that this was done to prevent air locks in the
scrubber tank. After all of· the water drained from the scrubber and stopped running out of the scrubber tank, the engine
kept running and the valve would not shut down the engine~
Had the engine scrubber cutoff float valve been operating
properly, the engine should have shut off. Since it did not,
he concluded that the car was not being maintained properly
(Tr. 24-28).
Mr. Biondich stated that the citation for the No. R-6
car was abated at 12:40 p.m., 3 hours after the machine was
tested, and he confirmed that he was present "a majority of
the time" during the abatement. Abatement was achieved by
installing another float valve assembly, and a second test
was conducted using the same procedure as previously
described.
Before the water stopped draining out of the
scrubber tank, the car engine shut down, and this indicated
to him that the shutoff valve was operating properly. The
same test was used both during his initial inspection and the
abatement of the violation (Tr. 29-31).
Mr. Biondich confirmed that after the No. R-6 car was
tested, the same company mechanic tested the No. R-11 car,
and the low water shutoff valve was tested in the same manner
as the No. R-6 car was tested. He again asked the mechanic
to shut down the main water supply to save time in draining
the scrubber tank, and to prevent water from the 60-gallon
tank spilling on the roadways. After the scrubber tank was
completely drained, the engine continued to run with no water
in the tank. The condition was abated within 40 minutes by
cleaning and repairing the needle valve on the scrubber float
valve assembly. After this was done, the car was tested
again using the same test, and the engine shut off. This led
him to conclude that the needle valve had been defective, and
the mechanic told him that this was the case (Tr 32-35).

123

Mr. Biondich stated that after the tests were completed
he spoke with the Jeffrey Manufacturer's representative, a
Mr. Murphy, and advised him that the cited conditions had
been corrected. Mr. Biondich stated that he explained the
test procedures which were used to Mr. Murphy, and Mr. Murphy
did not criticize the test procedures (Tr. 38).
Mr. Biondich stated that he returned to the mine on
October 24, 1985, and observed the test conducted on the
No. R-12 ram car low water shutoff device. The test was conducted in the same manner as on the previous day, and the
engine would not shut off when the scrubber was completely
drained. The citation was abated within 40 minutes by installing a new float valve on the float compartment. The abatement
work was conducted by the Jeffrey representative, Mr. Murphy,
and Mr. Biondich observed him. After installing the new float
valve, Mr. Murphy tested the machine. Mr. Murphy's test differed from the other tests conducted by the company mechanic
in that he drained the scrubber tank by means of a 2-inch
drain plug on the side of the rear of the scrubber rather than
taking off the water supply hose for the float valve assembly.
Mr. Biondich stated that he advised Mr. Murphy that the water
hose had been removed when the previous tests were conducted,
and that Mr. Murphy replied "you don't need to do it" (Tr.
42) •
Mr. Biondich confirmed that the mechanics who tested the
other cars the day before drained the scrubber tank by means
of a front valve which drained all of the water out, while
Mr. Murphy drained the tank by means of the other valve which
left 5 to 6 inches of water in the scrubber. The first time
Mr. Murphy tested it with 5 to 6 inches of water left in the
tank, the engine would still not shut down (Tr. 43). In
Mr. Biondich's view, Mr. Murphy's use of a different drain
valve, and his leaving the float value assembly hose intact,
did not significantly effect the results of the prior tests
conducted by the company mechanic (Tr. 44-46). After
Mr. Murphy corrected the problem, he tested the car twice,
and it worked properly. Mr. Biondich then terminated the
citation (Tr. 47).
Mr. Biondich confirmed that he again returned to the
mine on October 30, 1985, and observed a company mechanic
test the No. R-4 ram car scrubber water shut down device.
Mr. Murphy ordered the testing of that car, and the mechanic
followed the same procedures used on the other cars, except
that he did not disconnect the water supply hose from the ·
main reservoir tank.
In order to achieve uniformity in the

124

test procedures, Mr. Biondich stated that he advised the
mechanic that the other mechanics who tested the previously
cited cars had disconnected the hose in question, but afte~
the mechanic advised him that this was not necessary,
Mr. Biondich allowed him to leave it intact. However, in
each instance during all of the testing on all of the cars,
the main water valve between the scrubber tank and the main
water reservoir was shut off (Tr. 49).
Mr. Biondich stated that when the No. R-4 car was tested
by the mechanic, the majority of the water had been drained;
and when it trickled out, the engine ran for 15 minutes and
did not shut down. Mr. Biondich concluded that the low water
shutoff device was not functioning properly and he issued the
citation. The violation was abated within an hour and a half
(Tr. 50). The mechanic disconnected the float tank compartment from the side and the scrubber and removed the water
supply hose. Mr. Biondich observed that the hose was filled
with 11 hard water" or "rust flakes," and that the scrubber
tank contained these flakes. Mr. Biondich helped to clean
out the tank and the mechanic installed another hose. After
this was done, the low water shutoff device was again tested,
and it operated properly. Before the water was completely
drained from the scrubber, the engine would shut down CTr.
52-53).
Mr. Biondich confirmed that he next inspected the No. 5
ram car on October 30, and observed the test conducted on
that car by company personnel. The test procedure for the
No. R-4 car was again repeated for the No. 5 car, and when
tested, the engine would not shut down when the water was
drained from the scrubber tank. Mr. Biondich issued the citation, and returned the next day to abate it. Mr. Biondich
confirmed that he was not present during the abatement, and
did not know what was done to correct the condition. However,
the No. 5 car was again tested using both test procedures,
i·~·, leaving the float tank hose on, and taking it off, and
when tested both ways, the low water shutoff valve device was
operable, and it shut down the machine. Mr. Biondich then
abated the citation (~r. 54-55).
Mr. Biondich confirmed that he conducted permissibility
inspections on all 12 of the ram cars used in the mine, and
observed company personnel test the emergency air shut off,
the fuel shutoff, and the low water shutoff on each car. The
five cited cars failed to meet the low water shutoff permissibility requirements (Tr. 58).

125

On cross-examination, Mr. Biondich confirmed that each
of the citations were issued because of the operator's failure
to maintain the ram car low water shut down devices in accordance with the manufacturer's operating specifications and
maintenance manual as required by the mine ventilation plan
(Tr. 64-65). He confirmed that while the plan requires the
manuals to be available for inspection, he did not request a
copy of the manual test procedures. He also confirmed that he
came into possession of the manual test procedures for the
first time in December after the citations were issued when he
attended a training session conducted by MSHA diesel specialist Jerry Lemon (Tr. 65). Mr. Biondich denied that company
supervisors George Moore, Gaylon McDaniel, and Dewey Walker,
who accompanied him during his inspections, advised him that
they did not know how to test the ram cars, and that he
(Biondich) stated to them "Don't worry about it. I'll tell
you how to do it" (Tr. 66-67).
Mr. Biondich confirmed that diesel equipment used in
underground mines is a relatively new phenomenon, and that he
has received training on the checking of diesel equipment
from Mr. Lemon (Tr. 68). Mr. Biondich identified exhibit 0-2
as a copy of the Jeffrey Manufacturer's Permissibility Checklist for the ram cars in question, and confirmed that the
instructions are the same ones given to him in December after
the citations were issued. He also confirmed that page four,
entitled "Low Scrubber Water Shut Down" are the proper manufacturer's manual testing procedures for the testing of the
cited ram car (Tr. 68-69).
Mr. Biondich confirmed that the manual test procedures
set out in exhibit 0-2, were not followed when the cited ram
cars were tested (Tr. 69). He identified exhibit 0-3, as a
photograph of the ram car scrubber tank in question, and he
located the drain valve with a handle used to drain the water
out of the cars at the time the tests were conducted in the
lower right-hand corner of the scrubber (circled on the
exhibit). He identified the drain valve used by Mr. Murphy
during his tests as the gray cylinder with a hole in it on
the side of the scrubber tank in the left of the photograph.
When asked whether the "black cylinder" shown in the photograph is the scrubber lower level tank, Mr. Biondich replied
"I's say no." When asked what it was, he replied "I don't
know" (Tr. 72). He confirmed that most of his permissibility
inspections were electrical inspections, and that his experience with diesel inspections consists of approximately 12
regular mine inspections (Tr. 73).

126

Mr. Biondich confirmed that during all of the tests, he
instructed the company testing personnel to shut off the
valve between the water supply tank and the scrubber tank.
He conceded that this shut-off procedure is not specified in
the Jeffrey testing manual, and admitted that the Jeffrey
procedures were not followed in this regard (Tr. 73). He
explained that all he checked was the low water shut down,
and his instructions to shut down the valve between the water
supply and scrubber tank were given "so we wouldn't be there
a long time and also water running down through your entry
where you have 60 gallons running down" (Tr. 74).
Mr. Biondich conceded that the test procedure in paragraph 2(b) concerning the disconnection of "the air supply
line at the upper tank valve" was not performed or followed
in any of the tests he observed. With regard to the test
procedures found in paragraph 2(a), he stated that it was
performed on some of the cars which were equipped with valves
to relieve the main water tank pressure, but not on others
because they were not equipped with such a valve. These cars
had another pressure valve installed in the line, and in such
cases MSHA's procedures do not require that the main water
tank be completely drained, and he simply had the valve shut
off. He conceded that this MSHA procedure is not part of
Jeffrey's procedures which are in fact approved by MSHA as
the procedures for testing the cars (Tr. 75).
Mr. Biondich identified the rear of "the lower level
tank" referred to in test procedure 2(c) as the "white painted
plug" on photograph 0-3. He was not sure of the location of
the 6 or 7 inch drain valves, and he confirmed that he never
measured the lower water level with a tape during any of the
tests because all of the water had been drained from the tank
CTr. 76-79). He conceded that in the event the cars are
tested on uneven levels and the drain pipes are above the
bottom of the tank, water could be trapped in the scrubber
tank and upper float tank (Tr. 80).
Mr. Biondich confirmed that the Jeffrey ram car scrubber
is equipped with a backup secondary heat sensor in the exhaust
system, and in the event scrubber gases are not cooled because
of a lack of water, the heat sensor will shut down the machine
(Tr. 80-81).
With regard to the new float valve assembly installed to
abate the citation for ram car No. R-6, Mr. Biondich denied
that he was ever told that the float valve assembly removed
from the machine was not defective. With regard to ram car

127

No. R-11, he conceded that the machine was checked in different places through "trial and error," and that equipment
changes were being made to try to determine the trouble.
Mr. Biondich admitted that he met with company maintenance
manager Richard Skvarch on October 31, after the citations
were issued and that they discussed how the low water devices
worked. He denied that Mr. Skvarch explained the proper test
procedures to him or that he pointed out that draining the
tank through the main drain valve was improper (Tr. 85).
Mr. Biondich admitted that Mr. Skvarch informed him that the
low water shut off device on the No. R-12 car had been checked
by the Jeffrey procedures several times during the maintenance
shift before his arrival and that it was functioning properly
(Tr. 86).
Mr. Biondich confirmed that on December 12, 1985, MSHA
requested permission from the company to conduct a school on
low water shut down devices and other permissibility checks
on the diesel cars at the mine. Mr. Biondich stated that the
school was intended for the benefit of three newer MSHA
inspectors, but that he was present. He further confirmed
that Mr. Lemon conducted the classes of instruction and that
copies of the Jeffrey procedures were passed out to the
inspectors, and that Mr. Lemon "walked them through" the permissibility testing procedures (Tr. 90-91). Mr. Biondich
conceded that the tests conducted on the cited ram cars did
not follow the Jeffrey manual procedure, but he still believed
that the tests were valid (Tr. 9.1). He denied hearing any
statements by Mr. Lemon during the instruction classes that
"if you don't follow these instructions * * * (Jeffrey Manual)
you know what west Elk will do and I don't blame them." He
also denied hearing Mr. Lemon state "if you don't follow those
instructions, you don't have a leg to stand on" (Tr. 91-92).
Mr. Biondich identified exhibit 0-4, as procedures for
testing Jeffrey machines which are the "same type" as the one
he cited but for different models. He described these procedures as a "general outline," and while he had them in his
briefcase, he did not refer to them when he inspected the
cited cars "because I'd done it before." He confirmed that
he did not use these procedures when the cited cars were
tested, and that they were not used by the company personnel
performing the tests. His only participation in the actual
testing was limited to instructing company personnel to shut
off the water valve from the main tank CTr. 101-105).
In response to further questions, Mr. Biondich confirmed
that the tests conducted on the ram cars which were in compliance and not cited were the same tests conducted on the

128

cited cars, except for the fact that some of the mechanics
disconnected the shut off valve, and others did not (Tr.
107-109). He described the location of the float valve device
which shuts the car engine down when the water level gets too
low as the "smaller white box" attached to the "bigger white
box" identified as the scrubber in photographic exhibit 0-3
(Tr. 108).
Jerry Lemon, MSHA Diesel Specialist Goordinator, testified as to his mining experience and duties, and he confirmed
that he has served as an inspector conducting inspections on
diesel equipment. He has a college BS degree in automotive
and diesel engineering, and his duties include the training
of inspectors in the inspection of diesel equipment, and the
testing approval of diesel equipment field changes and modif ications. He has also served on MSHA committees concerned
with the regulations and guidelines for diesel equipment used
in underground mines. He denied making the statements attributed to him by the operator's counsel during a diesel training session he conducted at the mine with respect to what
would happen in the event MSHA inspectors did follow the
Jeffrey testing manual guidelines (Tr. 110-113).
Mr. Lemon stated that he is familiar with the cited ram
cars in question, and he identified the black hose shown in
photographic exhibit 0-3 as the hose which connects to the
scrubber makeup tank. As water is used up through evaporation of the exhaust, water in the scrubber is made up by
means of this hose from the makeup tank. He confirmed that
several mechanics disconnected that hose during some of the
car tests, and in his opinion this was not necessary. He
explained that while disconnecting the hose would eliminate
any air locks in the float tank, water may still be present
in the float tank and the engine will still run and be nonpermissible. The disconnection of the hose will drain the water
out of the float system and deactivate it and shut the
machine down. In his opinion, the hose should not be disconnected, and he has reviewed no literature indicating that
this hose should be disconnected (Tr. 114-116).
Mr. Lemon explained his reasons why the hose in question
should not be disconnected. He indicated that should a malfunction occur in the scrubber, the hose would not be disconnected. The removal of the hose would overcome any design
problem and would allow the scrubber to function under test
conditions but not under actual mine operating conditions.
He stated further that the true test would be to drain all of
the water from the scrubber at the lowest point, and once
drained, if the system does not shut down the engine, it would

129

indicate that the shut-device is inoperable. The quickest way
to isolate the makeup tank is by opening or closing the air
pressure valve, thereby forcing all of the water into the
scrubber.
Mr. Lemon confirmed that the test method used by the
inspector to isolate the main water holding tank was proper
and speeds up the test process.
If the tank were not isolated
in the manner instructed by the inspector, it may take 2 hours
to drain all of the water out of the system. The whole purpose of the test is to remove all of the water from the scrubber to see whether it shuts off the machine, and simply
turning off the water from the makeup tank will not effect the
test of the low water shutoff device to determine whether it
shuts down the machine (Tr. 119-120).
Mr. Lemon confirmed that he is familiar with the Jeffrey
test procedure outlined in exhibit 0-2, and he confirmed that
he has not seen it as part of any maintenance manuals. He
stated that it was sent out by separate letter by Jeffrey to
mine operators using their equipment (Tr. 121).
Mr. Lemon confirmed that the inspector did not follow
procedure 2(b), when the tests were conducted on the cited
cars. He explained that the procedure in question is directed
to mechanics for troubleshooting possible defective scrubber
water float valves. Once that check is completed, if the
makeup tank has been isolated pursuant to procedure 2(a), the
next step would be to go to procedure 2(c). Even if step 2(b)
is skipped, as long as all of the water is drained from the
scrubber and the makeup tank is isolated, if the engine did
not shut down, this would indicate a faulty system and a violation. The basic point of the test is to determine whether or
not the scrubber will shut down when it reaches a water level
below 7 inches (Tr. 122-123).
Mr. Lemon stated that the principal goal of the test is
to determine whether the shutoff system works, and this is
achieved by draining all of the water out of the scrubber and
following test procedure 2(a) and 2(c). In his opinion, the
inspector complied with these test procedures when the cited
machines were tested (Tr. 123).
Mr. Lemon identified exhibit S-9 as an MSHA diesel "permissibility checklist" used to train MSHA inspectors. He
indicated that this checklist was adopted by MSHA after its
submission by Jeffrey, and it is used by MSHA inspectors in
the field to check out the Jeffrey equipment. He confirmed
that the checklist deals with "the same type of scrubber" at

