February 1983
Conmission Decisions
02-15-83 Florence Mining Co., Helen Mining Co.
Oeida Mining Co. , North .American Coal Corp.

PITI 77-15

Pg. 189

WEVA 83-65-R
KENT 82-75-D
SE 82-52

Pg.
Pg.
Pg.
Pg.

Administrative Law Judge Decisions
02-10-83
02-15-83
02-15-83
02-17-83

Kitt Energy Corp.
Roger Bentley v. Wampler Brothers Coal Co.
Jim Walter Resources, Inc.
MSHA ex rel William E. Fitzwater v. Mettiki
Coal Corp.
02-24-83 Lynn Donovan v. Brown & Root, Inc.
02-28-83 Mid-Continent Resources, Inc.

YORK 82-23-D
WEST 82-92-IM

WEST 82-174

For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington. D.C. 20402

201
209
221
225

Pg. 231
Pg. 261

Commission Decisions

FEBRUARY

The following case was Directed for Review during the month of February:
Secretary of Labor, MSHA v. Westmoreland Coal Company, Docket No. WEVA
82-152-R, WEVA 82-369. (Judge Melick, January 18, 1983)
Review was Denied in the following cases during the month of February:
Secretary of Labor on behalf of George Mateleska v. Shannopin Mining Co.,
Docket No. PENN 81-209-D. (Judge Fauver, January 6, 1983)
Charles J. Frazier v. Morrison~Knudsen, Inc., Docket No. WEST 81-329-D.
(Judge Morris, January 19, 1983)

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

February 15, 1983
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. PITT 77-15
PITT 77-16
PITT 77-17
PITT 77-18
PITT 77-19
PITT 77-23

v.

FLORENCE MINING COMPANY
HELEN MINING COMPANY
ONEIDA MINING COMPANY
NORTH AMERICAN COAL CORPORATION

IBMA 77-32

DECISION
I.

This case is before us upon grant of a petition seeking reconsideration of our decision in this matter issued on August 31, 1982. 4 FMSHRC
1486. Pursuant to that reconsideration oral argument was heard and the
record and arguments of the parties fully reviewed. As a result of our
further review, our previous decisio~ in this matter has been modified.
For purposes of clarity, we vacate the previous decision and issue the
following as our decision in this case.
II.

This case arose under the Federal Coal Mine Health and Safety Act
of 1969, 30 U.S.C. § 801 ~ ~ (1976) (amended 1977) ("the Coal Act"). ];_/
The issue is whether the administrative law judge erred in concluding
that 30 C.F.R. § 75.1405 does not apply to certain mine haulage equipment that travels both on and off tracks. For the reasons that follow,
we reverse the jud&e's decision.
The standard at issue essentially reiterates section 314(f) of the
Coal Act and provides:
All haulage equipment acquired by an operator of a coal mine
on or after March 30, 1971, shall be equipped with automatic
couplers which couple by impact and uncouple without the
necessity of persons going between the ends of such equipment.
All haulage equipment without automatic couplers in use in a
mine on March 30, 1970, shall also be so equipped within 4
years after March 30, 1970.
On March 8, 1978, this case was pending on appeal before the Department of Interior's Board of Mine Opei::ations Appeals ("the Board"). Accordingly, it is before the Commission for disposition. 30 U.S.C. § 961 (Supp.
IV 1980). The Mine Safety and Health Administration (MSHA) has been substituted in the caption for its predecessor agency, the Mining Enforcement
and Safety Administration (MESA).
In this case review was sought of an unabated notice of violation.
For the reasons stated in our decision in Eastern Associated Coal Corp.,
4 FMSHRC 835 (May 1982), we will r~v.;lex the merits of the notice at this
time.
l. ~ \:J

];/

83-2-3

30 C.F.R. § 75.1405-1, which. delineates the scope of the above standard,
provides:
The requirement of § 75.1405 with respect to automatic
couplers applies only to track haulage cars which are
regularly coupled and uncoupied (emphasis added).
The six notices of violation at issue allege that the operators (all
subsidiaries of the North American Coal Company at the time the notices
were issued) failed to equip "rubber-rail" mine cars with automatic
couplers. Jj The issue is whether the standard applies to "rubber-rail"
equipment.
This case has an involved procedural history. Litigation of the
issue began on April 3, 1974, when the companies filed separate petitions
for modification of § 75.1405 under section 30l(c) of the Coal Act. The
petitions alleged that the standard was inapplicable to rubber-rail
equipment or, in the alternative, that application of the standard would
diminish safety. The petitions for modification were consolidated. On
March 26, 1976, the administrative law judge ruled that the rubber-rail
vehicles were not "track haulage cars" within the meaning of § 75.1401-1.
He made no findings with respect to the diminution of safety argument.
The Secretary appealed this decision to the Board of Mine Operations
Appeals.
Thereafter, the Board ruled in a different case that a petition for
modification alleging that a mandatory safety standard was inapplicable
did not state a claim upon which relief could be granted under section
30l(c) of the Coal Act. Itmann Coal Co., 6 IBMA 121, 128 (1976).
Subsequently, the Board reviewed the judge's modification decision in
light of its holding in Itmann and concluded: (1) the applicability of
§ 75.1405 to rubber-rail equipment was not a proper issue under section
30l(c) of the Coal Act, but (2) the issue could be litigated if the
companies were issued notices of violation of § 75.1405 and applied for
review of the notices under section 105 of the Coal Act. Oneida Mining
Co., 6 IBMA 343, 349-350 (1976).
The Secretary then issued the presently contested notices of
violation. The companies filed for review and the case was assigned to
the same judge who had heard the modification case. The parties stipulated that the issue pefore the judge was whether § 75.1405 was
applicable to rubber-rail vehicles and that this issue should be decided
on the basis of certain specified exhibits and specified portions of the
testimony from the previous modification proceeding.

!:./

Rubber-rail equipment can be used both on and off track. When
operating on track, a rubber-rail car is pulled by a small locomotive
and moves along the track on steel wheels similar to traditional railroad equipment (Tr. 149). When the car reaches the end of the track,
the rubber tires, which are suspended along the side of the car, are
dropped and they "literally lift the vehicle up off the rail" (Tr. 149).
The car is then pulled by a battery powered vehicle and can move along
the mine floor or in the supply yard where there are no tracks.

190

On April 20, 1977, the administrative law judge rendered a decision,
the substance of which was virtually identical to his decision in the
modification case, finding that the regulation was not applicable to
the company's rubber-rail cars. Prior to his discussion and resolution
of the issue, the judge set forth those findings of fact he believed to
be essential. The findings which are relevant for purposes of our decision are those pertaining to the equipment, the method of coupling and
uncoupling the equipment, and MESA's history of enforcement of the
automatic coupler standard.
The judge found that approximately 600 rubber-rail cars were operating at the six mines. The cars are coupled and uncoupled manually by the
draw bar and pin method (Dec. at 3). The draw bar is a steel bar 1-1/2
inches thick, 4 inches wide and 30 to 36 inches long (Tr. 179-180). It
serves as the horizontal link between two cars and is secured by steel
pins which are inserted vertically through holes in "pockets" at the end
of each car. Coupling takes place when the pocket holes are aligned
with holes at each end of the draw bar and the pins are dropped through
the holes in the pockets. The process is reversed for uncoupling (Tr.
168). Alignment of the draw bar holes with the pocket holes and insertion of the pins are done manually.
The judge found that the rubber-rail cars are used solely to
transport men, equipment and supplies. 3/ He also found that the cars
are used intermittently and that 2 to 3-times as many couplings and
uncouplings are performed off track as are performed on track (Dec. at
3-4).
The judge found that the rubber-rail cars are loaded on the surface
(in the supply yard) and moved on track into the mine in trips of 5 to
15 cars (Dec. at 4 and Tr. 151-155). The trips are pulled by locomotives
(Tr. 150). He found that once in the mine the trips are broken down
into small groups of 1 to 5 cars, the wheels are lowered and the small
trips are pulled by tractors to the section where the supplies are
needed (Dec. at 4). The process is reversed after the supplies are
unloaded. !:../
At the time the evidence was taken below, MESA was divided into 9
administrative districts. Each district was headed by a district
manager responsible for enforcement of the Act in his district. The
inines in this case were located in District 2, with headquarters in
Pittsburgh. The judge found that from the passage of the Coal Act until
3/
Coal is moved out of the mines on conveyor belts.
4/
After the cars are uncoupled, a tractor picks up the empty cars,
one by one, and takes them back to the track. The locomotive goes from
section to section picking up cars which have been put on the track.
Once the locomotive has about 15 cars it pulls the trip back to the
supply yard. After a complete return trip is assembled underground, no
further coupling or uncoupling occurs until the trip reaches the supply
yard (Tr. 154-155).

191

February 1974, § 75.1405 was not enforced with respect to rubber-rail
cars in District 2 (Dec. at 4). He also found that, in a memorandum
dated November 21, 1973, the district manager indicated that when the
regulation was written, § 75.1405 was not intended to apply to rubbertired haulage cars and was intended to apply only to track haulage cars
(Dec. at 5). The judge also found that during this period of nonenforcement the companies, relying on this policy of non-enforcement,
purchased 230 rubber-rail cars not equipped with automatic couplers
(Dec. at 4). The judge further found that the Secretary at one time
proposed to amend § 75.1405 to specifically include rubber-rail cars
(Dec. at 6). 5/ Finally, he found that MESA's enforcement policy
changed on February 7, 1974, and the Secretary began applying the
automatic coupler requirement to rubber-rail vehicles in District 2.
The judge's ultimate conclusion was that rubber-rail cars are not
"track haulage cars" within the meaning of § 75.1405-1. He noted that
§ 75.1405 applies to "all haulage equipment." He found that the
phrase "all haulage equipment" is not ambiguous, that the word "haulage"
as used in mining parlance refers to the hauling of men and supplies as
well as ore, and that the word "equipment" is very broad. Thus, he found
that if the statutory language had been literally applied, there would
be little doubt that rubber-rail haulage equipment would be required to
have automatic couplers (Dec. at 5-6). However, in implementing
§ 75.1405, the Secretary promulgated § 75.1405-1 which states that
§ 75.1405 applies "only to track haulage cars."
(Emphasis added.) The
judge attempted to determine whether Congress had intended that section
75.1405 apply "only to track haulage-cars." He first examined the
legislative history. The sole reference in the legislative history to
section 314(f) is contained in a letter from the Director of the Bureau
of Mines to Congressman John Dent. Congressman Dent had asked the
Director to conduct a technological review of safety standards which had
been proposed as amendments to the House bill. The automatic coupler
provision was one of those amendments. The Director stated "[t]he
provisions relative to coupling mine cars ••• will make a positive
contribution to safety." The judge found this reference to be uninstructive (Dec. at 6).
Next, the Judge examined the structure of section 314 itself and
found this to be persuasive:
Perhaps the best indication of what Congress intended can be
obtained from viewing section 314 of the Act in its entirety.
It consists of six subsections, "a" through "f" and is headed
"Hoisting and Mantrips." Subsections "a," "b," "c," and "d"

1/

The proposed amendment stated:
§ 75.1405-1 automatic couplers, haulage equipment. The
requirement of § 75.1405 with respect to automatic couplers
applies only to track haulage cars, including rubber-rail
cars, which are regularly coupled and uncoupled.
The proposal was one of many contained in a February 10, 1975, MESA
memorandum which was addressed to all underground coal mine operators
(Exhibit 12). The memorandum stated that hearings would be conducted on
the proposed changes and requested the operators to submit comments.
The change with respect to rubber-rail cars was never adopted nor was
the change ever formally proposed in the Federal Register.

192

deal specifically with hoists and generally with the
transportation of men and material. However, in "e" locomotives and haulage cars are mentioned for the first time in
connection with the requirement that they have automatic
brakes. Next follows 314(f) and its reference to "all haulage
equipment." I believe subsections "e" and "f" are generally
different than the preceding four subsections and should be
read together. Following this approach, the phrase "haulage
equipment" would relate back to subsection "e" and its mention
of locomotives and haulage cars. Since in customary coal
mining jargon, the word "car" and the term "haulage car" has
reference to vehicles used on railroad track, I would conclude
that this is what Congress had in mind, even though the phrase
"all haulage equipment" when taken out of context is not
patently ambiguous outside the mining industry (Dec. at 7, fn.
12).

The judge stated that the Secretary in promulgating § 75.1405-1 had done
what Congress intended--that is, had made the automatic coupler provision
applicable to equipment which traveled on track (Dec. at 6-7). He also
concluded that because the record showed rubber-rail cars at the 6 mines
were used only intermittently, were primarily operated off track and
represented a technological variant not contemplated by Congress, they
were not "track haulage cars" within the meaning of § 75.1405-1 (Dec. at
6-7).
Finally, the judge found that MESA's enforcement practice for the
first four years of the Coal Act limited the coverage of § 75.1405 to
locomotives and haulage cars which traveled on track, and concluded that
this constituted a "binding construction of the statute" (Dec. at 7).
The Secretary asserts that the rubber-rail vehicles are "track
haulage cars" which are "regularly coupled and uncoupled" and therefore
come within the purview of § 75.1405. He first argues that the judge's
decision effectively modifies § 75.1405-1 to apply to haulage cars that
operate exclusively on track. He asserts such an interpretation is
erroneous because the Coal Act was remedial and regulations adopted
thereunder should be given a liberal construction. He states that the
purpose of section 314(f) of the Coal Act and § 75.1405 is to prevent
accidents while track haulage equipment is coupled and uncoupled. In
~is view, it makes no difference if the cars are coupled and uncoupled
on the track only some of the time. In short, the Secretary argues that
interpreting the standard so as to include rubber-rail equipment best
effectuates its purpose.
The Secretary next argues that the rubber-rail vehicles are "regularly
coupled and uncoupled." According to the Secretary the proper test for
regularity should be whether the equipment is coupled or uncoupled in
the normal course of routine operation or on a cyclic basis. The Secretary

193

argues that in testifying about rubber-rail procedures the companies'
safety manager described routine on track couplings and uncouplings both
in the supply yard and the point of track nearest the working sections
(citing to Tr. 150-155).
The Secretary also argues that the agency cannot be estopped from
enforcing § 75.1405-1 if it applies to rubber-rail equipment. An agency,
the Secretary states, can change its interpretation of a regulation if
that change is within the scope of the regulation. 2.1
The operators maintain that, although the language of section 314(f)
requires automatic couplers on "all haulage equipment," the judge and
the parties agree that Congress never intended the standard to be applied
literally. They also assert that the parties agree that § 75.1405-1
attempts to make explicit the limitation intended, but not stated by
6/
The Secretary makes two other arguments which do not warrant
extended discussion. First, he argu~s that the judge erred in admitting
the testimony of the then district manager of District 2, Robert Barrett,
concerning his understanding of the proper interpretation of § 75.1405.
Barrett had a dual role with regard to the regulation. He was assigned
by the director of the Bureau of Mines to coordinate the efforts of
those writing the Coal Act's implementing regulations--including
§ 75.1405-1 (Tr. 40, 46). Moreover,-as district manager for District 2
he was responsible for enforcing all standards in the district. Barrett
testified as to his opinion concerning the type of equipment the drafters
of section 75.1405-1 intended to cover. He also testified concerning
the enforcement policy he pursued while district manager (Tr. 49-56, 5963, 81-88, 91). The Secretary asserts the testimony of a participant in
the drafting of a regulation cannot be admitted to prove regulatory
intent. He asks that any findings or conclusions based upon Barrett's
testimony be rejected. A review of the judge's decision, however, fails
to indicate any findings of fact or conclusions of law based upon
Mr. Barrett's testimony concerning his view of the drafters' intent or
his understanding of Congressional intent in enacting section 314(f).
(Finding of fact No. 12 relates to a memorandum issued by Barrett).
Thus, even if we were to assume that admission of Barrett's testimony
regarding intent was erroneous, it was harmless error.
Second, the Secretary asserts that the Board of Mine Operations
Appeals in Canterbury Coal Co., 6 IBMA 276 (1976), affirmed a judge's
decision disallowing a modification of § 75.1405 for several types of
track equipment, including rubber-rail equipment, and refused to stay
its decision with respect to rubber-rail equipment until the instant
case was decided. The Secretary views this as de facto recognition by
the Board that the standard applies to rubber-rail equipment. However,
the Board's refusal to stay the part of the proceeding relating to
rubber-rail equipment was based on factual differences it perceived
between the Canterbury case and this case. 6 IBMA at 286. Moreover,
the validity of the application of the standard to rubber-rail equipment
could not have been at issue in the modification case, the Board having
ruled that such an issue could only be raised in an enforcement proceeding.

Congress. They assert the original intent of section 75.1405 was to
apply the automatic coupler requirement only to coal haulage equipment
that operates solely on track and that this original intent must control.
They argue this intent may be derived from the legislative history, i.e.,
the letter to Congressman Dent, and from the structure of section 314.Moreover, they assert that the Secretary's consistent policy from 1971
to 1974 of excluding rubber-rail equipment from coverage under § 75.1405
is the type of contemporaneous construction of the regulation by those
charged with its enforcement to which deference should be accorded.
They view this consistent administrative interpretation over a period of
four years as compelling evidence of the original intent underlying the
statutory and regulatory provisions. They also view the Secretary's
proposal to amend § 75.1405-1 so as to include rubber-rail vehicles as
evidence that such equipment was not originally covered.
In short, the operators argue that because of the legislative
history, the Secretary's contemporaneous construction of the standard,
the four year enforcement policy of not requiring automatic couplers on
rubber-rail equipment and the proposal to amend § 75.1405-1, the
judge correctly concluded that the Act and regulations do not require
automatic couplers on rubber-rail equipment. The companies state that
if the Secretary wishes to change a regulation he should follow the
promulgation procedures set forth in the Act, rather than legislate
through interpretation. LI
Our resolution of this case begins with an examination of the words
of the statute and standard. The judge and parties agree that section
314(f) and § 75.1405 on their face apply to "all haulage equipment."
They also agree that Congress could not have intended literal application
of the standard to all haulage equipment because there are many types of
equipment used to transport coal, men and supplies (~._a., shuttle cars,
battery powered tractors, and battery powered personnel carrier) which
travel alone and upon which automatic couplers would serve no purpose.
The judge and the parties also agree that in order to clarify Congressional intent and to narrow the overly inclusive language of the
statutory standard the Secretary promulgated § 75.1405-1 limiting the
automatic coupler requirement to "track haulage cars which are regularly
coupled and uncoupled."
The word "track" indicates that the regulated cars travel on rails
opposed to free moving vehicles. All parties agree the rubber-rail
cars travel on rail from the supply yard into the mine to the point on
the track nearest the section where the supplies are to be used (Tr.
150-152, Dec. 4). Thus, the rubber-rail vehicles qualify, at least in
this facet of their operation, as "track" equipment. The term "haulage

~s

LI

The operators insist that they are not raising an estoppel argument.
Rather, they are arguing that the original interpretation of the standard
is the correct interpretation and must be followed. They state that the
agency "is free to change the regulation despite reliance on the old
regulation so long as [the agency] pursues the proper procedures."
(Brief at 17.)

195

cars" in mining parlance indicates cars which carry either ore, equipment,
supplies or personnel. 8/ The rubber-rail vehicles are used for the
transport of men, equipment and supplies. Thus, we conclude that, based
on a plain reading of the standard and the nature of the use of the equipment at issue, the rubber-rail vehicles involved are a type of "trackhaulage car." 2_/
The Secretary's inconsistent enforcement of the standard against
the operators involved is troubling, but it does not lead us to a
different result. The prior practice in District 2 of not enforcing
section 75.1405-1 against rubber-rail equipment was contrary to the
plain language of the standard. Further, although an agency's contemporaneous interpretation of a regulation can be given weight, the
interpretation must be a consistent practice implemented by the agency
as a whole. See 2 Davis, Administrative Law Treatise, § 7.14 at 6669 (2d ed. 1979). The record indicates confusion among agency personnel regarding enforcement of the standard and it cannot be determined
what interpretation, if any, had been adopted as the official agency
position on the standard.
This leaves the question of whether the cited rubber-rail vehicles
are "regularly coupled and uncoupled" within the meaning of the standard.
The adverb "regularly" suggests a practice or implies uniformity or a
method of proceeding. It excludes isolated or unusual occurrences. We
believe that the record reflects a uniform method and practice of on-track
coupling and uncoupling. The judge's finding that the rubber-rail cars
are used only intermittently and are not regularly coupled and uncoupled
is difficult to explain. None of the sources cited by the judge states or
infers that the use of the equipment was only intermittent or that on-track
coupling and uncoupling are not routine practices.

§_/

Haulage cars. Rail haulage cars for surface or mine shaft operations are used to carry ore and equipment to and from the digging site.
They may be of the trailer type or self-propelled, and include dump
cars, flat cars, personnel cars, etc. Dictionary of Mining, Mineral
and Related Terms, U.S. Department of the Interior at 530 (1968).
9/
There is a great deal of discussion by the parties as to whether
Congress intended section 314(f) to apply to rubber-rail vehicles. The
j.udge concluded that the Secretary "correctly divined Congressional
intent" when he promulgated§ 75.1405-1 (Dec. 6). Our attempt to
determine Congressional intent is inconclusive. We have found no
indication that Congress in drafting section 314(f), or the Secretary
in promulgating § 75.1405-1, considered rubber-rail equipment. See
35 Fed. Reg. 17890 (Nov. 20, 1970). At most section 314(f) and the
legislative history indicate that automatic couplers are required on
mine cars which run on track and which carry loads. Thus, we perceive
no definitive indication from the legislative history, or the context
of section 314, as to whether automatic couplers are to be installed
on such cars that run only part of the time on track.

196

We therefore find that the rubber-rail cars are track haulage
equipment that are regularly coupled and uncoupled on track and,
therefore, that the standard applies to the on-track facet of their
operation. The standard, however, does not apply to off-track operation and no other standard to which we have been cited, or that we
are aware of, requires the use of automatic couplers on this equipment
when it is used off-track.
Accordingly, if the Secretary wishes to require use of automatic
coupling devices on rubber-rail vehicles at all times, he should
amend § 75.1405-1 to expressly so provide. See Diamond Roofing Co.
v. OSHRC, 528 F.2d 645 (5th Cir. 1976). In the course of the rulemaking process set forth in section 101 of the Mine Act (30 u.s.c.
§ 811), 10/ the technology, feasibility and safety considerations
so important to miners and the industry could be developed and a
rational resuit reached. It is of parenthetical interest to note
that there is testimony in the record that any attempt to adopt
automatic couplers to rubber-rail vehicles operating off-track could
be dangerous to the safety of miners (Tr. 67-68; 202). Vertical
movement of the automatic coupling on the uneven mine floor, together
with the difficulty of lateral alignment in off-track operation,
lends considerable force to this testimony.
Having made the foregoing observations as to the standard at
issue, we are now faced with the disposition of this case. The
record supports the finding that the-equipment here was not equipped
with automatic couplers while it was operated on-track. Accordingly,
the operators were in violation of the standard. In this regard the
judge erred in his finding.
We are not unaware that the facts also pose an issue which transcends
the applicability issue resolved in this forum. This additional question
concerns whether, given the asserted safety problems associated with
automatic coupling systems off-track and potential practical problems
with a requirement that the vehicles have two coupling systems so that
they can be used safely both on and off-track, the standard should be
enforced by the Secretary in accordance with its literal terms in
the situation here. Section 30l(c) of the Coal Act and section lOl(c)
of the Mine Act, however, provide a separate means of addressing
this concern. As we have held previously, it is "important that
questions of diminution of safety first be pursued and resolved in
the context of the special procedure provided for in the Act, i.e.,
a modification proceeding." Penn Allegh Coal Co., 3 FMSHRC 1392, 1398
(June 198l)(emphasis added). Cf. General Electric Co. v. Secretary
of Labor, 576 F.2d 558, 561 (3d Cir. 1978). This Commission was
established as fully independent of the Secretary by the 1977 Mine
Act. As ·a result, we do not have jurisdiction, as did the Board
of Mine Operations Appeals, to rule on petitions for modification
based on diminution of safety. 30 U.S.C. § 8ll(c)(Supp. V 1981).
10/

Similar provisions existed in section 101 of the Coal Act.

19'(

From our review of the previous decisions of the administrative
law judge and the Board in this matter, it appears that the question
of diminution of safety never has been finally resolved. In light
of our reversal of the judge on the applicability issue, both parties
now have a present incentive to finalize the previously instituted
modification proceeding. In the event that this avenue is pursued,
we observe that all parties would be well-served by updating the
time-worn record presently available in order to better conform the
issue posed with the state of present technology.
Conclusion
Accordingly, we reverse the judge's conclusion that 30 C.F.R.
75.1405 does not apply to the haulag cars at issue and reinstate
the notices of violation. _!l/
§

on

Commissioner

"""~~~~ .....
11/ The present case arose from an application for review filed by
the operators, rather than a petition for assessment of penalties
filed by the Secretary, and only the question of the applicability
9f the standard is being resolved herein. Therefore, we need not
~xplore in this case the effect that a previously instituted modification proceeding should have on a subsequently filed action
seeking civil penalties for noncompliance with the standard sought
to be modified. See Sewell Coal Co., 3 FMSHRC 1402, 1414-15 (June
1981). Our conclusion concerning the applicability of the standard
to only one facet of a two facet operation is based on the particular
standard.and the particular type of equipment involved in this case.

198

Distribution
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Richard McMillan, Jr., Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
Mary Lu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge Michael Lasher
FMSHRC
5203 Leesburg Pike, 10th Fl.
Falls Church, Virginia 22041

19B

Administrative Law Judge Decisions

200

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

KITT ENERGY CORPORATION,
Contestant

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

Contest of Citation
Docket No. WEVA 83-65-R
Citation 2020054; 12/1/82
Order No. 2020054-1; 12/22/82
Kitt No. 1 Mine
DECISION

Appearances:

B. K. Taoras, Esq., Meadow Lands, Pennsylvania, appeared for
Contestant;
Howard Agran, Esq., Office of the Solicitor, U.S. Department of
Labor, Philadelphia, Pennsylvania, appeared for Respondent.

Before:

Administrative Law Judge Broderick

STATEMENT OF THE CASE
Contestant filed a notice of contest on December 10, 1982, contesting a
citation issued on December 1, 1982, by MSHA charging a violation of 30 C.F.R.
§ 75.1722.
The notice contended that the Contestant did not violate the
standard as alleged, that the violation charged could not have significantly
and substantially contributed to the cause and effect of a mine health or
safety hazard and that it was not caused by the unwarrantable failure of the
operator to comply with the standard. Contestant filed a motion for an
expedited hearing with its notice of contest. Respondent filed a statement in
opposition to the m~tion for expedited review, but the parties subsequently
agreed that a hearing be called for January 12, 1983. Pursuant to notice, the
case was heard in Washington, Pennsylvania on January 12 and 13, 1983.

On January 12, 1983, prior to the commencement of the hearing, Contestant
filed a supplement to its notice of contest challenging the "modification" of
the contested citation on December 22, 1982, (the supplement erroneously
states that the modification was issued December 28, 1982), whereby the
citation was changed to an order of withdrawal issued under section 104(d)(2)
of the Act. 1be order was itself modified on January 10, 1983, to delete the
"significant and substantial" finding. The parties agreed that this case now
involves the propriety of the order of withdrawal.