130

issue in these proceedings, and while there are two Jeffrey
scrubber models, "Jeffrey equipment is basically the same"
although one model uses an air system, while another model
uses air and oil (Tr. 125). Mr. Lemon confirmed that the
checklist (exhibit S-9) applies to a model 4110 scrubber, and
stated "I'm almost positive it's the same scrubber" as those
involved in the cited cars which are in issue in this case.
However, upon further examination of photographic exhibit
0-3, he stated "this picture of the scrubber • • • does not
look the same. It looks to me there's been some modifications made on this" (Tr. 126).
Mr. Lemon explained the similarities and dissimilarities
between the scrubber model shown in the photograph (Model
4114), and the checklist model referred to in exhibit S-9.
He claimed ignorance of any· modifications shown in the photograph, and speculated that they may not have been made by the
Jeffrey Company (Tr. 128). Mr. Lemon confirmed that he was
familiar with all ram cars manufactured by Jeffrey, including
the scrubber systems on all of its models, but denied that he
had ever previously seen a system as shown in the photograph
as a system manufactured by the Jeffrey Company (Tr. 128).
He confirmed that any diesel ram cars manufactured by Jeffrey
must be certified and approved by MSHA, and that the cars
manufactured by Jeffrey have been approved by MSHA. Once
this is done, any changes or modifications must have MSHA's
approval (Tr. 129). He would generally be involved in any
such approval process, and only in a "remote instance" such
as his being on leave, would he not be informed of any scrubber changes or modifications (Tr. 129-130).
West Elkvs counsel asserted that there is no evidence in
this case that the scrubber depicted in the photograph in
question was used on any of the cited ram cars in question.
In response to a question from the bench as to whether or not
the scrubbers on the cited ram cars differ in some signif icant way from the scrubber shown in the photograph, counsel
responded as follows (Tr. 131):
MR. LINN:
I'm not altogether certain, frankly,
Your Honor.
I think some do differ and some
may be the same. This is a new issue as far as
I'm concerned. My understanding is that these
modifications are Jeffrey modifications. They
have been approved by MSHA and we'll have testimony to that, effect. The point I'm getting at
is that what is depicted in 0-3 is not a unit
that is on any of the ram cars at issue.

131

MSHA's counsel confirmed that the question of whether
any scrubber modifications or changes constitute separate
violations of MSHA's standards is not an issue in these
proceedings (Tr. 131).
Mr. Lemon stated further that while he could not determine the model number of the scrubber depicted in photographic
exhibit 0-3 from the photograph, he believed that the Jeffrey
checklist, exhibit S-9, would nonetheless apply and that the
model number makes no real difference since all scrubbers are
basically constructed the same way (Tr. 132-133). He confirmed that the Jeffrey permissibility checklist procedures
identified as "Exhaust System-Low water shutdown test" on the
back of the fourth page of exhibit S-9, as used in MSHA's
Training School, coincide with the test methods used by Inspector Biondich in support of the citations issued in these proceedings, and basically contain procedures 2Ca} and 2Cc) of
the Jeffrey procedures outlined in exhibit 0-2 as followed by
the inspector. He confirmed that the exhibit S-9 procedures
do not include a procedure for testing the water supply line
as stated in test procedure 2(b), exhibit 0-2, and stated that
step 2Cb) is "just an additional test" to help a mechanic isolate any scrubber problem "from that valve on around to the
block to the fuel shutoff and the air valve" (Tr. 135).
Mr. Lemon concluded that the test procedures found in exhibit
S-9 reflects that the inspector conducted the proper test (Tr.
135).
On cross-examination, Mr. Lemon confirmed that he conducted a school at the mine in December, 1985, for the purpose
of instructing MSHA inspector's as to how to go about checking
the permissibility of diesel ram cars, and that tne instructions included the procedures outlined in exhibit 0-2, as
well as S-9, because "they coincide with each other" (Tr.
136). He confirmed that mine personnel were present at the
school, but he could not recall telling Mr. Skvarch that
unless the proper MSHA approved test procedures were used in
issuing the citations they would be invalid (Tr. 138).
Mr. Lemon reiterated that the Jeffrey test procedure
checklist, exhibit 0-2, are not part of any maintenance
manuals kept at the West Elk Mine or any other mine he has
visited. He was never told that the procedures are from the
manual and he assumed they are from Jeffrey because they are
on Jeffrey's letterhead. He confirmed that the checklist is
very thorough, and more so than the exhibit s~9 checklist
(Tr. 140). Mr. Lemon stated that checklists 0-2 and S-9 do
not indicate whether they have MSHA's approval. However,
checklist S-9 will be included with all new Jeffrey equipment

132

maintenance manuals for use by mine mechanics in making their
equipment inspections (Tr. 140).
Mr. Lemon explained test procedures 0-2, and he stated
that the test is designed to drain the scrubber rather than
the whole water supply tank, and the makeup tank has to be
isolated (Tr. 144). Referring to photograhic exhibit 0-3, he
stated that if he were to conduct the test, he would drain
the water from the scrubber tank drain valve which is circled
in the photograph, rather than from the grey cylinder marked
·"LL, 11 or lower level tank. In his opinion, the grey cylinder
is the water control valve cylinder and not the lower level
tank (Tr. 144). If water is drained from that cylinder and
there is an air lock in the float, even though the water is
drained from the scrubber, water may still be in the float
and the system will still run and be nonpermissible (Tr. 145).
When asked to again identify the lower level tank, Mr. Lemon
stated "I'm not positive because they're not that clear on
their instructions (Tr. 145).
Mr. Lemon stated that the "lower level drain valve" does
not appear on other specification drawings, and he confirmed
that there are two different scrubber systems for the model
4114 scrubber, and different tank sizes. He also confirmed
that Inspector Biondich never checked the scrubber water
level in any of the tests performed on the ram cars in question (Tr. 146). He stated that the water level should be
tested with the machine on level ground because water could
be trapped in either the upper float tank or the lower level
tank, and that the hose between the scrubber tank and the
main water supply tank should not be disconnected (Tr. 147).
He confirmed that closing the shutoff valve between the scrubber tank and the main water supply tank, as instructed by
Inspector Biondich, could cause an air lock (Tr. 148).
In response to further questions concerning the testing
procedures, Mr. Lemon stated as follows {Tr. 149-150):

Q. All right. If you accept that premise and
take a shortcut, do a short version of 0-2,
and you find the system doesn't work properly,
don't you think it's prudent, that is if you
do what the inspector did and just drain out
the main drain valve and it doesn't shut off,
wouldn't you say or wouldn't you agree that it
would be more prudent to go back, fill up the
system, run through a detailed test procedure
in order to determine whether, in fact, it was
a failure on the one hand of the system, or

133

whether, for example, the scrubber might be
tipped or -- or it might be air locked or some
other malfunction unrelated to the test procedure or related solely to the test procedure,
rather? wouldn't you agree that'd be a prudent thing to do?
A.

Yes.

Mr. Lemon stated that he used the permissibility test
procedures in exhibit S-9 during the training classes he conducted at the mine after the citations were issued. He had
previously seen the procedures detailed in exhibit 0-2, and a
copy was given to him by the operator during the training
classes, and some of those procedures were covered during the
classes, including the procedures detailed in paragraph 2(b)
(Tr. 153-154). In his opinion, the test procedures in paragraph 2(b) need not be followed to determine whether or not
the scrubber is working (Tr. 155). Testing the equipment on
inclines makes a difference mechanically, since the shifting
of water in the tank may allow the machine to continue working even though the water level was low, or it could shut the
machine down prematurely if the water shifted in another
direction (Tr. 156). He conceded that testing the machine on
an incline "would make some difference but not a whole lot of
difference" and that it could effect the test results in that
an air lock could be present.
If there was an air lock, and
the water shifted to the opposite end of the tank away from
the drain plug, 8 or 10 inches of water could be in the tank
even though the plug were open and no water was coming out
(Tr. 157). However, the equipment is required to operate on
both level ground and inclines.
Mr. Lemon could not state whether Inspector Biondich
instructed the person conducting the test to shut down a
water valve which isolated the reserve water tank. He stated
that he was not aware of any such water gate valve on the
model 4114 scrubber, and the makeup tank on that model is
isolated by isolating the air pressure going into the tank by
means of a cap which is removed to bleed the air pressure off
the makeup tank. However, a small amount of water will continue to gravitate or trickle from the scrubber (Tr. 159).
If an impermissible gate valve was installed between the
makeup tank and the scrubber, and that valve were closed to
isolate the scrubber, the test results could be affected by a
resulting air lock (Tr. 159). This may explain the absence
of such a gate valve on the equipment as manufactured, but he
could not state that this is the case (Tr. 160)0 Hypothetically, the addition of a nonpermissible gate valve could

134

defeat the proper testing by creating a potential air lock
(Tr. 160).
In response to further questions, Mr. Lemon explained
the water level testing procedure stated in exhibit S-9, and
confirmed that Inspector Biondich did not at any time measure
the water level in the tank. Mr. Lemon stated that he personally always measures the water level as part of a test in
order to determine the level at which the lower water device
is shutting off. If it shuts off at 3 inches, rather than 7,
then there is more risk involved. A determination must be
made as to whether there is no water, or that the float mechanism is not adjusted at the proper level (Tr. 173). If the
tank is emptied and the engine continues to run, this would
be indicative of a bigger problem. The water measurement
factor involved in both tests, S-9 and 0-2, is designed to
confirm whether the float is actually shutting down the
machine engine when the water level reaches a certain level
above an empty tank to provide a safety margin (Tr. 174).
Mr. Lemon stated that it was his understanding that during the tests conducted in Inspector Biondich's presence, all
of the water was removed from the scrubber in two of the cited
cars, and in the other cars there some dribble of water. If
all of the water were removed, there was no need to measure
the water level. However, if the cars were on an incline or
unlevel surface, water may have been present in the other end
of the tank if it were tipped CTr. 177). Problems in measuring pursuant to test S-9 could be encountered because of the
curled configuration of the scrubber exhaust pipe (Tr. 179}.
Testing on pitched mine surfaces do present some problems, but
in the mine in question he could not recall any steep grades
that would present a real serious problem (Tr. 180).
West Elk's Testimony· and Evidence
Richard
, Surface Operation Maintenance Manager,
testi
as
s mining experience, and confirmed that he
holds a BS Degree in Mechanical Engineering from Penn state
University. He confirmed that he was at the mine on
October 23, 1985, when Mr. Biondich cited ram cars No. 6 and
No. 11 for improperly functioning scrubber shut down systems.
Mr. Skvarch was concerned that production personnel accompanied Mr. Biondich since maintenance men are usually assigned
to accompany inspectors on permissibility inspections.
Mr. Skvarch confirmed that he spoke with several mechanics
after the citations were abated and found that some parts were
changed to
ce the machines back into service. He did not

135

believe that the mechanics understood what was really wrong
with the machines (Tr. 182-185).
Mr. Skvarch stated that the float and valve assemblies
removed from the No. 6 and No. 11, were examined in the shop
when they were brought in and he could find nothing wrong
with them or any reason for their failure (Tr. 186). He
stated that the low water level shutdown devices were normally
checked each day, but after the citations were issued they are
checked every 8-hour shift (Tr. 187). He confirmed that the
low water shutdown device test procedures at page 4, exhibit
0-2, were followed at the mine, and after the citations were
issued, they are used on each shift CTr. 187).
Mr. Skvarch stated that he was at the mine on October 24,
when the No. R-12 car was cited. The company technician
infor~ed him that he had tested that car four times at
7:00 a.m., and that it had shut down in accordance with the
test. The car was parked where it was tested, and it was not
moved. After Mr. Biondich cited it at 9:00 a.m., Mr. Skvarch
was alarmed and concerned because he could not determine what
was wrong.
It then became apparent to him that the manufacturer's recommended test procedures were not being followed
and he spoke with Mr. Biondich on October 30, after the first
citations were issued. Mr. Biondich informed him that "the
test procedure he was using was doing the same thing or that
it would work," and within the next 2 hours he cited two more
cars (Tr. 19 0) •
Mr. Skvarch identified exhibit 0-1 as a schematic diagram
of the water supply system and scrubber tank shutdown system
for a Jeffrey ram car, and he confirmed that it was prepared
under his direction. He described how the low water shutdown
system operates, and he identified the component parts, including the lower level tank and upper float tank and the procedure for measuring the water level. He stated that the lower
float tank "is the brains of the system" and it decides when
the scrubber needs more water. The upper float tank is the
mechanism which senses the absence of water coming from the
water supply tank, and when this occurs, it activates an air
pressure dump which shuts down the machine (Tr. 191-196).
Mr. Skvarch identified exhibit 0-2 as a copy of the
Jeffrey manufacturer's authorized test procedures, and referring to the schematic diagram, he explained each step of test
procedures using the diagram as a "walk through" (Tr. 196-200).
Mr. Skvarch stated that the test procedures detailed in exhibit
S-9 are for a different 4110 scrubber system than the one
depicted in his diagram. The shut off system is inside of the

136

float tank and not on the outside, and a dip stick cannot be
used to measure the water level because it would hit the
exhaust pipe. He confirmed that the two scrubbers which have
been described use different systems requiring different test
procedures (Tr. 201).
With regard to the gate valve used to shut off the water
between the water supply tank and the scrubber tank pursuant
to Inspector Biondich' s instructions, Mr •. Skvarch stated that
some of the cited cars were equipped with such a valve, but
he was previously unaware of this. The car had been brought·
in from another mining operation and had only been in service
for a couple of days prior to the inspection. He agreed that
it takes a long time to drain the water tank, but insisted
that the valve in question was not installed for test purposes.
It was used as a "quick flush" for the scrubber so
that the entire system need not be drained. He explained
that while the approved testing requires the draining of the
water tank, the "quick flush" is used to keep the scrubbers
clean. He described the procedure as "We just come in, shut
it off, break the line, flush the scrubber out, check it over,
put it back together, fill it up, bring the water level back
up and go right back into service" (Tr. 203).
Mr. Skvarch stated that test procedures 0-2 are kept in
the foreman's office at the mine in the parts books and in
the parts books located in the mechanics lunch room, and he
confirmed that they are part of the specifications and maintenance procedures for the machine in question (Tr. 203).
Mr. Skvarch confirmed that he took photographic exhibit
0-3, and he identified and marked the component parts of the
scrubber system depicted in the photograph (Tr. 203-205). He
confirmed that there are differences in the test procedures
found in 0-2 and the test procedures conducted in the inspector's presence. He explained that during the company's tests,
the entire water supply tank is drained, but in the inspector's test, the supply or makeup tank was not drained. A line
was disconnected between the two tanks and it appeared that
this was creating an air lock by shutting off a valve which
removed the tank vent pressure. He believed that an air lock
or water being trapped in one of the float tanks would not
allow the system to work. He was also concerned that water
would be trapped if the car were pitched, and any trapped
water would hold the float up and it would never shut down the
machine (Tr. 206).

137

Mr. Skvarch stated that Inspector Biondich did not check
the water level in any of the cited cars, and that the draining of the scrubber tank from the drain used in the inspector's test was incorrect. He stated that the water must be
drained from the lower level drain valve, which is a 6-inch
level valve, so that when the car shuts off, one can verify
that there is at least 6 inches of water remaining in the
scrubber tank. Draining the water from this low level drain
also ensures that all of the water is out of the upper float
tank (Tr. 207). He also confirmed that step 2(b) of the 0-2
procedures were completely ignored in all of the tests of the
cited machines (Tr. 208).
Mr. Skvarch stated that after the citations were issued,
he was advised by Mr. Misel, Jeffrey's chief engineer for its
ram car division, that company test procedure 0-2 was the
correct procedure and that it had MSHA's approval, and that
using shortcuts could cause problems such as air locking and
water entrapment (Tr. 210). Mr. Skvarch confirmed that he
attended an MSHA conference with Mr. Biondich and his supervisor, Mr. Turner, and they discussed the citations in question. Mr. Skvarch stated that he advised them that he
suspected air or water entrapment during the tests supervised
by Mr. Biondich, and that during the company's testing of the
machines during each shift, using the company's test procedures, the machines shut down. Mr. Skvarch was informed that
MSHA's testing could be used because it accomplished the same
thing, and that the citations would stand. However, MSHA
subsequently removed the "S&S" designations from the citations
(Tr. 210-211).
Mr. Skvarch confirmed that Mr. Lemon conducted a class
at the mine, and that he CSkvarch) gave everyone a copy of
test procedures 0-2, and they were reviewed and discussed.
Mr. Skvarch stated that during an "off the record" discussion
Mr. Lemon stated that unless the 0-2 procedures were followed
"you don't really have a case." Mr. Lemon held up the 0-2
procedures, and stated further "and you know what this man's
going to do with these citations if you don't" (Tr. 214).
Mr. Skvarch stated that Mr. Turner was present when these
statements were made. Mr. Skvarch also stated that Mr. Lemon
told him that he had "no involvement" in the issuance of the
citations, and was simply there to conduct a class (Tr. 214).
Mr. Skvarch stated that since the issuance of the citations, MSHA has tested the cars using the "proper test procedures," and they are worked properly (Tr. 215). He confirmed
that during the abatement of the citations his maintenance
personnel changed upper and lower float tanks and "everything

138

on the system" but never found a defective part. He also
confirmed that during the past week or two he tested a car
while on a grade similar to the condition when Mr. Biondich's
tests were conducted, and using his test procedures, the
machine would not shut down. However, when the authorized
0-2 test procedures were followed, the machine shut down (Tr.
217). In his opinion, the cited ram cars were operated and
maintained in accordance with the manufacturer's applicable
specifications and manuals (Tr. 217).
On cross-examination, Mr. Skvarch confirmed that when the
parts were changed on ram cars No. R-6 and No. R-11, no defective parts were found, and the mechanic's reports were so
noted. He confirmed that he was not present with Mr. Biondich
on October 23, 24, or 30 when the cars were cited and the conditions abated. He also confirmed that he did not examine the
hose which was removed and replaced on the No. R-4 car, but
that he did observe the disassembly of the float valve assembly on the No. 6 car, and could find nothing wrong with it.
He believed that the replacement of the parts to render the
machine serviceable may have relieved and air locks or water,
and while he conceded that Mr. Biondich's test procedures
"could work sometimes," but "most of the time it didn't" (Tr.
219-224).
Referring to photographic exhibit 0-3, Mr. Skvarch stated
that the purpose of the circled white valve is to flush the
scrubber system during a maintenance cycle, and that it is a
fast way to remove scale and corrosion and replace the water
in the scrubber tank.
If the valve were opened and there was
no water flowing out of the tank while sitting level, and
there were no blockage in the valve, he would "tend to agree"
that the tank would be empty. He agreed that if the machine
continued to operate, it may indicate that the low water cutoff device was not working, but indicated that he "would have
to check other things to be sure" (Tr. 230). He confirmed
that when he had his conferences with MSHA after the citations
were issued, no one from MSHA advised him that the company
test procedures 0-2 had MSHA's approval (Tr. 233).
Mr. Skvarch stated that when the company tests the low
water shutoff devices the water supply tank is isolated by
venting it according to the test procedure by shutting the
needle valve or disconnecting the hose. By shutting off the
air pressure to the water, the water drains through the system
by "gravity or atmospheric" (Tr. 235). He personally has
tested the system a dozen times, and he conceded that sometimes all of the water is not forced out of the tank, and he
explained why this was the case (Tr. 236-237). The estimated

139

time for draining the tank ranged from 5 to 40 minutes (Tr.
238). Although the air line in step two of the test is disconnected during the test, no other lines are disconnected.
However, the air line is reconnected before going to test
step (c), and once this is done there is no difference in the
two test procedures insofar as that air line is concerned.
He believed that two of the cited cars were equipped with a
gate valve between the water supply tank and the scrubber
unit, and if this were the cause of the air lock, it would be
limited to those two cars (Tr. 240-241). However, air locks
could also have been present on the other cars, and the gate
valves have since been removed from the cars (Tr. 242).
Mr. Skvarch agreed that step 2Cb) of the 0-2 procedures
is a test to determine whether the shutdown system is working
if the float valve trips it. He also agreed with Mr. Lemon's
view that the test is valid even if step 2(b) were eliminated
(Tr. 244).
Michael R. Murphy, Senior Serviceman, Jeffrey Mining and
Machinery Company, testified that his duties include the
checking of equipment upon delivery to a mine, general troubleshooting, and giving instructions to equipment operators
as to how to maintain the equipment. He confirmed that he is
familiar with the low water shutdown devices on the cited ram
cars in question, and that he was at the mine on October 30,
1985. He was on the section 10 minutes after a car was cited,
and Inspector Biondich informed him that he had shut off the
little air valve going to the water tank, and after venting
it, the big valve at the bottom of the scrubber tank drain was
turned on, and after 5 minutes, the car would not shut down.
The car in question was parked "kind of jackknifed in an entry
and on a very bad angle." In this position, water could be
trapped in the tank and the small float on the lower level
tank, which holds just over a half-gallon of water, minus the
float ball, would still be floating and indicating that the
car still had water in the scrubber, when in fact, the scrubber tank may be empty. In this event, the water in the top
float assembly would not allow the car to shut down {Tr.
250-251).
Mr. Murphy identified exhibit 0-2 as the Jeffrey permissibility checklist submitted to MSHA's Tridelphia's Office,
and he stated that Jeffrey has MSHA's approval to distribute
these procedures as "an approved drawing" that is included in
the equipment parts book. The drawing is distributed to
Jeffrey customers utilizing the scrubber system as a means of
checking the system to determine whether it is working (Tr.
251). He confirmed that page 4 of test procedures 0-2 are

140

the only proper procedures for testing the low water shutdown
devices on the cars in question, but that they will need to
be modified for the newer model 4114 cars at the mine (Tr.
252).
Mr. Murphy stated that using the inspector's test procedures, water could become trapped in the lower level tank,
thereby giving invalid test results. He also stated that
shutting off the gate valve shown on the schematic drawing,
exhibit 0-2, during the test, could cause an air lock and
produce an invalid test result, particularly if the machine
were not level (Tr. 255). With regard to the 0-2 procedures,
he reiterated that MSHA approved them and wanted to distribute
them to its inspectors to inform them how to shut down the
system properly.
Mr. Murphy stated that during the inspector's tests,
test procedure 2(b) was omitted. Further, although the large
drain valve at the bottom of the scrubber tank was opened,
the failure to use the other drain valve from the lower level
tank as required by step (c) of the 0-2 procedures, would not
have allowed water to completely drain from the small tank
which allows the machine to shut down, particularly where the
machine is parked at an angle. The draining of the small
lower level tank would compensate for any machine angle or
tilt (Tr. 256).
In his opinion, there was no way the inspector could have checked the scrubber water level in the manner
in which the machines were tested. Mr. Murphy stated that he
used the proper test procedures the same day the car was
cited, and it shut off, and no work had been done on that
machine at that time (Tr. 257).
Mr. Murphy stated that test procedures S-9 are absolutely
not the proper procedures for the cited ram cars in question.
He explained that the S-9 procedures are for machines with a
float and shutoff assembly located inside the scrubber tank,
while the 0-2 procedures relate to cars such as the cited cars
which have remote float tanks or sensing devices affixed to
the side of the tank. With regard to these remote assemblies,
it is necessary to drain the lower level tank affixed to the
scrubber tank in order to perform a valid test (Tr. 261).
Mr. Murphy identified exhibit 0-4 as the Jeffrey test
procedures for the model 410, HR150, and 411H ram cars. and
stated that they do not apply to the cited ram cars or the
4114 model in question, and he explained why (Tr. 261-262).
(The exhibit was never received in evidence). Mr. Murphy
concluded that the 0-2 Jeffrey procedure is the only way to

141

be sure that the low water shutdown device on the cited cars
is properly operated and maintained (Tr. 262).
On cross-examination, Mr. Murphy stated that he examined
two cited cars on Oetober 30, but was not sure of the numbers,
and both were parked 11 on a pitch" in the drift. He believed
that water could have been trapped in the lower level tank,
and this would account for the cars continuing to run. He did
not perform the 0-2 test on car No. 4 and it shut down. The
other car was being worked on by the mechanics. He tested for
water in the lower level tank, and found water present. He
did not check for water in the scrubber tank and the scrubber
tank valve was open. This indicated that there was no water
coming out of the valve, but water could have been trapped
inside. The presence of water in the lower level tank would
keep the machine running because the shutdown sensors are
located there (Tr. 263-266).
Mr. Murphy confirmed that he personally has never
received a letter from MSHA informing him that test procedures
0-2 have MSHA's approval. However, since the print of the
procedures are stamped as MSHA approved, it is his assumption
that they have MSHA 1 s approval (Tr. 270). He knows for a fact
that procedures S-9 are not for the cited cars (Tr. 280). He
also stated that the "MSHA stamp" cannot be used if it is not
approved, and that Jeffrey engineering representative Paul
Misel advised him that the 0-2 procedures were submitted to
MSHA (Tr. 277).
Mro Murphy agreed that the elimination of step 2(b) of
the 0-2 procedures would not necessarily invalidate the
inspector's test. However, it is necessary to test the water
level in the scrubber tank, and the inspector did not do this.
It is also necessary to find out whether there is water in
the rest of the system because there is nothing on the car
when it is at idle that will shut down the car if the scrubber tank is empty and there is water in the float valves.
The float valve is the mechanism that determines whether the
car will shut down, and not the level of water in the scrubber.
In his opinion, the test method followed by the inspector might cause the machine to give false results or' "lie to
itself" because there may still be water in the lower level
tank. Even though the scrubber tank is full, if the lower
level float bowl is drained and the machine shuts off, he
would consider the low water shutoff device to be operable.
He concluded that the test by the inspector was improper
because it did not include the draining of water from the
lower level bowl, but only from the scrubber (Tr. 271-274;
283-285).

142

George c. Moore, operations shift foreman, testified as
to his experience, and he confirmed that he travelled with
Inspector Biondich on October 23, 1985, when he issued the
first two citations in these proceedings. Mr. Biondich
informed him that he wanted to check the low water shutdown
device on a ram car, and asked him to bring in a car so that
he could check it. Mr. Moore advised Mr. Biondich that he
needed a mechanic because he (Moore) did not know how to perform the test. Mr. Biondich responded "don't worry about it.
I can tell you how the procedure can be done" (Tr. 295).
Mr. Moore stopped the first available car travelling down the
haulage entry, and after checking it for electrical permissibility, it was parked on a downhill grade, and Mr. Biondich
instructed him to turn off the valve between the water supply
tank and the scrubber system. Mr. Moore identified the car
as the No. R-6 car, and referring to the schematic exhibit
0-1, he confirmed that "two valves on top were shut off , 11 and
the water was drained by removing the bottom scrubber drain
valve with a crescent wrench. After that car was cited, it
was parked in the crosscut, and Mr. Moore called the maintenance department to begin work to abate the citation.
Mr. Moore stated that ram car No. R-11 was then checked
using the same test procedure. The car was pulled into the
entry, the scrubber was filled with water, and the valves
were shut off and the tank was vented. The car did not have
a drain plug similar to the No. R-6 car, and the water was
drained by turning the valve at the bottom of the tank.
Mr. Moore stated that two or three valve assemblies were
tried on the No. R-6 car, and the float valve assembly was
changed.
Using the inspector's test procedures, the car would
shut down one time, and the next time it would not. When the
water was drained from the No. R-11 car, the engine would not
shut down and it was cited. A maintenance man then took the
air line off the float valve assembly and the machine shut
down. He did some work on the needle valve and after putting
it back together, the engine shut down, and Mr. Biondich
abated the citation. Both cars were parked on an incline when
they were initially tested (Tr. 299-300).
Mr. Moore stated that at no time did Mr. Biondich request
the manufacturer's test procedures, and he confirmed that
Mr. Biondich did not ask to see them, nor did he have a copy
with him (Tr. 300). Mr. Moore identified the hose removed
from the No. R-11 car as the air dump shutdown hose shown on
exhibit 0-1, and he was not sure whether or not there is a
needle valve in that hose which senses when the upper float

143

tank is out of water, or whether or not that was the needle
valve which was examined (Tr. 302).
Gaylen S. McDaniel, supervisory safety advisor, testified
as to his mining experience, and he confirmed that he accompanied Inspector Biondich on October 24, 1985. Mr. Biondich
informed him that he was going to check the low water shutdown
devices on the remaining ram cars which were not checked the
previous day. The No. R-12 car was brought to the service
area and it was "parked on an angle" when it was tested. The
air was turned off on the main water supply tank, it was then
vented, and the valve between the supply tank and upper level
float was shut off. The main scrubber drain valve was opened,
and after the water was allowed to drain for approximately 10
to 15 minutes, the car would not shut down, and Mr. Biondich
cited it. Water was still trickling out of the tank at the
time it was cited. Mr. McDaniel informed Mr. Biondich that he
did not know how to check the low water shutdown, and
"Mr. Biondich told me he had taken the class on it and that he
could tell me how to check it" (Tr. 305).
Mr. McDaniel confirmed that he followed Mr. Biondich's
instructions when the car was tested, and when he pointed out
that water was still coming from the scrubber tank,
Mr. Biondich responded "it had drained long enough and most
likely the tank was drained as far as it was going to drain"
(Tr. 306). Mr. McDaniel confirmed that Mr. Biondich did not
refer to any written test instructions while the test was
conducted, and asked him for none (Tr. 306). Mr. McDaniel
confirmed that he was later shown a copy of test procedures
0-2, and that they differed from the tests instructions given
by Mr. Biondich in that the air supply line at the upper tank
as covered by procedure 2(b) was not disconnected, and that
the water was not "slowly drained from the scrubber through
the drain in the lower level tank" as provided for in procedure 2(c). In addition, the water level in the lower level
tank was not checked after draining the water out of the main
scrubber tank, as provided in procedure 2(c) (Tr. 307).
Dewey R. Walker, shift supervisor, testified as to his
experience, and he confirmed that he was present on
October 30, 1985, when the last two citations were issued by
Inspector Biondich. Mr. Walker stated that prior to going
underground, Mr. Skvarch held a meeting with Mr. Biondich,
and they discussed the problems concerning the previously
cited cars, and Mr. Skvarch expressed concern that the proper
Jeffrey test procedures were not being followed in the testing
of the cars for compliance. Mr. Skvarch believed there were
problems with air locks or trapped water in the tanks.