201

John Paul Phillips, a federal mine inspector, Michael Niggemyer, and
James Lloyd Davis testified on behalf of the Secretary-Respondent. Joseph D.
Mock, Kirby Smith, and Robert McAtee testified on behalf of the OperatorContestant. Two miners at the subject mine, Franklin D. Raddish and
Gregory A. Riley, filed requests prior to the hearing that they be recognized
as parties to this proceeding. At the hearing they explained that they wished
to be present for the hearing but did not wish to take part in examining
witnesses or introducing evidence. Contestant moved for the sequestration of
witnesses. In granting the motion, I permitted one of the above miners to
remain in the hearing room as a representative of the miners at the subject
mine, even though the Solicitor stated he might call them as witnesses.
Contestant objected, but since neither miner was in fact called as a witness,
the objection is moot. The parties waived their right to file written briefs.
Based on the entire record and considering the contentions of the parties,
I make the following decision.
FINDINGS OF FACT
1. At all times pertinent to this proceeding, Kitt Energy Corporation
was the owner and operator of a coal mine in Barbour County, West Virginia,
known as the Kitt No. 1 Mine.
2.

The operation of the subject mine affects interstate commerce.

3. MSHA began a comple·te quarterly inspection ("AAA inspectl:on'') of the
subject mine on July 2, 1982, and completed it on September 28, 1982. Another
quarterly inspection was begun on October 14, 1982. This inspection continued
until December 17, 1982. During the former inspection a withdrawal order was
issued under section 104(d)(2) of the Act on July 14, 1982, alleging a violation of 30 C.F.R. 75.1704.
4. A special technical inspection ("CEF investigation") was commenced
on July 19, 1982 and completed on August 6, 1982.
5. All the active sections of the mine were visited by MSHA inspectors
(in either the regular inspection or the technical inspection) between
July 19, 1982 and September 28, 1982.
DISCUSSION
The operator's safety supervisor, Robert McAtee, testified that a new
regular inspection was commenced on July 19, 1982, and completed ("closed
out") on September 28, 1982. It appears from Inspector Phillip's testimony
that McAtee is mistaken. The regular inspection which commenced on July 2,
1982, was not completed until September 28, 1982. The inspection which began
on July 19, 1982, was a technical inspection. During such an inspection the
inspector can issue citations for any violation he encounters. However, he
is concentrating on the technical problems which prompted the investigation.

202

6. The bin area of the subject mine contains a large bin holding many
tons of coal into which the belts coming from the face-areas dump. A vibrator
screen starts the flow of coal and a scalping screen separates the smaller
from the larger pieces. The former area sent to the slope belt and thence to
the surface; the latter are fed into a crusher. The vibrating machine has an
"eccentric," ?lso called a balance wheel, which turns and is attached to a
shaft which causes the vibrating machine to vibrate. There was an on-off
switch in the bin area, but the scalping screen can be turned on from the
preparation plant even though the switch in the bin area is off.
7. The belt drive between the motor and the eccentric was covered with
a guard -- an 8 inch wide sheet metal frame on top and on both ends to which
a screen was attached on the front (away from the eccentric). The right upper
corner of the screen was torn away from the frame as of December 1, 1982, and
the screen, which had been welded to the frame, was loose. It was not
anchored to the floor.
8. The lower frame of the guard was 23 inches above the floor, and the
upper frame was 49 inches from the floor, on December 1, 1982. Thus, there
was an area of 23 inches from the floor not covered by the screen.
9.

The floor in question consisted of metal grating.

10. On December 1, 1982, the eccentric did not have a guard affixed to
it. The eccentric turns at approximately 735 revolutions per minute. On
December 1, 1982, its highes.t point when turning was approximately 4 .. inches
above the top of the frame of the belt drive guard.
DISCUSSION
Inspector Phillips and Mr. Niggemyer both testified that the eccentric
came above the belt drive guard when it revolved. I found their testimony
more persuasive on this point that the contradictory testimony of Mr. Mock.
11. A guard had been attached to the eccentric but was damaged and
loosened in approximnately September, 1982. The operator fabricated a
replacement in its shop and installed it on October 2, 1982. The guard lasted
less than one day. A replacement was made and reinstalled but it too did not
last. On October 25, 1982, a wire or rope was stretched around the scalping
screen area and a guard was ordered from the equipment manufacturer. This
wire was present 4 or 5 days prior to December 1, 1982, but was not present
on December 1. The wire did not contain a "danger" sign and there is no
indication that the people working in the bin area were instructed by the
operator to avoid the area.
12. Normally, three men work in the bin area--one on each shift. The
duties of a bin man include cleaning up coal spillage. There is generally
some spillage in the area of the screen and it often extended under the guard
screen in front of the pulley. The bin man was required to shovel fine coal
spillage from under the screen.

203

13. The preshift examiners report book ("fireboss book") maintained at
the subject mine contained references to the shaker balance wheel beginning on
November 19, 1982. On November 20, there is a notation that it was "guarded
and cleared." On November 22, the absence of a guard was noted on the day
shift and afternoon shift. On November 23, 24, 25, 26, 27, 28, 29 and 30, it
was noted on all three shifts that the balance wheel needed a guard. On the
midnight shift, December 1, the absence of a guard was also noted.
14. A preshift examiner is a certified employee and in the subject mine
is a member of the Union and not considered part of management. He is
required to note in the preshift report all health and safety violations and
other hazardous conditions. He has the authority to "danger off" an area
which he deems hazardous.
15. The chairman of the Union Safety Connnittee told the operator about
the unguarded eccentric on a number of occasions in September and October,
1982.
16. On December 1, 1982, Federal coal mine electrical inspector John Paul
Phillips inspected the bin area of the mine accompanied by Joseph D. Mock,
the operator's chief electrician, and Michael Niggemyer, the union walkaround
representative. Niggemyer was told by the fireboss about the guard being
missing from the eccentric and sd informed the inspector. Niggemyer was
employed as an electrical trainee and had worked as a bin man in the area in
question.
17. On December 1, 1982, Inspector Phillips issued a citation under
section 104(d)(l) charging a "significant and substantial" violation of
30 C.F.R. § 75.1722(a) because a guard was missing from the eccentric on the
scalping screen and the guard over the belt drive was not adequate. The
citation was terminated by the erection of a screen and barrier preventing
employees from entering the area. This was accomplished the same day. Later
in early December the eccentric guard was received from the manufacturer and
installed the same day. The screen in front of the pulley was extended to
the floor and bolted to the frame.
18. Inspector Phillips issued a citation because he was not aware that
a 104(d) series was in effect at the subject mine. He was not the regular
inspector and was apparently misinformed by the regular inspector.
19. After returning to his office Inspector Phillips learned that the
mine was on a "(d) series." He then "modified" the citation to a 104(d)(2)
order and, apparently under instructions from his superiors, deleted the
significant and substantial finding •.
20. On December 1, 1982, the eccentric or balance wheel in the subject
mine was unguarded. This was a moving machine part. Since it turned above
the belt drive screen it was such that it might be contacted by employees in
the bin area and cause injury. The belt drive screen had a broken area in
its upper right corner and did not extend to the floor. The screen did

204

extend to the bottom of the belts and pulleys. However, it is possible that
an employee could contact the belt or pulley if he shovelled under the screen.
The broken area in the upper right hand corner did not directly expose the
belts or pulleys but an employee could accidently reach through this area and
contact the moving machinery. This resulted in the possibility of employees
contacting the belt drive through the opening or under the screen and
sustaining injuries. Further, the screen was loose and could have been pushed
into the moving pulley.
STATUTORY PROVISIONS
Section 104(d) of the Act provides as follows:
(d)(l) If, upon any inspection of a coal or other mine,
an authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger, such
violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard, and if he finds such
violation to he caused by an unwarrantable failure of such
operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation
given to the operator under this Act. If, during the same
inspection or any subs~,quent inspection of such mine within
90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of
any mandatory health or safety standard and finds such violation to be also caused by an unwarrantable failure of such
operator to so comply, he shall forthwith issue an order
requiring the operator to cause all persons in the area
affected by such violation, except those persons referred to
in subsection (c) to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative
of the Secretary determines that such violation has been
abated.
(2) If a withdrawal order with respect to any area in
a coal or other mine has been issued pursuant to paragraph (1),
a withdrawal order shall promptly be issued by an authorized
representative of the Secretary who find upon any subsequent
inspection the existence in such mine of violations similar
to those that resulted in the issuance of the withdrawal order
under paragraph (1) until such time as an inspection of such
mine discloses no similar violations. Following an inspection
of such mine which discloses no similar violations, the provisions of paragraph (1) shall again be applicable to that
mineo

.205

REGULATORY PROVISION
30 C.F.R. § 75.1722(a) provides as follows: "(a) Gears; sprockets;
chains; drive, head, tail, and takeup pulleys; flywheels; couplings, shafts;
sawblades; fan inlets; and similar exposed moving machine parts which may be
contacted by persons, and which may cause injury to persons shall be guarded."
ISSUES
1. Was the 104(d)(2) order challenged in this proceeding invalid because
it was not issued "promptly?"
2. Was there an inspection of the mine disclosing no similar violations
between the 104(d) order issued July 14, 1982, and the order challenged
herein?
3. Was a violation of 30 C.F.R. § 75.1722(a) established as of
December 1, 1982?
4. If the answer to question 3 is affirmative, was the violation caused
by the unwarrantable failure of the operator to comply with the applicable
safety standard?
CONCLUSIONS OF LAW
1. Contestant was subj.ect to the provisions of the Federal ~n~ Safety
and Health Act in the operation of Kitt No. 1 Mine at all times pertinent
hereto, and the undersigned Administrative Law Judge has jurisdiction over
the parties and subject matter of this proceeding.
2. The withdrawal order issued under 104(d)(2) of the Act which is
challenged in this proceeding is not invalid becuse it was not issued
"promptly."
DISCUSSION
Section 104(d)2) of the Act provides that when a withdrawal order has
been issued under 104(d)(l), another withdrawal order "shall promptly be
issued" i f an inspector finds a violation similar to that which resulted in
the first order. The inspector here found what be considered such a violation on December 1, 1982. He issued the withdrawal order (by a "modification"
of a citation) on December 22, 1982. The delay was occasioned by the fact
that the inspector (a special electrical inspector) was unaware on December 1
that the mine was under a "(d) series." He therefore issued a citation. He
later (after this proceeding was instituted) checked the records and found
that the mine was on a "(d) series," and issued the modification. The condition had long since been abated and there was in fact no withdrawal or closure
of any part of the mine. The modification was a bookkeeping matter, and,
although the government has not shown why it took 3 weeks to determine the
true facts, Contestant has not shown that the delay prejudiced it in any way.

206

3. A complete inspection of the mine showing no "similar violations"
had not occurred between the withdrawal order issued under 104(d)(2) on
July 14, 1982, and the finding of the violation on December 1, 1982, which
resulted in the order challenged in this proceeding.
DISCUSSION
The antecedent 104(d)(2) order was issued on July 14, 1982, during the
course of a regular inspection which took place between July 2, 1982 and
September 28, 1982. Another regular inspection was begun October 14, 1982.
It was completed on December 17, 1982. Although the order contested herein
was issued after that date, it resulted from conditions found (and cited)
prior to that date. Therefore, there was no intervening complete inspection
between the conditions resulting in the two orders. I conclude that the
fact (Finding of Fact No. 5) that all of the sections of the mine were
visited by inspectors, regular or technical, between July 14, 1982 and
September 28, 1982, does not establish "an inspection of such mine" as that
term is used in section 104(d)(2). I conclude that the term contemplates a
regular inspection of the entire mine.
S. The condition cited in the bin area of the subject mine on
December 1, 1982, the absence of a guard on the eccentric and the inadequate
guard on the belt-drive, constituted exposed moving machine parts which might
be contacted by persons and cause injury to persons. Therefore, a violation
of 30 C.F.R. § 75.1722(a) was established.
DISCUSSION
I accept the inspector's testimony that the eccentric, in the course of
its revolution, extended above the screen guarding the belt drive. An
employee in front of the screen could accidently reach over the frame and be
struck by the eccentric. Should he do so he would certainly sustain injury.
It would be less likely but not impossible, that an employee shovelling under
the screen or falling against the damaged part of the screen could contact
the belt drive with his hand, foot or shovel, and sustain injury. At least
one miner was in the area each shift. The rope or wire stretched across
the area was not adequate to keep employees away from the scalping screen
and, in any event'· it was not there on December 1, 1982 (Finding of Fact
No. 11).
6. The violation referred to in conclusions of law No. 5 was caused by
the unwarrantable failure of the operator to comply with the standard.
DISCUSSION
There is ·no doubt that Contestant was aware of the absence of a guar<l
on the eccentric, since attempts were made to repair it, and finally a
replacement was ordered. Further the absence of the guard was continually
noted in the fireboss book. The placing of a wire across the walkway to the
area was too ambiguous a signal to keep miners out, but does show that

207

Contestant recognized the danger. The area should have been dangered off to
prevent miners from approaching the exposed moving machine parts. The
inadequate guard on the belt drive was not noted in the fireboss book but
was clearly visible and Contestant, whose chief electrician visited the area
monthly, should have been aware of it. If a violation results from an
operator's failure to correct conditions or practices which it knew or should
have known existed, the violation is caused by the operator's unwarrantable
failure to comply with the standard. Zeigler Coal Company, 7 IBMA 280 (1977);
Cleveland Cliffs Iron Company v. Secretary, 4 FMSHRC 171 (ALJ).
ORDER
Based upon the above findings of fact and conclusions of law, IT IS
ORDERED that the contest is DENIED and the order contested is AFFIRMED.

J
Distribution:

/lt(/v iu: >" ./tdz-:J/t'Lf?/(_
James A. Broderick
Administrative Law Judge

By certified mail

B. K. Taoras, Esq., Kitt Energy Corporation, P.O. Box 500, 455 Race Track
Road, Meadow Lands, PA 15247
Howard K. Agran, Esq., Office of the Solicitor, U.S. Department o~ Labor,
Room 14480 Gateway Building~ 3535 Market Street, Philadelphia, PA 19l04
Gregory A. Riley, Chairman Safety Conunittee, Local 2095, U.M.W.A., 1306 Penn.
Ave., Fairmont, WV 26554

208

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

(703) 756-6210/11/12

ROGER BENTLEY,
Complainant

Complaint of Discrimination
Docket No. KENT 82-75-D

v.
WAMPLER BROTHERS COAL CO.,
Respondent
DECISION
Appearances:

Harold D. Bolling, Esquire, Whitesburg, Kentucky, for
the respondent; Roger Bentley, Jackhorn, Kentucky,
pro se.

Before:

Judge Koutras
Statement of the Case

Thi9 proceeding concerns a discrimination complain..t fileg by_the
complainant against the respondent pursuant to Section 105(c) of the
Federal Mine Safety and Health Act of 1977. The complaint was filed pro
se after the complainant was advised by MSHA on March 30, 1982, that
its investigation of his complaint disclosed no discrimination against
him by the respondent. Respondent filed a timely answer denying that
it had discriminated against the complainant, and pursuant to notice,
a hearing on the merits of the complaint was held in Pikeville, Kentucky,
November 23, 1982, and the parties appeared and participated fully therein.
The basis of Mr. Bentley's discrimination complaint in his assertion
that mine foreman Larry Wright discharged him because of his belief
that Mr. Bentley had complained to an MSHA inspector about certain roof
and rib conditions at the mine, which resulted in an inspection of
the mine sometime during the period of November 17 to December 3, 1981.
In addition, in his initial MSHA complaint, filed on January 18, 1982,
Mr. Bentley asserted that he had not been paid for a day of first aid
training which he took on a Saturday, and he had not received a copy
of his training certificate.
Issue
The critical issue presented in this case is whether Mr. Bentley's
discharge was in fact prompted by any protected activity under section

209

105(c)(l) of the Act. Specifically, the crux of the case is whether
Mr. Bentley's discharge on January 7, 1982, was in retaliation for any
safety complaints made by him to MSHA, or whether his discharge was
justified because of absenteeism, as claimed by the respondent.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

§

301

et~

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

Commission Rules, 29 CFR 2700.1,

et~

Complainant's testimony
Roger Bentley testified that he was hired by the respondent on
September 15, 1981, as a roof bolter and was paid $8.75 an hour, or
$70 a shift. The normal work shift was eight hours a day, five days
a week, and the mine is a non-union mine. He was discharged on
January 7, 1982 (Tr. 6-8).
Mr. Bentley stated that when he filed his discrimination complaint
with MSHA, he included the' matter of not being compensated for a day's
training which he took on a Saturday in October, and not receiving his
training certificate. However, he confirmed that after his discharge,
the respondent paid him for his training and that his training -cert:ificate
was mailed to him (Tr. 10).
Mr. Bentley confirmed that sometime during the period of November 7
to December 3, MSHA conducted a mine inspection, inspectors were there
periodically, and that at least on one occasion as a result of a complaint
about certain mine roof and rib conditions (Tr. 12).
Mr. Bentley stated that the day before his discharge he was having
an electrical problem with the wiring in his home which necessitated his
taking off work. He indicated that he and his wife called the mine and
advised them of this, and the next day when he reported for work he was
fired by Mr. Larry Wright, the mine superintendent. Mr. Wright told him
that he was firing him because he missed too much work (Tr. 17).
Mr. Bentley indicated that MSHA's mine inspections may have resulted
in some citations being issued, or at least an order to correct certain
roof and rib conditions. He also indicated that he performed some roof
bolting work to correct some of the conditions. He identified one of
the inspectors who participated in the inspection as Rob Fleming, and
stated that Mr. Fleming is a friend and neighbor who he had known for
some four years. Mr. Fleming was the regular MSHA inspector assigned

210

to the mine, and Mr. Bentley recalled one past incident when Mr. Fleming
was at the mine when Mr. Bentley could not make it because of heavy snow,
and Mr. Fleming asked some of the miners about the whereabouts of "his
neighbor" (Tr·. 19).
Mr. Bentley testified that he never mentioned the training incident
to Mr. Fleming. He also indicated that Mr. Fleming was not the inspector
who may have inspected the roof and rib conditions which qe worked on,
but that Mr. Fleming was involved in the inspection of a loader that another
miner had reported (Tr. 21).
Mr. Bentley confirmed that Larry Wright never said anything to him
that would lead him to believe that Mr. Wright suspected him of being
the person who complained to MSHA inspectors. However, Mr. Bentley
stated that loader operator Warren Bentley, who is not related to him,
told him that "they said that I was the one that called the inspectors
on them, and they was going to get rid of me" (Tr. 22). Mr. Bentley
testified further that after he was discharged, Warren Bentley told him
that Larry Wright had said that "he (complainant) was the one that called
the inspectors and they was going to have to get rid of me. Or, something
pertaining to tha~'(Tr. 23).
Mr. Bentley stated that during his period of employment with the
respondent he "got along good" with Mr. Wright (Tr. 24). He also confirmed
that subsequent to his discharge he applied for and received unemployment
benefits (Tr. 26). Mr. Bentley stated further that he filed his discrimination
complaint because he felt that Mr. Wright believed that he had complained
to the inspectors and fired him over it to get back at him (Tr. 27).
Mr. Bentley testified when Mr. Wright fired him he told him that he
would have to let him go for missing too many days. Mr. Wright made no
mention about any complaints, and there was no discussion about any "rumor"
that Mr. Bentley may have been the person who complained to the inspectors.
Mr. Bentley confirmed that he said nothing to Mr. Wright at that time and
simply left the mine (Tr. 29). Mr. Bentley also confirmed that he was
paid two salary checks which he had coming and indicated that- the respondent
had always paid him for his work and that he never had any trouble over
pay (Tr. 30). He also confirmed that Mr. Wright came to his house and
personally paid him for the day of training in question, but that
they did not discuss his discharge and Mr. Bentley never spoke with again
about getting his job back (Tr. 31).
On cross-examination, Mr. Bentley confirmed that he worked as a
roof bolter, and also did some work as a shuttle car operator. He confirmed
that he is an experienced miner, and that his roof bolter's job is an
important job at the mine (Tr. 33). He confirmed that the training in
question was given by a private company off mine property, and that company
is responsibile for certifying that he received the training. He also
confirmed that the training issue is no longer a part of his present
complaint (Tr. 35).

211

Mr. Bentley believed that the inspection which resulted from the
complaint filed with the MSHA inspectors took place sometime in November,
and that no one said anything to him about the inspection. He confirmed
that he continued working at the mine through the month of December
following that inspection, and up to the time when he was discharged
(Tr. 37). He confirmed that mine management never complained about his
work, that the working conditions "were pretty good", and that he never
felt that the day-to-day operations of the mine endangered his life. He
did not know whether any citations were ever issued while he was on the
job (Tr. 38-39) •.
Mr. Bentley stated that mine management never threatened to fire
him over his work habits, and he denied that management had ever mentioned
the fact that they could not tolerate his missing work (Tr. 40). He
also denied that he had several absences subsequent to the inspection
which prompted the "rumor" that he was the one who had complained, and
was not fired (Tr. 41). He did confirm that he had two days of sick
leave for which he had a doctor's excuse, and he estimated that he only
missed work for a total of six days during his employment with the
respondent, but denied that he ever missed four days' in a row in
November or any other time (Tr. 43). He stated that "I never took off
nary day without calling" (Tr. 43). He also indicated that when he did
take off work, he would call in the morning of the day he was off, and
the calls would usually be made at 6:00 a.m. He also confirmed that
there were one or two days when he left work early due to inclement weather,
but was still paid for a full shift, and he "guessed" that this was after
the inspection in question. He confirmed that the respondent "was a good
company to work for", that management never asked him to perform any
dangerous work, had never-made any abnormal demands to him as an employee,
never threatened him for reporting safety infractions to MSHA. He also
confirmed that the respondent "ran a good mine", had a good safety
record, that "it was one of the best places I ever worked", and that he
had "no reason to call the inspectors on them" (Tr. 46).
In response to one of my questions concerning his discrimination
complaint, Mr. Bentley responded as follows (Tr. 48-49):

Q.

Mr. Bentley, if this company is so great
to work for, and they were an enlightened employer,
with a good safety record, and they treated you fine,
and they paid you well, and they paid you even a
couple of days when you went home early because of
weather or what-have-you; what leads you to conclude
why did you -- why do you put any stock in these rumors
that they got you because they feel you were the guy
that blew the whistle on them?
A.

Well, that's just the way

Q.

You just feel that way?

212

A. Yes. Just the way everything looks to me.
I don't know. You know, just the way everything_
looks to me.

Q. * * Other than the rumor that you had heard,
was there anything concrete, or anything that you
can put your finger on as to
A.

No.

Q.

Do you know of any other employees out there
that have filed complaints, that have been treated
the same way you have?

A.

No.

Q.

Or, the way you claim to have been treated here.

A. See, I wasn't going to file any complaint against
them.

Q.

You weren't going to do what?

A.

I wasn't going to file a complaint against them.

Mr. Bentley explained that when he initially went to the MSHA
office after his discharge, his intent was to try to find out the identity
of the miner whose complaint prompted the inspections which he believed
triggered his discharge. _.He assumed that he could find out who.~co~plained,
and that he could then go to Mr. Wright and inform him that it was not
him (Tr. 50). Mr. Bentley also explained that while at the MSHA office
"they said I probably had a pretty good case against them" and that the
"MSHA people" talked him into filing his discrimination complaint against
the respondent. He confirmed that MSHA would not tell him who filed the
safety complaint against the company, and that other than the letter he
subsequently received from MSHA advising him that MSHA's investigation
of his discrimination complaint did not disclose any violation by the
respondent, he was never specifically advised as to why MSHA concluded
that the respondent had not discriminated against him (Tr. 49-50).
He did not know whether Inspector Fleming participated in his discrimination
investigation, nor does he know whether any investigators went to the
mine to speak with anyone there (Tr. 52). He confirmed that Warren Bentley
no longer works at the mine {Tr. 53).
Warren Bentley, testified that he first contacted Larry Wright
at the mine while looking for a job, and that Mr. Wright told him that
Roger Bentley was missing work and that he (Wright) may have to lay him
off, and that if he did, he {Wright) would hire Warren. Mr. Bentley
confirmed that during that conversation with Mr. Wright, Mr. Wright
made some mention of the fact that he was having "trouble" because
someone had "called the inspector" (Tr. 55). Mr. Bentley confirmed that

213

he quit his job with the respondent on November 20, 1981, to go to work
for another coal company, but that he became dissatisfied with his new
job and contaeted Mr. Wright to get his old job back, and that is when
the purported conversation took place (Tr. 56). He did not go back
because Mr. Wright was looking for a roof bolter, and Mr. Bentley did
not like to roof bolt (Tr. 58).
Mr. Bentley indicated that at the time he worked at the mine, some
15 miners worked there, and he confirmed that Robert Fleming was the
MSHA inspector assigned to the mine in question (Tr. 60). He also
confirmed that he had "heard" that someone had complained to an inspector
sometime in November about someone getting hurt, but that no one knew
who had complained (Tr. 62). When asked whether he had ever told the
complainant that Mr. Wright believed the complainant called in the
inspector's and that was why he was fired, Mr. Bentley stated as follows
.(Tr. 66-68):

Q.

Did Mr. Wright ever say anything to you,
either directly, or indirectly, that he knew
who had called the Federal inspector on him,
and that the next time that fellow fouled up,
he was going to get rid of him?
A.

Not that I recall.

Q. Why would Mr. Rogert Bentley, sitting right
here next to you at that table, say that you
made that statement, then?
A.

I don't have any idea.

Q. You never told Roger Bentley that Mr. Wright
had said to you that he knew -A. Now the only thing -- I'll put it to you,
I understand what you are getting to -- I told
him, I said, he was talking to me about it, and
I told him, I said, well, it soulds like, you
know, that -- me and him both was together, just
talking like me and you would meet up friends -and I said, well, it kinds sounds like that maybe
that's it. But, now as far as definitely stating,
uh-uh.

Q.

Did you hear from any of the other members
any of the other miners, rather -- or any of
the crew men out there, was there any rumor going
around the mine that Mr. Wright knew who had complained, and who had called the Federal inspectors
out there, and that Mr. Wright was going to see to
it that the next time the fellow that did it, was
going to get it?

214

A. No, for I wasn't back -- when I quit him, I
wasn't back to the mines but one time. I went up
there to get my W-2 forms, and that's the only time.
In fact, I went to his house, I think, to get them,
I believe.

Q. Have you ever known Mr. Roger Bentley to file
any complaints with MSHA, or to complain about
safety conditions, or that sort of thing?
A.

Not since I have known him.

Q.

Do you have any idea who complained about
the conditions at the mine that caused the inspector
to go there in November?

A.

I don't know

(INAUDIBLE).