144

Mr. Biondich stated that he was going to test the remaining
cars in the same manner as those previously tested "to keep
everything uniform" (Tr. 309).
Mr. walker stated that after the meeting, he and the
inspector went underground and tested car Nos. R-4 and
No. R-5, and they were both parked on "slight angles." The
caps were removed from the top of the main water supply tank
as shown on schematic exhibit 0-2, to make sure water was in
the tank. The water supply valve shown by the circled mark
by a green line on the schematic, between the main tank and.
upper float tank was then shut off, and the bottom gate valve
on the lower scrubber tank was opened to allow water to drain
out. After approximately 10 minutes, water was still trickling out of this drain, but the machines failed to shut down,
and Mr. Biondich cited them (Tr. 310-312). Mr. Walker stated
that Mr. Biondich had no written test procedures with him,
and he could not recall Mr. Biondich showing him a copy of
his test procedures (Tr. 313). Mr. Walker confirmed that the
exact same test procedures were followed on both cars (Tr.
314).
Robert Moschetta, safety manager, testified as to his
experience, and he confirmed that he holds a Masters Degree
in safety management and a degree in environmental science
from the West Virginia University. He confirmed that he
attended a meeting at the mine on October 30, 1985, with
Inspector Biondich, Mr. Skvarch, and company maintenance personnel to discuss .the propriety of the tests conducted on the
previously cited cars. Mr. Skvarch reviewed a diagram similar
to the schematic, exhibit 0-1, and discussed the manufacturer's test procedures with the inspector. During the meeting, Mr. Biondich stated that he was basically checking the
machines in the same manner as shown in the Jeffrey procedures
discussed by Mr. Skvarch, and that his CBiondich's) methods
were the same (Tr. 316).
Mr. Moschetta confirmed that he attended an informal
MSHA conference concerning the citations on November 15, 1985,
and he identified exhibit 0-5 as his notes taken during that
conference. He stated that at this meeting, Mr. Biondich
stated that he was using the proper test procedures, but that
he did not say this during the October 30th meeting (Tr. 317).
He identified exhibit 0-6, as his notes taken during a subsequent meeting with Mr. Biondich and his supervisor, Bill
Turner, on November 21, 1985, when they discussed the five
citations and the proper test procedures. Copies of the 0-2
procedures were given to Mr. Turner and Mr. Biondich, and
Mr. Turner stated that he was sure that Mr. Biondich was

145

following the proper test procedures. Mr. Turner stated that
he would get in touch with Mr. Lemon, and that they would have
another meeting to discuss and check the cars (Tr. 320).
Mr. Moschetta identified exhibit 0-7, as his notes of a
telephone conversation he had with Mr. Turner on November 22,
1985, and that during that conversation Mr. Turner advised
him that Mr. Biondich took the position that he did not
instruct company personnel as to what to do to check the low
water shutdown devices, and that he simply told them that he
would like to check the devices and observe the tests to determine whether the machines would shut down. Mr. Moschetta
stated that he advised Mr. Turner that this was inconsistent
with his past discussions, and he stated that during the
October 30 meeting Mr. Biondich did in fact state that he
instructed company personnel as to how to go about testing the
cars (Tr. 322).
On cross-examination, Mr. Moschetta confirmed that during
the meetings in question Mr. Biondich took the position that
the tests methods he utilized during the tests performed on
the cited machines were correct (Tr. 325). He also confirmed
that between the October 30 and November 15, meetings,
Mr. Biondich changed his story as to the test procedures he
was using. He further confirmed that the test procedures
detailed in 0-2 were explained to Mr. Biondich by Mr. Skvarch
on October 30, before the last two citations were issued, and
that they were available at the mine before all of the citations were issued (Tr. 326-327).
MSHA's Rebuttal Testimony
Mr. Lemon was of the view that the inspector's test where
the water was drained from the scrubber was more accurate than
West Elk's suggested test because there is less room for error
"where water is still trapped there because of various reasons," and because "it leaves less error for the machine to
lie to itself" (Tr. 336). Based on his experience with the
type of scrubber in question, he believed that under normal
operating conditions the scrubber could be empty of water, yet
the low water tank could still have water in it causing the
machine "to lie to itself" (Tr. 337). He disagreed with
Mr. Murphy's opinion that any test "quirks" during the testing
of the machines would not appear in the normal operation of
the cars (Tr 338). He confirmed that the mine has inclines,
and he agreed that if tested on an incline, it could cause the
machine to lie to itself indicating it had water when it did
not CTr. 339).

146

Mr. Lemon was of the opinion that Inspector Biondich
complied with steps 2Ca) and 2(c) as outlined in the Jeffrey
0-2 test procedures, and that following those steps, he effectively tested whether or not the machine would shut itself
down when there was insufficient water to cover the exhaust
(Tr. 343).
On cross-examination, Mr. Lemon stated that the best
method for determining whether there is water in the scrubber
is by draining the tank. Assuming the machine was not on a
level when tested, this is done by opening the lower righthand valve on the scrubber. He also identified the 11 seven
inch level" plug on the left lower side of schematic 0-1,
marked "mechanic" on photographic exhibit 0-3, and stated that
if the machine is on an incline, prudence would dictate that
this plug should be pulled to determine whether there was any
water in the scrubber tank, and that one could stick his finger "in and around in the tank and see if the water is there
at the seven inch level" (Tr. 344). He conceded that this
plug was not pulled during the testing of the cited machines
(Tr. 345).
Mr. Lemon stated that at the school he conducted on
December 5, he covered the S-9 test procedures, and also covered the 0-2 procedures "as a courtesy of the company because
they handed it to me." He stated that three or four tests
were conducted during the school using both test methods (Tr.
346). He agreed that in the event the scrubber tank drain is
elevated relative to the rest of the tank, it is possible
that water may be trapped in the lower and upper tanks, and
water may be in the scrubber tank. He also agreed that if
the gate valve between the water supply tank and the scrubber
tank is turned off, it could cause an air lock and give
invalid test results (Tr.,346-347).
With regard to the test procedures, Mr. Lemon stated as
follows (Tr. 347-349):

Q. Is it your testimony that the 0-2 procedure
should not be utilized in connection with testing these ram cars?

A. No, because on the 4114's -- well, just
like the maintenance book the company gave me
themself, a lot of the units we have running
out here in the west still have the old system.
Then we have the newer system which is similar
to the old system on these cars. And then we
have basically this system which I've been
familarized during this hearing, which is a

147

little bit new to me.
I picked this up. So
I'm going to be doing some more checking on
this stuff, but we have the same instructions
for the 4110 in that 4114 maintenance manual
that's right there on the table. That's why
we go over there.

Q. You then learned quite a bit about this
system with this hearing.
A.

I have, yes.

Q. And you do agree, do you not, that the 0-2
procedure is for the shut down system shown in
0-1?

A.

I agree with that, but in my agreement, I
also see some problems that need addressing.

*

*

*

*

*

*

*

Q. It's not your view, is it that these 0-2
procedures are improper or inapplicable to
this machine, is it?
A. No. With the exception of -- I have a
problem with the low level tank -- I have a
problem with water being in that tank and all
the water being out of the scrubber and the
system lying and still not shutting the diesel
down. That's where I have my problem.

Q. You agree, though, that that can happen if
this valve is closed shown in 0-1, that can
also happen if the machine is not level. Isn't
that true?
A.

Yes.

In response to further questions from the bench,
Mr. Lemon stated as follows (Tr. 363-365):

Q. All right. Witnesses for the operator
have maintained that if you don't drain the
main tank, you're liable to get a spurious
result. May I take it that you don't agree
with that?

148

A. No. After this testimony today, you know,
we will change our testing procedure and we'll
go along with that because by -- according to
the previous instructions, specially with the
4110 scrubber, states to isolate the area.
You turn the air off. That that, in
fact -- and you open the cab to the reserve
tank. That that, in fact, stops the flow of
the water. But there seems to be a problem
there that the company's come up with. and
possibly Jeffrey, so we need to drain these
completely out and take the full amount of
time.

*

*

*

*

*

*

*

Q. And that you indicated, as I understood
your testimony, that in actual operation,
there's a possibility where these particular
ram cars that were cited, that the system could
lie in that the scrubber could be emptied and
yet there could be enough water in the lower
tank not to trigger the shut down system. Is
that correct?
A.

Yes, sir, that's correct.

Q. Isn't that really just another way of saying that there!s a design deficiency in the
system?
A.

Yes, Your Honor, there is.

Q. But it's your position that the Mine Safety
and Health Administration has actually approved
this par~icular design?
A. That could very well be the problem.
I
could have overlooked something, Your Honor,
in Tridelphia that could have missed us, but
that's why I say this needs to be brought to
the attention of appropriate people and I will
do that.
MSHA's Arguments
MSHA argues that Inspector Biondich followed the normal
inspection routine by having West Elk's mechanics conduct the
test on each of the cited cars. MSHA asserts that the tests

149

generally were conducted by isolating the scrubber tank so
that water would not continue to run into the scrubber tank
from the reserve tank and then by draining all of the water
from the scrubber tank through a 1 inch valve located on the
bottom of the scrubber tank. By removing all of the water
from the scrubber tank with the car diesel engine running,
MSHA maintains that the inspector was able to determine
whether the low-level water shutoff device worked properly.
When it did not shut down the engines with the water removed
from the scrubber, the device did not shut down the engine,
and the citations followed. After repairs were made to the
equipment, the low water shutoff device operated correctlyo
MSHA asserts that there does not appear to be any factual
dispute as to the testing procedure used by the inspector, but
there is a dispute as to whether the test procedure in 0-2 or
S-9 represents the manufacturer's suggested test. MSHA maintains that test procedures S-9 represent the proper testing
methods, and that other than draining the scrubber tank rather
than the low water tank, there is little difference between
the inspector's test and the 0-2 test procedures.
MSHA states that the specific areas in which the inspector's test and the 0-2 test differed are as follows:
(1)
The float assembly which senses whether or not the scrubber
tank needs additional water is contained in the low-level
water tank, an additional water tank which is attached to the
scrubber tank and is ported to the scrubber tank so that
water can flow between the two tanks. The company procedure
recommends that the low-level tank rather than the scrubber
tank be drained. The inspector's method involved draining
the scrubber tank since that is the tank which cools the
exhaust.
(2) A second difference between the two procedures
is that the company recommends that once the low-level water
device has shut off the machine after the float tank has been
drained, the water level in the scrubber tank should be measured. However, having drained the scrubber tank the inspector did not take the unnecessary step of measuring the absence
of water in that tank.
(3) The third distinction between the
two test procedures was that the inspector omitted all of the
steps set forth in subparagraph 2Cb) of the manufacturer's
suggested testing procedure. All parties agreed that part of
the procedure did not affect the results of the test but is
only a diagnostic step to help isolate particular problems in
order to facilitate repair.
MSHA suggest that a fourth distinction apparently raised
by West Elk is that the reserve tank should not be isolated
during the test (Tr. 279), and that the inspector's method

150

which isolated.the reserve tank was faulty. MSHA asserts
that the isolation of the reserve tank by the inspector is
consistent with the maufacturer's suggested test (See Ex. 0-2
where the first step in the test isolates the water tank by
closing the needle valve between it and the low pressure a~
regulator> and the practice used by other operators. MSHA
further asserts that while West Elk's evidence is contradictory on this point, if it means to suggest the two tests
differ in this respect, MSHA believe the inspector's test was
consistent with the manufacturer's test.
MSHA disputes the notion that the manufacturer's suggested 0-2 test procedures were somehow "approved by MSHA."
It points out that the only evidence of such an "approval"
came from the manufacturer's mine mechanic, Michael Murphy,
who testified that he called a supervisor who told him he
thought the 0-2 test procedure had been "approved" by MSHA.
MSHA discounts Mr. Murphy's reliance on the fact that the 0-2
procedure had a stamp at the bottom saying that prints were
not to be altered without approval by MSHA, and points to the
fact that the page did not contain prints. MSHA points out
further that Mr. Murphy was a mechanic and that he had little
contact with his own national organization and was not familiar with the dealings between his organization and MSHA. On
the other hand, Mr. Jerry Lemon from MSHA works closely with
the Certification and Approval Division, and has reason to
know what machines and what modifications are approved. He
testified that the operator is required to submit a test procedure to MSHA and that procedure which was submitted by the
manufacturer is contained on the last two pages of S-9. Further, that test procedure was made the subject of a short
training course for inspectors which is contained in S-9, and
it was the procedure set forth in S-9 which was used to test
the twelve shuttle cars.
MSHA believes that the inspector's test is the best test
under all circumstances because it tests whether the machine
will shut itself off when there is no water in the scrubber
tank to cool the exhaust, while the manufacturer's tests only
determine whether the machine will shut itself off when the
water is drained from the auxiliary lower level tank which
contains the float assembly. MSHA further believes that the
inspector's test is more accurate because he is concerned
with whether or not the machine will shut itself off when
there is no water in the scrubber tank and not whether or not
it will shut itself off when there is no water in the float
tank. MSHA views this difference as critical, and suggests
that there are several factors where water could be drained
from the scrubber tank, allowing the exhaust to escape to the

151

hostile environment without draining the low-level tank. The
valve to the scrubber tank could be inadvertently left open,
it could be accidentally knocked open while the machine is in
transit, or the scrubber tank could become ruptured, all of
which would allow water to escape from the scrubber tank and
allow the machine to run while water was retained in a low
water tank.
In response to the testimony by the manufacturer's representative Murphy that the inspector's test should be discounted because of test "quirks" which cause the machine to
"lie to itself" because of testing on inclines and the possibility of air locks, MSHA asserts that it is reasonable to
conclude that if the machine would not shut itself off on an
incline during testing, it would also fail to shut itself off
on an incline under normal operating procedures. As for the
air lock theory, MSHA concludes that Mr. Murphy's opinion is
more speculation, and not based on any "hard evidence."
MSHA concludes that the evidence fully supports the
inspector's citations. Twelve cars were tested by draining
the scrubber tank1 five failed to shut themselves down~ after
short periods of repair all five worked properly using the
same test that discovered the defective condition. The operator's defenses that the inspector used an improper test and
that the results were inaccurate do not stand up under close
scrutiny. The ventilation plan requires the operator to operate and maintain equipment according to manufacturer's specification. The ventilation plan does not bind MSHA to test
the equipment as suggested by the manufacturer. MSHA may use
the most accurate test.
In any event, the S-9 test used by
MSHA is the test submitted by the manufacturer for certification and approval. West Elk's testimony that the inspector's
test was inaccurate is based on pure speculation and a twist
of logic that the conditions of the test could never be duplicated in actual operations. West Elk's position defies logic
and is contrary to the evidence.
West Elk's Arguments
west Elk asserts that no less than four test procedures
of the low water shutdown devices were described at the hearing in these cases: First, there was the test procedure utilized in connection with issuing the citations. Second, there
was a separate test procedure which the inspector had with him
during the inspections but which played no role in the issuance of the citations (Tr. 100, 104). A third test procedure
described was that employed for a different series of Jeffr~y
ram cars as discussed by MSHA's expert, Mr. Lemon (Tr. 125-126;