Mr. Bentley stated that there is no mine safety committee, and that
if anyone had a safety problem they would go to Mr. Wright, mine owner
Wampler, of foreman Ernest Mullins, and that Mr. Mullins would take care
of the problem (Tr. 70). In response to further questions, Mr. Bentley
stated that the respondent always treated him fairly, and he confirmed
that he was not at the mine when the complainant was discharged (Tr. 73).
He also indicated that mine management never threatened him for complaining
about safety matters, and did was expected to take care of such problems
(Tr. 76).
After the testimony of Warren Bentley, the complainant indicated
to me that he did not wish to pursue the matter further, and his reason
for this was his belief that Warren Bentley's testimony was contrary
to what Mr. Bentley had previously told him. The complainant indicated
that he filed his discrimination complaint on the basis of Warren Bentley's
prior statement that Mr. Wright told him that he had fired the complainant
because he believed that his complaint to the inspector had prompted
the mine inspection (Tr. 77). In view of the fact that Mr. Wright was
present for testimony, the complainant's request not to pursue the
matter further was denied (Tr. 77).
Respondent's testimony and evidence
Larry Wright testified that he is the mine superintendent and that
he also has an ownership interest in the mine. He indicated that mine
foreman Ernest Mullins takes care of the day-to-day operation of the
mine, and that he (Wright) spends half his time underground. He confirmed
that the complainant was hired on September 15, 1981, and that the only
problem he had with him was that he missed work- He confirmed that the
complainant Roger Bentley was a good roof bolter and worker, and that
from the time he was hired he began missing work "one or two days a week".
Since the roof bolter is important to his mining operation, this

215

necessitated finding a replacement for him when he missed work, and he
would have to reassign another miner to that job, and that he did not
believe that this was a good safety practice (Tr. 81-83).
Mr. Wright confirmed that the complainant was terminated on January 6,
1982. Upon review of his personnel records, he confirmed that the complainant worked a total of 70 days before his discharge and that he was
absent from work a total of 11 full work days during that time (Tr. 84).
In addition, he confirmed that his records reflect that the complainant
worked two hours one day, four hours another day, and went home, but
was paid a full days' wages. There were an additional two days in which
he did not put in a full day, and the total time beyond the 11 days which
he did not complete a full days' work was four days (Tr. 85).
Mr. Wright testified that he never accused the complainant of
instigating any MSHA inspection and he identified the miner who did as
Tammer Waggoner. He stated that the complaint was over a bad top and ribs,
and when the inspectors came to the mine the complainant was not there.
Some of the miners concluded that since the complainant was not at work
that he was the one who called in the inspectors. In fact, Mr. Wright
stated that Mr. Waggoner came to him and told him that the mine would
be inspected that day, and he confirmed that the inspectors did in fact
issue a citation which reqtlired some overhanging ribs to be cut down, and
compliance was immediate. He confirmed that Mr. Waggoner is still employed
at the mine. Mr. Wright denied that he ever ·made a statement that he
would fire the complainant for having complained to the inspectors, and
stated "I never fired nobody over that. That's their own right" (Tr. 87-88).
Mr. Wright testified that he told the complainant that his missing
work was causing him problems and that if he continued.he would have to
do something about it. He also informed the other miners about this
and indicated that it was becoming costly and expensive, and he also
indicated that absenteeism was not a problem at that time, but in the
past it was a problem (Tr. 89). He confirmed that present mine policy
is to terminate miners if they consistently miss work (Tr. 89).
Mr. Wright identified the inspectors who conducted the inspection
which resulted from Mr. Waggoner's complaint as Carl Smith and Reed Castle,
and that Inspector Fleming was not with them. He also confirmed that
Mr. Fleming had never complained to him about any miner complaints over
safety (Tr. 90). Mr. Wright also confirmed that loader operator Johnny Ison
was injured in a rib roll, but that this occurred a week before the MSHA
inspection in question. He denied ever telling Roger Bentley that he
fired the complainant because of any complaint to an inspector, and he
denied.ever telling Roger Bentley that he would hire him because the
complainant was missing work. He did confirm that Warren Bentley called
him three or four weeks after he quit trying to get his job back, but
that he informed him that he had already hired a loader operator but
would consider him for a repairman's job if anyone quit (Tr. 91).

216

Mr. Wright confirmed that MSHA and state inspectors routinely
inspect the mine, that he has never had any problems with them, and that
it did not bother him if any employee saw fit to complain to any inspector
or to report him to MSHA (Tr. 92).
In response to bench questions, and after referring to his attendance
records, Mr. Wright detailed the specific days on which the, complainant
missed work. He testified that out of a total of 11 days of missed work,
he could only recall one day on which the complainant called to inform
him he would not be at work. On that day, the complainant called him
and told him he had his truck stuck in a ditch and would be late, but
he never showed up at all (Tr. 95).
Mr. Wright confirmed that it was possible that the complainant
called someone else at the mine on the days he did not show up for work,
but he also confirmed that his pay was docked for the 11 days he was
absent. He also stated that mine policy is such that miners are only
paid for the days they work, and even if they bring a doctor's excuse,
they are not paid. However, in such circumstances, it would be an excused
absence (Tr. 95-96). A miner would not be paid if he could not get to
work because of road conditions (Tr. 98).
Mr. Wright stated that he has fired other miners for absenteeism,
and that he considered the 11 days which the complainant missed to be
excessive absenteeism, and that he had spoken with the complainant about
the matter before he dismissed him, and that he had warned him a week
or so before his dismissal (Tr. 100). He denied that the complainant
ever called him about the problems with his house wiring (Tr. 100),
and he confirmed that he spoke with mine owner Wampler before discharging
Mr. Bentley, and stated Mr. Wampler is his (Wright's) uncle.
Mr. Wright stated that he did not know that Inspector Fleming
was a neighbor of the complainant, and Mr. Fleming never mentioned
that fact to him (Tr. 102), and that he found out that this was true
after the discrimination complaint was filed (Tr. 103). Mr. Wright also
related that he employs 14 or 15 miners, that absences cause production
problems and are costly to his mine operation, and that when the complainant
missed work someone had to replace him (Tr. 105). He also indicated his
safety concern over replacing an experienced bolter such as the complainant
with someone who is not as experienced (Tr. 106).
The complainant was given the opportunity to call Mr. Wampler as
a witness, but declined to do so. The complainant indicated that the
only reason he filed his complaint was that Warren Bentley told him he
had been fired for complaining to the inspectors. When asked why
Warren Bentley would make such a statement, the complainant stated that
he did not know. Further, while he has known Warren Bentley for four
years, he "never had that much dealing with him", but that he had heard
others say that Warren Bentley was known to exaggerate or take things our
of context (Tr. 108).

217

Mine operator Larry Wampler was called as the Court's witness,
and he confirmed that the mine rules were that "anybody that didn't
work regular,_ we had them terminated" (Tr. 109). Mr. Wampler confirmed
that Mr. Bentley missed eleven days of work when he was employed at
the mine, and could only recall one phone call which he received from
Mr. Bentley at his home advising him that he couldn't come to work.
Mr. Wampler stated that he did not discuss the absences with Mr. Bentley,
and he left such matters to Mr. Wright (Tr. 111).
;

Mr. Wampler denied that Mr. Bentley was discharged for complaining
to MSHA, and stated that he was terminated for "irregular work" (Tr. 112).
Mr. Wampler stated further that the mine employs 14 to 16 miners, that
it is a non-union mine with daily production of 200 to 400 tons, five
days a week (Tr. 113). He also indicated that personnel turn-over at
the mine is not a problem (Tr. 113). He confirmed that he is a "working
owner" at the mine, but that Mr. Wright "runs the show", with full authority
to hire and fire employees. To his knowledge, Mr. Wright has never fired
a miner for reasons other than missing work, and he had no knowledge that
Mr. Bentley had ever complained to MSHA inspectors about the mine (Tr. 114).
Complainant produced his payroll check receipts covering his employment period September 18, 1981 through January 1, 1982, and by agreement
of the parties, copies were made a part of the record and the originals
were returned to Mr. Bentley (Tr. 116). When asked if he disputed Mr. Wright's
references from respondent's payroll records indicating that he had missed
eleven days of work, Mr. Bentley said that he questioned one day when
the loader was down on November 6th. He confirmed that he took off the
following day, November 7, when "they said the loader was down" (Tr. 117).
Findings and Conclusions
In order to establish a prima facie case a miner must prove by
a preponderance of the evidence that: (1) he engaged in protected activity,
and (2) the adverse action was motivated in any part by the protected
activity. Secretary of Labor on behalf of David Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other grounds sub nom.,
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981). It is
clear that a miner has the right to file a safety complaint or to summon
MSHA inspectors to the mine site for an inspection if he believes that
safety hazards exist in his work environment. It is clear that any
retaliation by the mine operator against the miner for making any safety
complaints is a violation of the Act.
Complainant Bentley claims that he was fired by Mine Foreman Larry Wright
because Mr. Wright believed that Mr. Bentley had complained to an MSHA
inspector about certain safety conditions at the mine. Mr. Bentley's
"belief" concerning Mr. Wright's motivation for discharging him is based
on what he was purpotedly told by former employee Warren Bentley after the
discharge, Warren Bentley purportedly told the complainant that he had
heard that Mr. Wright fired him because he believed that the complainant
had complained to an MSHA inspector about certain safety conditions at
the mine.

218

In a recent case decided by the Commission on August 31, 1982, it
was held that a miner is protected from retaliatory discharges by
a mine operator even "for the suspected exercise of a statutory right",
Elias Moses v; Whitley Development Corporation, 4 FMSHRC 1475 (1982).
In that case, the Commission stated at 4 FMSHRC 1480, that "the complainant
establishes a prima facie case by proving that (1) the operator suspected
that he had engaged in protected activity, and (2) the adverse action was
motivated in any part by that suspision".
In the instant case, the respondent mine operator contended that
the complainant was discharged for absenteeism, and in support of this
defense presented the testimony of Larry Wright, the mine foreman who
fired Mr. Bentley. Mr. Wright had with him at the hearing his attendance
records for the miners working at the mine during the time in question,
and that those records, coupled with Mr. Wright's testimony, establish
to my satisfaction that Mr. Bentley was absent from work for a total of
11 days during his tenure at the mine. Further, with the exception of
one instance when Mr. Wright recalled a telephone call from Mr. Bentley
at his home, respondent established through the credible testimony of
Mr. Wright, that Mr. Bentley did not advise mine management that he would
be absent from work and this necessitated a replacement for him. For a
small mine operation such as that carried out by the respondent, this
presented a problem for management since Mr. Bentley was a skilled roof
bolter whose presence at the mine was crucial.
Although the complainant denied that he had been warned about his
absenteeism, I find Mr. Wright's testimony that he cautioned Mr. Bentley
about his absences and warned him that he could be terminated if he
continued missing work to-· be credible. Further, aside from the' discharge,
there is no evidence that mine management treated Mr. Bentley badly or
that he was ever harrassed or intimidated for exercising any protected
rights during his rather short employment tenure at the mine. As a matter
of fact, Mr. Bentley conceded that the mine operator treated him fairly,
paid him well, and that the mine was a good place to work.
Complainant subpoenaed Warren Bentley to testify in his behalf at
the hearing. Warren Bentley no longer works at the mine in question, and
he denied that he ever told the complainant that mine foreman Wright had
told him that he fired the complainant because of his belief that the
complainant had complained to an MSHA inspector. The inspector in question
is a neighbor of the complainant's, and the complainant surmized that
foreman Wright may have believed that this impacted on Mr. Wright's
asserted "belief" that the complainant may have told the inspector about
certain unsafe roof conditions at the mine.
No MSHA inspector was called by the complainant to testify in his
behalf. Further, the complainant states that when he visited MSHA's
district office after he was fired, he did so in an attempt to learn
the identify of the individual who may have complained to the inspectors.
The complainant asserted that while MSHA would not reveal the identity
of the person who may have complained, someone in MSHA's district office
suggested that the complainant filed a discrimination complaint and
helped him fill out the necessary paperwork.

219

Mr. Wright denied that he fired the complainant for filing any
complaints, and he denied ever telling Warren Bentley that he suspected
the complainant. As a matter of fact, Mr. Wright testified that he knew
who had compl~ined, identified him for the record, and indicated that
he was still employed with the company. This testimony was not rebutted
by the complainant.
I conclude and find that on the basis of the preponderance of the
evidence in this case, respondent has established that it discharged
Mr. Bentley for absenteeism, and there is no credible evidence to support
a conclusion or finding that mine foreman Larry Wright suspected or knew
that Mr. Bentley had filed any safety complaints and fired him for that
reason rather than for missing too much work. In short, I cannot conclude
that Mr. Wright fired Mr. Bentley because of any belief that he had exercised
a protected right to file safety complaints.
The question concerning Mr. Bentley's first aid training and the
receipt of a certificate for that training is not an issue in this case.
The record shows that Mr. Bentley was paid for the day of training and
that he apparently received the certificate from the company who provided
the training.
ORDER
In the view of the foregoing findings and conclusions, and after
careful consideration of all of the evidence and testimony adduced in
this case, I conclude and find that the respondent did not discriminate
against Mr. Bentley, and that his rights under the Act have not been
violated. Accordingly, his discrimination complaint IS DISMISSED:

4
../"
4f~4.·.- d ~~
eorge . Koutras
$_,

?

Admin strative Law Judge

Distribution:
Harold D. Bolling, Esq., 4-5-6 Bank Building, Whitesburg, KY 41858
(Certified Mail)
Roger Bentley, Box 87, Jackhorn, KY 41825 (Certified Mail)

220

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

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

FEB 15 1983

CIVIL PENALTY PROCEEDINGS
Docket No. SE 82-52
A.C. No. 01-00758-03132 V

v.

No. 3 Mine
JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

Deborah Greene, Esq., Office of the Solicitor, U.S. Department
of Labor, Birmingham, Alabama, for Petitioner;
Robert W. Pollard, Esq., Birmingham, Alabama, for Respondent.

Before:

Judge Melick

This case is before me upon the Petition for Assessment of Civil Penalty
filed by the .Secretary of Labor pursuant to Section 105(d) of the Federal Mine
Safety and Health Act of 1977, 40 U.S.C. § 801 ~ ~·, the "Act," for one violation of the regulatory standard at 30 C.F.R. § 75.503. The general issue before me is whether Jim Walter Resources, Inc. (Jim Walter) has violated the cited
regulatory standard and if so, whether that violation was "significant and substantial" as defined in the Act and as interpreted by the Commission in Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 822. If it is determined that a violation has occurred, it will also be necessary to determine the
appropriate penalty to be assessed. Hearings on these issues were held in Birmingham, Alabama, on November 30, 1982.
The order at issue, No. 758262, reads as follows:
A non-permissable three-phase filter capacitor was installed
on the outside of the No. 50 Joy shuttle car reel housing and not
in an explosion proof compartment. Car was observed hauling coal
out of the face of No. 4 working place.
The cited standard, 30 C.F.R. § 75.503, requires, in essence, that all
electric face equipment operating inby the last open crosscut be "permissible".
Permissible electric face equipment, as defined in 30 CFR § 75.(2)(i), is equipment in which the electrical parts, including associated electrical equipment,
components, and accessories, are designed, constructed, and installed irr accordance with specifications of the Secretary, to assure that the equipment will
not cause a mine fire or mine explosion.

221

There is no dispute in this case that the three-phase filter capacitor
here cited was an electrical component of electric face equipment and was not
installed in an explosion and fire proof compartment as required by the cited
standard. John Trusik, an electrical engineer employed at the Jim Walters No.
3 Mine, conceded that it was not "permissible" to have the filter capacitor installed as it was in this case and that indeed it constituted a safety hazard.
The cited violation is therefore proven as charged. The only issues remaining
then are whether that violation was "significant and substantial" and the amount
of penalty to be assessed.
A violation is "significant and substantial" if, based upon the particular
facts surrounding the violation, there exists a reasonable likelihood that the
hazard contributed to would result in an injury or illness of a reasonably serious nature. National Gypsum, supra, 3 FMSHRC at 825. The test essentially involves two considerations: the probability of resulting injury, and the seriousness of resulting injury. MSHA resident coal mine inspector at the No. 3 Mine,
Bobby Horton, issued the order in question on March 17, 1982. A "resident inspector" was required at the No. 3 Mine because of its history of mine accidents
and high methane liberation. MSHA records show that as of January 9, 1981, the
No. 3 Mine was liberating over nine million cubic feet of methane daily. Moreover, the evidence shows that there had been over twenty methane ignitions at
the No. 3 Mine since it began operations in 1975 or 1976. Although Inspector
Horton found only .5% to .8% methane concentrations in tests performed ten to
twenty minutes before his discovery of the violation cited in this case, he
opined that the possibility of sudden inundations exceeding the 5% explosive
range always existed at a gassy mine such as this. According to Horton, methane concentra"fions in the 5% range combined with an ignition source such as the
non-permissible phase filter in this case presented a serious explosion hazard.
He thought it reasonable to infer that all 200 miners working on the shift could
receive fatal injuries in such an explosion.
MSHA Inspector Claude Lutz further opined that coal dust and powdered
coal were explosive even in the absence of methane if ignited by electric spark
or arc such as could occur from the non-permissible phase filter. While Inspector Horton conceded that the methane sensor mounted on the cutting machine on
which the cited filter was located was designed to cut off electrical power if
the level of methane reached 2%, he noted that such monitors have been known to
malfunction. In addition, Horton explained that methane concentrations in excess of 5% regularly occur in the immediate vicinity of the face as coal is cut.
On the other hand, electrical engineer John Trusik opined that the odds
were "high against failure" of the non-permissible filter. He conceded, however, that there had been failures in a number of smaller filters formerly used
at the mine. Under all the circumstances, I find that there did indeed exist a
reasonable likelihood that the hazard of an explosion or fire would occur if
the condition c(ted had remained uncorrected, and that if, indeed, an explosion
occurred in the No. 3 Mine, it could very well lead to the death of up to 200
miners. The violation was, accordingly, "significant and substantial". For
the same reasons, I also find a high level of gravity associated with the violation.

222

It is also ap~arent from the record in this case that the operator was
"grossly negligent" in allowing this known violative condition to exist. The
uncontradicted evidence shows that as early as 1979, an MSHA inspector had advised Jim Walter officials of the problems relating to the use of impermissible
phase filters on their electric face equipment. Two citations ~ad been issued
at the No. 3 Mine on November 18, 1981, and again on January 20 and January 21,
1982, for the same violation as cited in this case. Moreover, MSHA officials
met on November 16; 1981, with officials of Jim Walter's, including company
Vice President Don Schlick and the chief of maintenance for several Jim Walter's
mines including the No. 3 Mine, concerning the use of impermissible phase filters. There is no dispute that the operator was then clearly informed that the
use of impermissible phase filters on electric face equipment was a violation
of the cited standard. In any event, electrical engineer Don Trusik admitted
that the use of these filters had always been known by mine personnel to be a
safety hazard. Trusik candidly admitted that, in spite of that knowledge, it
was management's position that coal production was more important than the correction of that hazard. He testified in this regard that "with the amount of
coal we run and the people we have down there, they will do what they have to
do to move coal".
Management's attitude is further illustrated by the uncontradicted evidence that maintenance foreman Douglas Sergeant told Inspector Horton that the
violations would be corrected only so long as Horton was present. Within this
framework of evidence, it is clear that the operator's agents had been warned
of the violation at issue and had been repeatedly cited for continuing violations in spite of such warnings. The operator has shown blatant disregard for
the safety of 1ts miners by allowing the admitted safety haz;frd to ·continue
uncorrected.
In determining the amount of penalty to be assessed in this case, I am
also taking into consideration that the operator is large in size and has a
history of repeatedly violating the standard at issue herein. Under all the
circumstances, I find that a penalty of $2,000 is appropriate.
ORDER

Jim Walter Resources, Inc., is ordered to pay a cilil penalty of $2,000
within 30 days of the date of this decisi,n.
i

Gar
Ass
Distribution:

Next page.

223

Distribution:

By certified mail.

Robert W. Pollard, Esq., Jim Walter Resources, Inc., P.O. Box C-79, Birmingham,
AL 35283
Deborah Greene, Esq.; Office of the Solicitor, U.S. Department of Labor, 1929
9th Avenue, South, Birmingham, AL 35256

224

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

FEB 171983

Complaint of Discrimination
and Application for Temporary
Reinstatement

SECRETARY OF LABOR,
on behalf of
WILLIAM E. FITZWATER, III
Applicant

Docket No: YORK 82-23-D
MORG CD 82-23

v.

Mettiki General Mine

METTIKI COAL CORPORATION,
Respondent
DECISION
Appearances:

David E. Street, Esq., Office of the Solicitor,
U.S. Department of Labor, 3535 Market Street,
Philadelphia, PA 19104, for the Applicant;
Barbara Krause, Esq., and Michael T. Heenan, Esq.,
Smith, Heenan, Althen & Zanolli, 1110 Vermont Ave., NW.,
Washington, D.C. for the Respondent

Before:

Judge Moore

I have heard a number of discrimination cases and I can not recall
any'where the government has presented such a devastating prima facia
case. In August of 1981 Mr. William Fitzwater and others made safety
complaints to MSHA. Mr. Fitzwater did so indirectly by informing his
father and brother with the successful expectation that one of them
would call MSHA's hot-line. Transcripts of the hot-line recordings
during that time period concerning this Mettiki mine were received in
evidence as government exhibit No. 5. An objection to the admissibility
was taken under advisement, but the objection is overruled.
Shortly thereafter the supervisors held a series of closed door
meetings at which George Kutchman the mine superintendent stated that he
knew the Fitzwaters and Tichnells were making these complaints and he
wanted to.get rid of them. He wanted them harrassed and even considered
at one point laying off a number of miners and then rehiring everybody
except the Fitzwaters and Tichnells. Two former supervisors and two
present supervisors testified at the trial and three of them stated that
Mr. Kutchman had said that he was out to get the Fitzwaters. The other
supervisor who testified, Mr. Visniski, was for some reason not questioned
concerning the closed door meetings.
One of the reasons that former preparation plant foreman Chapman
left Mettiki Coal Company was that he thought they were being unfairly
harsh and mistreating some of the miners including Mr. Fitzwater. Two
welders, Mr. Tichnell and Mr. King both testified they were reprimanded
and criticized for bringing up safety matters at a safety meeting.
Miners who brought up safety matters were considered trouble makers.

225

I will not summarize the testimony of each witness, but the testimony
of Randy Chapman and Ted Uphold is of such a nature that I think that at
the risk of some repetition, it is necessary that their testimony be
emphasized. Randy Chapman was once the preparation plant foreman and as
stated, one of the reasons he left the Mettiki mine was his concern
about the mistreatment of Mr. Fitzwater. He stated that he kept a diary
and the diary was in the courtroom and shown to counsel. After refreshing
his memory by looking at the diary, he stated that on August 25, 1981
George Kutchman the superintendent said "we have got to get rid of the
Fitzwaters and Tichnells." They were troublemakers according to Mr.
Kutchman. The foremen were told to harass them when they could and only
to talk to them when they were alone. He said "we could get in trouble
if there were witnesses." Regardless of the quality of the work they
did, the foremen were told to make these miners redo it. Mike Burch and
Ernie Uphole were present and were told by Mr. Kutchman not to breathe a
word to anyone else because they could get in trouble if anyone found
out. Mr. Chapman said that on August 27, 1981, Rich Visniski told Mr.
Burch to harass Fitzwater. At an August 28, 1981 meeting between George
Kutchman, Ted Uphold, Mike Burch, Rich Visniski, Ernie Uphole and Randy
Chapman, George Visniski said someone had called in safety complaints to
MSHA and he knew Fitzwater and Tichnell reported it. They had to be
fired or some of the supervisors might lose their jobs. And then there
came a time when George Kutchman said that he did not want Fitzwater
harassed at that particular time because MSHA inspectors were on the
scene. At another meeting, according to the testimony of Mr. Chapman
and his diary, on August 31, 1981, with most of the supervisors present,
there was a discussion about laying off as many as twenty miners and
gradually hi-ring other men back but leaving the Fitzwaters"and Tichnells
out. It was stated that they had to get rid of William Fitzwater and his
brother Ralph. One of the suggestions was that the Fitzwaters be placed
in a position where they were working alone in a quiet area, hoping they
might catch them asleep. (Tr. 186-187).
As to cleaning under the breaker screens, one of the matters that
will be discussed later, Chapman said that it was always done when the
rotary breaker was not in operation and that it was never a practice to
clean under the screen while the rotary breaker was operating. He
thought it would be unsafe to do so because of the noise, dust and the
hazard of falling rocks.
Ted Uphold was the other former foreman who testified for the
government in this case. He was present at one of the 1981 supervisor's
meetings when George Kutchman (Sr.) mentioned the Fitzwaters and said
that he wanted them fired. He discussed the coming trial in this matter
with Mr. Rich Visniski and according to him, Mr. Visniski stated that he
would testify as he needed to. Mr. Uphold told him that if he was
subpoenad he would tell the whole truth concerning the meeting and what
Kutchman said about the Fitzwaters. Mr. Uphold was terminated after 4-1/2
years as a foreman on September 27, one week prior to the trial in
Cumberland.

226

Foreman Mike Burch also testified, but he testified as the only
witness for respondent. While he differed in many respects from the
version of the actual details of the firing and other matters with the
other witnesses,when questioned as to whether he heard George Kutchman
say that the Fitzwaters were trouble makers and would have to be fired,
he admitted that he had heard that; he qualified it somewhat by saying
that he thought it had to do with dealings other than working at the
mine. But there has been no dispute or denial by any witness of the
matters set forth by Mr. Chapman and Mr. Uphold in their testimony. I
find that the company was looking for an excuse to fire Mr. Fitzwater
(all three of them in fact) and that the reason Mr. Kutchman wanted to
get rid of the Fitzwater's was because of safety complaints.
For some reason the real hard questions were not asked while
Mr. Burch and Mr. Visniski were on the stand. I suspect, that insofar
as Mr. Burch is concerned, the government did not think his testimony
had been damaging and therefor did not choose to pursue the matter. I
think government counsel was correct in this assumption. As to Mr.
Visniski, I wonder why he was called as a witness if he was not going to
be put to the test as to why he upbraided and reprimanded the two welders,
Mr. King and Mr. Tishnell for bringing up safety matters at a safety
meeting as had been alleged. The particular matter that was involved in
one of these reprimands was a request that a discrete frequency be
available for the walkie-talkies used between the engineer and a man on
the rear car when the train was backing into an area where other cars
were pa:i;ked or when they were trying to connect other ,cars ... According
to the testimony of Mr. Tichnell and Mr. King, they were accused of
being rowdy for bringing up this safety complaint. Mr. Burch did recall
the complaint. Mr. Visniski was not questioned about the matter.
Joint exhibits 1, 2 and 3 are photographs of the rotary breaker
building from two angles and a picture of the lower end or bottom of the
grizzly and shaker screen. The latter picture shows some accumulation
of debris near two doors or gates in the screen assembly. The exhibit
does not purport to show conditions as they were at the time of Mr.
Fitzwater's firing but it is the area and the debris that had accumulated
was similar but more extensive.
The rotary breaker recei·.Tes coal from three silos and the operator
of the rotary breaker chooses which silos he wishes to draw coal from.
The coal is fed in at the top of the breaker, goes through the grizzly
and shaker screen, and then to the rotary breaker and then is dumped on
a conveyor belt where it goes to some other part of the preparation
plant. The operator's main station is in a control room where he has
gauges that indicate to him the extent of the coal in each of the three
silos he is drawing from. One of his duties is to make sure that none
of the silos gets too full because if the depth exceeds around sixty
feet in any silo there would be an automatic shutting of a gate which
would cause coal spillage. When the levels in the three silos are low,
however, the operator can leave the control room for short periods of

time. When the breaker building is in operation, it is noisy and
dusty. Also' there is a hazard from falling rocks as testified to by Mr.
Fitzwater, former preparation plant superintendent Mr. Chapman, Mr.
Tichnell and electrician Harvey. One rock had fallen from the shaker
and had hit with sufficient force to shear the door off an electrical
box that was attached to one of the girders. On the deck where the
grizzlies were, there was another hazard in that the upper end of the
grizzlies and shaker boxes were held in place by cables which could, and
had, broken. When such cables broke the grizzly would not fall all the
way to the floor but it would fall approximately a foot and they weigh 5
or 6 tons each. Both former preparation plant superintendent Chapman
and William Fitzwater thought it was hazardous to clean under the grizzlies
while the preparation plant was in operation. Accordingly, it was Mr.
Fitzwater's practice, and when Mr. Chapman was superintendent it was the
entire plant's practice, to clean only when the rotary breaker was not
in operation.
Mr. Fitzwater testified that he always used a mask (sometimes
referred to as a filter) when working outside the control room when the
rotary breaker was in operation. Forema.r: nun:h denied that it was.
hazardous to be on the rig when it is in operation and says that he has
seen Mr. Fitzwater on the rig while the breaker was in operation and
that Mr. Fitzwater did not have a dust mask. He only sees Mr. Fitzwater
out of the control room about twelve times a year, however. But for all
of his time as breaker operator Mr. Fitzwater had not been cleaning and
had not been asked to clean under the grizzlies while the machine was in
operation.
The automotive dust respirator No. 06983 distributed by the Automotive
Trades Division of the 3-M Company is the mask ordinarily used by Mr.
Fitzwater. It is both MSHA and NIOSH approved (see Government Exhibit
4). The masks that foreman Burch delivered to Mr.Fitzwater were designated
8500 non-toxic particle mask and are also manufactured and distributed
by the 3-M Company.
The box that the 8500 comes in does not contain any statements
that it is approved by NIOSH or MSHA. (See Government exhibit 3). Mr.
Fitzwater was unfamiliar with the 8500 mask and during a preshift conference
with his counterpart on the previous shift, Mr. Decker, Mr. Decker
pointed out that the 8500 was not MSHA approved, and not near as thick
as the 06983 or the Dust-Foe 88 which he, himself, wore. When Mr.
Decker was getting ready to leave the breaker he left three of the 06983
masks in the general locker but forgot to say anything to Mr. Fitzwater
about it, and Mr. Fitzwater had no way of knowing they were there. 1/.
I accept foreman Burch's statement that he did not deliberately deliver

]:/

I fail to see how anyone could agree with respondent's proposed
finding to the effect that Mr. Fitzwater "had every reason to know"
the filters were there.

228

the wrong type of filter to Mr. Fitzwater. Mr. Fitzwater had requested
the filters on April 15 and sometime shortly thereafter foreman Burch
delivered them. But the two boxes are very similar and I find that the
mistake was not deliberate. It was made, however. The only masks that
Mr. Fitzwater thought were available to him were the non-approved 8500's.
On April 20, 1982 Mr. Burch came by and told Mr. Fitzwater to clean
under the grizzly. Mr. Fitzwater testified that he had every intention
of doing so at the end of the shift. He did not get a chance to do so,
however, because he was told to run late, and in fact the 9,000 tons run
through the breaker on April 20 was a record high for Mr. Fitzwater. He
had no time to clean after the run was over. On the 21st he had no
down-time on the rotary breaker and ran late again because he was told
to. On the next day, April 22, 1982, Mike Burch came by and looked at
the breaker building and wanted to know why Fitzwater had not cleaned
the material that had accumulated under the grizzlys. When Mr. Fitzwater
explained that he had not had any down-time in two days Burch said that
he wanted the area cleaned while the rotary breaker was in operation.
Mr. Fitzwater responded that if he was going to have to clean while the
rotary breaker was in operation, he wanted a proper dust mask. He did
not mention the safety hazard that he thought existed because it was his
opinion that a miner who had complained about safety, a Mr. Arnott, had
been fired because of it, and because his own father after making safety
complaints had been assigned outside shovelling work in the winter where
the temperatures were sometimes as low as 30 degrees below zero. That
was his stated reason for not mentioning safety, but mentioning only the
fact that he wanted a properly approved mask. Mr. Burch reminded-Mr.
Fitzwater that he was refusing a work assign~ent, and Mr. Fitzwater
responded that he was not refusing, that he just wanted the proper mask
before performing the task. The details of the events following are not
important, but when Mr. Fitzwater left the mine property he was not sure
of whether he had actually been permanently fired or temporarily suspended.
After a few telephone calls he found out that he had been fired. This
experience is somewhat similar to what happened to his brother who had
been accused of sleeping on the job. His brother, who at the time was
under medication testified that he became dizzy and sat down on a panel
box when of the supervisors came by and accused him of being asleep. A
fellow miner who was a witness to the fact that Fitzwater was not asleep
he did not want to get involved in a dispute with the foreman. When
Mr. Ralph Fitzwater was fired it was similar to his brother's firing in
that he left the property not knowing whether he was suspended or fired.
He later got written notice that he was fired.
While it was not explained in detail how it happened, the father
was somehow laid off; so the direction of Mr. George Kutchman had been
complied with to the extent that the foremen had now gotten rid of the
Fitzwaters.
Thebreaker has since been fitted with some type of guard that
eliminates the hazard from falling rocks when the machine is in operation.
I find however, that as of the time when this case arose, it was hazardous
to work in the area that Mr. Fitzwater had been assigned to clean while

229

the breaker"building was in operation. Since he did not voice that
hazard however, even though the failure to voice the hazard was motiviated
by a fear of reprisal, I am not sure that a refusal to work in the
hazardous area was a protected activity. Certainly refusal to go in to
a dusty area without a proper mask is a protected activity. I find that
Mr. Fitzwater was discharged because he made safety complaints and
because he was engaged in a protected activity of refusing to work
in a dusty area without an approved ];_/ dust mask.
He is entitled to reinstatement to his former position with back pay
and benefits plus interest. He is also entitled to reasonable expenses
in connection with prosecution of this case. See the Commission decision
in Secy. ex. rel MICHEL ET AL v. NORTHERN COAL CO. 4 FMSHRC 126, 143.
The Commission has before it the question of whether it is proper
to assess a penalty in a discrimination case in which the 3 CFR 100
procedures have been bypassed. Until the Commission decides to the
contrary, I am not going to assess such penalties.
All proposed findings inconsistent with the above are rejected.
PENDING A FINAL ORDER
The Secretary shall have 15 days from the date of this decision to
submit a proposed order granting relief for the violation found above,
with service of a copy on Respondent. Respondent shall have ·:(5 days
from receipt to reply to the proposed order.

~ef/J4~.
c.

Charles
Moore, Jr.
Administrative Law Judge
Distribution: By Certified Mail

David E. Street, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Philadelphia, PA 19104
W. H. Thompson, Jr. President, Mettiki Coal Corporation,
1800 So. Baltimore Street, Tulsa, OK 74119
David J. Kutchman, Safety Director, Mettiki Coal Corpn.,
Route 3, Box 124-A, Deer Park, MD 21550
Mr. William E. Fitzwater, III, Star Rt. l/Box 110-A, Oakland,
Md. 21550
Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 1110
Vermont Avenue, NW., Washington, D.C. 20005

]:_/

See

30 CFR.

Part II

230

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

{703) 756-6210/11/12

Complaint of Discharge, Discrimination
and Interference

LYNN DONOVAN,
Complainant

v.

Docket No. WEST 82-92-DM

BROWN & ROOT, INC.,
Respondent

Tenneco Soda Ash Project

DECISION
Appearances:

Lynn Donovan, Denver, Colorado, pro se; Peter R. McLain,
Esq., Houston, Texas, for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by the
complainant with the Colllll!ission on January 22, 19)32. His compJ..a.in..t
is dated January 19, 1982, and states as follows:
There is reason to believe that there was
discrimination. And the uses of drugs on
the job. I know for a fact the drug user's
are still on the job. There for I am asking
the commission for an appeal.
Mr. Donovan's complaint of discrimination was investigated by
MSHA, and by letter dated June 26, 1981, MSHA advised Mr. Donovan that
its investigation did not substantiate his charges of discrimination,
and that a vio·lation of section 105 (c) of the Act did not occur. The
record also reflects that due to a change of address and residence by
Mr. Donovan, he did not receive actual notice of MSHA's determination
until January 4, 1982. Mr. Donovan then retained counsel, and in an amended
complaint filed March 15, 1982, counsel itemized the specific alleged
facts of discrimination against Mr. Donovan.

231

In his amended complaint, Mr. Donovan asserted that in January 1981,
while he was in the employ of the respondent, a contractor performing
construction work with Tenneco Oil Company, Green River, Wyoming,
constructing a mine and mill at Tenneco's Soda Ash Project, he was required
to work on and around trucks hauling diesel fuel and gasoline at the
project site. In summary, the amended complaint states that while employed
with the respondent, Mr. Donovan made several complaints to respondent's
management, as follows:
-- the trucks in question were not maintained in a
safe condition in that they leaked quantities of fuel,
and Mr. Donovan believed in good faith that such leaks
constituted a danger or threat to his safety and the
safety of other miners because of the possibility of
fire or explosion started by sparks from cigarettes or
other equipment, such as welders.
-- during the time Mr. Donovan was employed by the
respondent, the person who normally drove the truck
on which he (Donovan) worked, a man known to him
as "Dave", and the leadman, known as "Doc", smoked
marijuana in one of the trucks used on the job, often
during their lunch time.
Mr. Donovan believed that the smoking of mariJuana
on the job constituted a danger to himself and others,
in that the judgment and ability to react of those
persons smoking-·would be impaired. Mr. Donovan also
asserted that those persons drove trucks and operated
other equipment which he believed, if done under the
influence of marijuana, could result in accidents
threatening the safety of himself and others on the site.
He was afraid for his safety while the truck was being
operated by someone smoking marijuana, or who had been
smoking marijuana on the job.
In regard to his complaints concerning the alleged leaky fuel trucks,
Mr. Donovan asserts that when he made his complaints known to the leadman
"Doc", and to a foreman, Joe Erger, they were "hostile" and told him
"don't worry about it, just get back in the truck and go back to work",
or words to that effect. Further, Mr. Donovan asserted that rather than
repairing the condition resulting in the unsafe leaking of fuel from the
trucks, the respondent allowed the condition to continue, and he asserted
that on at least one occasion he heard Joe Erger order "Doc" to "hide
your trucks" from MSHA inspectors who "Doc" believed were coming for an
inspection. Mr. Donovan claims the trucks were then driven off so that
they could not be inspected.
With regard to his marijuana smoking allegations, Mr. Donovan
asserted that he complained about this to his immediate superior, leadman
"Doc", and that "Doc" did not attempt to cease and prevent the smoking of

232

marijuana. Rather than taking corrective action, Mr. Donovan stated
that "Doc" responded to his complaints by increasing his hostility
toward him by. undertaking an effort to discredit him with his supervisor,
Joe Erger. In support of this claim, Mr. Donovan asserted that "Doc"
followed him around the job unjustifiably, complaining about his work
performance to the supervisor, Joe Erger, and calling him derogatory
names and starting arguments with him. Mr. Donovan claims that these
actions by "Doc" were motivated in large part by his complaints about
the unsafe condition of the trucks and the smoking of marijuana.
Mr. Donovan complained that the conduct of "Doc" and Joe Erger was
intended to intimidate him and to prevent him from taking his complaints
to any other person, to discredit him in the eyes of those to whom he
might complain, and to make his working conditions so difficult that
he would not be able to continue in his job. Mr. Donovan also asserted
that in addition to the alleged harrassment, his wages were reduced by
$2.50 per hour, even though his duties remained the same, and that this
reduction in wages was part of the discrimination against him for his
complaints about safety.
Mr. Donovan stated that several days before the termination of his
employment with the respondent, the harrassment became so severe that
he went to Dave Warhol
respondent's personnel officer, to request a
meeting with John Murray, respondent's equipment superintendent and
immediate supervisor of Joe Erger. Mr. Donovan claims that a meeting
was arranged for the following Monday, but when he returned to work that
day, Mr. Erger told him that he would not be permitted to meet with
Mr. Murray, and that Joe Erger told him that he (~rger) would jµst. as
soon see him "drag up" or-· quit. Since he believed he was prev~nted
from meeting with Mr. Murray, and since he believed that the unsafe
conditions would continue unabated, Mr. Donovan claims that he was afraid
that taking his complaints elsewhere would present a danger to himself,
and he therefore left his job on or about March 17, 1981. Mr. Donovan
stated further that he subsequently filed a written complaint regarding
his alleged discrimination with MSHA's Green River field office on
March 25, 1981.
Respondent filed an Answer to the complaint on April 6, 1982,
denying Mr. Donovan's allegations of discrimination. Respondent maintained
that Mr. Donovan voluntarily terminated his employment on March 19, 1981.
further, respondent asserted that in his original complaint filed with
MSHA on March 25, 1981, the only colorable allegation of protected activity
was Mr. Donovan's assertion that "during my employment I complained of
safety violations and dangerous practices", and that after an extensive
investigation by MSHA, it decided that Mr. Donovan had not been discriminated
against in violation of the Act. Further, respondent asserted in its
Answer that Mr. Donovan chose to renew his complaint with the Commission
after respondent refused to comply with an alleged extortion demand by
Mr. Donovan
requesting $5 million in exchange for the destruction of
certain tapes allegedly in Mr. Donovan's possession showing respondent's
employees using controlled substances and other narcotics during their
course of employment.

233

By Order issued by me on May 24, 1982, I denied the respondent's
motion for summary decision for failure by Mr. Donovan to state a cause
of action, anq I also denied respondent's motion to dismiss the complaint
as untimely filed. I also denied the respondent's motion to strike an
affidavit filed by the respondent in support of its alleged claim of
extortion, and the parties were directed to finalize any discovery so
that the matter could be scheduled for a hearing on the merits at a site
convenient to all parties.
On September 7, 1982, I granted Mr. Donovan's counsel's motion to
withdraw as his representative in this case, and Mr. Donovan was advised
that he could retain new counsel or proceed with his case pro se. At
the conclusion of discovery, and after the issuance of certain subpoenas
requested by the parties, a hearing was held in Green River, Wyoming,
during the term October 20-21, 1982. Respondent appeared with counsel,
and Mr. Donovan appeared pro se, and the parties participated fully in
the hearing, and they both filed post-hearing arguments which I have
considered in the course of this decision.
Issue
The crucial issue presented in this case is whether or not Mr. Donovan's
claims of harrassment and intimidation on the job by mine management because
of his safety complaints, .including his claim that his wages were reduced
because of these complaints, all of which he claims resulted in his leaving
his job, constituted a "constructive discharge" and illegal discrimination
under the Act. 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 Health Act of 1977, 30 U.S.C. § 301

et~·

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

Commission Rules, 29 CFR 2700.1, et ~·

Stipulations
The parties stipulated to the following (Tr. 7-11):
Mr. Donovan was employed by the respondent from January 28, 1981,
to March 17, 1981. Respondent during this time was performing contractual
work.at the Tenneco Soda Ash Project, a mining operation owned and
operated by Tenneco Corporation, and the product being mined was trona.
Mr. Joe Erger, Mr. John Murray, and Mr. Dave Warhol, were during
all times relevant to the complaint in this case supervisory or managerial

234

employees of respondent at the mine construction site in question.
These individuals had the authority to hire, fire, to recommend such
action, and w~re otherwise authorized to direct the work force and discipline
employees.
The individual identified as "Doc" in Mr. Donovan's complaint is
in fact one James Kauss. However, the parties could not agree whether
Mr. Kauss was in fact a "leadman", or supervisor or manager:.
Mr. Donovan had a meeting with Mr. Warhol at his office in Green
River. However, the date of the meeting is in dispute. Respondent
believes that meeting took place on or about March 6, 1981, and Mr. Donovan
believes the meeting was later.
Mr. Donovan's employment with the respondent ceased on March 17, 1981.
However, respondent believes that Mr. Donovan voluntarily quit his job
on that date, and Mr. Donovan does not consider it a voluntary quit.
Service of subpoena
The local sheriff's department was unable to effect service on three
potential witnesses sought by Mr. Donovan. Mr. Donovan identified them
as Duane Baker, Floyd Chacon, and Delmer Fiscus, and he stated that they
were former oilers and co-workers who worked at the construction project
in question. Mr. Baker's whereabouts were unknown, Mr. Chacon was purported
to be residing in Granger, Wyoming, and Mr. Fiscus was purported to be
"in the Pinedale area looking for work". In view of the unavailability of
these witnesses, I requested Mr. Donovan to make a proffer as to what
they would testify to so as to unable me to make
judgment and.. rtiiing
as to whether their absence would be prejudicial or critical to Mr. Donovan's
case.

a

Mr. Donovan stated that Mr. Baker would testify as to the use of drugs
at the construction site and would confirm his efforts to arrange a
meeting between Mr. Donovan and the former project equipment superintendent
John Murray. Mr. Murray was not subpoenaed, but is reportedly working
for the respondent in Springerville, Arizona (Tr. 8). Mr. Donovan stated
that Mr. Chacon could testify to the use of drugs by leadman "Doc" on
the job, and "maybe some safety conditions" (Tr. 9). As for Mr. Fiscus,
Mr. Donovan stated that he could testify as to the use of drugs by "Doc"
(Tr. 10).
After consideration of this matter, I concluded and ruled that the
absence of these witnesses were not critical to Mr. Donovan's discrimination
complaint. Aside from the fact that efforts to locate them and to serve
them with the subpoenas were not successful, I ruled that the question
of the alleged smoking of marijuana on the job site is one that was raised
by Mr. Donovan, and even if it were an established fact, the question
of discrimination and retaliation against Mr. Donovan by mine management
personnel for these complaints would be the crucial question for decision.
As for the efforts by Mr. Baker to arrange a meeting, Mr. Donovan testified

235

that these efforts came after his employment terminated, and Mr. Donovan
testified that.during the week after he left his job, and before filing
his complaint .with MSHA, he made several attempts to call Mr. Erger,
but was unable to reach him. He did not know why he did not go to the
mine to try and see him, but indicated that a friend, Duane Baker, tried
to set up a meeting with Mr. Murray but could not arrange it. After
that Mr. Donovan "forgot about it", and filed his complaint with MSHA
(Tr. 141).
During the course of the hearing in this matter, MSHA's Denver
Regional Solicitor's Office, through attorney James Barkley, made a limited
appearance at the hearing to file an objection to a subpoena which had
been served on the inspector who investigated Mr. Donovan's discrimination
complaint. The subpoena was served on him by respondent's counsel, and
MSHA's opposition stemmed from the fact that the subpoena had been served
the day before the hearing, and MSHA's counsel indicated that MSHA
had no opportunity to review the investigative files and other material
sought by the subpoena. After further bench discussion, and in view
of the fact that Mr. Donovan had in his possession a copy of MSHA's
investigative report, respondent's counsel agreed to release the inspector
from the subpoena, and the parties agreed that the inspector, Jerry Thompson,
had no personal knowledge concerning Mr. Donovan's complaint, but that
three pages from his report could be admitted as part of the record in
this case. Further, Mr. Thompson confirmed that he issued no citations
to the respondent during his inspections at the mine. In short, he
confirmed that he issued no citations for any leaky fuel trucks, or for
employees smoking marijuana (Tr. 47-56).
Complainant's testimony and evidence
Mr. Donovan testified that three weeks before the termination of
his employment he complained to leadman "Doc", Mr. Erger, and his fellow
co-worker Dave Barnhouse about the leaky fuel truck condition. Although
Mr. Erger did temporarily repair the truck on one occasion, the problems
persisted and Mr. Erger's response to Mr. Donovan was for him "not to
worry about it, just get back to work". Mr. Donovan also stated that he
complained to Dave Barnhouse and to "Doc" about their smoking marijuana
in the trucks while on the job, and that he let them them know that this
was not safe. The complaints were oral, and were made two weeks before
his employment ended. He also indicated that "Doc" and Mr. Barnhouse
advised him that it didn't matter because they smoked marijuRna on their
lunch hour (Tr. 13-15). He did not complain to Mr. Erger about the
asserted marijuana smoking because he did not know who else may have been
involved and was afraid that "I might get hurt" (Tr. 16).
Mr. Donovan confirmed that he and Mr. Barnhouse were both classified
as "oilers" and were expected to do the same work, but that because of
a "lazy eye" condition, Mr. Donovan was not permitted to drive the fuel
truck, and Mr. Barnhouse did the driving. On one occasion, Mr. Barnhouse
nearly backed over him while driving the truck under the influence of
marijuana, and Mr. Donovan stated that he had to signal him three times
to stop the truck (Tr. 18).

236

Mr. Donovan described his duties as an oiler and he believed
that "Doc" was.in some supervisory position because he went around
"checking on all of our work and to tell us certain things that needed
to be done" (Tr. 18). Mr. Donovan confirmed that the extent of his safety
complaints had to do with the leaky fuel trucks and the smoking of marijuana
on the job by "Doc" and Mr. Barnhouse, and that these activities took
place during the time he worked on the day shift. Mr. Donovan stated that
after he made a mistake and put some gas in a diesel truck, and also put
a half quart of oil too much in a welding machine, Mr. Erger informed
him that he was going to cut his pay by $2.57 an hour. At that time,
Mr. Donovan was making $10.57 an hour, and he confirmed that at the time
his employment ended, he was making the same wage and that Mr. Erger
had not cut his pay as of that date (Tr. 20-23).
Mr. Donovan confirmed that he had been "written up" by respondent's
safety department for refueling some welding machines while welders
were working nearby, and he also confirmed that he did not bring any
of his safety complaints to the attention of MSHA because he "didn't
know they existed". He also related an incident where he claims that
Mr. Erger instructed Mr. Barnhouse to hide some leaky fuel trucks from
some MSHA inspectors who were on the property, and that Mr. Barnhouse
took the trucks out of service and parked them. Mr. Donovan confirmed
that the inspectors did not inspect the trucks, and he also confirmed
that he did not tell the inspectors about the leaky condition of the
trucks (Tr. 24-37).
Mr. Donovan admitted that he had smoked marl.Juana "a time or two"
in the past, but denied that he ever did so while-~on the job (Tr ..·37-38).
He knew that Mr. Barnhouse smoked marijuana on the job, because he
observed him "light up" while actually driving the truck and his "responses
or reflexes were real slow", and on at least two occasions when he signaled
Mr. Barnhouse to stop the truck "he kept on corning", and he had to fall
out of his way. He again discussed the matter with Mr. Barnhouse, but
did not complain to Mr. Erger or to respondent's management about the
marijuana smoking. However, he did say that he visited the office of
respondent's personnel manager, Mr. Warhol, in Green River, but simply
advised him that there were "safety problems on the job". Mr. Warhol
advised him to consult the safety department, and also suggested that
he take a couple of days off. Mr. Donovan indicated that Mr. Warhol
had arranged. a further meeting for him to discuss the matter with management,
but that when he returned to work, Mr. Erger stated to him that there would be
no meeting, and that Mr. Erger also stated to him that as far as he was
concerned he didn't care if Mr. Donovan worked there anymore (Tr. 41).
Mr. Donovan stated that after the abortive meeting with Mr. Warhol,
Mr. Erger and "Doc" "teamed up to get rid of him" (Tr. 41). He indicated
that "Doc" would follow him around the job site, checking on his every
move, and that Mr. Erger threatened to cut his pay. He also indicated that
"Doc" worked for Mr. Erger, but he conceded that "Doc" had no office at

237

the site (Tr. 60). He stated further that he complained to Mr. Erger
about "Doc's" ·treatment, and that Mr. Erger stated that "he didn't care"
(Tr. 61). Mr •. Donovan believed that "Doc's" treatment of him stemmed
from his complaints about his smoking marijuana, and Mr. Donovan stated
that "Doc" was employed by the respondent, but he did not know if he
was still employed with them (Tr. 61). When asked to explain the circumstances of his departure from his employment with the respondent,
Mr. Donovan stated as follows (Tr. 62-64):

Q. March 17, 1981. What prompted you to leave
work, not to go back? Just tell me in your words
whether or not you believe -- Just tell me how it
came to pass that your employment was terminated
there.
A. Well, when they refused the safety meeting with
me on a Monday, at that point the harrassment
kept on and I think it was on a Wednesday I quit.
I just felt like they weren't going to help me with
any of my complaints so I left on a Wednesday,
I believe.

Q. Now Wednesday -- March 17 according to my
calendar would have been a Tuesday.
A.

It could have been Tuesday.

So it could_.have been either Tuesday_ or Wednesday,
the 17th. Did you give the company any notice or
did you tell anyone you were leaving?
Q.

A.

Well, after he told me he was cutting my wages I
decided there wasn't -- There was nothing more I
could do there so I just quit. I told the time office
people -- They asked me why I was quitting, what my
reason was for quitting and I told them I was under a
lot of harrassment. They didn't give me no layoff slip
or nothing. I didn't get no kind of a layoff slip.

Q. Were you paid for the services that you performed
out there up to the time you quit?
A.

No, Thad to come back and get my check.

Q.

But you were eventually compensated?

A.

Yes.

Q. Did anything transpire when you went back? Did you
make any attempts to go back or did you contact anyone
from the company?

238

A. A friend of mine, Mr. Baker, which was working out
there, he tried to line up a meeting with Mr. Murray
and by the time he had that lined up I had already
went to MSHA. So Mr. Murray was willing to talk to me
about it after so many days had went by.

Q.

What made you decide to go to MSHA after you left
the job?

A.

Well, I figured MSHA was a safety program for the
and if I let this thing go that more people
who were involved with the drugs on the job and more
people would be exposed to either getting hurt or getting
killed on the job so I decided I wouldn't let this go,
that it would be taken care of.

~eople

Q. How did the fact that MSHA was in existence,
or was available to you, come to your attention? Did
someone tell you they were available or how did you come
to file a complaint with them?
A.

I don't really remember for sure how I did that.