152

Exhibit S-9). Finally, there was described at the hearing the
test procedure authorized by the manufacturer as contained in
Exhibit 0-2. This test procedure is part of the manufacturer's
specifications and maintenance procedures (Tr. 203).
West Elk points out that the test procedures employed by
Inspector Biondich to support the citations were not the
manufacturer's approved procedures found in 0-2, and that he
had not even seen a copy until he attended a school conducted
by Mr. Lemon at the mine in December, 1985, several weeks
after the citations were issued. West Elk asserts that
Mr. Biondich's test procedure was a shortcut method which may
or may not produce valid results, and that this accounts for
the fact that several other cars tested by Mr. Biondich
showed the low water shutdown devices on those cars to be
working properly. West Elk further points out that Mr. Lemon
indicated that prudence requires that in the event a shortcut
procedure does not show the system to be functioning properly, a detailed test should be conducted, and that he agreed
that the 0-2 test procedures are proper and more thorough
than the S-9 procedures relied on by the inspector.
West Elk asserts that the testimony of manufacturer's
representative Murphy demonstrated that a shortcut testing
method can produce invalid results when the machines are
parked on an incline while testing because of air locking,
water locking, and the closing of the gate valve between the
water supply tank and scrubber tank. West Elk asserts further that the parties are in agreement that the test results
may be invalidv and that an apparent flaw in the inspector's
test procedure was the closing of the gate valve on some of
the cars. West Elk maintains that during the tests the
inspector required the closing of this valve, and that
Mr. Lemon admitted that this could result in air locking and
produce invalid test results, and that he finally concluded
that the design of the scrubber may itself be flawed.
West Elk maintains that other significant flaws in the
test employed by Inspector Biondich include the fact that in
at least two cases the scrubber was not allowed sufficient
time to drain fully and that water was still trickling out
when the citations were issued.
If not given sufficient time
to drain, air locks can be created. West Elk points out further that no defective parts were found on any of the cited
cars, and that after suspecting that the test procedures
employed by the inspector led to inconsistent results,
Mr. Skvarch compared both test procedures after the citations
were issued and found that procedures 0-2 worked, while the
inspector's test did not.
In one case, Mr. Murphy tested a

153

cited car utilizing procedure 0-2 before any abatement work
was done, and the engine shut down, thus showing that there
was no malfunction in the system.
west Elk argue·s that when called in rebuttal near the
end of the hearing, Mr. Lemon admitted that the entire scrubber system in question was "a little bit" new to him, and
that in view of the evidence adduced during the hearing
stated that "we will change our testing procedure." West Elk
maintains that since the issuance of the citations, MSHA now
uses test procedures 0-2 to conduct tests of the low water
shutdown systems, and that since these procedures are the
only ones approved by MSHA, they are the only proper procedures, and the tests used to support the citations were not
authorized.
West Elk maintains that MSHA has not established that
the cited scrubber systems were not functioning properly
because the inspector's shortcut test procedures were flawed,
and were not the proper tests recommended by the manufacturer.
West Elk maintains that since the manufacturer has specified
a specific test procedure for the testing of the scrubber
system, MSHA's use of another procedure not approved by the
manufacturer cannot be used as a basis for establishing a
violation of the MSHA approved mine ventilation plan which
requires that the equipment be maintained in accordance with
the manufacturer's (not MSHA's} specifications. West Elk
concludes that the MSHA test procedure is simply not a valid
one, and that MSHA has not sustained its burden of showing by
a preponderance of the evidence that any of the alleged violations occurred.
West Elk argues that even assuming the validity of the
test procedure followed by the inspector, under the circumstances presented in these proceedings, the procedure did not
produce reliable results. In support of this conclusion,
West Elk points out that the inspector required that a gate
valve which existed on some, but not all of the cars, be shut
off between the main water supply tank and the scrubber tank.
According to the testimony of Mr. Lemon and Mr. Murphy, the
shutting of this gate valve could cause an air lock to form.
Further, since the scrubber tank in each cited instance was
not parked in such a fashion as to assure complete draining
of the scrubber tank, and because the scrubber tank was
drained through the main drain valve rather than the lower
level tank as required by the manufacturer's 0-2 procedures,
the angle at which the cars were tested played a role in the
outcome of the tests.
In each instance, the lower drain plug
from which water in the scrubber tank was drained was elevated

154

relative to the remainder of the tank thereby possibly trapping water both within the tank and the lower level tank.
It
is the lower level tank which senses the presence .or absence
of water needed to cool the hot diesel exhaust gases. Thus,
when the cars were tested, water may have been trapped in the
lower level tank, thereby producing an invalid result.
In
essence, because the machines were parked at an angle, water
trapped in the lower level tank lead the sensors to conclude
that sufficient water was in the scrubber tank thereby misleading the device into the false belief that sufficient water was
in the scrubber tank. The manufacturer's 0-2 procedures compensates for the effects resulting from the equipment being
parked at an angle or on an incline.
Thus, even assuming that the test employed is reasonably
calculated to produce a reliable result, West Elk asserts
that there is a reasonable likelihood that the results of the
test were not valid because of air locks on the one hand
and/or the angle on which the machines were sitting at the
time the test was conducted. Since the test results are not
reliable, West Elk concludes that MSHA has not sustained its
burden of proving the alleged violations.
West Elk points out that in reply to an inquiry from
Judge Carlson during the course of the hearing, MSHA distilled
its case to a single concept: that the shutoff devices did
not work, but should have (Tr. 163-164). West Elk asserts
that MSHA apparently believes that any test procedure is appropriate so long as it is reasonably calculated to produce a
reliable result. However, West Elk insists that MSHA's theory
does an injustice to the plain words of the ventilation plan
that the equipment be maintained in accordance with the manufacturer's specifications rather than some specification-s~
chosen by MSHA, and suggests that MSHA is not bound by the
same requirements as the mine operator. West Elk maintains
that MSHA should not be allowed to use an unapproved, arbitrary test procedure to support a violation of the ventilation
plan requirement which is related solely to manufacturer's
specifications and requirements, and that to do otherwise violates fundamental notions of due process and fairness.
West Elk concludes that the same rules must apply to both the
mine operator and MSHA, and that Mr. Lemon acknowledged as
much when he stated that, in view of the evidence presented,
"we will change our testing procedures" (Tr. 363).
West Elk advances an ancillary issue as to whether the
test procedure actually employed in testing the cited shutoff
devices was a shortcut methodology selected by West Elk or
whether it was a procedure dictated by the inspector.
If the

155

former, West Elk acknowledges that one might arguably assert
that West Elk is bound by its own procedures and may be
estopped to deny the appropriateness as such test procedures
in establishing the violations. However, West Elk believes
that the entire test procedure employed was that mandated by
the inspector, and he admitted that he required a valve to be
closed and that this did affect the test results. Notwithstanding the inspector's denial that he directed the tests,
West Elk relies on the testimony of its witnesses who accompanied the inspector that in each and every instance they
told the inspector that they did not know of the appropriate
test procedure, to which the inspector responded he would
tell them how to conduct the test. West Elk submits that the
testimony of these witnesses, and the testimony of Mr. Murphy,
who witnessed one of the tests and confirmed that it was at
the direction of the inspector, is much more credible. In any
event, West Elk further concludes that it is clear that the
manufacturer's test must be employed to determine whether the
manufacturer's equipment is being properly operated and maintained, and that any other test procedure used by MSHA would
result in de facto rulemaking with respect to those procedures.
West Elk argues that as a matter of law, the citations
issued by the inspector state no violation because there is
no requirement in its ventilation plan that low water shutdown
devices shut off the car engine when water is drained from the
scrubber tank. West Elk points out that the sole evidence of
its alleged failure to meet its responsibilities under the
ventilation plan is the failure of the machine to shut down
when water was drained from the scrubber tank. west Elk
asserts that MSHA points to no provision of any maintenance
manual or operating specifications to support this allegation,
and that it seeks to impose by fiat a new requirement that
engines on diesel equipment shut down when water is drained
from the scrubber tank even though this asserted requirement
is not part of the ventilation plan.
West Elk asserts that it has long been held that ventilation plan requirements are enforceable in the same manner as
mandatory standards.
Ziegler Coal Company v. Kleppe,
536 F.2d 398, 1 MSHC 1424 (D.C. Ct. App. 1976). Mandatory
standards must be reasonably precise in order that the operator be given fair warning of the conduct which is proscribed.
Secretary of Labor v. Missouri Gravel Company, 2 MSHC 2223
CALJ, 1983). Since the ventilation plan contains no requirement that the engine shut down when water is drained from the
scrubber tank, MSHA cannot maintain that such a requirement
exists in view of the holdings of Ziegler and Missouri Gravel.
West Elk concludes that no violation is properly stated in

156

the citations as a matter of law in that neither 30 C.F.R.
§ 75.316 nor the ventilation plan requires that diesel equip-

ment shut down "when water is drained from the scrubber tank."
west Elk asserts further that the failure of an engine

to shut down when a low water shutdown device is properly
tested may be some evidence of a failure to achieve the ventilation plan's mandate for proper maintenance and operation,
standing alone, test results using proper test procedures do
not show by a preponderance of the evidence that the ventilation plan requirements have not been achieved. When it is
considered that the test actually employed was wholly invalid,
it cannot be said that MSHA has met its burden of proving a
violation of 30 C.F.R. § 75.316.
Findings and Conclusions
West Elk is charged with violating the mandatory ventilation system and methane and dust control requirements of
30 C.F.R. § 75.316, because it allegedly failed to maintain
the low water shut down devices on the cited shuttle cars in
accordance with the manufacturer's operating maintenance specifications. MSHA's theory is that tests conducted by West
Elk at the direction of the inspector, for the purpose of
determining whether the shut down devices were functioning
properly, indicated that the devices were not performing as
required, and support the inspector's findings. West Elk's
defense is that the citations are not supportable because the
test procedures mandated by the inspector in support of the
citations were not the proper test procedures, were flawed,
and were in fact unauthorized "shortcut" procedures which
provided unrealiable and invalid results.
§

The ventilation plan requirements found in 30 C.F.R.
75.316, provide as follows:
A ventilation system and methane and
dust-control plan and revisions thereof suitable to the conditions and the mining system
of the coal mine and approved by the Secretary
shall be adopted by the operator and set out in
printed form on or before June 28, 1970. The
plan shall show the type and location of mechanical ventilation equipment installed and operated in the mine, such additional or improved
equipment as the Secretary may require, the
quantity and velocity of air reaching each
working face, and such other information as
the Secretary may require. Such plan shall be

157

reviewed by the operator and the Secretary at
least every 6 months.
It is well-settled that once a mine operator adopts an
approved ventilation plan, the operator is required to comply
with its provisions, Ziegler Coal Company, 4 IBMA 30, aff'd
536 F2d 398, 409 (D.C. Cir.) (April 22, 1976); Mid-Continent
Coal and Coke Company, 3 FMSHRC 2502 (1981).
In short, a
violation of an operator's ventilation plan constitutes a
violation of 30 C.F.R. § 75.316.
The parties agree that the applicable approved ventilation plan requirements are those which appear in exhibit S-1,
and the inspector confirmed that the specific plan requirement he relied on is found in numbered paragraph A.2., page
28. The plan requirements for diesel equipment states as
follows:
A.

Diesel Equipment

1. Any diesel equipment used inby the
last open crosscut will comply with Title 30,
Part 36 of the Code of Federal Regulations.
2. All diesel equipment will be operated
and maintained in accordance with the manufacturer's operating specifications and maintenance manual. These manuals and specifications
will be made available for reference.
3. Each diesel face equipment unit will
be examined on a daily basis to insure that
the engine and scrubber system are operating
properly to minimize poisonous exhaust gases.
Additionally, the exhaust of each unit will be
examined to insure compliance with Section
75.301-2, 30 C.F.R., regarding current threshold limit values for carbon monoxide and
oxides of nitrogen.
On working sections using diesel equipment
an examination will be made for carbon monoxide
and oxides of nitrogen in the immediate return
of each split to determine compliance of Section 75.301-2, 30 C.F.R. The examination will
be made after normal operations have begun but
no longer than 4 hours after start up.

158

Any other non-face diesel equipment opera ting in an outby area will have an examination
made for carbon monoxide and oxides of nitrogen
gases immediately down wind from the working
area on a weekly basis.
A record of each examination and maintenance check will be kept in a book for that
purpose which shall include the date, time,
examination or maintenance check results, and
samplers initials.
4. The minimum quantity of air to be
maintained over each piece of diesel equipment
during operation shall be 10,000 CFM, and the
minimum quantity of air passing through the
last open crosscut where diesel equipment is
used shall be 20,000 CFM.
(Emphasis added).
One basic issue which needs to be addressed is whether
or not the citations issued by the inspector sufficiently
describe a condition or practice which allegedly violates
West Elk's approved ventilation plan. In each of the citations, the inspector alleges that west Elk failed to comply
with its approved plan because it failed to follow the manufacturer's specifications in the care and use of diesel equipment
• in that the low water shut down . • • would not
SFiUt the engine off when the water was completely drained
from the scrubber. West Elk argues that the sole evidence of
its alleged failure to comply with the plan is the failure of
the cited machine engines to shut down when water was drained
from the scrubber tank. West Elk points out that since there
is nothing in the plan mandating that the engine shuts off
when water is drained from the scrubber tank, no violations
of its plan have been established.
I take note of the fact that the inspector failed to
include in the citations any specific references to the applicable ventilation plan provisions, manufacturer's specifications, or permissibility standards which he believed were
violated. Section 104(a) of the Act requires that a citation
describe with particularity the nature of the violation,
including a reference to the provision of the Act, standard,
rule, regulation,
. alleged to have been violated.
Although the citations do include a specific reference to the
general ventilation plan requirements of section 75.316, the
inspector's failure to pinpoint the particular permissibility
standard, plan provision, or manufacturer's specifications
allegedly violated puts the presiding judge in the untenable

159

position of fishing through the record and standards to identify the applicable requirements.
I have reviewed the transcript of Inspector Biondich's
testimony, and find that it is devoid of any references to
any specific applicable permissibility standards or manufacturer's specifications allegedly violated. The inspector
identified the ventilation plan, quoted paragraph 2, and concluded that "They weren't being operated, maintained, in
accordance with the manual" (Tr. 11). He also identified a
diagram of a low water shutoff device, and confirmed that it
was "illustrative" and "on the order of this type of equipment we were checking." He also confirmed that it was "illustrative" and "on that order" of the scrubber on the No. 6 car
which he cited on October 25, 1985 (Tr. 21). However, the
schematic was not offered or received as part of the record,
and was withdrawn.
I have also reviewed the transcript of Mr. Lemon's testimony, and find no reference to any specific permissibility
standards allegedly violated in this case. Mr. Lemon referred
to a diesel equipment permissibility "checklist" used by MSHA
for training purposes (exhibit S-9), and stated that he is
involved in conducting training for "diesel inspection of permissible schedule 31 equipment and underground coal mines for
all electrical inspectors 11 (Tr. 125). Assuming that Mr. Lemon
was alluqing to the permissibility requirements found in
Part 31, Title 30, Code of Federal Regulations, I take note of
the fact that they pertain to standards dealing with diesel
locomotives.
MSHA's posthearing brief contains no discussion with
respect to any applicable permissibility standards for the
cited cars in question. The only reference to any permissibility requirements is found at page 2 of the brief which
states in pertinent part as follows:
The 12 ram shuttle cars are used to carry
the coal from the face area to a dump point.
Since the cars work in the face and passed the
last open crosscut they are required to be in
compliance with the permissibility standards.
Those permissibility standards require the hot
exhaust from the diesel engine to be routed
through a device known as the scrubber. The
purpose of the scrubber is to cool the exhaust
so that exhaust and expelled carbon particles
will not act as sources of ignition.

160

The only clue in the transcripts as to the applicable
permissibility standards appears at page 167 where MSHA's
counsel makes reference to "part 36" (Tr. 167). During a
colloquy with the Court, counsel stated as follows (Tr.
167-169):

*

*

*

*

*

*

*

But here, Your Honor, the case, what we have
simply said is that the shutoff devices do not
work. Didn't say why they don't work. Whether
they were inspected or inspected regularly or
inspected properly. Obviously, they wouldn't
be put on there if the manufacturer didn't
intend for them to work. Ventilation plan says
that what is on there, what's required to be on
there, has to work.
JUDGE CARLSON: Okay. Fine.
say that? I'd like to know.
that certainly, but --

Where does it
It should say

MR. BARKLEY: It's in the first exhibit which,
I believe, is S-1.
JUDGE CARLSON:
(Pause.)

Okay.

I have not seen that.