Mr. Donovan stated that a month or so after he left employment with
the respondent after he filed his discrimination complaint with MSHA,
he was told "by some friends" that "dozens of people were either fired
or run off their job for using drugs" (Tr. 66). When asked why he had
simply not refused to work around any hazardous f_yel trucks, h~~responded
"I was kind of paranoid. -· I didn't want to get in any trouble. I
wanted to keep my job. I just tried to live with the conditions as
long as I could" (Tr. 70). He also confirmed again that the only time
he complained to MSHA was "after I had quit. Then I later found out that
I could do something about it, I could go to MSHA and they would do
something about it. This was after I quit" (Tr. 71).
On cross-examination, Mr. Donovan reviewed his prior employments
with other mine operators and construction companies, and confirmed
that for the exception of the issuance of safety glasses and boots by
the respondent, he received no safety training and that there were no
safety meetings during the day shifts which he worked on. However,
he did confirm that safety meetings were held while he was on the night
shift (Tr. 75). ae also confirmed that he worked on the night shift for
two or three weeks before being switched to the day shift, and denied
that his work was ever questioned (Tr. 78). He also denied that the night
shift came to an end because the men on that shift were drinking and did
not do their work (Tr. 80).
Mr. Donovan confirmed that he complained to Mr. Erger about the leaky
fuel trucks on two or three occasions (Tr. 83), but he could not recall
whether he had first complained to "Doc" and Mr. Barnhouse about their

239

smoking marijuana (Tr. 84). He conceded that he didn't complain to
Mr. Erger at first about the leaky truck when he first noticed it,
but did so after the leak "began gushing" (Tr. 84). He also confirmed
that he did not complain to any mechanics about the leaky truck when he
first noticed it (Tr. 86). He explained that the leaks came directly from
the pump on the truck as well as the hose nozzle, but that he personally
never attempted to fix the leaks (Tr. 87). He later stated that he did
not have the proper tools to fix any leaks (Tr. 88). He also confirmed
that he brought the leaky truck condition to the attention of "Doc",
and when he failed to do anything about it, he complained to Mr. Erger
(Tr. 91). The first time he complained to Mr. Erger, the truck was tagged
out by respondent's safety personnel, and Mr. Erger had it fixed, and
that Mr. Erger told him not to worry about it and that he would have it
fixed (Tr. 92-93). Mr. Donovan also indicated that one of his co-workers
Keith, whose last name he does not recall, also complained to Mr. Erger
about the leaky truck (Tr. 95).
Mr. Donovan indicated that "it was probably common knowledge throughout
many, many people on the job" that miners were smoking marijuana, and
that other oilers commented to him when he was getting off work that "they
were going out to smoke a joint" (Tr. 100), and that this was still during
working hours (Tr. 101). Although Mr. Donovan claims he was concerned
about the safety aspect of this marijuana smoking, he said the other workers
with whom he discussed the matter "didn't care" (Tr. 102). He confirmed
that he did not bring this to the attention of Mr. Erger or to respondent's
management because "he was scared", and he confirmed that he did not
notify any of respondent's safety personnel about the marijuana smoking
(Tr~ 105).
Mr. Donovan stated that after the incidents where he put gas in
a diesel truck and over-filled a welder with oil, "Doc" began harrassing
him over these incidents and that he (Donovan) "blew up at him", and the
two exchanged words. At that point, Mr. Donovan left the job site to
seek out Mr. Warhol. Before leaving, he told Mr. Erger that he was upset
over "Doc" harrassing him and told Mr. Erger that he was going to see
Mr. Warhol. When he met with Mr. Warhol, he simply told him about "safety
problems on the job", but told him nothing specific, and he told him
nothing about the leaky trucks or marijuana smoking. Mr. Warhol informed
him that while safety problems were not his concern, he would arrange
a meeting with superintendent Murray, Mr. Erger's superior (Tr. 114-124).
Mr. Donovan stated that after his employment ceased and when he
went back to pick up his final pay check, he was asked to sign a paper,
and he identified it as exhibit R-1. He indicated that he did not remember
telling anyone why he quit his job when he returned to get his check
(Tr: 129). He could not recall receiving a copy of the paper which he
signed (Tr. 131).

240

Mr. Donovan denied ever making video tapes of anyone smoking marijuana on the job, and he denied ever calling any official employed by
the respondent to inform them that he had such tapes. He also denied
ever calling any management official threatening to "go public" with the
tapes unless he was paid five million dollars or given his job back
(Tr. 133-135).
Mr. Donovan testified that he never heard "Doc" or Dave Barnhouse
tell Mr. Erger about his safety complaints, and Mr. Erger never told him
that "Doc" or Mr. Barnhouse had informed him about these complaints
(Tr. 136). Mr. Donovan also conceded that Mr. Erger told him he intended
to cut his wages because of the fueling mistakes which he had made, and
that he did not directly state that he was cutting his wages because of
his safety complaints (Tr. 138). He confirmed that his visit to Mr. Warhol's
office was his last attempt prior to quitting that he made to communicate
his safety concerns to respondent's management personnel (Tr. 143-144).
He also confirmed that "Doc" never told him that he was "harrassing him"
because of any complaints concerning the leaky fuel truck or the marijuana
smoking (Tr. 145).
During further testimony at the hearing, Mr. Donovan stated that the
last day he worked he was informed that his pay would be cut and that
he "was just so discouraged I didn't want to stay any longer" (Tr. 137).
He stated further that at the time he picked up his last pay check, he
did not call Mr. Erger or Mr. Warhol to advise them that he was quitting
his job. He identified a copy of the "termination paper", exhibit R-1,
stated that the signature which appears thereon "looked like his signature",
but~he could not recall receiving a copy of the d~cument at the;time he
visited the site trailer office to pick up his check and "sign out".
He also stated that when he picked up his check he told the time clerk
that he was leaving his job because he was being harrassed by "Doc"
and had an agrument with him (Tr. 77, 79, 84-85). Mr. Donovan also
identified exhibit R-8, as his final pay check in the amount of $167.74
(Tr. 90).
Mr. Donovan stated that after he returned to work on Monday, March 9,
he asked Mr. Erger about the meeting with Mr. Murray. "Doc" was present
at that time, and Mr. Erger "implied or told" Mr. Donovan that there would
be no meeting and that Mr. Donovan and "Doc" were to "work this out between
us" (Tr. 143). Mr. Donovan stated further that he did not at that time
tell Mr. Erg2r about the smoking of marijuana, but simply told him that
"there were problems" which needed to be discussed (Tr. 146). Mr. Donovan
confirmed that he never saw Mr. Erger smoke marijuana, and that he never
saw Mr. Erger observe anyone else smoke marijuana and do nothing about
it (Tr. 147). Mr. Donovan summed up his desire to meet with Mr. Murray as
follows (Tr. 148-149):

241

MR. DONOVAN: I wanted everybody to be there when
I exposed all this, and then there was no meeting.
I had figured that all this could be exposed that
morning in which I was planning on doing that, but
there was no meeting at all.
THE COURT: Okay. What if Mr. Murray had been there
and you told him all about this?
MR. DONOVAN: I would think the problem would have
been corrected.
THE COURT: What kind of corrective action would
have been taken?
MR. DONOVAN: I would imagine he would have investigated
all these problems.
THE COURT:

Okay.

MR. DONOVAN: And the man was a very intelligent
man in my estimation, I believe he would have brought
some justice to these problems.
THE COURT: And that wouldn't have given you any
cause to leave the site, you still would have sat
there and worked?
MR. DONOVAN:

Yes.

THE COURT: And what if Mr. Erger said that's fine,
but you're still going to be making $7.85 an hour
because we don't think you're cutting the mustard.
Then what could have happened?
MR. DONOVAN:
leave.

Well, I'd have a choice to stay or

THE COURT: But you don't think you'd have a
discrimination complaint?
MR. DONOVAN:
out this.

Well, it would be much lesser with-

THE COURT: So, you're saying now, you're suggesting
that the fact that you weren't given an opportunity
to talk to somebody higher up in the hierarchy of Brown
& Root to tell them about these problems so corrective
action would be taken, that that is what caused you to
just leave the mine site?
MR. DONOVAN: That and the harrassment I was going
through with the foreman.

242

David A. Barnhouse, confirmed that he presently works for Tenneco
Corporation, but that he did work as an oiler for the respondent and was
Mr. Donovan's.co-worker. He denied that "Doc" ever told him or Mr. Donovan
to "hide the trucks" from any MSHA inspectors, and stated that he was
told to check the trucks and "watch what you're doing" (Tr. 160). He
confirmed that their fuel truck leaked "small amounts of fuel on and off",
but he could not recall the truck ever being "tagged out" for any safety
reasons (Tr. 162), but did recall that it was cited one day because the
parking emergency braked slipped and would not hold the truck (Tr. 163).
Mr. Barnhouse denied that "Doc" ever claimed that he and Mr. Donovan
were written up for driving a truck into an area where welding was going
on, and he denied that he witnessed any arguments between Mr. Donovan
and "Doc" (Tr. 164). Mr. Barnhouse denied that he and "Doc" ever smoked
marijuana on the job, and he also denied that on occasion, he smoked
marijuana with Mr. Donovan in the truck (Tr. 165).
When asked if he knew what this case was all about, Mr. Barnhouse
replied as follows at Tr. 166:
THE WITNESS: All I know is he's wanting money
off Brown & Root for quitting the job. That's
about all I know about these proceedings.
Mr. Barnhouse also confirmed that Mr. Donovan subpoenaed him to appear
at the hearing, and that he has not seen nor spoken with Mr. Donovan
prior to the hearing and since he left his job (Tr. 167). He denied any
"harrassment" of Mr. Donovan by "Doc", and stated that "Doc" "Just tried
to get the job done is all I can say" (Tr. 168). . . -Mr. Barnhouse"' co.nfirmed
that "Doc" was always around the job site checking their work, indicated
"that was his job" (Tr. 168), but denied that "Doc" constantly followed
them around (Tr. 169).
Mr. Barnhouse recalled the incident concerning Mr. Donovan's putting
gas into a diesel truck, and confirmed that Mr. Donovan himself told
Mr. Erger about the incident (Tr. 169). Mr. Barnhouse also confirmed
that there were occasions when he complained about leaky fuel on the truck
due to excessive fuel from the pump, but that the conditions were always
fixed (Tr. 171). He confirmed that he had rumors about some people
leaving the job because of using drugs, but denied any personal knowledge
of any of the details (Tr. 171).
Mr. Barnhouse recalled one day when Mr. Donovan left the job "in a
very upset manner", but could recall none of the details (Tr. 172). He
conceded that during the time he worked with Mr. Donovan he considered
him to be "an honest person" (Tr. 174).
On cross-examination, Mr. Barnhouse confirmed that he went to work
at the site in question in February of 1980 or 1981, and started working
with Mr. Donovan a month or two later (Tr. 175). During the time he

243~

worked with Mr .• Donovan, there were complaints about his work in
that he was "lax in the way he done things. He didn't wash things quite
the way it should be done. Sometimes it was hard to explain to him some
things like the difference between diesel welders and gas welders and
so on" (Tr. 177). Mr. Barnhouse denied speaking with any MSHA officials
after Mr. Donovan left the respondent's employ (Tr. 177).
Mr. Barnhouse indicated that when he was employed by the respondent
he attended safety orientation classes while on the job, and that safety
meetings were held every two weeks and that the leadman met with the crew
once a month. He never heard anyone complain about marijuana smoking
during any of these safety meetings (Tr. 179-180), and he stated that he
never observed "Doc" smoke marijuana on the work site (Tr. 180). He
confirmed that Mr. Donovan did complain about the leaky fuel trucks during
safety discussions, and that these complaints were about certain pumps on
the trucks. However, the pumps were taken off and fixed and he was never
required to use a truck with a defective pump (Tr. 182). He also
confirmed that he was never directed to fuel any welding machines while
welders were working above them, and that had this been the case he
would have refused to work (Tr. 183).
Respondent's testimony and evidence
David Warhol, respondents group personnel manager, Houston, Texas,
confirmed that he was respondent's personnel manager for the Tenneco
Soda Ash Project at the time of Mr. Donovan's employment. He explained
the procedure for hiring for the project, and explained the employee
orientation program (Tr. ~9-56).
Mr. Warhol stated that there are "lead men" for each basic craft,
and while the lead man is also a worker, he has the responsibility for
insuring the quality of the work being performed. However, the leadman
has no authority to hire, fire, or to independently give an employee time
off (Tr. 57, 58). He does not have the authority to increase or decrease
an employee's wages (Tr. 59). However, a leadman could direct the work
of other employees as long as it has been previously outlined by the
foreman, and in effect would be carrying out the foreman's orders (Tr. 61).
Mr. Warhol stated that the respondent had an "open door" policy at
the construction project in question insofar as employee complaints or
grievances were concerned, and employees were advised of the policy and
procedures when they were hired and notices to this effect were posted on
employee bulletin boards (Tr. 62).
Mr. Warhol confirmed that he first met Mr. Donovan when he applied
for a job at the construction project. He was recommended by project
superintendent John Murray, and he was hired as an oiler. Since Mr. Donovan
had an eye problem, it took the project manager's approval to hire him
(Tr. 63).

Mr. Warhol testified that on Friday, March 6, 1981, sometime after
lunch, Mr. Donovan came to his office and stated that he had an argument
with James Kauss, who was also known as "Doc". The meeting was brief,
and Mr. Donovan informed him that he and Mr. Kauss had called him an
S.O.B. Mr. Donovan indicated that "he just wanted to get away from
it and so he left". He was concerned that he didn't lose his job for
walking off the project (Tr. 65).
Mr. Warhol stated that after speaking with Mr. Donovan, he called
Mr. Murray, and rather than terminating Mr. Donovan, Mr. Murray indicated
that they would meet with him on the following Monday "to work this thing
out". Mr. Warhol then advised Mr. Donovan to "get away from it for the
weekend, calm down, and go back Monday morning!' Mr. Murray told Mr. Donovan
the same thing and that was the extent of the meeting (Tr. 66).
Mr. Warhol confirmed that he was the custodian of Mr. Donovan's
personnel file, and he identified his record, and he confirmed that Mr. Donovan
was first hired as an oiler on the night shift on January 28, 1981, and his
pay was $10.50 an hour. He identified a notation that he made to the
file concerning his meeting with Mr. Donovan on March 6, 1981 (Tr. 69-70;
exhibit R-4). He also identified an "assignment authority" form and a
"termination form", both from Mr. Dojovan's personnel file (exhibits R-5
and R-1).
Mr. Warhol testified that when he met with Mr. Donovan on March 6,
he did not mention that employees were smoking marijuana on the job, nor
did he mention that he had voiced safety complaints to Joe Erger, or to
"Doc'', or that he was being harrassed because of any safety comBlaints
or any work action that he was taking (Tr. 104). /After his mee.ting with
Mr. Donovan, he spoke with Mr. Murray and Mr. Erger, and they assured
him that there would be a meeting with Mr. Donovan on Monday. However,
during that time and March 17, when Mr. Donovan left the job, Mr. Warhol
had no knowledge of Mr. Donovan's safety complaints or his complaints
concerning the smoking of marijuana, and he learned of the matter after
Mr. Donovan's termination and after he filed his discrimination complaint
(Tr. 105).
Mr. Warhol stated that respondent employed approximately 800 people
at the site in question and that Tenneco had less than 50 employees (Tr. 106).
He confirmed that after the night shift was laid off, Mr. Donovan and one
other miner were retained and transferred to the day shift, and this
decision would have been made by Mr. Murray and Mr. Erger (Tr. 110).
Mr. Warhol also confirmed that two people were terminated for smoking
marijuana on the job site, and that these are the only two incidents
he was aware of (Tr. 112). He deined any wholesale layoffs, and has
heard no rumors that 40 or more miners were laid off for smoking marijuana
(Tr. 113).

245

On cross-examination, Mr. Warhol confirmed that he was simply the
"go-between" Mr. Donovan and Mr. Murray in attempting to set up the
Monday meeting in question. After his conversation with Mr. Donovan of
Friday, he toid him to go home and to return to work on Monday. Mr. Warhol
did not know why the meeting never took place and he did not know that
Mr. Donovan had been terminated until later when his "termination interview"
came back to his office. Mr. Warhol also indicated that he was not
scheduled to be at the meeting and that Mr. Donovan never contacted him
again after Friday to advise him that the meeting did not take place
(Tr. 120), and the instant hearing is the first time he has seen him since
he left his job (Tr. 139).
Mr. Warhol stated that respondent had a good safety record during
the Tenneco project and had no fatalities. He also alluded to an intensive
safety program at the job site by respondent and Tenneco to insure a safe
project (Tr. 124). Mr. Warhol confirmed that he had no knowledge that
Mr. Donovan's pay would be cut until after he left the job. After receiving
his "termination interview", he learned that there was talk of demoting
him to a 2d class helper (Tr. 138).
Joseph Erger testified that he was the mechanic general foreman at
the Tenneco construction project site during Mr. Donovan's tenure at
that facility and that he was responsible for the supervision of all
equipment repairs and servicing, and that Mr. Donovan and approximately 22
other workers worked und.er his supervision. He identified "Doc" as
James Kauss, qnd confirmed that Mr. Kauss worked as a mechanic under his
supervision, and had worked for him before Mr. Donovan was hired. Mr. Erger
confirmed that Mr. Donovan worked initially as an oiler's helper, and
was -promoted by him to me-chanic and oiler (Tr. 151). Although ··M:r :· Kauss
was never formally classified as a "lead man", Mr. Erger confirmed that
he instructed Mr. Kauss to "oversee the oilers" to make sure they were
doing their tasks, and that he gave Mr. Kauss daily instructions in this
regard (Tr. 158).
Mr. Erger confirmed that Mr. Kauss, Mr. Donovan, and the other oilers
worked the 9:00 a.m. to 6:30 p.m. shift, and he confirmed that he (Erger)
had the authority to initiate any demotion, promotion, or termination
of employees, and he also had the authority to grant employees leave.
Mr. Kauss had none of this authority (Tr. 160).
Mr. Erger confirmed that he observed the night shift crew after he
had some problems, and that Mr. Donovan appeared to be the only one doing
any work. When the crew was layed off, he decided to retain Mr. Donovan
and to reassign the night shift foreman to another job (Tr. 163-164).
Mr. Donovan was placed on the day shift, and while he did not supervise
him closely there came a time when Mr. Donovan admitted that he had fueled
a welder with gas rather than with the required diesel fuel. A second
incident occurred when Mr. Donovan put too much oil in a welder, and the
machine had to be repaired. As a result of these incidents, he told
Mr. Donovan that "I didn't think he was the oiler that he was or said he
was" (Tr. 166).

246

With regard to the "shouting match" between Mr. Kauss and Mr. Donovan,
Mr. Erger stated that while he was not present, he could hear them arguing,
and when he inquired as to what was going on, Mr. Donovan was upset and
told him that he was "going to the office" and that he (Erger) told him
"it would be fine". By "office", Mr. Erger meant the administrative
office on the site where Mr. Murray, the project manager was located,
and he explained the events which followed as follows (Tr .. 168-169):

Q. (BY MR. McLAIN, continuing): No, okay.
Anything else occur that day in regard to this
argument?
A. Yeah, there was plenty I guess that happened,
and apparently Mr. Warhol called Mr. Murray and
told him that Mr. Donovan come doWn there and,
you know, was all upset and everyting. And him
and Doc had an argument or something. And I didn't
know what the full thing was on it. And Mr. Murray
told me to go ahead and pick up a phone, call him
back and find out what went on, and this was, I
assume Donovan was probably still down there. And
I talked to Mr. Warhol, I found out a little bit
more about it because when Mr. Warhol first called
I was in the office with Mr. Murray. And Mr. Murray,
while he was getting his call, kind of pulled the
phone down, looked at me and he says, do you know
your oiler walked off the job. And he was kind of
concerned about· it that he walked off t-he job. And
well, he was upset about himself, I should say. And
I told him, I says, I'm not going to do nothing about
it because he stated to me he was going to the office.
And like I say, that's why I called it a lack of
communication.
THE COURT: You thought he was going to the office
right there on the site? He didn't tell you he was
going down to Mr. -A. I didn't pursue that. He could be terminated for
walking off the job, because I didn't feel he was
really at fault at all. And after talking to Mr. Warhol
on the phone, he said that, you know, we could get
together Monday and straighten this all out.
Mr. Erger testified that when Mr. Donovan returned to work the
following Monday, he spoke with him and Mr. Kauss just outside his office
at the site, and Mr. Donovan told him that "he could work this out with
Doc and it would be all right" (Tr. 170). No one described the precise
problem, and Mr. Erger stated that he had heard that the two had gotten

into a "personality conflict or whatever there was supposed to have
been some cuss words between them", and Mr. Erger confirmed that he never
heard anymore disagreements or arguments between the two, and if there
were, none were ever brought to his attention. He also confirmed that
at no time during the conversation on Monday with Mr. Donovan did he
ever request to meet with Mr. Murray, and at no time did he ask where
Mr. Murray was and gave no indications that he expected Mr. Murray to
be there. Mr. Erger believed that the matter had been resolved (Tr. 171).
Mr. Erger conceded that leaky fuel trucks were a problem, and that
the pumps and packing glands would go bad, but that the normal procedure
called for the trucks to be brought to the shop for repairs and he would
not always be aware of the conditions. On one occasion, Mr. Donovan
brought a leaky truck to the shop for repairs after the safety department
stopped it and took it out of service, but Mr. Erger could not recall when
this happened (Tr. 172).
Mr. Erger testified that the incidents in which Mr. Donovan put
gas rather than diesel in a vehicle and over-filled a welder with oil
occurred during the Friday after the Monday meeting with him and Mr. Kauss.
He discussed the matter with Mr. Donovan on the Monday before he left
the job, and explained to him that he was going to "cut him back to helper".
He also stated that he explained to Mr. Donovan that "this would give
him an opportunity to work and learn, and he would still have his job".
Mr. Erger claims that Mr. Donovan implied to him at that time "that he
was glad I was doing that rather than just turning him loose" and "he
implied to me that he was glad to keep his job" (Tr. 174). At that time,
Mr. Donovan gave no indication that he was having problems with anyone,
and -in fact, at no time during his employment did-Nr. Donovan ever··indicate
that he was having any problems on the job (Tr. 174).
Mr. Erger denied any "witchhunt" against Mr. Donovan, and denied
that he made it a point to observe his work for reasons other than
those which were work related. He also denied any "grudges" against
Mr. Donovan, and at no time did he observe any employees smoking marijuana
on the job. He also indicated that he was never advised of Mr. Donovan's
attempts to "correct" Mr. Kauss or Mr. Barnhouse (Tr. 175). He confirmed
that the decision to demote Mr. Donovan to an oiler's helpers was his
decision alone, and at no time did Mr. Kauss ever advise him to demote
or fire Mr. Donovan (Tr. 176).
Mr. Erger confirmed that during his employment at the site the
respondent received one safety citation for a broken front spring on a
truck, and he denied ever instructing any of his personnel to "hide"
the fuel trucks from the inspectors. He confirmed that he did instruct
them to be aware of the fact that inspectors were at the site and "to
straighten up their act, you might say to make sure that they checked
their wheels and such" (Tr. 178).

248

Mr. Erger identified exhibit R-1 as the "assignment termination"
form which he.signed on March 19, 1981, in which he rated Mr. Donovan's
job performance as "fair". He explained his rating as "judging from
the man's performance I had really nothing against his willingness
to work and, you know, be a hand, but he was not an oiler as such as
to be a journeyman" (Tr. 179). He also indicated that he had no knowledge
that Mr. Donovan quit his job until he received the form and.received
a phone call at his office that Mr. Donovan had quit (Tr. 179). Although
the form shows that Mr. Donovan signed it on March 17th, Mr. Erger stated
that he kept it until he signed it on March 19, because he thought that
Mr. Donovan may have had some second thoughts about quitting and would
come in to see him. When he heard nothing further from Mr. Donovan,
he went ahead and signed the form (Tr. 180).
Mr. Erger denied that he ever told Mr. Donovan that he no longer
needed him, and he asserted that if this were the case he could have
fired him. He decided to keep him because "it's a whole lot better
to make a hand rather than run one off" (Tr. 180). He confirmed that
he took no further steps to formally demote Mr. Donovan because he
wanted to discuss the matter with him further, but had no opportunity
to do so when he quit (Tr. 182).
On cross-examination, Mr. Erger denied that Mr. Kauss ever "came
running to him" complaining about Mr. Donovan's work performance (Tr. 183).
During further cross-examination of Mr. Erger by Mr. Donovan, Mr. Donovan's
recollection of the Monday meeting with Mr. Erger and Mr. Kauss is .that
Mr. 'Erger stated that he and Mr. Kauss could "work it out" and "if .that
was not possible, Mr. Erger didn't care if he worked there or not (Tr. 189).
Mr. Donovan conceded that Mr. Murray may have been in his office at the
site, and he explained that he did not seek him out because Mr. Erger
told him that a meeting was not necessary, and that he should go back to
work and "work it out" with Mr. Kauss and that Mr. Murray need not be
involved (Tr. 190). Mr. Erger denied that this was true (Tr. 190).
In response to further questions, Mr. Erger stated that he advised
Mr. Donovan that he was going to "cut him back to helper and cut his
pay" on Monday, March 16, the day before he quit on Tuesday, March 17,
and when he told him that he had no indication that Mr. Donovan would
leave his job (Tr. 196-197). Mr. Erger confirmed that after Mr. Donovan
left the job, Mr. Barnhouse told him that everytime Mr. Donovan checked
the oil in the machine "he had to go behind him and check it", but
he denied that Mr. Barnhouse ever commented about Mr. Donovan's work
before he left (Tr. 199). Reg:irding any "harassment" of Mr. Donovan
by Mr. Barnhouse or Mr. Kauss, Mr. Erger stated as follows (Tr. 200-201):

Q. Mr. Donovan seems to imply here that Barnhouse and Doc and you sort of conspired to run
him off the job. What say you to that assertion?

249

A.

It's not true.

Q. Okay. Is it possible that Barnhouse and Doc,
without your knowledge or, you know, gave him
such a rough time that they ran him off the
job? And i f I can believe that, would you have
been aware of that situation?
A. No, I wouldn't have been aware of it, I
wouldn't have put up with it.

Q. So, Mr. Donovan never came to you and told
you that Doc and Barnhouse were giving him a hard
time?
A.

No.

Q. He never came to you and told you that Barnhouse
was more or less tailgating him all the way around,
and I mean that Doc was following him around checking
up on him, trying to find things wrong with his
performance and all that?
A.

No, sir.

Q.

Did you ever make a statement to Mr. Donovan on
that Monday that you'd just as soon he _,,,drag up?

A.

No. sir.

Mr. Erger confirmed that routine safety meetings or "safety chats"
were held among the different crafts on the job, and that a general
safety meeting was held in each Monday (Tr. 204-206). Since the oilers
and mechanics came in at different hours, each group was responsible for
their own daily safety sessions (Tr. 206-212).
James Kauss, mechanic, confirmed that his nick name is "Doc". He
confirmed that he worked for the respondent until June 12, 1982, when he
was laid off (Tr. 213). He described his duties while employed at the
construction site in question, and confirmed that he reported to Mr. Erger
(Tr. 214). He denied that he was ever classified as a "leadman" or
ever performed the duties of a leadman. He stated that he had no authority
to hire, fire, promote, or demote any employee, but that if he believed
an employee deserved a raise he "could put in a word for him" with Mr. Erger
(Tr. 215). He confirmed that he received instructions from Mr. Erger
in the morning as to the equipment which needed to_ be serviced, and he
confirmed that either he or Mr. Erger held safety meetings for the
equipment people (Tr. 216).

250

Mr. Kauss stated that he began working with Mr. Donovan when
he was assigned to the day shift, and that when he first worked with him
on the fuel truck a couple of times, he needed some help with checking
the oil and water in the radiator. He confirmed that he had one argument
with Mr. Donovan about two weeks after he started work on the day shift
and the argument was over his failure to properly wash down a diesel
fuel island (Tr. 218, 220). He confirmed that the argument "was midly
hot", but he denied swearing at Mr. Donovan (Tr. 220).
Mr. Kauss confirmed that he and Mr. Donovan met with Mr. Erger
for about ten minutes on the Monday after Mr. Donovan had gone to see
Mr. Warhol, and he believed their problems had been worked out (Tr. 221).
He denied that he and Mr. Barnhouse ever smoked marijuana on the project,
and he denied ever observing employees doing so. He also denied that
Mr. Donovan had ever complained to him about any marijuana smoking on
the job (Tr. 221-222).
Mr. Kauss identified exhibit R-12 as his "reduction in force"
form, confirmed that it indicates his job classification as "heavy duty
mechanic", and he confirmed that this was his job during his entire employment
period with the respondent (Tr. 223). Mr. Kauss confirmed that he was
currently unemployed and was never offered any employment by Tenneco,
nor has he applied for a job with them (Tr. 223).
Mr. Kauss confirmed that he checked on all of the oiler's work
while he was employed and he denied that he ever went out of his way to
check up on Mr. Donovan'~_ work. He indicated tha_J: it was his ~ftSP,onsibility
to repair leaky fuel trucks, and denied that he ever refused to repair
any called to his attention by Mr. Donovan (Tr. 225). He denied any
promises or threats for his testimony in this case (Tr. 226).
On cross-examination, Mr. Kauss confirmed his experience and education
as a mechanic, and he also confirmed that while he has smoked marijuana,
he never did it on the job (Tr. 234). Mr. Kauss denied that he called
Mr. Donovan an "S.O.B." on March 6, at the time of their argument over
the spilled fuel at the diesel island, and he confirmed that this is
when Mr. Donovan told him "he was going to the office" over that encounter
(Tr. 237). He denied that he and Mr. Donovan argued again on the
subsequent Monday when they met with Mr. Erger (Tr. 238).
In response to further questions, Mr. Kauss stated that safety
meetings were held every Monday morning at the mechanic shop and that
he would go over a "safety check sheet" with the men, and that Mr. Donovan
was usually present at these meetings, which took about five minutes
(Tr. 249). Mr. Kauss denied that he had ever threatened or harassed
Mr. Donovan in any way, and he was not aware of any safety complaints made
by Mr. Donovan (Tr. 251).

251

Findings and Conclusions
It is clear that a miner has an absolute right to make safety
complaints about mine conditions which he believes present a hazard to
his health or well-being, and that under the Act these complaints are
protected activities which may not be the motivation by mine management
in any adverse personnel action against an employee; Sec. ex rel. Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d
Cir. 1891), and Sec. ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC
803 (April 1981). In order to establish a prima facie case a miner must
prove by a preponderance of the evidence that: (1) he engaged in protected
activity, and (2) the adverse action was motivated in any part by the
protected activity. Further, the miner's safety complaints must be made
with reasonable promptness and in good faith, and be communicated to mine
management, MSHA ex rel. Michael J. Dunmire and James Estle v. Northern
Coal Company, 4 FMSHRC 126 (1982).
The thrust of Mr. Donovan's discrimination complaint in this case
is that he complained to certain mine management personnel about certain
leaky fuel truck conditions and the smoking of marijuana on the job by
miners while engaged in their work.
He alleges that the smoking of marijuana
jeopardized his safety, as well as the ~afety of other miners in that
the smoking of marijuana and the use of drugs on the job resulted
in at least one incident where he claims a fellow worker nearly backed
over him with a truck whi.le under the influence of drugs. With regard
to t:-he leaky fuel trucks,- Mr. Donovan claims that----rather than t-aking
corrective action to insure that the conditions were repaired, certain
mine management personnel directed the work force to "hide the trucks"
from l1SHA inspectors who were on the scene.
In his amended complaint, as well as in a pretrial deposition taken
by respondent's counsel, Mr. Donovan claimed that his safety complaints
were made to equipment supervisor and foreman Joseph Erger, p_ersonnel
manager David Warhol, and a "leadman" known to him only as "Doc" (James Kauss).
Mr. Donovan also claimed that Mr. Kauss, as well as Mr. Donovan's coworker, David Barnhouse, smoked marijuana on the job, and that he complained
to them also in an effort to get them to cease and desist.
Mr. Donovan claims that as a result of his safety complaints, he
was harassed and intimidated by Mr. Kauss and Mr. Barnhouse on the job,
and that Mr. Kauss became hostile and sought to discredit him by complaining
about his work, calling him derogatory names, and provoking arguments
with him, all of which made it difficult for him to continue working.
Mr. Donovan claims further that rather than taking corrective action
with regard to his complaints, Mr. Erger encouraged him to seek work

252

elsewhere or to quit his job, ignored his complaints, and denied him
access to, or an opportunity to meet with superintendent John Murray,
all in an effort to prevent complete disclosure of his complaints. In
addition, Mr. Donovan claimed that his wages were cut by $2.50 an hour,
with no change of duties, because of his safety complaints. In short,
Mr. Donovan claimed that the actions taken against him by Mr. Erger
and Mr. Kauss were motivated in large part by his safety complaints
concerning leaky fuel trucks and the smoking of marijuana.
The crucial question in this case is whether the respondent, acting
through or by any of its supervisors or managers, violated Section lOS(c)
of the Act by demoting, harassing or otherwise intimidating Mr. Donovan,
and/or firing or constructively discharging him for engaging in protected
activities. The parties stipulated that Joseph Erger, David Warhol,
and John Murray were supervisors and/or managerial officials employed
by the respondent at the time of Mr. Donovan's employment, and that
these officials had the authority to hire, fire, discipline and independently
direct the work force. Accordingly, as to these individuals, the issue
is whether the record supports findings or conclusions that they individually,
or collectively, violated any of the protections afforded Mr. Donovan
by the law. A further issue is whether purported "leadman" James Kauss,
was in fact a supervisory or managerial employee or agent of the respondent
during the period in question, and if so, whether he also discriminated
against Mr. Donovan, either individually or collectively.
Mr. Donovan's Safety Complaints
Employee's Use of Drugs
With regard to Mr. Donovan's allegations concerning the smoking
of marijuana on the job, Mr. Donovan was not shy about discussing this
with the individuals whom he claims were using drugs. Although I can
understand his concern for his own personal safety, I find it strange
that he made no attempts to inform the local authorities at that time
about such a problem, particularly in a situation where he claims "dozens"
of persons were involved. As a matter of fact, during the course of
the hearing in this case, Mr. Donovan contacted the local police department
in Green River and requested someone from that department to come to
the hearing. A "plain clothes" police lieutenant walked into the courtroom
during the trial and testimony in this case, and after identifying himself
to me he stated that Mr. Donovan had requested someone to come. After a
brief conference with this individual in private, I was convinced that
he had no personal knowledge of Mr. Donovan's discrimination complaint,
and did not even know who he was. After a further conference with Mr. Donovan,
the police representative departed.
Mr. Donovan's claims concerning the use of drugs at the construction
site in question escalated into a most serious pretrial allegation by
the respondent that Mr. Donovan attempted to extort money or his job

253

back from the respondent in exchange for a promise by Mr. Donovan that
he would not "go public" with certain video tapes which he claimed he
had showing miners using drugs on the job. Although respondent supported
its pretrial allegation in this regard with a sworn affidavit from the
individual with whom Mr. Donovan purportedly had a telephone conversation
with, and presented testimony and other documentation in support of its
allegations of extortion, Mr. Donovan denied that he made the call in
question and I find it unnecessary to make any findings on this question,
particularly in light of the serious criminal implications of such an
allegation (Tr. 106-107; 125-128; exhibits R-6 and R-10).
Mr. Donovan and Mr. Kauss admitted smoking marijuana in the past,
but Mr. Barnhouse and Mr. Kauss denied they ever used it on the job, and
Mr. Erger denied that he ever used drugs or observed others smoking
marijuana while at work. Respondent's counsel conceded that the use of
marijuana or other drugs by employees on the job presents a serious safety
hazard and concern. However, even if I were to accept Mr. Donovan's
assertions and testimony as true, the critical issue is whether his
safety concerns were in fact communicated to mine management, and in
return, rather than taking corrective action, management harassed and
intimidated him to the point where he was forced to leave his job. In
short, the issue is whether Mr. Donovan's safety complaints, once
communicated to mine management, resulted in his "constructive discharge".
Mr. Erger and Mr. Warhol denied that Mr. Donovan ever mentioned the
use of drugs or marijuana by anyone during their conversations and meetings,
and I find them to be credible witnesses and believe them. I seriously
question Hr. Donovan's credibility. In light of Mr. Donovan's "prior
assertions and subsequent denials regarding the question of whether
he communicated his marijuana smoking allegations to mine management,
I seriously question his credibility on this question.
In his deposition, at pages 12-15, Mr. Donovan stated that he
specifically advised Mr. Erger, on at least two occasions, that Mr. Kauss
and Mr. Barnhouse were smoking marijuana on the job in the truck and
that he had observed them doing so. He also stated that he specifically
told Mr. Erger that their smoking of marijuana endangered the lives of
himself and other miners, and that Mr. Erger assured him "he would take
care of it". Mr. Donovan also stated in his deposition that "there were
a lot of people using dope on the job", and that this was a "daily
occurrence". He claims that he "could get no satisfaction on the job"
and went to complain to personnel manager Dave Warhol about the situation,
deposition, pg. 15.
During the hearing in this case, Mr. Donovan recanted his prior
statements made in his deposition and confirmed that he never told Mr. Erger
or Mr. Warhol about the alleged smoking of marijuana on the job. When
the deposition was received in evidence (Tr. 35; 46), Mr. Donovan
alluded to certain statements therein which he claimed "were incorrect".

254

He was given an opportunity to review his prior statements and to
explain or co~rect any statements which he believed were inaccurate
(Tr. 36-46). After doing so, he recanted his prior statements that he
had advised Mr. Warhol and Mr. Erger about the marijuana smoking on
the job (Tr. 36-37; 43).
With regard to Mr. Donov~m' s asserted mariJ uana smoking "safety
complaint" to James Kauss, I conclude and find that there is no credible
evidence to support a finding that Mr. Kauss was in fact part of mine
management. The fact that Mr. Donovan may have believed he was, doesn't
make it so. Thus, I find respondent's testimony and evidence that Mr. Kauss
was not in fact a "leadman", a manager, or an agent of the respondent credible.
During his cross-examination of Mr. Kauss, Mr. Donovan stated that
to his knowledge, Mr. Kauss was not a mechanic. Mr. Donovan stated
that he considered him to be a "leadman" ·because "he would come around
and tell us what to do every day and here and there and chew on people
whenever he felt like, so apparently he was the leadman" (Tr. 228).
However, respondent has rebuted Mr. Donovan's assertions and has established
by a preponderance of the probative and credible testimony that Mr. Kauss
was in fact a mechanic and not part of mine management.
Even if I were to conclude that Mr. Kauss was part of mine management,
I find no credible evidence to support a finding that he harassed or
intimidated Mr. Donovan. Mr. Kauss had no authority to hire or fire
anyone, and the fact that Mr. Donovan saw fit to leave his job over his
somewhat heated arguments with Mr. Kauss does not per se mean that
Mr. ~Kauss "ran him off th-e job" or otherwise conspiredto "get . . hiffii• for
complaining about his marijuana smoking.
There is nothing in the record to suggest that during his employment
tenure with the respondent Mr. Donovan made any safety complaints to
MSHA with regard to any alleged use of drugs by miners on the job. In
addition, in view of the above findings and conclusions, I conclude and
find that Mr. Donovan did not conununicate any safety complaints concerning
the use of marijuana or other drugs by miners on the job to anyone in
mine management during his employment at the work site in question.
The Leaky Fuel Trucks
It seems strange to me that at no time during his employment at the
mine in question did Mr. Donovan make any safety complaints to any
MSHA inspectors about the leaky fuel conditions on his truck or the fact
that mine management was "hiding the trucks from the inspectors".
Mr. Donovan's assertion that he didn't know of MSHA's existence until
he filed his discrimination complaint is inconsistent with his allegations
implying that management hid the trucks from inspectors when they were
on the property. It is also inconsistent with Mr. Donovan's assertions

255

that while on the property, the inspectors never inspected the
trucks. Further, since Mr. Donovan testified that he had several
"encounters" ~ith respondent's safety personnel at the job site, he
could have complained to them about the leaky truck conditions.
Mr. Donovan's assertions of being "unaware" of MSHA is further contradicted by his own testimony that during his employment at the site
an MSHA inspector asked him about a front-end loader which had apparently
been involved in a fatality which MSHA was looking into (Tr. 185-186).
In my view, Mr. Donovan had ample opportunity to bring to MSHA's attention
any conditions concerning the trucks which he believed threatened his
safety. In addition, he had an absolute right to refuse to work under
such conditions, and at least on one occasion he did bring to Mr. Erger's
attention a malfunctioning fuel pump which was corrected and repaired.
While the record in this case does suggest that there were some
problems with leaky fuel pumps on the trucks, respondent has established
through the credible testimony of Mr. Erger, Mr. Barnhouse, and Mr. Kauss
that these matters were attended to and that the trucks were either taken
out of service or repaired. Further, there is no evidence that the
respondent had ever been cited by MSHA or any state inspectors for any
leaky fuel truck conditions. Further, while the record also suggests
that there were some problems with the fueling of welders in the vicinity
where men were working, these matters were apparently attended to by
respondent's own safety department, and at least on one or two occasions,
Mr. Donovan may have himself been involved in those incidents.
~I conclude and find ~hat Mr. Donovan's assert:,_ed "safety coII],pL:i.ints"
concerning any leaky fuel trucks amounted to nothing more than his calling
these conditions to the attention of management, and that the conditions
were ultimately corrected. Further, Mr. Donovan conceded that he never
specifically brought these so-called safety complaints to the attention
of Mr. Erger or to Mr. Warhol, and even if he did, I cannot conclude
that they retaliated against him in any way for voicing these safety
concerns. I make these same findings with respect to any such complaints
that Mr. Donovan claims he made to Mr. Kauss.

The Alleged Harassment and Intimidation
The record in this case reflects that Mr. Donovan was hired at the
project by Mr. Erger upon the recommendation made to Mr. Murray by
Mr. Donovan's friend Duane Baker. After some personnel problems developed
with the night shift crew, problems which apparently did not directly
involve Mr. Donovan, all of the night shift, with the exception of Mr. Donovan
and another employee, were apparently dismissed, and the night shift
was disbanded. Mr. Donovan was retained on the day shift, and the decision
in this regard was made by Mr. Erger and Mr. Murray. Further, even though
Mr. Donovan had an eye condition which resulted in his failure to pass
an initial physical examination, he was still retained in his capacity

256

as an oiler making more money than his co-worker Dave Barnhouse, who
drove the truck to which he and Mr. Donovan were assigned, and Mr. Barnhouse
also continued doing the work of an oiler.
Mr. Warhol testified that when Mr. Donovan came to his office in
an obviously agitated and irritated state on Friday, March 9, over his
encounter with Mr. Kauss, Mr. Warhol suggested that he take the weekend
off to "cool down" and to return to work the next Monday. Mr. Warhol
testified furthe~ that he was concerned that Mr. Donovan's leaving work
would result in his termination, and he acted as an intermediary in an
attempt to set up a meeting with management to resolve Mr. Donovan's
problems. At that point in time, Mr. Warhol had no knowledge of any
specific complaints by Mr. Donovan, and he heard nothing further from
Mr. Donovan until he later learned that he had left his job.
I find nothing in the record to support a finding or conclusion
that Mr. Warhol did anything to violate Mr. Donovan's rights. Mr. Warhol
impressed me as a most honest and credible witness, and there is no
evidence to show that he was ever informed or made aware of Hr. Donovan's
alleged safety concerns. With regard to the abortive meetin~ with
Mr. Murray, I find that this was outside Mr. Warhol's control, and I
accept his testimony that once he told Mr. Donovan to take some time
off to "cool down" and never heard from him again, he assumed that
any problems which he may have had were resolved. In short, there is
no credible testimony or evidence to suggest that Mr. Warhol harassed,
intimidated, or otherwise acted to intimidate Mr. Donovan. Nor is there
any evidence that he violated any of Mr. Donovan's rights ~nder the Act,
or was part of any "consplracy" or "witch hunt" to force Mr. Do·fi.ovim to
quit his job. I make these same findings and conclusions with regard
to Mr. John Murray.
I agree with the respondent's argument that Mr. Erger's decision
to demote Mr. Donovan was based entirely on nondiscriminatory and nonretaliatory reasons and would have occurred regardless of any purported
protected activity. I find Mr. Erger's testimony that he considered
lowering Mr. Donovan's wages and reassigning him as a helper to be
credible. I also conclude that Mr. Erger's decision in this regard was
prompted by the two incidents concerning Mr. Donovan's putting gas in
a diesel piece of equipment and putting too much oil in a welder. Although
Mr. Donovan characterized these incidents as "honest mistakes", they did
result in damage to the welder, and required Mr. Kauss to drain the gas
out of the diesel tank. Under these circumstances, I conclude that Mr. Erger
was justified in believing that Mr. Donovan's work performance was not
what he expected it to be. Further, as the record in this case establishes,
at the time Mr. Erger informed Mr. Donovan that he was going to demote
him, Mr. Erger had no knowledge of Mr. Donovan's complaints.

While I recognize the fact that Mr. Donovan may have made an
"honest mistake'' when he put gasoline in a diesel piece of equipment, and
overfilled a welder with oil, and that these two incidents came shortly
after his Monday meeting with Mr. Erger and Mr. Kauss, there is nothing
to suggest that Mr. Donovan was harassed by Mr. Erger over this incident.
The over filling of the welder caused the machine to be taken out of service
for repairs, and I can understand Mr. Erger's concern about Hr. Donovan's
ability to perform his job as an oiler. I can also appreciate and understand
the concern that Mr. Kauss may have had over these incidents, particularly
in a situation where Mr. Erger apparently relied on Mr. Kauss to make
sure that his men were doing their job right. Further, from the record
in this case, it appears to me that any differences between Mr. Kauss
and Mr. Donovan preceded the two incidents in question, and their "shouting
match" took place the week before. Given the fact that Mr. Erger testified
that he could have fired Mr. Donovan over the two incidents in question,
his decision to retain him does not indicate to me that Mr. Erger was
"out to get" Mr. Donovan. It seems to me that Mr. Erger could have done
that by simply firing him on the spot rather than deciding to keep him,
and that fact that Mr. Erger advised him that he probably would reduce his pay
and reassign him as a helper is a management decision that Mr. Erger had
a right to make.
Mr. Donovan testified that when he put too much oil in a welder
Mr. Kauss spoke to him in a "hasty type" way, was agitated over the
mistake he had made, but. did not curse him at that time(Tr. 239). During
the incident when Mr. Donovan put gas in the diesel truck, Mr. Kauss
went to find the tools to drain it, and Mr. Donovan stated that he "come
back out and was cussing this and that" (Tr. 240). When asked whether
Mr. -Kauss was cursing at him, Mr. Donovan stated ..!-'he was cussing 1?,ecause
he said, you guys are not doing your job correctly when you put the gas
in a diesel rig" (Tr. 240). When asked whether Mr. Kauss was cursing at
him or simply "over the situation", Mr. Donovan stated that Mr. Kauss
said "you son-of-a-bitches ain't doing the job right" (Tr. 241), and
Mr. Donovan indicated that Mr. Kauss was "apparently" referring to both
him and Mr. Barnhouse (Tr. 241).
i:fr. Donovan testified that "the dope issue" which he discussed with
Mr. Kauss was prior to the time that he went to see Mr. Warhol, and that
when he complained to Mr. Kauss about his use of drugs Mr. Kauss called
him "a hick" or "something to that effect". When asked whether Mr. Kauss
cursed him at that time, Mr. Donovan replied "t'he word he used, I can't
think of right now" (Tr. 243).
Mr. Donovan confirmed that Mr. Kauss "used such words" when something
went wrong to agitate him, and he also confirmed that when they argued
on March 6, he too "said a few things" but did not swear at Mr. Kauss
(Tr. 244). These were the only instances that Mr. Donovan could recall
Mr. Kauss using "strong words" with him (Tr. 244).

253·.

After careful consideration of the entire record in this case,
including my observations of Mr. Donovan and Mr. Kauss during the course
of the hearing, I believe that Mr. Donovan's "frustrations" stem from
his obvious dislike of Mr. Kauss. Aside from the allegation that Mr. Kauss
smoked marijuana, that dislike obviously flows from Mr. Donovan's
opinion that Mr. Kauss was not a particularly competent worker, his
resentment of Mr. Kauss for questioning his work, and the ~nsuing arguments
which resulted from Mr. Kauss' calling Mr. Donovan's shortcomings to his
attention. As a matter of fact, in his two-page post-hearing statements
Mr. Donovan states "I feel I was discriminated against by the respondent
in that they allowed an unqualified person, James Kauss, to supervise
other employees, and allowed this man to discriminate against me and
to report untrue statements on my working abilities".
In his deposition of October 8, 1982, at page 17, Mr. Donovan
states that after the Monday meeting with Mr. Erger, he made three or
four attempts to see Mr. Murray, but that Mr. Erger "was in the way and
would not let me go in and talk to him". However, during the hearing,
he testified that after Mr. Erger told him to resolve his differences
with Mr. Kauss, and that there was no need for a meeting, he made no
further attempts to see Mr. Murray. Accordingly, there is nothing in this
record to suggest that Mr. Murray was even aware of Mr. Donovan's
"problems", and there is absolutely no evidence that Mr. Murray did anything in violation of any of Mr. Donovan's protected rights.
In view of the foregoing findings and conclusions, I find no credible
testimony or evidence to support any findings or conclusions that anyone
connected with mine management, either singularly----or collective1y ,..·took
any action against Mr. Donovan in retaliation for his engaging in any
rights protected by the law.
Mr. Donovan's Employment Termination
I conclude and find that the preponderance of the evidence in this
case suggests that Mr. Donovan voluntarily quit and abandoned. his job
on or about March 17, 1981, and that he did so for reasons unrelated to
any purported "conspiracy" on the part of mine management to "get rid of
him" for making safety complaints. Exhibit R-1, a copy of an "assignment
termination" document from Mr. Donovan's personnel records, and which
contains Mr. Donovan's signature, and which he acknowledge is his, reflects
that he left his job "to work elsewhere", and coupled with the testimony
of respondent's responsible officials, which I find credible, support
my findings and conclusions that Mr. Donovan voluntarily quit his job.
Although his quitting may have been precipitated by his impending demotion
and disputes with Mr. Kauss, the record in this case strongly suggests that
Mr. Donovan himself had something to do with these matters, namely his
own work related mistakes and encounters with Mr. Kauss.

259

Conclusion and Order
In view of the foregoing findings and conclusions, I conclude
and find that the record in this proceeding does not establish by a
preponderance of any reliable, credible, or probative evidence that the
respondent discriminated against the complainant because of any protected
safety activities on his part. Under the circumstances, the complaint
IS DISMISSED, and the relief requested by the complainant IS DENIED.

Distribution:
Lynn Donovan, 841 South Raritan, Denver, Colorado 80223 (Certified Mail)
Peter R. McClain, Esq., Brown & Root, Inc., P.O. Box 3, Houston, TX
77001 (Certified Hail)
William Zosel, Esq., Bianchi & Zosel, 4908 Rainer Avenue South, Seattle,
WA 98118 (Certified Mail)
James H. Barkley, Esq., U.S. Department of Labor, Office of the Solicitor,
1961 Stout St., Denver, CO 80294 (Certified Mail)

260

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

80204

FEB 2 81983

)

SECRETARY OF LABOR, MINE SAFE1Y AND
HEALTH ADMINISTRATION (MSHA),

)
)

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 82-174

)

v.

)

MINE: Dutch Creek No. 1

)

MID-CONTINENT RESOURCES, INC.,

)
)

Respondent.