MR. BARKLEY:· The first two paragraphs of that
deals with this question. First of all,
part 36 requires that all these be maintained
and permissible equipment and we feel that the
scrubbers weren't working. Obviously, they
weren't being maintained in permissible condition. Also, paragraph two says generally you
have to operate this equipment in accordance
with manufacturer's specifications. And
there's a scrubber on there that's meant to
work.
It should work.
JUDGE CARLSON: Where does it say that? It
certainly makes good sense to me, but does it
say that somewhere in the operator's manual?
MR. BARKLEY: Your Honor, I think that's one
of the things that's so basic, nobody says it.
I have looked at the manual since I've been
here and there are pages devoted to the maintenance of this particular system. Obviously,

161

with the intent to maintain it, you expect it
to work, but it doesn't say the obvious fact,
chapter 2, we've equipped with machine with a
scrubber, it should work. Here's how you make
it work.
I don't have the permissibility standards.
I believe I've got some. The standards
that you ref erred -- but you ref erred to the
permissibility standards. Here's a general
catch-all there that says face equipment operator -- last open crosscut has to be maintained
in a permissible condition. We have evidence
that the fact equipment operator passed the
last open crosscut. Permissible diesel equipment has to have a scrubber on it. The standard
says it has to be maintained in a permissible
operating order. Our theory is that the tests
show this was not maintained in a permissible
operating order.
Just didn't work. Just didn't
shut the machine off.
Paragraph 1 of the ventilation plan requires that all
diesel equipment used inby the last open crosscut comply with
Title 30, Part 36, Code of Federal Regulations.
I take note
of the fact that Part 36 are the MSHA regulatory construction
and design requirements for approval and certification of
diesel powered equipment used in noncoal mines. Since west
Elk is a coal mine operator, my assumption is that it has
agreed to abide by these regulations since they have been
incorporated as part of the approved ventilation plan.
Under
the circumstances, it would appear that these are the permissibility standards applicable to the cited cars in question.
Section 36.25 covers the requirements for engine exhaust
systems, and subsection (b) and (c) deals with exhaust flame
arresters and "exhaust-gas cooling boxes." I assume that the
scrubbers in question fall within these requirements, and
take note of the fact that subsection 36.25(b)(l}, (3), and
(c) provi
in pertinent part as follows:
(b)(l) The exhaust system of the engine
shall be provided with a flame arrester to
prevent propogation of flame or discharge of
heated particles to a surrounding flammable
mixture.
· (b)(3)
In lieu of a space-place flame
arrester, an exhaust-gas cooling box or
conditioner may be used as the exhaust flame
arrester
When used as a flame
arrester the cooling box shall be equipped

162

with a device to shut off automatically the
fuel supply to the engine at a safe minimum
water level.
(c) A device shall be provided that will
automatically shut off the fuel supply to the
engine immediately if the temperature of the
exhaust gas exceeds 185 degrees F. at the
point of discharge from the cooling system.
The general permissibility test procedures for engine
exhaust-gas cooling systems is found in section 36.47. Aside
from general statements that tests should be made to determine the performance of the cooling system, "and low water
level when the cooling system fails" (subsection (b)), and
the adequacy of the temperature actuated automatic fuel shutoff device, there is nothing in the procedures detailing the
specific test procedures which the parties believe are applicable to the cited cars.
Although I agree that the narrative description of the
alleged violative conditions cited by the inspector may be
inartfully stated, after review of the entire record, including the answer filed by west Elk, its motion for summary judgment, and the testimony of all of its witnesses, I am not
convinced that West Elk was unaware of what it was being
charged with.
west Elk's suggestion that an allegation that it violated
its ventilation plan because the car engines would not shut
down when water was drained from the scrubber tanks cannot be
sustained because the plan contains no such specific requirement is rejected.
In my view, the inspector's conclusions
that the engines would not shut down when the cars were tested
simply reflect the inspector's opinion and belief that West
Elk did not maintain the low water shutoff devices in an operable condition so as to permit them to do what they were
intended to do,!·~·, shut down the engine when the water in
the scrubber reached a certain level. MSHA still has the burden of proving by a preponderance of the credible evidence
that this was in fact the case. MSHA also has the burden of
establishing that the test procedures relied on by the inspector in support of the alleged violations were proper, valid,
and probative.
There is a dispute as to whether the test procedures
followed by the inspector to support the citations were proper
and valid. west Elk believes that the 0-2 test procedures are
the approved manufacturer's test procedures which apply to the

163

cited cars, and are the procedures which should have been
followed. MSHA believes that the S-9 procedures represent the
manufacturer's suggested test procedures, and it sees "little
difference" in the two. However, at page 4-5 of its brief, it
goes into some detail in describing three, and possibly four,
differences between the two procedures. At pages 2-3 of its
brief, west Elk points out that no less than four different
test procedures were described during the hearing.
I take note of the fact that the approved ventilation
plan does not specifically include any reference or guidance
with respect to the proper test procedures for insuring that
once placed in operation, the approved diesel equipment is in
fact being maintained in accordance with the permissibility
requirements of 30 C.F.R. Part 36, as required by paragraph 1
of the plan. Although I enjoy the benefit of hindsight, it
seem~ to me that during the ventilation plan approval process,
the specific testing requirements for all diesel equipment
used in the mine to insure continued compliance with MSHA's
permissibility requirements should have been addressed and
incorporated as part of the plan. Only in this way can the
parties clearly know what the ground rules are.
In my view,
this case is a classic example of how a broadly drawn and
ill-defined ventilation plan can generate litigation and
enforcement issues such as those presented in these
proceedings.
MSHA's threshold suggestion that the ventilation plan
language found in paragraph 2 is only limited to equipment
operational and maintenance requirements, and does not speak
to the manner in which the cited equipment is to be tested is
precisely the point raised above. MSHA's suggestion that it
is not bound by the approved ventilation plan, or the
suggested manufacturer's testing procedures, and may "use the
most accurate test," are not well taken.
On the facts of this case, the inspector issued the citations because he concluded that the cited equipment low water
shutdown devices were not being maintained in accordance with
the manufacturer's operating specifications. The only evidence available to the inspector to support this conclusion
are the results of the tests administered by the operator
following the inspector's directions and instructions. Since
the operator is required to follow the manufacturer's specifications to insure compliance with MSHA 1 s permissibility
requirements, and exposes himself to liability if he does
not, I do not find it unreasonable to expect an operator to
use the testing requirements suggested by the manufacturer to
insure that the equipment is maintained properly. I believe

164

it is basically inconsistent and unfair for MSHA to insist on
the one hand that a mine operator follow the manufacturer's
specifications to stay in compliance, and on the other hand
argue that when it is found out of compliance, MSHA can use
any test it chooses to support violations and civil penalty
assessments for those violations. In these circumstances, I
agree with west Elk's position that the use of arbitrary,
unapproved or invalid testing methods to support a violation
of its ventilation plan violates fundamental notions of due
process and fairness.
MSHA's assertions that the ventilation plan language
relied on by the inspector as the underpinning for the citations is limited to operational and maintenance specifications, and not to the methods used for testing the equipment
to insure compliance with those specifications, ARE REJECTED.
I conclude and find that a reasonable interpretation of the
plan and its intended purpose to insure continued compliance
with MSHA's permissibility requirements, supports a conclusion that west Elk was not only required to rely on the manufacturer's specifications to insure compliance with MSHA's
requirements, but was also required to follow the manufacturer's test procedures to insure that it stays in compliance.
If west Elk decides to use some other testing methods, and
the equipment is subsequently found to be out of compliance,
it does so at its peril, and assumes the risk of being cited.
Conversely, since MSHA bears the burden of proof in establishing a violation by a preponderance of the credible evidence,
I further conclude and find that MSHA must play by the same
rules, and any alleged violations of its permissibility
requirements must be established by the same testing requirements imposed on West Elk pursuant to its approved plan. Of
course, if MSHA can establish that an approved testing procedure other than that of the manufacturer is part of the plan
requirement, and that the procedure has in fact been adopted
as part of the plan a
fair notice to the operator, then
both parties would be bound by that test procedure.
The S-9 test procedures which MSHA claims are the only
MSHA-approved procedures applicable to the cited cars state
as follows:

165

Exhaust System

*
3.

*

*

*

*

*

*

Low water shutdown test.

With the water tank air pressure turned off
and the engine running at idle, slowly drain
the water from the scrubber at the drain •.
Continue to drain the water until the low
water shut-down system activates the safety
system and shuts down the engine. Quickly
close the drain so as not to loose (sic) any
more water. Remove the cap on top o"f"the
scrubber and measure the water depth. This
measurement must be 8-1/2 + 1/2 inches.
The o-2 test procedures which West Elk claims are the
MSHA-approved procedures applicable to the cited cars state
as follows:
2.

Low Scrubber Water Shut Down

a. With supply water tank full and scrubber
water at running level, close needle valve
between low-air pressure regulator and water
supply tank. Vent water tank by pushing red
button on top of fill cap. Rotate cap
counter-clockwise to first safety catch, thus
allowing water tank to remain vented during
test.
b. With engine running, disconnect the air
supply line at the upper tank vent valve.
Loss of air should shut down the engine.
After engine shuts down, reconnect the air
line, reset the trip indicator, and restart
the engine.
c. Slowly drain the water from the scrubber
through the drain valve in lower level tank
until the engine shuts down. Immediately
close the drain valve. Check the scrubber
water level by removing first the top pipe
plug on the rear of the lower tank (7" level)
and if no water is visible, then reopen the
valve (6 11 level). If no water flows from the
bottom valve the system is not functioning
properly.

166

The introductory language which appears on page 1 of the
0-2 test procedures states in pertinent part as follows:
"Listed below are the items and functions that must be maintained at all times in order to keep approval status of this
vehicle. This checklist should be posted for easy reference
by the personnel that have been assigned this responsibility."
MSHA takes the position that the Jeffrey manufacturer's
0-2 test procedures do not have MSHA's approval, and that the
only test procedures submitted by Jeffrey are those found in
S-9. MSHA discounts Mr. Murphy's reference to the MSHA
"stamp of approval" which appears on the face of 0-2 as an
indicia of MSHA approval. MSHA asserts that this printed
information refers to "prints," and that the procedures are
not "prints."
Mr. Murphy believed that the 0-2 procedures have been
approved by MSHA, and stated that he was so advised by a
Jeffrey manufacturer's representative. Mr. Skvarch agreed
(Tr. 210). In describing the procedures, Mr. Murphy characterized them as follows at (Tr. 251):

*

*

*

*

*

*

*

This is the permissibility checklist that we
have submitted to MSHA in Tridelphia and have
their approval to distribute as an approved
piece of drawing.
It's an approved drawing.
In other words, it's not just a piece that
goes in the maintenance manual.
It goes in
the parts book as an approved drawing. Something that I understood is not to be deviated
from and it has been, sent out to customers
that have this type of a system to show that
that is how the system has to be checked to
see if it is working.
Mr. Lemon referred to the very same printed information
appearing on 0-2 as did Mr. Murphy, and Mr. Lemon believed
this information evidenced the fact that the cited Jeffrey
cars are MSHA certified and approved, and he confirmed that
the 0-2 permissibility checklist submitted by Jeffrey is
applicable to the model 4114 ram cars CTr. 129, 133).
Mr. Lemon confirmed that he was previously aware of the 0-2
checklist even though he never saw it in any manuals, and
stated that "it may have come along with the prints, • • •
sent out to the different coal operators that have this.type
of machinery on their property" (Tr. 121).

167

The term "print" is defined by Webster's New Collegiate
Dictionary as "printed matter" or "a reproduction." Although
one may speculate that the term "print" refers to the car
specifications, I also note that the document contains the
word "Drawing No. 532A329," and it is altogether possible
that this refers to the car specifications. However, none of
these contradictions in terminology is explained or clarified
by MSHA's expert witness Lemon.
Mr. Lemon and Mr. Murphy are in agreement that the 0-2
permissibility test procedures are included among the materials shipped by Jeffrey as the manufacturer's test procedures. Since the equipment is MSHA certified and approved,
and absent any evidence to the contrary, I conclude and find
that the 0-2 procedures are part and parcel of the Jeffrey
manufac:turer's specifications, and that the term "print"
appearing on each page of 0-2 refers to the printed material
appearing therein, including the scrubber shutdown test
procedures.
MSHA's suggestion that the testing procedures followed
by the individuals who tested the cited cars were their
responsibility, and that Inspector Biondich was merely a
"~asual observer" are not well taken.
I believe the testimony of the three company representatives who accompanied
Mr. Biondich, and conclude that he dictated the test procedures and gave instructions as to how the tests were to be
performed.
Mr. Skvarch testified that the 0-2 procedures are kept
at the mine and that they are part of the equipment specifications and maintenance procedures (Tr. 203). Even though the
ventilation plan requires that they be made available for
reference, Inspector Biondich admitted that he never asked to
see them at the time of his inspections. He conceded that
the 0-2 procedures are the proper ones for testing the cited
cars, and admitted that he did not follow them when he issued
the citations (Tr. 65, 69, 91), and that the instructions he
gave for shutting the water supply between the supply tank
and scrubber tank were not part of the 0-2 procedures (Tr.
73). Mr. Biondich also agreed that the 0-2 procedures
appeared to be approved by MSHA (Tr. 75).
Although Inspector Biondich alluded to several other test
procedures which were in his briefcase at the time of his
inspections, he conceded that they pertained to scrubber
models 410, HR 150, and 411 H, which are different from the
ones he cited, and that he did not use them (Tr. 100-101). ·

168

As a matter of fact, there is no evidence that Mr. Biondich
relied on any written test procedures at the time he inspected
the cars and issued the citations, and simply relied on his
own notions as to the test procedures which should be used.
The three West Elk representatives who accompanied Mr. Biondich
during his inspections all confirmed that he did not refer to
any written test procedures during his inspections, and maintenance manager Skvarch expressed concern that Mr. Biondich was
using the wrong test procedures.
Mro Murphy testified that the S-9 test procedures are
not the proper procedures for testing the cited cars because
they pertain to a di erent type of low water shutdown
devices than those on the cited cars (Tr. 261). Mr. Skvarch
was of the same opinion (Tr. 201). Although Mr. Lemon
believed that the S-9 procedures deal with the "same type of
scrubbers" as those cited by the inspector, and identified a
diagram of a cylindrical type 4110 flame arrestor which
appears at page 4 of S-9, as one of these which was cited, he
conceded that it was not the same type scrubber which the
inspector said he cited (Tr. 70, 125-127).
MSHA suggests that since Mr. Murphy is "a mechanic" with
little contacts with Jeffrey and no familiarity with the dealings between Jeffrey and MSHA, his testimony is less credible
than Mr. Lemon, who works closely with MSHA's Certification
and Approval Division, and has reason to know what machines
and modifications are approved. MSHA's position is not well
takeno Mr. Murphy ls an experienced senior equipment serviceman whose duties include troubleshooting and instructions as
to how to maintain and service the equipment. The fact that
he is not directly involved in the certification and approval
process, and all of the paperwork that goes with that process,
is no basis for concluding that he is ignorant of the test
procedures which apply to the equipment in question. Since
testing is an integral part of maintaining and servicing the
equipment, and since Mr. Murphy is an experienced serviceman,
I conclude that he is just as competent as Mr. Lemon, and that
his testimony regarding the 0-2 test procedures is credible.
There is nothing in S-9 that reflects that the procedures
detailed therein are approved by MSHA. S-9 was characterized
by Mr. Lemon as a "training outline" he uses to train inspectors, and he claimed that the outline was adopted from procedures submitted by Jeffrey "to make it basic and easy for the
mine inspectors in the field to check out Jeffrey equipment"
(Tr. 125). Mr. Lemon stated that he conducts training "for
diesel inspection of permissible schedule 31 equipment and
underground coal mines for all electrical inspectors."
I take