)

~~~~~~~~~~~~~~~~>
Appearances:
Alan H. Yamamoto, Esq.
Office of the Solicitor, United States Department of Labor
Arlington, Virginia
for the Petitioner
Edward Mulhall, Jr., Esq.
Delaney & Balcomb
Glenwood Springs, Colorado
for the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges respondent, Mid-Continent Resources, Inc.,
(Mid-Continent), with violating safety regulations adopted under the
Federal Mine Safety and Health Act, 30 U.S.C. 801 ~seq.
After notice to the parties a hearing was held in Carbondale, Colorado
on October 19-20, 1982.
The parties filed post trial briefs.
ISSUES
The issues are whether respondent violated the regulations, and, if
so, what penalty is appropriate.

261

SUMMARY OF THE CASE
In this civil penalty proceedings the Secretary alleges respondent
violated three safety regulations.
The initial citation concerns a defective monitor. It is claimed to
be defective --because it did not deenergize add on lights and because a
warning light could not be seen when the remote control unit was in use.
The first allegation is affirmed and the second is vacated.
The second citation concerns electrical work performed by a nonqualified person in installing a switch box cover in April 1981 and in
wiring a light switch in 1978. The first allegation is affirmed and the
second is vacated.
The third citation concerns a methane monitor maintenance program.
This citation is vacated.
A broad overview of the explosion at this mine may be seen in MSHA's
official report received in evidence as Exhibit P 1.
For convenience the decision sunnnarizes the relevant evidence as
it relates to each citation. The evidence may relate to more than one
cit at ion.
Very few credibility issues arise in the case. When they do their
resolution will be apparent in the text of the decision.
CITATION 802484
This citation, alleging a violation of 30 C.F.R. 75.313, provides
as follows:
The methane monitor installed on the 12CM continuous mining
machine, Serial No. JM2228, located in the 102 Section was
not installed in a manner to deenergize automatically the
continuous miner in that the lighting system of the machine
remained energized when the concentration of methane reached
2.0 percent. The methane monitor also was not installed so
as to give a warning automatically at all times when the
concentration of methane reached 1.0 percent while the
·machine was being operated by remote control. The warning
light is located in a position that cannot be seen at all
times. These conditions were observed on April 25, 1981,
during an inspection as part of the accident investigation
of the April 15, 1981, explosion.

262

The standard allegedly violated, duly promulgated in Title 30 Code of
Federal Regulations, is likewise contained in Section 303(1) of the Act.
The standard provides as follows:
§ 75.313 Methane monitor [STATUTORY PROVISIONS]

The Secretary or his authorized representative shall require,
as an additional device for detecting concentrations of
methane, that a methane monitor, approved as reliable by
the Secretary after March 30, 1970, be installed, when
availabl~, on any electric face cutting equipment, continuous
miner, longwall face equipment, and loading machine, except
that no monitor shall be required to be installed on any
such equipment prior to the date on which such equipment
is required to be permissible under sections 75.500, 75.501,
and 75.504. When installed on any such equipment, such
monitor shall be kept operative and properly maintained and
frequently tested as prescribed by the Secretary. The
sensing device of such monitor shall be installed as close
to the working face as practicable. Such monitor shall be
set to deenergize automatically such equipment when such
monitor is not operating properly and to give a warning automatically when the concentration of methane reaches a maximum
percentage determined by an authorized representative of the
Secretary which shall not be more than 1.0 volume per centum
of methane. An authorized representative of the Secretary
shall require such monitor to deenergize automatically equipment on which it is installed when the concentration of methane
reaches a maximum percentage determined by such representative
which shall not be more than 2.0 volume per centum of methane.
SECRETARY'S EVIDENCE
Clarence J. Daniels, James Smith, and Cecil Lester, all MSHA
supervisors who investigated the electrical system at the Mid-Continent
mine, testified for the Secretary (Tr. 11, 26).
On April 15, 1981, at 4:10 p.m. a devastating methane and coal dust
explosion shattered the 102 section Mid-Continent's Dutch Creek Mine No. 1
(Tr. 11, Pl).
The last completed MSHA inspection at this mine took place January 5,
1981 through January 19, 1981. A subsequent general inspection, began
March 30, 1981, was in progress at the time of the explosion (Tr. 72-73,
Pl). MSHA Coal Mine Inspector Louis Villegas was in the 102 section on two
occasions on the day of the explosion. He left the section at 11:30 a.m.
and was the first MSHA official to return to the mine, at 5:55 p.m.
There have been five ignitions and two previous explosions over the
years in this mine (Tr. 125).

263

From the positions of six of the victims the 1nvestigators concluded
that at the time of the explosion the miners were attempting to remove
methane from the face area by winging the line curtain across the face
(Pl at 31).
MSHA investigated the mine, including the entire electrical system
in the 102 section, beginning April 22, 1981 and concluding May 8, 1981
(Tr. 11, 12, Pl at 28). The purpose of the investigation was to determine
the cause of the explosion, to create an awareness of the hazards for the
industry, and to attempt to prevent future occurrences (Tr. 11). Pursuant
to Section 103(a) of the Act, 30 U.S.C. 813(a), the Secretary issued a
comprehensive detailed report concerning this incident. The report,
received in evidence, is Exhibit Pl.
MSHA investigated the continuous miner and its methane monitor system.
In this decision the continuous miner is also referred to as the miner,
the CM, the 12CM, and the Joy 12CM.
Sixteen citations were issued. Four of the citations related to the
explosion and three of the citations are in contest (Tr. 12, 46).
The high voltage system was well installed and maintained (Tr. 12).
The electrical power to the 37 foot long continuous miner comes from
a transformer and power center through a trailing cable to a point onboard
the 12CM. From there the power goes to a control unit for the various
components on the machine itself (Tr. 29, 317).
When the methane monitor was tested at the two percent methane level
it was found that the add-on McJunkin lights on the continuous miner (Joy
12CM) would not deenergize (Tr. 13, 27). The lighting system was not
properly connected to the relay (Tr. 13).
The methane monitor operates in this fashion: when the sensor detects
a two percent level of methane in the atmosphere a red light goes on and
the monitor automatically cuts off the 12CM at the trailing cable onboard
the miner (Tr. 14, 17, 29, 113, 114). The monitor system, manufactured
by BACHARACH, ]} consists of a relay, a power supply, a readout system,
sensor heads, and cables (Tr. 34, 35).
The McJunkin lights were connected in parallel with the existing
monitor relay instead of being in a series as the wiring diagram of the
add-on system required (Tr. 13, 29, 41). The hookup of lights to the
controller is a matter of an electrician following the diagram inside the
compartment and making the proper connections (Tr. 29). It would be simple
for a knowledgable electrician (Tr. 30-31).

1/

BACHARACH INSTRUMENTS: UNITED TECHNOLOGIES BACHARACH.

264

It is important that the methane monitor deactivate as much of the
machine as possible (Tr. 110). This helps eliminate ignition sources
(Tr. llO, lll)". MSHA policy requires the monitor to deenergize all
possible moving parts and ignition sources (Tr. 112). Only that part of
the power keeping the monitor activated remains energized (Tr. 113). The
methane moni~or itself remains functional to give an indication of the
presence of methane and to prevent the reactivation of the continuous miner
(Tr. 113).
In the great majority of instances the methane monitor shuts off the
power on the machine and the trailing cable stays energized (Tr. 120). On
the 12CM the trailing cable goes into the junction box on the right hand
side next to the operator's cab. The left rear controller box controls the
various devices on the miner (Tr. 120). The controller is the large
explosion proof compartment containing the electrical components, wiring,
relays, and transformers that control the motors.
The methane monitor originates in a control compartment from the
existing voltage on the left side of the machine (Tr. 28). The trailing
cable (550 volts) remains energized up to the first protective device on
the machine, that is, up to one of the controllers. If the trailing cable
leading up to the machine has any defects then MSHA considers it part of
the continuous miner (Tr. 47, 48).
MSHA's regulations require the machine itself, excluding trailing
cables, shall be deenergized up to the methane monitor leaving the methane
monitor energized. All lights on the CM would be deenergized (Tr. 53).
According to MSHA inspector Lester, the defect was that the McJunkin
add-on lights stayed on when the methane monitor reached a two percent
concentration of methane (Tr. 398).
The Secretary's regulations further require that if the monitor senses
a methane concentration of one percent then a warning light goes on. When
this occurs the operator is required to make changes to reduce the methane
concentration (Tr. 19).
The wiring of the add-on lighting system on the miner, installed in
1978, did not conform to the wiring diagram approved by the MSHA subdistrict manager (Tr. 13, 15, 17, 407). The wiring diagram shows a two
pole lighting switch but there was, in actuality, only a one pole switch
connection (Tr. 15). The two pole switch to turn the lights "on" and "off"
was not included in the secondary circuit of the lighting transformer
(Finding of Fact No. 21, Pl at 51). MSHA's approval of the add-on light
installation was in accordance with the manufacturer's instructions
(Tr. 17). If a system is maintained as directed a fire or explosion will
not occur (TL. 16). The remote control system and methane monitor system
were both approved by MSHA; however, after installing the add-on lights
Mid-Continent was not required to have the system inspected before placing
the miner back in operation (Tr. 17). Properly the add-on lights should
have been installed in sequence behind the methane monitor system (Tr. 29).

265

The MSHA national policy relating to processing field changes for
installing illumination systems on permissible equipment was issued under
date of December 16, 1977 (Tr. 388, P6). Witness Lester formulates and
drafts such national policy (Tr. 388).
When the add-on lights were installed MSHA National Policy was the
same as the local policy. It allowed an adopting company to make the
installation and put the machine in service if the operator obtained prior
MSHA approval (Tr. 49, 408, MSHA letter Pl at Appendix M).
Mid-Continent officials discussed the methane monitor with MSHA
inspectors, but had not advised MSHA that the methane monitor was
improperly connected (Finding of Fact No. 26, Pl at 52).
In the inspection after the explosion, other than the add-on lights,
nothing was found to have been changed on the 12CM continuous miner from
the way it had been manufactured (Tr. 407). Further, there were no other
defects in the monitor itself, except for some difficulty in zeroing it in
(Tr. 104).
A methane readout, or indicator, mounted on the dashboard of the
monitor (activated at a concentration of one percent) is a two inch
circular dial with an eraser size warning light (Tr. 19, 32, 34, 35). The
one percent warning light is observable from directly behind the cab of the
miner. But if the operator was behind the machine itself he could not see
it (Tr. 115). It is an important requirement for the operator to know when
the methane concentration reaches one percent. The operator can then shut
down the machine and do whatever needs to be done to eliminate the
hazardous condition (Tr. 17, 19, 114)). The explosive range of methane
is between 5 to 15 percent (Tr. 116). When operating the remote control
device in certain positions the continuous miner operator cannot see the
warning light (Tr. 17, 18, 20, 22, 32).
The miner operator often stands in a crosscut 30 to 40 feet outby the
face to operate the remote control (Tr. 21, 36-37). Generally the operator
would be operating the remote control from the crosscut where he could see
the face of the coal he is cutting (Tr. 36-37). Section 313 requires a
warning light on the monitor (Tr. 22). On Mid-Continent's machine, due to
the cab and obstructions, it was not possible to see the dial from a point
behind the miner (Tr. 115). However, the warning device, which has little
illumination, came on at all times on the indicator when the methane concentration reached one percent (Tr. 36, 39).
MSHA approved the indicator gauge, its installation on the dashboard,
and its intensity as well as the methane monitor (Tr. 41). The remote
control and the BACHARACH monitor are parts included in the purchase order
of the Joy 12CM (Tr. 33, 34, Pl at Appendix M). But MSHA does not
specifically approve any method of using a remote control device but that
does not mean the operator can use the device in any manner he likes
(Tr. 18, 19). The regulations do not state whether the methane warqing is
to be oral or visual. Further, there is no line of site requirement in the
regulation (Tr. 36). That is, the regulation does not require the operator
to be in a "line of sight" behind the indicator. In his investigation the
inspector found he couldn't see the headlights come on when he was beyond
the tailpiece nor when he was 50 feet back (Tr. 40).

266

Mid-Continent's mine liberates about one and a half million cubic feet
of methane in a 24 hour period. This is a gaseous coal seam· (Tr. 20).
Mid-Continent's mine is in the 103(i) category [of the Act] and,
as such, the mine must be inspected by MSHA every five working days
(Tr. 42). These are spot inspections; in addition, there must be at least
one quarterly inspection. The mine also has a resident MSHA inspector
(Tr. 42-43, Pl at 4). During regular inspections the inspector will do a
permissibility check on the equipment and other hazards. Electrical
inspections are not done by an electrical expert. Electrical inspections
usually involve a visual check of the power sensor, cables, and circuit
breakers (Tr. 43-44). An MSHA inspector might also check the monitor. He
does not have to be an electrical inspector to test the methane monitor
with a test kit (Tr. 45).
RESPONDENT'S EVIDENCE
M. J. Turnipseed, manager of mine operations, Jesus Meraz, master
mechanic, and John Jerome, a foreman, testified for Mid-Continent
concerning this citation.
This mine is subject to bumps, bounces, outbursts, and pushes. These
events cause various phenomena in a mining section and liberate methane
(Tr. 148-151, 155, 317).
In looking at the 102 section after the explosion, Mid-Continent's
manager and production foreman Jerome concluded that a very small push
occurred. This affected the airflow. Further, there was a gas explosion
150 feet outby the face. This, in turn, triggered a dust explosion up the
beltline (Tr. 158, 159, 309, 310, 326).
There were two very good production crews working the 102 section.
One crew foreman was John Jerome. In the previous shift from 7 a.m. to
3 p.m. conditions were normal and 20 or 22 buggies of coal were mined in
the upper entry (Tr. 303). The other production foreman was Ron Patch.
His shift started at 3 p.m., and the explosion occurred at 4:08 p.m.
(Tr. 290, Pl). He died in the explosion with crew members Eugene Guthrie
(mechanic/electrician), Kelly Greene (foreman in training), Glen Sharp,
(CM operator), Terry Lucero (miner-helper), Thomas Vetter (shuttle car
operator), Hugh Pierce (apprentice miner), Daniel Litweller (apprentice
miner), Brett Tucker (apprentice miner). Also killed in the slopes section
were Johnny Rhodes (crew foreman), John Azala (CM operator), Loren Mead
(miner-helper), Kyle Cook (shuttle car operator). Robert Ragle (foreman)
was also killed in the explosion (Tr. 163-165, 299, 300, 312, Rl9).
The mine manager recalls that Mid-Continent purchased several sets
of add-on McJunkin lights which were manufactured about 1975 by Joy
Manufacturing Company (Tr. 178-179, 202, 203). The addition of the addon lights required a field change on each piece of equipment (Tr. 179).

The company would usually talk to MSHA and submit w1r1ng and location
diagrams (Tr. 179). MSHA would usually tell the company to go ahead with
the installation and they (MSHA) would check it on the next inspection
(Tr. 180, 181). But one of the first installations of the add-on lights
was to this particular CM machine, No. 2228. This machine was originally
in Bear Creek No. 4 mine. It was never taken out of service and it was
in use in Section 102 on the day of the explosion (Tr. 181-182). Since
there were problems on the first few installations, this continuous
miner was inspected by MSHA before it was allowed to be put into service
(Tr. 180-181). MSHA inspected the continuous miner to see that the lights
were installed in an approved manner. This included checking the power
source, cable glands, permissibility, routing of cables, and conformity
to the wiring diagram submitted to MSHA for approval (Tr. 182). The
continuous miner was never modified in any manner as far as the McJunkin
add-on lights were concerned (Tr. 183). Mid-Continent's manager would not
make a field modification without a written approval and an MSHA inspection
(Tr. 184). The equipment in the 102 section was inspected during spot
inspections as well as during quarterly inspections. MSHA sees that the
machine remains as originally manufactured (Tr. 185).
It was no secret that when the methane monitor on the continuous
miner cut the power it did not deenergize the lights. The add-on lights
stayed on all the time unless the power was turned off at the power center.
Foreman Jerome knew there was a switch to shut off the lights but he never
used it. Someone at Mid-Continent had discussed this with MSHA (Tr. 183,
184, 319, 328). The miner stayed in that condition for three years
(Tr. 188). To change it would require another letter to Price, Utah
(Tr. 184).
The monitor has a sensing head called a Whetstone Bridge. The net
result of its technical aspect is to show the percentage of methane in the
air (Tr. 188-192, R20, Pl at Appendix M).
The monitor also shows an amber warning devise at a one percent
concentration of methane. At a two percent concentration the monitor
automatically shuts down the machine by disconnecting the power at the
main control box (Tr. 194). The monitor itself and the 550 volts in the
trailing cable to the machine are not deenergized (Tr. 193). With this
continuous miner (CM No. JM 2228) the add-on lights did not deenergize
(Tr. 193, 195).
When next to the shuttle car you can see the warning light on the
methane monitor (Tr. 322). The miner operator does not have the duty to
notify the foreman when he sees the warning light because the foreman is
next to the operator (Tr. 323).
Mid-Continent's foreman Jerome would send someone back to the
power center to cut the power when he'd see the one percent methane
concentration light. Shutting off the energy at the power center deenergizes the auxillary lights, the trailer cable, and the methane monitor
(Tr. 318-321).

268

The continuous miner as purchased contains a remote control device.
The readout gauge was mounted in the cab of the CM and never changed
(Tr. 192, 193). The remote control device permits the continuous miner to
be operated py a worker in a safe remote location such as in a crosscut
(Tr. 192, 314, 316). When mining from a crosscut you cannot see the
warning light on the methane monitor (Tr. 320). That's why the miners
check for methane after each buggy (Tr. 320-321).
The coal in the Dutch Creek ~o. 1 Mine liberates one and one half
million cubic feet of methane (CH ) in a 24 hour period (Tr. 203,
204). Ventilation is furnished by fans from fresh air producing
500,000 cfm (cubic feet air per minute) (Tr. 203). Methane would be .2%
(Tr. 203-205). Brattice cloth directs the air to the working face
(Tr. 205-207). The air return from the 102 section was 120,000 to
160,000 cfm. This is a large volume of ventilation air when compared
with other mines (Tr. 208, 304, 323-324). The ventilation plan must be
approved by MSHA. The law requires 9000 cfm. Mid-Continent's normal is
100,000 cfm (Tr. 211).
In addition to the monitors sensing for methane, miners also check
at the working face with a hand held methanometer every 10 minutes and
when the shuttle car goes to deliver its load to the belt conveyor.
Further checks for methane are conducted in the return airways as well
as in preshift and onshift examinations (Tr. 210, 211, 212, 304-305, 320).
As a result of the explosion, the power center, located in the
crosscut some 450 feet from the face, was virtually demolished (Tr. 244245, 307, 342). All of the brattice, usually ten feet from the face, was
burned (Tr. 311, 318).
The State of Colorado Division of Mines investigated the explosion
and issued an official report (Tr. 198, 199, R21).
DISCUSSION
This citation centers on two allegations. Initially, it alleges
that the McJunkin lighting system on the continuous miner remained
energized when the concentration of methane reached 2.0 percent. The
second allegation is that the methane monitor was not installed in such
a fashion as to give a warning automatically when the concentration of
methane reached 1.0 percent when the machine was being operated by the
remote control device.
For the reasons hereafter stated the initial allegation in the
citation is affirmed. The latter allegation is vacated.
A portion of Section 75.313 requires "such monitor to deenergize
automatically equipment on which it is installed when the concentration
of methane reaches a maximum percentage ••• which shall not be more than
2.0 volume per centum of methane." MSHA's evidence establishes that the
McJunkin lights did not deenergize at the two percent methane concentration. The lights were inboard the main controller. If the add-on
lights had been installed properly they should have been deenergized by
the methane monitor. Mid-Continent's evidence confirms this portion of
the citation (Tr. 193, 195).

269

Mid-Continent's brief, an extensive review of many facts in the case,
addresses this citation (Brief at 70-83).
I agree with Mid-Continent that the citation as written is twofold but
I do not agr~e that the citation is necessarily misleading.
Mid-Continent attacks MSHA's evidence that the hookup on the lights
"would be simple to an electrician that knows what he is doing" (Tr. 31).
Mid-Continent's comment adds that it is "simple to the electrician who
knows what MSHA or the MSHA electrical inspector wants" (Brief at 72).
I am not persuaded. It was Mid-Continent that submitted the wiring
diagram to MSHA. It was that wiring diagram that MSHA approved. Thereafter, different and incorrect wiring was installed. It is Mid-Continent's
obligation and not MSHA's to make the actual installation. Exhibits Rl4
and Rl5 show the electrical leads for the McJunkin light system; Rl6 shows
the circuit breaker for the methane monitor system (Tr. 142, 143, Rl7).
I agree with MSHA that the proper hookup should have been simple for an
electrician.
Mid-Continent further assails the failure of the MSHA inspectors
between 1978 and April 15, 1981 to detect and require the correction of
the allegedly defective hookup (Brief at 73). On this issue MSHA asserts
that while Mid-Continent officials discussed the methane monitor system
with MSHA they (MSHA) were never advised the monitor was improperly
connected (Finding of Fact No. 26, Pl at 52). In addition, it could not
be determined whether the wiring was inspected by MSHA because the records
of inspections do not detail all of the inspectors' activities (Finding of
Fact No. 22, Pl at 51). On the other hand Mid-Continent's manager asserts
MSHA and Mid-Continent "did have discussions on it" (Tr. 184).
I credit MSHA's version that it did not know of the defective wiring.
I base this on the obvious: MSHA at this mine has never been shown to
be timid or hesitant in issuing citations. At the time of the general
inspection, which was in progress at the time of the inspection, 21
citations and one withdrawal order had been issued (Pl at 3). This
aggressiveness in enforcing the Act is further demonstrated by the 482
citations assessed in Dutch Creek Mine No. 1 alone in the two years
beginning April 15, 1979 (P2, P3, as limited at Tr. 412). In short, on
this record, I conclude that had MSHA known the wiring on the monitor was
defective it would have promptly issued a withdrawal order. I further
reject Mid-Continent's position because witness Turnipseed's testimony is
somewhat vague. He didn't know the people who were parties to the
discussion about the lights and it was, at best, his "understanding"
(Tr. 183, 184).
But Mid~Continent's position, even if factually supported, would
reverse the existing law. It would make MSHA rather than the operator
responsible for complying with the regulations. To the contrary, the
statute imposes the duty on the operator to comply, 30 U.S.C. § 817(c),
Beckley Coal Company v. Secretary of Labor, 1 FMSHRC 1794 (1979).

270

Implicit in Mid-Continent's argument is the doctrine of estoppel.
On this point the law is clear: Estoppel does not lie against the federal
government, Secretary v. King Knob Coal Company, Inc., 3 FMSHRC 1417
(1981), Secretary v. J & R Coal Company, 3 FMSHRC 591 (1981), Lasher, J.
Mid-Continent further argues that the evidence establishes "without
equivocation -or doubt", that the trailing cable from the section's power
center to the continuous mining machine remains energized (citing Daniels,
Tr. 47; Smith, Tr. 119; Jerome, Tr. 319; Turnipseed, Tr. 259), and the
methane monitor system onboard the continuous mining machine stays
energized as does the trailing cable (Turnipseed, Tr. 259; Daniels,
Tr. 47). This was MSHA policy (Turnipseed, ibid)."
Mid-Continent argues that the foregoing clear evidence of MSHA's
policy is glaringly inaccurate when contrasted with MSHA's written policy
statement (R30). Mid-Continent cites the MSHA inspection manual (R30-II
264, 265) in support of its argument that MSHA requires that:
The methane monitor shall be connected in such a manner
so as to deenergize all electric circuits in the section
when the concentration of methane reaches a maximum of
2.0 volume per centum of methane, except that the methane
monitor may remain energized (R30, II at 264, 265).
I disagree. The MSHA policy statement relied on by Mid-Continent
commences by referring to "longwall installations" (R30, page II - 264).
This is clearly not such an installation, Further, I reject this view
because in any event MSHA's inspection manual is not necessarily binding on
the Commission, Secretary v. King Knob Coal Company, supra. The law is
clear: The manual's instructions, even if they supported Mid-Continent's
position, are not officially promulgated and do not prescribe rules of law
binding on the Commission, Old Ben Coal Company 2 FMSHRC 2806, 2809
(1980). In general, as in this situation, the express language of a
statute or regulation unquestionably controls over field manual material,
H.B. Zachry v. OSHRC, 638 F. 2d 812, 817 (5th Cir 1981).
The primary duty of the operator is to provide for the safety of its
miners. It is clear in this case that the methane monitor did not deenergize the add-on lights which were inboard the main controller. Hence
a violation occurred.
Mid-Continent contends that another possible source of ignition was
the damaged flame safety lamp found approximately 210 feet outby the face
in the 102 section (Brief at 75-80).
On this record there are several possible sources of ignition. MidContinent 's manager Turnipseed concedes that the failure to deenergize the
lights could have caused the explosion (Tr. 290). Other possible sources
include the defective switch box flange (discussed in the following
citation); an electrical spark, which was the conclusion reached by the
Bureau of Mines of the State of Colorado in their statutory investigation
(R21, R31); a defective safety lamp; a torch igniter (Pl at 45); and a
welder striker (Pl at Appendix N2).

271

The testimony of witness Turnipseed concerning the flame safety lamp
is reviewed in connection with the following citation, infra, page 17.
I agree with Mid-Continent that the evidence, including the documentary
detail published by the Bureau of Mines (R29A, R29B), is interesting. But
the existence of other sources of ignition would not relieve Mid-Continent
of liability_for a proven violation. Simply stated, the presence of
multiple ignition sources would not constitute a defense when the operator
violates a mandatory safety standard. In any event, concerning the safety
lamp, I credit MSHA's evaluation that the safety lamps did not initiate the
explosion (Pl at Appendix N-5 and N-6).
The second allegation in this citation focuses on the proposition that
the methane monitor should give a warning automatically at all times when
the concentration of methane reached 1.0 percent while the machine was
being operated by the remote control unit.
The monitor did have such a readout, or indicator, in the cab.
Exhibit R7 is a photograph of the gauge (Tr. 141). The amber warning light
goes on when the concentration of methane reaches one percent. The gist of
MSHA's theory of this portion of the citation is that the miner operator
could not see the warning light while operating the remote control unit.
The evidence establishes that the operator usually uses the remote control
device for the continuous miner while standing in the crosscut. In that
position the CM operator can avoid any outburst or push of coal which could
possibly come as far back as to cover the front of the continuous miner.
The regulation on this point requires the monitor "to give a warning
automatically when the concentration of methane reaches a maximum percentage determined by an authorized representative of the Secretary which
shall not be more than 1. 0 volume per cent um of methane." There was such
a functioning automatic device.
I find nothing in the regulation or in the legislative history of
the Act that supports the Secretary's position. If the Secretary wants
the warning device on the remote control unit itself or if he wants it
mounted in a position on the cab of the continuous miner where it can be
seen from all directions, then he should redraft his regulation and state
that requirement. While mine operators are obliged to comply with every
mandatory standard, the language of each standard must reasonably convey
to the operator the nature of the practices or procedures required or
forbidden, Diamond Roofing Company v. OSHRC, 528 F. 2d 645 (5th Cir. 1976);
Phelps Dodge Corporation v. FMSHRC, 681 F. 2d 1189 (9th Cir. 1982).
The Secretary's brief (at 7-9) only addresses the desirability of
locating the methane monitor warning light where it can be seen at all
times. But the regulation fails to prohibit the practice of using the
remote control unit when the operator is not in a position to see the
warning light. Otherwise stated, the regulation does not require the
warning light to be located where it can be seen at all times.
In sum, Citation 802484 as it relates to the failure of the methane
monitor to deenergize the add-on McJunkin lighting system is affirmed.
That portion of the citation relating to a warning light when the methane
concentration reaches 1.0 percent is vacated.

272

CITATION 802486
This citation, alleging a violation of 30 C.F.R. § 75.511, provides as
follows:
Electric work performed on April 6, 1981, consisting
of_ installation of a cover on an explosion-proof compartment and the wiring of a two pole light switch on the
Joy 12CM continuous mining machine, Serial No. JM2228,
in the 102 Section, was not performed by a qualified
person nor under the direct supervision of a qualified
person. This violation was determined during an inspection