169

note of the fact that Part 31 of MSHA's regulations deals with
diesel mine locomotives, and not the type of equipment cited
by Inspector Biondich.
Mr. Lemon agreed·that the 0-2 checklist test procedures
are the proper procedures for testing the cited scrubber
low-water shutdown devices, and that they are more thorough
than the S-9 procedures (Tr. 139-140). He confirmed that he
used the 0-2 procedures as part of the training course he
conducted at the mine after the citations were issued CTr.
136, 346, 348). He also confirmed that the car manufacturer
is required to submit such checklists with the equipment when
it is submitted to MSHA for certification and approval, and
that such a checklist was submitted for the equipment in
question.
Mr. Lemon confirmed that he was aware of the 0-2 test
procedures some 5-months prior to the issuance of the citations, and was shown a copy by a service representative at a
mine in Utah {Tr. 357). He has since requested a copy from
another mine operator in Colorado (Tr. 359). When asked why
he did not request a copy from "his people" at any time prior
to the issuance of the citations, he explained that he "never
had a need" for them because the diesel equipment under his
jurisdiction was equipped with older model 4110 scrubbers,
rather than the newer model 4114, and that "90% of ours in
the Utah area still have the old scrubbers on them" (Tr. 358).
He conceded that the new models "are a little bit new to me,"
and that based on his familiarization with the newer models
during the course of the hearing, "we will change our testing
nrocedures" (Tr. 363). Further, Mr. Lemon confirmed that
since the issuance of the citations, MSHA has tested the very
same cited cars using "the proper test procedures" and that
"they all shut down and operated properly." He also confirmed
that he has never determined why the test procedures mandated
by Inspector Biondich to support the citations did not work
(Tr. 215).
Inspector Biondich made no mention of the S-9 test procedures as such, and after review of his testimony I take note
the fact that he was never asked about them. However,
with respect to the 0-2 test procedures, and in response to
West Elk's questions on cross-examination, Mr. Biondich
referred to them as the proper test procedures that are part
of the maintenance manual test procedures (Tr. 65). In a
later reference to 0-2 test procedures, Mr. Biondich again
confirmed that the 0-2 test procedures are the proper ~roce
dures contained in the maintenance manual for the testing of
the cited Jeffrey cars (Tr. 69).
In responding to a question

170

from West Elk's counsel who was quoting from the 0-2 procedures, Mr. Biondich affirmed that the instructions are
"approved" CTr. 77). Still later, he confirmed that the 0-2
procedures distributed to him and the other MSHA inspectors
during the training session conducted by Mr. Lemon were
instructions out of the west Elk maintenance manual for
Jeffrey ram cars (Tr. 90).
The only evidence suggesting that the 0-2 test procedures
were not approved by MSHA is the testimony of Mr. Lemon that
he never saw them in any manuals, that he relied primarily on
the S-9 procedures while conducting his training courses, and
that the 0-2 procedures do not contain the signature or initials of any MSHA approving official.
I have carefully reviewed Mr. Lemon's testimony regarding
the 0-2 and S-9 test procedures, and I find it rather equivocal and contradictory with respect to the question of any MSHA
approvals. For example, while confirming that Jeffrey is
required to submit permissibility checklists for each piece of
equipment submitted to MSHA's Tridelphia Office for approval
and certification, Mr. Lemon confirmed that such a checklist
was submitted. However, he did not specify which one he had
in mind. When asked about the S-9 procedures which he used as
part of his training outline, Mr. Lemon stated that it was
prepared from a checklist submitted by Jeffrey and that the
checklist dealt with the same type of scrubbers cited by the
inspector. Since the cited scrubbers were approved by MSHA, I
believe one can reasonably conclude that the 0-2 procedures
were also approved by MSHA. Further, I find it highly
unlikely that a large and well-known manufacturer such as
Jeffrey would expose itself to liability by disseminating permissibility test procedures which on their face clearly imply
that they are approved by'MSHA if this were not the case.
In confirming that the cited Jeffrey cars have MSHA's
approval, Mr. Lemon referred to the same information which
appears on each page of the 0-2 test procedures implying
MSHA's approval, as evidence of that approval (Tr. 129).
Under the circumstances, I see no reason why West Elk cannot
rely on that very same information to support its assertion
that the 0-2 procedures likewise have MSHA's approval.
At one point during the hearing, Mr. Lemon was asked
whether the 0-2 test procedures were the approved Jeffrey
permissibility procedures. He responded "I can't answer
that," and he explained that he had never seen them as part
of any maintenance manuals (Tr. 138-139). However, he also
"assumed that they came from Jeffrey," and he believed that

171

they were "separate from the maintenance manual" (Tr. 139).
If this is true, then I fail to understand why Mr. Lemon
would have expected to find them in any manuals. Although
West Elk's ventilation plan requires that equipment manuals
and specifications be made available for reference, I find
nothing in the plan requiring the permissibility test procedures to be physically kept in the manuals.
In confirming that his prior knowledge of the 0-2 test
procedures came about as the result of his visits to two other
mines, Mr. Lemon did not state that he requested to review the
maintenance manuals or that he made any effort to do so. This
may also explain why he did not find them in any manuals.
In
explaining why he had not previously requested a copy of those
procedures from his own MSHA people, Mr. Lemon stated that he
never had a need for them because 90 percent of the scrubbers
under his jurisdiction were older 4110 models. Since the
scrubber diagram included as part of the S-9 procedures is an
older 4110 model, and since those procedures applied to the
older model, one can reasonably conclude that Mr. Lemon did
not consider the 0-2 procedures particularly important or relevant. However, this is hardly a basis for concluding that the
0-2 procedures are not the approved procedures for testing the
cars cited by the inspector. Likewise, the fact that Mr. Lemon
may not have seen the 0-2 procedures in any manuals is no basis
for concluding that they were not approved by MSHA.
Mr. Lemon is one of three diesel "coordinators" working
out of the MSHA district office which considers equipment
approvals and certifications. He conceded that there are
occasions when equipment approvals are made while he is on
leave, and that he may not be totally aware of all of these
approvals. When testifying about the possible design deficiencies in some of the cited cars, even though the cars have
been approved by MSHA, Mr. Lemon conceded that it was possible
that he "could have overlooked something" (Tr. 365). In my
viewf the same could be said about the 0-2 test procedures.
In view of the foregoing, and after a careful weighing
of all of the testimony, I cannot conclude that MSHA has
established through any credible testimony that the 0-2 test
procedures were not approved by MSHA. To the contrary, I
conclude and find that the preponderance of the evidence supports a conclusion that the 0-2 test procedures have MSHA's
blessing and approval, and that they were the proper procedures which should have been followed by the inspector at the
time of his inspections.

172

The thrust of MSHA's case is that the cited low water
shutdown devices were not functioning properly, and that the
test administered by Inspector Biondich established this as a
fact.
I disagree. On the facts of this case, it seems clear
to me that Inspector Biondich failed to follow the proper
manufacturer's 0-2 test procedures. MSHA's suggestion that
the S-9 test procedures followed by the inspector are basically the same as those found in 0-2 are rejected. There are
differences in the two test procedures. For example, the
first sentence of test procedure 2.a. of 6-2 requires the
closing of a needle valve with the supply water tank full and
the scrubber water at running level. S-9 makes no reference
to any needle valve, nor does it mention the water supply
levels in the tanks. The first sentence of test procedure
2.c. of o-2 requires that water be slowly drained from the
scrubber through a drain valve in the lower level tank until
the engine shuts down. The second sentence requires that the
scrubber water level be checked at the lower tank 7 and 6-inch
levels. The S-9 procedure simply requires that the water
level be tested by measuring the water depth through a cap on
the top of the scrubber. Further, MSHA acknowledges that
there are differences in the two test procedures, and it
details those differences at page 4 of its brief.
Inspector Biondich admitted that he failed to follow the
0-2 procedures in issuing the citations. He admitted that he
did not check the water level as required by procedure 2.c.,
even though water could be trapped in the scrubber tank and
upper float tank. ·He admitted that he instructed the test
personnel to shut off the water between the water supply tank
and the scrubber by means of a valve not specified in the 0-2
procedures, and that the procedures in 0-2 for the draining
of the water from the low level tank at the 7 and 6-inch
levels were not followed. Mr. Lemon conceded that at no time
during the testing of the cited cars did the inspector measure the water tank level. He confirmed that he always
checks the water level "because that's part of the check"
(Tr. 173).
Mr. Lemon and Mr. Murphy agreed that if a "shortcut" version of the 0-2 test procedures were done, and the low water
shutdown devices did not work properly, a prudent thing to do
would be to run through the entire detailed 0-2 procedures in
order to determine whether the device itself was defective or
whether the malfunction might be caused by an air lock or something unconnected with the test procedure itself (Tr. 150;
258-259). Mr. Lemon also conceded that testing the cars on
inclines, and other aspects of the test procedures followed by
the inspector could produce invalid results because of air

173

locking and water locking, and he also concluded that the
design of the scrubber system itself may be flawed.
MSHA's assertions that the test procedures followed by
Inspector Biondich were properly calculated to give reliable
results and support the violations are rejected. I agree
with west Elk's arguments that the tests used by the inspector were "shortcut methods" which did not produce reliable
results in that they failed to take into account the possibility of air locks and trapped water resulting from testing the
cars on inclines, the presence of gate valves on some of the
cars, and the draining of water through the scrubber main
valve, rather than the scrubber lower level tank.
I also
take note of the fact that in each of the cited cars, the
scrubber parts which were replaced as part of the abatement
process were not found to be defective, and that subsequent
testing following the 0-2 procedures, rather than those
followed by the inspector, indicated that the devices were
operating properly. Further, MSHA's own expert (Lemon> agreed
that part of the test procedures dictated by the inspector,
i.e., closing of a gate valve, testing the cars on inclines,
and failure to drain the main tank and low level tank, could
result in air locks and trapped water, and produce invalid
test results. As a matter of fact, at the conclusion of the
hearing, Mr. Lemon candidly stated that based upon the testimony and evidence, "we will change our testing procedures"
(Tr. 363). Although Mr. Lemon acknowledged that the cited
scrubbers are MSHA approved, as stated earlier, he adtnitted
that possible design deficiencies may cause the low water
shutdown devices "to lie," and that this is something that he
could have overlooked or missed by MSHA, and that it "needs to
be brought to the attention of appropriate people" (Tr. 365).

In view of the foregoing findings and conclusions, I
cannot conclude that MSHA has established by any credible or
probative evidence that the cited low water shutdown devices
were in violation of the ventilation plan or out of compliance
with the manufacturer's permissibility specifications.
I further conclude and find that the testing procedures mandated by
the inspector were improper, that he failed to follow the
approved manufacturer's 0-2 test procedures, and that the test
methods he did employ were unrealiable and invalid, and do not
support the alleged violations. Under the circumstances, the
citations ARE VACATED.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED THAT:

174

1.

West Elk's Contests ARE GRANTED.

2. Section 104(a) Citation Nos. 2336427,
2336428, 2336430, 2833301, and 2833302, ARE
VACATED.
3. MSHA's proposals for assessment of
civil penalties for the alleged violations,
Civil Penalty Docket No. WEST 68-73, ARE
DENIED, and the civil penalty matter IS
DISMISSED.

&
cl~_,
4~o~ras MC~
Administrative Law Judge

Distribution:
Thomas F. Linn, Esq., 555 Seventeenth Street, DAT 1850, P.O.
Box 5300, Denver, co 80202 (Certified Mail)
James H. Barkley, Esq., Office of the Solicitor, u.s.
Department of Labor, 1585 Federal Building, 1961 Stout
Street, Denver, CO 80294 (Certified Mail)
/fb

175

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

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

JAN 211987

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-60-M
A.C. No. 42-01804-05506

v.

Lapoint Gravel Pit

JAY TUFT & COMPANY, INC.,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Douglas E. Grant, Esq., Grant & Grant, Salt Lake
City, Utah,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating Section
109(a) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et~, (the Act>.
After notice to the parties, a hearing on the merits took
place in Salt Lake City, Utah on August 12, 1986. The parties
waived their right to file post-trial briefs.
Issues
The issues are whether respondent violated the Act; if so,
what penalty is appropriate.
Citation 2084520
This citation alleges respondent violated section 109(a) of
the Act in that it failed to post a previous Citation (No.
2084519). The citation, which had allegedly not been posted
dealt with respondent's interference with an MSHA investigation.
·Section 109(a) of the Act, now 30
as follows:

176

u.s.c. § 819(a), provides

Sec. 109. (a) At each coal or other mine there shall be
maintained an off ice with a conspicuous sign designating
it as the office of such mine. There shall be a
bulletin board at such off ice or located at a conspicuous
place near an entrance of such mine, in such manner that
ordersu citations, notices and decisions required by law
or regulation to be posted, may be posted thereon, and
be easily visible to all persons desiring to read them,
and be protected against damage by weather and against
unauthorized removal. A copy of any order, citation,
notice or decision required by this Act to be given to an
operator shall be delivered to the ,off ice of the affected
mine, and a copy shall be immediately posted on the
bulletin board of such mine by the operator or his agent.
Summary of the Evidence
Benjamin M. Johnson, a special investigator for MSHA,
conducted an investigation of respondent at its Midvale off ice on
January 31, 1985 (Tr. 8, 9). The investigation concerned an
electrical violation at the Lapoint pit where the citation had
been served. The focus of the investigation concentrated on
whether the violation was of a knowing and willful nature (Tr.
35) •

During the investigation Jay Tuft, respondent's president,
objected to the use of a tape recorder.
He had been instructed
by his attorney not to permit their use (Tr. 20, 21). Later,
while inspector Johnson was interviewing the company foreman, Mr.
Tuft entered the room and confiscated the cassette tape in the
recorder (Tr. 9, 10, 20). As a result Citation 2084519 was
issued for interfering with a special investigation (Tr. 10; Ex.
Pl) o At the time it was served the inspector explained to Mr.
Tuft that he was responsible to post it on the mine bulletin
boa
(Tro ll}o Tuft asked if he was required to make a special
trip to the mine located 145 miles away from the company off ice
(Tr. 11, 12).
Inspector Johnson requested another federal inspectoru who
was conducting a regular inspection at the mine site, ta
n if the citation had been posted at the mine (Tr. 12).
Field notes generated by MSHA inspector Joslin were received in
evidence. They indicated the citation had never been posted
although other citations appeared on the bulletin board (Tra 14).

for a

Subsequentlyu on March 21, 1985, Citation 2084520 was issued
lure to post the previous citation (TrG 14~ Ex. P3).