as part of the accident investigation of the April 15, 1981,
explosion.
The standard allegedly violated, duly promulgated in Title 30, Code of
Federal Regulations, is likewise contained in Section 303(12)(f) of the
Act. The standard provides as follows:
§ 75.511 Low-, medium-, or high voltage distribution
circuits and equipment; repair.

[STATUTORY PROVISION]
No electrical work shall be performed on low-, medium-,
or high-voltage distribution circuits or equipment,
except by a qualified person or by a person trained
to perform electrical work and to maintain electrical
equipment under the direct supervision of a qualified
person. Disconnecting devices shall be locked out and
suitably tagged by the persons who perform such work,
except that in cases where locking out is not possible,
such devices shall be opened and suitably tagged by
such persons. Locks or tags shall be removed only by
the persons who installed them or, if such persons are
unavailable, by persons authorized by the operator or
his agent.
SECRETARY'S EVIDENCE
Clarence J. Daniels, James Smith, and Cecil Lester, all MSHA
supervisors testified for the Secretary.
In investigating the Dutch Creek Mine explosion inspector Daniels was
advised by Jesus Merez (master mechanic) and John Cerise (foreman) that
the cover plate, (also called lid), to the light switch compartment on the
12CM was installed on the machine by the third (C) shift on April 6, 1981
(Tr. 56-57, 72, 389, 403). The actual replacement consisted of removing
a compartment lid without an "on" and "off" switch and replacing with a
compartment lid with an "on" and "off" switch (Tr. 51, 66). To make the
installation it is necessary to connect two wires to a transformer, maybe
three if there is a ground (Tr. 66-67). It would take 30 minutes to hook
up, reassemble, and cleanup the box (Tr. 68). It could be done in less
than two hours (Tr. 68). Cerise examined the box on April 6 to see if
the switch worked but he did not examine the box for permissibility
(Tr. 57-58). At the time of his investigation inspector Lester noted and
drew a sketch showing that the switch located in the lid cover was in the
"off" position (Tr. 390).

273

When asked about who installed the cover plate, foreman Cerise stated
he didn't know·but he thought it was Marge Thiel (Tr. 57-58). Marge Thiel,
who is not a qualified person, was interviewed by MSHA. She stated to MSHA
that she couldn't remember whether she put on the lid or not (Tr. 57-60,
390). All o_f the qualified persons, except those killed in the explosion,
were asked about the lid. None of them could recall having installed it
(Tr. 58-60, 63). John Ball, the other electrician, said he couldn't
remember putting the lid on. But if he had, he would have checked it for
permissibility (Tr. 58, 389-390). Since the qualified miners said they did
not put the cover on the box then an unqualified person would have done it
(Tr. 58).
The maintenance foreman on the "B" shift said his shift hadn't put on
the cover (Tr. 59). Carl Heater, the "A" shift foreman, had no knowledge
indicating it had been installed on his shift (Tr. 59-60).
The maintenance shift foreman thought it might have been installed on
his shift but he couldn't recall the name of the worker who installed it
(Tr. 59-60).
The installation of the cover was not satisfactory because a wire
connecting the switch was too long. This resulted in the wire being
trapped between two bolts of the explosion proof compartment (Tr. 61, 62,
Exhibit Pl at Appendix L, Figures 1 to 6).
Inspector Smith noticed that the trapped wire between two bolts was
mashed very flat. Although deformed, the wire was not bare (Tr. 123). The
switch box was examined for arcing but none was seen (Tr. 123). The light
switch compartment itself was not permissible
because there was an
opening in excess of 15/1000 of an inch between two bolts on the cover
(Tr. 61, 343). The box was later removed and taken to the MSHA testing lab
(Tr. 393, Testing results in Pl at Appendix N-4).

JJ

Mid-Continent's permissibility books reflected that a permissibility
check was done on April 9, 1981. The records show the check was done by
"E.G.". One of the Mid-Continent's electricians, Eugene Guthrie, was
killed in the explosion (Tr. 73-75). On April 9 and 13, 1981 the 12CM
was inspected for permissibility by MSHA inspectors. The captured wire
defeated permissibility (Tr. 75).
On the night of April 13 Louis Villegas, an able and conscientious
MSHA inspector, conducted an inspection of the continuous miner (Tr. 7778), If the installation [of the cover] was improper it would have been
picked up by MSHA's Villegas on April 13th (Tr. 83).
2/

There is no question but that a permissibility violation existed
which was found during the investigation. This violation was the
subject of Citation 802485 (P-1 MSHA Investigation Report, Appendix O).
The citation was admitted and settled by Mid-Continent in Assessment
Case No. 05-00301-03096F, (Tr. 346, Exhibit to Petition, Respondent's
Brief at 87).

274

Usually permissibility is checked by taking a feeler gauge and moving
it around the flange joint (Tr. 77-78). James Smith, an MSHA supervisor,
discovered the non-permissible condition during the post explosion investigation. Lester and Meraz were present (Tr. 78, 79). Inspector Smith found
the opening with a 5/1000 of an inch feeler gauge~ Then he went to his
largest feeler gauge, a 15/1000. He could still insert his largest gauge
(Tr. 122). ~n Smith's judgment the opening was more than twice the 15/1000
of an inch opening. The largest opening allowed is 4/1000 of an inch
(Tr. 128, 129, Pl at 41). Eventually the box was removed by MSHA for
testing (Tr. 81).
If the box had been installed by a non-qualified person and there
had not beerr a trapped wire, there would still be a violation (Tr. 84).
A qualified person is necessary in an effort to insure that explosion
proof compartments are put back in the same manner as they were originally
approved (Tr. 61). This requires a qualified person trained in permissibility (Tr. 61). It is important that all electrical work be done by
a qualified person. This is because equipment should not be left in an
unsafe condition (Tr. 124). It is also vital in this mine which liberates
a large amount of methane (Tr. 124).
The cover of the box is fourteen by fourteen by eight inches. It
weighs approximately ten pounds (Tr. 62). The cover would most likely have
been installed during the maintenance (C) shift (Tr. 65, 70).
Eugene Guthrie, a "B" shift mechanic/electrician worked for Arch
Cardova (Tr. 65, 77). Cardova, the graveyard maintenance foreman, told
MSHA that the cover had not been installed on his shift (Tr. 65, 75-76).
RESPONDENT'S EVIDENCE
M.J. Turnipseed, Jesus Merez, and John Jerome testified for MidContinent concerning this citation.
All workers appointed to the position of foreman at Mid-Continent
are well qualified and have taken extensive examinations (Tr. 213-214).
Mid-Continent also conducts classes for the mechanic/electrician job
category (Tr. 215-216). On April 15, 1981 there was no scarcity of
workers for the foreman/mechanic/electrician category (Tr. 216). The
company training program arises out of a labor agreement dating back to
1978 (Tr. 216-218, R22).
Mid-Continent requires extensive qualifications and certification
for an hourly employee to bid on the job vacancy known as an underground
mechanic/electrician (Tr. 221, 224, 226, R23, R24, R25, R26, R27, R28).
One classification of workers at Mid-Continent combines mechanicelectrician. The company does not have mechanic per se or electricians
per se (Tr. 223).
Any of the qualified workers including Ambrose, Ball, Guthrie
(deceased), Clark, Cordova, Cerise, and Heater could have worked on the
switch box (Tr. 380-381). Carl Heater was the electrician/mechanic on
Jerome's production shift. Eugene Guthrie held the comparable position
on the other shift (Tr. 329).

275

It is custom and pr act ice at Mid-Continent to comply with the law
(Tr, 228). Its workers are well trained enough to know it is not permitted
to have an uncertified person perform a job (Tr. 229, 315, 316).

If an uncertified person started to crawl into a flame proof
electrical compartment, reaction could be slight to violent (Tr. 229-230),
The switch box cover was ordered March 23 and arrived March 30, 1981. It
was installed about April 6 by the graveyard crew (Tr. 370).
The mine manager was present when the investigation party discovered
the impermissible main flange joint, Marks on the box indicated flame coke
inside the box. There was some evidence this condition had entered into
the explosion. It was felt no final determination could be made so he
asked Robert A. Elam (MSHA's chief investigator) to remove the box for
testing (Tr. 233-234, 340, 344). At the time of the investigation Master
Mechanic Meraz had strong feelings about the switch box being the ignition
source. At the time of the hearing he was baffled. Why would this box
suddenly absorb this great amount of methane waiting for someone to light
it (Tr. 370, 371).
The trapped wire was in a four and a half inch spacing. The wire was
not bare when it was exposed but it was lying like a gasket between two
bolts (Tr. 345, 374, 375, 380). Master mechanic Meraz felt that whoever
put the cover on had been in a great hurry. It is Meraz's policy that when
you remove such a cover you check for permissibili~y (Tr. 376, 377). On
another occasion Meraz sought to have an electrician fired for performing
unsatisfactory work (Tr. 378, 379). [That worker was not near this section
in April, 1981 (Tr. 383)].
A copy of Mid-Continent's permissibility book reflects that "E.G."
(Eugene Guthrie) examined the 12CM on April 9, 1981 (Rl).
The full extent of the actual gap was never ascertained, That fact
would make a difference in establishing whether or not the trapped wire
was the source of ignition (Tr. 235, 236). MSHA tested the box (Tr. 236,
Pl at Appendix N4). In the various tests no flames or external ignitions
occurred up to a 50/1000 of an inch gap; at 62/1000 of an inch gap ignition
occurred six out of six times (Tr. 237). At 40/1000 of an inch it was
doubtful if the gap would propagate a flame to initiate an explosion
outside of the enclosure (Tr. 239). In the manager's opinion everything
[in MSHA's report] hinges on whether the switch box could cause an
explosion (Tr. 242). There are various theories as to how the ignition
occurred (Tr. 243-244). The MSHA report mentions and eliminates certain
sources (Tr. 243).
The. knob on the switch was new and turned easily (Tr. 348). In the
investigation, according to Meraz, no one checked the position of the
"on/off" handle as to whether it was "on" or "off" (Tr. 347).

276

A flame safety lamp could have ignited the methane (Tr. 245, 246).
Many explosions are caused by improperly assembled. flame safety lamps
(Tr. 246). After the explosion a flame safety lamp was found 210 feet
outby the face in the 102 section. The lower asbestos washer was broken.
This defect destroys the integrity of the glass enclosure of the lamp
(Tr. 247-251-, P4). MSHA's report concluded that the force of the explosion
damaged the flame safety lamp (Tr. 247-248, Pl at Appendix N-5).
DISCUSSION
Citation 802486 alleges that electrical work on the Joy 12CM was
not performed by a qualified person nor under the direct supervision of a
qualified person. It is further alleged that the electrical work consisted
of the installation of a cover on an explosion proof compartment and the
wiring of the two pole light switch.
From the record I conclude that the switch box cover was not installed
by a qualified person. But no evidence supports the allegation that
the wiring of the two pole light switch [in 1978] was not performed by a
qualified person. Accordingly, that portion of the citation is vacated.
Mid-Continent's post trial brief addresses this citation (Brief at
84-89).
I agree with Mid-Continent that the burden of proof of this violation
rests with the Secretary. That proof lies with the evidence that foreman
John Cerise stated to MSHA inspector Cecil Lester that the cover "was
probably installed by Mrs. Marge Thiel, who was not a qualified person"
(Tr. 389). The foregoing evidence is uncontroverted. Mid-Cuntinent's
defense does not address it.
Mid-Continent argues that there were an adequate number of qualified
maintenance personnel at its mine (Brief at 87). I agree Mid-Continent
offered extensive evidence of that fact.
Mid-Continent's evidence further establishes that it is the custom and
practice at Dutch Creek Mine No. 1 that only certified personnel perform
occupational tasks which require special qualifications. Exhibits R23
through R28 clearly reflect those requirements. In many situations an
operator's custom and practice could be persuasive.
Inasmuch as I rule this credibility issue against Mid-Continent,
a detailed review of the evidence is in order. First of all is the uncontroverted evidence of the admission by foreman John Cerise to Inspector
Lester as stated above. Namely, Cerise thought Marge Thiel installed the
cover. Cerise stated nothing to MSHA about the custom and practice at
Mid-Continent. The admission by Cerise to Inspector Daniels is similar but
not quite as strong (Tr. 57-58). He stated to Daniels that he "didn't know
but he thought it was Marge Thiel" (Tr. 57-58). The record here clearly
establishes that Marge Thiel was not a qualified person to make this
installation. When MSHA interviewed Marge Thiel she did not state
something to the effect that the custom and practice at Mid-Continent
required that only a qualified person perform such work. To the contrary
she merely stated she "couldn't remember whether she put the lid on or not"
( Tr • 5 7- 58 ) •

In view of the foregoing evidence I reject Mid-Continent's defense of
custom and practice.
As previously indicated, the Secretary does not offer any evidence as
to the identity of the person who wired the two pole light switch. His
evidence, as discussed in the previous citation, establishes the fact that
the wiring was defective. To restate the finding: The McJunkin add-on
lights were not wired in accordance with the manufacturer's specifications.
But the mere fact that the wiring was defective does not prove that the
installer was not a qualified person. In other words, even a qualified
person can make a mistake. Accordingly, the second allegation in the
citation is vacated.
On this point the Secretary's post trial brief (at 9-11) does not
advance any fact that would lead to a different conclusion.
CITATION 802487
This citation, alleging a violation of 30 C.F.R. 75.313-1, provides
as follows:
A definite maintenance program for keeping
methane monitors operative was not established
and adopted. A written description of such
program was not available for inspection and
had not been made available to the qualified
persons responsible for maintenance of the
methane monitors. This violation was determined
during an inspection as part of the accident
investigation of the April 15, 1981, explosion.
The standard allegedly violated provides as follows:
§ 75.313.1 Methane monitors, maintenance.

The operator of any mine in which methane
monitors are installed on any equipment
shall establish and adopt a definite maintenance program designed to keep such
monitors operative and a written description
of such program shall be available for
inspection. At least once each month the
methane monitors shall be checked for operating accuracy with a known methane-air
mixture and shall be calibrated as necessary.
A record of calibration tests shall be kept
in a book approved by the Secretary.

278

SECRETARY'S EVIDENCE
Clarence J. Daniels, James Smith, and Cecil Lester, all MSHA
supervisors, testified for the Secretary.
During the investigation the inspectors asked Master Mechanic Jesus
Meraz and three maintenance foreman whether Mid-Continent had a written
maintenance program. Meraz and foreman John Cerise stated they did not
have a written program but had adopted the program of the monitor
manufacturer, BACHARACH (Tr. 86, 87 100, 395). Foreman Heater said he
didn't know of any program. Foreman Cardova said the only program he knew
was in the regulation (Tr. 86, 131, 132, 395).
Both Heater and Cerise further stated that while they didn't know
of any written maintenance program they use the BACHARACH Manual in
repairing and calibrating the monitor (Tr. 131-134). Maintenance is
bigger than repair (Tr. 137).
All of the mechanics knew of the BACHARACH Manual and the testing kit
(Tr. 103).
Mid-Continent now [at MSHA's insistence] has a good maintenance
program (Tr. 88, 89, R2). Under the regulation there must be a program
and it must be in writing to be examined (Tr. 95). The new p~ogram
wouldn't help at all on repairing or calibrating the monitor (Tr. 89).
It is important to have a written program to know how the methane
monitors are to be maintained (Tr. 87). Three of the maintenance
supervisors were aware that when something went wrong they went to the
BACHARACH instructions (Tr. 87).
The maintenance workers didn't use the manual for preventative
maintenance but they used it as a troubleshooter guide (Tr. 101). The
purpose of the methane monitor maintenance program is to let everyone
know what is required of them to insure daily maintenance and to be sure
they are doing what they are supposed to be doing (Tr. 96, 103-104).
If the MSHA inspector was working on the monitor he would use
the BACHARACH instruction manual (Tr. 90) as evidenced by Exhibit R3.
BACHARACH also furnishes a test kit including a bottle containing a
methane mixture to apply to the sensor head of the system (Tr. 91, 92,
100, 101, R4, R4A).

279

RESPONDENT'S EVIDENCE
M.J. Turnipseed and Jesus Merez testified concerning this citation.
Mid-Con~inent has an extensive maintenance program (Tr. 331-332).
Preventive Maintenance personnel cannot be diluted by other supervisors at
Mid-Continent (Tr. 174, 332, 333).

In March, 1979, Mid-Continent published and distributed 200 copies of
a booklet entitled "Mid-Continent Resources, Inc., Preventive Maintenance
Program" (Tr. 173, RS). The booklet is broken down into several sections
including the longwall, the miner, other equipment, and lubrication
information.
The 12CM Miner section of Mid-Continent's book is broken down into
subparts including daily maintenance and lubrication, points to be greased
(with diagrams), points to be checked and filled as needed, and parts to
be checked by operating. Monthly maintenance checks on the 12CM include
lubrication, oil change, and various other checks including "calibrate
methane monitors" (Tr. 168-172, RS). The charts in the maintenance book
showing the work performed correspond with a larger record sheet posted in
the master mechanic's office at each mine. There was such a chart as part
of the preventative maintenance program on April 15, 1981 (Tr. 169, 175,
176, 353). It lists the daily preventative maintenance to be done for all
the equipment in the mine (Tr. 351). Portions of the maintenance manual
do not describe the action to be taken but do list the methane monitor
as something to be checked daily, weekly, and monthly (Tr. 363).
The duties of the company preventative maintenance engineer is to
carry out the maintenance duties. Bernie Fenton, who has three or four
workers, is the Preventive Maintenance Engineer at the Dutch Creek No. 1
Mine (Tr. 170, 358).
Mid-Continent's preventative maintenance program was in effect
on April 15, 1981 and was still in effect at the time of the hearing
(Tr. 174).
As the various maintenance duties are performed the Preventative
Maintenance Engineer marks the larger charts (Tr. 175). Weekly permissibility checks are kept in a separate book, as required by MSHA
(Tr. 176, Rl). The maintenance books were available at the time of the
inspection (Tr. 176-177).
Mid-Continent also uses a BACHARACH kit to test the monitor. The
back of the kit bottle has a complete set of instructions concerning its
use. This was in use before April 15, 1981 (Tr. 177, 178, 336, 337).
The test bottle injects gas into the monitor. In turn the machine reacts
as if methane gas is present in the atmosphere (Tr. 186, 187).

280

Mine manager Turnipseed was present during the questioning of
salaried employees Meraz, Cerise, Heater, and Jerome concerning the
methane monitor maintenance program (Tr. 252-253), MSHA appeared to be
spending a good deal of time attempting to prove that Mid-Continent
fostered the proposition that someone tampered with the methane monitor
(Tr. 252-253).
The questioning was confusing about what the foremen were being asked.
Further, the workers were confused about what the government investigators
wanted as a definite program. No questions were asked along the lines
of how does Mid-Continent comply with the law in this particular section
(Tr. 255).
Master mechanic Jesus Meraz keeps one BACHARACH manual in his desk
and one in his files. The manual is wrapped around the BACHARACH test
bottle (Tr. 336). Meraz taught his foreman Cardova and Heater how to
adjust, check, and maintain the methane monitor. He used the manual to
instruct them (Tr. 337). Mid-Continent's personnel would perform daily,
bi-weekly, monthly examinations in accordance with the manuals instructions
(Tr. 363).
At the time of the explosion Meraz kept a large maintenance chart
for all of the equipment in the mine (Tr. 349-350). The equipment is
listed in vertical columns with the dates for maintenance noted
horizontally (Tr. 350, 351). If the chart would be behind, it would be
obvious and Reeves, (Meraz's supervisor) would be irate (Tr. 151).
The BACHARACH book covers more maintenance detail than MSHA's
(Tr. 291, 292).

prof~am

The BACHARACH methane monitor is represented by squares on the master
mechanic's chart to show what work has been done and also to remind people
to do monthly checks (Tr. 353). Monitor examinations would be done by
various qualified and certified electricians (Tr. 364). The Mid-Continent
maintenance program was in effect before the explosion (Tr. 356). It was a
practice to use the books. Meraz taught Cardova and Heater how to use
them. John Cerise knew how to use the book (Tr. 356-357). It never
occurred to the master mechanic to show the manual to the investigator
(Tr. 366).
DISCUSSION
The gist of the regulation, 30 C.F.R. § 75.313-1, requires the
operator to adopt a definite maintenance program and to have such a written
description available.
Mid-Continent fully complied with the regulation. At the time of the
explosion I find that the program consisted of the Preventative Maintenance
booklet (RS), the BACHARACH Manual (R3), the BACHARACH test kit (R4A), as
well as the wall charts described in the evidence.
The Secretary's post trial brief addresses this citation (Brief
at 11-14).

281

The Secretary contends he carried his burden of proof because his
evidence shows that the maintenance foremen, one or more, didn't even
know the company had a written program.
I am not persuaded. I credit the uncontroverted testimony of
mine manager Turnipseed that there was confusion about what the MSHA
investigators were seeking in their investigation (Tr. 230, 231).
Further, and in resolving this issue, I note what is obvious in this
record: Mid-Continent fully cooperated in MSHA's post explosion
investigation. In short, I refuse to sustain the Secretary's position.
It would amount to ruling that for some unknown reason Mid-Continent
kept hidden its preventative maintenance book, its BACHARACH book, its
test kit, and its wall charts.
The Secretary argues that the Mid-Continent program is not covered
by the manufacturer's handbook or its preventative maintenance program.
He contends Mid-Continent's materials do not contain the procedures
contained in the present maintenance program. He asserts these materials
are not a description of a maintenance program but merely aids to be used
in carrying out the program.
The Secretary relies on what he considers to be a proper maintenance
program. This was the program la~er adopted by Mid-Continent. The
Secretary's methane monitor maintenance program contains five directives
(R2). To answer the Secretary's contentions it is necessary to review
what MSHA considers to be a proper program and compare those directives
with Mid-Continent's program in effect at the time of the explosion.
The Secretary's first directive:
Check to assure that all system compartments
and associated components are securely attached
to the frame of the machine (R2).
Mid-Continent's program on this point uses different words to arrive
at the same result. With the 12CM Miner daily duties include:
11.13 Check and operate as indicated:
Visual inspection - Check Each
Body of machine
all bolts tight
- all guards in place and secured
(RS at 11. 13).
The Secre~ary's second directive:
Check meter assembly lenses protecting lights
to assure that they are not cracked or broken
and the lights are operating properly and in
proper sequence (R2).

282

Mid-Continent's program on the electrical system states:
11.13 Check and operate as indicated:
Electrical System
All lights operating properly
All lights secure and properly sealed
All electrical connections in good shape
Check cable for damage or wear - from machine to power center
Operate cutter head motors
Operate high, medium, and low tram - forward and reverse
Operate conveyor - forward and reverse
Operate gathering arms
Check all motors for excessive heat, noise, or vibration
Check cable conduit at machine
Check that light conduit is secure and not damaged
Check methane monitor - zero and operation.
(RS at 11. 13) •
The Secretary's third directive is that the operator should:
Check vent holes and filters of the sensing device to assure they
are open to permit an adequate circulation of the atmosphere (R2).
The BACHARACH instruction book used by Mid-Continent specifically
addresses the daily maintenance of the Detector Head. It provides:

7.1

DAILY MAINTENANCE

An excessive build-up of "fines" or float dust, in and around the
Detector Head, may reduce the response of the sensing element. Free
circulation of air, in and around the Detector Head is necessary
for optimum performance. The main air path for convective flow
which allows sensing of gas is located in the center of the base
casting. Vent holes are also located in the top cover casting
under the deflector plate, and in the sidewall. The opening in the
center of the base casting also serves as a moisture drain hole and
must be kept free of obstruction. The following maintenance
schedule is recommended to prevent the buildup of float dust and
"fines" around the Detector Head.
a.
b.
c.

Remove any accumulation of materials around the Detector Head,
With the use of compressed air or medium water pressure, hose
down the area around the Detector Head.
Use a small metal rod (or screwdriver) and check that the vent
holes are free of obstruction.

After the Daily Maintenance has been performed, allow approximately
5 minutes for sensor temperature to stabilize. Then actuate the
Test Switch at Remote Meter Housing to Check alarm lamp circuits
and machine power cutoff relay. Adjust meter to zero (0%) with
Zero Adjust Control if necessary.
(R3 at 7 .1).

283

The Secretary's fourth directive requires the operator to:
Actuate the test control device to assure the proper
sequence of the alarm lamp illumination and the
operation of the remote relay by the deenergization
of the machine. (R2).
Only a minimal benefit can be derived by reciting it here in haec
verba but the BACHARACH manual and the instructions on the BACHARACH
calibrating gas container received in evidence address this subject in a
much more comprehensive fashion than the Secretary's proposal (R3 at 11-12,
R4A). In addition, one of the functions listed on the weekly 12CM chart
concern the "remote control sequence of operation" (RS at 11.20).
The Secretary's fifth directive is that:
At least once each month the methane monitors shall be
checked for operation accuracy with a known methane-air
mixture and shall be calibrated as necessary (R2).
Mid-Continent's more stringent program requires that the calibration
test with a known quantity of gas be performed "at least every 2 weeks and
more often if experience and application conditions dictate" (R3 at 7. 2).
On the basis of the foregoing facts I conclude that Mid-Continent did
not violate 30 C.F.R. 75.313-1. The Secretary's position has required that
the respective programs be weighed. As a collateral matter I necessarily
reject the Secretary's evidence that the BACHARACH Manual does not include
the requirements in MSHA's program as evidenced by R2 (Tr. 96). MidContinent had a definite maintenance program. It was written. It was
available.
Citation 802487 and all proposed penalties should be vacated.
CIVIL PENALTIES
Concerning Citation 802484 and 802486, it 1s necessary to assess a
civil penalty for the foregoing violations.
Section llO(i) of the Act [30 U.S.C. 820(i)] provides as follows:
The Commission shall have authority to assess
all civil penalties provided in this Act. In
assessing civil monetary penalties, the Commission
shall consider the operator's history of previous
violations, the appropriateness of such penalty
to the size of the business of the operator's
ability to continue in business, the gravity of
the violation, and the demonstrated good faith of
the person charged in attempting to achieve rapid
compliance after notification of a violation.

284

The record shows that respondent had 1701 violations assessed
against it in five different mines from April 15, 1979 to April 15, 1981
(P2, P3 as limited by stipulation at Tr. 412). At the Dutch Creek No. 1
mine 482 violations were assessed against Mid-Continent between those dates
(P2). This 1s obviously an adverse prior history of severe proportions.
As to the criterion of whether payment of penalties will affect
Mid-Continent's ability to continue in business the record is silent.
But existing case law indicates that where respondent fails to introduce
any financial data a judge may presume that the payment of penalties
will not adversely affect respondent, Secretary v. Buffalo Mining,
2 IMBA 226 (1973), Secretary v. Associated Drilling, Inc., 3 IBMA 164
(1974).
The facts arising in Citation 802484 (methane monitor did not
deenergize McJunkin lights) would indicate respondent was negligent and
the gravity was serious in that this condition permitted a source of
ignition to exist in a gassy mine.
The facts arising in connection with Citation 802486 (non-qualified
person performing electrical work) indicate respondent was negligent for
permitting such an event to occur. The gravity of such a practice is
particularly severe since it was permissible equipment upon which the
work was performed. MSHA's policy requires that all equipment that goes
inby the last open crosscut in the mine must be permissible (Tr. 119).
Considering all of the statutory criteria I conclude that the
Secretary's proposed penalties respectively of $4000 and $10,000 for
the violations of the first two citations are appropriate and I adopt
said penalties on behalf of the Commission.
Since no violation of Citation 802487 occurred the proposed penalty
of $4000 for that citation should be vacated.
The Solicitor and Mid-Continent's counsel filed detailed briefs
which have been most helpful in analyzing the record, defining the issues,
and deciding the case. I have reviewed and considered these excellent
briefs. However, to the extent they are inconsistent with this decision,
they are rejected.
Based on the foregoing findings of fact and conclusions of law I enter
the following:
ORDER

1. Citation 802484 for the violation of the Act and 30 C.F.R. 75.313,
as modified herein, is affirmed and a civil penalty of $4000 is assessed.
2. Citation 802486 for the violation of the Act and 30 C.F.R. 75.511,
as modified herein, is affirmed and a penalty of $10,000 is assessed.

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3. Citation 802487 for the alleged violation of 30 C.F.R. 75.313-1
and all proposed penalties therefor are vacated.

~dministrativ~ Judge
56.hn J. Harri

Distribution:
Thomas A. Mascolino, Esq.
Alan H. Yamamoto, Esq.
Office of the Solicitor, United States Department of Labor
4015 Wilson Boulevard, Arlington, Virginia 22203
Edward Mulhall, Jr., Esq., Delaney & Balcomb
818 Colorado Avenue, Drawer 790
Glenwood Springs, Colorado 81602

*U.S. GOVERNMENT PRINTING OFFICE : 1983 0-381-569/5277

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