On April 19, 1985 inspector Johnson visited the mine sites
The off ice manager indicated she had never received the citation
from Mr. Tuft CTrc 16, 17). The inspector next issued a section
104(b) non-compliance order for the failure to post the two
citations (Tr. 18). The company office manager then talked to

177

Mr. Tuft's secretary and was advised that both copies of the
citation were in her desk and they had not been mailed to the
mine site (Tr. 18). The front-end loader operator also indicated
to the inspector that he had never seen the citations posted on
the bulletin board (Tr. 19).
Jay Tuft testified that during the course of his two hour
interview with Johnson he objected to the use of a tape recorder.
When he objected the inspector put it away (Tr. 24, 25).
Later that day Tuft heard men's voices in his wife's office.
When he opened the door he found the inspector taping his interview with foreman Richard Logan. Tuft again objected to the
use of the recorder. When Johnson failed to stop the recorder
Tuft did so and removed the cassette. Johnson left. The
following day an MSHA attorney called Tuft from Denver. That
afternoon Johnson reappeared with a Midvale policeman and demanded his tape.
Tuft contacted his attorney and then surrendered
the tape (Tr. 26). Respondent thereafter paid a $600 penalty for
the citation that followed (Tr. 27).
When he received the citation Tuft was told by Johnson to
post it. Tuft put it on his bulletin board in his Midvale office
<Tr. 27, 29). The large bulletin board contains workman's compensation notices, minority matters, licenses, diesel permits and
things of that nature (Tr. 33). All business affairs are conducted out of the Midvale office. At the mine site the trailer
office contains a desk, a chair and a small bulletin board (Tr.
33). All of the contact between Tuft and Johnson took place in
the company off ice. None of it took place at the mine site 160
miles away (Tr. 27). The citations were all personally posted by
Tuft at the mine site after he received notice of the requirement
(Tr. 27, 28)0
Tuft indicated that there were two or three copies of the
citation at his office. He agreed there could have been a copy
in his desk CTr. 30). Tuft believed Johnson was lying when he
related his interview with the company off ice manager to the
effect that the citation had not been received at the mine site
by April 19th (Tr. 31, 32). The loader operator would not know
if the citation was posted because he cannot read or write (Tr.
32) •
Discussion
The statutory requirement mandates that citations are to be
posted at the mine site.
In this factual situation a credibility issue arises as to
where and if the citation was posted.
Inspector Johnson testified it was not posted.
His testimony is verified by the field

178

notes of inspector Joslin together with the statements of the
I credit MSHA's evidence
office manager and the loader operator.
over Mr. Tuft's bare contrary statement that he posted the
citation at the mine site.
However, I credit Mr. Tuft's testimony that he posted the
citation at the company off ice in Midvale. He was in a position
to know what occurred.
In addition, many items are posted on the
company bulletin board at the Midvale off ice. But such posting
at the off ice and at a place apart from the mine site does not
constitute compliance with section 109(a) of the Act.
Such
evidence, however, relates to respondent's negligence and good
faith.
These latter elements are factors to be considered in
assessing a civil penalty.
For the foregoing reasons, I conclude that Citation 2084520
should be affirmed.
Civil Penalty
The statutory criteria to assess a civil penalty is
contained in Section llO(i) of the Act.
In considering the statutory criteria I find that the
computer printout received in evidence indicates respondent had
eight violations in the two year period ending March 24, 1985
(Ex. P4).
In view of these few citations I conclude that
respondent's history of previous violations is below average.
The penalty appears appropriate in relation to the size of the
business. The parties have stipulated that the proposed penalty
of $106 would not impair the ability of the company to continue
in business (Tr. 5). The operator's negligence is mitigated
somewhat by the fact that the notice was posted at the Midvale
off ice. The gravity of the violation is low since it is a posting requirement. Respondent in fact abated after it was advised
of the requirement. On balance, I believe that a civil penalty
of $50 is appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:
1.

The Commission has jurisdicti9n to decide this .case~

2.

Respondent violated Section 109(a) of the Act.

Based on the foregoing findings of fact and conclusions of
law I enter the following:

179

ORDER
1.

Citation 2084520 is affirmed.

2.

A civil penalty of $50 is assessed.

3. Respondent is ordered to pay the sum of $50 to the
Secretary within 40 days of the date of this decision.

Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor,, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Douglas E. Grant, Esq., Grant & Grant, 349 South 200 East, Suite
410, Salt Lake City, UT 84111 (Certified Mail)

/bls

180

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

JAN 281987
CONTEST PROCEEDINGS

JIM WALTER RESOURCES, INC.,
Contestant

.

v.

Docket No.-SE 86-85-R
Order No. 2812055; 5/14/86
Docket No. SE 86-86-R
Order No. 2812056; 5/14/86

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

No. 4 Mine
:

SFCRFTARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

..

CIVIL PFNALTY PROCEEDING
Docket No. SE 86-123
A. C. No. 01-01247-03714
No. 4 Mine

v.
JIM WALTER RESOURCES, INC.,
Respond~nt

DECISION APPROVING SETTLFMENT
ORDER DISMISSING NOTICES OF CONTEST
Before:

Judge Merlin

The parties have filed a joint motion to approve settlements
of the two violations involved in these cases. The total of the
originally assessed penalties was $1,900. The total of the
recommended settlements is $600.
The motion discusses both violations in light of the six
criteria set forth in section llO(i) of the Mine Safety and
Heal~h Act of 1977.
Order No. 2812055, the subject of
SE 86-85-R, was issued for violation of 30 C.F.R. § 75.316. A
scoop operator had knocked down a ventilating curtain and
iled
to repair it. Order No. 2812056, the subject of SF 86-86-R, was
i£sued for violation of 30 C.F.R. § 75.200. This same scoop
operator proceeded to clean up coal from under an unsupported
roof.
Both orders were issued pursuant to Section 104Cd)(2} of
the Act.
Further investigation revealed that the scoop operator had
been ordered to clean up a different face.
Through no fault of

181

the supervisor, the scoop operator went to the wrong face. The
scoop operator was later disciplined. In light of these facts,
MSHA has reduced these 104(d)(2} orders to 104(a) citations
because the violations were not the result of an unwarrantable
failure on the part of' the mine operator. In addition, these
facts show that negligence was less than was originally believed.
A reduction in the proposed penalty for Citation No. 2812055 from
$900 to $300 is now recommended. A reduction in the proposed
penalty for Citation No. 2812056 from $1,000 to $300 is also
recommended.
The representations and recommendations of the parties are
accepted. The mine operator has withdrawn its request for a
hearing.
Accordingly, it is ORDERED that the motion to approve
settlements is GRANTED.
It is further ORDERED the above-captioned notices of contest
are DISMISSED.
It is further ORDRRFD that the mine operator is to pay $600
within 30 days of the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
~. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim Walter
Resources, Inc., P. O. Box C-79, Birmingham, AL 35283
(Certified Mail}

H. Gerald Reynolds, ~sq., Jim Walter Corporation, 1500 North Dale
Mabry Highway, Tampa, FL 33607 (Certified Mail}
George D. Palmer, Esq., Office of the Solicitor, U. s. Department
of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL
35203 (Certified Mail)
William Lawson, Bsq., Office of the Solicitor, U. s. Department
of Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL
35203 (Certified Mail)
Jim Casner, President, UMWA Local 2245, District 20, 83 Manor
Estates, Tuscaloosa, AL 35405 (Certified Mail)

182

Mr. Lawrence Beeman, Director, Office of ~ssessments, U. s.
Department of Labor, Room 918, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
/gl

183

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

January 28, 1987

SECRETARY OF LABOR,
MINE SAF~TY AND HEALTH
ADMINISTRATION (MSHA),

CIVIL PENALTY PROCEEDING
:

v.

Docket No. SF. 86-135
A. C. No. 01-00515-03650
Mary Lee No. 1 Mine

DRUMMOND COMPANY, INC.,
Respondent
DFCISION APPROVING SBTTLEMPNT
Before:

Judge Merlin

The parties have filed a joint Inotion to approve settlements
of the two violations involved in this case.
The total of the
originally assessed penalties was $2,200.
~he total of the
proposed settlements is $1,950.
The motion discusses both violations in light of the six
criteria set forth in section llOCi) of the Federal Mine Safety
and Health Act of 1977.
Order Mo. 2606500 was issued for violation of 30 C.?.R. § 75.200 because a roof bolter began instal
ing bolts before the temporary roof support jacks were in place.
A reduction in the proposed penalty for this violation, from
$1,250 to $1,000, is now recommended because of reduced gravity.
Only one miner was exposed to the hazard, rather than two, as was
originally believed.
~he one miner exposed was protected somewhat by a canopy and by the fact that he was standing next to the
rib.
Order No. 2605858 was issued for violation of 30 C.F.R.
75.316 because of failure to comply ~ith the a~proved ventilation plan.
The line brattice was 38 feet from the deepest
penetration of the tace, rather than 10 feet as required by the
plan.
The air velocity was only 47 feet per minute, rather than
60 feet per minute as required by the plan.
~ concentration of
methane of 1.4 percent hact been allowed to accumulate.
The
operator has agreed to pay the $950 penalty originally assessed
for this violation.
§

The representations and recommendations of the par~ies are
acce9ted. 1'he .settlewents are for substantial amounts and are in
accord with the statutory pur~oses.
184

Accordingly, the motion to approve settlements is GRANTBD
and the operator is ORDERFD TO PAY $1,950 within 30 days of the
date of this decision.

Paul Merlin
Chief Administrative Law
Distribution:
William Lawson, ~sq., Office of the Solicitor, U. S. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
J. Fred McDuff, Drummond Company, Inc., Post Office Box 10246,
Birmingham, AL 35202 (Certified Mail)
Ms. Joyce Hanula, UMWA, 900 15th Street, N.W., Washington, DC
20005
(Certified Mail)

/gl

185

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

JAN 291987
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 86-64
A.C. No. 36-04596-03507

v.

Bark Camp Strip

GLEN IRVAN CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On January 12, 1986, the Secretary of Labor, filed a
motion for approval of a settlement reached by the parties
in this case. The violations were originally assessed at
$5400 and the parties propose to settle for $2700.
Three violations are charged, all growing out of a fatal
fall-of-material accident. The operator was charged with
a violation of 30 C.F.R. § 77.1006(b) because an employee
was working between a highwall and a front end loader. A
penalty of $4000 was initially assessed.
It was also charged
with failure to properly conduct a preshift examination, and
with having loose, fractured material on a highwall. These
violations were initially assessed at $800 and $600, respectively.
The motion states that the violations were serious and caused
by Respondent's negligence. However, the settlement is
proposed because Respondent has filed under Chapter 11 of
the Bankruptcy Act, and its mining operations have ceased.
I have considered the motion in the light of the criteria
in section llO(i) of the Act, and in the light of Respondent's
financial condition, and conclude that it should be approved.
Accordingly, the settlement motion is APPROVED, and
Respondent is ORDERED TO PAY the sum of $2700 in accordance
with an order for distribution which may hereafter be issued
by the Bankruptcy Court in the Western District of Pennsylvania.
7

1 /
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.•

~

;)

I

.

. .

•

/! /" / /

.~

James A. Broderick
Administrative Law Judge

186

Distribution:
Covette Rooney, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Robert M. Hanak, Esq., 311 Main Street, Reynoldsville, PA
15851 (Certified Mail)
slk

187

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

JAN 3 O1987
WEBSTER COUNTY COAL CORP.,
Contestant

CONTEST PROCEEDING
Docket No. KENT 87-9-R
Citation No. 9897010; 9/19/86

v.

Dotiki Mine

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

DECISION
Appearances:

Before:

Susan E. Chetlin, Esq., and Timothy Biddle, Esq.,
Crowell and Moring, Washington, D.C. for
Contestant; Edward H. Fitch, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Respondent.

Judge Broderick

STATEMENT OF THE CASE
Contestant filed a notice of contest of a 104(a) citation
issued September 19, 1986 charging a violation of 30 C.F.R.
§ 70.lOO(a).
The citation was issued following anaylses of five
dust samples in September 1986 taken from the working environment
of a cutting machine operator. The concentration of respirable
dust in the five samples was 1.4 mg/m3, 3.5 mg/m3, 2.0 mg/m3,
2.4 mg/m3 and 1.5 mg/m3, giving an average concentration of 2.1
mg/m3. On November 25, 1986, Contestant filed a Motion for
Summary Decision, seeking a ruling that the special finding on
the citation that the violation was significant and substantial
is invalid. On December 24, 1986, the Secretary filed a Response
to the Motion and a Cross Motion for Summary Decision, seeking a
ruling that the significant and substantial designation of the
violation is valid. Contestant does not dispute the fact of a
violation, but only the significant and substantial finding. The
Secretary accepts the statement of facts in Contestant's motion
as being acurate. Therefore, since there is no issue as to any
material fact, the case may be decided on the cross motions for
summary decision.

188

FINDINGS OF FACT
In compliance with 30 C.F.R. § 70.207, Contestant submitted
five respirable dust samples of the working environment of the
cutting machine operator collected during a bimonthly period in
the Dotiki Mine to MSHA for analysis. The concentrations of
respirable dust in the samples were 1.4 mg/m3, 3.5mg/m3,
2.0 mg/m3, 2.4 mg/m3 and 3.5 mg/m3, giving an average
concentration of 2.1 mg/m3.
CONCLUSIONS OF LAW
30 C.F.R. § 70.lOO(a) requires coal mine operators to
continuously maintain the average concentration of respirable
dust in the mine atmosphere during each shift to which each miner
is exposed at or below 2.0 milligrams per cubic meter of air.
The facts here establish that Contestant failed to comply with
this requirement. It therefore was in violation of the mandatory
standard. The issue is whether that violation was significant
and substantial.
The Commission determined in Consolidation Coal Company v.
secretary, 8 FMSHRC 890 (1986) that a health standard violation
may be denominated significant and substantial if four "elements"
are present: (1) an underlying violation of a health standard;
(2) a discrete health hazard contributed to by the violation;
(3) a reasonable likelihood that the health hazard will result in
an illness; and (4) a reasonable likelihood that the illness will
be of a reasonably serious nature. The decision went on to state
that any exposure to respirable dust above the 2.0 mg/m3 level
would satisfy the second element. The third element is presumed
by the establishment of a violation. The fourth element was
established by medical facts concerning pneumoconiosis which
"support a conclusion that there is a reasonable likelihood that
illness from overexposure to respirable dust will be of a
reasonably serious nature."
8 FMSHRC at 899.
Following its analysis of these elements, the Commission
concluded:
"Therefore~ rather than requiring the Secretary to
prove anew all four elements in each case, we hold that when the
Secretary proves that a violation of 30 C.F.R. § 70.lOO(a), based
on excessive designated occupational samples, has occurred, a
presumption that the violation is a significant and substantial
violation is appropriate." id. The presumption may be rebutted
if the operator establishes~hat the miner or miners involved
were not exposed to the hazard posed by the excesive dust, for
example, through the use of personal protective equipment. There
is no evidence in this record which would tend to show that the
miners were not exposed to the hazard. The presumption is
therefore unrebutted.

189

The Commission's Consolidation Coal decision refers to
portions of the legislative history of the Act tending to show
that Congress recognized that exposure to repirable dust below
approximately 2.2 mg/m3 would not pose any danger of "disabling
disease" or "complicated coal workers pneumoconiosis. 11
Nevertheless, it is clear that the holding in the
Consolidation Coal case, by which I am bound, is that exposure to
respirable dust in excess of 2.0 mg/m3 creates a presumption that
the violation is significant and substantial. Since the
presumption has not been rebutted here, I hold that the violation
is significant and substantial.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
(1) The Notice of Contest filed herein is DENIED.

(2) Citation 9897010 issued September 19, 1986 including its
special finding that the violation charged was significant and
substantial. is AFFIRMED.
(3) This proceeding is DISMISSED.

A!li

, 14U5
'!::ltztz~f
James A. Broderick
Administrative Law Judge
Distribution:
Susan E. Chetlin, Esq., Timothy Biddle, Esq., Crowell and Moring,
1100 Connecticut Ave., N.W., Washington, D.C. 20036 (Certified
Mail)
Edward H. Fitch, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
slk

190

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

JAN 30 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 86-436
A.C. No. 46-01409-03526

v.
Seneca Mine
U.S. STEEL MINING COMPANY,
INC. I
Respondent

..
.

DECISION APPROVING SETTLEMENT
Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
Billy M. Tennant, Esq., Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act).
Petitioner has filed a
motion to approve a settlement agreement and to dismiss the
case. Respondent has agreed to pay the proposed penalty of
$20 in full.
I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set
forth in Section llOCi) of the Act.
WHEREFORE, the motion for approval of set lement is
GRANTED, and it is ORDERED that Respondent pay a penalty of
$20 within 30 days of this order.

~-_/~\

Judge

)

Distribution:
Mark R. Malecki, Esq., Office of t e Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Billy M. Tennant, Esq., 600 Grant Street, Room 1580,
Pittsburgh, PA 15230 (Certified Mail)
rbg

191

* U.S. GOVERNMENT PRINTING OFFICE 1987;

192

181-224/63001